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What is the average cost of attending law school? What if an 18 year old wanted to go to law school as cheaply as possible? How mutch could he manage it for? What about an ivy league school? What about the university of Texas? He is a dependent of a veteran, but the G.I. bill benefits have already been used up. He is not willing to get a student loan no matter what the benefits may be. | This answer is limited to options in the United States. According to the U.S. News and World Report annual survey of over 197 law programs, the average cost of attending a private law school is $43,020 and attending a public law school costs an average of $26,264 for in-state residents and $39,612 for out-of-state students. At the top 10 law schools in the country, the average cost of attendance is $60,293 per year. (Source as of 2018). Law school typically takes three years, so triple that number. So, you are looking at $78,792 to $180,879. As discussed below, however, there are economically rational reasons for prospective law students who are chasing a career in a big law firm or in academia to attend a more expensive top law school if they can manage to be admitted there. Some law students are able to work at a moderately paying part-time job during the school year, but summer clerkships for law students, especially between the second and third years of law school, tend to be quite well paying as summer jobs for college students go. A pay of $10,000-$20,000 for the summer as a whole (as well as a leg up on a permanent job after law school) for a post-second year of law school clerkship, would not be unusual. But this is offset by the need to use most of the savings from this job to pay for an optional, but highly recommended, bar exam preparation course that typically lasts several weeks and costs on the order of $5,000-$10,000 (not included in the total cost calculated here). LSAT preparation classes, in contrast, have only marginal value, especially for someone who has already taken SAT or ACT preparation classes. These classes are not necessary if you simply buy some test preparation books and do a few practice tests yourself. Unaccredited law schools (which exist only in California) are a waste of money. The attrition rates are very high, and bar passage rates are very low at the bottom ten or twenty law schools, as measured by incoming student LSAT and undergraduate GPA performance, and are also a bad idea unless you have no other choice. Also, keep in mind that before going to law school, you have to earn an undergraduate bachelor's degree (although your major really doesn't matter at all). How Much Does a Bachelor's Degree Cost? The average annual tuition and fees for a four-year bachelor's degree in the United States is $8,893 for in-state attendees of public colleges, $22,203 for out-of-state attendees of public colleges, and $30,094 for private nonprofit colleges. These 2013-2014 figures, from reports released by the College Board, represent a 2.9 to 3.8 percent increase from the previous year. The 2.9 percent increase for in-state students at public institutions is one of the smallest increases in 30 years. The published figures don't include room and board, books, transportation and other expenses. That adds an average of $13,933 per year at a public college and $14,656 at a private institution, according to the College Board. Added all together, that brings the four-year total cost to $91,304 to $179,000, depending on where you attend. (Source) So, for undergraduate and law school educations combined you are looking at $170,000 to $360,000 of costs of attendance (disregarding any part-time employment or summer job income and any opportunity costs), over seven years, if you attend full-time. Of course, this goes up almost every year. Higher education costs have consistently risen at more than the general rate of inflation in the economy for many decades. Anyone with the academic ability necessary to graduate with an undergraduate college degree with good enough grades and LSAT scores to get into law school, however, is almost sure to be able to secure significant financial aid at the undergraduate level which is, in part at least, not a student loan. The net price of attendance at an undergraduate college has little to do with the "sticker price" of that experience. My children have paid only a small fraction of the "stricker price" to attend a highly selective liberal arts college and an Ivy League university, respectively, as undergraduates, and would have had to pay more per year to attend a local, non-flagship state university (because highly selective institutions have big endowments to pay for generous financial aid packages). In contrast, almost all financial aid for law school comes in the form of federally guaranteed and subsidized rate student loans that will have to be paid off during one's legal career. I had family pay for all of my family contribution for my undergraduate education and half of my law school costs of attendance (at a top ten school), and it still took me twenty years to pay off my students loans. He is not willing to get a student loan no matter what the benefits may be. The only possible ways to become a lawyer debt-free are to have a wealthy family, or perhaps, to enroll in the U.S. military's judge advocate-general (JAG) program (I'm not familiar with the details of how that works). Also, most student loan programs for law school have income based repayment plans and public service employment loan forgiveness plan, so the student loan burden is significantly lower if you pursue a public interest lower paying career (but still quite burdensome early in life, nonetheless). Footnote: Only Risk It If You Are LikeLy To Pass The Bar Exam From sources beyond the scope of this question, I'd just like to note that the empirical evidence suggests that one needs roughly a 2.8 undergraduate GPA out of 4, and 149 out of 180 LSAT score (a score which is at roughly the 40th percentile for LSAT test takers and an IQ of about 118) to have a realistic chance of passing the bar exam (extrapolating from admissions statistics and bar passage rates of the lower ranked accredited law schools). If you aren't at that level academically, law school will eat your tuition without providing you a degree or profession of any significant value. If you can't meet this academic threshold but are committed to working in the legal field, consider getting a paralegal certificate instead, which is vastly less expensive and takes much less time to secure, while still preparing you for a reasonably well paying law related career. To have a very high chance of passing the bar exam on the first try (95%+) you need to have an LSAT score of about 155 out of 180 and an undergraduate GPA of about 3.35 out of 4, in addition to studying hard without too many distractions in law school. (See e.g., here and here). A typical lawyer who has just passed the bar exam had an LSAT score of about 165 out of 180, and an undergraduate GPA of about 3.5 out of 4. Footnote: Are The Rewards Worth The Cost? This said, if you pass the bar exam, the income benefits of being a lawyer (no matter where you went to law school, or how well you performed academically in college, in law school, and on the bar exam) will generally exceed the costs of getting that education and the opportunity costs involved, although your mileage may vary. This has been shown with quite rigorous studies, for example, comparing people who got into law school and passed the bar to people who just barely failed to be admitted or were admitted but couldn't attend for financial reasons (alas, my links to the relevant studies have rotted and I can't quickly reconstruct them). This is not true, however, if you are a woman who takes a substantial amount of time out of the workforce to have children and raise them when they are little (in which case the economics of a law school education become much, much worse, aside from the fact that women who are lawyers tend to marry very affluent husbands on average). My alma mater has done surveys of alums to get hard data on this point and the reality is much more extreme than I would have expected before seeing the data (I've only seen this data in hard copy). Post-law school earnings are bimodal. Something on the order of 30-40% of new law school graduates secure very high paying positions as associates in very large law firms, where most will work for two to seven years before leaving in a lateral move to a small or medium sized firm, or opening their own practice. Lawyers on this track receive exceedingly good returns on their law school educations. Most new lawyers on the big law associate track (and it is very rare to enter this track other than as a new law graduate who summer clerked for a larger law firm while in law school), are either at the high end of a top law school, are at the very top of the class of another law school located in the same state as a major office of that firm, or have family connections to the firm (or perhaps celebrity or elected official status). So, economically, the main benefit to attending a top law school, at a cost of up to $100,000 more than a less prestigious law school, is to increase one's likelihood of finding a career in a big law firm immediately upon graduating from law school (with a 50% to 100% higher income in the early years of your career, and higher lifetime earnings by a smaller percentage). (Graduating from a top law school is also basically a necessity if you want to secure a tenure track position as a law school professor and can provide other intangible benefits as well.) The minority (typically 10% to 30%) of big law associates at a given big law firm (about 7% of all new lawyers), will make partner join the pinnacle of the upper middle class in the United States and have economic returns comparable to being top executives in publicly held companies, very large privately held companies, successful IT startup companies, or hedge fund managers and investment bankers. The law school graduates who do not start out on this track are much less economically well rewarded at first, although still well enough to justify the cost of a law school education in the lion's share of cases (subject to the caveat for women taking substantial time out of the workforce to have children which costs hundreds of thousands of dollars or more in lifetime earnings). After a decade or two in practice, however, this divide tends to even up, with the big law track lawyers mostly sinking down in relative incomes, and the other lawyers gradually rising up in relative incomes, although some divide typically persists through the two group's careers. Furthermore, there are lots of things about being a lawyer that are not fun. It is not a good career choice for many people, and making good money while being miserable is sadly a common circumstance in the profession. Being a lawyer is very different from the way it is portrayed on TV and a prospective lawyer would be well served by getting first hand experience or talking to practicing lawyers about what the job is really like once you are in it. | There are several elements working in your friend's favor. The first is "guilty beyond a reasonable doubt." In an entrapment case, the police have recordings or documents claiming that the "girl" was underaged. If there is no such smoking gun from the (real) girl, the case (probably) would not be prosecuted in the U.S. He doesn't have to prove that she told him she was 18; "she" (or the police) has to prove that she told him she was "not." The second factor is "remoteness" in time, and distance. Two years after a U.S. state sent me a "nasty letter," I asked my lawyer if the state would ever come after me. He answered, "If they were going to do this, you would have heard further by now." The other factor, distance and cross border, (three countries: Turkey, the U.S., his home country) further militates against prosecution except for highly aggravating circumstances such as drug dealing, gambling, or sex for pay. A third factor is that your friend would not come close to qualifying as a "serious offender." This would be someone like a drug dealer, or the head of a "call girl" ring. The cops concentrate their effects on big "busts" like this that make their careers, not "small fry" like your friend. But of course they use the publicity from the big catches to scare everyone else. While there is no "guarantee" against "the worst possible consequences," the chances of them happening are similar to his getting hit by lightening, and less than his chances of being hit by a car crossing the street. No one stresses out about those chances. He shouldn't either. I am not a lawyer but I have done paralegal work in a law office. | What stops a university form doing anything it wants is the contract you entered with the university when you enrolled. (I'm writing from the perspective of a student, not faculty). You and they are bound by the contract, and part of that contract will be a clear outline of academic processes such as ethics, grading, class requirements and test taking, as well as penalties for cheating and plagiarism. That contract will be outlined in your student handbook. That handbook and contract will also clearly outline (or should) the grievance process and remediation for both students and faculty. Since you feel that the university is not being fair, you need to start with investigating that formal grievance process and look into gathering your materials and filing a complaint. The college will have an office that handles such grievances; you need to find it and talk to them. If they are a private college, yes, they do have their "own rules," but some aspects of federal, provincial and local civil and criminal law will still apply. Be aware that the school contract may bind you to arbitration - which means you have to deal with the college on all matters - and you may not be able to go to a public court on a civil matter. A lawyer will be able to tell if you are bound by arbitration and if so, that's the end of the road. If not, a lawyer will tell you if you have a criminal or civil case. In any event, the grievance process at the U will more than likely be your first step. If by chance criminal misconduct is found during the grievance process, then a federal, provincial or local prosecutor would be involved; we would assume the university would be forthcoming if that need appeared. | Is my best bet to get a lawyer and sue? If so, approximately how much should I expect it to cost? How would it work with the requirement for him to pay the legal fees? You would ordinarily either hire a lawyer or bring suit yourself in a limited jurisdiction court (the kind that handles misdemeanor criminal offenses and smaller dollar amounts owed, the exact name of the court differs from state to state). You can always bring suit in the county where the debtor resides. If the loan was not for consumer purposes, you could sue in the place where the loan "was made" or in a forum provided by the loan documents (which does not appear to be present), that might be different from the place where the debtor resides. Usually, you would want to hire a lawyer with offices not too far from the place where you are bringing suit, as limited jurisdiction courts often require in person appearances. Normally, a lawyer would ask to be paid up front, with you posting a retainer equal to a significant share of the estimated legal fees, called a retainer against which the lawyer would bill until it was exhausted, and would normally bill on an hourly basis. Fees on the order of $1,500-$5,000 wouldn't be unusual. One factor that would increase the cost would be the fact that your loan is almost certainly at an illegally high rate of interest, and you and your lawyer would have to examine the relevant law to determine the effect of that on the enforceability of your loan, and the correct amount to claim. In some jurisdictions and circumstances, this might make your entitle loan or at least all interest on it and all fees incurred to collect the debt, uncollectible. In other jurisdictions it might just reduce the amount of interest you could recover. Without this complication, it might have been a matter you could handle on your own. With this complication, you really need a lawyer. You could probably not legitimately claim the full $18,000 plus attorney fees and costs. Some lawyers would take a case like this on a contingent fee basis with you only advancing court costs and out of pocket expenses like process serving charged, but they'd typically do so only if they were confident that they would prevail at trial and if they were also confident that the debtor had the ability to pay. On a one-off basis, a contingent fee percentage of 40%-50% would be more common in this situation that the "usual" one-third contingency rate. "Reasonable" legal fees would be added to the amount you are owed on the loan if the high rate of interest doesn't invalidate this provision. Amounts recovered for legal fees would be paid to you from which you could repay your lawyer whatever you owed your lawyer. In a contingent fee case, usually hourly based fees are awarded and included in the total amount recovered (once the debtor actually pays) and the lawyer would get a percentage of the total collected regardless of what the amount recovered is supposed to be for. Another option would be to sell your debt to a debt collection firm which would charge you a small sign up fee and then collect a percentage of the debt recovered. The usurious interest rate involved, however, might discourage them from accepting you as a customer or buying the debt. If the debtor is not collectible with a job and/or real estate with substantial equity, you probably won't be able to find someone to take the case on a contingent fee basis at all, and will probably have to pay an hourly rate. Do I have the option to take this up via civil complaints? Or is that only for people who are in the same state? It isn't clear what you mean in these questions. A lawsuit is commenced by filing a civil complaint, filed by you or your lawyer in a court, and this can be done even if you don't live in the same state as the debtor, although it may be necessary to file it in the state where the debtor lives. But, the government won't supply a lawyer to help you collect your debt in the way that it would appoint a prosecutor to bring criminal charges against someone who committed a crime in which you were a victim. | It is the tenant's responsibility to understand the written contract. Oral statements about the contract do have to be consistent with the written contract (that is, in the context where you ask the landlord what a particular clause means before signing -- not in the case where you are modifying an existing contract). If I were renting a room and the contract says "Du må betale $1000 hver dag", which I don't understand because my Norwegian is terrible, I would ask about this, and the landlord might say that it means "You must pay $1000 every month", which could be a decent deal. Actually, the clause says "You must pay $1000 every day". When the reality of the situation becomes clear, then it is obvious that we didn't have an agreement in the first place. Perhaps he mis-spoke, or his English is as bad as my Norwegian, but I would not be held to rate in the written contract, assuming that I could back up my claim that he gave me that interpretation: the lease would probably be voided, as not an actual agreement. The underlying principle is that there has to be a "meeting of the minds" where the parties understand what they will get and what they must give, and there was a demonstrable failure of understanding. On the other hand, if I sign a contract without really reading it carefully, and there is a clause in English (which I speak) saying that I have to pay $1000 a day, but I didn't really think about the clause so that in a sense I didn't understand what I had agreed to, well, I may still be on the hook. (On the third hand, a court would probably say that's a ridiculous rent and void the contract on policy grounds). In general, "not my first language" is not a get-out-of-contract card, though attempts to trick people into signing documents in languages that they really have no understanding of won't be successful. Virtually nobody but a lawyer actually understands contractual language, yet contracts are enforced all the time. A contract can be explicitly modified by verbal agreement, or can be entirely verbal, but oral agreements face evidence problems, namely, what exactly did A and B say? It's scientifically well established that parties can be morally certain that the conversation went "A" (for one person) and "Not A" (for the other person). Using "could" rather than "would" in speech makes a huge difference in interpretation. There is a rule, the parol evidence rule, which essentially says that unless there is a good reason to not do so, the contract as written is what is enforced. Even if the conversation had been written into the contract, there's no basis in the contract for objectively determining whether a thing is old and "just broke". So even as an additional clause in the contract, it doesn't afford you a clear escape hatch. You might be able to prove with expert testimony that indeed the pipes had been corroding for a hundred years, and you could not have caused the pipes to burst. | Even though student status is not on the list of protected classes, this still might be discrimination. By proxy. Status as student can be a proxy for age, race, and/or color. Maybe even religion if there is a religious school nearby! In fairness to the store manager, when a pack of ten kids comes rolling in on the way home from school things can get pretty hectic. Rather than try to kick out the problem kids many managers will attempt to avoid the problem in the first place. Also, a sign like this might help the manager be less discriminatory. For example, let's say he lets all kids in and only kicks out the ones who are causing problems. If those problem kids are all in one protected class and it's different from the kids who don't get kicked out, the manager looks like he's discriminating based on that protected class. Discrimination by proxy can be hard to prove and I am not sure of the burden of proof in Canada. I have read that "Canadian experience" is used as a proxy in employment discrimination and has been getting some attention lately. That might be a good issue to keep an eye on as it may define proxy discrimination jurisprudence. | This would be virtually impossible to do from scratch. If you had the guidance of someone who successfully pursued a similar legal action it might be possible. In theory you should be able to pursue grievances in court by becoming well versed in the applicable laws and rules, having impeccable attention to detail, exceptional deductive and writing skills, and getting lucky enough to run your filings through patient clerks who will tell you every time you're missing something or doing something wrong. New York Courts even offer this encouraging CourtHelp website for pro se guidance on common actions. But if you really want to attempt a pro se civil action, especially against a government entity, or other entity with essentially unlimited legal funds, you not only need all of the above but also some sort of assistance from somebody who knows the system. I would spend as much time looking for sympathetic advocacy groups and lawyers offering pro bono service as I would reading relevant law and procedure. (One more thing: The word "quick" is never used in conjunction with formal legal actions, except in jest ;) | These types of situations can, do and will get very messy and bitter fast. The key question here is actually two basic areas: What’s the legal situation now in terms of what you can actually claim etc? For this you need a lawyer familiar with the local laws. Second, and much more important, is how much you value your relationship with your sister. These types of situations can and do irreparably break families, and you need to think very hard about this element of the situation regardless of what your legal rights are. Personally I would err towards probing gently into what she thinks is fair/your mother intended etc and go from there, with the emphasis on extreme caution. Money can always be replaced. Families can’t. |
Suppose you were hacked and harassed using the data stolen Theoretical situation for a cybersecurity course discussion (something of a table-top game): Suppose you are researching a politically controversial topic and someone hacks your computer and starts collecting your browsing history and personal information. Then they use it to discretely harass you. For example, you receive e-mail, mail or texts coming from or addressed to names involved in your research (e.g., if it were chemistry, you might get a postcard addressed to "Lavoisier" or a text asking you to participate in a study of a new erectile dysfunction drug), or your address book is stolen and your boss gets an inappropriate text from someone with the same first name as you. This continues without you being able to get any idea of the source. None of it is directly threatening so it's not something that makes sense to call 9-1-1 over. You don't want to be a "Karen" or be a man in front of cops complaining about the names printed on your mail, and your friends and family laughed it off a long time ago. But after a few years and some "bad luck" you wonder whether these things have been more than just "gags". You submit an FBI report through an online form but never hear anything back. What kind of lawyer do you seek? What are your legal options? | There is really no point in hiring a lawyer until you can identify a culprit. Lawyers can't sue people until they have a way to serve the person at fault with legal process. You need an IT professional instead. | This would be wire fraud, which is any type of fraud committed using electronic communications (the term originally comes from the use of telegrams to commit fraud... just like how "wiring" money devised from paying the bill at one telegram station and having the bill collector take an equal amount of money from a different station.). Wire Fraud is basically a fraud crime over electronic communications, so it doesn't matter how you defraud someone, the fact that you did it in this manner is guilty... using a bank system to fraudulently create more money in your digit account would qualify. The bank would be the victim since it does have a set amount of money in assets that it owes to its customers (account holders) and Federal Insurance (which prevents the Bank Run scene in "It's a Wonderful Life" from happening) requires the bank to carefully keep books. Additionally, Wire Fraud comes with a $100,000 fine against the perpetrator for committing the crime where a financial institution is a victim, so it's in the Bank's interest to report a sudden income surge of fake dollars to the authorities lest they have to pay the fine out of their own pocket, risk their federal insurance, or lose their consumer confidence with account holders (who will pull their money and go to a more honest bank). | No, it is not illegal. The company has no standing to punish you for that. Companies can't sue random people for sending random email... that was largely settled under the (YOU)-CAN-SPAM Act, when in the guise of standardizing US anti-spam laws, spam was largely legalized and state laws were pre-empted and barred from existing. However, all the other laws still apply Laws on harassment, for instance. Sometimes people with mental illness think another human "owes them" a relationship (which kind of misses the point of what a relationship is, but never mind that). And those people, who sadly are an all-too-common cliché, tend to act badly in very predictable ways. As such, we have plenty of laws on the books (and plenty of family court judges who have seen it all) to dispense consequences to the misbehavior and protection to the victim. All those laws really don't care in which medium one might violate them: sky-writing, naval light signal, email, whatever. | I don't think any appellate court has given an opinion on whether encryption creates a reasonable expectation of privacy. This is not surprising as only recently has it come to light that the government may have weakened encryption protocols and asked for backdoors in order to aid in decryption. However, Orin Kerr, professor of Law at George Washington University School of Law wrote this article in 2001. He argues that encryption does not create a reasonable expectation of privacy. He says: the Fourth Amendment regulates access, not understanding. Once you introduce your communication into third party systems (or the garbage :P), they may give it up to the government. If the government happens to be able to understand that communication, so be it. He shows how this conclusion is consistent with how the courts have ruled on "reassembly of shredded documents, recovery of deleted files, and the translation of foreign languages". Note that the reasonable expectation of privacy test is only one of the tests used to determine whether a search or seizure is reasonable. Another test is the "trespass" test which deems an interaction to be a search per se if there is a trespass on a person's personal effects. It was used before Katz and was reiterated recently in US v Jones (2012). Regardless, your question is still meaningful because the two tests are used alongside each other. | Most of the question has nothing to do with the law, it's about technical how-to or how-does, which should be asked in Information Security SE. There are two possible legal questions: is it legal to break into a computer system and take a database of passwords, and it is legal to acquire such a database obtained by someone else. As should be known in the US, per 18 USC 1030, breaking into a computer is illegal in the US. Given that, it is extremely unlikely that Google illegally breaks into other computer systems to obtain passwords. The aforementioned law criminalizes accessing computers without authorization, not (just) "taking" stuff from computers without authorization. The law does not criminalize receipt of illegally obtained material. Passwords are not protected by copyright. If Google were to induce someone to break into a computer system to get passwords, that would be legally actionable, however there is no law penalizing innocent receipt of illegally-obtained passwords (insofar as they are not protected by copyright). It is not illegal to access the dark web, at least in the US (probably it is illegal in Saudi Arabia). Using stuff gotten from the dark web can easily be illegal (e.g. logging in to someone's bank account, or forging a passport). There are many services which monitor the dark web and report breaches, which is totally legal. | 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. | If the lawyer has legitimate concerns, his first port of call would be the ICO https://ico.org.uk/. Before the ICO will take his complaint further he'll have had write to you expressing his concerns and received a written response that presumably he is unhappy with, and wants to take the issue further. Most companies have a data compliance team who will have policies and procedures to log breaches like this and decide what course of action to take in response. Not every breach needs to be brought to the attention of the ICO, and they have a handy self assessment tool to see if you should report the breach. https://ico.org.uk/for-organisations/report-a-breach/ In your situation, I don't think this constitutes a serious breach which will require investigating. It's simply an admin error. If it is unlikely to pose a risk to any of the individuals they will say something like: You should keep an internal record of the breach as detailed in Article 33 (5) of the GDPR, including what happened, the effects of the breach and remedial actions taken. The definition of risk according to the ICO is: "This risk exists when the breach may lead to physical, material or non-material damage for the individuals whose data have been breached". So in this case I'd assume a simple apology (Bcc'd :) ) and a record of what happened, how it happened, and the action taken to prevent it happening again should suffice. | There is no such thing, legally, as "an attack on someone's writing". The only way in which any use of one person's writing by another could be the subject of legal action would be if it infringed copyright. But individual words, short phrases, and individual numbers are not subject to copyright protection. In theory such things might be protected as trademarks, but that would give protection only if they were being used "in trade", that is, to sell or advertise something, and then only if it is in the same industry or market. But a license plate is not selling anything. You may have assigned code meanings to particular numbers. Many people have done this before, using many different schemes or codes. It would be hard to demonstrate that a license plate is referring to your coded meaning and not to some other code. But even if the user admitted an intent to reference your use of a particular number, you have no legal cause of action. You might as well ignore such references, because you cannot do anything to prevent them. Plagiarism is not a crime, nor a tort when there is not copyright or trademark infringement, even if it is openly admitted. If you could prove harassment or some sort of stalking you might have a case, but nothing you have described (in the question or associated comments) comes close to that. If a police car actually hit yours intentionally or negligently you would clearly have a case, but the plate numbers would be no part of it. Response to recent comment: The source of authority (which is not the same thing as jurisdiction) to place license plate numbers on police cars is state MV laws and regulations. To the best of my understanding, such numbers are assigned automatically and sequentially, and have no reference whatever to anyone's blog or political statements. No evidence seems to be cited to show otherwise. The question asks What jurisdiction authorizes these reappropriations of my work/writing/speech? But no one authorizes tjhings that did not happen, and as far as i can see no appropriation occured. Jurisdictions, by the way, do not authorize things, people and organizations do. The question asserts: For my writing I coined "317" and "037" but no one can "coin" a number, and people use numbers in many ways. Use of a similar number on a license plate need not be a reference of any sort to a particular blog or writing. |
Can you designate someone to sign a contract for a company with certain restrictions? As I understand it, for companies to sign contracts, some individual must sign their signature or else the contract is void. I have read that non-officers in a company must be given the capacity to sign contracts on behalf of that company. My question is: as the owner of a company, can I give someone else in the company the capacity to sign contracts for that company with certain restrictions. For example, they can only sign a contract if the board authorizes them or if the contract pertains to a certain thing. Additionally, the Board would usually be willing to go what I say in this matter. | Have you ever bought groceries? If you have, I’m pretty sure you never signed a contract nor asked the person on the till if they had the authority to enter a contract on behalf of the company. Notwithstanding, a contract is what you had with the grocery company; one that is legally binding on both you and that company. (Most) contracts don’t need to be signed Or, for that matter, be in writing There are exceptions, most notably around real estate or finance, but the overwhelming majority of contracts don’t need a signature or even to be in writing. Many contracts are in writing even when that isn’t legally necessary for all sorts of good reasons but most B2C and even many B2B contracts are verbal or even simply performed - like you buying groceries. Apparent or ostensible authority An agent of a company (including employees) that reasonably appears to have the authority to bind a company to a particular course of action, including agreeing to a contract, has that authority even if they don’t. For example, when you buy your groceries, you can reasonably assume that the cashier has the authority to sell them to you. Unless you know that someone is exceeding their actual authority or it is unreasonable for you to assume the agent is (for example if the cashier tried to sell you the grocery store), then the company cannot avoid their obligations to you. They can, of course, take action against an agent that exceeded authority but that doesn’t let them off the hook for what that agent did. What authority a company gives its agents is up to it A company can only act through its agents. At the top of the tree are the directors and other officers, they have authority only limited by the law and the company’s rules. However, since outsiders don’t know the company’s rules (unless they have been explicitly told), their apparent authority is only limited by law. The directors and officers can delegate authority to employees and other agents however and with whatever restrictions they wish. Such delegation may be explicit or implicit, for example, it’s implicit in a purchasing officer’s role that they can purchase things. However, an outsider is entitled to presume that an employee who acts like they have the company’s authority to do whatever they are doing, does have it. | If I enter into a contract that a previous contract I entered into says cannot be entered, what happens next? Your question is unclear on whether both contracts are entered by the same parties. Generally speaking, it is valid for parties A and B to enter both contracts unless the formation of the subsequent contract contravenes the rights of another entity who also is a party to the initial contract. If the initial contract only binds A and B, a subsequent contract between A and B is tantamount to mutually agreeing to modify the initial contract. If the initial contract between A and B prohibits entering a contract with C, A's formation of a contract with C constitutes A's breach of the initial contract. The specifics of both contracts and the circumstances would help determining whether the subsequent contract is void and null; whether it is valid at law or in equity for A to have indulged in forming a contract with C (for instance, if B breached the initial contract in a way that frustrates its purpose); or whether compelled performance of the [initial] contract between A and B results in A breaching his contract with C (or in the alternative, whether rescission of the subsequent contract is permissible). If both B and C an "innocent" parties, the court supposedly would look for a solution that preserved their rights to the extent possible, leaving A to carry the cost. | Copyright law is not based on contracts, and does not require agreement. No one may distribute copies of a copyrighted work without permission from the copyright holder. For instance, in the US, both Persons A and F can be sued because Title 17, Section 501 of the US Code says: (a) Anyone who violates any of the exclusive rights of the copyright owner ... is an infringer of the copyright or right of the author, as the case may be. (b) The legal or beneficial owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it. Copyright infringement isn't an issue of violating terms you agreed to with a private entity. Your duty to not infringe copyright was imposed by your country's legislature, who does not require your personal agreement to do that. | So you entered a contract that was a bad deal. The law says: tough People are legally allowed to make bad deals. The law will hold you to the bad deal you made. If it only worked for good deals, no one would ever use the law because you don’t want to break a good deal. Providing it has all the required elements of a contract, it will be enforceable. Put up with him or pay him out. | Possibly. Under UCC 3-402, a representative can sign for a party. There are some conditions though. One is that the signature should show unambiguously that the signature is made on behalf of the person identified in the instrument. If the signature is not clear that the signature is made in a representative capacity, the representative is liable. The only thing that a digital signature adds is the possibility that it is impossible to unambiguously show this because of the software. It seems from the internet that Docusign allows this. | canada Not merely because of the length or legalese, and not the entire contract. But there is a line of authority in Canadian law that can lead to exclusion-of-liability clauses being unenforceable, and length is a factor. When there are unusual exclusion clauses, inconsistent with the main purpose of the contract, executed in hasty circumstances, where the contract is long and/or small and the signer's attention is not drawn to the exclusion clauses, courts have been wary to enforce them. Karroll v. Silver Star Mountain Resorts Ltd., 1988 CanLII 3294 (BC SC): [18] ... to allow someone to sign a document where one has reason to believe he is mistaken as to its contents, is not far distant from active misrepresentation. [19] In the usual commercial situation, there is no need for the party presenting the document to bring exclusions of liability or onerous terms to the attention of the signing party, nor need he advise him to read the document. In such situations, it is safe to assume that the party signing the contract intends to be bound by its terms. [20] But situations may arise which suggest that the party does not intend to be bound by a term. In Tilden the hasty, informal way in which the contract was signed, the fact that the clause excluding liability was inconsistent with the overall purpose of the contract, and the absence of any real opportunity to read and understand the document given its length and the amount of small print on its reverse side, led the Court to conclude that the defendant should have known that the plaintiff had no intention of consenting to the onerous exclusion in question. In these special circumstances, there was a duty on Tilden to take reasonable measures to bring the exclusion clause to the attention of Mr. Clendenning. Tilden Rent-A-Car Co. v. Clendenning, 1978 CanLII 1446 (Ont. C.A.) said: In modern commercial practice, many standard form printed documents are signed without being read or understood. In many cases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party, and, in the absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum. In the case at bar, Tilden Rent-A-Car took no steps to alert Mr. Clendenning to the onerous provisions in the standard form of contract presented by it. The clerk could not help but have known that Mr. Clendenning had not in fact read the contract before signing it. Indeed the form of the contract itself with the important provisions on the reverse side and in very small type would discourage even the most cautious customer from endeavouring to read and understand it. Mr. Clendenning was in fact unaware of the exempting provisions. Under such circumstances, it was not open to Tilden Rent-A-Car to rely on those clauses, and it was not incumbent on Mr. Clendenning to establish fraud, misrepresentation or non est factum. Having paid the premium, he was not liable for any damage to the vehicle while being driven by him. As Lord Denning stated in Neuchatel Asphalte Co. Ltd. v. Barnett, [1957] 1 W.L.R. 356 at p. 360: "We do not allow printed forms to be made a trap for the unwary." | If two parties have a contract, where one party is required to do X in exchange for the other party doing Y, then the terms specified in that contract would determine what happens. You would have to see exactly what it says, especially if the other party has the option to not give you money. A contract might say "A shall at his option give B $5,000 by date X; if A elects not to make payment, notice must be given 60 days before X". Failing to give timely notice is thus breech of contract. However if the clause only says "A shall at his option give B $5,000 by date X", then there is no requirement for advance notice. And this assumes that there is a contract whereby both parties have some obligation to the other. A gift, on the other hand, carries no obligations on the giving party. There may be some social code to the effect that they should have told you by now, but failing to give advance notice is at most rude and certainly not legally actionable. | You already have a contract(s): you do work and they pay you is pretty much all you need to have a contract. Given that there is already a contract, formalising it in writing does not expose you to any greater risk and usually, clearly defining the terms of a contract reduces risk all around. |
How can I find whether a legal case has been filed against me in Germany? I am a non-EU citizen who lived for a few years in Germany and left it a few years ago. My German landlord didn't pay my deposit back. When I contacted him by email about that, he responded by email that he had used my deposit to make small repairs, paint the apartment, etc. He added that my deposit wasn't enough to cover the expenses and that he would send me the bill shortly. But he never did, and it looked like his actual expenses were considerably less than the deposit. However, because I had already left Germany and was living in a different part of the world, I decided not to bother suing him. It has recently come to my mind that he may have dishonestly filed a legal case against me in Germany to claim the alleged difference between my deposit and his expenses to repair the apartment, in the hope that I would not learn about the case and will thus be obligated to pay him if I ever come back to Germany. He knew I was departing Germany. A complicating factor is that I forgot to deregister (i.e., abmelden) when I left Germany. This means that if he filed a case against me, an official notification letter may have been sent by the court to my registration address, which is the address of that apartment, so I may be considered notified about the case despite having left Germany. My question: How can I find whether he filed a legal case against me? Is there any online database, or where can I request the information? I live outside the EU. | No, there is no general publicly accessible directory of lawsuits against private individuals, even if it concerns yourself. The complaint must identify you as the defendant indicating a ladungsfähige Anschrift, § 253 Ⅱ, Ⅳ, 130 ZPO. Commencing an action requires service of process, § 253 Ⅰ ZPO. I presume you are not a De-Mail user. So you will get a hardcopy. You may not know that, but such mail in Germany is usually sent in yellow envelopes. The mailman will carefully compare the mailbox label and in case of a match record the date and time of successful delivery on the envelope as well as a slip of paper returned to the sender, the court in this case. Now this will obviously fail in your case (unless the landlord maliciously attached a corresponding label to a mailbox). In a civil action the court “pretends” to be dumb regarding facts. The landlord must try to track you down. Evidently he knew your email address, so he had some contact details. If he was evil, the next option would be to ask the court for an öffentliche Zustellung, § 185 ZPO. If the court agreed, this means there will be, for instance, in the city hall a paper on a bulletin board “To the attention of Coala, last known address …: There is mail for you to pick up at my office.” Two weeks later the letter is automatically considered to be delivered.Some cities (example: Cologne, NRW) also publish these documents on the internet, but due to GDPR considerations delete them after a certain period now. If there was a lawsuit, there will have been a default judgment by now, i.e. you will have lost just by being a no‑show. However, you said you have never received the bill. This means the landlord must have produced false evidence, claim to have sent the bill and a subsequent warning notice, but there was none. But this is an entirely different issue. | 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. | The most important rule for an extradition from Germany is this: If the role of the countries were reversed, would the person be convicted in Germany according to German law? You say the link claims that he couldn't be convicted now, because he would have been convicted twice for the same crime. So he wouldn't be convicted in Germany if the roles of the countries were reversed, therefore no extradition. (The next important rule is this: There must be enough evidence that the person would be prosecuted in Germany, not necessarily convicted. You also need to convince the court that the accused will get a fair trial when extradited, that there will be no cruel or unusual punishment, including death sentence, and lastly there is no extradition for small crimes when the extradition plus having to appear in a foreign court can be considered worse punishment than the actual punishment for the crime. All these irrelevant in this case, I think). "Auslieferung unstatthaft" just means "extradition inadmissible" or "extradition illegal". PS. Ludl asked "shouldn't there be some law that if someone cannot be extradited from Germany because of extradition law, they can still be prosecuted in Germany". That would be completely unnecessary. Let's say one US citizen murders another one in Germany, the USA asks for extradition (they wouldn't, because it is a German matter, but they could ask of course), and Germany rightfully refuses. Then since it is a murder on German ground, it will be prosecuted in Germany. It would be absurd to think that a failed extradition request could protect a murderer. | Look at the form letters from the consumer advice center, e.g. Lower Saxony. Keep in mind that the entity may be allowed/required to keep some of your data. Anything that impacts their taxes, for starters. And your information/deletion request might also have to go on file, to mirror their record of a before-due-date deletion. | If there is no written contract, why not just respond to their invoice with a letter stating you do not intend to pay because the trial was free so you don't owe anything. If they attempt to collect, make the same case to the court. Then the burden is on them to prove otherwise. Which, if there is no written contract agreeing to pay an ETF, might be difficult for them to do. Be careful about surreptitiously recording phone calls without the other party's knowledge or consent. In some jurisdictions this is illegal and can subject you to criminal prosecution. | If I don't attend the hearing, can I get evicted? Yes. Never ignore a court hearing date. The Tribunal could otherwise impose an outcome without hearing your side of the story. If you ultimately paid the rent and the late fees, and the Tribunal didn't know that, you could be unjustly evicted if you don't present your side of the story. It could simply be a case, for example, where the landlord confused your non-payment with someone else's. But after the Tribunal rules, fixing that mistake is much more difficult than fixing it at a hearing. It could be that making two late payments that are cured later is still grounds for eviction under the lease, although I very much doubt it. In that case, it still pays to show up to make sure that the Tribunal has all of the facts favorable to you before it makes its decision. | Yes and No In the lower court (Amtsgericht), yes you can proceed without a lawyer, but for certain cases. In those cases and in the upper courts, you have to have a lawyer. That is called "Anwaltspflicht" or "Anwaltszwang". You need a lawyer whenever the case is in the layers of Landgericht, Oberlandesgericht, Oberstes Landesgericht, Landesverwaltungsgericht, Bundesverwaltungsgericht, and the Bundesgerichtshof - so any court that is at the state or federal level, as regulated in § 78 ZPO. There's a level of damages that automatically puts the Landesgericht in charge of a case, thus mandating a lawyer. Atop that, you need a lawyer in front of the Lower Amtsgericht if the case is either about family law, or it is a case including a Verbrechen that requires "Notwendige Verteidigung". This is regulated in § 140 Abs. 1 StPO (Strafprozessordnung ~ Regulations for the conduction of criminal processes). Another case that demands for a lawyer is if you can be banned from your profession as a result of the case (e.g. medical or judicial personal in some cases), if the Staatsanwalt requests Untersuchungshaft (confinement during investigation) and some more. Also, if a criminal lawsuit - even when not about a Verbrechen - contains a person below 18, that one has to have a lawyer in any case. Verbrechen here is any crime in the StGB that has a minimum punishment of confinement of at least one year as defined in §12 StgB. Endnote While allowable, it is not always advisable to proceed with a case yourself and without a lawyer and alone. Especially in rental cases, the local Mieterverein often can assist with legal advice on how to proceed and might have a lawyer on call for such cases. Also as a student, your ASTA might be able to help you free of charge. Both can also help to find either a lawyer with an affordable rate or even help to renegotiate the contract by the weight they hold as interest groups and their expertise (and the ASTA might remove a bad landlord from the list of landlords they suggest to students). | There is, in general, a rule that all matters connected with a single transaction or event should be included in a single legal case. Different jurisdictions apply this diffidently, and I haven't yet researched this in Maryland specifically. Also, if you agree to pay a part of what the landlord claims, you will quite likely be asked to sign a settlement agreement as part of the transaction. This is likely to include a release of all claims connected with your tenancy at the apartment. If it does, and you sign the agreement, you will be giving up any claim you might otherwise have because of the failure to properly notify you. You may want to consult a lawyer about this. A one-time consultation might not be very expensive. If you sued the landlord, you could do so in small claims court, where legal costs are significantly lower than in other courts. |
A scholarship organization is publishing my personal information on their website In February 2018, I received a one-time scholarship (1000 €) from a private association in the EU. A few months ago, I noticed the organization published on their website private information of the scholarship recipients: name, town and photography of each person. This is a problem for me, because this appears on the first page of results when I search my name on Google. This means, everyone who looks up my name on Google will be able to know where I live. This is even more a problem, because I live in a small town, so it is very easy to deduce my house address. I had emailed the association, and I was told they were "not even sure they could technically remove the information" because "this is the first time we received such a request" and "no scholarship recipient ever had a problem with this". This was a few months ago, and my personal information is still published on their website. I would still prefer to have this information removed. How should I politely approach this situation? | This is clearly personal information (PI) , and indeed personally identifiable information (PII). and so is Personal Data under the GDPR. Under Article 6 of the GDPR any processing must have a lawful basis. There are 6 possible bases. The most likely ones here would be (a) consent, or (f) legitimate interst, but the private association may claim some other basis as well. They should tell you what basis or bases justify their processing of this information, which includes storing it and publishing it. Under Article 13, Paragraph 1(c) the association should have informed you of the purposes for which information was collected when it was first collected. Under Article 15 paragraph 1 you are entitled to request and obtain from the association (or any other Data Controller) a statement of what PI about you they hold. along with this they must supply various other information including; (a) the purposes of the processing; (b)the categories of personal data concerned; (c) the recipients or categories of recipient to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations; (d) where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period; (e) the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing; (f) the right to lodge a complaint with a supervisory authority; and other specified information. Article 17 paragraph 1 provides that: The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay ... if one the the specified conditions applies, particularly: 1(b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing; 1(c) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2) Article 21 paragraph 1 provides that: The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (e) or (f) of Article 6(1), including profiling based on those provisions. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims. Thus I would suggest that you send a written communication to the association, stating that you: Request access to all PI which they have about you, as permitted by GDPR article 15 paragraph 1; Request that they delete any such information from the public website and any other publications, as permitted by GDPR article 17 paragraph 1; State that you object to further processing of this information under GDPR article 21 paragraph 1; Request information on the name and contact info of the relevant supervisory authority under GDPR article 15 paragraph 1; State that you expect these requests to be complied with promptly, in no event later than 30 days. Mention your prior request for the public info to be deleted, and that several months have already elapsed. Give the exact date of the prior request. I would suggest sending these requests, together in a single email, specifically mentioning the relevant GDPR provisions. I would suggest sending a copy of this by registered mail, and retaining a copy, along with the identifying number of the registered letter. In the letter, mention the email. If the association does not promptly respond in a way you consider satisfactory, you may wish to file a complaint with the relevant data protection supervisory authority. You may also wish to consult a lawyer with experience in this area to determine if you have any legal recourse if the association does not comply. | There are not enough facts to draw a conclusion First, it’s not clear that the document you signed amounts to a contract. For example, what consideration did the school give you in return for the permission you gave them? Providing you with an education doesn’t count - they were legally obliged to do that already. If it is a contract then whether and how it can be revoked would depend on the terms of that contract witch I’m guessing you don’t have a copy of. Notwithstanding, as a minor, you have the right to void the contract until a reasonable time after you turn 18. Even if it is now many years since that happened, it might be reasonable since you only just discovered the website. If it isn’t a contract, then it would be revocable at any time. Practicalities Make a fuss and they may take the photos down even if they are not obliged to. They presumably have plenty of photos of kids who aren’t you and aren’t complaining and if you make it so it’s easier to change the website than to deal with you, thy’ll change the website. I suspect their inertia is because they once paid a web developer to create the site, it has never since been updated, they don’t know how to do it, and they don’t want to have to pay someone to find out. Otherwise, why would they have photos of ex-students rather than current students? If so, an offer by you to cover the costs, might solve your problem. | From a German perspective, it would be absolutely normal and expected that you're providing identity & contact information publicly. Per §5 TMG (Impressumspflicht / Anbieterkennzeichnung) this is required for German tele-media offerings, such as websites or email providers, even if non-commercial. Whereas for you as an upstanding and diligent email provider an abuse@... address should be enough, the German context expects a street address where you could be served with a lawsuit… There absolutely are privacy and free speech issues with this compelled self-doxxing. But by running an email service, you're not just acting as a private person. Your privacy interests and the transparency and security interests of other people have to be balanced. Now since you are not in Germany, the TMG does not apply to you. You have no legal obligation to provide this information. However, the ISP also has no legal obligation to to deliver your email. The ISP does have an obligation to apply appropriate organizational and technical safety measures. It seems that one organizational measure they have found appropriate is that they will only deliver emails from providers that provide public contact information, as would be the norm in Germany. I am not entirely sure how the GDPR applies here. The GDPR doesn't really allow or prohibit disclosures of personal data, it just requires that every purpose of processing for personal data has a legal bases per GDPR Art 6. One such legal basis is a legitimate interest, which boils down to a balancing test between your rights and freedoms and other people's interests. I'm also not sure if the contact information should be classified as personal data in this context, because the contact info primarily relates to your role as an email provider. I'm also not sure if the ISP is processing your personal data in the sense of the GDPR when they merely require you to publish it on your own site. They would be processing it as soon as they scrape, store, or otherwise use this info. | The "Contribution activity" is extracted from repositories hosted on Github. Looking at the privacy statement, Github considers itself as a hosting service for those repositories. See EU Directive 2000/31/EC Article 14 for the exact definition and conditions: Article 14 Hosting Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information. Article 2(4) GDPR defines that the GDPR does not apply (to Github) in this case This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive. Extracting data from the repositories to create a nicely formatted contribution activity list, would still be considered hosting as defined at Directive 2000/31/EC, because Github does not (manually) redact or modify commits. So if you want to hide your contribution activity, you must delete the contributions. And you should not ask Github to do that, but ask the owners of the repositories. And they might have good reasons to deny your request. If an owner of a repository denies your request without a good reason, you can ask Github to do so. But Github would then probably deny that request, because they explain in their privacy statement that modifying the history is not possible: The email address you have supplied via your Git commit settings will always be associated with your commits in the Git system. If you chose to make your email address private, you should also update your Git commit settings. We are unable to change or delete data in the Git commit history — the Git software is designed to maintain a record — but we do enable you to control what information you put in that record. edit To further clarify why Article 14 of Directive 2000/31/EC applies, see case C-236/08 (Google v. Louis Vuitton) where the European Court of Justice clarifies the meaning of that article (ECLI:EU:C:2010:159): In that regard, it follows from recital 42 in the preamble to Directive 2000/31 that the exemptions from liability established in that directive cover only cases in which the activity of the information society service provider is ‘of a mere technical, automatic and passive nature’, which implies that that service provider ‘has neither knowledge of nor control over the information which is transmitted or stored’. Accordingly, in order to establish whether the liability of a referencing service provider may be limited under Article 14 of Directive 2000/31, it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores. The way Github creates/shows the contribution activity is in my opinion technical, automatic and passive. That means it is not liable, and that implies that the GDPR does not directly apply, unless data is unlawful, and someone notifies Github of that: The restriction on liability set out in Article 14(1) of Directive 2000/31 applies to cases ‘[w]here an information society service is provided that consists of the storage of information provided by a recipient of the service’ and means that the provider of such a service cannot be held liable for the data which it has stored at the request of a recipient of that service unless that service provider, after having become aware, because of information supplied by an injured party or otherwise, of the unlawful nature of those data or of activities of that recipient, fails to act expeditiously to remove or to disable access to those data. Surely the GDPR might be the reason data is unlawful. But you need a reason, in particular based on Article 17 ("right to be forgotten"). For example if personal data of a 12 year old child is processed without permission of it's parent. Without such a reason the legitimate interest of the repository owner will probably prevail (who wants to keep the git history complete). | The basic authority of university staff is summarized here. What seems to be at issue here is whether you have a property right to "access" to the university, as an alumnus. Legal protection of alumnus rights is pretty minimal, contrasted with student or employee rights. There could be a line in the sand pertaining to whether you've paid for something, or are the privileges that you've enjoyed simple part of a PR stunt? If you pay the university for access to university facilities (borrower privileges, for example) then it would be harder to revoke that privilege. Most universities grant a certain level of added privilege, such as an alumnus email account, without any requirement to pay. (They hope to create some good will which translates into donations). So it would really depend on what the basis is for claiming access to university resources, as an alumnus. There is no general obligation of a university to grant alumni various privileges, but they may have created a reasonable expectation and legal right to such privileges, as part of their advertising: that can only be judged by looking at all of the facts. There might be rules within the university which address alumni, so obviously reading the university rules is important. That is really how you would determine whether the coordinator is overstepping her authority. If the university admits that it no longer has jurisdiction over you, then that might be the end of the case, unless that was an error based on less than the totality of the facts. If an accused completely and irrevocably severs relations with a university, the university would have no power over the accused. If there is still a relationship, or if the severance is revocable (i.e. you can become a student again), the university retains some power over an accused. If a student violates the federal regulations pertaining to sex discrimination, the university could be in trouble if they do not address the situation. If the accused leaves the university for a quarter, that does not erase past acts, so the university could be in trouble if they don't address the situation in case of an intervening term off. Thus a legally-viable option would be for a university to permanently remove (unprotected) relations with an accused – not access to transcripts, because of FERPA, but certainly the right to re-enroll or the right to use the library as an alumnus. Again, though, it would depend on what the university rules say. It is highly unlikely that the coordinator has the authority to find facts and mete out punishment (determine that an accused did the act), and this is usually determined by a committee, subject to approval by higher administration. However, an administrator does have the right to limit an individual's relationship to the university in a manner that protects the university's interest. For example, in the event that a person is accused of sexual harassment, the university can temporarily relieve a person of teaching and advising duties, until the case is resolved and there has been a final finding of fact. In general, universities are very protective of their interests and will absolutely squash anything that they think will get them into legal trouble. All that is necessary is that there be a credible basis for the claim – often, that means simply "an accusation". If a complainant vigorously pursues a case, the university could be in trouble because the law allows punishment (loss of funds) in case of a single past violation of the regulations. Their interest therefore is being sure that they have remediated the situation (the stronger course of action), or the complainant has given up (risky since the complainant can change their mind). | IP addresses are personal data. That means you need a legal basis to process them, but not necessarily consent from the user. That IP addresses should be treated as personal data in most contexts is clear, regardless of whether you can associate the IP address with a user ID. That you make such an association affirms that both the IP address and user ID are personal data in your context though. As the answers in the questions you linked indicate, there are alternative legal bases to consent. The GDPR offers a choice of six legal bases (Art 6(1) lit a–f). In most cases, you would instead rely on a “legitimate interest” for logging. But it's not enough to claim that you have a legitimate interest. You must have a clear purpose for which such logs would be necessary, and you would then have to weigh this legitimate interest against the interests, rights, and freedoms of the affected data subjects. If such logs are necessary for security and anti-abuse purposes, your legitimate interest test is likely to prevail. However, you must limit retention of the logged data and the included information to what is actually necessary. For example, keeping user IDs in there might not be necessary. If the association of IP addresses and user IDs is not necessary for a legitimate interest, then you would indeed need consent. Discussion on why IP addresses are personal data. You see many answers and opinions that IP addresses might not be personal data. Some of these are technically correct, but most are misinformed or outdated. I know only a single well-informed person that still disagrees. For everyone else such as the EU Commission, IP addresses are clearly personal data. Under the GDPR, personal data is any information that relates to an (indirectly) identifiable natural person. In the context of log files we can assume that the entries usually “relate” to a person, namely the person making the request. The exception would be requests triggered by automated systems. The more interesting question is whether the person to which the log entry relates is identifiable. While the GDPR does provide further guidance on the concept of identification in Recital 26, it does not provide clear unambiguous criteria. Thus, there is lots of debate about what that precisely means. One approach is to sidestep that debate and and notice that the GDPR's definition of personal data explicitly notes that a person might be identified “in particular by reference to an identifier such as a name, an identification number, location data, an online identifier” (Art 4(1)). Another but otherwise unrelated part of the GDPR mentions “internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags” as examples of online identifiers (Recital 30). We can also look more deeply into Recital 26 and see that “singling out” already counts as identification. We can use the IP address to single out one person's log entries from the set of log entries, so this could be interpreted as meaning that any stable user ID renders the data personal data – and an IP address is sufficiently stable in this context. Another part of Recital 26 says that we must consider “all the means reasonably likely to be used” for identification, even if this involves additional information from third parties. This phrasing is virtually identical to the GDPR's predecessor, the EU Data Protection Directive. On the basis of that DPD, the EU's top court (ECJ/CJEU) was asked to rule on the question whether dynamic IP addresses are personal data (the Breyer case, C‑582/14, judgement from 2016-10-19). It said yes. “It did not say yes”, some people will object. And they are technically correct. When someone rents an internet connection from an ISP, the ISP will have logs that connect the user's real-world identity to the IP address they were assigned at a time. You don't have access to the ISP's logs. But, if that user violated your rights (e.g. a cyberattack or copyright infringement), then you could (depending on civil vs criminal matters) report this to the appropriate authorities or to petition the court and they would have the right to order the ISP to disclose this information. The CJEU said that if this chain (you → authorities → ISP → user identity) is grounded in law, then the IP address would be identifiable. But whether there are suitable laws to compel the ISP to disclose this data would be up to national laws, and the CJEU doesn't concern itself with that. Spoiler: such laws are pretty common. To summarize typical objections: The IP address doesn't relate to a person: Can be a valid objection, but is not typically the case for user-facing web services. The Recital 30 argument is not valid because it's about profiling, not identification, and it only says that IP addresses may be used for profiling, not that they are always identifying: Technically correct, but I think that Recital 30 merely expresses the implied understanding that of course an IP address is an online identifier and permits identification by itself. “Singling out” does not apply because SOME_REASON: Indeed, this is an ill-defined term with no case law to guide us. However, regulators such as the EDPB and their predecessor WP29 routinely use “singling out” to mean being able to distinguish one person's data from other people's data. An IP address lets us do that. The Breyer judgement is not applicable because the defendant in that case was the German state, and the state has other legal means than ordinary website operators: Nothing in that case was specific to the website operator being a state or other authority. If the website operator can contact the appropriate authority and if they have the right to order the ISP to disclose the relevant data, then the IP address is identifiable. The CJEU didn't say “yes” in Breyer, it said “if”. So I'll take that as a “no”: The CJEU concerns itself with the interpretation of EU law, not with national laws. Specifically in the Breyer case, lower courts confirmed that German law has the necessary means. In other EU member states, further checks would be necessary but it would surprise me if there wouldn't be equivalent subpoena powers. If the ISP doesn't have the data, then the IP addresses are anonymous: Indeed, the CJEU scenario collapses if there is no additional data to be linked with the IP address. However: The CJEU used this scenario as an example to show that IP addresses can be identifiable. If that particular scenario fails, there could be other scenarios that still allow identification. The question of whether IP addresses are identifiable had of course been the subject of wider debate at the time. That the GDPR explicitly mentions IP addresses can be seen as a reaction to this debate. Thus, in a sense, the Breyer case is moot. It is still useful as an explanation of how broad “reasonably likely means” must be interpreted. | They'd have a big hurdle to clear. According to 17 U.S. Code § 512(c): (d)Information Location Tools.—A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider— (1) (A) does not have actual knowledge that the material or activity is infringing; (B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link. So long as these conditions are met, Google is immune. So, what is ESPN going to argue? Are they going to argue that Google had actual knowledge of infringement? Are they going to argue that Google received a financial benefit directly attributable to the streaming? Are they going to argue that they sent a DMCA notice to Google and the links were not then expeditiously removed? Or are they going to argue something else entirely? | The issue is not exactly with minors, it is with FERPA and COPPA. This assumes that you have some indication of what students are connected to the web page. If you have students under 13 (surely you do), you need verifiable parental consent. The FTC approves or disapproves particular methods of verification, here is their page on that. One approved and patented method is ChildGuardOnline Technology (it;s a business, not a free service). The other concern is that you have to scrupulously protect "student records". You already know that you can't disseminate "student records" without parental consent, what this adds is possibly new concerns with online security. However, many schools are exempt from the COPPA requirements. Here are some "exceptions" to the rule, and nonprofit organizations are not subject to Section 5 of the FTC Act. |
US tax law for working remotely abroad I'm working in an American tech company in Illinois. Recently I traveled abroad and am working remotely for 3 months (I'm a green card holder). Are there any tax laws in this case? Shall I report it? | The main tax law is that you have to pay income taxes on your income even when you're in a foreign country. You may also be subject to income tax requirements in the foreign country, so that depends on local law and the existence of tax treaties between the US and that country (which will also involve details of the employer, employment and why you are in that country). For example, if you're working for a solely-US company (not e.g. Amazon) and go to Norway for 3 months "working holiday", just doing your job online in a different country while skiing, you almost certainly would not have any Norwegian tax liability. It just depends on the specifics. | Under German law, yes sure. As long as you keep to all regulations. You have to declare your taxes. This is income, whether it comes from inside Germany or not and whether it is paid into a German bank account or foreign. You have to have a health insurance and likely need to pay into the social security and pension funds. As your employer most likely does not do this for you as a German employer would be required to, you will need to pay both the employee and the employer's part yourself. So yes, if you pay your taxes on it and have health and social security insurance, Germany does not care where the money comes from. Now whether the company in Mauritius is legally allowed to hire and pay you under their law? I have no idea. Please note that filling out all the right forms correctly is not for the faint of heart. And finding out that you did it wrong only years later is painful and costly. Also calculate your costs before you do anything. Paying both parts for your health insurance for example can easily be up to 400€ a month more then a German employee at a German company, so run your numbers. You may be better off being officially self-employed or even incorporated. Just because it's legal, does not mean it's a good idea. Hire a professional to advise you on the economic and bureaucratic side of this. | The Cayman Islands are well known as a tax haven. They have a corporate tax of 0%, and that includes income from abroad. So by moving your company officially to the Cayman Islands, you can avoid to pay a lot of taxes. Now of course most other countries will still send you a tax bill for any income you make with business activities within their borders. But there are accounting tricks to get around that. For example, many countries only tax profits, not revenue. So you can reduce your annual profits of your national subsidiaries to zero by having them pay money to your company on the caymans. For example, you can transfer your trademark to your subsidiary on the Cayman Islands and then have your subisdiaries in all other countries pay the Cayman company an annual license fee for using that brand name. And the license fee happens to be just so expensive that your national taxable profits become zero. And no, that's not just a Chinese thing. Corporations all around the world use that method to avoid taxes. | My understanding is that the "flow-through" treatment is specifically a tax law concept. The LLC has its own income, which it can use to pay expenses or acquire assets or for whatever other purpose, and such assets become the property of the LLC. It's just that when it comes time to pay taxes, the LLC's net income is taxed as income to the owner. But that does not mean that the LLC's income is treated the same as the owner's income in all other legal contexts. | 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. | I think you vastly exaggerate the difficulty. Basically: when a user registers, ask for their address, including country, as well as a phone number (including country code, which you may validate via SMS for instance). This should give you the 2 pieces of information that help you determine the country In the case of the UK, HMRC says: Support for MOSS registered micro-businesses UK micro-businesses, that are below the current UK VAT registration threshold and are registered for the VAT Mini One Stop Shop (VAT MOSS), may use best judgment and base their ‘customer location’ VAT taxation and accounting decisions on a single piece of information, such as the billing address provided by the customer or information provided to them by their payment service provider. based on the country, use the standard VAT rate for that country. The difficulty here is to track when those rates change, but your accountant should be able to keep up with that. There is very little chance any special reduced rate would apply to such services, and in any case, no tax authority will complain if you apply the standard rate instead of the reduced one! then declare everything online to your local MOSS (you don't need to register with each tax authority! You can, but you don't need to). In the case of a micro-business, this should be more than enough to comply with the rules. | Yes, it also applies. However, an employment implies they agree to having employment related data stored and processed (e.g., to be paid). When there are performance related bonuses in the contract, this will likely (but IANAL) imply they agree to performance data being collected and stored appropriately. Furthermore I would assume most of such data processing (such as knowing who is responsible for a certain change, who created a file, modified it etc.) falls into "legitimate interests" of the employer, as this information may be necessary for operations. I'd assume (still IANAL) that much of the consequence wrt. GDPR is the right to have your data erased. So a company should be prepared to remove such data when an employee leaves the company, e.g., by clearing the responsible person fields upon request. At least for data where there is no legal requirement to have such data provenance. But: consult your lawyer for a proper legal opinion! | What is one supposed to do if they want to take an extended trip somewhere? Or is one basically not allowed to take such trips if they are a US citizen eligible for Jury Duty? In the US you are not required to seek permission to travel, or prove your past whereabouts to the government if you happen to miss some civic duty. They generally call up way more people than they need for this sort of reason. The length of time you are gone or where you choose to travel is irrelevant. In my experience you are given about a month heads up. If you didn't receive the notice until you returned from out of town, and they send a follow up, simply inform them of the fact that you were gone and didn't receive the notice until you returned. Jury duty is an obligation to some extent, but it is also a right and a privilege. It isn't a criminal offence you are liable for if you didn't get the notice. If it were that important to verify your availability ahead of time the notification would be sent registered mail with a signature required. |
How an estate Trust works I recently found out that my parents are broke. They have nothing saved, no stock, bonds, etc, and the house they have lived in for 30 years still has a heavy mortgage. My father does have a 10k life insurance policy. My father has put the house in a trust to my brother. His logic is that if my mother has to go into a nursing home after his death then the state (New York) cannot take the house. Both my mother (68) and father (72) have lived there for 30 years, and the house is worth no more than 400k Question 1. In the trust that goes solely to my brother, in the event either my mother or father are dead, how is that asset split up? Can a trust dictate how an asset if split up if I am not on the trust. Question 2. How is the debt handled? The asset still has debt on it, who is responsible for the debt? I am thinking the answer to this question depends on the answer the Question 1. Question 3. They currently live in New York state, I found an article that New York state for nursing home care at more that 12k per year. If they were to move to a cheaper state like Alabama what are the laws or rules, ie. how long they have lived there, assets. https://www.seniorliving.org/nursing-homes/costs/ | Question 1. In the trust that goes solely to my brother, in the event either my mother or father are dead, how is that asset split up? Can a trust dictate how an asset if split up if I am not on the trust. This is governed by the terms of the trust. The trust can say whatever the people who wrote it wanted. Question 2. How is the debt handled? The asset still has debt on it, who is responsible for the debt? I am thinking the answer to this question depends on the answer the Question 1. The trust owns the property subject to the mortgage. The people who originally signed the mortgage (presumably both of your parents) are also personally liable to pay the mortgage in the event that the debt is not fully satisfied in a foreclosure sale, or in the event that the mortgage creditor prefers to sue the mortgage debtors individually in the event of a default. After the death of the mortgage debtors, the mortgage company can file claims in their probate estates for repayment of the mortgage related debt if it does so in a timely fashion, although it would be more common to simply foreclose on the real property and obtain repayment of the debt that way. The death of the mortgage debtors is almost always an event of default under a mortgage, so if both mortgage debtors die, the mortgage creditor can usually force the trust to repay the debt, either by selling the house or by refinancing it. Question 3. They currently live in New York state, I found an article that New York state for nursing home care at more that 12k per year. If they were to move to a cheaper state like Alabama what are the laws or rules, ie. how long they have lived there, assets. This question verges on incoherent. But I think I understand what you are trying to ask. In every U.S. state, the joint federal-state program known at the federal level as Medicaid, although it has different names at the state level (California, for example, calls it "Medi-Cal"), will pay for nursing home care at approved nursing home facilities if the applicants meet state eligibility requirements. This generally involves an income test, an asset test, and a determination that the applicants have not made disqualifying gifts to trusts or to third-parties within the past five years. The income test is based upon state median or average income and is usually lower in a state like Alabama that has a lower median state income, than it is in New York, that has a higher median state income. For retirees, the main kinds of income considered are defined benefit pension plans payments, annuity payments, and investment income. The exact details of the asset test vary somewhat from state to state. Generally speaking, New York State is among the most strict in this regard. The basic outlines of the disqualification for gifts made within five years to others including trusts before applying for nursing home care are similar in broad outline, but the consequences for violating the rules are a function of the average cost of nursing home care in a state, which varies considerably. Generally, a gift of a fixed dollar amount gives rise to more months of disqualification of Medicaid in a state where the costs of nursing home care is low than it does where the costs of nursing home care are high, because the amount of the gift made in the past five years is divided by the average cost of nursing home care at the time the application is made, to determine the number of months that the applicants are disqualified from Medicaid. More generally, setting up trusts intended to qualify you for Medicaid is a highly technical matter with severe consequences if it is done incorrectly, and I would hope that your parents did so while conferring with a competent elder law lawyer. If they did it themselves, there is a high chance that this will have very severe negative consequences. | It doesn't matter if a debt arises as a result of normal commercial transactions or because of liability for a legal wrong - if you owe money you owe money. While you are alive you are responsible for settling your debts out of your assets as and when they fall due. When you die, your executor has the same responsibility. The executor's first responsibility is to settle the debts of the deceased - only after they have done this can they make distributions to the beneficiaries. One of their duties is to advertise the death of the person and invite anyone who has a claim against the estate (as a creditor or beneficiary) to come forward - the law puts time limits on how long they have to do so. If some of these liabilities are disputed then the executor must hold back enough funds to cover the disputed amount (and the costs of defending against it). Intangible assets (copyright, patents etc.) are no different from tangible assets - they can be offered to the creditor to (part) settle the debt or the can be liquidated (sold) to get cash to settle the debt if there is insufficient cash in the estate. Once all known debts have been settled or successfully denied the executor can distribute whatever assets are left in accordance with the will (or the law if there is no will). If they do all this in accordance with the law then they have no liability. The beneficiaries never have any liability. Sometimes the estate will be insolvent - its liabilities are greater than its assets. The executor's duty in that case is to follow the applicable bankruptcy law. | I am unfamiliar with a "perpetual contract" and that phase does not appear in any reported appellate court decision of the State of Oklahoma. However, usually unpaid utility bills do constitute a lien against the property that is enforceable against a subsequent purchaser, which has the same practical effect. This kind of obligation is also sometimes described as an "encumbrance". Usually, in an arms length sale of real estate through real estate agents, a title insurance company is hired and is responsible for determining if there are any outstanding liens, pro-rating utility bills, pro-rating property taxes, etc. at closing. If the title company fails to find a lien and there is one, the title company is responsible for paying off the lien that it failed to find (although it can often force the previous owner to indemnify it for the payment it has to make). It could be that since water service was not currently being delivered, that the title company did not search in the manner that it should have to find this lien, or it could be that there was no title company used and so no one ever checked. Also, if the property was conveyed with a "warranty deed" such a deed contains a promise from the seller that there are no liens or encumbrances not listed on the face of the deed that have to be paid, and the seller has liability for breach of the warranty of title. But, if the property was conveyed with a "quitclaim deed" there is no such warranty. | Any debts that a person has are to be paid by their estate. Whoever administers the estate must, in all states, publish an announcement to the effect that Smith is deceased and all claims must be made by such and such date, probably within 90 days. If (this is a small if) the hospital takes 6 months to make their claim, it is too late for them (provided that notice was properly given). There are also limits on how much can be collected, the simplest case being that you can't collect more than what is in the estate. There can also be complexities regarding order of priority – as you would expect, you must pay debts to the government first. That could include the Medicaid clawback (officially "estate recovery"), however, in the circumstance that you describe it doesn't sound like that would be applicable. There may also be exemptions in a state, for example in Florida, your registered homestead (property of a certain size that you have been living in and have filed the paperwork for) cannot be seized to pay debts, even after death. | Dead people have to pay their debts just like everybody else It is one of the primary roles of the executor to make sure this happens. Dead people can dispute a debt just like everybody else Just because someone says you owe them money, that doesn't mean you owe them money. In fact, the onus of proving the debt lies with the person claiming the money. It is perfectly reasonable for an executor to ask the creditor to do so. Some questions that are appropriate to ask: Presumably, the entitlement arises under a contract; when was the contract entered into? What were its terms? Where is the evidence the deceased agreed to these terms? Do the terms comply with (consumer) law? Have the prices been calculated in accordance with the terms? Have previous invoices been submitted and paid on the same basis? All the issues you mentioned. These are all things the creditor would need to prove if they went to court. If they can provide satisfactory answers to these then pay the bill. If they can't then try to agree to a settlement amount acceptable to both parties. If you can't do that, let them sue the estate and let a judge decide. The debts of the deceased person are payable by the estate of the deceased person for which the executor is the trustee. The executor has a duty to the beneficiaries of the estate to act in their best interest. This means paying bills that they are satisfied are justified, contesting those that aren't but ultimately, making commercial decisions that benefit the beneficiaries. Getting bogged down in a court case may not be in their best interest especially if it delays finalisation of the estate. In any event, the executor is not liable personally for the debt, or for anything they do or fail to do if done or not done in good faith. | In business dealings, you would have a contract with a company, not with its owner. The new owner inherits both the assets and liabilities of the company. It's up to the buyer of the business to do due diligence before buying the company. The old owner may escape obligations to clients and suppliers once the sale of the business is complete, but the new owner could sue the old owner for fraud. (It may be possible to escape some liabilities by declaring bankruptcy, but that's not the situation you described. One unethical accounting trick that a company can use is to split the company into two corporations such that one branch inherits the liabilities, and it go defunct.) | There are multiple kinds of joint ownership, centered around the question of survivorship. One possible outcome is that the deceased willed their property to some other person Smith, therefore Smith will not have A's interest in the account. Let's assume that the accounts and house are both joint tenants with right of survivorship. Then the survivor simply is the only person who has the right to access the account. However, the account probably cannot be closed, because as far as the bank knows, the deceased spouse still has an interest in the account, and will require the spouse to sign the paperwork. Therefore the surviving spouse will have to bring in paperwork to establish that the deceased spouse is deceased. Similarly, a deceased spouse can remain on the deed, but when it comes time to sell the house, it will be necessary to legally "extinguish" the deceased spouse's interest in the house. It can also complicate mortgage-refinancing or using the house as security for a loan to leave the paperwork unresolved. | In Civil law jurisdictions, the heir of a deceased person will generally inherit all the possessions, rights and obligations - this may include debts. So if a borrower passes away, the lender will typicall find out who is the heir, and ask them to pay. The heir will be required to pay, and the creditor can use the usual channels (reminders, collection agencies, court judgements) to make them pay. However, if the inheritance is "under water" (has more debts than assets), there are ways to avoid having to pay the debts: In Civil law jurisdictions, acceptance of an inheritance usually means being liable for all the debts, too. Details vary between jurisdictions - in Germany, for example, acceptance of an inheritance is automatic, and a heir must file a document to refuse it (this is called disclaiming the inheritance). In France, in contrast, the default is to disclaim the heritage, but certain interested parties (such as creditors) can require a heir to formally make a choice, then the default is acceptance (https://www.service-public.fr/particuliers/vosdroits/F1199). In contrast, in the United States (which generally uses Common law), creditors are paid first, and the heirs only inherit what is left, in a process called probate. In that case, a heir need not explicitly disclaim an inheritance that is "under water" - they will simply not inherit anything. Note that the heir may choose to inherit certain debts in exchange for keeping certain assets - for example, if a home with a mortage is part of the inheritance, the heir may either choose to sell the home and pay the mortage, or keep the home and accept the mortage as debt. Notes: Even if inheritance is not automatic, the system usually allows a heir to disclaim it. There are other reasons for disclaiming an inheritance apart from debts, for example tax advantages, or the desire to grant the inheritance to a different relative. If a heir disclaims the inheritance, no matter the reason, the inheritance automatically passes to the next heir in line. If all potential heirs disclaim in turn (as would typically happen if the inheritance has more debt than assets), the inheritance will usually fall to the state. Then, the assets will be divided up among the creditors (similar to insolvency proceedings). As an exception to the rule above, the state does not have to pay outstanding debts - so that money would be lost for the creditors. |
Energy provider retrospectively canceld contract, switching consumer to default provider. Who has to pay difference of energy prices? The German energy provider Stromio went out of business and canceled all end consumer contracts on the 21st of December. However, due to 'technical reasons' the email notifying customers of this arrived at a later date on the 28th. Stromio had contractually guaranteed a fixed price (unless otherwise notified with proper lead time) for the current year of the contract. However, due to the cancellation customer are switched to the regional default provider with different prices (most likely higher). Given that the notification arrived after the fact with literally negative time to react, customer might now face an unexpected increased energy bill until a new contract has been signed with a different provider. Acquiring a new contract is fairly easy yet not instantaneous. Do customer have to pay the difference of energy prices and if not does the default provider have to legally fight Stromio for the difference or the consumer? | The primary source to answer your question is the Stromio contract itself. If it does not contain any provisions pertinent to such a situation: It is correct that you are automatically switched to the local Essential Service Provider (Grundversorger, § 36 Ⅱ 1 EnWG). In default of delivery by Stromio, the ESP is in charge of supplying electricity in lieu of Stromio, § 38 Ⅰ 1 EnWG. This is an example of a contract by law. Because the laws govern so, there is now a contract between you and the ESP. You can terminate this contract within two weeks notice, § 20 Ⅰ 1 StromGVV, but you (and only you) still have to meet all your obligations. Recovery against Stromio? §§ 280 Ⅰ, Ⅲ, 283 BGB Obligation, § 280 Ⅰ 1 BGB? → Effective cancellation of contract by Stromio? Provisions in contract granting the right to terminate contract without notice due to economic hardship? ✘ Force majeure, § 314 Ⅰ BGB, ✘ b/c commercial risk burden of any entrepreneur ⇒ Contract between you and Stromio continues to exist, even though Stromio will never again meet its obligations. Breach of duty? § 283 BGB → § 275 Ⅰ BGB: it is impossible to deliver electricity in the past and it does not make sense to deliver electricity today when it was actually needed on December 22, 2021. ✔ No defense? ✔ § 275 Ⅱ BGB ✘ cf. above, § 320 BGB ✘ ⇒ Breach of duty ✔ Responsibility, § 276 Ⅰ 1 BGB? ✔ According to the email, Stromio deliberately stopped delivery. Causal damage? ✔ You would’ve (presumably) paid less if Stromio continued delivery. ⇒ You can charge Stromio the difference you had to pay more. Write them a (registered) letter, enclose the ESP’s bill, refer to your quote you had with Stromio, highlight the difference (“€12.34 due”), indicate your banking account, and set a reasonable deadline. It is unlikely they will fulfill your demands, but still. The ESP is unaware of all of these troubles. They do not have a contract with Stromio. They will not sue them. | Why is a business allowed to refuse a customer? Because also freedom of contract is a right. Except for discrimination on the basis of protected categories, a person or entity is entitled to discretion on whether or with whom to do business and enter contracts. The last sentence in your post reflects a misconception of "completely different set of values and laws" between the USA and members of the EU. Clearly there are many differences, but a comparison of the Wikipedia link you posted and, for instance, 42 U.S.C. § 2000e-2 reflects an overlap of protected categories in the laws of the Netherlands and of the US, such as religion, sex, race, or national origin/nationality. One would need persuasive evidence to support a finding of unlawful discrimination in the two examples you have experienced. Assuming the bank responded to your GDPR inquiry truthfully, the bank's refusal to open an account might have stemmed from profiling or decision-making that (1) does not precisely require specific data about you, and/or (2) uses information the bank does not need to log for purposes of compliance with the GDPR. Note that the GDPR does not outlaw algorithmic decision-making. Since legislation in the EU (as in the US) portrays an approach of market economy, both bank and landlord are entitled to made decisions on the basis of their inner policies for risk management. The policies might be unclear to you, but that does not necessarily mean they contravene principles of equal opportunity. | A piece of paper with writing on it is NOT a contract! A contract is the terms and conditions that the parties agree that they will be bound to. A written contract merely serves as evidence (really good evidence) of what those terms and conditions were. For this to matter, it would have to be part of a dispute about the contract. If the parties looking at the term know and agree on what it means then that is what it means. If there is a dispute about this term then a 3rd party (e.g. judge, arbitrator) will look at the term and the context of the contract (both the written contract and the actions of the parties in giving effect to the contract) and decide what they think the parties meant. For the example given, I don't think there is any room for dispute about what is meant and it would be disingenuous of either party to claim that there could be. "Time is of the essence" is a commonly used legal phrase with a well understood meaning - it explicitly makes time a condition of the contract; generally, time is a warranty. A condition is a term for which termination of the contract is a possible remedy; you cannot terminate for breach of a warranty. "Time of the essence" is either a typo or, if deliberate, is clearly trying to get across the same concept. TL;DR 100% enforceable. | Can a business put whatever they want into a contract? No. There are some things a business cannot put into a contract. But I don't see anything stopping them from putting this into a contract. It's not reasonable to assume that you have to cancel before the 20th every month. It's not reasonable to assume that - except there's no assumption needed. The contract states it flat out. You are most likely stuck paying. Requiring cancellation about 10 days in advance of the month doesn't seem like it would be an unconscionable clause. (Requiring cancellation 10 months in advance would be a different story.) Michigan law does say the following is prohibited: Taking advantage of the consumer's inability reasonably to protect his or her interests by reason of disability, illiteracy, or inability to understand the language of an agreement presented by the other party to the transaction who knows or reasonably should know of the consumer's inability. But I doubt that applies in your case. It also prohibits: Gross discrepancies between the oral representations of the seller and the written agreement covering the same transaction or failure of the other party to the transaction to provide the promised benefits. So if you were promised you could cancel at any time without notice or penalty, but you later found out the contract said differently, this law may apply. | Is there a legal reason why many advertisements say “Limited Time Offer”? Sometimes, especially where the advertisement specifies the deadline. This would help defeating a claim of unfair and misleading practices that customers might pursue apropos of an open-ended offer. An offer triggers the offeree's power of acceptance. Lapse of time --whether reasonable or specified by the offeror-- and revocation by the offeror are two permissible methods for termination of that power. See Restatement (Second) of Contracts at §§ 36, 41. By specifying a deadline, the offeror preempts both the question of fact as to what constitutes reasonable time under the circumstances, Id. at 41(2), and an argument that revocation of the offer was so arbitrary that it took customers by surprise. Is there a law that says they have to include that? No. The decision mostly depends on the offeror's marketing preferences and the litigation risks associated to making an open-ended offer. | In all such offers that I have seen, there is an agreement explicitly saying that if the service is not cancelled by the end date of the trial, a recurring charge for the price of the service will be made, and the customer authorizes this. If there was such an agreement, the charges would be authorized, not fraudulent. The question does not say what agreement accompanied the free trial. But any reasonable person would know that credit card info is only provided when a charge is at least possible. Addition: The question now says: Reviewing an example of the vendor's website, it says in big print "Monthly Plan $0.00/mo" and in fine gray print it says "Renews at $5.88/month." In that case it seems to me that the customer agreed to the recurring charge. What was purchased was access to the service, and whether the service was in fact used is not relevant. Unless there is a consumer protection law specifically requiring such terms to be "prominent" or otherwise making this deal unlawful, it seem to me that the customer has agreed, and the charge nis in no way a false claim. But it is possible that a court would rule otherwise. It is my experiences that in such cases the credit card company can and sometimes will act as an agent for the customer, and can often obtain refunds for multiple past charges. No doubt they have mush stronger negotiating power. But such refunds are not a matter of law, I think, rather of business practice and good will. | We can assume there was a meeting of the minds when the contract was drafted, and both parties expected payments to me made based on product usage. Plaintiff alleges that this did not happen. Thus plaintiff is indeed alleging that the contract was breached. Now plaintiff alleges that defendant broke the contract, while defendant counters that plaintiff broke the contract. "[T]o be determined by tracking software" is woefully ambiguous. The court will want to know which party drafted the contract, as disputes arising from ambiguity are often resolved in favor of the non-drafting party. | Not going to hold up. Dutch Supreme Court confirmed 2012-09-21 in LJN BW6135 that arbitration is still covered by the the right to an independent judge, as established in Golder v UK, ECHR 1975-02-21, nr. 4451/70. Stack Exchange can't decide the rules themselves. (The Dutch case confirms that sector-wide arbitration is in fact legal, with regard to a standard arbitration clause commonly used in the Dutch building sector. The arbiter was found to be independent in that case precisely because they weren't picked by the builder involved.) The GDPR is only indirectly relevant, but the fact that it's mentioned does mean that there is an indisputable intent to provide services to EU consumers. (See section 23 of the GDPR, or its national equivalents). As such, you can't hide behind a US business address. If you intend to do business in the EU, it's under EU laws - all of them. You can't say that only the GDPR applies, and not other rules. I'm having a bit of a problem finding a source, but I'm fairly confident that consumers have the right to sue at their own, local court, overruling the default of suing in the court where the counterparty is located. Finally, I have the right under national law (Dutch: BW 6:236 start and sub-n) to strike the arbitration clause up to 30 days after the conflict arises, and demand a court decision. That's not 30 days after I accept the "Public Network Terms", that's 30 days after the arbitration is invoked. Dutch law explicitly allows arbitration abroad, and arbiters may apply foreign law, but as written the arbitration clause has no legal basis in the Netherlands, and any arbitration resolution would therefore not be considered valid. You may wonder if it matters to Stack Exchange that the arbitration decision would not hold in the EU. Well, consider a clause like Indemnification, which demands the user indemnifies Stack Exchange. That's a pretty empty demand if it's not enforceable. |
Why WIRE fraud? On January 4th, 2022, Elizabeth Holmes was found guilty on three accounts of wire fraud (plus a conspiracy). The concept strikes me as odd: Why would the communication medium make a difference in the case of fraud? Whether I mail a letter (mail fraud per 18 U.S.C. § 1341), send an email (wire fraud per 18 U.S.C. § 1343, even if no wire whatsoever may be involved) or use a bush drum (none of the above): The fraudulent intent, act and damage is the same, hence the punishment should be the same. Why this oddity of paying attention to the medium? | The law as you see it today is the product of its history. 18 USC 1343 descends from the Communications Act of 1934 which created the FCC, as an amendment to an existing law that regulated wire and broadcast communications is criminalizing acts which take place in this newly carved-out chunk of federal authority, "by means of wire, radio, or television communication in interstate or foreign commerce". Previously, the federal government had carved out authority to criminalize mail fraud. The original purpose of the act that led to 18 USC 1343 is precisely "the medium", and as an amendment to that law, the medium is essential. Of course Congress could have thought "maybe we should gather together all of the federal laws pertaining to fraud and and have just a single law", but that is a burdensome political process. Instead, what typically happens is that the original substance of laws remains in place, until a compelling reason emerges to substantially revise the law. | These are some thoughts about the state of affairs in the US, I do not know how it works in the UK. In the US it seems to be a legal gray area. Gray enough that I do not think any lawyer could say for certain that the use of the data is legal. The data is stolen. If possessing stolen property is illegal then possessing this data is also likely illegal. Of course experts disagree, Stuart Karle, an adjunct media professor at Columbia University and former general counsel for the Wall Street Journal says: ...the documents have been published by the hackers, they are now public by virtue of being put on the Internet. But Barrett Brown was charged with trafficking in stolen authentication when he forwarded a link to some stolen emails. He signed a plea for acting as an accessory after the fact. He spent more than a year in jail while they sorted it out. In the US there is no law banning the download of hacked documents. In fact Bartnicki v. Vopper 532 US 514 (2001) stands for the rule that journalists can report on illegally obtained information. But contrast that with the Barret Brown prosecution! And decide where a data scientist fits. Also there is the question of whether an illegally recorded conversation is of the same "illegal" nature as hacked personal information. | No, it is not illegal. The company has no standing to punish you for that. Companies can't sue random people for sending random email... that was largely settled under the (YOU)-CAN-SPAM Act, when in the guise of standardizing US anti-spam laws, spam was largely legalized and state laws were pre-empted and barred from existing. However, all the other laws still apply Laws on harassment, for instance. Sometimes people with mental illness think another human "owes them" a relationship (which kind of misses the point of what a relationship is, but never mind that). And those people, who sadly are an all-too-common cliché, tend to act badly in very predictable ways. As such, we have plenty of laws on the books (and plenty of family court judges who have seen it all) to dispense consequences to the misbehavior and protection to the victim. All those laws really don't care in which medium one might violate them: sky-writing, naval light signal, email, whatever. | Is there any way I can defend myself against penalties when mistakes are made in my favor? Another option, in a similar vein to your suggestions, is to make a contemporaneous record of the conversations. Then send an email* to the public official detailing what was said and agreed, along with a request that they reply with any observations or amendments within a certain time frame. That way you have a date-stamped document properly addressed to the other party to use as evidence or leverage. *or a recorded delivery letter etc | It doesn't really require anything beyond your say-so that it is what you say it is; that would be enough to satisfy the requirement for authentication. From there though, as with any evidence, it's going to be up to a jury to decide how much weight to give the evidence. So the more you can show them to prove that the record is real -- and to knock down any questions the opposing party will raise -- the more likely they are to believe it. So if you just bring a printout that looks like it could easily have been forged, the jury may be thinking about that. If you can bring in a data forensics expert to say the document couldn't have been faked, that's probably going to help. Addendum: As a practical matter, I wouldn't expect this to be much of an issue. Unless you're dealing with a savvy opposing party, the authenticity of e-mails seems to be generally assumed. Courts (1) generally assume that parties aren't perpetrating frauds; and (2) are generally run by judges with little to no technical savvy, who don't realize that one could forge an e-mail, let alone all the different ways it could be done. I've personally entered countless e-mail printouts without them being questioned, even though either party could have just gone down into the e-mail thread and changed what the other side had said earlier in the conversation. To avoid the issue, though, it might be that sending the e-mail to a Gmail account would elimimate the question. | I'm not a lawyer, but I am an NHS employee, and can more concretely answer your questions. Has any crime been committed, and if so, is there any point in pursuing this with the police? If so, how do I go about it? Yes, in-fact, several crimes have been committed. Firstly, NHS employees are prohibited from viewing patient's personal information that they are not specifically treating. In opening your letter from the NHS, the nurse in question violated this practice. It's a breach of both privacy and trust. This is taught at the NHS and the nurse would be aware of this. Secondly, by cancelling your appointment, the nurse has committed workplace fraud. They have impersonated a patient, and in doing so, cost the NHS money and time it won't get back by cancelling your appointment. Again, this is also taught within the NHS, and the nurse would be aware of this too. Thirdly, by cancelling your appointment, the nurse may have put a life in danger in doing so, which is effectively gross negligence at a minimum. Although this can be reported to the police, it'll be more effective to report it to the appropriate NHS bodies. Even if a crime has not been committed, I would think that at the very least, opening someone's mail and then impersonating them and cancelling the surgery would at least be viewed as unprofessional, especially for someone employed in the NHS. Is there a procedure for making a complaint against an NHS worker? There are several different approaches, given the various breaches of trust. As BlueDogRanch mentioned, you can file a compliant to NHS England, which includes via email. Be sure to get appropriate information like the nurse's name, address, and if possible any details (like appointment reference numbers) to aid the investigation. Secondly, because of the cost incurred via the malicious cancellation of an appointment, costing time and money (and running the risk of opening the NHS to litigation), you can also report the fraudulent aspects to the NHS Counter Fraud Authority. | "Fraud" requires an intent to deceive. In cases like this I would fall back on the saying, "Never attribute to malice what can be explained by incompetence." Practically speaking: the email you received from them is an amendment to their Terms of Service. I.e., your contract with the company starts with their standard Terms of Service, and is modified by any agreement you reach that explicitly supersedes the ToS. Based on your description it is your credit card company that is in violation of its duty to adjudicate chargebacks. If you refuse the charge, and present the email agreement and evidence of A's "failure," then the card company has no grounds to impose the charge on you (unless the merchant in its response to the chargeback can convincingly argue that the email agreement is invalid). | I spent 26 years in Law Enforcement (two years in Fraud, Identity Theft, and Embezzlement) and here is the answer I would often give other people in this situation: By law, recipients are not required to do anything. It can be deleted without a second thought. There is no specific law requiring someone to report this as it doesn't rise to the level of a crime. Contacting the sender or intended recipient can be risky because the other person is unknown. Return addresses online may be masked by redirects or other traps. What is displayed may not be the full picture of the site where they want someone to go. Having information about someone, although private, is not a crime unless there is a specific intent to use that information for a crime: fraud, identity theft, theft, etc. Doctors, banks, and numerous other businesses have access to personal identifying information about people. Unless they were to use it illegally, just having the information is not a crime. Phishing attempts: As far as sending the information on to the intended recipient, that would be very noble; but there is no requirement to do so. This type of transaction is likened to having a stranger call looking for someone else. There are people around the world just hoping to get people to click on their site so they can download everything on the victim's computer. I once taught a class in Internet Safety to senior citizens. The message was simple: Don't put any information on-line that you wouldn't post on your front door. Advances on computer security have made it possible to securely handle more information but still be on-guard; Phishing still happens. Most reputable companies won't send you e-mails asking for personal information, passwords, or account numbers. Hackers, thieves, and criminals have access to personal information regularly. In today's society, it's just a part of life in a digital world. How does one protect themselves? Be diligent about all transactions. For instance: Check bank accounts, credit card purchases, and credit reports regularly. A TV show, Adam Ruins Everything - Adam Ruins Security, clearly outlines a lot of these facts. (Season 1, Episode 2 - First aired October 6, 2015) To recap: 1) Do nothing. 2) Stay vigilant. 3) Be wary. Common idiom - If it looks too good to be true, it probably is. |
Can I get evicted from my apartment for a late payment in Canada? Can I get evicted from my apartment for a late payment in Canada? I think I made a late payment and I received a letter from the Tribunal, because the landlord sent a tribunal request to have my lease cancelled. Do I have to attend the hearing? I think I paid for both months on the third week of the second month. I usually did it on the first of every two months, but I thought it was ok to pay it a little bit late. If I don't attend the hearing, can I get evicted? Because I can't defend myself other than admit that I paid late and I don't see the point of doing that. I just paid the rent for January and February just now, but yeah I am not sure what's the point of this. Although I don't mind paying in advance, I just didn't feel like it. | If I don't attend the hearing, can I get evicted? Yes. Never ignore a court hearing date. The Tribunal could otherwise impose an outcome without hearing your side of the story. If you ultimately paid the rent and the late fees, and the Tribunal didn't know that, you could be unjustly evicted if you don't present your side of the story. It could simply be a case, for example, where the landlord confused your non-payment with someone else's. But after the Tribunal rules, fixing that mistake is much more difficult than fixing it at a hearing. It could be that making two late payments that are cured later is still grounds for eviction under the lease, although I very much doubt it. In that case, it still pays to show up to make sure that the Tribunal has all of the facts favorable to you before it makes its decision. | The law regarding landlords and tenants is Iowa Code Ch. 562A. Part 2 (§562A.27 et seq.) states the legal remedies available to a landlord. §562A.27 specifically spells out the remedies for material non-compliance with lease terms. The gist of that and related sections is that if a person is in violation of a lease, there is a legal process that has to be followed, and if successful, the sheriff will forcibly evict the tenant (though §562A.27A, the clear and present danger section, shortens the process – still, it's not immediate and it does require legal notice etc.). Under the law, you (apparently) have become a landlord and have an unwritten tenancy agreement with the tenant. I assume based on your description of the facts you have a long-term written agreement with the property owner. By allowing this person to live with you, you have entered into a landlord-tenant relationship, which limits your rights. The police will not respond to this situation – a legal squabble – whereas if someone broke into your residence and was trespassing (and you complain in a timely manner, not allowing the person to trespass), the police would respond and not require a court order. §562A.9(5) states that in lieu of a specific term of tenancy, in the case of a roomer paying weekly rent the tenanct period is a week, otherwise it is a month. §562A.6 defines "roomer": basically, if you are a "roomer", so is your sub-lessor. By agreeing to let the person stay with you, you have become a landlord and sub-lessor, thereby subject to the restrictions on landlord actions. That means you have to take the person to court to get rid of them. Failure to pay agreed-on rent is certainly sufficient legal cause, and any monthly lease can be terminated by the landlord after giving legal notice (30 days advance notice). | The relevant part of Texas law is in the property code, §§92.101-92.109 §92.104 allows them to "deduct from the deposit damages and charges for which the tenant is legally liable under the lease or as a result of breaching the lease", and then they must "give to the tenant the balance of the security deposit, if any, together with a written description and itemized list of all deductions" (except when there is uncontroversial rent owed). §92.109 states what the landlord's liability is, namely a landlord who in bad faith retains a security deposit in violation of this subchapter is liable for an amount equal to the sum of $100, three times the portion of the deposit wrongfully withheld, and the tenant's reasonable attorney's fees in a suit to recover the deposit. This requires bad faith, not just being wrong. If you dispute the deductions, you can sue the landlord to recover the deposit. The law also provides that "In an action brought by a tenant under this subchapter, the landlord has the burden of proving that the retention of any portion of the security deposit was reasonable". In order to extract more money from you for putative damages, the landlord will have to sue you and establish that there was an additional $2,000 damages. If the court finds that you did actually did damage the apartment, you may be ordered to compensate the landlord. Until you get such an order, you don't owe them anything; you may be able to recover the damage deposit if the "damage" was insignificant. This sketches the process of suing in Justice Court to get your deposit back, highlighting details like the demand letter that you might not have known you have to write. As far as your credit history is concerned, this is not entirely clear. The Fair Credit Reporting Act regulates the industry of credit reporting, and crucially you can dispute false claims of debts. This does not prevent a person from making such a claim. I do not have an account with the Big 3 reporting services, so I don't know what their standards are for recording a putative debt. However, you can insert a suitable statement in your record disputing the validity of the claim. It is most likely that the landlord would sell the putative debt to a collection agency. That industry is regulated by the Fair Debt Collection Practices Act, and there is a procedure about disputing an alleged debt. | 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. | Can landlord backbill 4.5 years worth of utilities that were never billed to us bimonthly as directed in the lease? Yes, since the bimonthly billing issue appears to be within the LA statute of limitations for claims of breach of contract: 10 years (see here). But you might want to check the actual legislative language of the statute referred therein and the prior or consecutive ones --all pertaining to statutes of limitations-- so as to ascertain the accuracy of information in the first link (navigating through the bunch of LA two- or three-line statutes for this and that gets annoying). They are desperate to get me to move out since it is a rent-controlled unit and I feel like they have done this to cause issues and force me to default on rent. Is this a legal practice? I am not knowledgeable of state legislation particular to rent-controlled units, but I highly doubt it is lawful for them to proceed that way. Other details you describe reflect that the company has been --or is being-- malicious or grossly negligent. If so, strictly speaking, the company's conduct (1) ought to weaken its position or merits in trying to force you out, and (2) tends to contravene the contract law covenant of good faith and fair dealing (see below). If your lease mentions any statutes regarding rent-controlled units, you may want to search for case law at leagle.com to see how the statutes are applied. Without knowing the terms of your lease, I think your priority should at all times be the rent itself so as to avoid eviction. Does the "billing every two months" in the lease have any hold on this issue if they breached their own lease? Maybe not. The repeated, yet sole, failure to send you the bimonthly billings falls short of landlord's breach of contract. For your argument on breach of contract to prevail, you would have to prove that the landlord knowingly/deliberately let the water bills pile up prior to demanding you to pay everything at once. That would prove that the landlord is not meeting the covenant of good faith and fair dealing that is prerequisite in contract law. | 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. | This all depends upon where you are. I am a landlord and I am answering based upon the laws of the U.S. and the states that I operate in. First things first. You are not the property owner. While this does not limit the answer, it is a factor. You do not have the right to the property even if you have a key and the permission of the tenant. You are not the property owner, do not represent the property owner nor the tenant, and by contract do not have legal rights to the apartment. It does put you in a different situation. As a landlord, it is against the law for me to provide access to a tenants apartment to anyone without authorization. This, of course, precludes emergencies such as welfare checks. In the case of the police, a warrant is required or a form that the police fill out that allows the police to gain access. This would be used in cases such as when a spouse requires the recovery of personal property during a domestic dispute. A judges order is not always possible in these cases. These are often limited cases and the form absolves the landlord of liability even in cases where the police act incorrectly. So without a warrant or a form that certifies any lawful request, anyone including the landlord can be arrested for a crime. For your situation, a quick call to the landlord would have been appropriate. Without a warrant or certification, the police still had options including waiting for the person in question to either leave or return to the apartment or even request a warrant by phone. Often, the warrant, once signed by the judge, can be read over the phone. Any landlord should always have a paper copy provided within minutes since some cruisers will have a printer and can print the warrant. Your refusal appears to be legal. However, in the future, you can ask for a copy of the warrant that you provide the landlord. I do not wish to paint a negative image of the police who do the hard work that most people will never take on, they are after all heros, however, some do not know the law perfectly well especially tenant landlord law. As well, some will try and get away with skirting the law trying to get an important job done. It does happen. I hired a lawyer just last week for an illegal request unrelated to the question here. Addressing the OPs comment: Hello, I believe I misstated the situation a bit in that the locked door in question was for the apartment building and not a tenet's apartment itself. I have edited my question. Does this change anything? Technically, this does not change much of anything, however, the request by the police can be seen as a reasonable one. They just may want to talk to the individual which is reasonable. In this case, I might have let them in if the access I was giving them was to a common space such as a hallway. In this case, the outer door locks are only to keep Intruders from entering the building and not meant to restrict access for valid purposes. Are you in trouble? I would say no. If anyone asks, you can give reasonable arguments for your situation. However, the next time, consider what I have written here. The police have a tough enough time doing their jobs. If you can help and stay within the proper boundaries of what the law allows, that would be best. | 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. |
Is there a Federal statute regarding invasion of privacy when it comes to landlords? I am wondering whether there is a federal statute or case law that discusses tenant rights to privacy? For example, a landlord enters a person apartment without their knowledge and one of the landlord's agents steals money. | 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? | Landlord or tenant responsible for the furnishing damaged after a flooding? This brief analysis of Scandinavian Contract Law explains the difficulty of addressing with certainty matters of Swedish contract law. Despite the legal and factual ambiguities, it seems to me that the contract terms and landlord's conduct preclude his entitlement to a reimbursement from you. (Disclaimers: I have never litigated in Sweden's courts; I do not purport to be knowledgeable about Swedish law; and it is unclear to me whether Swedish contract law has evolved since the date of the publication of Ramberg's criticism of Scandinavian contract law) First, it appears that the landlord was negligent by waiting several days to ask tenants to remove moldering furnishings (as these were starting to smell). If that was the landlord's earliest reaction to the flooding, then the delay might evidence [landlord's] failure to mitigate damages. In other legal systems, failure to mitigate damages is an obstacle to recovery from the sued party. Second, the landlord's unqualified instruction to throw everything away --in response to your proposal of checking for salvage-- might forfeit his entitlement to reimbursement. In this regard, page 4 of the aforementioned publication points out that [t]he Swedish Supreme court [...] generally stated that a contract containing the standard terms was deemed to have been concluded due to the parties' behaviour. Obviously, not all of the contract would be void, but only the application of the clause about tenant's financial responsibility for missing or damaged items in this particular context of landlord's delay and reckless response to your proposal. Third, in the clause regarding tenant's financial responsibility "to replace missing or damaged items", I would say that the qualifier "missing" is key. Here, the usage of "missing" connotes a deliberate act of taking items away in violation of the landlord's proprietorship, regardless of whether it was the tenant or a third party who removed/stole them. That same connotation of deliberate act should govern the very next qualifier, "damaged", absent any language that expands the latter's connotation of causality. Also a criterion of negligence would fail, because you were not notified that a flooding occurred. The contract's clarification that their "insurance doesn't cover [your] personal belongings" opens --albeit weakly-- the door to the possible interpretation that instead the policy covers the counterparty's (that is, the landlord's) belongings. On the other hand, the landlord could avail himself of arguments such as (1) tenant should have made arrangements prior to leaving for the holidays; and (2) landlord's bed & mattress were not intended to be stored in the basement, and instead should have been notified toward procuring an appropriate storage for them. It is hard to make a more precise assessment without knowing more about the terms of the contract and the circumstances. Therefore, the best thing to do is to look at the subtleties in the language of the contract (as I did above regarding the deliberate nature inherent to the adjective "missing" and its interpretative effect on the adjective "damaged"). | There are various tangential ways in which this could be illegal, for example if your subjects are celebrities, you take a picture of them and commercially exploit it without permission in a product endorsement. Leaving aside such fringe cases, in the US, the legal right to privacy comes about, at the first cut, by premise trespass law. If the proprietor tells you to go away, you have to go away; if the proprietor tells you that you cannot take pictures, you cannot take pictures (your right to enter is conditional). Neither of those circumstances holds in your case. There are other tort-law bases for a right to privacy: numerous privacy laws regarding privacy and financial transactions (not relevant here), the aforementioned right of publicity (commercial exploitation of likeness), false light (like defamation, about creating a false impression – I don't see what false information is conveyed by a photo). There is also public disclosure of private fact, but that cat is out of the bag because the subject has self-disclosed the supposedly offensive fact revealed by the picture by eating in public. Intrusion of solitude and seclusion does not exist in the circumstance, since the subject is eating in public where everybody can see: there is no reasonable expectation of privacy. This page sums us Virginia law. The main take-away from that is that there is no common law action for privacy in Virginia, and only an action for unauthorized used of likeness or name. | My answer would be different if either Alice or Bob was the landlord, or the landlord had a separate agreement with Alice and Bob. If a single lease is written, per the comment, that Alice and Bob are components of "the tenants", and "the tenants" have rented the named premises, then they all have equal rights to occupy the whole premises under the lease. If the landlord is professional I will further presume they all have joint and several liability for the whole rent; it would be inequitable to alienate Alice with joint and several liability from any part of the premises without her consent. If there is a separate roommate agreement that allocates rooms and expected share of rent or controls behaviors, then that is a contract that can form as a meeting of the minds of the roommates where they each trade something of value, such as exclusive use of a room. The narrative suggests an original verbal agreement that Bob would like to change. That's nice but Alice doesn't have to agree; or can agree with other changes of value to her such as the ratio of expected rent reflecting the ratio of use and access to the space Alice would have. | Not a lawyer, but: In many countries, a purchased item is your property once you removed it from the premises of the seller. In practice, this rarely makes a difference. You have entered a contract with the seller where the seller has to deliver the product, and you have to pay the money, you did your part, they have to do their part. There would be a difference if the item was stolen while in the store, or damaged by fire, or if the store went bankrupt and bailiffs took the item. If these rules apply in your country, then what they did is not theft, otherwise it would be theft (in all countries, if the store removed the door from your home after it is installed, that would be theft). You paid for a door, the store owes you a door. You have a legal contract. Both sides are bound by that legal contract. They have to do what the contract says (delivering the door that was displayed in the store), if they can't, then they have to do the nearest thing that isn't to your disadvantage, like delivering a new door. Or possible a different door that was on display. They can't just declare your contract invalid because it suits them better. That wouldn't be the case if this would put the store at an unacceptable disadvantage. For example, if thieves had broken into the store and stolen ten doors, including yours, the store might get away with returning your money. Since they intentionally sold your door again to someone else, I don't think they could use this as an excuse. I'd go once more to the store and ask them whether they want to deliver a door to you, according to your contract with the store, or if they want you to get a lawyer. A letter from a lawyer might work wonders. (Or of course the lawyer might tell you that I'm completely wrong, but they don't know that, so telling them that you will hire a lawyer might be enough). | Is it a correct inference that the right "to be secure in their persons, houses, papers, and effects" extends to even a private corporation? No. It's not even a correct inference that it extends by its own terms to state and local governments. In Barron v. Baltimore (1833), the Supreme Court held that the Bill of Rights was enacted as part of the federal constitution and only restricts the exercise of the federal government's authority. State and local governments are instead bound by the Fourteenth Amendment, which says that No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Over the years, the courts have held that state action that deprives someone of fundamental rights deprives them of life, liberty, or property without due process of law in violation of the Fourteenth Amendment. In Wolf v. Colorado (1949), the Supreme Court held that the right against unreasonable searches and seizures is a fundamental right, so state action violating it is a violation of the Fourteenth Amendment. Most of the Bill of Rights has been held to be "fundamental," and people routinely say "the state violated the Fourth Amendment" instead of "the state violated the Fourteenth Amendment by conducting an unreasonable search of the sort that would violate the Fourth Amendment if conducted by the federal government." Courts will say "the Fourth Amendment, made applicable to the States through the Fourteenth." But the point is that the Fourth Amendment itself is not applicable to anyone except the federal government. The Fourteenth Amendment, by its terms, only restricts the states. The Fourth Amendment only restricts the federal government. With rare exceptions, neither applies to private entities. | A tenant has a right to "live in a property that’s safe and in a good state of repair". There are additional regulations possibly applicable in your situation if this is a "house in multiple occupation", summarized here. "Hazards" are explained here. However, these rules pertain to the condition of the building, not other tenants (except that "overcrowding" is also a hazard). They also say you should "report anti-social behaviour to your local council". It is legal to rent a room in the UK to a person convicted of a violent crime, so it would also be legal to rent a room to a person who hasn't committed a crime (assuming he is legally in the UK). If the person did not engage in actual anti-social behavior towards you, there is nothing to report to the local council. The landlord has no affirmative duty to disclose such a fact, and it might be illegal to do so under the Data Protection Act, since this is "sensitive personal data". | 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. |
Statute of limitations and constant damages Say someone builds a house improperly and damages accrue over the entire life of the house. Is the statute of limitations meaningless in these cases because it is constantly reset by the damages? Or is only the first damage counted? If there are repeat violations doesn't that mean I could sue anytime? | Limitations start to run when the prospective plaintiff first becomes or should have become aware of the cause of action Let’s give a concrete example. Let’s say a foundation starts to sink causing a wall to crack. The limitation period starts to run from when a prudent owner should have become aware of the cracking. Further, the builder is only liable for the foundation repair, initial cracking and the necessary costs the owner went to to prevent further damage. The owner has a legal duty to mitigate the loss; if they don’t then they are liable if, say, the wall collapses or the roof buckles. | The important question is: was the £200 a fine (which is paid to the state) or compensation (which is paid to you)? Assuming it was a fine He doesn't (at the moment) owe you anything. However you can sue him for damages. Usually a claim for damages is time-barred after six years (and it is now seven years). However you weren't able to sue him yourself until you were 18, so you may have a couple of years left. However the clock may have started ticking immediately after the attack, on the grounds your parents or guardians could have sued. Talk to a solictor about this possibility; they should give you a free 30 minute consultation, and would probably take a case on a contigency fee (no-win no-fee) basis if it has any chance. In principle, you could have applied to the Criminal Injuries Compensation Board for compensation - but you are too late for that; you have to apply within two years (there are some exceptions, but none seem to apply to you). Assuming it was compensation He owes you £200. Now you need to enforce that payment - and again, the problem may be the six year clock. You will definitely need to talk to a lawyer about that. My gut feeling is that the £200 was probably a fine rather than compensation. | Often, evictions are bifurcated. An initial hearing determines all evidence necessary to determine if there is a default existing sufficient to justify an eviction, and if so, the eviction goes forward immediately despite the fact that not all issues in the case have been resolved. A later hearing resolved the precise dollar amount of any damages claim. If the grounds for eviction is non-payment of rent, and the amount of payments or the amount of obligations of the landlord that can be setoff against the rent due exceeds the amount of rent found to have not be paid, then it is a defense to an eviction in the initial possession phase. If the counterclaim is smaller than the amount of rent owed (or cannot for some reason be set off against the amount owed) then it is only at most, a setoff against a damages award in favor of the landlord. I'm have not researched, in particular, how this is handled in New Jersey, but I am providing this answer on the theory that some insight is better than nothing. For the purpose of this question assume the landlord does not dispute the tenants underlying claim. His only argument is that the tenant should counter sue and that it should not be raised as a defense for non payment / stop the eviction. If this is true, it is both an affirmative defense to the eviction claim and a basis for a counterclaim in most cases. The better practice would be to raise it both ways in the same lawsuit. But, if the counterclaim is not sufficient to overcome the claim that rent is owed and not paid in full, or triggers some other different alternative ground for an eviction (e.g., maybe the lease provides that application of a security deposit against rent owed is itself an event of default), then that wouldn't prevent an eviction. | No, such clauses are precise and common. The landlord wants to say: “we're not liable for anything”. Unfortunately for them, they can't say that because the law might still recognize some liability. So this construction achieves the next best thing: to the maximum extent possible, they will not be liable. What does this mean for you? If you want to sue them because you think they were liable for something, you won't be able to do that successfully – unless you can point to a liability they cannot disclaim. Yes, this might not always be entirely clear but that's why there are courts. On to your concrete objections: Firstly, it wrongly assumes that the "law" on exclusion clauses is settled and certain. Perhaps the case law is uncertain. Or there may not even be law. Which is why this construction says: we don't know where precisely the maximum is, but whatever the maximum is: we want it. Secondly, it wrongly assumes that "the maximum extent" can be handily identified. Perhaps Landlord and I disagree on what "the maximum extent" is. Either you can convince the landlord that they are liable and can settle this out of court. Or you go to court. Then, your opinion doesn't matter, only the court's judgement. Thirdly, the "law" can change. Then what's "the maximum extent" or "law"? This construction avoids this problem because it does not fix a certain list of liabilities that are included or excluded. Instead, it will disclaim maximum liability at any relevant point in time, which will likely be the time of the event giving rise to liability. If new laws are passed, they won't generally apply retroactively. However, new case law could update the interpretation of existing laws. What can you do? This is a business negotiation. You want that the landlord fulfils their duties, and they don't want to be on the hook if something bad happens. In particular, they don't want to be forced to pay for any missed profits or such. Maybe the clauses could be modified to ask for reasonable effort on the part of the landlord to mitigate certain events, in particular with regards to security. But in reality: you will have to get insurance to cover the cases you are concerned about. And some risks are just business risks. | I love Wikipedia to bits, but it's sometimes worth reading the "talk" pages as well as the article, and trying a few other sources. I think this one comes closer : Damages attempt to measure in financial terms the extent of harm a plaintiff has suffered because of a defendant's actions. In the paragraph you're translating, "damages" is used as a broad term : the text then goes on to mention "losses, liabilities, claims, injuries, lawsuits, costs and expenses" as specific forms of damages. "Damages" as highlighted in the translation is the word I would use, as it covers many different things with a financial effect on the plaintiff. "Losses" is more specific, and is already covered in the list that follows. Losses may be considered damages, but not all damages are losses. | The person responsible for the leak pays This is a general principle that if your stuff causes harm, you are responsible for it as well of the costs of doing what’s necessary to stop it. This might or might not be you. Assuming the water is normal “splash” that is making its way into the unit below then it will be the person who is responsible for maintaining the waterproofing in your bathroom - that might be you or it might be the common property owner, you would need to check your by-laws. Of course, this assumes your building is new enough to have waterproofing - older buildings just relied on the tiling. If so, this is almost certainly your responsibility. If instead, it’s a leak from a pipe or fixture, then the owner of that is responsible. That could be you or the building owner or even your downstairs neighbour. Again, check your by-laws. Edit The OP has indicated they are a tenant, not the owner. In this case, it’s nothing to do with you unless your lease says you are responsible for building maintenance or you have been negligent. Residential leases almost never do the former and, unless you did something stupid, like allowing the bath to overflow or having water balloon fights, you probably haven’t been negligent. Refer the matter to your landlord and ask your neighbour to direct all future correspondence to them. | If you claim ownership of property but do nothing with it for 12 years (not even collecting a £1 rent), then in due course ownership will pass to the tenants, under the doctrine of adverse possession. Your solicitor is the only person who can advise you properly, since he knows all the details; but ultimately you will have to choose between being on bad terms with these neighbours (including suing them for possession) and losing the garages. To deal with your edit: normally, just requesting the rent is enough, even if the tenants ignore every request. However, if they specifically refuse to pay anything, they are claiming that they own the garages not you, and if you do nothing you will lose possession eventually. If you sue them for possession now, you will probably win (assuming your question is accurate and complete), but every day weakens your case. Of course, suing will be expensive and damage your relationship; but it won't be any cheaper in the future. | Maybe, Hence the Lawsuits In the absence of clear statute law these all circle around tort law. For the scooter companies, trespass to chattels, and for the affected landowners (who hire the removalists) trespass to land and nuisance seem applicable. In essence, I can’t take your stuff (trespass to chattels) but you can’t leave your stuff on my property (trespass to land) or impeding access to it (nuisance). If you do, I am entitled to the reasonable costs of dealing with it. Note that, as owner, you remain responsible for you stuff even if you rented it to someone else. Both sides are pushing hard into unexplored areas of law so we await the judgement with interest. Then we’ll know. |
Does a criminal complaint filed under an alias toll the statute of limitations of an offense? Generally, aside from murder, many criminal statutes prohibit the filing of criminal charges after a certain amount of time has passed. For the purposes of this question, assume the police do not know the true identity of the criminal who committed the crime, but have probable cause that a person who goes by a certain alias committed the crime. Can a District Attorney file a criminal complaint (or initiate grand jury proceedings) against this alias? Will the filing of this complaint toll the statute of limitations? Under what conditions will the tolling stop? (If this complaint does indeed toll.) Is there any legislation on this topic? I am interested in an answer for any jurisdiction in the United States, I imagine the answer could be different for the different jurisdictions within the states. | The statute of limitations sets out the period of time after a crime has been within which formal criminal proceedings must be commenced. If the police or DA were to request and receive an arrest warrant that met the requirements of the Fourth Amendment then the person would be a fugitive and time spent as a fugitive does not count. From Groh v Ramirez: The Fourth Amendment states unambiguously that “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 requirement is that the person to be seized must be "particularly described" - that is unambiguously identified. A name will do that but so will a commonly used alias. | 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 | Neither with or without a warrant, if the confession is all there is. For a felony, the question is whether there is probable cause (4th Amendment). This is true whether the police arrest you, or they get a warrant – the difference being that in the latter case the warrant is issued by a guy with much greater knowledge of what constitutes probable cause. The question then would be whether a confession alone constitutes probable cause. There is a venerable rule, the corpus delecti rule (300+ years old) that requires there to be independent evidence of a crime, the point of this rule being to to prevent mentally ill people from being convicted of a crime that never even happened. Under that rule, a confession alone would not be probable cause (but a confession and a bloody glove could be). This article reports that at the federal level and in 10 states, there is a lower bar of mere "corroboration" without the need to argue that there was an actual crime. Exemplifying this relaxing of the traditional rule, in Opper v. United States, 348 U.S. 84, the court held that "[a]n accused's extrajudicial admissions of essential facts or elements of the crime, made subsequent to the crime, are of the same character as confessions, and corroboration by independent evidence is required". However, "[t]he corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti" and "[i]t is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth; but those facts plus the other evidence must be sufficient to find guilt beyond a reasonable doubt". In such jurisdictions, courts take a "totality of circumstances" approach focusing on whether the confession is trustworthy. | Yes to everything. Justified use of force is assault / battery / homicide (as appropriate). "Assault" means that a person has placed someone in fear of their life or person. "Battery" means that a person has physically struck someone in some way. "Homicide" means that a person has killed another human. None of these definitions speak to the legality of the action. You are right about the example being assault. Justified use of force is de facto legal. Assault, battery, and homicide are normally crimes, but the justifications for using force carve out exceptions. If the circumstances fit within the justification, the person using the justified force has not committed a crime. (Generally speaking, the person targeted by said force has.) If the situation you describe fits within the laws of justification within the state (and to be fair, it probably does), then your co-worker is right about the actions being perfectly legal. Police are picky about what they investigate, and prosecutors are picky about what they charge. If it's 100% clear from the evidence that you were justified in your use of force, prosecutors will (typically) not press charges, and so police will not bother with an arrest or further investigation. It's really not worth the time and effort for a case that has 0% chance of producing a conviction. However, if the police and prosecutors have some doubts (e.g., they think your force was excessive and therefor not justified), they can still press charges. Being charged with a crime does not mean you have committed a crime. And vice-versa. Justification is an affirmative defense against charges of assault / battery / homicide. An affirmative defense does not mean "I confess to the crime but have a really good excuse." It means that you admit to certain facts that would normally be beneficial to the prosecution, but claim additional facts that either mitigate or make you innocent of the given charges. In the case of justified force, you are admitting to the action of assault, but claiming innocence. When making your defense, your theory of defense must be internally consistent. You cannot admit to a fact when convenient and deny it when it is inconvenient. "I was in Santa Fe at the time, and anyway, Sam did it," is an example of a self-consistent theory that gives multiple reasons to acquit. That's good, because the jury only needs one reason that gives them pause, and now you've got two chances at that. "I was in Santa Fe at the time, and anyway, he was threatening my life," is not internally consistent. If you argue justification, you explicitly declaim any alibi. This situation is more dangerous, because your defense rests entirely on the credibility of the justification. But if you argue an alibi, you implicitly declaim any justification. So building your defense on things the prosecution can disprove is much worse than taking an affirmative defense of justification. | The courts do not supersede your constitutional rights, although you may believe that you have a constitutional right that isn't actually there. This article discusses the position that "due process forbids convicting an individual of a crime unless the government proves the elements of the charged offense beyond a reasonable doubt". This standard is actually not stated anywhere in the US Constitution, but it has been assumed as an implicit meaning of "due process". It sounds like you were charged with a crime, and there is most likely an applicable statute in your state that is analogous to RCW 26.50.110 in Washington. So you have the right to a trial and the prosecution would have the obligation to prove all of the elements of the crime beyond a reasonable doubt. It also appears that you did violate the applicable law and you were willing to plead guilty, as urged by your attorney. You are correct that you don't technically have to prove your innocence, but there is a practical problem that if the prosecution provides some weak evidence that you violated the law, then the jury might decide that your failure to refute the evidence means that there is no reasonable doubt. The problem is that there is a tendency for jurors to think that the defendant has to create a doubt. States differ somewhat in how they explain the burden of proof to jurors, and you might fare better in a state where the instruction is that "you must be firmly convinced". Since the attorney seems to have said that "the constitution doesn't apply to this", this is a puzzle. I would not assume (though it is possible) that the attorney was incompetent. It is possible that he was speaking of a non-criminal matter, and it is possible that you were talking at cross purposes. There is no legal situation where "the constitution doesn't apply to this", but perhaps "that constitutional limitation doesn't apply to this specific situation". Regardless of what the attorney said, your attorney doesn't violate your rights, even if he gives you bad advice. The actual court might, and then you would have a cause for an appeal. Similarly, if the district attorney reasonably believes that you are a danger to society and is prosecuting you, that is not a violation of your constitutional rights. An improper conviction would be a violation of those rights, although it might take an appeal to get the court to recognize that fact. | The equitable defense of laches is not applied the same way in every jurisdiction. Some jurisdictions apply it only to equitable claims. Others also apply it to claims arising in law or by statute. A claim for breach of an oral contract arises in law, so in some jurisdictions only the statutes of limitations and not laches applies, while in others, laches as well as the statute of limitations might apply. If laches does apply in this jurisdiction, one must typically show (1) a delay in asserting a right or a claim; (2) the delay was not reasonable or excusable; and (3) either acquiescence in the act about which plaintiff complains OR prejudice to the defendant resulting from the delay. The second and third elements are typically the issues in dispute in a laches claim. A prejudice argument might be that the person using the parking space wouldn't have continued to use it if he had believed that the person leasing it was going to impose a charge beyond the one actually imposed. Ultimately, this would be a fairly close call if the defense of laches is available for this kind of claim in this jurisdiction. There is also an argument that the right to collect the charges has been waived, although not a very strong one. With respect to the statute of limitations, there are different ways to characterize the violation. If each month of parking without paying is viewed a separate breach of contract and the statute of limitations is three years, only 3/8th of the amount claimed would be timely. But, if it is viewed as a single continuing violation, the entire claim might be timely. To the extent that the parking agreement is viewed as a lease for a time in excess of one year, the statute of frauds might require it to be in writing for it to be enforceable, in which case it is not a breach of contract case, but is instead a trespass case. Viewed as a trespass case the statute of limitations would typically be different and shorter, and the tort might only arise (and compensation might only start to be due) once a demand is made upon the person using the parking space to pay a higher amount (resulting in a much, much lower amount owed). | Yes, for the jurisdiction specified in the tag In the United States, questioning must stop as soon as the accused assserts his or her right to counsel. It's been upheld by subsequent precedent, but the origin is in Miranda v. Arizona, 384 U.S. 436, 474 (1966): If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. | Yes, a person can be charged with the murder of person or persons unknown The reason that police are really keen to identify the victim include (in no particular order): It will probably clear up a missing persons case; So they can inform the next-of-kin; Being able to place a named person who loved and was loved before a jury rather than nameless corpse increases the chance of conviction - all else being equal. |
Is it true that you shouldn't publish evidence that you intend to use in court? I've heard in a few places that you shouldn't make public pieces of evidence that you plan to use later to support a case against some person/entity. But I'd like to ask if this is actually true and what is it based on. Does it make your evidence invalid? Is it more like strategic advice? Thanks. | Yes, one should not publish evidence until a verdict is reached. This includes any possible appeals. In common law, doing so has long been one of the contempt of court offences called sub judice, or "publishing information that interferes with a fair trial". The main point is that the jury should not be influenced by any information other than what they hear in the courtroom. In New Zealand, the offence was recently codified. | This is not legal advice, It is not even primarily a legal opinion. It is a legal position. The lawyer, acting on behalf of the agency from which you requested information, is giving the reasons why that agency is declining your request. The lawyer is presumably either an employee of the agency, or has the agency as a client. In any case, this is notice of the position that the agency would be likely to adopt if you took further legal action, such as a suit to compel disclosure. Lawyers provide such position statements ion behalf of clients or employers all the time. Such statements indicate why certain action is taken, what basis the client or employer has for taking or not taking certain action, and often indicate the nature of the defenses or theories that will be used should a lawsuit follow, although the client or employer is free to change the theory at the pleading stage. Not only is it not unethical for the lawyer to respond in this way, the agency is, I am fairly sure, required by the law to provide a valid reason when a request is declined. That is what they have done, provide a reason that they claim is valid, with some legal reasoning about why it is valid. Note that I express no view on whether the reason given is in fact valid, or would be sustained in a suit. That would be a different question. | Are defendants legally obliged to provide all culpatory evidence to prosecution? The question here is whether or not all evidence requested by prosecution must be provided by the defense? If the defense plans on only using the evidence of the prosecution, does the prosecution get to demand evidence the defense would rather not release? No. Usually only specific kinds of evidence related to specific kinds of claims such as alibi evidence, an insanity claim, or expert testimony must be disclosed prior to trial by a defendant in a criminal case. A defendant in a criminal case does not have to disclose evidence harmful to the defendant's case prior to trial as a general rule. Sometimes there is a requirement to disclose witnesses anticipated to be called, or exhibits to be possibly used very shortly prior to trial, but that is more the exception than the rule. Does the answer depend on the whether or not the case is criminal or civil? Yes. A plaintiff in a civil case can compel disclosure prior to trial of all evidence in the custody, control, or possession of the defendant that is relevant or is reasonably calculated to be relevant to a disputed issue identified in the complaint, answer, and other pleadings (e.g. counterclaims, replies to counterclaims, third-party complaints, cross-claims, etc.). The scope of discovery is slightly different in jurisdictions that don't follow the federal model. This can include pre-trial depositions of the parties, although a defendant can claim the 5th Amendment at the risk of being exposed to an adverse inference communicated to the jury at trial if the defendant does so. Furthermore, most jurisdictions require the pre-trial disclosure of expert testimony that will be used at trial, of exhibits that will or may be used at trial, of witnesses who will or may be called a trial, of all documents that are relevant to a disputed issue identified in the complaint, answer, and other pleadings, of all insurance coverage that could cover the claim, of all persons with knowledge of the disputed facts, and of an expected damages calculation. In the federal system, however, one need pro-actively disclose only witnesses and documents that support your case without being asked. Is there consistency on this or is it at the discretion of the judge? The rules of procedure applicable to a case govern the scope of discovery, but judges have considerable discretion to determine that requests are excessive relative to what is at stake in the case, are irrelevant, or unduly burden some other legitimate interest of the person subject to discovery. Is there punishment for non-compliance? Yes. First of all, a failure to disclose when there is a duty to do so is a ground to exclude presentation of that evidence at trial. Secondly, in civil cases, attorney fees incurred to obtain the discovery can be awarded, facts that might have been disclosed can be declared to be true as a matter of judicial sanction where there is not disclosure, claims can be dismissed, etc. The main relevant federal rule in civil cases is Federal Rule of Civil Procedure 37. It is an unlawful request that must nonetheless be followed with only a hypothetical remedy left to the defendant as is the case in most of these united states to comply with an obviously unlawful arrest that doesn't present an immediate threat to life? I don't understand this long and convoluted sentence. The part about an unlawful arrest seems divorced from the issues in the rest of the the question. It isn't clear what kind of unlawful request is involved either. | As I understand it, you can pretty much sue anybody for anything. The question, of course, is would you win the suit? All the lawyers here can correct me, but I believe in order to win, you would have to Show standing, that is, they're your comments and not someone else's Show that it's a deliberate act, and not just someone accidentally clicked the wrong checkbox. Show that it was an act by the agency and not by Facebook, for example. Show that you've been singled out for your viewpoint (they allow some people's comments) Show that there is no other reason to delete your comments (they're obscene, or advocate for an illegal act, for example). I'm probably missing something else. The real question is, even if you could demonstrate all these things, would it be worth it? You may spend $1,000's and you might not recover your legal fees. The case might take years. | It's always going to be a fact-specific situation, but the first step is to conduct whatever factual investigation is feasible to disprove your belief. If your investigation indicates that your belief is correct, you send a cease and desist letter. If that doesn't work, you proceed to litigation. | 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). | 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 most innocent of your scenarios is "against the rules", so less innocent acts fair worse. The idea behind researching legal theory and precedent (presumably not presidents) is that surely it is good for a juror to know what the law is. But that thinking is wrong. The judge will instruct you as to what the law is, and will also instruct you that "the law" is limited to what he says it is. I will draw on the instructions for an antitrust case, Best Buy v. Toshiba, HannStar. The core instruction is: It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. The preliminary instructions (the pattern instructions for California civil trials) say the same basic thing: At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law. The judge instructs the jury that: When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. Your research might find alternative statements of the law out there, which seem entirely plausible. That doesn't matter: you have to set aside whatever ideas (about the law) that you've gotten from anybody besides the judge. In fact, if the judge makes a (serious) mistake and rules against a party in a manner that is contrary to established law, and you know this (it doesn't matter how), you are supposed to apply the law (including rulings during trial as to admissibility) as given to you by the judge. As for a case of a juror knowing that the judge was mistaken (specifically, knowing based on his pre-existing knowledge of statutes and case law – not based on forbidden research during a trial), we can get the "should" from the absolute instruction to follow the judges instructions. Additionally, if you read transcripts of voir dire (not a trivial task), you can observe judges probing attorneys who happen to be in the prospective pool, asking questions to determine whether that person can just do as they are told. But it would be difficult to establish a "hard rule". There never will be an instruction that says "You must follow my orders even if you know for a fact that my orders are wrong" – jury instructions never admit the possibility of judicial error. |
How did judicial review in the United States develop out of prerogative writs? In this video, at 58:15 Justice Scalia says that the judicial review concept in the United States developed out of the prerogative writs: mandamus and injunction. What does he mean by that? How did judicial review develop out of these two writs, exactly? Where (book or article) can I find more information about that? | The place to begin thinking about this question is to understand the foundational question of what a "writ" is. A "writ" is a court order directed at another government official, often, sometimes, a government official who isn't even a party to the case, although sometimes the government official is a party to the case. A writ of mandamus, is a writ directing a government official to carry out a non-discretionary duty. An injunction is a court order (not necessarily a writ, although some writs are injunctions, indeed writs are usually a subset of injunctions directed at government officials) which directs a person who is a party to lawsuit, or is contractually or organizationally connected to a party to a lawsuit, to take some sort of action or to refrain from taking some sort of action. Most injunctions are not writs. The usual remedy if a government official does not obey a writ of mandamus or an injunction is to hold that government official in contempt of court, for example, by personally fining or incarcerating that government official. How did judicial review develop out of this two writs, exactly? As a footnote, there are a lot more than two kinds of writs. There are actually maybe half a dozen in regular use, including writs of prohibition (ordering public officials not to do something), writs of certiorari (reviewing discretionary decisions of lower courts and public officials acting in a quasi-judicial role on legal issues), writ of quo warranto (resolving disputes over who holds a public office), writs of attachment (ordering public officials to seize property, especially tangible personal property, to satisfy a money judgment), writs of restitution (ordering a public official to restore possession of real property to someone), writs of execution (ordering public officials to carry out court orders, usually money judgments rather than death penalty orders), writs of assistance (authorizing a public official to trespass on someone's real property in furtherance of some other purpose), and writs of garnishment (authorizing a public official to seize property owned by a money judgment debtor from someone other than the debtor who is in the possession of the debtor's property like a bank or an employer, if they don't comply in turning over that property), and more. The modern trend is to replace historic common law writs (which are statutorily authorized in the federal system by the All Writs Act which was one of the first acts passed by the first Congress in 1789), with court rules with plain English names that confer equivalent authority. To appreciate what a big deal this is, you need to compare the powers of common law legal system judges to the powers of civil law legal system judges such as the ordinary court judges of France, Spain and Germany. Civil law judges don't have the contempt of court power. They have some resources to enforce their orders, but no tool nearly so powerful or sweeping. The ordinary courts of civil law countries, unlike those of common law countries, historically have not had the power to rule on questions of "public law" (i.e. disputes involving governmental agencies and officials apart from issuing sentences in criminal cases). Instead, civil law judges in ordinary civil law courts only have jurisdiction over disputes between private parties and over criminal prosecutions. Separate public law tribunals, sometimes called administrative courts and sometimes called something different, handle public law cases (in France, for example, these cases are handled by the "Council of State" which is run by elite civil servants whose upper levels are populated almost entirely by graduates of France's top university). In the 20th century, when Europeans (and people in other civil law countries) started to imitate the vibrant U.S. constitutional individual rights jurisprudence mostly arising under the federal Bill of Rights, the bureaucratic inertia of centuries was too great to copy the common law model, so instead, civil law countries instead tended to create stand alone "constitutional courts" outside the ordinary court system, with the authority to enforce their newly enacted human rights protections in their national constitutions instead, handling this special and important subset of public law in the same manner that non-constitutional public law questions had always been handled by a separate set of courts in those countries. This divide emerged because in post-Norman invasion England, judges are successors to feudal aristocrats who personally held courts and resolved disputes between their subjects and had life and death power over then and a direct command authority over all public officials. Professional judges in the common law system were originally courtiers who volunteered to substitute for the aristocrats themselves in doing this job (which required lots of skill and was more boring than training to sword fight and ride horses and commanding soldiers), who as agents of local lords had all of the authority and power of the lords themselves for whom they were trusted inner circle advisors. The core contempt power is actually the power to summarily fine or incarcerate someone who disrespects the judge or aristocrats in the presence in open court, without a trial, which was broadened to include include defiance of and disrespect for the court outside of its presence by disobeying its orders. In contrast, if someone is disrespectful or disorderly in a civil law court, the judge calls the cops just the way anyone who wasn't a judge would if someone got out of control in their office or board meeting. Civil law judges, following the classical Roman tradition, were appointed specialized civil servants, rather than delegates of aristocrats, from the state in continental Europe and in countries that followed the continental European model. (In Rome, most cases were decide by judges who had a role closer to modern private arbitrators than today's judges.) As courts in England became more bureaucratized and divorced from the aristocratic model, the ordinary English courts drifted in the direction of civil law courts, but then, the English Chancellor (an official most similar in role to the Secretary of Treasury in the U.S.) who was a top cabinet level official of the Prime Minister and the King, developed a parallel set of courts that rather than being public law courts, handled what was called "equity", basically providing legal remedies in cases where the bureaucratic civil law style courts of law in 18th and 19th century century England couldn't do anything since they had only narrow jurisdiction. The courts of chancery, a.k.a. judges of courts of equity in England, led by an aristocratic high cabinet official, took over the tradition of contempt of court authority previously wielded by aristocrats holding court over their subjects. And, when England decided to be efficient by merging the courts of law and the courts of equity into one unified system in the 19th century, the judges of the new combined system were granted to combined powers of judges in courts of law and judges in courts of equity, restoring to them the power to issue a wide variety of writs and to hold public officials in contempt of court if they disobeyed, something natural for the top government official holding the purse strings over all other government officials in England. Now, originally, in England, writs weren't used for the purpose of judicial review of legislation. Under the doctrines of royal absolutism and parliamentary sovereignty, courts in England until very recently, didn't have any authority to invalidate a law. But, rather than creating a separate set of public law courts, the English gave the ordinary judges of their ordinary courts the authority to force civil servants to obey the laws that Parliament enacted with royal approval. Once judges are used to bossing around civil servants for not doing their jobs in accordance with the law (which English judges had already been doing for centuries), it becomes second nature, in a complicated governmental system like that of the United States with federalism and the separation of powers, for judges to order state officials not to disregard federal laws that conflict with state laws (under the supremacy clause), which they did on a regular basis starting in the early 1800s, and to order federal officials to disregard federal laws that conflicted with the U.S. Constitution, which they did much less frequently until after World War II. The other piece of the story that is important to understand, is that there were no direct appeals of federal criminal convictions until the late 1800s when the intermediate federal courts of appeal were created, and this was also true in many states. Prior to that, the only form of judicial review of a criminal conviction was a writ of habeas corpus, which is why this takes such a prominent role as a protected writ in the federal constitution even before the Bill of Rights was adopted. The general rule was that a writ of habeas corpus should be denied any time that someone was incarcerated pursuant to a criminal conviction of a court with jurisdiction, or was in the process of facing trial on a criminal charge by a court with jurisdiction. But in the absence of any other form of judicial review of wrongful criminal convictions except the executive branch pardon power, courts read their mandate to find that criminal convictions were jurisdictionally deficient expansively to cover a multitude of procedural irregularities in a criminal conviction. So, even the review of law enforcement discretion now handled (a form of bossing around government employees) mostly through direct appeals of criminal convictions and pre-trial appeals of key rulings by trial courts in criminal cases, was historically done through writ practice. I personally learned this piecemeal, but one of the leading histories of law in the United States is A History of American Law by Lawrence M. Friedman. | In brief: In common law systems, are there specific laws? Yes. Are they written down? Yes, here are the laws of Australia and New Zealand. Or are there only previous court rulings? No. Elaboration: Broadly (and rather vaguely) speaking there are 3 sources of law in a common law jurisdiction: Statute law which consists of the Acts passed by the legislature Administrative law which consists of the rules and regulations made by the administrative arm of government under the powers granted them by the constitution or delegated by the legislature Case law which consists of the decisions made by the courts; this can be decisions based on Long-standing precedents whose origins are lost in the mists of time Interpretations of statute and administrative law It is important to remember that the courts only get involved to resolve conflicts (civil or criminal) - they do not unilaterally make decisions on the law. Judges (if they are wise) never give opinions on the law - that is the role of solicitors and barristers who are the paid advocates of the parties. The role of a judge is to decide how the law fits the circumstances of the particular case before them. To do this they interpret the statutes, administrative rules and decisions made by other judges on similar cases. The decision of a superior court is binding on a subordinate court, persuasive on an equivalent court or a court in a parallel jurisdiction and subject to review by a superior court. The overwhelming majority of cases do not make new case law - most of the arguments in court are about why (or why not) the established law applies to the current facts; they are not about what the law is. Occasionally a decision will be made that modifies the previous interpretation or even more rarely represents a paradigm shift - those are the cases that matter! | It is generally held that Textualism is a kind of Originalism, which is a set of theories: these theories have something in common, which sets them apart from Minimalism or Living Constitiutionalism. The problem is that it is very difficult to establish a defining canon for Originalism, whereas Textualism is a newer development prominently associated with Scalia. There are three related theories: Original Intent, Textualism, and Original Public Understanding, subsumed under the umbrella of Originalism. The textual difficulty is finding a (somewhat) contemporary advocate of Original Intent or Public Understanding who maintains that theory in the face of Textualism, so that we can see the essential principles that distinguish the theories. Smith ("Why originalism won’t die…" says that Originalism is the view, embraced by Antonin Scalia, Robert Bork, Clarence Thomas and many academic legal theorists, that the meaning of the Constitution should be settled by reference to the original understanding of those who enacted its provisions As characterized by R.G. Natelson, The original meaning (or original public meaning) is how a reasonably intelligent, involved member of the public would have interpreted a provision. Primary evidence of original meaning is how words were used in common discourse and the definitions in contemporaneous dictionaries and legal sources. Circumstantial evidence includes the drafting and ratification conventions, public debates, and so forth. The public meaning theory seems to have not gotten much traction, though it might be subsumed under an attempt within Original Intent theory to find evidence for that original intent. Scalia (the arch-Textualist) characterizes his "opponent" originalism (not textualists) saying "Originalists believe that the Constitution should be interpreted to mean exactly what it meant when it was adopted by the American people." (quote from Scalia AUSTIN AM.-STATESMAN, May 6, 2005, copied from Smith) Bork (The tempting of America) says that under the Original Intent view, "a judge is to apply the Constitution according to the principles intended by those who ratified the document" (emphasis added) A variant sub-theory is strict constructionism, and in Common-Law Courts in a Civil-Law System, Scalia cites the case of Smith v. United States, 508 U.S. 223 to illustrate the difference between strict construction and textualism. In this case, case where defendant was said to have used a firearm during and in relation to a drug trafficking crime when he offered it in exchange for cocaine. Scalia, opining in the minority, rejects the majority’s "strict" interpretation of the word "use", says The phrase “uses a gun” fairly [emphasis added] connoted use of a gun for what guns are normally used for, that is, as a weapon. When you ask someone “Do you use a cane?” you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway. In Scalia’s theory, which is a formalist but not a mechanical theory, words are to be interpreted "fairly", rather than "strictly": A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means. Focusing on the difference between Scalia’s theory as a representative of textualism (sometimes called "original meaning" theory), and his characterization of other broadly-construed originalist theories (strict constructionism, as identified in Common-law courts…, Scalia in particular denies the relevance or even the existence of “intent” behind legislation. The first and most obvious reason this is true is that, with respect to 99.99 percent of the issues of construction reaching the courts, there is no legislative intent, so that any clues provided by the legislative history are bound to be false followed by some interesting extracts from Senate floor debate that indicates how a certain bill was passed without anyone apparently reading the relevant committee report. In short, the difference between original intent and original meaning has to do with whether the words used in a statute are dispositive, or are they a guide to discerning the intention of the legislature where that intention is to be enforced. | The practice of having all SCOTUS cases heard by the whole court (en banc) rather than by individual justices or panels is nowhere specified in the US Constitution. Nor is it mentioned by The Federalist which is often a good source on the intentions of the Framers. It seems to have been adopted by the first session of the court with little discussion -- at least none that has come down to us. I strongly suspect that English models were in the minds of those early court members, but I do not know exactly which models. The practice of the various state Supreme courts may also have been influential. This practice seems to have been confirmed and definitely settled by Chief Justice John Marshall, who did so much to define the Court's procedure. He also strongly encouraged the court to issue a single option in each case, discouraging both concurring and dissenting opinions. He felt that the Court should always speak with a single voice. During the first fifteen years of his tenure, he himself wrote close tom 90% of the court opinions, according to an academic study of the Marshal Court I read about a year ago. It is worth recalling that in the early years there were not many SC cases, and there was no need to split up the work of the court. It is also worth remembering that at that tine there were no separate appeals courts. Rather, each Justice "rode circuit" holding court in several different cities, in each sitting with one or two District Court judges as a panel court. Thus when a case reached the SC on appeal, it had already been passed on by a single Justice. The justices, through the end of the Marshall Court in the 1830s spent more than half of each year on circuit. Addition: One should also remember thst from the start through the 1830s the Justices lived in boarding houses during the Court term, and in most terms most or all of the Justices lived in the same house, where the work of the Court was discussed over dinner and in the evenings. None of which Really answers "why do we do it this way?" I do not know of any document that first laid out this practice, much less gave reasons for it. | I am guessing that the question is about the United States, since the "objection!" procedure is not the same in other places. The Supreme Court has held that even though you have the right to represent yourself, this is conditional on your maintenance of proper conduct. If you disrupt proceedings and disregard judicial directions, then the judge can find you in contempt of court, just as with anybody else who was doing that. In Illinois v Allen, 397 U.S. 337 (1970), a self-represented litigant "started to argue with the judge in a most abusive and disrespectful manner", threatened the judge's life, and made clear that he intended to filibuster the process, saying "There is going to be no proceeding. I'm going to start talking and I'm going to keep on talking all through the trial. There's not going to be no trial like this." The judge ordered him removed from the courtroom on several instances of this behavior, and also appointed professional counsel. Following a series of appeals against all this, the Supreme Court ultimately said: Although mindful that courts must indulge every reasonable presumption against the loss of constitutional rights, Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938), we explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course. be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly. | In a trial by judge (bench trial) that could certainly happen. Most substantial parts of the judicial process can be sealed, under numerous laws and theories. The U.S. FISA "Court" is notorious for operating virtually entirely in secret. Various laws allow for secret subpoenas or warrants, with the subjects on which they are served held criminally liable for violating the court's order for secrecy. In a trial by jury it would probably be impossible for an exonerating fact to be presented to the judge only, since the proper role of the jury is to decide all questions of fact in a case. Furthermore, a court can compel a witness to testify, with no requirement to mitigate the damages of such testimony. However, if the accused knew that an exculpatory fact could be provided by a witness, and that the witness might decline to give (honest) testimony to a jury, he would presumably waive his right to a jury trial, at which point the testimony could (in theory) be given only to the judge. | The Court of Appeals made Judge Sullivan the respondent. Flynn petitioned the Court of Appeals for a writ of mandamus to order the inferior court to dismiss the criminal proceedings against Flynn. Normally the adversary in the 'parent' proceedings would oppose such a petition but in this case the adversary, the Department of Justice, supported Flynn's petition. The Court of Appeals made Judge Sullivan the respondent and did not appoint an amicus curiae. That allowed Judge Sullivan to seek a review en banc of the Court of Appeals' 24 July 2020 decision. The Court of Appeals has since vacated the 24 July 2020 decision and will re-hear the petition for the writ of mandamus en banc. It has asked parties to consider whether there are "no other adequate means [than mandamus] to attain the relief" desired. Federal Rules of Appellate Procedure, Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs: The court of appeals ordinarily will be adequately informed not only by the opinions or statements made by the trial court judge contemporaneously with the entry of the challenged order but also by the arguments made on behalf of the party opposing the relief. The latter does not create an attorney-client relationship between the party's attorney and the judge whose action is challenged, nor does it give rise to any right to compensation from the judge. If the court of appeals desires to hear from the trial court judge, however, the court may invite or order the judge to respond. In some instances, especially those involving court administration or the failure of a judge to act, it may be that no one other than the judge can provide a thorough explanation of the matters at issue. Because it is ordinarily undesirable to place the trial court judge, even temporarily, in an adversarial posture with a litigant, the rule permits a court of appeals to invite an amicus curiae to provide a response to the petition. In those instances in which the respondent does not oppose issuance of the writ or does not have sufficient perspective on the issue to provide an adequate response, participation of an amicus may avoid the need for the trial judge to participate. Interesting point made at 41:00 in episode 175 of The National Security Law Podcast by Bobby Chesney and Steve Vladeck: the Court of Appeals didn't address the question of 'standing' or whether Sullivan was a proper party to make a petition. The Court announced that "Upon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate" they ordered the re-hearing of Flynn's petition en banc. | In this case the Plaintiff, James Maloney, has previously been charged with a crime for possession of nunchucks. He is apparently suing to enjoin further enforcement of the law under which he was previously charged. US Federal courts will only take up a "case or controversy", which means an issue where actual, not theoretical rights are at stake, and in order to vindicate a constitutional right, it must either have previously been violated, or there must be a plausible and immediate threat to it. Claiming that a law is unconstitutional as part of a defense to a charge of violating that law is a common and probably the best known method of challenging a law (or a government action) for unconstitutionality. But there are other ways. One way is to apply for an injunction against enforcement of the law. That is the procedure that was followed in, for example, the recent case where there was a ruling against the ADA in a district court. In order to use that procedure, the plaintiff must present evidence that there is a credible threat that the law will be invoked against him (or her) if the action which the plaintiff claims is protected by a constitutional right is taken. In short, one need not put oneself in a position where one goes to prison or is found guilty of a crime if one loses the case to challenge the constitutionality of a law or of a government policy or action. But one must establish that it is a real "case or controversy", with real parties in opposition to each other, and real rights at stake, not a mere law student's exercise, nor a collusive case, with both "sides" having the same actual goal. In the case reported, the previous criminal charge helps to establish that this is a real issue. |
Does Sunday work require a permit in Italy? One of the episodes of Top Gear (Series 18, Episode 1), where they're testing some supercars in Italy, involves them being stopped by the police officers. The characters feared speeding; turns out, they were stopped for working on a Sunday without a permit! (Only in Italy!) Is it true that you need some kind of a special permit to work on a Sunday in Italy? P.S. Prompted by the comment in Do you need to obey an obstructed traffic sign? | Art.36, Italy's constitution: Workers have the right to a remuneration commensurate to the quantity and quality of their work and in any case such as to ensure them and their families a free and dignified existence. Maximum daily working hours are established by law. Workers have the right to a weekly rest day and paid annual holidays. They cannot waive this right. Italian Civil Code: All workers have the right to rest one day a week ( art.36 of the Constitution) normally on Sunday (Sect. 2109 Civil Code ). The 24 hour weekly rest period can be shifted only for special activities, dealt with by Act 370/1934 ( article 5). Workers are entitled to a compensatory rest. Civil code and Legislative Decree No. 66 of 2003: Core of working time regulation is Legislative Decree No. 66 of 2003, implementing the European Directives 93/104/CE and 2000/34/CE, even if important principles are still contained in a few norms of the Civil Code (dated 1942), namely Article 2107, 2108 and 2019. Under Article 9 of Legislative Decree No. 66/2003 every worker is entitled, per each seven-day period (calculated as an average on a time lapse no longer than 14 days) to a minimum uninterrupted rest of 24 hours, as a rule on Sunday, plus the 11 hours’ daily rest referred to in the above mentioned Art. 7 (in other words, the two periods can’t overlap). However, many exceptions are provided in this case too. In short, while workers are entitled to (at least) a day of rest every 6 days of work, usually on Sundays, there are many exceptions to the rules, as long as at least one day of rest is guaranteed. However, you don't need a permit to work on a Sunday. (Note that municipal regulations might prevent local businesses in some cities from opening to the public on Sundays, e.g. restaurants, supermarkets, bars..) | Spain also considers a group of cyclists as a single vehicle in some circumstances. This guide from the Dirección General de Tráfico shows, at page 10, about right of way: También se tiene prioridad de paso cuando el vehículo de motor vaya a girar, a la derecha o a la izquierda, para entrar en otra vía y el ciclista esté próximo o cuando circulando en grupo el primero haya iniciado el cruce o haya entrado en una glorieta. or [The cyclist] also has right of way [with respect to a motor vehicle] when the motor vehicle is going to turn, right or left, to enter another road and the cyclist is nearby, or when cycling in a group the first has started the crossing or has entered the roundabout. I can see no other differences related to travelling in group; in particular the only references to red lights and pedestrian crossings is that cyclists must stop at them, without mentioning any difference if part of the group has already passed. | TITLE XXI Section 263:1-a 263:1-a Allowing an Improper Person. – No person shall knowingly permit a motor vehicle owned or controlled by him to be driven by a person who is not properly licensed or otherwise entitled to drive. Any person who violates this section shall be guilty of a violation, and if the license or driving privilege of the person allowed to drive is under suspension or revocation, the owner or person in control of the vehicle, notwithstanding title LXII, shall be fined not less than $100. I would also hazard that allowing someone to use your vehicle knowing they intend to commit a crime would make you an accessory but I don’t think that’s the answer they’re looking for here. | The critical consideration is that the permitted left turn must be onto a one-way roadway in that direction. One is not permitted to perform a left turn which involves crossing traffic from the left, which would also imply that it is not a one-way roadway. | First of all, cruise ships are not lawless zones. At all times, the law of their country of registration applies. In addition, if they are in sovereign waters, that country's law applies. Also, many countries impose their law on ships that depart from their ports until they dock in another country's port. And finally, international maritime law applies (IML). In many ways, ships are some of the most heavily legalised places on Earth. Actions can be brought in any court of competent jurisdiction and that court will decide which law to apply. For example, a UK ship en route from Sydney to Noumea is governed by IML, UK law and NSW/Australian law while in NSW/International waters and will also be governed by New Caledonian law when it enters New Caledonian waters. Second, cruise ships do have a brig where people can and will be confined. The normal practice when someone commits a crime (like boarding without paying) and or breaks their contract with the cruise company is that that person is confined to the brig or their cabin and put off the ship at the next port of call. If there was a crime involved, they would be handed over to local law enforcement for investigation, prosecution and possibly extradition. If not then they would just be left on the dock - they would need to find their own way home. Usually, the cruise company would hand them a bill for the cost of their confinement, food etc.; if they pursue this debt or not is a different matter. A person without valid travel documents may find themselves in trouble with local immigration as well. Finally, boarding a cruise ship at sea without the cooperation of the ship would be damn near impossible. Even small cruise ships have 10 or more decks with the places where the ship can be accessed 2 or more decks (say 6-8m) above the waterline. If the ship was stationary it might be possible to throw up a rope I guess but if it was cruising at 12 knots, forget about it. | On the first page of https://www.gov.uk/duty-free-goods/overview you find: "You can bring some goods from abroad without having to pay UK tax or ‘duty’ (customs charges), as long as they’re for your own use." And on the next page "... will use them yourself or give them away as a gift". This clearly doesn't cover anything that you bring into the UK to sell it. And a bit further on the site it says "You must tell customs (known as ‘declaring’) on arrival in the UK if you have goods: ... that you plan to sell". Since you are asking here, it is quite obvious that you intend to sell :-) You said "e.g. say this guys comes every month from Russia to France for unrelated business, each time he fills up his luggage with the maximum allowed amount of goods that comply with custom laws". If this guy sells the stuff to you, then the maximum allowed amount of goods to import without paying taxes is zero. Once he is willing to pay taxes, there is no limit. Obviously regularly importing things from Russia or France and selling in the UK at a profit means that he is running a business in the UK, which means he would have to register a business, pay corporation taxes etc. It's all a matter of degree; for small amounts nobody cares (up to some limit you don't need to register a business or pay taxes; I don't know the details). | New York has a "stop and identify" law which says that a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct. However, there is no requirement to carry an identifying document or to prove your verbal statements of identity. For that matter, there is no requirement that you have your license in your possession when driving, you simply have to be duly licensed. In this case, the officer has reasonable suspicion of a crime, so you do have to tell him your name, address, and what you were doing. In Washington, there is no stop-and-identify law, so you don't even have to tell the police who you are. There does exist a requirement to identify yourself if you are stopped for an traffic infraction: (1) Any person requested or signaled to stop by a law enforcement officer for a traffic infraction has a duty to stop. (2) Whenever any person is stopped for a traffic infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person's license, insurance identification card, and the vehicle's registration, and complete and issue a notice of traffic infraction. (3) Any person requested to identify himself or herself to a law enforcement officer pursuant to an investigation of a traffic infraction has a duty to identify himself or herself and give his or her current address. However, the proposed scenario does not fall under this requirement because you weren't stopped. Also note that the limited ID law of Washington does not compel you to provide a document, it compels you to provide information. It is a misdemeanor to drive without a valid Washington license, but it is only an infraction to drive having been issued a license but not having it in your possession, as long as you provide an alternative ID document. So if you drive without a license in WA and are stopped, you have to show an ID document or suffer the misdemeanor alternative. But again, in this scenario you were not driving and were not stopped, you will not be forced to provide a document. Because driving without a license is a misdemeanor and the officer did not observe you driving, under Washington's arrest without warrant law, he cannot arrest you for suspicion of having committed the misdemeanor of driving without a license. (The arrest without warrant law is a bit more complicated, see the 11 exception subsections, none of which apply here). If your goal is to try to be forced to show your driver's license, you might try Indiana, where the law says A person who knowingly or intentionally refuses to provide either the person's: (1) name, address, and date of birth; or (2) driver's license, if in the person's possession; to a law enforcement officer who has stopped the person for an infraction or ordinance violation commits a Class C misdemeanor. But again, you were not stopped for an infraction or ordinance violation, so you may keep your license in your wallet. | Those countries have more restrictive gambling laws than others. For discussion of some of those relevant laws, see here. For example, [In Hong Kong], "Under the Gambling Ordinance, a prize draw is considered to be a form of lottery. Lotteries include raffles & sweepstakes... In most cases, prior approval is needed for a prize draw in the form of a licence and for the majority of competitions, this will need to be in the form of a Trade Promotion Competition Licence. Selling, disposing, printing and publishing tickets without a licence are criminal offences ... punishable by fines or imprisonment. Because of Italy's strict restrictions, Unless a promotion falls under one of exceptions provided by the DPR, it is not possible to run multi-jurisdictional promotions, they need to be addressed only to people located in Italy and any activity, including the server, used for the promotion must be located in Italy. |
Can a foreigner from non-EU country rent out his/her apartment in Germany? I travel a lot to Germany as a tourist. I was thinking of buying an apartment there. Germany laws do allow you to buy property even on tourist visa. But I was wondering if I could rent that property out as a tourist should I choose to buy one. I did a lot of research but am not able to find a definitive answer to this. Since tourist visa prohibit you from deriving monetary gain as described on some websites while other claim one cannot get a job on it very interchangeably; which are not necessarily written by lawyers. Which I find very confusing since on the one hand you can buy and sell property so would renting that be considered different? The reason why I ask this question is because renting does not appear to be "gainful employment", so I guess my question is, does being on a tourist Visa in Germany, one cannot be "gainfully employed" or "derive monetary benefit"? Thanks for any light you can shed on this | A non-E.U. person may own real property in Germany and may rent it. Earning rental income from an isolated piece of investment property is not considered being "gainfully employed" for purposes of a tourist visa. This is basically because the tourist visa and your presence in Germany are not what is facilitating your German rental property income. From an immigration perspective, earning rental income from rental property that you own in Germany is only modestly different from owning a few hundred thousand Euros worth of VW or BMW stock and earning income from that. One could imagine a situation where your need to actively manage a large portfolio of rental properties in Germany on an hands on basis physically in Germany, if you did this, rather than hiring an E.U. based property management firm to take care of this for you, this might violate your visa. But, if it did, in all likelihood, once you had that large of a real estate portfolio in Germany, it would be possible to arrange some sort of investor or employment based visa beyond your simple tourist visa to make it possible for you to do so. | Residency under Texas law is determined by various individual laws for different purposes: probate (in case you die), divorce, in-state tuition, voting, fishing licenses. Your question is in the realm of landlord-tenant law, which does apply to one or more rooms uses as a permanent residence, but there is no requirement that the tenant be a "resident" in any legal sense. So that law is applicable no matter when you arrived in Texas. | Get a lawyer. That employer is skating on very, very thin ice. You can’t have a non-compete agreement in Germany at all without the employer paying reasonable compensation. What is reasonable is decided by courts, but half your last regular salary is not “reasonable”. Especially if this would endanger your status of being allowed to work in Germany. If you were a non-German EU citizen, any non-compete agreement would be immediately invalid because it violates the right of free movement; how nonEU citizens are affected, I don’t know. The rest of the agreement seems quite illegal to me. I would think that any good employment lawyer would love to take your case. | This hinges on what you mean by "spy". Generally, a landlord cannot enter a leased or rented property* without the tenant's consent, nor can their agents. (They can arrive and ask to enter, as can your neighbors whether or not you own your home, but you are not required to acquiesce in either case). A landlord can view the publicly viewable portions of the property at their leisure, as can their agents, or any member of the public for that matter. A landlord could possibly be notified of a tenant's actions in a number of ways: such as viewing the public portions of the property, being notified (or billed) by utilities or public agencies, or receiving complaints from the neighbors. A neighbor has no more, and no less, legal ability to spy on you if you owned your home vs if you rent your home. So, they would have no more right to, say, spy at your house with a telescope than if you owned the property yourself, but no less right to complain if you have a loud (or audible) party or a large number of guests; the only difference being they can complain to someone who could potentially do much more than they could if you owned the property yourself. Thus, the answer to your question depends on what is meant by "spying". *This assumes that this is a separate property; a landlord who rents out a room in their own home often has far greater rights. | germany In Germany, taking pictures - and publishing them - is legal, if they're taken from public areas, from the general perspective of a passer-by, and if the picture doesn't make individual persons recognizable. (There are some restrictions about making persons recognizable; if you take a picture of a monument or other building that would typically be photographed by tourists, and if the topic of the picture is clearly the monument, not a random bystander, then it's OK to publish even if the bystander's face is visible. But that doesn't work for individual's houses). Still, Street View got into trouble because their cameras are mounted on roofs of a car, in a height of 2.5-3 meters, so they violated the "perspective of a passer-by" rule. To return to the example of "bathroom", the camera could well be able to see you nude when a passer-by would only be able to see a small portion of the ceiling next to the window. Because of this, and because many Germans were uneasy with seeing their houses on the internet, as a condition to permit Street View at all, the German government insisted on allowing people to request their house to be removed; in 2010, approximately 250000 people made use of that (source: https://www.bbc.com/news/technology-11595495). Because of the high resistance against Street View in Germany, Google published what they had in 2011, but stopped collecting more images. This is explained in https://bigthink.com/strange-maps/germany-street-view/, which also explains some of the reasons why Germans are so heavily biased for privacy. | The law only addresses possible legal consequences, from which you could surmise what actually happens. If a person stops paying rent, the landlord institutes eviction proceedings, and may sue for the remainder of the rent for the term of the lease: they have an obligation to try to find a replacement tenant, to mitigate the damage. Some relief is available to the landlord in the deposit, from which the unpaid rent might be deducted, but let's assume that after that, the actual damage suffered is $5,000. When you sue a person in your home state, the court serves official notice that the defendant must appear to answer the charges, and the state has jurisdiction over the respondent because they are in that state. Giving notice and collecting on a judgment across jurisdictions can get complicated and expensive, so it would depend on what kind of treaties exist between the countries. There is the Hague Service Convention which may simplify the business of giving notice to parties, which works if the respondent fled to Norway or India but not if they fled to Somalia or Turkmenistan. Since it turns out the US is not party to any multinational treaty recognizing foreign judgments, that country is not obligated to care about a US judgment, so unless the person left assets in the US, you may not be able to collect. You could sue in the person's country (hire a local attorney to pursue the matter). The main legal question would be whether there is any conflict between the lease and local law: while the basic idea of a lease is universally recognized, there may be peculiar conditions or procedures applicable in that country. (Norway has some laws pertaining to "shared utilities" which don't exist in the US, which might put a US lease at odds with Norwegian law, and there are rent-raising rules that don't exist here). It might be necessary that you appear in court in that country to swear under oath that the lease was agreed to voluntarily, or the court may require a special form of 'notarization' not available in the US. None of that renders international litigation impossible, though a favorable judgment might be unlikely in some courts. The cost of litigation might be much higher than what would be awarded by a court. | First review the existing contract for anything that specifies what happens at the end of the term. I have seen ones that switch to month to month, others automatically extend by a whole year. In the United states the rental law is done at the state level or even more local than that. So I took a look at the UK policies. I focused on England. Guidance How to rent: the checklist for renting in England Updated 24 March 2023 At the end of the fixed period If you want to stay If you want to extend your tenancy after any initial fixed period, there are a number of important issues to consider. Check Shelter’s website for advice. Do you want to sign up to a new fixed term? If not, you will be on a ‘rolling periodic tenancy’. This means you carry on as before but with no fixed term. Your tenancy agreement should say how much notice you must give the landlord if you want to leave the property – one month’s notice is typical. Shelter publishes advice on how you can end your tenancy. I then went to the shelter website How to end a periodic tenancy: How much notice You can give your landlord a legal notice called a 'notice to quit' to end a rolling tenancy. This is a more formal option. Your tenancy will end legally if you follow the rules on how much notice and where to send it. A legal notice must: be in writing give the right amount of notice end on the correct day Here is an example of a notice to quit. A legal notice ends your tenancy and your right to live in your home. Joint tenancies will end for all tenants even if only one of you gives notice. You cannot withdraw a valid notice if you change your mind. Your landlord may agree to let you or other joint tenants stay on after a notice ends. Minimum notice periods You need to give at least: 1 month if your rent is due monthly 4 weeks if your rent is due weekly You can usually give the minimum notice to end your tenancy if your most recent agreement does not mention a longer notice period or if you've never had a written agreement. You may still need to give more than the minimum notice to make sure it ends on the right day. If your agreement says you must give more notice Your agreement might have a 'notice clause'. For example, if it says you have to give 2 months' notice. A notice clause might not apply after your fixed term has ended but sometimes it will. When will the longer notice apply? The longer notice period will only apply if either: you never had a fixed term agreement your agreement says it continues as a contractual periodic tenancy after the fixed term You can ignore a notice clause in your most recent agreement if both: your fixed term has ended your agreement does not say that it continues as a contractual periodic tenancy It looks like the notice period is a month, unless the contract says that the notice period is longer during the periodic tenancy. | As these are "on the road" restrictions, I assume they fall within Nottingham City Council's Parking Permit scheme which states: Anyone who can prove they are a resident within a scheme area and are in an eligible property can apply for a Residents Permit. ... The maximum allocation of permits per household is 3 and this is made up of any combination of residents or visitors permits. ... Vehicle specific Resident Permits require: A copy of the Motor Insurance Certificate (not required for visitor permits) Residents living in a flat (i.e. a house converted into separate properties) will also be required to provide a water rates bill. So, in answer to "Can tradespeople park in a "permit holders only" residential area?": Yes, the solution is to have one or two visitors permits ready for use by tradespeople so they can park nearby (and not forgetting to get them back once the work is done as they cost £25 to replace). Edit to add the following: Nottingham also run a Business Parking Permit scheme, and one would assume that Nottingham-based tradespeople would be aware of this and apply for their own permits. Also, following @richardb's comment observing that the landlord may not be resident in the scheme's area so they won't be eligible for a Residents Permit, and assuming that the buy-to-let is run as a business (most are) then the Business Permit should be a viable option if they pay the fees and provide the following: A copy of recent business rates or utility bill dated within the last 3 months containing the business name and address printed on them Vehicle specific permits will also require a copy of the motor insurance certificate |
Legal Definition of "Great Britain" Great Britain is the geographical name of the largest island in the British Isles (sometimes inclusive of the smaller islands on its insular shelf) but the name has, at least in the past, also been used as the name for a political entity or entities. The 1707 Act of Union created a new kingdom by combining the previous Kingdom of England with the previous Kingdom of Scotland and naming that new political entity the Kingdom of Great Britain. However in 1801 a further Act of Union created a new kingdom by combining the previous Kingdom of Great Britain with the previous Kingdom of Ireland, so that the territory of the new kingdom was no longer co-terminous with the island of Great Britain as it previously had been (if you include the smaller islands on the insular shelf). The phrase Great Britain (without being prefixed with the word Kingdom) is of course used today to refer to the British Islands as a whole - as in Team GB - but there is some discussion about how correct it is to use Great Britain in this way. What is correct usage in the English language is not primarily or only a legal question but if a word has a specific defined legal meaning that can be part of the argument as to what general usage is correct/desirable. So that is the context but my question is the narrow legal question: Does the phrase Great Britain have a precise legal meaning over and above its purely geographical meaning - for example is it defined in any statute in any of the six legal jurisdictions of the British Islands? Note: Official publications often use loose language. For example the Ordnance Survey blog states: Great Britain is the official collective name of of England, Scotland and Wales and their associated islands. which is ambiguous but at first sight looks as if might be talking about a definition of Great Britain as a political term but elsewhere the OS are quoted as saying that: Great Britain is the official collective name for the landmass encompassing England, Scotland and Wales and their associated islands. making clear that it is the geographical Great Britain which is being referred to. And dictionary definitions vary but my question is specifically about any statutory legal definition. | 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. | Jurisdiction: england-and-walesnorthern-ireland The relevant legislation here is the Financial Services and Markets Act 2000 together with subordinate legislation passed under that Act. Financial Services and Markets Act 2000: Section 19: (1) No person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is - (a) an authorised person; or (b) an exempt person. Section 22: (1) An activity is a regulated activity for the purposes of this Act if it is an activity of a specified kind which is carried on by way of business and - (a) relates to an investment of a specified kind; or (b) in the case of an activity of a kind which is also specified for the purposes of this paragraph, is carried on in relation to property of any kind. (5) “Specified” means specified in an order made by the Treasury. Financial Services and Markets Act 2000 (Regulated Activities) Order 2001: Article 4: The following provisions of this Part specify kinds of activity for the purposes of section 22(1) of the Act (and accordingly any activity of one of those kinds, which is carried on by way of business, and relates to an investment of a kind specified by any provision of Part III and applicable to that activity, is a regulated activity for the purposes of the Act. Article 61: (1) Entering into a regulated mortgage contract as lender is a specified kind of activity. (3) In this Chapter — (a) subject to paragraph (5), a contract is a “regulated mortgage contract” if, at the time it is entered into, the following conditions are met — (i) the contract is one under which a person (“the lender”) provides credit to an individual or to trustees (“the borrower”); (ii) the contract provides for the obligation of the borrower to repay to be secured by a mortgage on land; (iii) at least 40% of that land is used, or is intended to be used — (aa) in the case of credit provided to an individual, as or in connection with a dwelling; or (bb) in the case of credit provided to a trustee which is not an individual, as or in connection with a dwelling by an individual who is a beneficiary of the trust, or by a related person; but such a contract is not a regulated mortgage contract if it falls within article 61A(1) or (2). Article 73: The following kinds of investment are specified for the purposes of section 22 of the Act. Article 88: Rights under a regulated mortgage contract. So, if you are providing the mortgage to someone who will live at the property and are doing so by way of business (likely unless this is an arrangement with a friend or relative) then you will need to be FCA authorised unless there is an applicable exemption. See Chapter XV of Part II of the Regulated Activities Order and Section 38 FSMA and the Financial Services and Markets Act 2000 (Exemption) Order 2001 for examples of exemptions. A full analysis of financial services regulation would be too dense to fit into a Stack Exchange post and you should seek specialised legal advice before considering entering into any kind of mortgage as a lender. "is it even possible to do this once without a company that does this as a general product?" It doesn't matter whether you are a company or whether you do it once or regularly. However, due to the costs and practicalities of obtaining FCA authorisation (where applicable) and ensuring that contracts and land registry charges are correctly drawn up (given the high stakes), you are unlikely to see many one-off or "amateur" mortgages in the real world. | In the example given, both elements must be established. This is the most common meaning of the word "and" in a statute or rule or contract or other writing, but there are times when "and" does not have that meaning. One must always determine the meaning from context on a case by case basis. Words do not have a single universal meaning in all contexts for legal purposes. This variation by context in the meaning of words for legal purposes is especially frequent in countries with common law legal systems based upon the English legal system such as the U.S., Canada, New Zealand, Australia, and India to have situations where a word often means one thing in one legal context and another thing in different legal contexts. This is because the governing statutes and case law are written on a piecemeal basis by many different people with no one in charge of maintaining stylistic uniformity, over a very long period of time (often centuries). In countries like those of Continental Europe, Latin America and much of Asia and Africa, which have what are called "civil law" systems, that are based on European civil codes, there are comprehensive codifications of the basic laws of the land that are drafted by experts all at the same time, and amended only with great deliberation and care, and these codes tend to use a word more consistently in most contexts than common law legislatures and judges do, although even then, this principle is not absolute. | 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. | Yes More exactly, nations will not regard places outside of their physical limits as outside of their jurisdictions. Overview Traditionally, a nation has regarded any ship flying its flag as under its jurisdiction, and a place where it may enforce its laws. More recently, many nations will undertake to enforce laws in cases where their citizens are the victims, or in some cases the perpetrators of crimes even within other nations, and more freely on the high seas outside the physical limits or territorial waters of any country. Historically, all nations undertook to enforce laws against piracy wherever they might be committed. Several countries, including the UK and the US, now treat the UN Law of the Sea convention as part of their national law, which defines as piracy: "illegal acts of violence or detention ... against persons or property on board such ship or aircraft" This would include the situation described in the question. Therefore such actions could and quite likely would be prosecuted by any of several countries, depending on the registry of the vessel and the nationalities of those involved. Sources 18 U.S. Code § 7 provides that: The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. ... (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States. (8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States. This US DOJ page says: Among the offenses within the special maritime and territorial jurisdiction of the United States are the crimes of murder, manslaughter, maiming, kidnapping, rape, assault, and robbery. Pursuant to 18 U.S.C. § 7(1) there is also jurisdiction over such offenses when they are committed on the high seas or any other waters within the admiralty and maritime jurisdiction of the United States that is out of the jurisdiction of any particular state. See JM 9-20.000 et seq. The page "Maritime Offenses" from the law offices of Trombley and Hanes says: The Federal government also exercises jurisdiction over certain maritime offenses. There is Federal jurisdiction for offenses committed on American vessels in the territorial waters, harbors and inland waterways of foreign nations. See United States v. Flores, 289 U.S. 137 (1933). ... A number of Title 18 sections specifically declare certain conduct to be a Federal crime if committed “within the special maritime and territorial jurisdiction of the United States.” See, e.g., murder, 18 U.S.C. § 1111. In some instances, the Assimilative Crimes Act, 18 U.S.C. § 13, is also applicable. See also, 15 U.S.C. § 1175; 15 U.S.C. § 1243; 16 U.S.C. § 3372. 18 U.S. Code § 1111 (b) provides that: (b) Within the special maritime and territorial jurisdiction of the United States, Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. The Britannica Article on "Piracy" says: Because piracy has been regarded as an offense against the law of nations, the public vessels of any state have been permitted to seize a pirate ship, to bring it into port, to try the crew (regardless of their nationality or domicile), and, if they are found guilty, to punish them and to confiscate the ship. The UN page on Piracy says: The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the framework for the repression of piracy under international law, in particular in its articles 100 to 107 and 110. The Security Council has repeatedly reaffirmed “that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (‘The Convention’), sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities” (Security Council resolution 1897 (2009), adopted on 30 November 2009). Article 100 of UNCLOS provides that “[a]ll States shall cooperate 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.” The General Assembly has also repeatedly encouraged States to cooperate to address piracy and armed robbery at sea in its resolutions on oceans and the law of the sea. For example, in its resolution 64/71 of 4 December 2009, the General Assembly recognized “the crucial role of international cooperation at the global, regional, subregional and bilateral levels in combating, in accordance with international law, threats to maritime security, including piracy”. The UK Piracy Act of 1837 defined as a crime: Whosoever, with intent to commit or at the time of or immediately before or immediately after committing the crime of piracy in respect of any ship or vessel, shall assault, with intent to murder, any person being on board of or belonging to such ship or vessel, or shall stab, cut, or wound any such person, or unlawfully do any act by which the life of such person may be endangered, shall be guilty of felony... The more modern UK law, the Merchant Shipping and Maritime Security Act of 1997 embodies the UN law of the Sea convention, including its article 101, which says: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed— (a) (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (a) (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; | Parliament derives its power from Britain's unwritten constitution, not from delegated royal prerogative. This certainly dates to at latest the Glorious Revolution. The Bill of Rights 1688 explicitly confirmed that the King has no power to dispense with laws, and the Case of Proclamations in 1610 established that the King could not legislate without the consent of Parliament. The ultimate authority in the UK is not the Queen, it's the Queen in Parliament (in other words, Parliamentary action with royal assent). | england-and-wales Yes, double jeopardy applies The common law pleas of autrefois acquit and autrefois convict apply equally to foreign offences; this is black letter law in Halsbury's Laws of England. Scotland is "foreign" for these purposes. There is no analogue to the odd US dual sovereignty doctrine. The general exception to double jeopardy regarding the re-trial of serious offences under Part 10 of the Criminal Justice Act 2003 does not apply here, because of an odd anomaly created by the statute due to criminal justice being devolved to the Scottish Parliament. As a result, according to the Crown Prosecution Service: There are no provisions dealing with qualifying offences [for retrial after acquittal] in Scotland as criminal justice is a matter for the Scottish Parliament. At present, the law in Scotland has not been changed so that these provisions do not apply to acquittals that take place in Scotland. | This is sense A. 1b of ‘special’ in the Oxford English Dictionary: Designating a thing: specific, individual or particular to the specified person, thing or set. Now rare (in later use tending to merge with or be understood as sense A. 4a). Special damages are those that can be specified by reference to particular expenses. They are not exceptional or unusual. As noted in the OED, ‘special’ is rarely used in this sense today; modern English users would be more likely to say ‘specific.’ However, the special/general distinction is still used in terms like ‘special/general counsel’ and ‘special/general relativity.’ |
Is it legal to assign future judgment payments to supporters? Is it legal to involve supporters by promising them payments from legal judgements or sanctions resulting from a law suit? | No, One cannot lawfully do this in Ohio Historic Common Law In English common law, granting a share of a future legal judgement was prohibited as Champerty According to the Wikipedia article just linked: Champerty (from Old French champart) is the financial support, by a party not naturally concerned in the suit, of a plaintiff that allows them to prosecute a lawsuit on condition that, if it be brought to a successful issue, the plaintiff will repay them with a share of the proceed from the suit.{"Oxford English Dictionary". www.oed.com. Oxford University Press. Retrieved 14 January 2021.} In Giles v Thompson{ UKHL 2, [1993] 3 All ER 321 (26 May 1993)} Lord Justice Steyn declared: "In modern idiom maintenance is the support of litigation by a stranger without just cause. Champerty is an aggravated form of maintenance. The distinguishing feature of champerty is the support of litigation by a stranger in return for a share of the proceeds." At common law, maintenance and champerty were both crimes and torts, as was barratry (the bringing of vexatious litigation). This is generally no longer so1 as, during the nineteenth century, the development of legal ethics tended to obviate the risks to the public, particularly after the scandal of the Swynfen will case (1856–1864).2 However, the principles are relevant to modern contingent fee agreements between a lawyer and a client and to the assignment by a plaintiff of his rights in a lawsuit to someone with no connection to the case. Champertous contracts can still, depending on jurisdiction, be void for public policy or attract liability for costs. In any common-law jurisdiction that inherited the common law of England (which includes all US states other than Louisiana) champerty will remain unlawful unless a) a specific stature has removed or altered this part of the common law, b) a general statute has done away with the common law entirely, replacing it with statutory law generally (in which case a similar prohibition may or may not be in statute), or c) an appellate court has declared that champerty is no longer unlawful in that jurisdiction. Ohio In Ohio a case precisely on point was Rancman v. Interim Settlement Funding Corp., 99 Ohio St.3d 121, 2003-Ohio-2721.. In that case a Ms. Rancman, who had a valid claim against an insurance company, did not wish to wait for the resolution of her case, and contracted with Interim Settlement Funding Corp. for an advance against the settlement of $6,000, in return for a promise of an amount ranging from $16,800 to $27,600, depending on how soon the case was resolved. If she lost the case, she would owe nothing according to the terms of the contract. When her insurance case settled for $100,000, she refused to pay as specified in the contract, instead offering to return the money advanced plus interest at eight percent per year. The lower courts upheld the eight percent rate as valid, The Ohio Supreme Court, however, held (at ¶19}) that: The advances made to Rancman constituted champerty and maintenance. Consequently, the contracts requiring their repayment are void and shall not be enforced. Apparently this left Interim Funding not even getting their principal back. Given this relatively recent holding (2003), one doubts that funding companies would be willing to advance money on future Ohio claims. In the Rancman opinion Justice O’Connor wrote: {¶9} It is unnecessary for the resolution of this case to determine the threshold level of risk necessary for a contingent advance to be treated as an investment rather than a loan. The advances here are void as champerty and maintenance regardless of whether they are loans or investments. {Emphasis added} {¶10} “Maintenance” is assistance to a litigant in pursuing or defending a lawsuit provided by someone who does not have a bona fide interest in the case. “Champerty” is a form of maintenance in which a nonparty undertakes to further another’s interest in a suit in exchange for a part of the litigated matter if a favorable result ensues. 14 Ohio Jurisprudence 3d (1995), Champerty and Maintenance, Section 1. The doctrines of champerty and maintenance were developed at common law to prevent officious intermeddlers from stirring up strife and contention by vexatious and speculative litigation which would disturb the peace of society, lead to corrupt practices, and prevent the remedial process of the law.” 14 Corpus Juris Secondum (1991), Champerty and Maintenance, Section 3. See, also, Bluebird Partners, L.P. v. First Fid. Bank, N.A. (2000), 94 N.Y.2d 726, 709 N.Y.S.2d 865, 731 N.E.2d 581. {¶11} The ancient practices of champerty and maintenance have been vilified in Ohio since the early years of our statehood. Key v. Vattier (1823), 1 Ohio 132, 136, 1823 WL 8. We stated in Key that maintenance “is an offense against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression.” Id. at 143. We have held the assignment of rights to a lawsuit to be void as champerty. Brown v. Ginn (1902), 66 Ohio St. 316, 64 N.E. 123, paragraph two of the syllabus. We have also said that the law of Ohio will tolerate no lien in or out of the [legal] profession, as a general rule, which will prevent litigants from compromising, or settling their controversies, or which, in its tendencies, encourages, promotes, or extends litigation. (Davy v. Fid. & Cas. Ins. Co. (1908), 78 Ohio St. 256, 268-269, 85 N.E. 504.) {¶12} In recent years, champerty and maintenance have lain dormant in Ohio courts. Historically, champertors and maintainors were attorneys, and these practices by attorneys have been regulated by DR 5-103 of the Code of Professional Responsibility. See, e.g., Disciplinary Counsel v. Williams (1990), 51 Ohio St.3d 36, 553 N.E.2d 1082. Nonetheless, the codification of these doctrines for attorney discipline did not remove them from the common law. “[T]he doctrines of champerty and maintenance appear in numerous Ohio cases as contract defenses * * *.” Tosi v. Jones (1996), 115 Ohio App.3d 396, 400, 685 N.E.2d 580, appeal dismissed upon the application of appellant in (1997), 78 Ohio St.3d 1430, 676 N.E.2d 535. ... {¶18} ...[A] lawsuit is not an investment vehicle. Speculating in lawsuits is prohibited by Ohio law. An intermeddler is not permitted to gorge upon the fruits of litigation Ohio Conclusion To be clear, noting that I found in Ohio law makes such an agreement a crime, even though it was on under ancient common law. In the Rancman case, it seems that no one was criminally prosecuted. Such an agreement is not legal in Ohio only in the sense that the court will not enforce it. Thus no funding company who checks the law would, I expect, enter into such an agreement and risk the same fate as Interim Settlement, not even getting the money advanced back when the suit had been won by the plaintiff. Nor is this case obscure -- a simple google search found it via the Wikipedia article, and other simple searches probably would also. Notes Abolished by Part II of the [UK] Criminal Law Act 1967, except as regards embracery, abolished by section 17 of the Bribery Act 2010. Pue, W. W. (1990). "Moral panic at the English Bar: Paternal vs. commercial ideologies of legal practice in the 1860s". Law and Social Inquiry. 15 (1): 49–118. doi:10.1111/j.1747-4469.1990.tb00275.x | 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. | 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. | Counter notices are described in 17 USC 512(g)(3). It starts with the requirement for "A physical or electronic signature of the subscriber" (and a statement under penalty of perjury...). Supposing that you can't get anywhere with finding the contributor even via a subpoena, then you're stopped there: you can't swear on behalf of someone else. Paragraph (f) also says that if a person files a false infringement claim, they become liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it but it's not immediately obvious that you would suffer damage by taking the material down (not immediately obvious doesn't mean obviously not true). A case could be made, but it's risky. In Online Policy Group v. Diebold, Diebold was hit with substantial damages basically for having made up a theory that certain email discussion was infringing when it was clearly fair use. If a person actually lies about being the copyright owner, that would probably be viewed even more dimly by the courts. Your 4th argument gives you no traction: if an infringer posts infringing material and transfers copyright on the web page, but they don't hold copyright, then that transfer mean nothing. As for the other arguments, your attorney will have to suggest an advisable course of action. S/he might advise that your evidence is so strong that you should just ignore the takedown; or that you should take the content down and then sue for damages; or take the content down and lobby your congressman for a change in the law. [Addendum] I will reiterate my recommendation to get a lawyer. I believe that under the law, the risk to you would be the situation where the person prevails in an infringement suit against you. Outside of the "mere conduit" safe harbor, you have to participate in the notice and takedown scheme in order to "stay safe" (also you have to do so quickly). You have identified a potentially huge flaw in the system. Theoretically, criminal charges of perjury and paragraph (f) damages would be enough to deter ordinary wrong-doers, provided that you can really prove that someone else is the copyright holder. But the cost of litigation is not zero and the chances of winning are not 100%. The law does assume that all parties tell the truth, indeed the law requires a "penalty of perjury" statement. Since counter-notice is also part of the legal dance, I would conclude that you do have to write yourself a counter-notice. Then if there is a suit, you have satisfied the requirements of the law. | If you had an agreement that amounts to a contract, it is binding even if it was informal. However, if your agreement was not in writing, it might be hard to prove. You can easily prove that you transferred money to the other party. But can you prove that it was a loan an not a gift? And even if it is agreed to be a loan, if no repayment time was specified, what says that the debt is due now? Was the agreement really for a loan repayable on demand? The court would have to determine what your real contract was, or what contract can be implied from the actions of the parties. Also, if you are in a common-law jurisdiction, there could be a question of what consideration there was for the loan. Without consideration, there is no valid contract in such a jurisdiction. Perhaps a promise to repay could be treated as sufficient consideration. Small-claims courts do deal with unclear verbal contracts on a regular basis, but the outcome will depend on the facts of the case, and on the details of local law. It might be wise to consult a local lawyer with small-claims experience. A single consultation should not be too expensive. In response to comment If the "written binding agreements" include a statement from the other person that this is a loan, and a promise to repay it, you are in a stronger position than I had thought from the original question. The question for the court would be, since there was no due date agreed, what is a reasonable date to impose. The court might treat it as a loan repayable on demand, or specify some particular date for repayment. | Yes. This type of contract is called a license. Lawyers write them. | You didn't bother to state who this appeal is with or even where you are but I'm almost certain I know the answer. Just once. If the appeal is denied, you may be able to appeal to a higher body such as a higher court or an ombudsman. However, any group or court allowing the same appeal ad infinitum until you get what you want would be farcical. | It's not legal The terms that you agree when you enter a contract can only be changed if: the contract provides for variation of its terms and then, only in accordance with that procedure. This may allow unilateral changes - these are common in ongoing relationships like telephone and ISP contracts but it appears from the Kickstarter page that this was not the case here. the parties agree to vary the contract either by deed or by another contract. If by deed then the law of making deeds must be followed, if by contract then the laws of contract must be followed. You mention "around $70AUD" which leads me to guess that you are in Australia. If you were there when you entered the contract then the Australian Consumer Law will apply to the transaction and, more generally, to William Painter since they explicitly "do business in" Australia because they ship there. It is illegal to make misleading and deceptive claims under the ACL and the fines can be huge. Perhaps a note pointing this out to them and letting them know that if they waive their fees in you case(s), you wont feel the need to report them to the ACCC. |
Can the police seize your phone without a warrant UK? This question relates to the seizure of a mobile phone (cell phone) in the United Kingdom, focusing on England and Wales which has a different system to Scotland. If the police arrest someone over a rape allegation, I understand that the police take the suspect's phone as it might contain evidence. Would the police require a warrant to seize the phone, in particular if the phone is not on the suspect at the time of the arrest (say the police arrest the suspect in their home) but in another room on the shelf? I would be curious to know if being outside at the time, or if the offence were something different, changed anything in regards to the police being able to make a seizure of a phone. | Can the police seize your phone without a warrant UK? YES An arrest on suspicion of rape (an indictable offence) triggers two powers under the Police and Criminal Evidence Act 1984 (PACE) to search premises for evidence without a warrant. Which power depends on where the arrest was made: s.32(2)(b) PACE: if the offence for which he has been arrested is an indictable offence, to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence. Note that s.32(2)(b) does not have the power of seizure attached, but the officer can use the "General Power of Seizures" at s.19 PACE s.18 PACE: (1) ... a constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence... (2) A constable may seize and retain anything for which he may search under subsection (1) above. IF... the phone is not on the suspect at the time of the arrest (say the police arrest the suspect in their home) but in another room on the shelf - either s.32(2)(b) or s.18 would apply IF... being outside at the time - s.32(2)(b) possibly if he had just left, s.18 otherwise. | Does said police department have any obligation to ID, investigate and detain / arrest the false caller? No. See Castle Rock v. Gonzales, 545 US 748 (2005). Usually, police do investigate, but that is a matter of department policy and political expectations, not a legal obligation to do so. | If you read the first link, every offense can lead to arrest without a warrant. Notwithstanding, you don’t have to be arrested to be charged and vice -versa. | In England and Wales, in general it is legal to make a recording in one's own home without the knowledge or consent of the other participants. In general the law with regard to recordings is more strict in non-domestic contexts than it is in domestic contexts. For example, a business must "make all reasonable efforts" to inform a caller that their telephone call may be recorded. A business has obligations under data protection law that the householder does not have. Depending on the circumstances the homeowner might commit a civil tort (breach of confidence) or criminal offence if he discloses or publishes the recording made without the consent of the other participants. E.g. submitting it as evidence to court is OK, sharing it with friends or publishing it on the internet is likely not OK. In the specific context of the homeowner making a recording of a sexual act with another person and the other person has not consented to the making of the recording: if the homeowner shares the recording they might be investigated/prosecuted for the criminal offence of voyeurism (s67(3) Sexual Offences Act 2003) in R. v Richards the Court of Appeal ruled that the making of the recording for one's own sexual gratification amounts to the criminal offence of voyeurism (s67(3) Sexual Offences Act 2003) | Ultimately yes, this can and does happen, but there are a few steps necessary before the bailiffs come to your door. In times gone by, the common law recognized a right to "distrain for rent", meaning that a landlord could come round to the tenant and seize some property as security (up to the value of the rent owed). If the rent is not then paid within a certain time, the goods could be sold. Various additional provisions of law covered the circumstances around forcing entry, breaking open locked cupboards, and searching off the premises for goods which the tenant had concealed. There were also special-case rules about what could be seized, such as a statute of the seventeenth century saying (among other things) that landlords could not harvest growing crops, but could take already-cut sheaves. Subsequent reforms for the protection of tenants have made it so that landlords cannot do this at their whim. They first have to go to the County Court for a judgement that there is an unpaid debt. (In fact, this and subsequent steps can happen with any debt.) On that basis, they can apply for a "warrant of control", under which an "enforcement officer", commonly called a bailiff, will take charge of collecting the money owed. There are quite a few steps and rules here, but the basic position is the same in terms of being able to take your stuff. And it is not the landlord walking around making those decisions, but a court-appointed officer. The previous common-law "distress" process is now totally abolished, for most tenants by the Housing Act 1988, and for everybody in 2014, because of the Tribunals, Courts and Enforcement Act 2007 section 71, which simply states The common law right to distrain for arrears of rent is abolished. Commercial property has its own legal regime since that Act, but previously functioned in the same way. So landlords can no longer seize your property on their own, but they can go through a few hoops and ask a court to do it. They also do not get to keep the specific property, but just get the money. As mentioned above, this is the general avenue for what happens when a court orders you to pay money, and you don't do it. The High Court has its own enforcement officers who are able to deal with larger amounts of money, as well as enforcing evictions. In Scotland, the same basic pattern applies but different words are used, and some of the detailed rules are different. "Attachment" is when a sheriff officer (= a bailiff) comes round to value your possessions and auction them off if you don't pay. There is also "arrestment" which is taking money out of your bank account. | This very much depends on where you are. Different jurisdictions have wildly different laws about this. Some places are very permissive. You can record a conversation that you aren't even a party to so long as nobody has any reasonable expectation of privacy. In others, affirmative consent is required from every party to a conversation before it's legal to record it. The laws run the entire spectrum. Some places allow you to record anything you're a party to without permission, but you can't record others' conversations. Some places require you to disclose, but not obtain explicit permission. Some allow you to record but restrict who you can disclose it to. Some allow you to record or ban recording only under certain circumstances. It's a really wide gamut of laws. Since you don't say where you are, who you're recording, or why, there's no way to really answer the question. Here's a good rundown on the United States. This Wikipedia article covers lots of different countries, but only with regard to phone calls. | 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. | 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). |
What stops states from creating money out of thin air? When a private bank creates money, it obeys reserve accounting, and can't create more. But when I get paid from the state of California, it comes from their treasury account, it isn't a private bank that has a regulation or anything. What stops California from creating infinite free money from its state accounts? It's not like they open a Chase account and are limited by their balance. | It depends in part on what you mean by "money". US $100 bills are a prime example of "money". Art 1 §10 Cl. 1 of the US Constitution says No State shall ...coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts... Under the constitution, only the federal government can "print money" in the "universally usable" sense. Anyone can print or otherwise "emit" objects with economic value, and such objects can be voluntarily accepted in trade. State and local governments can incur debts and thus spend money now that they do not yet have, as long as there is no legal limit on a government's ability to go into debt. California could issue IOU-bucks with the intent that a holder could redeem them as real federal money or as gold or silver at some point. This limits the ability of a state treasury to print money, since in principle and practice it is redeemable in gold or silver. Each state has some set of laws and constitutional provisions that prevent writing rubber checks ad infinitum, for example only allowing debt for large capital projects (building) and requiring voter approval; requiring expenditures to not exceed projected revenues; granting emergency debt-mitigation powers (e.g. hiring freezes) to the governor when a state does go into unauthorized debt. In California, Art IV §12 of the state constitution requires a balanced budget, meaning that the state cannot create infinite obligations without infinite revenues. From the legal perspective, private banks do not create money, although non-legally, people may talk about what banks do as "creating money". At that point in the discussion, we will have left law and moved to the realm of economic theory. | Both of your question are creatures of contract. Their disclosures when you set up the account (or potentially amended disclosures or terms they've mailed to you subsequently) control both of these questions. They don't have to share the results of their internal investigation against you (they do have to give you proof that the deposit/transfer was fraudulent), but that does not give you access to their internal investigative process or its findings. They cannot shut down your account based on protected reasons (race, class, gender, religion, etc.), but the can certainly close an account pursuant to their operating procedures, their rules, terms and conditions or disclosures - all of which you agreed to (implicitly or explicitly) when opening the account. There is likely nothing you can do about either of these issues, unless the contract you formed with them by opening the account gives you that right, which would appear in their terms of service, disclosures, etc., and these almost always protect their right to do most anything when it comes to protecting the overall best interest of the corporate entity. | Are there any restrictions on the taxes or duties a U.S. state can levy? Yes. For starters, states may not use taxes or other means to impede the federal government in its constitutional exercises of power. This precedent stems from a case called McCulloch v. Maryland from 1819. In 1816, Congress established the Second Bank of the United States. Many states were not fans of this action. One of them, Maryland, established a tax on all notes of banks not chartered in Maryland. When the head of the Baltimore branch of the bank refused to pay the tax, litigation commenced and it was eventually appealed to the Supreme Court. SCOTUS held that the Constitution grants implied powers to Congress that allow Congress to implement a national government using its express powers and state action may not interfere with such exercise of power. Taxation, of course, is just one way a state may attempt to interfere with federal power. Can states impose duties on goods that merely transit their territory? Generally no. The Commerce Clause bars states from implementing taxes that discriminate against interstate commerce or that put burdens on it by subjecting commercial activities to numerous or unfair taxation. The Due Process Clause complements this concept by requiring there be a definitive link between a state and the person, property, or transaction which it seeks to tax. This goes back to the SCOTUS decision in Southern Pacific Co. v. Arizona where the state enacted a law barring trains from operating in the state with more than 14 or 70 passenger or freight cars, respectively. The Court held that this was a substantial burden on interstate commerce because trains would need to be broken up before they passed through AZ. Also, you couldn't just stop on the tracks and "break up" the trains, so that had to be done at a stop before getting to AZ. The court determined that with this law, AZ effectively controlled the length of trains as far from its borders as El Paso and Los Angeles. The alternative was to operate all trains at the lowest level allowable by any state, which would lead to AZ dictating train lengths around the country. In determining the validity of the law or regulation, a court uses a balancing test to compare the burden on interstate commerce with the importance of the state interest (the AZ law was purportedly for safety reasons). | There is no misrepresentation by the bank as you describe it, there is negligence by the account holder to comply with the terms of the account. The bank made no representation at all regarding a balance due. If you want the bank to be at fault, they the customer would have to demand a declaration as to the existence of a balance due (choose your words carefully), and the bank would have to have falsely asserted that there is no present or future obligation. This is not going to happen. All the bank can say is that they have no present record of charges. The customer's question might be something like "Do you guarantee that there will be no charges to this account as of now". Of course, the bank cannot know whether there is a forthcoming paper charge that was made at some mountain resort. If case they did make such a promise, you could disavow the debt, using your reliance on their assertion as the basis for denying the debt. There is no law requiring banks to warn people of their contractual obligations when they close an account. I've never encountered a credit card contract that includes such a clause, but I suppose some bank might include a mandatory-warning clause, in which case they could be in breach of contract. | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | No The bank is not pretending in any way that the money received from depositors is guaranteed. If they had done, then that would be deceptive marketing. The bank held itself out to be a bank and to provide the services that a bank provides. They are allowed to assume that their customers know how banking works. It is clear that you do not because both explanations you have provided are wrong. | You can offset the amount but you must go to court to do it. The court can then grant you an offset. This document from a law office describes the details. The risk you run if you do not pay and do not do this properly is that she, with a valid judgement in her hand, can take enforcement action including garnishee of bank accounts and seizure of property (of course, you can do the same to her). | Would this be legal? Probably at this scale. Not necessarily extrapolated to a large commercial operation involving more parties. At some point it becomes a payment system and a financial enterprise that becomes subject to financial regulation. Could her transfer be viewed as a donation as well? This is not a donation transaction and efforts to characterize it in that fashion would probably be disregarded by authorities. Could they be viewed as money laundering? The core element of money laundering is an effort to conceal the source of the funds for some purpose. It isn't clear if that would or would not be a motive. Other considerations A fairly common way to handle this kind of situation that is similar to what you suggest is called correspondent banking. Each side has an account in Russia and an account in Germany. Most day to day transfers happen by directing that money go from one German account to another German account, or from one Russian account to another Russian account. The big benefit of correspondent banking, aside from being transparent, is that it avoids currency exchange risks, fees and considerations for small, ordinary transactions. Of course, it simply isn't difficult or expensive to simply wire money from Russia to Germany, and vice versa, now and then. There are not strict currency controls, although there are some potential disclosure requirements. One reason for you, or authorities to worry about characterization of the transactions as money laundering is that if you have nothing to hide, simple wire transfers would be the usual and ordinary way of handling matters. |
If you buy something only sold in cryptocurrencies - for example, a non-fungible token (aka NFT) - is that a potentially taxable event? Suppose I buy one Etherium cryptocurrency coin and then purchase a non-fungible token for one Etherium coin. One cannot buy an NFT using any other currency than a cryptocurrency, but cryptocurrencies CAN be bought and sold in US dollars, so if you don't have sufficient amounts of a cryptocurrency to purchase an NFT, you'd obtain the remainder by either selling something in exchange for cryptocurrency or buying the remainder with US dollars on a cryptocurrency exchange. By using my ETH coin to purchase an NFT, have I just committed a potentially taxable event? | By using my ETH coin to purchase an NFT, have I just committed a potentially taxable event? Yes. When you purchase something with cryptocurrency, this is treated as a barter transaction for income tax purposes. Also, generally speaking, both an ETH coin and an NFT would be considered to be capital assets for tax purposes, just like investment securities like stocks and bonds. When exceptions do not apply (and no exceptions are applicable here), a barter transaction is taxed as if you sold the asset you are relinquishing in the barter for U.S. dollars at a fair market value rate, and then purchased the item you obtained in the barter in cash for that amount of U.S. dollars. If you purchased your ETH coin for fewer U.S. dollars than the ETH coin was worth when you bought the NFT, then you will have a capital gain in the transaction. If you purchased the ETH coin for more U.S. dollars than the ETH coin was worth when you bought the NFT, then you will have a capital loss in the transaction (although, because it is a capital loss, you may not be able to apply this loss to reduce you ordinary income immediately). I do not address sales taxes in this answer. The definition of a taxable sale varies considerably from state to state and the question of whether a purchase of an NFT is a taxable sale is simply an undefined open question in many sales taxing jurisdictions. Also, it is not at all obvious under what circumstances a particular sales taxing jurisdiction would have the authority to tax a particular NFT purchase. This would be a highly fact specific inquiry. | The ultimate question is whether an obviously joke enterprise constitutes a real offering of securities or just performance art (a Ponzi scheme is one of many types of securities fraud). An unregistered offering of securities that does not fall within an exception is per se unlawful under federal law, but a security is generally defined as something offered with at least a prospect of making a potential profit for the investor which is not something that is true of this offering. (And if less than $1,000,000 are sold it might even be within an exemption to securities laws). State securities laws are divided into two categories. Most allow any offering of securities so long as proper disclosures are made and the offer is restricted to the right kind of investors. A minority impose substantive quality standards on offerings and this offering might violate the law in those states (although this still would present the question of whether a known money losing opportunity is really a security since there is no evidence of an intent to potentially make a profit from the investment). I do not believe that California imposes substantive quality of investment standards on public or private offerings of securities. Any deal whether or not it is a security is actionable if it is fraudulent. Normally an element of any claim for fraud is justified reliance upon a representation or upon a failure to disclose information. But, in this case, it is hard to see how anyone could say that they were justified in relying on any representation in making a purchase because they were told that they were being cheated. So, it is hard to see how a fraud claim would be sustained here either. I'm not sure that this cleanly falls into the category of gambling either, even though there is money at stake and the outcome isn't entirely certain. This doesn't really seem like a game of chance to me. Indeed, viewed as performance art, this scheme might even be entitled to First Amendment protection. Ultimately, I would not prioritize a civil or criminal action against this enterprise either from the perspective of a private lawyer representing an investor, or from the perspective of a government enforcement authority. And, while I would be a little nervous about running this enterprise, I wouldn't be quaking in my boots. In a civil lawsuit, any award would probably be minimal, and in a criminal case there would probably be an extremely generous plea offered. | The Secretary of Treasury is authorized and obligated to print United States currency by statute, codified at 31 U.S. Code § 5114. This is an exercise of the enumerated power to coin money: the "coinage clause." The Legal Tender Cases and the case that you cite (Juilliard v. Greenman, 110 U.S. 421 (1884)) are the leading authority on the scope of the coinage clause. In those cases, the Supreme Court held that the coinange clause grants to Congress the power to issue paper money that is legal tender. That power has not been challenged since. Juilliard v. Greenman: The states are forbidden, but Congress is expressly authorized, to coin money. The states are prohibited from emitting bills of credit, but Congress, which is neither expressly authorized nor expressly forbidden to do so, has, as we have already seen, been held to have the power of emitting bills of credit, and of making every provision for their circulation as currency short of giving them the quality of legal tender for private debts, even by those who have denied its authority to give them this quality. It appears to us to follow as a logical and necessary consequence that Congress has the power to issue the obligations of the United States in such form, and to impress upon them such qualities as currency for the purchase of merchandise and the payment of debts, as accord with the usage of sovereign governments. ... ... we are irresistibly impelled to the conclusion that the impressing upon the Treasury notes of the United States the quality of being a legal tender in payment of private debts is an appropriate means, conducive and plainly adapted to the execution of the undoubted powers of Congress, consistent with the letter and spirit of the Constitution, and therefore within the meaning of that instrument ... The reasoning in this case was not based on the paper being exchangable for metal, so any changes in that regard since will not have affected the outcome. For a deeper history of how this power has been understood, and for an originalist lens on the topic, see Robert G. Natelson, "Paper Money and the Original Understanding of the Coinage Clause". | In short, because the government is not required to honor your characterization of the transaction. A gift is something given without receiving anything in exchange. In almost all taxable contexts this is not a plausible argument. A judge would almost surely rule for the government that your money transfer was rent and not a gift, for example. And, if you didn't report the income that was found to be rent and not a gift, on an income tax form, you would be assessed serious penalties and might even be charged with criminal tax evasion, since the sincerity of your gift would be in doubt. Also, while in the bare example of an informal roommate arrangement, proof of the existence of a lease in the event of a dispute between the parties might not be necessary, usually contractual documents are in place to protect the rights of both parties to a transaction and those would be inconsistent with a gift characterization. For example, if you sell lumber on credit and it was treated as a gift, you couldn't sue someone who failed to pay for their lumber, and if you sold lumber for cash, it would be a clear quid-pro-quo. | A possessor in good faith owns currency Currency is owned by the person who has it provided they came into possession legitimately. Currency is a small category of goods, known as negotiable instruments, where the person who has it, owns it. Unless, they came into possession in an illegitimate way, such as by stealing it or finding it (and not handing it in to the authorities). If they received it in the course of a legitimate transaction - wages, payment for goods or services, etc. - then they own it even if the currency was previously tainted. Contrast this with, say, a car, where the legitimate owner remains the legitimate owner no matter who is in possession. Now, there are usually laws that prohibit the destruction of currency even if you own it, but that doesn’t change the fact that you own it. For comparison, there are laws against dumping your car in the river but it’s still your car. | You have the legal (contractual) obligation to pay the amount that you owe for your meal. The restaurant can refuse to accept a particular kind of payment, such as check, cash, credit cards (generally or brand-specific), various cash-transfer programs, foreign currency, bitcoin or ridiculous numbers of pennies. There is no requirement that they do today what they did yesterday. If you have in your possession only a Discover card, and if they are unwilling to accept service barter as payment (washing dishes is classical), then you would have a debt to the restaurant which you must pay in a reasonable time, using an acceptable medium (such as cash, unless they don't accept cash). They cannot make it impossible or highly burdensome for you to discharge your obligation (e.g. they cannot demand Krugerrands or Mongolian ᠲᠥᠭᠦᠷᠢᠭ as the alternative payment, unless you are in Mongolia). You were given advance notice of this possibility of non-acceptance, yet you willfully proffered a card that you knew that they were not likely to accept a second time. Your hands were not clean, and if this had gone to court, you could not expect mercy from the court on the grounds that you were surprised that they didn't accept your card. | You can do it using a US non-profit, but you need a lawyer We know it can be done in the US using a non-profit because it has been done. For example, the Clay Institute’s Millennium Prize does exactly what you propose: it pays people who solve unsolved math problems. Similarly, the the Everglades Foundation used a prize to get people to come up with new ways to get phosphates out of the water sources. To do what they did, you need to follow their lead, and set up and run a non-profit (aka, 501(c)(3), named after the relevant provision of the tax code). Because non-profits are tax exempt under US tax law, you have to apply to the IRS to become a non-profit. Speaking broadly, the IRS imposes two requirements on non-profits: 1) It must serve a charitable purpose; 2) It must spend a certain percentage of its money every year doing charitable work. To set up a foundation you have to specify the charitable purpose you will serve (“encourage research in mathematics”), and have a plan to do so (“we will award a cash prize to people who solve important unsolved problems”). If the IRS decides your plan is genuine, then they give you a pass on paying taxes. To make sure you are carrying out your charitable plan, the IRS requires you to spend a certain percentage of your money each year on charitable work. (This is called the "distribution requirement.") Meeting the distribution requirement may be a problem, since you may not award prizes every year. You may be able to get a general idea about how the IRS deals with such situations by searching on line. At some point, however, you will probably need to talk to a lawyer with experience setting up non-profits. (FWIW, it looks to me as if the Clay Institute meets its yearly spending requirement by supporting lots of other activities that count towards the spending requirement.) One other problem that it seems you won’t have involves giving prizes directly to individuals. For obvious reasons, the IRS is generally suspicious of prizes given to individuals, so they impose restrictions. For example, for the winner to avoid taxes, the prizes have to be for previous work. Where to go for more information: USA.gov has a nice overview of the application process here. The IRS has several publications and websites that you might find helpful: here, here, here, and here. These cover everything from the general rules to nuts-and-bolts details about which forms to use. You can read more about the IRS treatment of prizes here and here. Depending on how comfortable you are with financial statements, you may learn about how these non-profits work by reading their 990 forms. The Clay Institute's forms are here. | The answer to this question would also heavily depend on which country the transaction is occurring. Supreme court of South Korea ruled in July 2009 that exchanging virtual currency for real world currency is legal, even though doing so was against the game's terms of service. Consequently, players cannot be held legally liable for trading their virtual currency into real money if the game is being serviced in South Korea. This however, does not mean the company cannot suspend your account for doing so. Likely, other countries have different laws about this type of transaction, which you should look into. Source: Official ruling of the case (in Korean) |
Are agencies controlled by the President or not? How much control is enough for a textualist to accept the Chevron doctrine? In this video, at 11:20 Justice Scalia says: Congress created a series of agencies insulated from presidential control In the same video, at 57:06, in answering a question about the Chevron doctrine, Justisce Scalia says: The question is: if I think that agencies are not such doggone experts, why should I defer to them this way? I'm not deferring to them because they are experts. I'm deferring to them because their President, who ultimately controls them, has been elected. Doesn't the last statement contradicts the first one? Are agencies controlled by the President or insulated from his control? How much control of The President is enough for a textualist to accept Chevron doctrine? What if he could hire them but not fire them? What if he could suggest them what to do but not order them what to do? | Doesn't the last statement contradicts the first one? Are agencies controlled by the President or insulated from his control? These statements aren't contradictory. They just reflect a somewhat complex reality (although the new post-Scalia ultra-conservative supermajority on the U.S. Supreme Court has pushed the notion of a "unitary executive", a long time conservative goal, that casts doubt on the constitutional validity of the structures discussed below that previously went unchallenged). Especially starting around the time of the New Deal (the 1930s), Congress started to vigorously utilize the concept of an "independent agency" such as the National Labor Relations Board, the Securities and Exchange Commission, the U.S. Postal Service Board (formed in the 1970s), Fannie Mae, Freddie Mac, the Tennessee Valley Authority, and myriad other "alphabet agencies." (The Federal Reserve Board was one the first). Congress also experimented with structures like that of the Federal Bureau of Investigation (the FBI) whose director serves for a seven years term, even though the director is a single person rather than a collective board. Generally speaking, these agencies are run by the Presidentially appointed and U.S. Senate confirmed directors or boards with appointee who serve for fixed terms. As Presidential appointees, they are ultimately controlled by the Presidency as an institution, even if not by the current sitting President. But, since these appointees have fixed terms of office and aren't merely employees at will who may be fired on demand by the President like cabinet secretaries, these appointees have some measure of insulation from direct Presidential direction on a day to day basis in the minutia of decision making. How much control of The President is enough for a textualist to accept Chevron doctrine? What if he could hire them but not fire them? What if he could suggest them what to do but not order them what to do? The Chevron doctrine really has nothing to do with the amount of authority that the President exercises over independent agencies and the civil service. Instead, the Chevron doctrine is a separation of powers doctrine that provides that courts should defer to the executive branch (which is ultimately directed by the President, who has near absolute authority over agencies in some cases, and less authority over agencies in other cases), rather than interpreting laws from a blank slate, in cases where a federal agency has adopted an authoritative interpretation of a federal law that is not precluded by a fair reading of the statue in question, even if the court would have interpreted the statute differently in the absence of federal agency input. The Chevron doctrine tilts the balance between courts and the President in favor of the President, making the President stronger than the President would otherwise have been in the absence of this doctrine. (And, keep in mind that all regulations and litigation of the federal government goes through the Justice Department, which the President does directly control, to a great extent, even when agencies are independent and have significant autonomy.) The authority of the President to direct tenured civil servants who are not political appointees who can be hired and fired at will, or with U.S. Senate approval, is an entirely different issue with far less of a constitutional dimension until the last couple of years when a conservative supermajority captured the U.S. Supreme Court and has tried to push the non-textual and non-originalist "unitary executive" doctrine. | Art II, Sec 2, Cl 1 of The Constitution says of the president "and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment". The Constitution does not state any further restrictions on the presidential power, and there are no statutory limits, because, as observed in Ex parte Garland, 71 U.S. 333 The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control. Accordingly, presidents have written pardons on and with numerous different writing instruments. Insofar as there are no constitutional restrictions beyond the aforementioned, it is not required that a pardon be signed, or that it be on a tangible semi-permanent medium. It is impossible to know what such a pardon tweet would look like, beyond the limit on length. The one place where a presidential signature is required is under the Presentment Clause, that when presented with a bill that passed the two houses of Congress, "If he approve he shall sign it". Such a signature need not be actually written by the president, it may and often is written by an autopen. The question of the legality of autopen signatures for bills has not been presented to SCOTUS, but the Department of Justice has issued an opinion (July 7, 2005) that it is legal. I have failed to locate a repository of presidential pardons (the actual documents), so I do not know if, so far, all presidential pardons were written down and signed, though I would expect it to be so. The Arpaio pardon was signed (or auto-signed), likewise Obama's final mass-pardon on Jan 17, and previous Obama pardons were, but pre-Obama, DOJ does not provide any document. | In general, a person may appoint as many agents as s/he wishes for a particular purpose. The principal is responsible for the actions of all such agents, unless they exceeded their powers or instructions, and in some cases even then. In this particular case all such accesses would have to be "reasonable" taken together, and if the various agents fail to coordinate their requests for access, the result may be an unreasonable burden on the tenant. But as far as I can determine there is no formal process that a Kansas landlord must go through to appoint an agent, nor any specific limit on the number of agents appointed. The general law of agency is flexible on such matters. A tenant would be justified in asking for proof (or at least evidence) that a person is in fact acting as a landlord's agent, or in confirming with the landlord. The complex management is clearly the landlord's agent. | Why has this never been interpreted by SCOTUS? It has never been interpreted by any court, because the interpretation you're advocating is nonsensical, and nobody has ever tried to advance it in any court. Therefore, no court has had an opportunity to rule on it. Congress, however, has (at least implicitly) interpreted this clause to mean that all natural-born citizens are eligible to be president if they also fulfill the other requirements, regardless of when they were born, so that is the prevailing interpretation unless someone manages to challenge the interpretation either before congress or in a court. If such a challenge is made then there will be an explicit ruling. | Does the Special Counsel's non traditional prosecutorial decision making put the president above the law since he is unable to be prosecuted? All federal government employees, including the Special Counsel, are required to conform to the interpretations of the law provided by the Office of Legal Counsel in the absence of a directly applicable court order to the contrary. But, the fact that the federal government attorneys are effectively prohibited from prosecuting the President for crimes while the President is currently in office does not put him entirely above the law. This does not preclude state and local prosecutors from charging the President with state crimes while he holds office, and if those crimes do not arise from the President's conduct in an official capacity while serving as President (in which case Presidential immunity bars actions). This does not preclude federal prosecutors from charging the President with federal crimes committing while the President held office or before the President held office after the President ceases to serve as President. This does not preclude a federal court from declaring that the Office of Legal Counsel opinion by which the Special Counsel is bound on this issue is invalid, although it is challenging to think of a procedural context in which this issue could be squarely presented to a court. The OLC opinion could also probably be overridden by Congress in a law (that would probably have to overcome a Presidential veto), as the claim that the OLC decision is one that it is constitutionally required to arrive at is a weak one. This does not preclude individuals or Congress from bringing suit against the President in a civil action, including a contempt of court proceeding in a civil action prosecuted by someone other than a federal government attorney. This does not preclude Congress from impeaching the President and removing him from office. Nonetheless, the Office of Legal Counsel opinion referred to by the Special Counsel certainly does significantly impair the extent to which a President can be punished for violating federal law as a practical matter. This seems to directly contradict the "no man is above the law" principle outlined by the 14th amendment of the constitution. I'm not sure what makes you think that the 14th Amendment is relevant in this case. Section 1 of the 14th Amendment to the United States Constitution sets a minimum threshold for citizenship and sets for constitutional obligations that apply to U.S. states. Sections 2-4 of the 14th Amendment to the United States Constitution govern issues particular to the Reconstruction era. Section 5 of the 14th Amendment gives Congress the authority to pass legislation enforcing the other sections. There isn't really a "no man is above the law" concept expressly stated in the U.S. Constitution (in contrast, France has had such a provision since the French Revolution). But, to the extent that one can construed a provision of the U.S. Constitution as setting forth such a requirement, it needs to be in a provision that applies to the federal government, rather than one applicable to state governments. | From Clinton v. Jones 520 U.S. 681 (1997): Deferral of this litigation until petitioner's Presidency ends is not constitutionally required. [...] The separation-of-powers doctrine does not require federal courts to stay all private actions against the President until he leaves office. [...] Nixon v Fitzgerald provides no support for an immunity for unofficial conduct. Regarding official acts, the President is immune. Nixon v. Fitzgerald 457 U.S. 731 (1982): Petitioner, as a former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts. [...] The President's absolute immunity extends to all acts within the "outer perimeter" of his duties of office. | Trump was an officer of the government, and Twitter wasn't. The First Amendment forbids the government and its agents from viewpoint discrimination, but private companies are not bound by it and can discriminate as much as they please. (There was a question as to whether such discrimination might affect whether the company enjoys a shield from liability under 47 USC 230, but even so they have the right to block and censor as they wish if they are willing to risk that liability.) | No. They could be, but the "nullification" wouldn't be automatic. That is because, as the Congressional Research Service says in its excellent "Executive Orders: An Introduction": "Once issued, a valid executive order has the force and effect of law. Executive orders do not, by default, expire when the issuing President leaves office. Instead, an issued executive order remains in effect until it is either struck down in court, modified, or revoked." Because executive orders persist but can be easily changed, one of the first orders of business of a new administration is to revoke, modify or re-issue inherited executive orders. As far as your hypothetical, most commenters agree that when the President is expected to return to office quickly, the Acting President's job is simply to "keep shop." However, in extreme cases, such as the one you outline, they also agree the Acting President can exercise the full-range of Presidential powers. Thus, the Acting President could revoke the problematic orders. (This is discussed in Yale Law School's in the Yale Law School's "Reader's Guide" to the 25th Amendment.) If you want to know more, the Wikipedia page on Executive Orders gives a short (and harmless) summary. For more detail, see either the CRS pamphlet cited above, or their earlier pamphlet,"Executive Orders: Issuance, Modification, and Revocation." |
Can you be charged with killing an endangered species if you stick your hand the cage of one, and the animal has to be put down? There was just a guy on the news who stuck his hand in a tiger enclosure. He was on the cleaning crew and was either feeding the tiger, or trying to pet it. Tigers doing what tigers do, he latched onto the guys arm. and refused to let go. The guy himself called 911 and had to wait for officers to arrive. Sadly, an officer was forced to shoot the tiger, killing it. I was wondering, if you do something so reckless as to try and pet a tiger, and this happens to you, can you be charged with a violation of the endangered species act? In the text of the act, it says: "Except as provided in sections 6(g)(2) and 10 of this Act, with respect to any endangered species of fish or wildlife listed pursuant to section 4 of this Act it is unlawful for any person subject to the jurisdiction of the United States to—violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 4 of this Act" I am not sure if this is a violation of any regulation, though. | Referring to the current US Code, 16 USC 1538, one may not (B) remove and reduce to possession any such species from areas under Federal jurisdiction; maliciously damage or destroy any such species on any such area; or remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law or (E) violate any regulation pertaining to such species or to any threatened species of plants listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter. In this scenario, the person does not harm the tiger, so he could not be charged. There is not a blanket ban on killing a member of an endangered species. It is legal under 50 CFR 1721(c)(2) to ""take" (which ranges from "harass" to "kill") endangered wildlife in defense of his own life or the lives of others". Also, appropriate wildlife authorities may under (c)(3) take endangered wildlife without a permit if such action is necessary to: (i) Aid a sick, injured or orphaned specimen; or (ii) Dispose of a dead specimen; or (iii) Salvage a dead specimen which may be useful for scientific study; or (iv) Remove specimens which constitute a demonstrable but nonimmediate threat to human safety, provided that the taking is done in a humane manner; the taking may involve killing or injuring only if it has not been reasonably possible to eliminate such threat by live-capturing and releasing the specimen unharmed, in a remote area. US law does not define petting as a form of harassing, so petting a tiger is not a crime. | In New Zealand, employers have a duty to take all practicable steps to ensure their workplace is safe for employees and for others who come onto the premises (Health and Safety in Employment Act s6). So if there was a wasp nest and they didn't do anything about it, presumably they would be liable. If it was a random bee, I doubt they would be liable, because they couldn't practicably prevent a bee flying in if, say, someone opened the door. The state would have to charge the company as HSEA is a criminal provisions act. If the plaintiff brought a claim based on the tort of negligence, they would have to prove that the company had a duty of care, breached that duty, the breach caused damage, and the damage was not too remote from the breach. The company does have a duty of care to their patrons. The standard for this is what a reasonable person would have done in the circumstances. If they didn't remove a wasp nest they may have breached their duty of care. The breach will have caused damage (a wasp sting). It wouldn't have been too remote since had they removed the wasp nest, the person wouldn't have been stung. However if a random bee flew in, the company probably wouldn't have breached their duty of care, and if the court found that they had, the damage would probably be too remote or not have been caused by them directly. | The specific elements of the crime in question are going to be defined by Maltese law, which appears to be a blend of a European-style civil code with English-style common law. However, under ordinary Anglo-American standards, the alleged acts do seem to meet the legal definitions of these terms. At common law, an "assault" consists of placing someone in fear of an unwanted touching, and a "battery" is a completed assault; that is, an actual unwanted touching. If Mr. Suda, as alleged, took the victim's hand and touched it to his own genitals, without her consent, he committed an assault and battery. Any touching can constitute a battery, from a tap on the shoulder to a bullet in the head. Likewise, at common law, "violence" is any degree of physical force. If he tricked her into touching his genitals, that would not be a crime of violence; if he physically moved her hand to his genitals with his own hand, then he used physical force, or violence, to commit the crime. Again, what actually needs to be proven will depend on specifics you would need a Maltese lawyer to go into--but under general common law principles, neither "assault" not "violence" are particularly surprising. | The principle of constitutional law is that in order to arrest you, the officer would need probable cause. Certain acts are in themselves violations of the order (being closer to another person that 6 feet, illegal sneezing). Walking in public does not per se constitute a violation. In order to briefly stop a person walking on the street (a "Terry stop"), the officer needs a reasonable suspicion that the person is in violation of the law. That means there has to be a reason, and a gut feeling does not count. An officer would not (legally) be able to stop every person they see walking down the street / driving, and demand an explanation of where they are going. If a person is just aimlessly wandering down the strees with friends (even if they are sufficiently separated), that could suffice to justify a stop, given the limited legal excuses for being outside your home. | The government can’t withdraw The government does not have a right to unilaterally withdraw charges once the case is before the court. All they can do is ask the court to dismiss the case as they have done here. It’s up to the court (judge) to decide whether to grant the motion to dismiss or not. It granted, then the case has gone to completion and the defendant is legally not subject to punishment as they were not convicted of the crime, notwithstanding any previous guilty plea. Now, while it would be unusual for a judge to refuse such a motion it’s not impossible and they might do so if they felt that the interests of justice are better served by completing the trial in the usual way. This is possibly more common in civil litigation where a losing plaintiff might not be permitted to settle if the judge doesn’t feel an innocent defendant is being adequately compensated. | Well, moral obligations are not laws, nor sometimes even moral obligations. Some laws are based on what some courts and legislatures think are moral obligations. We think cannibals have a moral obligation not to eat people; cannibals think non-cannibals are fools for passing up a good BBQ. As for a leader's moral responsibility for millions of lives, we can take as extreme examples Mao, Hilter, Stalin, Pol Pot, etc., that there are no obligations. The law that could apply in the case of a POTUS who does not "faithfully execute the Office of President of the United States..." (oath of office for POTUS) is that of "High Crimes and Misdemeanors", the grounds for most impeachments. But "faithfully executing the Office of President" has no moral obligation; it has legal implications, that's all. High crimes or misdemeanor are legal definitions, not moral, and depend on previous cases of what a crime or misdemeanor is. Insobriety can be illegal; there are laws on the books concerning public drunkenness. But in the contest of POTUS (one who is hopefully not passed out on the sidewalk in front of the WH), it remains to be seen if insobriety is a high crime or misdemeanor. That would be up to the House Judiciary Committee and US House of Representatives, which by Constitutional powers handles impeachment proceedings. The Twenty-fifth Amendment outlines who succeeds the president due to "Inability to discharge the Powers and Duties of the said Office," but it does not state who has the power to declare a President incapacitated. It's possible that a POTUS who incapacitates himself with alcohol is guilty of a "high crime or misdemeanor." But how drunk do you have to be to be incapacitated? Drunk enough to think a Game Boy is the nuclear football? Again, that's up to the House. Some past presidents have arguably been functional alcoholics (or functional recovered alcoholics.) But incapacitated? That can be subjective when it comes to the application of the law. And morals have little to do with it, unless those morals have a basis in that same law. Update 12/04/16: Some federal judges have been impeached due to drunkenness: http://www.fjc.gov/history/home.nsf/page/judges_impeachments.html and http://www.crf-usa.org/impeachment/high-crimes-and-misdemeanors.html | 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. | A police officer (or any other random person) would not be guilty of a crime or subject to civil liability for standing by and watching a suicide occur when it could be prevented, unless the person attempting to commit suicide was in his custody and he failed to take reasonable care to prevent a suicide in which case the officer could be subject to civil liability. It would not be a violation of the law, however, for a police officer (or in most cases, even a private citizen) to intervene to attempt to stop an attempted suicide. Likewise, prisons and prison guards can have civil liability for failing to prevent the suicide of someone in their custody. Of course, a police officer might still receive a negative employment evaluation from his supervisor for such conduct, or might even be fired for it depending on the rules of a particular department, as it would reflect poorly on the police department and show bad judgment on the officers part. In general, an affirmative duty enforceable by a lawsuit to take reasonable efforts to prevent someone from committing suicide applies in circumstances where the person attempting to commit suicide is in someone else's care and custody and has their liberty constrained. So, there could be liability on the part of a hospital or treating medical personnel (I've actually brought such a case that was dismissed due to malpractice in missing a deadline by local co-counsel who was then disciplined for ethical violations by the State of Illinois for his conduct.) In the absence of such a relationship, a legal duty to take affirmative action to prevent a suicide generally does not arise. Certain medical facilities and providers are required to make anonymized incident reports for the purpose of creating national public health statistics on a periodic basis. In certain extreme circumstances, there are duties to report someone who is a threat to others which may also include a risk of suicide, to authorities, but those are quite narrowly interpreted, and actual legal consequences from failing to warn are very rare. There may be other reporting requirements in educational institutions and for mental health professionals, but I am not personally aware of them and I do not believe that they are national in scope. Usually, for criminal liability, there would have to be actual affirmative acts to aid or to attempt to cause a suicide. |
How do I transfer copyright ownership in India? Suppose I have a friend who wants to transfer ownership of a piece of their artwork to me. What is the simplest way that my friend can do so? Assume that we both live in India. | This is governed by Section 19 of the Copyright Act, 1957 in India (see, e.g. here and here). In the cleanest scenario, the copyright is first registered and then transferred with a written assignment meeting multiple formal requirements of that section that is filed with the copyright registrar. The assignment document is only valid if it is written and duly signed by the assignor or their duly authorized agent or representative. The transfer of a copyright in work must recognize the work and specify the kind of rights assigned and the duration and regional extent of such transfer. Moreover, it must specify the amount of royalty payable, if any, to the author or their legal representatives during the continuance of transfer, and the transfer will be subject to extension, revision or termination on terms jointly agreed upon by the parties. If the time of transfer is not mentioned, it will be deemed to be taken as five years from the transfer date. If the regional extent of such transfer is not stipulated, it will be taken as applicable across India. Disputes over ownership of registered copyrights in India are usually handled by the Appellate Board connected to the Copyright Registrar's office, described in Section 11 of the Act, rather than by the ordinary courts. | Copyright law is not based on contracts, and does not require agreement. No one may distribute copies of a copyrighted work without permission from the copyright holder. For instance, in the US, both Persons A and F can be sued because Title 17, Section 501 of the US Code says: (a) Anyone who violates any of the exclusive rights of the copyright owner ... is an infringer of the copyright or right of the author, as the case may be. (b) The legal or beneficial owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it. Copyright infringement isn't an issue of violating terms you agreed to with a private entity. Your duty to not infringe copyright was imposed by your country's legislature, who does not require your personal agreement to do that. | No If YT#1 gets a license from artist A, that permits YT#1 to do whatever copying and reuse is stated in the license. It might be narrow or very broad. Usually such a license will only grant permission to the person who asked. Unless the license also grants permission to YT#2, or to some broader group which includes YT#2, YT#2 cannot claim any rights under such a license. Assuming that the license does not include him or her, YT#2 has the same rights as any member of the public would, but no more. In general, pitch raising a piece of music is a way of creating a derivative work. In the US, under 17 USC 106 one needs permission from the copyright owner to create a derivative work. Otherwise doing so is copyright infringement. The laws of other countries, and the Berne Copyright Convention have similar provisions on this point. Creating a derivative work requires permission in all countries that I know about. "Piggybacking" is not a thing in copyright law. A copyright owner can give permission (usually called a license) to any person or group of persons that the owner pleases. The permission does not extend to anyone else. This is true in all countries. I should be clear that YT#2 needs permission from both YT#1, and from A. The way the question is worded I have been assuming that YT#2 had permission from YT#1, but a comment from grovkin made it clear that I needed to be more explicit about this. It is possible for a license to permit a person to pass on the license to others. For example, all CC licenses and all copyleft and most open source licenses do this, and others could. But the license must explicitly grant such permission. The one way in which a person might create a derivative work without permission and without it being infringement is if an exception to copyright applies. In the US the main exception to copyright is fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more detail on fair use. Fair use decisions are made on a case by case basis, and generally depend on the detailed facts of the ase. But based on the limited info in the question, this would not qualify. It seems to use the whole piece of music, which tends to weigh against fair use. The new work does not seem to be transformative, that is, it seems to serve the same general purpose as the original. The new work might harm the economic value of the original, or might if many people did this. The original is creative, not factual. All of those weigh against fair use. Different countries have very different exceptions to copyright, and I do not know all of them. But the use described in the question does not seem to fit any that I know of. In any case, an exception to copyright applies to anyone, and does not depend on another person's license. It is thus never a form of "piggybacking". By the way, the question describes pitch raising ads "illegal". Making an unauthorized derivative work gives the copyright owner grounds to sue. If the owner does sue, and wins, s/he might be awarded money damages, and the court might issue an injunction ordering the infringer not to infringe again. But it would not normally be treated as a crime, and law enforcement would not be involved. In the US, only bulk copyright infringement, carried out as a business, is usually prosecuted (for example a factory churning out unauthorized music CDs). | I have found no evidence to suggest that a citizen under the age of 18 can't hold, or register for copyright in India. The copyright rules (http://copyright.gov.in/Copyright_Rules_2013/index.html) do not seem to impose any restrictions which would prevent persons of any certain age from holding a copyright. The e-registration page (http://copyright.gov.in/UserRegistration/frmLoginPage.aspx) for registering a copyright does not seem to impose any age requirements, but it does require the person to setup an account. The account registration page (http://copyright.gov.in/UserRegistration/frmNewUser.aspx) does not seem to impose any age requirements. The site terms of use (http://copyright.gov.in/termsCondition.aspx) do not seem to impose any age restrictions for using the site or it's services. The registration form "Application Form for Registration of Copyright (Form-XIV)" (http://copyright.gov.in/frmformsDownload.aspx) does not seem to impose any age requirements. | How can I find out whom the intellectual property now belongs to? For the patent, is this possible through the patent office? If it is a patent, the patent office; if it is a copyright, the copyright registrar. You could also look at the return from the auction in the bankruptcy court case file, which would control even if the patent office and copyright registrar records haven't yet been updated. You could also call the person who conducted the auction, or the lawyer who arranged for the auction, to ask. Often they would cooperate in telling you this information since a bankruptcy auction is, by definition, a public sale anyway, and cooperation might help them gain positive referrals from you in the future. If the assignee has not been changed in the patent register, is it possible to reassign the patent to myself, since the company has apparently neglected to do so? No. Doing this would be a form of fraud or embezzlement. The intellectual property became the property of the bankruptcy estate. If the bankruptcy estate is determined to have property not disposed of in the case, you would have to petition the bankruptcy court to have the remaining assets sold for the benefit of the creditors of the estate at fair market value. The Follow Up Questions I'm going to decline to answer the follow up question about how to arrange to purchase intellectual property from someone when you would like to own it, once you determine who the owner is. This is a more general question that applies to lots of circumstances and is as much a question of economics as law. There is an Ask Patents.SE forum, which might be a more appropriate place to ask that question. | That is not really a "global license deal". You can try to attach strings to your US deal that makes you money when the US licensee sells out of the US. It is not typical and you may or may not have the leverage to get that agreement. Since you have no IP outside the US you can’t keep third parties from competing with them so it might not be good business for them. Also the SCOTUS has ruled that a contract licensing a U.S. patent can’t include royalties after the patent expires. In the past people negotiated deals where the royalties dropped in half (for example) after a patent expired. Although freely contracted and making business sense to the parties these royalties are not enforceable as a matter of public policy. It is possible that there may be a prohibition on contracted royalties where no IP exists. However you can license know-how, trademarks etc. independent of the term or existence of a patent. | First, the seller has not violated copyright law by selling you this book. Kirtsaeng v. John Wiley & Sons, Inc. provides the precedent. The Supreme Court ruled that the First Sale doctrine applies to "grey market" imports of books, so buying a book cheaply in another country and then shipping it to the USA is entirely legal, regardless of what the publisher would like. The court wrote: Putting section numbers to the side, we ask whether the “first sale” doctrine applies to protect a buyer or other lawful owner of a copy (of a copyrighted work) lawfully manufactured abroad. Can that buyer bring that copy into the United States (and sell it or give it away) without obtaining permission to do so from the copyright owner? Can, for example, someone who purchases, say at a used bookstore, a book printed abroad subsequently resell it without the copyright owner’s permission? In our view, the answers to these questions are, yes. Wikipedia also has an article on the case. As for your recourse against the seller, this would seem to be very limited unless they specifically promised you the US edition, or the content is materially different between US and Indian editions. You don't say what kind of book this is. Textbooks typically have identical content. Fiction and other entertainment books generally have local idioms and terminology changed (e.g. "pavement" versus "sidewalk") but will otherwise be the same. You might be able to claim that this is a material difference, but its likely to be difficult. | The notice has a lot to do with legacy requirements in the United States to claim the copyright to a work. Up until 1989, the copyright notice was required. Today, the statements are mainly maintained to protect against "innocent infringement" which might reduce what a content owner can get in court. What exactly do those terms entail? That the owner stated owns all rights and you may do nothing with the content. My biggest concern is this: by writing that, is the company claiming to own everything on the website, even potentially copyrighted user-submitted material? That's exactly what they are doing. Depending on the terms of the specific site, content contributors generally either assign copyright to the site owner or license the content in a way that allows the site owner to do exactly what they want with it. Site creators with the smarts or money to do it right/get someone to do it right usually state something like: Copyright [Site Owner] and contributors. Other sites (like this one) state specifically what they hold the copyright to: site design / logo © 2015 Stack Exchange Inc THIS IS NOT LEGAL ADVICE. CONSULT AN ATTORNEY REGARDING YOUR SPECIFIC SITUATION. |
If you are a lawyer of a thief, drug dealer, or human trafficker, what would you tell your client to tell IRS? I read this in 9gag. So what should we do if we are in this situation? If thieves and criminals can just say I have this income and don't tell the source, can legitimate businessmen do the same? | NAL, but I used to work for the IRS. GS-0592-08, AUSC W/I CSCI (for non-feds, that means General Sector, series 0592 grade 8, Tax Examiner, Austin Service Center, Division -> Wage & Investment, Section -> Collections Services and Compliance Operations. Yeah, no joke.) And I wanted to add some insider insight to help clarify some of the thoughts already shared here. First off, I feel like clarification is needed because lay people get especially confused about this very, very easily: the IRS is an agency exactly like the FBI, except the IRS falls under the US Dept of Treasury and the FBI falls under the US Department of Justice. Like all federal agencies, both the FBI and the IRS exist to enforce federal law. They're both law enforcement agencies. And again, the difference is the kind of law they enforce: the FBI enforces federal criminal law. The IRS enforces federal tax law. The IRS does not need (and wouldn't accept, not that the FBI would try - completely different jurisdictions) any help whatsoever from the FBI in enforcing tax law, including criminal tax law. The IRS does not disclose tax information; the confidentiality of taxpayer information is more intense than HIPAA. Literally nothing short of an act of Congress or a certain breed of court order can compel the IRS to disclose federal income tax information. (Not going to get into charitable orgs in this answer, but even then, the IRS doesn't make those filings public - the orgs themselves do, public self-reporting is a requirement of maintaining their tax-exempt status.) The FBI didn't get Al Capone; the IRS did. For tax evasion. Anyway, in answer to the OP's question: THE IRS IS NOT ACTUALLY CONCERNED WITH THE ORIGIN OF THE INCOME AS LONG AS YOU PAY TAXES ON IT. Anything and everything beyond federal tax law falls outside the IRS's scope. Which is why uou can write quite literally anything you want on line 80 (or whatever it is these days) of your 1040A (occupation) (technically, as long as you don’t perjure yourself, not that anybody's counting.) It's pretty much just a footnote anyway. As a tax preparer, you can skip it, and even if that line weren’t specifically, explicitly protected by the 5th Amendment, it wouldn't matter if it weren’t, because the IRS does not disclose federal income tax information with any other agencies or organizations under any circumstances. As long as whatever you put there is factually accurate - if you fill it out at all. You can answer in Klingon; nobody cares (unless you write something funny, which we actually appreciate btw ;) ), because it's not necessary to process your return. Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and accurately list all amounts and sources of income I received during the tax year. Declaration of preparer (other than taxpayer) is based on all information of which preparer has any knowledge. "Sources of income" means "all the money you got paid, as best as you could record it" - if you got paid cash waiting tables (tips) or slinging heroin, the IRS doesn't care as long as you report the income. You can write "slinging heroin" (it's the IRS, not the DEA) but tax preparer would probably pick the code for "inside sales." When the IRS participates in joint task forces, it is because the IRS's ability to track money is second to none (and even then, IRS involvement in task forces are usually related to terrorism.) The IRS occasionally assists other agencies with criminal law enforcement efforts, but the IRS doesn’t prosecute them and doesn’t involve confidential tax information in them. For example, as far as the IRS is concerned, if you embezzle a hundred grand and then launder it, the IRS’s criminal jurisdiction they’d be pursuing you for would be underreporting (and probably tax evasion.) If you embezzle a hundred grand, but file and pay your quarterly withholding (I never worked in Underreporter but I'm pretty sure fraud would be considered self-employment since by definition it's off the books) you’re in compliance with the IRS’s criminal jurisdiction. And yes, you have the right to itemize deductions, but not every expense is necessarily allowable - for example, some expenses have limits on how much can be deducted. So even if an expense was related to earning income, it doesn't mean you can necessarily claim it, or all of it; gas mileage driving to places you rob at gunpoint, sure - bullets? I guess if hunters or game tourism or shooting ranges / instructors can deduct bullets, a hitman could too, but I’d expect to get flagged for audit to see how much of what is actually permissible. But even if some or all of those deductions ended up being disallowed and you wound up with a balance due, as long as the IRS determines that you were not intentionally seeking to avoid or circumvent tax law, it wouldn’t be a criminal [tax] matter. I'd have to look, but if parking tickets aren't allowable, I strongly doubt bail, fines, restitution, etc. in conjunction with being criminal convictions associated with earned income would also not be allowable. The only way other agencies would gain visibility into this would be if someone were dumb enough to go to court at the conclusion of an audit, at which point the tax situation would become a matter of public record. To illustrate the lengths to which the IRS seeks to facilitate voluntary taxpayer compliance in meeting their obligations, when I was at the IRS in the mid-2000s, there was a program for drug dealers to file quarterly withholding as self-employed using a sort of special sticker book provided by the IRS to use in lieu of receipts. If a professional tax preparer or tax planner were assisting someone who discloses, or starts to disclose that this is actually illegal source income - the tax preparer just puts in a code for whatever comes closest to describing the occupation that earned the most income and the taxpayer doesn't have to be specific as long as they are not untruthful. (Honestly, you really can write whatever you want. Nobody cares. People put stuff down like "pirate" and "bridge troll" as well as stuff like "slinging heroin", "bookie," "racket," "al qaeda", etc.) | Disclosures are prescribed by state law. Fair housing, which is a federal concept, pertains to issues such as using prohibited personal facts to determine whether to accept an offer. (Hazardous materials disclosures are also mandated at the federal level, but are are included in state requirements which can get pretty broad). If you are buying in Washington state, RCW 64.06.020 says what and how you must disclose. The list of disclosures is very detailed, covering title and covenants, water, sewer, structure, systems and fixtures, environment, and mobile home related. The only one of the 86 questions about smoke is whether smoke alarms are present. Thus smell of smoke is not a legally material fact that must be disclosed, in this state. The California disclosures, even longer, are here, and there is likewise no "smells bad" disclosure. It is unlikely that any state in the US mandates such a disclosure, since it is somewhere between a subjective evaluation and a self-evident fact. Some people are very sensitive to certain smells while others do not care. The burden is on the buyer to pursue matters of personal concern (in writing!), such as whether any dog has been present in the house in the past 5 years (some people care). You have to look carefully at the response. "Don't know" is usually a safe bet, unless you actually have factual knowledge. From what I can determine, Massachussetts is on the opposite end of the spectrum from California. There are some requirements imposed on real estate agents, and there is the federal lead paint disclosure, but otherwise it appears that nothing is mandated by law. This form seems to be used by the real estate association, and there is a question about "history of smoke/fire damage to structure". The reasonable interpretation of that is "has the house caught fire and suffered damage", so "no" from a cigar-smoker would not be fraudulent. If the intent of the question were to reveal if someone has smoked frequently in the house, that would he the question they'd ask. You can check whether you have this form and see what it says, but "smoke damage" would not normally be interpreted as meaning "smells a bit funny". | W&H can avoid legal problems by reporting the suspected crime to the relevant tax authorities (IRS, Pennsylvania and the other state, let us say Ohio). This can even be done anonymously, although doing this non-anonomously provides strong evidence that W&H are not parties to the crime. Filing with a false address could constitute a violation of 26 USC 7206, when one Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter "Could" comes from two issues. First, L has to not believe that this is their true address, and second, the address has to be a material matter. The tax form and instructions require you to supply an address, but do not define any rules for what can be "an address". The IRS does define a concept of "tax home" which is the city where you work, bit that is relevant only for deductions related to travel. At least w.r.t. federal taxes, it is not obvious that this is a material matter, unless one is relying on state-specific standard sales tax deductions as part of deduction itemization. The government would also have to prove that they did not believe that the PA address is their "home address", a position that is facilitated by the lack of indication of what qualifies as a "home address". Para 2 of the tax fraud statute might apply to W&H, which target one who Willfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document As described, you have not taken an illegal action, e.g. you have not encouraged, condoned, written in false information, etc. What you have done is not reported a possible tax crime that you are aware of. There are various federal laws whereby a person in a "special" position is obligated to report a suspicion of a crime (law enforcement w.r.t. child sexual exploitation, etc), but there is no general legal obligation with criminal penalties whereby you must report a suspected federal crime. This is a good thing, because a criminal conviction can be a conditional bar to citizenship, under the category of Crimes Against the Authority of the Government. Actually lying about L's residence moves this into the area of a well-defined felony offense, 18 USC 1001 (lying in a federal matter), which would clearly cause citizenship problems. The same set of questions and answers would arise w.r.t. PA and (presumptively) OH tax laws. In this case, though, there is most likely a crime – tax evasion in OH. I say most likely because I don't know if they filed a fully truthful Ohio tax form, or a fully truthful PA tax form. But if they lived in Ohio and yet did not report their Ohio income (and instead filed a PA income tax form), they did not comply with ORC Ch. 5747, esp §08 and §15, which incurs penalties (but is not a crime). As with the matter of federal income taxes, W&H do not have a legal obligation to report suspected crimes, but they must not actively aid in the commission of a crime. | This is a fun one. I don't have any particular domain knowledge about this question. So this one is just a guess. My answer is strictly from a practical standpoint. If I were faced with this situation in real life, what would I do? (Technical point: I feel the vagueness of the language, "Is he allowed to" allows me to answer this way.) My assumptions: My assumptions are that: The cost of consulting an attorney on the matter or filing a law suit would likely exceed the combined total cost of the bike and the lock. Usually, the law follows what "feels right" and what makes common sense to the average person. Usually. Not always. But usually. (Legal principles: "Equity follows the law." and "Equity does not aid a party at fault." See this reference.) What I would do: So, I would do the following... (if I were in the U.S.) I would simply cut the bike lock and repossess my bike (unilaterally) if and only if all the following conditions were true in the situation: I could confirm without any doubt that the bike in question is actually my bike and not just another one that looks just like it. I could not find anyone around who looks like they might be the owner of the lock or the other bike. If I could find the owner of either the lock or the bike it is highly likely there was some mistake and the situation could be resolved directly with them. There are no law officers nearby. If so, I would engage them in helping me rectify the matter. If they said it was a "civil matter" and refused to get involved, I would proceed to the next item on this list. I had the tools handy and available to cut or break the lock. If any of the above conditions were false, I would flag down the nearest law officer or call one to the scene to help resolve the issue. Any other approach would seem impractical to me on the basis of my above assumption numbered 1. If I were anywhere outside the U.S., I would involve the local authorities without considering the unilateral repossession option. | There does seem to be a meme in the UAE of people threatening legal action for negative reviews, as a form of defamation. The police will simply tell them that this is not a crime, go hire a lawyer if you want to sue them. If you block them, perhaps they don't have any other way to contact you (seems that was the point of blocking them), which means that you cannot receive their offer "If you pay us AED 1,000 we will not sue you", which could be a problem if they win their court case. Still, it is perfectly legal to ignore or block them, up to the point that you are actually served with legal papers. When they actually sue you, "blocking" is irrelevant, they will hire a process server to hand you the legal papers that command you to appear in court. | I think that the question you are really asking is whether a contract not to disclose certain information (e.g. to authorities) might be void as contrary to public policy, or illegal. Sometimes it is illegal to do so. For example, often concealing personal information in connection to the transfer of funds constitutes money laundering, which is a crime, or securities fraud. The key question is whether there is a legal duty to disclose in a particular context and whether the concealment facilitates some sort of fraud. | There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files. And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity. | 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. |
Can a booby trap be used to stop an active shooter? I am wondering if it is legal to set up a booby trap to stop an active shooter. For example, say that there is an active shooter inside a factory and a worker there places something heavy like an anvil above a partially closed door and then that anvil falls and strikes the head of the active shooter when he/she opens that door. If the active shooter is severely injured by that anvil, or is killed by it, will the person who set up that booby trap be charged with assault/murder, or will the booby trap be seen as a means of self-defense, and since people are allowed to defend themselves in an active shooter situation, will that person not be charged with assault/murder? | Yes, this would be legal self-defense. But, in practice, mass shooting events are usually too quick to allow anyone to make a booby trap. For example, a mass shooting event in Denver and Lakewood, Colorado this week lasted just 47 minutes and took place at seven distinct locations which no one but the shooter could have predicted in advance, spread over a dozen or so miles, with no more than five or ten minutes of activity in any one place. | Ark. Code 5-60-120 is very clear that the act of intercepting is a crime. Not just "recording and using", not just "recording", but intercepting in any way. Specifically: It is unlawful for a person to intercept a wire, landline, oral, telephonic communication, or wireless communication, and to record or possess a recording of the communication unless the person is a party to the communication or one (1) of the parties to the communication has given prior consent to the interception and recording. Intercepting is illegal, therefore it is not "okay". Perhaps the "sort of a lawyer" was speaking of the probability of getting caught doing it. | There is a relevant law, Title 18 section 907 which states that "A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally". So possession of lock picks is not a crime per se. In Com. v. Gendrachi 389 A.2d 604 we are reminded that "intent need not be directly proved, but may be inferred from the circumstances surrounding the incident out of which the charges arise". The accused was busted in mildly suspicious circumstances at 5:20 am in the dead of winter, urinating. The court notes that "There is no evidence that appellant's hands were on the door or that he made an attempt to extract the tools from his pocket and apply them to the door. In fact, there is no act or statement by appellant that would lead one to infer that he intended to use the tools at that time", and that "appellant is a certified locksmith and it is not unreasonable to find the tools of his trade in his pocket, especially when he is wearing his work attire". Note that this is on appeal: he was convicted initially. The point is that there is a lot of slop in cashing out the legal concept of "intent". Pennsylvania does not, apparently, have any specific laws that refer to lock picks. It does have a statute that addresses having criminal tools, which are defined as (including) "Anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have". Mr. Gendrachi had those very tools, and the appeals court did not say anything to suggest that the tools were not "criminal tools" (and in FN 5 they actually point out that the Commonwealth cannot say that the tools were weapons, a ludicrous proposition never raised by anyone – so by failing to deny that lock picks are criminal tools, they are adoptively admitting that they are criminal tools). Thus I conclude that there is a law in PA, that lock picks are burglary tools, and that the government would have to prove intent to use criminally. | IMO this is a perfectly reasonable question, amenable to a common law analysis: (1) indicates that A has committed the tort of false imprisonment (Restatement of Torts, 2d, §35). Because of 2-4, we can see that A intends to confine B (though vide infra). The confinement is complete (§36), this being a single aisle plane although the same would be true if this was a 5-aisle plane. A has no authority to confine B (§ 41) and is not otherwise privileged, and is accomplished with a physical barrier (§38). B knows that he has been confined (§42). B is "privileged to use any means of self-defense to protect himself against confinement which he is privileged to use to protect himself against a harmful or offensive contact or other bodily harm" (§68). B uses reasonable and minimal force not likely or intended to cause death or serious bodily harm (§63), force which is privileged and thus protects B from being subject to liability (§10). A commits the tort of battery (and a second round of false imprisonment) by taking B down (§13). A is not privileged to use force in self-defense. There is no reasonable belief that B will spontaneously turn on A and use further, unprivileged force – A is simply punishing B for his minimal use of force in self defense, so A's final act is not privileged. There is a related but distinct scenario that adds a material fact, which could change the analysis: C calls out "Excuse me, my flight flight leaves in 15 minutes, may I pass?" whereby A allows C to step ahead of him in the queue. A has no obligation to let anyone jump the queue, but may consent to inconsequential contact which might constitute battery. It is reasonable to conclude that there is apparent consent (§50) given to anyone (§52) when A makes way ("making way" is a publicly-available fact, but "for C to pass" is a private fact of A's state of mind which B cannot reasonably infer: except, B has heard the "May I pass?" request). So the analysis really hinges on how to interpret 2 and 4. Coupled with 6, we (jurors) have a preponderance of evidence showing that A intended to confine B, and battered him when his confinement failed. | Prior to Tennessee v. Garner, 471 U.S. 1 (1985), common law allowed police to use deadly force to effect the arrest of a person suspected of a felony. Even though SCOTUS there held that such a practice violates Fourth Amendment civil rights, I was surprised to find that in some states it is still lawful for police to use deadly force to effect an arrest! Let us examine the most extreme case, which is that the police can legally shoot at you to effect your arrest. As explained here, you are always allowed to resist "excessive force." If you make it to court, these qualifications (e.g., "necessary" and "excessive") are ultimately decided based on what a "reasonable person" would have believed in the situation. So if a cop shoots at you, and you "dodge" the bullet, it is possible for you both to be found not guilty of any crime. I.e., the cop can be found to have acted "reasonably" because he believed you were a violent felon and shooting you was the only way to stop you. And you can be found to have acted "reasonably" because you believed you were being subject to excessive force. While this is an interesting hypothetical, in practice of course by the time a cop is shooting at you you are almost certainly going to be charged with resisting arrest. Or, if the cop fired in self-defense (rather than to effect an arrest) you will be charged with a number of far more serious crimes (starting with felony assault, reckless endangerment, and going on from there...). | That is not a valid assumption. Many states have laws that let you presume someone is a threat to your life if they forcibly enter your house. Simple trespass on your land does not let you reasonably presume someone is a murderer. An autonomous killer drone is not a comparison you want to make: those may be illegal entirely, and are likely to seriously hurt any claim of justifiable force. “You forfeit your right to live when you set foot on my property” is not justifiable. If the dogs are trained to be a hazard to the community, that’s an argument in favor of having them confiscated and destroyed. Dogs are not people. Under normal circumstances, they cannot be protected under self-defense or the defense of others. Those doctrines only apply when a person is in danger. Deadly force is sometimes allowed to protect property, but this tends to be strictly limited. To start with, you can only ever use force to prevent illegal damage to property. If your concern is “this animal control officer will destroy my dogs within the scope of their duty,” that’s not protecting against an illegal use of force. Deadly force in defense of property is also normally limited to particular crimes that are inherently dangerous, like arson, robbery, or burglary. Even in Texas, simple theft only justifies deadly force during the nighttime. Deadly force is also not justifiable if there were reasonable other options. Shooting an animal control officer is unlikely to be the only way to temporarily stop them from destroying a dog. Threatening violence in order to influence a judge’s decision is terrorism. This hypothetical man is a terrorist. He may well find himself on death row for murder, but he’s also going to face separate charges for terrorism. | 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. | The case US v. Siesser is about such an attempt, where violation of 18 USC 229 was one of the charges (to which he pleaded guilty). It is a chemical weapon under the provisions of that chapter – it's not the chemical per se, it's the chemical when used for a purpose (like, killing people). Specifically A toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter as long as the type and quantity is consistent with such a purpose. You could buy it to calibrate NMR devices, I guess. There may be specific state regulations as well. |
What did Scalia mean when he said that the Constitution "explicitly" protects racial minorities? I was watching this video of Justice Scalia's remarks. At 1:10:36, Justice Scalia answers a question about Brown v. Board of Education. Because Justice Scalia has previously said that it's not the role of the Supreme Court to invent new minorities to protect besides the minorities already protected by the Constitution, and because the audience now asks why racial segregation is unconstitutional when it had been thought to be constitutional for years and years before Brown v Board, Justice Scalia now says that: Brown v Board of Education was not one of the un-enumerated minorities the previous question was talking about. The Constitution explicitly protects racial minorities, that's what we fought a civil war about, and the fourteenth amendment prevents / forbids refusal to give equal protection of the laws in particular with respect to race. So my Constitution protects that explicitly. I do not have to invent some minority protection for Brown v Board Of Education. Here is the Fourteenth Amendment, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The word "race" seems absent from the fourteenth amendment. Because it's not there, racial minorities would be part of the un-enumerated minorities the Supreme Court is not supposed to invent by itself. So what did Justice Scalia mean when he says the the Constitution "explicitly protects racial minorities"? | The 13th to 15th Amendments to the U.S. Constitution are called the "civil war amendments" as they were enacted in the fallout from the U.S. Civil War. The 15th Amendment specifically addresses racial discrimination in voting rights, which was emerging as an issue a federal occupation of Southern states was receding and the segregation regimes that persisted until the 1960s, almost a century later, replaced slavery (which was abolished, de jure, and to a great extent, in practice). The 13th Amendment abolishing slavery, comes very close, because at the time that it was adopted, slavery was almost exclusively imposed on African-Americans (the Emancipation Proclamation during the Civil War was the proximate legal cause of ending slavery for most U.S. slaves, although it took a fair amount of time to be fully implemented because the U.S. did not control much of the territory it applied to at the time). The 14th Amendment was also race conscious, not by its express text, but by what is displaced. Section 1 removed the denial of citizenship for former slaves (an almost entirely African-American population), and expressly required the state to afford the new citizens equal protection of the laws and due process. Section 2 removed the three-fifths compromise from Congressional apportionment that had counted African-American slaves as less than a full person in the pre-14th Amendment status quo. Section 4 invalidated efforts to pay reparations to former slave owners. Specifically, they state: 13th Amendment Section 1 Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2 Congress shall have power to enforce this article by appropriate legislation. 14th Amendment Section 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2 Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3 No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4 The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5 The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. 15th Amendment Section 1 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2 The Congress shall have the power to enforce this article by appropriate legislation. When Justice Scalia meant said that: The Constitution explicitly protects racial minorities, that's what we fought a civil war about, and the fourteenth amendment prevents / forbids refusal to give equal protection of the laws in particular with respect to race. So my Constitution protects that explicitly. He is putting the equal protection clause of Section 1 of the 14th Amendment in the context of the rest of Section 1 of the 14th Amendment, which gave to former slaves citizenship (implicitly a race based change) that was fortified with provisions including the equal protection of the laws that they had been denied before it was adopted while all other adult men of those days had. More broadly, he is discussing this in the larger context of the Civil War Amendments and in the context of the legislation that was enacted by Congress pursuant to the enforcement clauses of the 13th, 14th and 15th Amendments. What these amendments do to protect racial minorities is to give them equal treatment when prior to their enactment they were given unequal treatment. Brown v. Board of Education which he discusses in the same breath, furthermore gives the 14th Amendment its modern meaning overruling Plessy v. Ferguson whose "separate but equal" interpretation of the equal protection clause of the 14th Amendment had facilitated the Jim Crow regimes of segregation in the South because after more than half a century it had become clear that separate was almost never actually equal in practice. As a footnote, the 14th Amendment Privileges and Immunities clause in Section 1 of that amendment was intended to be the greater of the Section 1 protections, but was gutted early on by the Slaughterhouse Cases that interpreted it in a manner that made it virtually irrelevant, continues to be good law. There is no Brown v. Board of Education counterpart overruling the Slaughterhouse cases the way that Brown repealed Plessy. Where is written in the 14th Amendment that race is a protected minority? The context and legislative history of the equal protection clause of the 14th Amendment, as enforced by contemporaneous enforcement legislation adopted by Congress, was clear to all in its meaning (even to textualist leaning originalists like Justice Scalia) that it first and foremost applied to the discrimination based upon race and former condition of servitude that the 15th Amendment called out explicitly. The notion of a "protected minority" isn't a very clean or helpful way to think about what the 14th Amendment does, however. Instead, it prohibits de jure legal discrimination based upon race and upon other factors that have been determined to constitute impermissible means of making legal distinctions. The notion of the 14th Amendment and anti-discrimination laws as conferring special treatment on "protected minorities" has not been the story of American civil rights law, unlike the case in Canada, for example, which uses a legal theory framework of vindicating and benefiting oppressed minorities, rather than less ambitiously, merely aiming for racial equality in the law. Justice Scalia's choice of words in the quoted material reflects the cultural lean of conservative politicians in the U.S. who have often tried to frame anti-discrimination law in this way, contrary to most (but not quite all) U.S. civil rights law legal theory (voting rights have more of a anti-oppression model, in part, due to the relevant Congressionally enacted enforcement legislation, especially the Voting Rights Act). | The 5th amendment of the US constitution reads: No person shall ... be deprived of life ... without due process of law and the 14th amendment reads: ... nor shall any State deprive any person of life... without due process of law In Roe v Wade the majority opinion expressly acknowledged: The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. (emphasis added) The majority in Roe v Wade then concluded: the word "person," as used in the Fourteenth Amendment, does not include the unborn In Dobbs, the majority instead stated: Today’s decision therefore does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion ... all of the States may evaluate the competing interests and decide how to address this consequential issue ... There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being. Many judicial decisions from the late 19th and early 20th centuries made that point. [numerous citations] One may disagree with this belief (and our decision is not based on any view about when a State should regard prenatal life as having rights or legally cognizable interests) ... Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth. In conclusion, though it is recognized in Roe v Wade that if the unborn is considered a "person" then there is a "right to life", no justice has indicated in an opinion (including concurring or dissenting opinions) that "person" in the constitution includes the unborn. | This question and many related ones are analysed in detail by Eugene Volokh, in a long paper that is worth reading in its entirety if you are interested in the topic. The [Supreme] Court has offered “speech integral to [illegal] conduct” as one of the “well-defined and narrowly limited classes of speech” excluded from First Amendment protection. But if this exception is indeed to be well defined and narrowly limited, courts need to explain and cabin its scope. This Article — the first, to my knowledge, to consider the exception in depth — aims to help with that task. On threats, he says: Companies are generally barred from firing employees for voting for a union, and unions are generally barred from retaliating against employees for their speech. The Court therefore concluded that speech that threatens unlawful retaliation is itself unlawful. On blackmail, he says: [...] telling black citizens “stop shopping at white-owned stores or we’ll publicize your behavior to your neighbors and fellow church members” is similarly constitutionally protected. On the other hand, “vote for this civil rights bill or I’ll disclose that you cheated on your wife” is likely unprotected. In general the line where the First Amendment protections end and criminal speech begins is surprisingly vague. General advice to avoid self-incrimination by not answering questions from the police is clearly protected. Threatening a witness with violence is clearly not. In between are shades of grey. | It appears that the "leading" source of Freedom of Movement is the Privileges and Immunities Clause (Art. IV, S.2 , Cl. 1) of the US Constitution, that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States". See Crandall v. State of Nevada, 73 US 35: "We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own states" (quoted from an earlier case); US v. Wheeler, 254 U.S. 281 In all the states, from the beginning down to the establishment of the Articles of Confederation, the citizens possessed the right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom citing the Privileges & Immunities clause as the constitutional foundation. However, this article, sect. IB notes a number of additional constiutional sources: Various Justices at various times have suggested no fewer than seven different sources: the Article IV Privileges and Immunities Clause, the Fourteenth Amendment Privileges and [sic] Immunities Clause, a conception of national citizenship said to be implicit in the structural logic of the Constitution itself, the Commerce Clause, the Equal Protection Clause, and each of the Due Process Clauses. Edwards v. California, 314 U.S. 160 relates freedom of movement to the Commerce Clause, Aptheker v. Sec’y of State, 378 U.S. 500 points us to the Due Process clause. The argument hasn't apparently been made based on the First Amendment, since there are better arguments. | So it's not that SCOTUS is declining to review the matter on Constitutional Grounds but that it's declining to rule because 1.) It's a military matter 2.) It's under review by congress. SCOTUS is basically saying that, of the three branches, they are the least equipped to deal with military policy and when a better equipped branch is reviewing the matter. SCOTUS doesn't want to dictate to Congress how to change the rules when Congress is in the process of changing the rules itself... but they can say "Hey, we got our eyes on this as a constitutional matter so keep that in mind when you decide on what you're gonna do about this. When Congress makes a decision on this particular law (either change it or keep it), SCOTUS may take a look, but that doesn't mean they'll rule against it, as Congress and the Military can present an argument that it might be necessary for military defense reasons. | New York has no law prohibiting genocide, though it does have a law against murder. Since you specifically ask about genocide, at the state level, the answer is "no". At the federal level, 18 USC 1091 does criminalize genocide. But the action fails to meet the definition of genocide. (a) Whoever, whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such... Mutants fail to satisfy the ordinary conditions for matching people to "national", "ethnic" and "racial" groups (and "religious" is statutorily defined). This is not to say that an aggressive prosecutor could not construct a line of reasoning that people with a certain (undefinable) genetic property fall within the ordinary meaning of "race" or "ethnicity". But, to consider an analogous case, the courts do not consider left-handed people to be a separate "ethnicity", likewise blind, deaf, nor those with Downs syndrome. Specific legislation is (was) necessary to make individuals with genetic conditions be a protected class – it does not flow from a general prohibition against racial discrimination. It is also unclear from your scenario whether defendant has "the specific intent to destroy". In reality, uttering a phrase does not make it so. | The Seventh Amendment's jury trial provision does not apply to the states. The Bill of Rights does not inherently restrain the states at all, merely the federal government. The Fourteenth Amendment does restrain the states; notably, it forbids a state from depriving any person of life, liberty, or property without due process of law. Courts have read into "of law" the added requirement that the law be compatible with the fundamental rights that are implicit in the concept of ordered liberty; this means that most stuff that would violate the Bill of Rights if done by the feds violates due process if done by the states. However, not all provisions of the Bill of Rights have been incorporated (i.e. applied to the states); the requirement for a jury in a civil trial is one of the few that hasn't been incorporated, because courts do not consider it a fundamental right (merely one protected in the federal courts). Now, many traffic tickets are actually misdemeanor offenses, and a jury-trial requirement for crimes is incorporated. However, even for federal offenses, the courts have generally found that the Constitution doesn't require jury trial for petty crimes (those with a maximum sentence under 6 months). | District of Columbia v. Heller, 554 U.S. 570 (2008), majority opinion, written by Justice Antonin Scalia: Like most rights, the right secured by the Second Amendment is not unlimited ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (emphasis mine) |
Am I allowed to use a short clip from a movie for an art project without acquiring any rights? I would like to use 7-second clip from a movie (a famous Hollywood production if that makes any difference) in my art project (a 4 minute video). I was told that you are allowed to do that if the clip is short enough but I don't know if that's true, and if it is, I don't know how short the clip must actually be. Also, if I were to eventually sell my art project, would that make a difference? Perhaps I wouldn't be allowed to use such a clip at all in that case? | You cannot safely rely on the US doctrine of Fair Use, except if the rights-holder sues you in US courts. In France, there are limited exceptions to the authors proprietary rights. Under Art. L-122-5, there are some relevant potential exceptions: 3ºa) analyses and short quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated... 4º. parody, pastiche and caricature, observing the rules of the genre. Your description of the intended use does not fit these criteria. Consulting with a copyright attorney is advised, if you don't want to obtain a license. | No It says right on the page you linked: These downloads are not public domain, as they are parts of content that has already been licensed and distributed. Although using these downloads may be permissible as long as the project itself falls under the rule of "Fair Use," it is ill-advised to use these downloads for any project intended for profitable gain or commercial advertisement, unless otherwise stated by Kyutwo.com. | Copyright law requires permission of the rights holder to e.g. post material. The terms of that permission could be very complicated, as seen in royalties contracts with publishers, but they can also be simple. If someone asks "can I post your video on my website" and you say "Sure, as long as you give me credit", then they can post the video on their site as long as that say something like "This video was made by Jake" or something like that. There is no exception to permission where permission is retroactively withdrawn just in case it turns out that one can make money off of the video. However: you gave That Guy permission, and that does not mean that the hundreds of Other Guys have permission. So you can pursue all of the Other Guys and demand that they take the video down, or require some payment to get your permission. | This would likely be considered a derivative work. You would need permission from the copyright holder to make it, especially if you intend to distribute it for profit. | This is a heavily fact-dependent question. Exactly how and how much your work "evokes" the original will matter. That said, your belief that "My understanding is that as this doesn't contain any mechanical part of the original movie it is fine." is not at all correct. If your new work is clearly based on the original work, it would be a derivative work. For example, if Shakespear's Romeo and Juliet were still in copyright, West Side story would have been a derivative work, and would have required permission. You would do well to consult a lawyer knowledgeable in this specific area, in your specific jurisdiction, as the detailed rules vary by country, although the general principles are pretty much world-wide. | Unless the "old" movie is so old that its copyright has expired (prior to 1926 in the US currently, I believe, the precise rule varies by country) or it entered the public domain in some other way (unusual), it is protected by copyright. One may use part of a copyrighted work only with permission from the copyright owner, unless an exception to copyright applies. Exceptions to copyright vary significantly from country to country In the US, the primary exception is fair use. This answer describes fair use is some detail. Fair use is defined by 17 USC 107. Whether something is a fair use is a highly-fact-driven determination., There is no clear bright line. Several factors must be considered, including at least the four= statutory factors. A short except, used in a transformative way, that does not harm the market for the original will often qualify as fair use, but details will matter. There is no specific length that qualifies a sound excerpt as fair use. For text, in the well known case of Harper v. Nation an excerpt of less than 300 words from a 500 page book was judged not to be fair use, because it was held to be "the heart of the work" and because its publication significantly harmed the market for the original (a paying contract was canceled because of the use). In other situations, much larger excepts have been held to be fair use. In some countries there is an exception to copyright known as "fair dealing" which is somewhat similar to fair use, but rather narrower and more restricted. Other countries have a list of specific exceptions (the law of India has more than 20 different exceptions). News reporting, criticism, commentary, and classroom use are common exceptions. In many countries, sampling is not covered by any exception, and permission is required. If an exception does not apply, and permission is not obtained, then using copyrighted content is copyright infringement. This is, in most cases, a tort, meaning that the copyright owner may sue the infringer. Such a suit may be brought in any country where infringing works are crested or distributed, and possibly in other countries as well. If the plaintiff (owner) wins, damages will be awarded. The rules for determining damages vary widely between countries, and the specific facts of the case will matter. To get a reliable opinion on whether a specific use qualifies under an exception to copyright, or requires permission, one would do well to consult a lawyer with copyright expertise. Or one could simply ask for permission from the copyright holder. For a publicly released movie, finding the copyright owner should not usually be too hard. The owner may say yes or no, or ask for a fee or other conditions. If the owner simply ignores a request for permission, that must be taken as a "no". For this kind of use, an owner is free to reject or ignore requests for permission if it so chooses. (In the US, cover versions of songs are subject to a compulsory license under certain conditions.) | I'm wondering whos responsible for this code if people start using it? The user. Can the people using it that think its under GPL in any way get in trouble for it or be made to remove it from their projects? Yes, they can be sued (successfully) for copyright violation. It’s not enough that you think you have permission from the copyright holder - you actually have to have permission. The law places the onus on the copier to seek out and get permission from the copyright holder. In theory, someone deceived in this way could sue the repo poster(s) for misrepresentation, however, there are practical issues about finding them, having them in an accessible jurisdiction and if they are judgement proof. Copyright law was created to protect physical books and paintings - it doesn’t really fit with digital methods of reproduction but it is the law. It doesn’t matter that complying with it can be hard bordering on impossible - comply with it you must. | Go to court and find out There is no doubt that humming a tune and recording it (or performing it in public) is a derivative work - a right reserved to the copyright owner. Whether it is fair use depends on the specifics of the case. From the tweet, we simply don’t have enough information, however, at a guess, it is probably not fair use. Fair use in law is Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 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. Most people miss “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” - if you aren’t doing one of those things then you start behind the 8-ball when yo move to the 4 factor test. Note that the “criticism, comment, news reporting,” etc. must be about the copyrighted work - I can’t use your copyrighted work to, for example, parody a politician unless you are that politician. Many people have completely the wrong idea about what copyright infringement and fair use actually are, in part because the use of music on YouTube is allowed, not because it’s fair use but, because YouTube was smart enough to negotiate and pay for a permissive licence with music producers. For a full explanation, see this video. |
What happens if a judge disregards a mandatory minimal sentencing law? What happens if a judge disregards the mandatory minimum sentence and sentences the convicted to time served or some other lesser amount of time? Would this judgement be binding? What would happen to challange it, and would the judge face prosecution and if so -- by who? Just to be clear, I'm not concerned about a judge that would cooperate or did so by accident. I'm concerned with remedies available to the state if a judge refuses to cooperate. Let's assume a judge refuses to impose a sentence (fails to apply) and isn't stupid (No self incrimination or reason to believe there was a bribe, coruption, or familial connection). | united-states Minimum sentencing laws do not prescribe any punishment for a judge that simply refuses to obey them. See 18 U.S. Code § 3553 as an example that explains how sentencing must be enforced, yet no mention of punishments for violating these laws. It also makes mention of how minimum sentencing can be avoided by a judge lawfully as well. Judges do not risk jail time or fines for breaking these laws, as they have judicial discretion, which is literally a power defined by what it means to be a judge, to hand out whatever sentence they think is appropriate. (Note: there may be exceptions, but I couldn't find any. If any such examples exist, they are likely rare) If a judge refuses to hand out an appropriate sentence by these laws, there are options available. The two main choices are by review, and by appeal. The review board has a few options. They can accept the lower sentence, they can reject the sentence to have the judge resentence, or they can assign the sentencing to a different judge. By way of appeal, the prosecutors can choose to appeal to a higher court. Eventually, either the sentence will become fixed at the reduced level, or it will be corrected by someone else in the system, if not the judge, then either an associate or superior. Either way, the odds are stacked against a rebel judge. However, at least one documented example of this exists, the story of Judge John Coughenour (linked below). He sentenced the same person three times for the same crime, and while he eventually did get a "victory," the story goes to demonstrate that (a) judges can rebel and get some effect, and (b) even as hard as he fought, he wasn't punished, but he also didn't get nearly the effect he was hoping for, despite a promise from the government to reduce the criminal's sentence in exchange for cooperation. While judges can be censured, reprimanded, removed from office, voted out (at least, at lower levels), and impeached, most of these punishments are reserved for situations of corruption, bribery, etc, rather than simply executing their judiciary discretion, which is one of the core powers granted to them by the judicial branch. Further Reading: One judge makes the case for judgment 18 U.S. Code § 3553 - Imposition of a sentence | Can someone be arrested for not being ‘nice’ to police? Yes. The arrest may later be declared unlawful, and the cop could later be disciplined by his boss, but if a cop wants to arrest you now for any reason they just can. Seems weird and an abuse of power to me. The available means of dealing with abuse of power have never been in excess. Could they win such a case? Yes. So could your friend. It depends on many many factors. | The US legal system deals with this by punishing you for the crimes of which you are convicted. That is, those where the evidence (whatever it is) convinces a jury that you are guilty beyond reasonable doubt. If there is insufficient evidence, for whatever reason then you would not be convicted. The prosecution can, subject to admissibility, put forward whatever evidence they like in order to convince the jury. This can include a pile of ash that they allege contained convincing and unambiguous evidence of guilt. Of course, if that's all they've got the prosecution would probably be censured by the judge for wasting everybody's time and money, more likely, a prosecutor wouldn't lay charges in the first place. As to punishment for an evidence tampering conviction: you have been convicted of evidence tampering, not drug production so you will be punished for evidence tampering, not drug production. The legislature sets different punishments for these for a reason, possibly a reason known only to them but a reason nevertheless. The judge has discretion to apply anything between the minimum and maximum sentence prescribed. A conviction for evidence tampering in a drug case rather than, say, a jaywalking case, is likely to get a more severe sentence all else being equal. | Your interpretation is correct. The constitution says that judges stay in office "until and unless they are impeached." That means that congress cannot impose a time limit on any judge's term of office. If it did so, it would be contrary to the constitution. The only grounds for removal are those to do with misbehavior. Therefore, judges have life tenure. | An "inquisitorial" system is one where the Judge or Magistrate actively questions the accused and witnesses to attempt to determine the facts. The Judge may also determine, at least in part, what witnesses to call in what order. An "adversarial" system is one in which each side presents its case, and the judge acts as an umpire deciding on procedure, and possibly makes the final ruling (or directs a jury to do so) but is not actively involved in questioning witnesses or deciding what witnesses to call. I don't see anything which would prevent a common-law jurisdiction from establishing an "inquisitorial" system by statute except longstanding tradition, but as far as i know no such jurisdiction has ever had such a system in place for dealing with criminal matters. The informal procedures in some small claims courts do have judges more actively involved than in other courts. I think this is also true in some family courts as well. I think I have heard of some civil-law jurisdictions which use something like an adversary system, but i am not sure of that. Certainly a civil-law country could pass a law setting up such a system if it chose to. | Yes The normal remedy for not receiving a fair trial or due process is the declaration of a mistrial. A mistrial legally never happened so it is up to the prosecution to decide if they want a retrial. Unless the appellant can demonstrate that no reasonable jury would have convicted on the evidence (which seems unlikely verging on impossible), the appeal will not acquit the accused. | Are there any legal constraints on the number of times that a defendant can be retried following mistrials due to hung juries? No. A fairly recent case in Louisiana, for example, involved someone who had been tried perhaps half a dozen times resulting in a mix of hung juries and reversals of convictions on appeal. Or is the only practical constraint the willingness of the prosecutor to expend government resources (and perhaps political capital) pursuing a conviction? Yes. This is the only practical limitation. | Yes, this is plausible. To be doctrinally precise, "jeopardy" attaches when the jury is sworn in. Once jeopardy attaches, there can only be a second trial if: The defendant is convicted of a charge that is reversed on appeal or in a collateral attack on the conviction. There is a mistrial that is attributable to the defendant or the defendant's counsel's conduct (e.g. the defendant is observed by the bailiff trying to bribe a juror with cash in exchange for voting to acquit), or is requested by the defendant or his counsel (who has not been "goaded" into doing so by the government). There is a mistrial that is not attributable to the conduct of either the prosecution or the defendant. As explained here: Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial as was addressed in United States v. Josef Perez, 22 U.S. 579 (1824). When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, 456 U.S. 667 (1982), the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." |
I fancy myself an amateur lawyer. Can I represent someone in court, in the state of Maryland? I live in Montgomery County Maryland. I am not a lawyer. But I have significant legal experience. I have successfully sued people, watched many trials, I have successfully won dozens of trials for my own traffic violations. And I'm a former state legislator. So I have read and argued about lots of legislation. Sometimes I feel like an amateur lawyer myself. And a pretty darn good one at that. My father recently received a ticket from an automated-traffic-enforcement system because he made a right turn without coming to a full stop. The fine is $75. But he doesn't want to pay it and I don't want him to pay it. It's more the principle of the matter than the fine amount. Because of my extensive experience litigating traffic trials, I want to represent my father in his trial. But as I mentioned above, I am not a licensed attorney. Can I represent him nonetheless? When the judge goes through the docket and calls his case, can I stand up and say, "Your Honor, I'm here representing Mr. Ali in this case?" Or will I get in trouble for doing so? This case is in the District Court of Maryland in Montgomery County. | If you are not a member of the Bar of Maryland, you may not "practice, attempt to practice, or offer to practice law in the State unless admitted to the Bar." Maryland Business Occupations and Professions § 10-601. "Practicing law" includes "representing another person before a unit of the State government or of a political subdivision." Maryland Business Occupations and Professions § 10-101. "[A] person who violates § 10-601 of this subtitle is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $5,000 or imprisonment not exceeding 1 year or both." Maryland Business Occupations and Professions § 10-606. EDIT: Because it's coming up in the comments I'll add that the option of a "McKenzie friend" is unavailable in Maryland and in the United States generally. There are some jurisdictions (404. Archive. ) experimenting with limited representation by non-lawyers, but I don't know of any such moves in Maryland. | It depends on the jurisdiction (naturally). The answer for Washington is "No, not exactly". RCW 9a.83.030 states that "The attorney general or county prosecuting attorney may file a civil action for the forfeiture of proceeds". The police can seize real property, but must file a lis pendens regarding the property. The bar that has to be cleared for forfeiture is "probable cause". The Institute for Justice has an extensive analysis of civil forfeiture, especially with a state by state summary (they aren't positionally neutral on forfeiture, but they are legally respectable). Then after a inevitable judgment (90 days if the judgment is sooner), the property is transferred. Notice is to be "served within fifteen days after the seizure on the owner of the property seized and the person in charge thereof and any person who has a known right or interest therein, including a community property interest", so they would notify Bob (assuming they know Bob is the real owner). Or, if Bob learns of the seizure that "If a person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of property within forty-five days of the seizure in the case of personal property and ninety days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right". It is possible that Bob's property could be taken (nothing prevents it), especially if Bob's hands are unclean. | It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question. | Under U.S. law, a U.S. court can assert jurisdiction sufficient to enter a binding judgment (called "long arm personal jurisdiction") if the events giving rise to the lawsuit took place in the state where the state or federal court in which the suit is brought is located. Generally speaking, modern U.S. law allows the service of the summons and complaint that gives the court jurisdiction over the defendant if the events giving rise to the suit took place in the state, to be served anywhere in the world (or even in outer space, for that matter). But, the practical reality is that serving someone with process from a U.S. court in another country would be difficult and expensive, and enforcing the judgment if you win could likewise be difficult. There are also a couple of other problems specific to small claims court: Many small claims courts do not have the full jurisdiction that the U.S. Constitution allows them to have by virtue of the statutes that authorize them and their contemplation that proceedings take place predominantly or entirely in person. It isn't uncommon for the statute authorizing a small claims court to limit its jurisdiction to defendants that live in the same county. Most small claims courts are only allowed to enter money judgments subject to some very narrow and idiosyncratic exceptions. Most small claims courts do not have jurisdiction to order specific performance of a contract to sell a car, even though they could award money damages for breaching the contract to sell the car if those money damage could be demonstrated convincingly. These barriers particular to small claims court could be solved by filing suit in another state court that has broader jurisdiction. (The federal courts would probably not have jurisdiction over this case even if there was "diversity of citizenship" between the parties because the amount in controversy would probably be less than $75,000 unless it was a very fancy car indeed to be worth that much used.) Different consideration would apply if these facts and circumstances arose outside the United States, depending upon the jurisdiction in question. | 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. | It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing, unless the lawyer has some basis for asking those questions. This is not true. A lawyer is allowed to guess and ask such a question, although if it assumes a fact not in evidence it could be objected to for lack of foundation. For example, the opposing counsel could object if the lawyer asked, "After you drank twelve beers at BigTown Sports Bar, isn't it true that you got into a car and drove away?", because there would be no evidence in the record at that point that he drank twelve beers at BigTown Sports Bar. For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash. Sure he could. He could ask, "Isn't it true that you were drunk at the time of the crash?" There is nothing objectionable about that question. If the answer was "no", however, and the lawyer had nothing else to back up that suggestion, the question might not help the case, but the question is proper. Sometimes a lawyer just has a hunch and goes with it, and sometimes the hunch is right. Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here with civil cases than criminal, where a defendant's Sixth Amendment rights might be complicate the question. It isn't codified because such a rule does not exist. There are some special rules that apply to prosecutors, who are ethically required to bring criminal cases only when they believe that the cases are supported by probable cause. But, that rule applies at the case level and not at the question by question level. Lawyers are also prohibited, especially in criminal cases, from making statements asserting personal knowledge of the credibility of a defendant or witness. This is because this transforms the lawyer from an advocate to a credibility witness. But, the lawyer can ask a judge or jury to find that someone is not credible in closing argument based upon X, Y and Z evidence presented at trial. | Publishing government records is pretty classic First Amendment-protected activity. Keeping in mind that one can find a lawyer to sue for anything, I think that person would likely be operating well within the law. One thing in particular that I'd recommend staying aware of is how one might attempt to monetize this endeavor. There have been a lot of sites publishing arrest records, court records, and mugshots, and then charging people to have them removed to keep them from popping up in a Google search for those people's names. That is -- rightly -- regarded as sketchy behavior; while several states have passed laws prohibiting that business model, I don't believe any such law exists in Washington State at this point. | Yes. In a civil case, there are two parties and the case is about finding out who has which obligations to whom. In a civil case, the plaintiff has to prove that they actually incurred damage through the actions of the defendant. A criminal case is the state vs. the defendant. The "wronged party" is the society as a whole, usually represented by the prosecutor. The victim, if there is one, just plays the role of yet another witness to find out if the defendant needs to be punished and how. There are also examples of crimes which are completely victimless but still punished by some societies. For example, in many places sexual intercourse between two consenting adult siblings is a crime (incest), even though there is no victim. Also, for some crimes it is even a crime to attempt to commit it. So one can be punished in a criminal court even though they didn't actually succeed in causing any damage to anyone. Example: I throw a rock at your car. When I hit, you can sue me in a civil court and force me to pay for the repairs. When I miss, I caused no damage to you, so there is nothing you could sue about. But what if I throw a rock at you and miss? That's attempted assault, maybe even attempted murder. When law enforcement finds out about it, I could be arrested, prosecuted and convicted to a prision sentence, even though you are perfectly fine. |
Is the 21st century's idea of "freedom of speech" based on precedent? Reading the First Amendment strictly through a textualist lens it is understood that Congress cannot limit our speech, but the First Amendment does not say anything about companies limiting it, or even the Executive branch limiting our freedom of expression through an executive order. 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. Since the First Amendment text is only about Congress's restrictions on making laws about speech, is the understanding that "we have the freedom of speech" based off of precedent set by courts? | Trivially, yes The First Amendment was adopted on December 15, 1791. Every time there has been a dispute about what it means that has gone to court since then, the judgement of that court has established, overturned or clarified precedent - that's what common law courts do. The government can limit your speech The Supreme Court has recognized categories of speech which receive lesser or no protection from the First Amendment. For example, inciting lawless actions, fighting words, true threats, obscenity, child pornography etc. They have also determined that it doesn't limit the government's power to impose reasonable time, place or manner restrictions on speech. As Justice Holmes put it in Schenck v. United States (1918), "Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic." It applies to parts of government which derive their power from Congress Which is, in most cases, all government. The executive actually has surprisingly little power granted by the Constitution (Article II, Section 2). All the other powers of the executive are technically delegated powers of Congress and are therefore subject to the First Amendment. Similarly, only the Supreme Court draws its mandate without going through Congress Article III, Section 1) - all other courts are subject to First Amendment restrictions. It only restricts government The limitation is a negative one on the US Congress (and through incorporation, the states). It does not, of itself, restrict private actors who are free to restrict speech however they want within their own property, including both physical and online spaces. It is open to the government to enact laws that would extend an affirmative right to free speech onto non-state actors (see Pruneyard Shopping Center v Robins (1980)), however, the Federal government has not done so and neither have most states. | Yes, legislative bodies can pass legislation that constrains the interpretation of the rest of their legislation. In the U.S., see 1 U.S.C §1-8. In Canada, see The Interpretation Act. In British Columbia, see The Interpretation Act. As an example of a back-and-forth between the courts and congress regarding a setting a standard of review, consider the passage of the Religious Freedom Restoration Act (RFRA). Summarizing from Holt v. Hobbs 574 U. S. ____ (2015): In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the Supreme Court held that "neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment". Congress desired a stricter test that prohibited the burdening of religion regardless of whether the laws are neutral or generally applicable. Congress passed RFRA in 1993, which required that "[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, unless the government demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest". RFRA was passed with the goal of setting the standard of review for all other legislation that burdens a person's exercise of religion. Without RFRA, the standard of review would have been that used in Smith, based solely on First Amendment protections. With RFRA, the standard of review became stronger, basically strict scrutiny. An example of Congress setting the factors to be used in a balancing test is the addition of fair use via the Copyright Act of 1976. Prior to 1976, courts had been applying a fair use exception based on common law rather than statute. The act encoded in statute the four factors that Congress wanted to be considered and listed several purposes for which fair use was explicitly applicable. In this case, Congress basically codified the fair use doctrine as it was being used at the time by the courts. It could be considered an expression of approval for the existing interpretation of the time and a desire to prevent drift in that analysis. | 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 essence of the order's argument is that in editing user generated content outside of the provisions in one section of the Communications Decency Act (CDA), the platform necessarily excludes itself from the protections afforded by another section of the CDA. The EFF says: ... Even though neither the statute nor court opinions that interpret it mush these two Section 230 provisions together, the order asks the Federal Communications Commission to start a rulemaking and consider linking the two provision's liability shields. The order asks the FCC to consider whether a finding that a platform failed to act in "good faith" under subsection (c)(2) also disqualifies the platform from claiming immunity under section (c)(1). In short, the order tasks government agencies with defining “good faith” and eventually deciding whether any platform’s decision to edit, remove, or otherwise moderate user-generated content meets it, upon pain of losing access to all of Section 230's protections. ... The order also argues that the very popular social media platforms such as Twitter and Facebook are the functional equivalent of the public square, not merely private providers protected by the First Amendment, and therefore should not be able to edit user generated content. The EFF article quotes from a Supreme Court judgment that says "merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints." Recommend the full article: https://www.eff.org/deeplinks/2020/05/trump-executive-order-misreads-key-law-promoting-free-expression-online-and See also Techdirt's article, The Two Things To Understand About Trump's Executive Order On Social Media: (1) It's A Distraction (2) It's Legally Meaningless. [edit] Eugene Volokh wrote a good explainer with background. Regarding the social-media-platforms-become-state-actors argument, see this recent D.C. Circuit judgment on appeal (Freedom Watch v Google etc): Freedom Watch's First Amendment claim fails because it does not adequately allege that the Platforms can violate the First Amendment. In general, the First Amendment 'prohibits only governmental abridgment of speech.' Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under Halleck, 'a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.' ... This was a group that alleged Google, Facebook, Twitter and Apple "conspired to suppress conservative political views ... its audience and revenues and succeeded in reducing each". Very similar to Trump's complaints. And "this idea that Section 230 requires sites to moderate in a neutral fashion has become very popular even though it has no basis in reality or law" - Ken White (aka Popehat) in another good explainer and podcast about this. | Is this illegal? No, subject to some possible narrow exceptions discussed below. Do the social media companies have a duty under the First Amendment to not censor users? No. Indeed, usually, there is greater liability exposure for failing to censor content, for example, by failing to honor a "take down notice" under Title II of the Digital Millennium Copyright Act based upon an alleged copyright violation, or for failure to censor content related to potential sex trafficking. The First Amendment to the United State Constitution (which applies to state and local government via the 14th Amendment to the United States Constitution) is a limitation on the power of governmental actors only. This said, some state constitutions, such as California's, provide free speech protections not just from government action, but also in spaces that are privately owned, but are open to the public and constitute de facto public forums. The authority of California to expand its state constitutional protections to these private settings was confirmed by the U.S. Supreme Court in the case Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). It is conceivable that these doctrines could be expanded to public Internet forums in the case of California based social media companies (e.g., Facebook has its headquarters in Menlo Park, California; so does its sister platform Instagram; LinkedIn is based in Sunnyvale, California; and Google is based in Mountain View, California). There are also laws that limit how employers can regulate employee speech in a labor relations context, although most of them don't have constitutional dimensions. It is conceivable that these doctrines could limit social media platform's authority to limit some kinds of speech by their own employees, or in situations where the social media platform looked like it was acting as a mere agent of some other employer controlled by that employer for all practical purposes. There has also been litigation related to free speech on social media regarding the rights of governmental account holders to exercise the same kinds of account management that is available to other users, implicating the First Amendment right to petition the government. The social media platform operator is not itself the primary target in these cases, but if it simply implements its terms of service neutrally with respect to all account holders, it could be facilitating a constitutional violation by its governmental account holders and could conceivably be held liable for aiding and abetting that violation of the law by a governmental account holder (in the context of a lawsuit for money damages this is a special subtype of something called a civil conspiracy). | 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). | This would require a constitutional amendment (overriding the First Amendment), which can be done in two ways. Congress can write an amendment and submit it to the states; or the states can call for a convention. None of these methods can be implemented by any number of courts. | 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. |
Is there "evidence-based" practice in law? "Evidence-based practice" (sometimes colloquially called "what works") is a buzzword floating around many professions nowadays, especially medicine and education. The idea is to use scientific research to inform and continuously improve day-to-day professional practice. For example, a schoolteacher following non evidence-based practices might teach square roots the same way he has for decades and the same way he was taught them as long as nothing obviously is going wrong (e.g. a flood of parental complaints, excessive number of students flunking out, etc.). By contrast, an evidence-based teacher would keep tabs on the latest scientific journal publications in mathematics pedagogy and alter his lectures, homework assignments, tests, etc. to conform to what was shown to work best in such studies. He may even do his own studies that he then publishes. In theory, this is supposed to create a virtuous cycle of continuous improvement where everyone is sharing their research and optimizing each others' practices. Research in evidence-based practice tends to be quantitative, for example, "Doing this instead of that in the classroom resulted in a 20% gain on standardized literacy test scores, a 10% rise in cumulative GPA, and 50% fewer behavioral referrals for student misconduct." Does evidence-based practice exist in the practice of law? If so, what does it consist of? Is it quantitative or qualitative? I have read legal research journals, and have found most publications to be deep-dive studies of this or that specific legal issue or area (e.g. intestate probate in California when the decedent was legally incompetent at the time of death and had a living spouse, not resident in California, who refuses to attend the probate hearing) rather than quantitative studies on whether doing X or Y will get me more wins at trial, get my clients more favorable settlements, or give me an edge getting "questionable" evidence not ruled inadmissible. The difference could be compared to a physician reading an essay on "What is non-XYZ skin cancer?" versus reading a study showing that increasing chemotherapy doses by 5% in patients with non-XYZ melanoma resulted in 10% fewer deaths among skin cancer patients at X hospital with caveats A and B and confidence interval C. In a nutshell: Non-evidence-based: Deep dive into the history of the Chewbacca Defense in criminal law from its origins in the mid-1300's to the present day, with specific notes to its successful use in a landmark Mopery case in Podunk Superior Court in 1955 and an Aggravated Creeping with Dishonest Intent case in the Supreme Court of Ruritania in 1987. Evidence-based: In a sample of Mopery cases in Podunk courts (N=235) from 1973 to 1982, defendants raising the Chewbacca Defense obtained 30% more acquittals than those using the Twinkie Defense. Among the small number of defendants who were convicted after raising the Chewbacca Defense, they, on average, received 20% lighter sentences than those who had lost after raising the Twinkie Defense. Conclusion: the Chewbacca Defense is more effective against Mopery charges than the Twinkie Defense with caveats A and B and confidence C. See Tables A and B for supporting data. | The primary field of research where the kind of studies you are thinking about are done is often called "empirical legal research." There is a fairly rich literature, that a substantial minority of practitioners in the relevant areas are guided by, in the area of issues related to jury trials: how jury composition influences outcomes, how juries make decisions, the difference in outcomes between jury trials and bench trials, the fact patterns that are prone to wrongful convictions or mistakes about the facts in civil cases, techniques that influence jury decision making outcomes, and the kinds of awards juries tend to make of non-economic damages in particular kinds of cases. Another area where there is a fairly rich literature that a smaller minority of practitioners reference concerns the facts that influence likelihood of success on appeal, which in turn influences the decision to appeal or not appeal a case, or to bring collateral attacks on a trial court decision (e.g. in habeas corpus review of a criminal conviction). A third area where empirical studies guide a minority of practitioners is the more general literature on negotiation which is used to influence how both transaction negotiations and settlement discussion negotiations, are conducted. In most other areas, empirical literature is used mostly to evaluate risk, either to determine its materiality in connection with worrying about it in planning a transaction, or in the early stages of a lawsuit. In these areas this is incorporated holistically into the general career experience and life experience of the attorneys involved. For example, there is an empirical literature that demonstrates that small business bankruptcies rarely successfully reorganize a business and usually result in tax creditors receiving most of the available assets, while big business bankruptcies usually do successfully reorganize (with some industries more successful than others) and tend to pay different kinds of creditors different proportions of their claims. This literature influences the decisions of individual creditors regarding what kind of cases to pursue more or less aggressively, and also influences how lawyers familiar with this literature advise clients about the risks involved in particular investments. Likewise, there is a literature on the likelihood of small business success over particular time frames with additional other factors considered (e.g. franchise v. non-franchise). | Most class action litigation involves a whole mass of people who suffered minute injury, whereby it wouldn't be cost effective to bring individual suit. There are exceptions, as with every rule. So, for instance, (I'll use one I was involved in): BARBRI, who established the curriculum, study aids, and taught nearly all of the prep courses for the bar exams in every state, illegally colluded with Kaplan, who ran nearly all of the prep courses for the LSAT (the law school entrance aptitude test) to create unfair trade advantage by price fixing and agreeing not to offer each others' service, thereby creating a monopoly. Because of this, there was no way to cheaply prep for either of these major events – it was use BARBRI or Kaplan, respectively, or study without these invaluable classes/aids. They were expensive but necessary to excelling on these very important tests. It wasn't that they weren't great test prep courses, it was that they created an environment free of any competition where you were forced to pay whatever they were asking. I got notice of class action, didn't opt out, and about 3 years later got a check for nearly $300. Perfect from my perspective. They taught me a ton, I did good on the LSAT and the Bar Exam and the money came at a perfect time. For those exceptions to the rule, opting out may be the best course of action, but as @nomen agentis noted, it does bar you from recovery as part of the class (although that is usually nominal) if you fail to bring private action, miss the statute of limitations, or fail to recover via settlement or trial award. As a further example based on my experience with BARBRI/Kaplan: say you were a person who couldn't afford to take the bar prep course, and because of the price fixing and limit on competition (monopoly) couldn't find any other alternative review course. If you studied on your own, looked for alternative study aides/courses to no avail (there were literally no others) and then failed the bar exam, and you could show that because of this, it was more likely than not that it was the reason you failed, you might have a case individually, arguing that your quarter-million-dollar education was functionally meaningless without a license to practice, and you couldn't get a job that paid enough to repay the loans because you couldn't get a job, etc. This would be the type person to consider opting out. Typically, these (the more injured person) are the people the attorneys search for who end up named as the representing party to the class, but not everyone can be a named plaintiff that suffered more than the nominal injury. Because of this, not everyone who had a more serious injury will be adequately compensated by the class action. These suits are meant to get a lot of people a little justice and to teach a lesson, not to get a few people largely compensated for substantial injury. They are also quite nice for the lawyers who make millions, because they get a percentage of the entire pie. But, if you suffer a serious injury for which a class action suit exists, then it would probably behoove you to opt out, after consulting with a lawyer. It's important to understand that for most people it's more beneficial to be in the class. These are typically the type injuries that on the aggregate equal substantial injury, but individually, no lawyer would take on a contingency and it wouldn't be worth while to pay to litigate, as the recovery would be nowhere near the cost of the litigation/attorneys' fees. If you are (like the example above) the odd individual who suffered a much greater injury than the remainder of the class, then opting out would not be wise. However, you don't automatically get more just because you sue individually, and there is no collateral estoppel or issue preclusion because you are suing on a different theory of damage. If you opt out, you start over. If you waited, you may benefit from any admissions in court, which can be used against them, but not any findings. However, a class suit will typically run much longer than an individual, so you would probably finish your suit before the class action concluded. If you are the person who suffered substantial injury, when you get the class notice you should consult an attorney right away, to see if you have a provable case and if opting out is the right choice for you. Statute of limitations need to be examined, as well as other procedural things. Generally speaking, those other reasons for potentially opting out that are in the question are not typical considerations. | france Yes, both for civil and criminal law, but in different ways. The general principle of civil law in France (and I believe every civil-legal-system jurisdiction) is that one is liable for any damage they cause through fault. Of course, details differ greatly between what is considered a damage, what are the standards to prove causation or fault, etc. Cour de cassation, civile, Chambre civile 2, 18 janvier 2018, 16-28.392 specifically endorsed a lower court reasoning that distinguished between préjudice moral (moral damage) and préjudice psychologique (psychological damage). The latter is about quantifiable medical damage (even if mental rather than physical), while the former covers grave breaches of wellbeing. In the case at hand, a couple was assassinated when their child was two years old; the child later developed severe psychic disorders as a result of the trauma; it was found that a compensation for the préjudice moral of losing his parents at a young age did not foreclose a later suit for the préjudice psychologique of developing mental troubles (which became visible much later in his life). To be honest, I would be extremely surprised if any jurisdiction recognized no cause of action for any type of psychological damage. There might be issues of burden of proof etc. such that in practice suing for psychological damage is unviable, but a complete bar on any civil action predicated on psychic damage seems unthinkable. Regarding criminal law, many assault-type crimes are scaled by gravity. That gravity is evaluated by days of "complete inability to work" (search incapacité totale de travail through that section of the penal code). While the notion has been standardized by work law cases, it also applies outside a work context when the damage prevents one from doing basic life actions (children, retirees or the unemployed can be subject to a "complete inability to work"). Whether the damage that caused it was physical or mental is irrelevant. Two notes though: physical damage resulting from assault is more easily quantified by that scale than mental damage. If a mob boss breaks your bones, you spend one month in the hospital, and then you get out roughly healed; it’s easy to say that it cost you one month of your life. If the same mob boss kills your wife in a gruesome manner, you might be haunted for life, but still be able to work, feed yourself etc., past one or two days of shock. "Low-level", long-lasting damage is not well-measured that way. quantifying the duration of a "complete inability to work" depends on the victim’s active cooperation with the prosecution (such as going to see a doctor to get a certificate). That is possible because the civil and criminal causes of actions are usually joined in a single trial, during which the victim will try to prove injury. (It is possible for the victim to open a separate civil trial, but that’s usually not a good idea. The same exact remedies are available by joining in the criminal trial; usually the prosecutor has the same goals as you in proving the facts, so why not let them do it and save some lawyer fees?) It would probably not be reasonable in a common-law system with separate trials. It also breaks down in certain cases (e.g.: in a good fraction of spousal abuse cases, the victim refuses to testify against the accused). | The difficult part is deciding when two cases are similar. Precedents from higher courts govern what the law is in a case. But, a lot of what trial court judges do is to boil down a mountain of evidence to determine authoritatively what facts actually transpired before applying the law to those facts. This involves immense amounts of discretion and judgment. Also, while in some cases the law provides very clear guidance to a judge about what to do, in other cases, the law is vague enough that two different judges can reach two different verdicts, both of which are legally correct, on the same set of facts. For example, in a divorce case (involving made up facts and law to illustrate the idea), suppose that the two main assets of the family are a house and retirement account of equal value and that the facts as applied to the relevant law say that the value of the assets must be divided equally between the husband and wife. One judge could award the house to the husband and the retirement account to the wife, while another judge could award the retirement account to the husband and the house to the wife. But both judges would have complied perfectly with the law. Similarly, in a divorce there are a variety of different custody plans for children that could all conform to the law and different judges could choose different plans and each be correct. As another example, suppose that a bulldozer destroys a house and the person whose house is destroyed sues for money damages. The judge is presented with two different appraisals from equally qualified appraisers for the value of the house, both of whom superficially at least, are using proper appraisal methods. But one appraiser says the house was worth 1,000,000 and another says that the house was worth 1,500,000. Realistically, any verdict the judge renders between 1,000,000 and 1,500,000 could be upheld as legally correct. Because the process of turning evidence into legal verdicts involves so much discretion and so many judgment calls, and because it is rare that two cases are factually identical, the goal of giving similar verdicts for similar cases, is difficult to achieve and difficult even to evaluate in real life. It is almost certain that similar cases often result in dissimilar verdicts, and not infrequently the reasons for this (like using personal ideologies as opposed to what the law demands to resolve close cases) are not good ones. But deciding how common that is, or in what kinds of cases it is most troubling that this happens, is very hard to determine. | 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. | These decisions are inherently individual. The judge in this case explained the reasons why he thought it would be helpful to set out the full context of organized pseudo-legal commercial arguments. Meads v. Meads, 2012 ABQB 571: [2] Over a decade of reported cases have proven that the individual concepts advanced by OPCA litigants are invalid. What remains is to categorize these schemes and concepts, identify global defects to simplify future response to variations of identified and invalid OPCA themes, and develop court procedures and sanctions for persons who adopt and advance these vexatious litigation strategies. [3] ... One of the purposes of these Reasons is, through this litigant, to uncover, expose, collate, and publish the tactics employed by the OPCA community, as a part of a process to eradicate the growing abuse that these litigants direct towards the justice and legal system we otherwise enjoy in Alberta and across Canada. I will respond on a point-by-point basis to the broad spectrum of OPCA schemes, concepts, and arguments advanced in this action by Mr. Meads. [5] The Meads case illustrates many characteristic features of OPCA materials, in court conduct, and litigation strategies. These Reasons will, therefore, explain my June 8, 2012 decision and provide analysis and reasoning that is available for reference and application to other similar proceedings. [6] Naturally, my conclusions are important for these parties. However, they also are intended to assist others, who have been taken in/duped by gurus, to realize that these practices are entirely ineffective; to empower opposing parties and their counsel to take action; and as a warning to gurus that the Court will not tolerate their misconduct. One of the roles of a judge in the common-law legal system is to guide the development of the law. By describing this collection of vexatious tactics, the judge was hoping to allow future courts to simplify court responses to these tactics in future cases. While the reasons in Meads were written prior to the Supreme Court of Canada's decision in Hryniak v. Mauldin, 2014 SCC 7, it is consistent with the Supreme Court's direction to create an environment that promotes timely access to justice. Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. By helping other judges efficiently understand and dispose of pseudo-legal commercial arguments, the reasons in Meads further the goals of access to justice. This implication was recongized in Jarvis v. Morlog, 2016 ONSC 4476: In my view, precious judicial time should be spent on resolving real matters. Simply taking judicial time to respond seriously to OPCA claims gives the claimants a measure of success in advancing their improper purposes. Associate Chief Justice Rooke spent more than enough of his very valuable time creating a textbook of abusive OPCA practices in Meads v. Meads. In my view, not another moment of judicial resources or party expense should be invested on OPCA claims. The legacy of Meads is examined by Donald J. Netolitzky, "After the Hammer: Six Years of Meads v. Meads" (2019). He argues that the judge was successful in this goal. He also agrees with you that this decision is "exceptional": in the breadth of its investigation and its choice of audience (at times speaking "directly to those who use and promote OPCA concepts"). He notes that Meads has been accepted in subsequent jurisprudence as a "critical resource" in Canada and around the world. While one might expect that the material in Meads would have been the more appropriate role of an academic article, Netolitzky observes that "[i]n Canada, legal academia has paid essentially no attention to pseudolaw, both before and after Meads." Perhaps had there been a helpful body of academic literature, Meads would have been unnecessary. Netolitzky argues that the reasons in Meads reflected "trial court expertise." These matters tend not to end up in courts of appeal. He also agrees with your analogy to an academic article, calling this a "review judgment" (like a "review article"). He says that Meads "atypical content" was needed to "fill a gap in legal literature" and that it was sufficiently connected with the materials and arguments put forward in the case. "Without that context, Meads is a bizarre, inexplicable actor, a caricature of vexatious litigation." | The law is known to everyone in theory. But as various people are said to have said, In theory, theory and practice are the same. In practice, they are not. Starting from zero and actually finding out what law is applicable to your circumstances is not a trivial matter. To have an answer you can rely on you need to do the following: Find out what law calls it. Sometimes this is obvious, but not always. Go and find the law in question. Over the last 10 years this has got much easier. It used to mean going to your city library and looking up the relevant law. These days we have Google (other search engines are available). Find any other laws which might have bearing on the matter. This can be a long way from obvious (see below). Find any relevant appeal court cases in which something like your circumstances have arisen, and figure out how they relate to your actual situation. You may find that some of the laws which you read in Stage 3 have been ruled unconstitutional, or that the standard of evidence required to prove or disprove something about it has been set impossibly high, or that the penalties or damages have been set absurdly high or absurdly low. If you are in the US then maybe some of those precedents were set in other circuits, in which case you need to figure out what your local circuit is likely to do about it should the occasion arise. Make a calm, dispassionate decision about what to do about your situation. Many people find this extremely difficult. The answer might be life-changing. Under these circumstances making a good decision is very hard. Just to give you an idea about (3), suppose you are planning on importing something for your business. Here is a list of areas of the law you might fall foul of, off the top of my head and I've probably missed some: Tax. Trade in endangered species. Drug prohibition. Environmental protection. Biosecurity. Health and safety. Consumer protection. And that is just the criminal laws. Theories of civil liability can get really complicated. But OK, lets suppose you figure out the law, but despite your best efforts you find yourself in court (criminal or civil). Now in addition to all the law you find yourself enmeshed in a complicated bureaucratic set of rules, depending on the type of court and where you are (e.g. US rules of civil procedure). At this point you need to learn not just the rules but how to play the game they describe. Think of it like playing chess; learning how the pieces move is only the first step on the long road to becoming a competent chess player. And the legal system is like chess in another way; there are no do-overs if you make the wrong move. (Incidentally, anyone who says "Well lets just get rid of all the complicated rules and laws" is committing the fallacy of Chesterton's Fence. Just because you can't see why the rules are there doesn't mean there isn't a good reason). Or you could just hire a lawyer. | Why do attorneys have these? Originally to use as references, although some kinds of books (e.g. case law reporters, Shepard's citations, Martindale Hubble directories, and serial analysis of case law like Am. Jur.) are rarely used that way any more. When I started practice in the mid-1990s, it cost several hundred dollars an hour to access online legal sources (that were less comprehensive and had lower quality search functions than the service that comes free with my bar membership today), so the vast majority of legal research was done with hard copy case reporters, digests and annotated statute books. A complete set of case reporters for a single state would typically run to hundreds of volumes with new ones arriving monthly. A full set of Shepard's Citations (which told you if a case have been overturned or questioned in later cases or just where it was cited with approval) took roughly a full shelf of a full sized book case when limited to a single state. Any law firm that is at least fifteen or twenty years old needed them when they bought them and lawyers hate to throw anything away. Case law research is now predominantly online. The last time I used Shepard's citations and hard copy case reporters on a regular basis was a decade ago. Law journal research is also predominantly online now. I sent most of my uglier and numerous law books (including several dozen volumes of an outdated legal encyclopedia summarizing case law) to the recycling bin about six or seven years ago. Do they actually reference them, especially when so much information is searchable and indexed online? Lawyers still routinely use statute books in states where they practice, court rules, standard jury instructions, and to a somewhat lesser extent treatises on different areas of the law (including the Restatements of Law). Now and then, lawyers will still use a hard copy of a West Digest. And, I have yet to encounter a lawyer who doesn't have at least one or two decent sized book cases full of law books. In statutes and court rules (and regulations), typesetting details that can get mangled online are important and browsing a structured text can be easier to do on paper than online. There are some regulations available only in online versions that I print for ease of use (e.g. Colorado's marijuana regulations and its Medicaid regulations). I also print for ease of use my state's title standards (for use in determining if someone has marketable title to real estate), even though they don't have the force of law. I also keep a few hard copy model statutes with the official commentary. It can also be hard on the eyes to look at a computer screen non-stop all day, so looking at something you use regularly on paper can be a relief. Are the books updated regularly? or are these the books they graduated with, and are rarely changed out? Statutes and court rules and jury instructions are typically updated annually, following each year's legislative session. Treatises are updated with "pocket parts" every year, that are added to a hardbound edition that is updated at most, every several years. A pocket part is a softbound update with the same section organization as the underlying treatise that has a flap the fits into a pocket in the back flap of a hard cover treatise. Bigger "pocket parts" are printed as thin softcover bonus volumes to the original treatises. I also keep a current softbound "Bluebook" (the reference regarding how legal materials should be cited to in legal documents and legal scholarship) and several high end dictionaries including Black's Law Dictionary, the OED and a few others in hard copy (because browsing is easier when you don't know exactly how a word is spelled). I keep many of my law school textbooks, which some people do, and other people don't, and I buy new treatises especially when I move into a new area of law practice where background guidance is useful. Do the books exist purely for psychological impressions, or is there a utilitarian purpose? Both. Sometimes old books that don't have much ongoing practical use are kept on the shelves because they are pretty. For example, I don't really need a hard copy of my outdated New York State Statutes, but they look good (even though I practice mostly in Colorado and look up New York State statutes online when I need to actually use them). But, I use hard copy statutes and court rule books for the state where I practice on pretty much a daily basis and use hard copy treatises at least several times a week in my law practice. In that respect, I am not atypical, although I probably use hard copy books more than younger lawyers do. Of course, even among these books, some volumes are used much more often than others. I look at a volume of insurance industry regulation statutes at most, once a year, while I read the volume related to divorce and probate at least once or twice a week, for example. Hard copy books are also useful for pinning down the corners of blueprints and surveys when you are in litigation where those kinds of oversized paper documents are at issue. ;) |
In France, what are the legal implications of using a shooting sport firearm for self-defense at home? As some of you may be aware, when you subscribe to the French Shooting Federation to shoot for sport and do the required legal paperwork, you can acquire a firearm for the sole purpose of practicing shooting at a shooting range (you can't carry it on you; you can only transport it between your home and your shooting range). As such, the firearm is as much a sport equipment as a bow or a javelin/spear for example. The safety rules are clear: Always consider a weapon as loaded. Never point the gun toward a target you don't wish to destroy (or point it only toward a target you want to destroy). Only put your finger on the trigger when you took your aim and are ready to shoot. Be aware of your target and its surrounding (i.e. if it goes through, make sure no one is behind). Along with the safety rules, you have one specific rule in the French Shooting Federation flier (this one is from 2016) that says (page 4): interdiction absolue de viser quelqu’un sous peine de radiation Which translates into: "It is strictly forbidden to target someone/point your gun toward someone; if you do, you will be banned" (i.e. most likely your license will be revoked, your firearm(s) will be taken away, and you will be on the files of people who are forbidden from owning a firearm). Now, let's assume I am a law abiding citizen who acquired a firearm for leisure shooting at a shooting range, which I am storing unloaded in a locked safe at home. Someone breaks into my home and I end up in a life threatening situation (either one of my family members or myself). I somehow manage to have my firearm loaded with a chambered round and use it to threaten the assailant. If the assailant decided later on to sue me for improper usage of a sport firearm, what would be the legal consequences for me (the leisure shooter who acquired a firearm only for sport)? What if I shot and injured the assailant? | Although the assailant (or their estate if they are killed) could lodge a claim for damages it does not necessarily follow that they would win - they would have to show that the shooting was not legitimate self-defence but rather was unlawful by, for example, negligence or use of excessive force - say by shooting them when they didn't pose an immediate and unjustified threat. The Federation rules, as far as I can see, are not actual legislation. Although they should be adhered to in normal circumstances, this shooting would be, in the given circumstances, legitimate self-defence according to Article 122-5 of the Code Pénal which says: N'est pas pénalement responsable la personne qui, devant une atteinte injustifiée envers elle-même ou autrui, accomplit, dans le même temps, un acte commandé par la nécessité de la légitime défense d'elle-même ou d'autrui, sauf s'il y a disproportion entre les moyens de défense employés et la gravité de l'atteinte. N'est pas pénalement responsable la personne qui, pour interrompre l'exécution d'un crime ou d'un délit contre un bien, accomplit un acte de défense, autre qu'un homicide volontaire, lorsque cet acte est strictement nécessaire au but poursuivi dès lors que les moyens employés sont proportionnés à la gravité de l'infraction. Which Google translates to English as: The person who, in the face of an unjustified attack on himself or others, performs, at the same time, an act ordered by the necessity of the self-defense of himself or of others, is not criminally liable, except 'there is a disproportion between the means of defense employed and the seriousness of the infringement. The person who, in order to interrupt the execution of a crime or an offense against property, performs an act of defense, other than intentional homicide, when this act is strictly necessary for the aim pursued, is not criminally liable. provided that the means employed are proportionate to the gravity of the offense. | Almost certainly, there is no such right. It's illegal under 18 USC 831 to possess "nuclear material" without specific authorization. 18 USC 832 forbids the possession of a "radiological weapon". If there is intent to use the device to cause death, serious bodily injury, or damage to property or the environment, that's also a violation of 18 USC 2332i. I don't think these laws have been explicitly tested against the Second Amendment, but related cases suggest they would hold up (if the challenge wasn't simply dismissed as frivolous). The Second Amendment doesn't grant a blanket right to own weapons. Federal law, 18 USC 922 (o) makes it unlawful to own a "machinegun" (as defined in the statute), and in the case of Hollis v. Lynch, the Fifth Circuit held that this law was constitutional, because, as they said, the Second Amendment only protects weapons that are in "common use [...] for lawful purposes like self-defense." This case doesn't seem to have been appealed further, but the reasoning cited by the Fifth Circuit comes from the Supreme Court's opinion in D.C. v. Heller. If machineguns aren't in "common use", and therefore not protected, surely the same would apply to nuclear weapons. | Bob can probably print the firearm for personal ownership if Bob is not prohibited from possessing a firearm himself, but after that it gets problematic. This is ignoring any potential safety violations and liability issues or patent violations which might arise. According to an ATF spokesman quoted in this article : it is legal for Americans to build their own firearms without a license so long as they are not prohibited by law from possessing firearms, the firearms are legal to own, for personal use, and not for sale or transfer to others. Whether the gun parts are printed, created by other ways of manufacturing, or legally purchased from a licensed dealer has no impact on whether it is legal for an American to build a gun for personal use, though some states like California have placed additional requirements on the process. So transfer of ownership is possibly problematic. It's notably not a way to avoid normal firearm possession restrictions : Knight [the ATF spokesman] emphasized it is not legal for felons or somebody otherwise prohibited from possessing firearms to build their own guns under any circumstance. "Title 18 of the United States Code, section 922(g) prohibits several categories of persons (i.e., persons convicted of a crime punishable by imprisonment for more than a year) from possessing firearms in or affecting interstate commerce," Knight said. "Title 18 of the Unites States Code, section 922(d) prohibits persons from disposing of any firearm to a person the transferor has reason to believe is prohibited from possessing firearms under federal law." Finally there's a rather crucial point to note about the design of such firearms : He said the Undetectable Firearms Act of 1988 outlaws the manufacture or possession of firearms that can pass through a walk-through metal detector or X-ray machine commonly employed at airports without being detected. "A person or manufacturer cannot produce an undetectable firearm as prescribed in Title 18 of the United States Code, section 922(p)," he said. So making a weapon that's undetectable by a metal detector is not allowed (at least according to the ATF). | I think that the language In consideration of permission to use, ... Recreational Sports Department ... arising from, but not limited to, participation in activities, classes, observation, and use of facilities, premises, or equipment. would be read as limiting the waiver to cases in some way connected with the RSF. Even so limited it is rather broad, and may not be enforceable. In particular public facilities are not always allowed to obtain a waiver of otherwise valid negligence claims. If it were interpreted to mean "all claims on any matter, even ones having nothing at all to do with the RSF" then I think it would be so broad as to be unenforceable as unconscionable, and as misleading, so that there was no meeting of minds. | 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. | First of all, we need to determine what laws this new hybrid gun falls under. We got a normal shotgun, which in itself might be under the National Firearms Act (NFA) a Class 3 Destructive device, but most aren't. So, let's assume "Shotzooka" is a standard Remington 870. Because Billy wants his gun to be more compact, he shortens the gun with a telescopic stock. Great, there are 2 options for that: a full stock that can be lengthened and one that is pretty much folding out completely. This can be a problem if the total gun in its shortest configuration gets below 26 inches length - then it is illegal under Texas law as a short barrel firearm. And the complete removal makes it no longer a shotgun under federal law but pushes it to a different weapon category: Any Other Weapon. Since it once was a proper shotgun (which means it had a stock) it can't ever become a Pistol Grip Firearm. Now, here comes the crux: owning and operating these is totally fine if you have them registered at the Bureau of Alcohol Tabacco and Firearms. But you need to register your intent to manufacture them before you start with the conversion and have the approval of your project. It also costs 200$ tax -but you need to also make sure your new gun is allowed locally (see below). The Laser sight likely isn't a problem... but now comes the really big problem: The laser-guided anti-tank missile. THAT is a problem. Because anti-tank weapons are explosive and all explosives are classed as Destructive Devices under the NFA (well,technically that's Title II of the Gun Control Act of 1968 amending the NFA of 1934...). And possession of such a Title II weapon like a Destructive Devices demands them to be registered and tax-stamoed for 200$ federally - and manufacturing them is prohibited for private citizens. This means in the act of mounting the missile to his shotzooka he turned her into an illegal, unregisterable NFA Class3 DD of the explosive type, illegally manufactured it, and just for the possession alone put himself up to a fine of 250k and 10 years jail time: The charge of unlawful possession of a destructive device in violation of the National Firearms Act carries a maximum statutory penalty of 10 years in federal prison and a $250,000 fine. But the trouble doesn't stop there, Texas itself has a penal code that defines that anti-tank missile somewhere! Texas Penal Code, Title 10, Chapter 46: 46.01 DEFINITIONS (2) "Explosive weapon" means any explosive or incendiary bomb, grenade, rocket, or mine, that is designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage, or for the principal purpose of causing such a loud report as to cause undue public alarm or terror, and includes a device designed, made, or adapted for delivery or shooting an explosive weapon. (10) "Short-barrel firearm" means a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a shotgun or rifle if, as altered, it has an overall length of less than 26 inches. 46.05. PROHIBITED WEAPONS. (a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells: (1) any of the following items, unless the item is registered in the National Firearms Registration and Transfer Record maintained by the Bureau of Alcohol, Tobacco, Firearms and Explosives or otherwise not subject to that registration requirement or unless the item is classified as a curio or relic by the United States Department of Justice: (A) an explosive weapon; (B) a machine gun; or (C) a short-barrel firearm; Sec. 46.09. COMPONENTS OF EXPLOSIVES. (a) A person commits an offense if the person knowingly possesses components of an explosive weapon with the intent to combine the components into an explosive weapon for use in a criminal endeavor. OUCH! See that? The mounting of the missile launcher just turned the gun highly illegal, and even in the act of shortening the shotgun by altering the stock to be telescopic, it might have become illegal if the gun became too short. And it gets worse. The mere possession of the guided missile is impossible unless it's a curio or relic (which would mean it is old!) or registered, but it can't be because private citizens can't make it... and even owning the parts for the missile would be illegal if they would be used in a crime... wait, manufacturing of a missile is a crime, so owning the parts also is a crime! tl;dr: Billy is screwed under both texas and federal law. | The terminology used may vary some by jurisdiction, but in many it will be said that Bob provoked the confrontation, or that Bob was the aggressor, or that Bob was engaged in a felony and so cannot claim self-defense. This fact patter is highly unlikely to arise in real lie, because if Bob has even a half-competent lawyer, the issue of self-defense, sure to fail, will not be raised. Doing so only wastes the court's time, and may well make them think worse of Bob, which may cost him. In less open-and-shut cases, the general rule is that one who provokes a confrontation, or who is the aggressor, may not claim self-defense. But the exact rule varies by jurisdiction, and the line will be drawn in different ways in different jurisdictions. In some one who seeks a confrontation may be denied a right of self-defense. | It is a good idea for a story: that’s why it’s a trope It features (with drugs instead of guns) as the core plot point of 2019’s Knives Out. Shooting someone with a BB gun is problematic because it’s hard to see what legal justification there could be for that type of assault. However, if we instead thing of paint ball guns, C is a murderer and A & B have committed no crime. Real life examples: While performing a suicide scene in a production of Mary Stuart by Friedrich Schiller in Vienna, actor Daniel Hoevels accidentally slit his own neck, as the theatre company's order for the originally sharp knife to be dulled for the stage was overlooked; a police investigation never determined who was responsible, or whether it was due to negligence or a deliberate attempt to kill or injure him. The wound was almost fatal, but Hoevels quickly returned to the stage after emergency treatment in the hospital. Never treat a blank in a gun as harmless. They can maim or kill you. Anyone who says otherwise is not your friend. Read the article here on Gun Safety for more details. There have even been two sad cases listed in Fatal Method Acting: Brandon Lee, accidentally killed during The Crow because the crew left a cartridge in the barrel before loading the blanks, which then hit his spine; and actor Jon-Erik Hexum, who in-between takes of the show Cover-Up, goofed around with a gun and by firing it into the side of his head, had a blank cause enough trauma to shatter a quarter-sized piece of his skull and propel the pieces into his brain. More than 20 illusionists have been killed performing the 'bullet catch' trick. It is generally considered the most dangerous magic trick as so many things can go wrong. Some of those killed were murdered when someone (often their partner/assistant) substituted a live round for the blank or—in earlier days, when single-shot black powder guns were used—placed the ball back in the barrel after it had been removed. |
Hired salary but paid hourly I got an offer letter and contract from my current employer. The offer letter states "The salary is $115,000 annually, paid monthly." I am currently working as contract to hire, and I have a 1099. The first week I worked about 45 hours, the second week around 39, the third week around 60, and the last week around 30. Pretty standard. My pay should be roughly 115,000/12 = 9583 a month. For the first 2 months now, I got one check for 7500 and one for around 7800. When I brought up my concerns I was told I don't do 40 hours every week, and they aren't going to pay me salary when I don't put in all the hours. 2 questions, Are they right? If they are wrong, and I think they are, if I continue working there am I agreeing to the changes if they are not written out and signed by both. Do I give up my rights to the proper agreement we had? | The Company is performing wage theft I have never heard of a wage method that pays a salary according to hours but doens't pay for hours over 40. Monthly Salary, by definition, is paid regardless of hours. Your contract doesn't give hours, it just gives a monthly total. That's a contract, and you should be paid according to the contract. In terms of fairness, it certainly isn't right to dock pay for weeks you worked less than 40 but not give you credit for weeks you wored more than 40. Now, it's not clear if you moved to direct employment for the second month. If you did, the first month would be a contract violation, and the second would be a violation of wage & labor law. A company can't pay you salary as an exempt (exempt from hourly wage laws, like management) employee and also dock you pay according to hours worked. So what can you do? If you are still a contractor and actually want the job, not much more than arguing with payroll. Since you (why?) decided to be a contractor instead of a direct hire, you have exactly zero protections to getting let go. If you are a direct employee, you have protections from bringing action about being paid fairly, though your long-term prospects there would be problematic if you have to take the company to task using the government. Any HR rep should know all of the above. But never just go to HR without talking to your manager first. Remember that HR works for management, and working against your manager is generally a bad career move. | In Canada can employer force employees not to discuss wage? Not in Ontario. That would violate Section 74(1) of the Employment Standards Act, 2000: No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so, (a) because the employee, (v.2) discloses the employee’s rate of pay to another employee for the purpose of determining or assisting another person in determining whether an employer is complying with Part XII (Equal Pay for Equal Work) See also Section 74.12(1)(a)(v.2). What if the employee signed a confidentiality agreement where they agreed not to discuss wages? The agreement would be void in that regard. See Section 5 of the same Standards: [...] [N]o employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void. The allowed exceptions are any clauses that provide a greater benefit to an employee than the employment standard (see 5(2)). | Under UK law what kind of payment is it? Is it the same thing as a bonus? Essentially yes What rules apply? Assuming the employee is standard PAYE then the money will be subject to tax and NI the same as any other lump sum salary payment. For example, can an employer do as they wish? is it entirely dependent on what's in the contract? is it legal to give to everyone except those working their notice period? Things like this aren't typically specified in a contract - and as such are almost completely discretionary. They can exclude people working their notice period, people who have less than a certain amount of time employed etc. What they can't do is exclude people based on protected characteristics - they can't say "Only women get this" or "Only white people". | Having done a bit of brief research, I find that "legit" is a synonym for "good". So, no. The header announcing a "principal amount" serves no purpose and could be misinterpreted as indicating that there is a loan. There is no reason to indicate the date twice, which gives rise to two different values of "date". The phrase "For value received" can be interpreted in at least two ways, one being "in exchange for some unspecified value to be received at some future date by Promisor", and "in exchange for a specific value already received by Promisor". Under the later interpretation, Promis(s)ee probably could not breach but under the former, Promis(s)ee could. So it makes a difference. You can just pay to the Promis(s)ee, and not imply that you are creating a pay-to-order instrument such as a check. That still leaves you the option to pay with a check. Or was the intent to say "pay on demand"? The expression "the sum of £500 shall the Promisor fail to meet his target" is not grammatical in US English, and I'll leave it to a UK speaker to judge if this is, over there. I assume that this is supposed to express conditionality, in which case "if" is a useful term. Then the meat of the contract, I guess, is that if the Promisor fails to meet somebody's target of 47.5 work hours per week, then Promisor has to pay Promissee £500 (and not otherwise). It's really not clear how anyone would know whether "meet a target of 47.5 work hours per week" has come to pass. Does that mean "work at least 47.5 hours per week"? Does that mean "for each of the three weeks within the time period" (or did you mean "work 47.5 hours within some one week, within the 3 week period"). Being explicit that the work obligation extends for 3 weeks would be legit (vide supra). Supposing that the second clause means "Promisor will pay £500 by 5:00pm 2 July 2016", you should put it that way. Or if you mean "Promisor will pay £500 by 5:00pm 3 July 2016", say that. Deadlines for performance should be stated very directly and clearly, and require no calculation and interpretation. And I'd suggest including a clause stating that "Promissor" and "Promisor" are used interchangeably in this contract. Or else be consistent in spelling. Note that almost any contract can be given some interpretation. From the perspective of creating a contract, the first concern should be over clearly expressing the intentions of the two parties in written form. After all, you don't have a contract if there is no meeting of the minds. | 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. | It depends to a large degree on local employment laws. Depending on how the counteroffer was worded, it might have constituted anything from a binding legal contract for employment for some reasonable minimum term, or a totally non-binding suggestion that was worth less than the air breathed while pronouncing it. Some things to consider would include: What are local employment laws like? Do they require that termination be for cause? If so, what are causes for termination? Does termination require any kind of remediation beforehand? Note that in an at-will, right-to-work state in the US, odds are that the employee can be fired for any time and for any reason, supposing the employer hasn't accidentally entered into a contract by extending the counteroffer. What did the counteroffer say? Did it stipulate that the offer was not for a definite term and that the company reserved the right to terminate the employee for any reason, or no reason at all? Odds are any sufficiently serious business in an at- will, right-to-work state would use standard legal language in any offer or counteroffer to ensure that they are on the right side of this, so odds are the counteroffer was accepted with no obligations at all on the company. Does the termination affect eligibility for unemployment benefits? I would say most likely not, as the termination would probably be recorded as being for no reason legally speaking (if they admitted to terminating the employee for seeking other employment, interested government officials could take a dim view of the company's actions). You'd probably have at least some unemployment compensation coming your way. Some professional - not legal - advice. Never accept a counteroffer. Only get another offer in the first place if you are committed to leaving your current employer no matter what. If your company really insists, you should insist on a minimum definite term of employment written into a legal contract which is signed by an executive and notarized. No company will agree to this (unless the term is shorter than you'd want as a full-time W-2 anyway) but if they do, hey, you have some security (if the company agrees to this, have your own lawyer - whom you pay with your own money - review the document). Even then, I would be very, very careful about staying at a company after getting a counteroffer. Don't do it. Ever. Never accept a counteroffer. One comment asks why I recommend never accepting a counteroffer. There are at least two reasons: The reason you are looking for a new job should be that there is something about your current job that isn't completely satisfactory and that you haven't been able to fix. Either you have grown out of the position, don't like the work, feel you're underpaid, don't get along with somebody, etc. If you were unable or unwilling to fix any of these issues without having another job on the table, having another job on the table shouldn't be what makes you willing and able to fix them. Why work somewhere that you'd constantly need to go job hunting to address workplace issues? Unless the company makes firm agreements about how long they're going to keep you around, you have no guarantee that they'll keep you. Presumably, you didn't have one before, and you don't have one at the new job, but the fact that you are currently employed might support the assumption that your employment would be continued at your current employer and the offer might support the assumption the new employer plans to employ you indefinitely. When you put in your notice, it makes the company more aware of the fact that you could leave at any time; while a perfectly rational actor would realize that this doesn't change the situation at all, companies are run by people and people often act irrationally. Perhaps your manager is vindictive, perhaps your manager is scared that you will still leave after accepting the counteroffer. Maybe your manager knows there are layoffs coming but needs you for the busy season. Hiring replacements can be time-consuming and expensive - and employees who are getting offers of employment elsewhere and putting in notice might be seen as risks. I'm not saying that accepting a counteroffer has always turned out badly. Falling coconuts kill 150 people every year. Still, I am not going to add a coconut rider to my insurance policy and I am not going to accept a counteroffer. | 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. | Some portions of your inquiry are confusing, as in "I insisted that we were going to continue to send money to the mortgage company if we don’t understand what the fees are for". It is unclear why you would continue to send money without understanding the reason for fees, especially since you purportedly sent "the complete payoff" already. What is an appropriate response to an email from a lawyer that says she’s going to withdraw from my case, because I would like to understand the additional fees and charges my mortgage company is charging (over and beyond the plan payment/payoff)? Rather than replying to the lawyer's email, it is more important that you timely file in court a response (with 2 or 3 copies) to her motion to withdraw and that you attend the court hearing (if any is scheduled). Don't forget to also mail your attorney a copy of your response. In the response, you will need to argue that your lawyer's refusal to adequately address your inquiries is in violation of the rules of "professional" conduct (with which attorneys are supposed to comply). By granting the attorney's motion, the court would improperly release her from pending obligations she has with respect to you. For instance, Rule 1.4 of Michigan RPC states: (a) A lawyer shall keep a client reasonably informed about the status of a matter and comply promptly with reasonable requests for information. [...] (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (note: other jurisdictions in the U.S. have equivalent rules, so you will need to refer to their corresponding label) By pushing you to pay another $850 without actually explaining you the details of the "settlement" with mortgage company's counsel, your lawyer clearly is failing her duty to reasonably inform you of the matter for which you retained her. Therefore, your response should substantiate that a granting of the attorney's motion to withdraw ought to be conditioned on the fulfillment of her obligation to provide you with reasonably sufficient information which you as her client are entitled to obtain. It will help if you attach to your motion & brief an exhibit showing that the mortgage company actually directed you to inquire of your lawyer the clarification(s) you are pursuing. Once you take care of that issue, I encourage you to seriously assess (and proceed accordingly) whether your attorney's misconduct merits being reported with the entity in charge of disciplining lawyers for their legal malpractice. If I were knowledgeable of bankruptcy law, I would be happy to address your first question. I can only suggest you to do some research on leagle.com to become acquainted with how courts decide bankruptcy issues. Be sure to set parameter "Search By Court" to "Federal Bankruptcy Court". |
Does receiving a package establish some kind of contract? The setup is as follows. Two private individuals sent a package across international borders via some shipping company. The shipping company asked the sender to fill out some paper work and pay fees for the import regulations. The package was then shipped and delivered to the recipient. A few days after receiving the package the recipient received a letter from the shipping company asking them to pay an import tax plus a handling fee for the shipping company. Does the shipping company have any legal claim to thes fees from the recipient? I believe the shipping company had to pay the import tax and handled the import. But I don't see how they have any claim on the recipient, unless they can somehow claim that accepting the package establishes some kind of delivery contract with them. Presumably the sender should have paid these fees, but if the shipping company didn't charge them when the package was sent, it seems to me they screwed up and have to eat the cost themselves. Sender is outside the EU, receiver is inside in case this makes a difference. | Does the shipping company have any legal claim to thes fees from the recipient? No. There is no contract between the recipient and the company. In fact, the company's attempt to charge twice for the same service is unlawful. The company's requirement for the sender to fill out paper work and pay fees reflects that the fees are part of a contract to which only the company and the sender are parties. The recipient is merely a beneficiary of that contract, and as such he has no duty to provide any consideration for the benefit of the company. Additionally, the company's failure at delivery to inform the recipient about any pending fees further weakens the allegation that the recipient ever had any obligation toward the company. The company prevented the recipient from making an informed decision when receiving the package, which implies that the sole interaction between company and recipient (i.e., the delivery) falls short of formation of contract. | Does Bob have a case/standing? Yes, this is a reasonably straightforward contract dispute. Once you contract to do something and you then don't do it, you are liable for damages. Contractual damages are assessed on an expectation basis - the innocent party is entitled to be placed financially in the same position as though the contract had been completed without the breach. Bob is entitled to have the item and not to be out-of-pocket more than he agreed to pay. But ... There may not be a contract - see What is a contract and what is required for them to be valid? A contract is formed when the parties reach an agreement and most website terms and conditions are clear that this is NOT when the customer pays for it. For example, Amazon says: The Order Confirmation E-mail is acknowledgement that we have received your order, and does not confirm acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product to you and send e-mail confirmation to you that we've dispatched the product to you (the "Dispatch Confirmation E-mail"). So, here, two things have to happen before Amazon and you have a contract: they have to physically dispatch the goods and they have to send you an email saying they have. If they do one without the other, there is no contract. If your vendor has similar terms, you don't have a contract with them and are not entitled to contractual damages. You would not have a case in equity because they were clear that there was no contract until these things happened. You might be able to argue negligence if they sent the email without dispatching the goods but your damage basis would be different. Tort damage is calculated on a restoration basis, not an expectation basis, so you can recoup your losses but not claim any lost profits. It makes no difference here but if you had had a buyer who was going to pay you twice the price you paid, in contract you are entitled to the lost profit, in tort, you aren't. However, if the contract has a dispute resolution clause, that would normally have to be complied with before you can go to court. In some cases, this may prevent going to court at all, for example, if the dispute resolution clause included binding arbitration or expert determination. If there is a choice of law clause then this will usually be binding, however, if this is a consumer contract in New Zealand then NZ consumer law will apply in addition. Similarly, courts will usually observe a choice of venue clause. With what reasonable time lapse between (false) shipment notification of the original order and placing the eBay order? A reasonable time. Depends on what the product is and what normal delivery times are. For a 5mm screw, a reasonable time is probably measured in months. For an aircraft carrier it's probably measured in decades. Does this sort of a claim fall under the jurisdiction of small claims court (given that the amount is less than the threshold)? Neither New Zealand nor England & Wales (bearing in mind Scotland and Northern Ireland are different jurisdictions) have small claims courts. The correct venue in New Zealand is the Disputes Tribunal which is not a court, and in England and Wales it is the County Court. Procedurally, would it be more advantageous for Bob to file the claim in the UK or in New Zealand? Ask a lawyer in each jurisdiction. Now Bob wants to claim damages from the store in the amount "Total for the eBay order less total for the original store order" — on top of full refund of the original order. Bob is not entitled to a refund. He is entitled to damages. A more accurate way to state the damages is the total for the eBay order and to not make any mention of a refund. | No They will list the price they are charging you. This will normally be greater than what they paid because that’s how business works. The amount they are allowed to charge is what you agreed in your contract with them (which may incorporate a price list) or, if the contract is silent, a reasonable amount. What is reasonable will be related to what the market in your geographical area charges. While this is indirectly related to the input cost of a given item, business can and do charge what the market allows. | Whether or not this would be allowed would generally call for a more fact rich situation than the one presented in the original question, that would cast light upon why a retailer might be inclined to refuse to accept payment. Hypothetical legal questions that presume that people are acting irrationally for no good reason are generally ill posed and don't have meaningful answers. Sometimes, there might be a legitimate privacy interest implicated if the invoicing party acknowledged a payment from a third party. For example, suppose that the invoice was for a paternity test and payment would confirm that the incapacitated person actually obtained a paternity test. Sometimes, there are legal rights beyond payment that are implicated and the reasonableness of a refusal might hinge on those rights. For example, suppose that the invoice was for an option to keep using an oil well. Payment of the invoice by the deadline would keep the oil well operating and the land owner sending the invoice might prefer that it not be paid so that the oil well would be shut down. Quite a few contracts are structured in this way. Maybe the invoice was for the right to purchase a first edition of a book when it was finally released, for example, and not paying it would free up a copy for someone else at a price that had increased in the meantime. Or, suppose that the invoice were for unpaid taxes and payment of the taxes would prevent property from being seized for sale by tax authorities, and the taxing authority would prefer that the invoice was not paid so that the valuable property could be liquidated. But, it is hard to imagine that there would be any reason that an ordinary retailer with an ordinary bill would ever refuse payment, although I suppose that this might trigger an interest or penalty amount owed under the contract for late payment. If that were the case, the principal of mitigation of damages, which says that a party to a contract must take all reasonable steps to mitigate their damages, might obligate the retailers to accept the payment or forfeit the penalty amounts that the retailer could have avoided as damages by accepting payment. I doubt that an undelivered tender of payment from a third party would eliminate the obligation, but, it might limit the damages that could be claimed as in the scenario above. | For a contract (including ToS) to be valid, one of the things it must have is "legality of objects". That is, if the contract purports to require anything that is unlawful in the jurisdiction then (barring a severance clause) it is not a contract. In common law countries, the starting point is that people are free to contract for and about anything they like - a contract is simply a mechanism for exchanging value between the parties on whatever terms they wish. However, judges and legislatures have decided that there are some things you cannot trade and some terms that are unconscionable or against the public interest and these vary from jurisdiction to jurisdiction*. For example, a contract is not legal in any jurisdiction if its terms seek to exclude the intervention of the courts - this is against public policy. So for example, a binding arbitration clause requiring the parties to accept a private arbitrator's decision as final excludes the courts, yes? Well, in Australia, yes, such clauses if used in a contract between parties with different bargaining power (like a Telco and its customers) are invalid because they prevent the weaker party pursuing a class action. However, they are perfectly legal in the United States because the SCOTUS has determined that the customer can persue litigation after arbitration is finished so this doesn't impede the courts. These are essentially the same laws interpreted by the courts so that they have totally opposite effects. So this might lead you to think that you'll put one in - it'll be OK in the US and Australians will represent such a tiny share of your market that you don't care if I can't enforce my ToS there. Except, if your website is visible by Australians, you have just exposed yourself to a government fine of up to AUD 5,000,000 (say USD 3,000,000) per day for breach of Australian Consumer Law. As a general guide (which is very stereotypical), US jurisdictions are the most permissive in the rights they will allow their citizens to give up: the US attitude is that everyone is free to make the best deal they can. European jurisdictions are the least permissive in this regard: most European countries follow a more social welfare state model and the citizen needs protecting from themselves. Commonwealth countries tend to be more in the middle. | This is an internet transaction Internet transactions can be reversed within 14 days after delivery of physical goods without the need to state reasons in germany. That is "Rücktritt vom Kaufvertrag". However, you are needed to send back the product and might be required to pay the shipping fees, depending on the original contract. This is a materially flawed product You ordered a book with text A. You got text B. That is a material flaw and you can demand the correction of such a material flaw (Mangel) at the expense of the seller, including any postage. However, if the text was provided by you or the original order form is indicating text B instead of A, the mistake is on you. | For the first question, assuming EU legislation being applicable here, EU regulation No 1896/2006 of 12 December 2006 on creating a European order for payment procedure may be relevant, foreseeing a unified procedure for payment claims. On the second one, the answer is likely to be found in EU regulation No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This regulation has in its Article 4 a general rule (persons domiciled in a Member State shall [..] be sued in the courts of that Member State) but of course also several exceptions to this rule. A relevant exception here is contained in Article 7: In matters relating to a contract, the courts for the place of performance of the obligation in question are competent. | Nobody know what constitutes "scamming", because it's not a legal concept. There is no sense in which receiving a gift itself constitutes "scamming". Since scamming is vaguely about dishonesty, there is an imaginable scenario where you could be liable for a false representation, for example if you impersonated someone else in order to receive something of value, you could be prosecuted in California. You should not assume that a police officer saying "That's not our problem" is proof that you committed no crime or civil tort. Your lawyer can give you advice as to whether you have anything to worry about, legally. The other stuff about being called a scammer or having pictures posted might be a violation of Facebook's TOS, and you can always complain to Facebook central authorities. Technically, uploading a picture that someone took is a violation of copyright law, if you didn't give permission to do so. It might run afoul of some state~provincial or national privacy law, depending on where this takes place. |
Car with tinted windows: will rolling down the windows keep me out of trouble in Mexico? My car has 4 tinted front/rear windows + tinted rear windshield, and Mexico has anti-tinting laws that cause the police to remove tints on the spot. Will rolling down the windows keep me out of trouble, i.e prevent the police from removing my tints? I can roll my two front windows all the way down, and my two rear windows half way down (due to manufacturer limitation). Unsurprisingly, I can't roll down the rear windshield, which is also heavily tinted, but I dont know whether the police cares about it. Tinting information if needs be: Front windshield: no tint. Front windows: 3M Crystalline CR 60 Rear windows: 3M Crystalline CR 40 Rear windshield: 3M Window Film Ceramic IR Series 5 | Short answer: tinted windows are banned in most of Mexico, and rolling down the windows (at least the front windows) should keep you out of trouble in >99% of cases. Long answer: First, the law (mirror) seems to say that tinted windows are forbidden in most (all?) Mexico: [In all] Mexico, tinted windows are prohibited. They are banned. Except some tinted windows made by manufacturers. http://forums.bajanomad.com/viewthread.php?tid=46637: This article says the Mexican federal highway police will now be confiscating cars with tinted windows so dark that they cannot see inside, until the owners remove the polarizing paper. This is in accordance with Article 13 of the federal tranportation rules. It does not say what will happen with cars with factory tinting, since that cannot be removed. Second, on the enforcement of this law, it is sometimes enforced: TIJUANA – Hundreds of drivers have been stopped in Tijuana and ordered to remove after-market tint from the windows of their vehicles this week after a new law intended to help reduce crime went into effect. More sources. The enforcement seems very random. I did witness it myself that it is still currently enforced, at least in Tijuana. Regarding the effectiveness of rolling down one's windows to avoid triggering the police, http://www.city-data.com/forum/san-diego/321508-warning-message-those-who-driving-their.html says: I talked with the Police at the Ocho Street station last week. When driving in Tijuana, rolling down your front windows is OK for a tourist. Do it as you approach the border and while in Tijuana. It is only a ban in Tijuana, Rosarito and south is OK. https://www.tripadvisor.ca/ShowTopic-g150774-i256-k1967450-Dark_window_tint_banned_in_Tijuana-Rosarito_Baja_California.html: I went to the 8th street Police station (Tijuana) to find out what was up. I was told that the ban applies to only the front side windows. Rear side and back are OK (as in California). NO tint (other than factory) is permitted, even my light tint. They told me that, as a tourist, when in Tijuana just keep the front windows down, no problem. It's what I do, and -- no problem. https://www.reddit.com/r/tijuana/comments/92grg1/tijuana_window_tint_info/ When I get lit up, I immediately roll down all four windows in the car and when I pull over, I turn on the interior lights for them if it's at night. In the very unlikely event one gets pulled over despite having rolled down one's windows, one can use this trick: And while I have not had to do this, several of my Amigos have had great luck with not speaking Spanish to the cop (whether or not they know Spanish) and then saying they don't understand the cop's accent or why they were pulled over - being polite the entire time - and say they are going to call 078 to get help translating (078 is the Baja California tourist help line - it is staffed by English speaking operators). Invariably, the cops all the sudden get a more important call and have to leave immediately and let you off with a verbal warning. https://www.bajanorte.com/en/assistance-078/ Note that, from the same source: if you have Cali plates, you are at a higher likelihood for being pulled over, regardless of tint or actions. | 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. | This varies from state to state. Here's a representative statute: Any driver or operator of a motor vehicle who, having been given a visual or audible signal by a peace officer directing such driver or operator to bring his vehicle to a stop, willfully fails or refuses to obey such direction, increases his speed, extinguishes his lights, or otherwise flees or attempts to elude the officer. See 625 ILCS 5/11-204. For a first offense, IL calls it a class A misdemeanor punishable by up to 1 year and $2.5K. but on the third offense it becomes a felony punishable by up to 3 years and a $25K fine. If the signal was meant for you, then the divided highway is a moot point so long as you realize it was for you (which might be established by you turning off the road into some neighborhood where you have no business). united-statesillinois | The hitting by itself would not be too bad (though the police would likely take a close look because of the two scratched cars – was the driver drunk or something?), but the subsequent running constitutes a crime under § 142 StGB (official but non-authoritative translation). The maximum sentence for this is imprisonment for three years, but a first-time offender would most likely be sentenced to a fine corresponding to a few months’ income, if there are no aggravating circumstances. | Is it a crime for a repo man to accidentally repo the wrong car? Not unless the car was retained after the accidental repossession was discovered, and then, only by the person retaining it (as the repo man may have turned over the car to the creditor whose loan on a similar car is in default). Generally speaking, taking property of another with an intent to permanently deprive the owner of the property of it is a crime only if one knows that the property is the property of another. For example, if two people leave black umbrellas in an entry room and someone accidentally leaves with the wrong one, the taking of the wrong umbrella is not a crime. Whether the repo man's assertion that he accidentally took the wrong car is credible is a question of fact to be determined at trial, if the prosecution doubts him. If he was supposed to repossess a 1936 Ford and he repossessed a 2021 Tesla, the repo man is probably going to lose and be convicted of theft. If he was supposed to repossess a white 2021 Tesla and he repossessed a different white 2021 Tesla in the same neighborhood with a license plate from the same state as the one he was supposed to repossess, he has a very good chance of prevailing. However, once someone learns that they have taken the wrong property, they have a duty to return the property promptly to the owner upon request, and probably, to notify the owner (if the owner can be determined) and the authorities who were informed that a different vehicle was taken, promptly. Otherwise, the originally good faith mistake becomes theft. If the repo man's explanation is convincing, he is not likely to be charged with theft, even though no special law applies. What makes the repo man special is that he did have permission from the secured car loan creditor to repossess it due to the secured car loan debtor's default by the Uniform Commercial Code. If he had taken the right car without a breach of the peace, the Uniform Commercial Code would have absolved him of liability and given him legal permission to do so. If the repo had been of the right car, the creditor would have had a duty to promptly return the personal possession in the car in which it did not have a lien to the rightful owner. This conclusion doesn't change when the repo man accidentally takes the wrong car. While the repo man's mistake was not knowing or intentional, it was probably negligent to repossess the car without carefully confirming the VIN number and license plate to make sure that he was repossessing the correct car. As a result, the car own probably has a claim against both the repo man (whose negligence caused the wrongful repossession) and the creditor (for whom he was acting as an agent to repossess the car) for any damages caused to the owner of the wrongfully repossessed car, including damages to the vehicle and damages from loss of use of the car and possibly damages for emotional distress caused by thinking that his car had been stolen or by missing a non-economic opportunity that he could have had if the car had not been wrongfully taken (e.g. if this caused the car owner to miss the funeral of the car owner's father). The creditor and the repo man probably have insurance policies in place that cover legal defense of such claims and also economic settlements or money judgments entered on that kind of claim. | You have the right to notify the owner of the car of their vehicular trespass and the consequences of that. You do not have the right to damage the car in giving said notice. You have the right to offer to clean the gum off whatever part of the car you stuck the notice to. If you succeed in cleaning it,the other party will not have a legal cause of action, in all likelihood, since there is no damage (though with a bit of imagination they might come up with some 'missed business opportunity' loss). The court would probably find your choice of sticker to be negligent (put the notice under the wipers? use painter's tape -get some if you don't have any). The rationale 'we had no other choice' holds no water: there are alternatives. 'Criminal Damages' is a concept in UK law, but it relates to willful damage such as vandalism, not accidents. It would be an issue if you had planned to cause damage, but that seems not to be the case here. | Can I refuse, turn around, and just not enter the USA ,get back on a plane, turn around and drive back, or do I have to give over my devices just because I showed up? In theory you can refuse and turn around. At a highway check point or in a private boat disembarking context, that is fairly feasible. If you turn around before you are searched and get back across the border, the border control officers can't pursue you. In a commercial airplane or commercial boat disembarking context, this is as a practical matter, not a very feasible thing to do, because you can't as a practical matter, turn around and even if you plan to return, the only way you can make it to a return trip without passing through customs is if the border control officer refuses to admit you. The law is that non-probable cause searches are permitted at border checkpoints (and indeed even near a border checkpoint on the in country side), but this isn't much clarity about when that authority ends (short of returning across an international boundary) when deciding not to enter at a border checkpoint. Also, there is also a split of authority over whether a cell phone search is allowed in the first place. The Second Circuit in the U.S. has held that it is not, but the law is unresolved in many U.S. states at this time. | What is the correct way to handle this situation? Strictly speaking, each driver exceeding the speed limit is in violation of the traffic sign even if everybody else also infringes it. Thus it is completely valid for the police to pull & fine anyone from among those drivers. Statutes like the one you mention are intended for scenarios where a driver departs significantly --and for no apparent [lawful] reason-- from the speed limit, such as driving at 20 mph in a 55 mph zone. Typically a driver would not get pulled over in the scenario you mention (driving at 62 mph where everybody else drives at 65 mph). The exception would be some police department(s) requiring its cops to meet a quota of fines per week, but that would be quite a questionable practice having nothing to do with the legislative intent. Speed limits are supposed to represent normal and reasonable movement of traffic. If informed consensus is that a particular speed limit is inconsistent with that principle (for instance, where limit is artificially low and raising it would not compromise safety), then a request could be submitted to the Oregon Department of Transportation. |
Can any national European company do business in all other member states? For example, could a limited liability company registered in a Baltic EU state offer services in Poland? What I learn from the first comment to this question, this might depend for example on services nature. So these should be online subscription services. But where to read such things, are these national regulation laws defining which companies types from what countries allow to do what? | Yes. A company from one member state may do business in any E.U. state so long as it complies with local law in the course of doing so. For example, a Dutch company doing business in Germany must still pay German taxes and comply with German labor laws for its German employees. But, it doesn't have to form a German subsidiary to do business in Germany. | The law of each country where you offer the app for download applies, and you have to consider: Privacy Policy (GDPR in EU, CCPA in California, APPI in Japan, LGPD in Brasil, and more - check each country to be on the safe side) Disclaimer versus AGB/Terms and Conditions (e.g. Germany), not required but recommended Impressum (Germany, Switzerland, Austria) Value Added Tax (VAT) which is taken care of e.g. by Google Play for most countries but not all (e.g. not for Japan) in case the app is not free Consumer Protection Law - applicable (and different) everywhere There might be more, but these are the important ones I am aware of. | Yes, non-US citizens can own equity in US companies. To be specific: You do not have to be a citizen or resident of the US to own securities in a company incorporated in the US. | I can't answer this for all of Europe, but in the UK you can pick your company name as long as it cannot be confused with the name of another UK company (and some other rules, like you cannot name it Her Royal Majesty's Game Studio). Both companies may want to register trademarks, and if they register a trademark in the USA that you registered in the EU, then they cannot use their trademark in the EU, and you can't use yours in the USA. You can register your trademark in the USA if you're quicker. When you try to register a trademark in the USA, anyone with a valid interest can protest against it. If they notice the registration, they will most likely succeed if they object. If they don't notice – well, that's tough for them. I wouldn't say it's impossible to overcome your trademark, but it would be hard. | Is this legal? Generally yes, unless it unlawfully exceeds the scope of the license. Also, if it is, how can I check if it's permitted by the original store's EULA? Read the whole EULA, focusing on terms related to resale, assignment, and transferability. | The territorial scope of the GDPR is defined in Article 3. It covers "personal data of data subjects who are in the Union", whether they are EU citizens or not. So to answer your questions: 1) are EU users, but moved to USA a few years ago, and signed-up on my website? They are not in the EU, so are not covered. You don't need to know if someone is an EU citizen, just if they are currently in the EU. 2) went for holidays in USA, signed-up on my website, and then came back to EU? (note - potentially skipped any Consent questions at sign-up, because IP was from USA) If someone moves into the EU while using your service then they fall under the GDPR for the time they are in the EU. If their home address is in the EU then that is covered, and monitoring of their behaviour while in the EU is also covered. Your other two questions are about VPNs. If a VPN is used to evade IP address geolocation and you have no other clue about where someone is then you can't be blamed for not knowing where they are (although I'm not aware of any actual case law on this topic). But if someone with a USA IP address gives a home address in the EU then you should probably treat them as being in the EU to be on the safe side. Basically, if you don’t know if they are in the EU or not, you should treat them as if they were. | That a company (C) has a website that can be accessed from a given county does not mean that the company operates in that country. If C is located in country A, markets and advertises to country A, offers products designed to appeal in country A, has its site only in the primary language of country A, uses servers located in country A, and has all its assets and physical offices in country A, it is not operating in country X, even if a few people from X do business with C over its web site. Country X may have laws which claim to apply to C or its web site. It will find it hard to enforce those laws, particularly if owners and officers of X do not travel to X. It will find it hard to extradite anyone for violations of the laws of X unless those actions are also crimes under the laws of A. If X is a major, powerful country such as the US, the UK, or the EU it may be able to get A to enforce its court orders, or to use its influence over the banking system to impose penalties on C. If X is North Korea, or even Brazil, it is probably out of luck. Thus the management of C needs worry primarily about the laws of A, and to a lesser extent the laws of major countries that make some effort to enforce their laws outside their own borders, such as the GDPR, or certain US laws. It probably has little reason to worry about the laws of other countries. If A is itself a major country that can easily resist any pressue from X, C has even less reason to worry. If C does significant business in countries D and E, and particularly if it opens physical offices in D or keeps assets in E, it will have much more reason to worry about the laws of D and E. If it does advertising in the D & E markets, this also gives C more reason to be concerned with their laws. There is always some risk of X finding a way to enforce its laws, but the risk is small. | If you are charged under the laws of Estonia (or Australia or Thailand or the UK) then the laws of the USA have no relevance whatsoever. It makes no difference if you are a US citizen, if the alleged crime happened in the USA or was perpetrated against the USA. If nation X has jurisdiction then you are tried under the laws of nation X. That is what sovereignty means. As to your specific example, Facebook does business in Estonia, therefore they are subject to Estonian law, as a US corporation they are also subject to US law and the law of every other jurisdiction they operate in (see why they need big legal departments?). If a legitimate Estonian warrant was served on them to disclose metadata or anything else then they are legally obliged to do so or be in contempt of court. Oh, and by the way, the first amendment right to free speech does not give you a right to anonymous free speech. |
Can I get my answers deleted from Stack Exchange? According to a moderator statement in meta that I read, Stack Exchange claims a "license" on the answers and questions which a user has posted. From a copyright standpoint can a claim be made or a DMCA takedown override this "license", whatever it is? | Users grant StackExchange a licence: You agree that all Subscriber Content that You contribute to the Network is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license. That should be determinative, but there was also some question as to whether StackExchange users can be deemed to have agreed to these terms. For this reason, I'll also review some case law relating to what are known as "click-wrap" agreements where the terms are made available via a hyperlink. In my opinion, StackExchange's way of displaying links to their Terms of Service during registration meets the requirements that have in the past been sufficient for courts to deem the user to have read and agreed to those Terms of Service. See for example, Schnabel v. Trilegiant Corp., 697 F. 3d 110 (2012), especially the section titled "Notice" for reference to other cases: A person can assent to terms even if he or she does not actually read them, but the "offer [must nonetheless] make clear to [a reasonable] consumer" both that terms are being presented and that they can be adopted through the conduct that the offeror alleges constituted assent. Specht v. Netscape Communications Corp., 306 F. 3d 17 (2002)1 frames the notice test in terms of a "reasonably prudent offeree" and whether they would "have known of the existence of license terms". In Guadagno v. E Trade Bank*, 592 F. Supp. 2d 1263 (2008), the court found that clicking on an acknowledgement icon near an underlined, highlighted link to an agreement was acceptance of that agreement: In the instant case, a highlighted, underlined link to the Agreement was directly above the acknowledgement box, along with notice that "The following contain important information about your account(s)." A reasonably prudent offeree would have noticed the link and reviewed the terms before clicking on the acknowledgment icon. I think the most similar case is Fteja v. Facebook, Inc., 841 F. Supp. 2d 829 Dist. Court, SD New York (2012), although not at an appellate level. In order to have obtained a Facebook account, Fteja must have clicked the second "Sign Up" button. Accordingly, if the phrase that appears below that button is given effect, when Fteja clicked "Sign Up," he "indicat[ed] that [he] ha[d] read and agree[d] to the Terms of Policy." This is very similar to StackExchange's sign-up process: That court outlined a lot of case law and concluded that "Fteja assented to the Terms of Use and therefore to the forum selection clause therein". A DMCA takedown could be successful if submitted by somebody other than the StackExchange user where that other party asserts copyright ownership in the contributed material. This could happen if a StackExchange user infringed copyright by posting material that they didn't have the right to reproduce. 1. Opinion authored by now Supreme Court Justice Sotomayor. | 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. | By clicking "accept" on the software license, you waived your rights to sue for damages. But you can go to the support forums and make an issue of what happened; Apple - like most companies - doesn't like bad PR. Official Apple Support Communities | Udemy claims that all the videos and course content are copyrighted, but does that also hold for the material of the course? Yes, all the material is copyrighted. Ideas are not, material and content is. it would be really useful to me if I could take a large part of that code ... I want to know if I am allowed, by the law, to use this code for commercial purposes, or is it protected as the intellectual property? Yes, it is protected, specifically it has copyright applied and you may only use it if the license it is distributed under allows you to - in some cases this may be a permissive license, or the code may be obtainable legitimately from another source under a permissive license, in which case its usable. But in many cases, it may not be distributed under a permissive license or indeed any license, and in such cases you will not be permitted to use it. The license under which the code is released depends on the individual course, and in many cases the source code repository or download site for the code for the course. Check their for a license. | Given the clarification provided in the comments to the question, the company has a copyright in the material and as such is legally entitled to demand that you cease using it. | The takedown action is a little sketchy. The law regarding takedown notices and host liability is here. The notice includes "Identification of the copyrighted work claimed to have been infringed", a "signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed", and a statement that "the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law". These things are present in the notice, for which reason the items were taken down. The complaint states that The clear purpose of this source code is to (i) circumvent the technological protection measures used by authorized streaming services such as YouTube, and (ii) reproduce and distribute music videos and sound recordings owned by our member companies without authorization for such use. We note that the source code is described on GitHub as “a command-line program to download videos from YouTube.com and a few more sites.” and the source code expressly suggests its use to copy and/or distribute the following copyrighted works owned by our member companies: Icona Pop – I Love It (feat. Charli XCX) [Official Video], owned by Warner Music Group Justin Timberlake – Tunnel Vision (Explicit), owned by Sony Music Group Taylor Swift – Shake it Off, owned/exclusively licensed by Universal Music Group Complainants are "confused" about actual infringement (which is prohibited by copyright law), and creating a method for infringing copyright. Under DMCA and US copyright law, copying is infringing, programming is not infringing. The complaint does not clearly allege unauthorized copying of another person's intellectual property, and their complaint is based on the theory that certain programming actions constitute copyright infringement. I don't actually think they are confused, I think they are testing the boundaries. Github has no reasonable options but to comply; the authors have the option of filing a counter-notice; then RIAA has the option of claiming that they have filed a copyright infringement lawsuit. If they do, the material remains taken down and the courts sort it out if a lawsuit is actually filed. There is minimal burden on the complainant to reign-in over-zealous takedown notice practices: Lenz v. Universal Music finds that complainants must give good faith consideration to a fair use defense. 17 USC 1201(a)(1)(A) states that No person shall circumvent a technological measure that effectively controls access to a work protected under this title. Let's assume that the removed material does circumvent a technological measure protecting a work. This is a separate offense in Title 17. 17 USC 501(a) defines infringement of copyright, saying Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author Production of an anti-circumvention technology is not included in those sections: on a plain reading of the law, this is not infringement. To summarize the legal dance at issue: RIAA has taken the first legal step in alleging infringement, and Github has taken the material down because Github does not get to decide what the courts would conclude. Let's assume the authors file a counter-notice stating that there is no infringement; then, equally, let's assume that RIAA states that they files a lawsuit. Github will leave the material down. Let's also assume that RIAA actually files suit. Under the prior assumption that the material violates 17 USC 1201(a)(1)(A) which seems likely, the authors could be slapped for being in violation: but they would not have been in violation of §106-122. What recourse would the authors have for RIAA's misuse of the term "infringe", and against whom? Nothing against Github: the service provider does not get to decide the merits of the case. Perhaps RIAA. From Lenz supra, If an entity abuses the DMCA, it may be subject to liability under § 512(f). That section provides: “Any person who knowingly materially misrepresents under this section—(1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages․” Id. § 512(f). Subsection (1) generally applies to copyright holders and subsection (2) generally applies to users. Only subsection (1) is at issue here. The court said that We must next determine if a genuine issue of material fact exists as to whether Universal knowingly misrepresented that it had formed a good faith belief the video did not constitute fair use. This inquiry lies not in whether a court would adjudge the video as a fair use, but whether Universal formed a good faith belief that it was not. Contrary to the district court's holding, Lenz may proceed under an actual knowledge theory, but not under a willful blindness theory. Perhaps the authors can prove actual knowledge. The Lenz reasoning on this point (§IV C) is rather contorted. | 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. | When a platform has the right to kick you out as they deem fit, without any evidence why they did it, does that change if you have a paid? It depends on the purpose of payment and the terms & conditions it triggers. Your description reflects that payment entitles the user to have no ads "and stuff" (?). Payment does not necessarily entitle the user to continued access, diligence from customer service, or other features. Without fully knowing the platform's terms & conditions regarding payment it is impossible to identify what obligations (other than not displaying advertisements) your payment creates on the platform. The information you provide here is insufficient for assessing whether you have a viable claim such as fraud or breach of contract. On the other hand, the platform's apparent arbitrariness and lack of response might support a finding of unfair or deceptive practices if the platform does not honor or proportionally reimburse your payment. Many jurisdictions have legislation prohibiting practices which are unfair, deceptive, or unconscionable (example: MCL 445.903). Oftentimes statutory law establishes an agency in charge of addressing customers' complaints. |
Can you demand un-attribution under your name with content you licensed under CC-BY-SA? If I previously released content under CC-BY-SA 3.0, can I demand my name be removed from attribution as in the case of no longer wanted to be associated with it? The FAQ has this to say While you cannot revoke the license, CC licenses do provide a mechanism for licensors to ask that others using their material remove the attribution information. You should think carefully before choosing a Creative Commons license. What is that mechanism and do I have that right? | There is language, but not a mechanism, covering this. Section 3(a)(3) of version 4 licenses says If requested by the Licensor, You must remove any of the information required by Section 3(a)(1)(A) to the extent reasonably practicable. If you become aware of a person using your material and attributing you, and you want the attribution removed, you would accordingly notify them (somehow), and they are required to remove the offending material. The removable informations includes: i. identification of the creator(s) of the Licensed Material and any others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym if designated); ii. a copyright notice; iii. a notice that refers to this Public License; iv. a notice that refers to the disclaimer of warranties; v. a URI or hyperlink to the Licensed Material to the extent reasonably practicable; | The notice has a lot to do with legacy requirements in the United States to claim the copyright to a work. Up until 1989, the copyright notice was required. Today, the statements are mainly maintained to protect against "innocent infringement" which might reduce what a content owner can get in court. What exactly do those terms entail? That the owner stated owns all rights and you may do nothing with the content. My biggest concern is this: by writing that, is the company claiming to own everything on the website, even potentially copyrighted user-submitted material? That's exactly what they are doing. Depending on the terms of the specific site, content contributors generally either assign copyright to the site owner or license the content in a way that allows the site owner to do exactly what they want with it. Site creators with the smarts or money to do it right/get someone to do it right usually state something like: Copyright [Site Owner] and contributors. Other sites (like this one) state specifically what they hold the copyright to: site design / logo © 2015 Stack Exchange Inc THIS IS NOT LEGAL ADVICE. CONSULT AN ATTORNEY REGARDING YOUR SPECIFIC SITUATION. | 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. | It Depends If the person reusing the image (lets call that person R for reuser) is not complying with the terms of the Creative commons license, which include a requirement to provide attribution of the source work, then R cannot rely on the license, and the granting of the license ad the presence of a license declaration is legally irrelevant. R must have some other basis to reuse the image. This could be an exception to copyright, such as fair use or fair dealing. Or possibly the image is not protected by copyright, for example because its copyright has expired, or because it is a work of the US Federal Government being used in the US. In the absence of such a basis, R is infringing copyright. In much of the world copyright now lasts for 70 years after the death of the author (or of all co-authors). In some different terms apply, ranging from life+50 to life+100. Sound recordings and photos get shorter terms in some countries. In the US the term is life+70 for recent works, but for work created and published before 1978 more complex rules apply, depending on the date of publication, and whether laws on notice and renewal were complied with. See the well-known chart Copyright Term and the Public Domain for the various cases and when copyright expires in each case. The question asks about fair use. This is a US-specific legal concept. It is designed to be flexible, an is highly fact-dependent. As a result it is rarely possible to say if a use will qualify as a fair use with certainty until a court passes on it. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more on fair use. Not providing attribution is itself often considered to weigh against fair use. The question does not give enough detail to make even a good guess as to whether such a use is likely to be held to be fair use. Identifying the kind of eagle has some educational value, which might favor fair use to some extent, but must be considered in light of the overall purpose of the use, which is not described. There is no indication as to whether the original work is creative or factual, or whether the reuse would be likely to harm the market for the original. Much use of images on social media does not stand up under a fair use analysis. Providing proper attribution might well help any fair use claim. See also Do you have to give attribution if an image falls under Creative Commons? | Easy. Don't put your name on it in the first place and state "The copyright owner grants a perpetual, non-exclusive, royalty-free licence to anyone provided that it is not attributed to the author." | You are framing it wrong. It is not that "they have put a barrier" to public domain information, it is that they have added an additional source of that information. The new source has a barrier, yes, but that does not prevent you from accessing the same information elsewhere. If you own a copy of some public domain data, you are not allowed to prevent other users from accessing other copies (by claiming copyright infringement or the like); you cannot even prevent people from doing copies from the copies you did provide them. But you are not forced to allow other users to access your copy. Consider the logical conclusion if that were the law. The moment that you downloaded some public domain file into your computer, you would be forced to give access to your hard disk from the internet, isn't it? Would you need to leave your home door open if you happened to have a printed copy of the text there? Of course, there is a need to discriminate between "public domain" (without licence) and "not public domain but open licence" (BSD, CC, GPL, etc.). In the later case the licence could be tailored so that the work could appear in archive.org but that it would be illegal to provide it with the business model of Academia.edu1. But that would be possible only for works not in the public domain. 1 To be decided by a judge on the basis of the wording of the licence and jurisdiction. | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | I'm assuming that you are not seeking to change the license, and so it will remain GPLv3. As long as you've built on the original software, that license still applies. You also need to keep the previous copyright notices, including the names of the original people. Assuming that, everything you're doing is legal, which is what's on topic here. There is some etiquette around forks (which is what you're doing), which would be on topic at the Open Source Stack Exchange. I'm puzzled by your desire to have a different license text. You can't change the license from GPLv3, so that has to stay the same. (If the original has GPLv3 "or, at your option, any later version", you can drop the any other version text if you like.) |
Received a sticker on my car window on a private company car park Quick story: I parked in my company car park (so I guess its private land), in a place where 'the bay is not marked'. I see many people parking in the same spot, and never have I seen a sticker on their window. It's a large sticker (around half A4 size), stuck to my driver's window. Just a warning not to park there as I am not allowed, with writing that I could barely read. The sticker itself left a lot of glue marks on my window, so I am asking the security company to pay for the damage. Is this allowed? The response I got is that it's my fault for parking in a place that I shouldn't, but surely they do not have the right to put stickers on my car which do not easily peel off? Can I take this further? And what laws do I / the parking company have in such situation? From my research, private land owners do not have the right to clamp your car, but I couldn't find any recent news about sticker on cars. This occurred in the UK | You may be entitled to compensation for reasonable costs related to restoring your window to its previous state. If you sue, you will have to present your actual expenses and show that they are reasonable. Ultimately this boils down to how much it really costs to clean the glue off your window. A safe bet is to take it to a few reputable dealers/shops, get written quotes, go with one in the middle and keep your receipts. Make sure that you are paying only for the actual task at hand, not some sort of "one hour minimum" or "flat rate" charge. Just to be clear, have you tried soap and warm water? You are never going to come out monetarily ahead in this pursuit. | In general, you don’t need an alternative defence. It is inherent in the common law that, unless the statute is explicitly retroactive (and legislators are reluctant to go there) it cannot make illegal that which was at the time of the act, legal. For example, assume the old sign had unlimited and the new sign reduces this to 2 hours. If you parked before the sign was changed you could leave your car there forever so long as you never move it. The NYC law give further rights - a period of grace where the owner can rely on the old restriction as a defense, even if they parked after the sign had been changed. | This is an amusing idea, but ultimately it seems frivolous: How does one establish the physical presence of a corporation in a car? Yes, corporations have some of the legal rights and liabilities of people, but they are not people. And there are plenty of rights a person has that a corporation does not. For example (at present) a corporation can't be a party to a marriage. The closest a corporation comes to any corporal presence is the address listed of their agents. | user662852 has a good point -- whoever own the property has the right to make the rules. Is the property, land+construction in fact your's or does it belong to the HOA who just grant you access as a lease holder? Different states has different rules, but in my state it is illegal to maroon a property and there must be a access to public streets even when this necessitate passing over somebody else land. However that is irrelevant if the HOA owns the land your house is build on. I think you will have to look at your HOA agreement and see what it says. | This is an excellent explanation. All Australian jurisdictions have (in general) common road rules. In NSW these are enacted by Road Rules 2014 regulation under the Road Transport Act 2013. The relevant provision is Clause 306: 306 Exemption for drivers of emergency vehicles A provision of these Rules does not apply to the driver of an emergency vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the rule should not apply, and (b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm. From your statement (a)(i) and (b) would seem to apply so it becomes a question if (a)(ii) does. Well, you don't know the circumstances so you can't judge if it is reasonable that the rule not apply: if the police car were involved in a collision, caught on a red light camera or booked then the driver would have to show that it was. It is worth noting that some road offences like drink or dangerous driving are not in the Road Rules, they are in the Crimes Act and so the exemption doesn't apply to them. It is also not a shield from civil liability although the difficulty of proving negligence goes up because disobeying the road rules is no longer enough. | Reading those clauses, you can see that you can park in an emergency. You can park with your vehicle dies and you can't move it. You can park if it is specifically allowed (maybe a sign saying "unrestricted parking allowed here"). Otherwise, you may park on a parking lane (or roadway, or shoulder) but subject to conditions also listed: "unless there is a clear passage for other motor vehicles, and your vehicle can be seen for 60 metres (200 feet) along the roadway in both directions". Regardless of the name of the piece of road, you are allowed to park there but only if your car is clearly visible, and there is room to get around you. | There is no intention to commit theft, so there is no criminal act on the part of the customer. Even if there was a criminal act, the ability of the restaurant to detain the cusomer (citizen's arrest) is very limited in most jurisdictions. The restaurant can ask the customer for his name and address, but there is no legal obligation on the customer to provide this. Refusal to do so, however, might be evidence of intention to avoid paying and at that point the restaurant might call the police. The customer can leave, and the restaurant can pursue the debt through the civil courts if they have means to do so - they may have CCTV of the customer and his car registration which can be traced. Petrol stations, where people often fill up and then realise they can't pay, usually have established "promise to pay" procedures where they take the customer's details and the customer has 48 hours to pay before police or civil enforcement action is taken. | If the sticker is not easily removable, it would likely fall under defacement of the mail which is illegal according to 18 U.S. Code § 1705 - Destruction of letter boxes or mail: Whoever willfully or maliciously injures, tears down or destroys any letter box or other receptacle intended or used for the receipt or delivery of mail on any mail route, or breaks open the same or willfully or maliciously injures, defaces or destroys any mail deposited therein, shall be fined under this title or imprisoned not more than three years, or both. They do not have the right to deface your mail while they are holding it for you, and just because it's not inside an actual mailbox because it doesn't fit is not an exception. However, that requires arguing that a sticker is actually defacement. If it can easily be removed, like a sticky note, then you likely won't win that argument. In fact, many universities which must handle mail services for students advise that rubber banding a note around the mail is acceptable, as is writing student information onto the mail. So complaining about the sticker would likely just cause them to attach it in a different way that does not qualify as defacement. You can't completely stop them from advertising their stuff, and it's really not much different than if they had gone around and put a door hanger on all of your doors. |
If a federal law caused a breach of contract, then how can the claim not need mention the federal law? Source: pp 229-230, Thinking Like a Lawyer: An Introduction to Legal Reasoning (2010, 2 ed) by Kenneth J. Vandevelde. The statute granting federal question jurisdiction to the district courts has been limited by a judicially created rule known as the “well-pleaded complaint” rule.19 Under this rule, the federal question must be a necessary part of the plaintiff ’s complaint. That is, a federal question raised by a defense does not bring the case within federal subject matter jurisdiction. For example, assume that a retail store sues a manufacturer for breach of contract because the manufacturer failed to ship some toys that the retail store had ordered. The manufacturer raises as its sole defense the fact that after the order was placed, the federal government issued regulations banning this type of toy. Although the result in the case may well depend on an interpretation or application of the federal toy regulation, that federal law was raised as part of a defense and not as a necessary part of the plaintiff ’s claim. The plaintiff ’s claim was for breach of contract and could be set forth in its entirety without ever mentioning the toy regulation. Thus, under the well-pleaded complaint rule, the court probably would not have federal question jurisdiction over the retailer’s claim. 19 See Louisville & Nashville Railroad Company v. Mottley, 211 U.S. 149 (1908). [OP: I have already read this case.] How is the bolded possible and realistic? Surely the plaintiff's counsel would expect and then anticipate the defendant's attempt to exculpate the defendant by deflecting all liability onto the federal government's law that bans the toys? Then: The plaintiff would have engaged federal law in his cause of action. The plaintiff’s claim for breach of contract needs to mention the toy regulation. | In simple terms, the only basis for the complaint is that the defendant did not ship the toys, not that the defendant violated federal law by their actions. No federal law mandates the shipping of toys, whether banned or unbanned. | First-class mail is acceptable for many different kinds of delivery in legal contexts. It is often not sufficient for service of a summons or subpoena, as noted in the other answer. But I don't think any of that is relevant, because you're dealing with a product recall, not legal service. This is almost certainly a voluntary recall, as mandatory recalls are very rare. If that is the case, I don't know of any law that requires a notice to be made in any particular way whatsoever. Instead, the Consumer Products Safety Commission has broad guidelines (see page 18) for how a company may consider communicating the fact of a recall, and they include many mechanisms that are even less verifiable than first class-mail: a joint news release from CPSC and the company ... information on company external websites ... a national news conference and/or television or radio announcements; use of a firm’s social media presence to notify consumers of the recall, including Facebook, Google +, YouTube, Twitter, Flickr, Pinterest, company blogger networks, and blog announcements ... And so on. I don't have that much experience with consumer-protection law, but I'd be surprised if it imposed any obligation to send certified mail or anything more certain than first-class mail. Separate from the recall requirements, though, it may be that a contract with a dealership or the warranty provides some other requirements. | That is a bit of queer provision. I'm not going to answer your first question because I think that it is a gray area with no definitive answer. In answer to your second question, my strong suspicion is that it is drafted in the shadow of a particular state consumer protection act. An arbitration clause is allowed to change your procedural rights, but cannot change substantive rights that cannot be waived by a pre-dispute contractual agreement. If it does that, it is void and you can go to court instead of an arbitration forum. Many consumer protection laws provide that a prevailing party is entitled to minimum statutory damages in lieu of actual damages if they are smaller, in addition to your reasonable attorneys' fees and litigation costs if you prevail. This is done to make it economically viable for private citizens to sue over violations of the consumer protection law that would otherwise involve actual damages too small to be worth suing over, without having to bring a class action. If the relevant consumer protection law has a minimum $5,000 statutory damages amount for some claims covered by the clause, this clause would prevent it from being invalidated, while allowing the merchant to still have access to the consumer unfriendly arbitration forum in which class action lawsuits are probably also barred while class action lawsuits would not be in court. For a big merchant, it is far better to have to pay $5,000 and attorneys' fees to the handful of people who bring arbitrations and win them, than to lose a single class action lawsuit for millions of dollars. | Amazon and most similar vendors (e.g. Wal-Mart) requires vendors to warrant to them that the products sold do not violate intellectual property laws and indemnifying Amazon for any harm it suffers if the representation is inaccurate. (I came to learn this in intellectual property litigation involving a Wal-Mart supplier and in separate patent infringement attorney malpractice litigation involving other vendors of different firms.) But it doesn't generally do any independent due diligence to confirm that these representations are true. As a practical matter, determining if something infringes any existing patent is a non-trivial matter, and even in cases where patent infringement lawsuits are brought by lawyers in court who have done due diligence, the validity of the patent is upheld in only about 50% of the cases that go to trial. The basic problem is that there is no definitive way to index patents that isn't vulnerable to an invention which is infringed being described in a different way than you are conceptualizing it for your search. Generally speaking, simply buying a patent infringing good as an end user in the good faith belief that it is not infringing is not a violation of patent law or actionable, and the knowledge that large firms require representations with legal consequences from their vendors probably suffices to show good faith. But if you plan to use the purchased good in some product that will be resold to others that incorporates it, that might be an infringement. If you are a prospective vendor, there are firms that specifically do patent searchers to determine if there is an infringement, but they aren't cheap. Typically the fee would start at $5,000-$10,000 and go up from there, and typically that is for a non-guaranteed search. An opinion letter from a patent practitioner would be necessary to be really sure (assuming that the patent practitioner or non-patent practitioner search doesn't find a clear infringement which could happen quickly and be cheap by comparison) and that would be much more expensive, maybe $25,000-$100,000, if it wasn't a particularly close case. On the other hand, if what you are primarily concerned about is the design of the bit that plugs into the Apple product, rather than all aspects of the product, it is a relatively trivial matter to determine if the connector involves an industry standard which is either in the public domain or widely available for license at a modest price for manufacturers, in which Apple does not itself claim a patent, or a proprietary design, in which Apple claims rights. USB-C connections, for example, are an industry standard connector, discussed here, which would give you some further leads. In contrast, earlier Apple-promoted (and developed) Lightning and MagSafe connectors, are proprietary connectors, which would potentially be infringing and would require more analysis. | could a case be made for breach of fiduciary duty? Yes, I think, although not every person or stakeholder would have standing to sue the board of trustees of the private university. The prima facie elements of breach of fiduciary duty are "(i) the existence of a fiduciary duty; (ii) a knowing breach of that duty; and (iii) damages resulting therefrom", Johnson v. Nextel Communications, 660 F.3d 131, 138 (2011) (I am not aware of any material differences in other jurisdictions). Absent any explicit disclaimers of fiduciary duty, (1) the element of existence of that duty is applicable because the trustees' relation with the university is not one of arms length; (2) in their deliberate --rather than negligent-- decision to do business with their friends, the trustees are knowingly and intentionally disregarding the advice from economists of the university, despite the evidenced financial detriment of that deliberate decision; and (3) the element of damages would be proved from the expenses as billed by the firm, coupled with any losses the friends' subpar performance may be causing to the university. | LegalZoom did not get it wrong. The case Masterpiece Cakeshop v. Colorado Civil Rights Commission was under Colorado law (hence it was against the Colorado Civil Rights Commission), not federal law. LZ stated that 20 states have enacted laws against discrimination based on sexual orientation, and Colorado is one of those states. The issue was heard by SCOTUS because the plaintiff raised claims under the Free Speech and Free Exercise Clauses of the First Amendment, hence he could make a federal case of it. A prior case (Azucar Bakery) cited by LZ was about refusing to make a cake with anti-gay slogans, and was decided by the commission. Here is a brief filed by that plaintiff in that and two related cases, arguing a pattern of religious discrmination. LZ got it mildly wrong in saying "the court ruled that this was not discrimination because...", because the case did not go to court, it ended at the Colorado Civil Rights Commission. The second case appears to refer to Charge No. CP2018011310 a complaint filed against Masterpiece, where the same commission found probable cause for an anti-discrimination proceeding. In that proceeding, the Colorado Civil Rights Division finds that complainant Scardina "adequately shows that the Respondent's reason is pretext". This led to a complaint against the commission in US District Court (Civil Action No. 18-cv-02074-WYD-STV). There was a motion to dismiss which had partial success, but which was not about the substance of the case (it had to do with immunity, standing, abstention doctrines). The case was later dismissed, because the parties settled. So at no point did a court rule on the substance of the "pretext" issue – on this point, I think LZ overstated the significance of the commission's decision. | 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. | 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 would the founding fathers allow women to be president but not to vote? The only requirements to be president are 35 years of age, 14 years of residence, and being a natural born citizen. This has been in the Constitution since the original ratification in 1789. But women's right to vote wasn't added to the Constitution until 1920. (The same contradiction also appears to exist for African Americans, who didn't have full voting rights until 1915.) Was it really intentional that women could be president from the beginning, but it took over 100 years for them to get the right to vote? Is there any reason why the Constitution was written this way? | Prior to the 14th and 15th amendments, the US Federal Constitution and the Federal laws passed under it neither allowed nor denied anyone the right to vote. The decisions on who would and would not be allowed to vote, including for members of Congress and for President, was wholly in the hands of the sates, and were regulated by the various state constitutions and laws. A few states permitted women to vote, and at least one permitted free blacks to vote, at least for a period of its history. The Federal government had nothing to say on the matter. In at lesat one case the US Supreme Court refused to consider such a question. That was the case of Luther v. Borden, 48 U.S. (7 How.) 1 (1849) which grew out of the Dorr Rebellion The state of Rhode Island, had retained its pre-revolutionary charter (dating from 1663) as its constitution, and required the ownership of a significant amount of landed property as a qualification to vote. The Wikipedia article on the rebellion (linked above) states: By 1829, 60% of the state's free white men were ineligible to vote (women and most non-white men were prohibited from voting). In 1841 a group led by Thomas Wilson Dorr held a convention to draft a new state Constitution, (known as the "People's Constitution"), and held ratifying votes on the draft. They declared that it had been approved by a majority of those qualified under the old laws as well as a majority of those voting and qualified under the new rules, and that it was therefore the valid constitution of the state. The old (charter) government said this was invalid and illegal. Attempts to establish the new government by force failed. However, a revised state constitution that greatly expanded voting rights was passed and took effect in 1843. Luther v. Borden was a case of trespass against members of the militia acting under the charter government, brought by a supporter of Dorr. The plaintiffs brought extensive evidence (over 150 pages) intended to establish that the Dorr or "People's" constitution had been validly ratified by a majority of voters, and that the old constitution had improperly restricted voting rights. The case went to the US Supreme Court, where Chief Justice Taney wrote in the majority opinion: The plaintiff contends that the charter government was displaced, and ceased to have any lawful power, after the organization, in May, 1842, of the government which he supported, and although that government never was able to exercise any authority in the State nor to command obedience to its laws or to its officers, yet he insists that it was the lawful and established government upon the ground that it was ratified by a large majority of the male people of the State of the age of twenty-one and upwards, and also by a majority of those who were entitled to vote for general officers under the then existing laws of the State. ... The point, then, raised here has been already decided by the courts of Rhode Island. The question relates altogether to the constitution and laws of that State, and the well settled rule in this court is that the courts of the United States adopt and follow the decisions of the State courts in questions which concern merely the constitution and laws of the State. Besides, if the Circuit Court had entered upon this inquiry, by what rule could it have determined the qualification of voters upon the adoption or rejection of the proposed constitution unless there was some previous law of the State to guide it? It is the province of a court to expound the law, not to make it. And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, giving the right to those to whom it is denied by the written and established constitution and laws of the State, or taking it away from those to whom it is given; nor has it the right to determine what political privileges the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision. {emphasis added} Thus, until the passage and ratification of the 14th and 15th amendments, which forbid states to deny the vote based on race, national origin, and a few other grounds, the Federal Constitution had nothing to say on the point. States were required to grant the right to vote to women by the 19th amendment in 1920, and the 26th (1971) prohibited denial on the ground of age to anyone 18 or older. The 24th (1964) prohibited denial for failure to pay a poll tax or any other tax. The 14th amendment has been held to guarantee the equal weight of votes, in what was at first known as the "one man, one vote" rule (later "one person, one vote") and has been used to overturn individual and group denials of voting rights. But there were no federal voting rights in the years before 1865. I am not aware of any writings by any of the "founding fathers" (say the members of the Constitutional Convention) that seriously discuss the possibility of a female President. But they did consider and endorse the possibility of a person being elected president who might not be qualified to vote in some of the states. They declined to impose, or permit Congress to impose, a property, or other variable, qualification on the president, even though many of the original states had property qualifications for voters. Options for this were proposed and voted down in the Convention's drafting process. | Both Congress and the state legislatures are expressly forbidden by the Constitution from passing bills of attainder. That means neither can ever pass a law that names an individual and says "they are suspended." It is so important that it's one of the very few restrictions on government that the original Constitution (before any amendments) prohibited in bot state and federal governments. (Also, a "bill" is not a law. It's what a legislature is considering making a law.) | Does this person have witnesses to his existence? Particularly before the age of five? Under 8 U.S. Code § 1401, native-born citizens include a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States; If he appears out of nowhere, he is likely to be suspect of illegal immigration. Age may be a factor there, too. | For the US, the Uniformed and Overseas Citizens Absentee Voting Act provides that just about any US citizen living abroad who has previously resided within the US is entitled to vote in federal elections as though they still lived at their last US address, provided they'd be eligible to vote if they still lived at that address. If you're overseas on duty in a uniformed service of the United States or as a spouse or dependent of such a person, it's based on your legal residence instead. This is a right of US citizenship; dual citizenship doesn't affect it. This State Department website has details; there's a special process you can generally use instead of the state absentee process. UOCAVA applies to all federal elections (including primaries); state and local election eligibility is up to the state. For Canada, citizens of Canada living there seem to have the right to vote regardless of any possible loyalty issues with another country. Canadians living outside Canada for over five years can't vote, but if you live there it seems as though it is allowed. So, the answer is seemingly "yes." For a definitive answer, contact the US consulate and Canadian election officials. | No "No taxation without representation!" was a slogan of the US war of independence, but it was never put into the Constitution. Indeed, the residents of the District of Columbia and Puerto Rico now pay Federal income tax, but are not represented in the Congress that sets the taxes. National debt has some of the same economic effects of a tax, but it is not a tax in form nor in constitutional law. Constitutional limits on tax legislation (such as the rule against unapportioned direct taxes) do not apply to congressional borrowing. "Representation", in the sense you mean, has never been applied to representatives of future generations, or even of people not yet of voting age. Was the idea of pushing debt onto future generations so unthinkable that it is a constitutional blind spot? Quite the reverse. Borrowing was initiated quite early, while many of the framers were still in government. In several places in the Federalist Papers, Hamilton emphasized the need for an unlimited power to tax, for, among other purposes, paying any national debts, and made it clear that such debts would be incurred, from time to time. See particularly Nos 30 and 41. In The Federalist No 30 Hamilton wrote: In the modern system of war, nations the most wealthy are obliged to have recourse to large loans. A country so little opulent as ours must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? The loans it might be able to procure would be as limited in their extent as burdensome in their conditions. This is part of a longer argument to the effect that a lack of power by the Federal Government to levy individual taxes would be disastrous. Here Hamilton certainly seems to contemplate the Federal government borrowing in case of war or other emergency, and repaying such loans by future taxes. In The Federalist No 41 Madison wrote; The powers falling within the FIRST class [Security against foreign danger] are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money. Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. ... If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety. This again seems to contemplate an unlimited power of borrowing money by the government (or limited only by its available credit) to be repaid from taxes. Thus at least two of the founders considered this issue, and it was in now way part of a "blind spot". When he became the first Secretary of the Treasury, Hamilton embarked on his famous program of encouraging manufactures, funding needed "improvements" (of roads and harbors, in particular) largely by borrowing. These proposals were openly, widely, and heatedly debated both in Congress and out of it, before Congress authorized them. The argument that such debts would have to be repaid out of future tax revenue was indeed advanced, although not, as far as I know, precisely in the terms this question uses. But the issue was generally considered by the public, which was in no way blind to the future effects of present borrowing by the government. It was not a later innovation, unthoguht-of by the founders and early governments of the US. In short the Constitution does not contain any requirement such as the question suggests, and was never intended to do so, because the founders felt it essential to allow the government an unlimited power to borrow money, limited only by the needs of the case and the sound judgement of Congress. | This document from the Michigan Sec'y of State says that "A US citizen who has never resided in the US and has a parent, legal guardian or spouse that was last domiciled in Michigan is eligible to vote in Michigan as long as he or she has not registered or voted in another State". You then use the Federal Post Card Application or the Federal Write-In Absentee Ballot, which you can get here. | Article I, Section 3, Clause 6 says The Senate shall have the sole Power to try all Impeachments. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. Therefore, the House cannot try an impeachment. The wording of the Constitution does not say "The Senate must try any impeachment delivered by the House". The option to reject an impeachment by simple majority runs completely counter to Senate tradition. But analogous to deployment of the "nuclear option" to change Senate rules, it is a conceivable outcome. The first impeachment presented to the Senate was against a Senator, William Blount in 1797, and in that instance the Senate appears to have voted that Blount was not an impeachable officer (so they did not vote on impeachment, but they did vote to expel him). In Nixon v. US, SCOTUS ruled that Senate impeachment actions are not justiciable. While current Senate rules require a trial, the rules can be changed by the Senate by a majority vote, and SCOTUS will not review such actions. The Senate can also adjourn and not take up one or more articles, as happened in Andrew Johnson's case. | There are two ways to change a constitution: Through amendments to the current constitution. By starting a new constitution. When you start a new constitutional process from scratch, its legitimacy will not depend on the provisions of the old constitution. This process will develop outside the framework established by existing laws. You could say that the constitution is self-affirming: its legitimacy cannot come from any law because there are no laws higher than the constitution. From that point on everything could be (theoretically) possible as a way to legitimate the new constitution: a referendum (in the multiple varieties that it could be present), approval by an assembly, military intervention... The success or not of a new constitution would depend on the forces that support and oppose it. |
Do persons accused of being "enemy combatants" have the right to a speedy trial, or can the US government hold them for as long as the govt wishes? In a recent Senate session, they were discussing the release of all Guantanamo Bay detainees. Senator Lindsey Graham claimed that since the people held there were enemy combatants, they did not have the same rights as ordinary criminal enterprises, and that the US government can legally hold them without trial for as long as the government deems necessary (source: https://www.youtube.com/watch?v=OGbwzX4Xlqg) Is Senator Graham correct in asserting that those deemed "enemy combatants" do not have the right to a speedy trial? | Enemy combatants do not have a right to a speedy trial and do not have the same rights as criminal defendants, but Senator Graham is incorrect in asserting that they may be held without trial "for as long as the government deems necessary." Instead, they may only be held so long as the "enemy" with whom the detainee is affiliated is still an "enemy" in the context of a Congressionally authorized use of military force. Detention of an enemy combatant is a close cousin of detention of a prisoner of war. It is a basis for detention based upon the detainee's status, for which the military only has to justify the military detention by showing that the detainee is a combatant member of a group which is an "enemy", such as a soldier, covert operative, or terrorist for that group. The term "enemy" is a term of art which means a country or non-military armed group with which Congress has declared war, or has authorized the use of military force against. For example, since the U.S. does not have Congressionally declared wars or authorizations for use of military force in place at this time against Russia and China, members of the militaries of Russia and China are not "enemy combatants" even though a large share of the U.S. military budget is devoted to preparing for war with these countries. Detention of enemy combatants is authorized to continue until the U.S. is no longer at war with, or no longer authorizes the use of military force against, the combatant force that the detainee is a part of (i.e. "for the duration"). This has happened in a recent case where the U.S. made a peace treaty with a particular group connected with the Afghan War discussed below. If the Authorization For Use of Military Force (2001) were repealed and not replaced by Congress today, all enemy combatant detainees in the U.S. would have a legal right to be released except the five that are currently facing separate quasi-criminal charges for specific wrongful conduct before a military commission, discussed below, rather than merely being combatants affiliated with a U.S. military enemy. The main due process protection is the right to bring a habeas corpus petition challenging your classification as an enemy combatant. In addition, the military evaluates whether the detention of an enemy combatant is lawful because the person is an enemy combatant, and whether this detention continues to be lawful in a Combatant Status Review Tribunal, rather than in a quasi-criminal court-like military commission. Since it is not a criminal offense/charge (instead, it is a military tactic), it is not subject to the speedy trial act requirement. As the Lawfare blog explains: On Oct. 19, Judge Amit Mehta of the U.S. District Court for the District of Columbia did something we have not seen in many a year: He granted a Guantanamo detainee’s petition for a writ of habeas corpus, ordering the man’s release. The man in question is Asadullah Haroon Gul (aka Haroon al-Afghani), an Afghan citizen who was captured alongside six other men in an operation by Afghan government forces in early 2007. All the men, it appears, were members of the armed group known as Hezb-e-Islami Gulbuddin (HIG) commanded by former Afghan Prime Minister Gulbuddin Hekmatyar. Though not formally part of the Taliban, Hekmatyar’s political movement and its armed expression, HIG, were aligned theologically and politically with the Taliban. And after the fall of the Taliban, HIG became one of the armed groups fighting against the new Afghan government, U.S. forces and other allied forces. In short, HIG for many years was a paradigm example of an “associated force” engaged in hostilities against the United States in connection with the larger conflict with al-Qaeda and the Taliban. Indeed, in 2011, a U.S. Court of Appeals for the D.C. Circuit opinion authored by now-Attorney General Merrick Garland expressly affirmed as much in Khan v. Obama. But here’s the thing about military detention authority: The scope of that authority will grow or shrink in accordance with the scope of the underlying armed conflict on which the claim of military detention authority is based. And thus it mattered a great deal when, in fall 2016, the then-government of Afghanistan reached a peace agreement with HIG. Thus, even without the eventual U.S. decision to withdraw from Afghanistan and end the fight against the Taliban too, the legal foundation for military detention in cases predicated solely on membership in HIG appeared to be going or already gone by late 2016. . . . In 2018, the Justice Department responded by abandoning its claim of authority to detain based on HIG membership alone. It argued that Gul still could be held, however, based on the distinct claim that Gul separately had been involved with al-Qaeda itself. Gul denies that argument on factual grounds, and for a time that was the central issue in the case. Then, with the recent full withdrawal of the United States from Afghanistan, Gul appears to have expanded his argument to include a much broader claim about the expiration of the legal grounds for detention. That claim, if accepted by the court, could have sweeping implications for other Guantanamo detainees. Courts have generally declined to enforce speedy trial protections for people detained as enemy combatants who are then transferred to civilian criminal courts such as Ahmed Khalfan Ghailani (who initially faced military commission charges discussed below) and Jose Padilla, the only U.S. citizen detained in the United States for conduct in the United States as an enemy combatant. Padilla was subsequently transferred from military custody to civilian federal criminal justice system pre-trial detention and tried and convicted there of a federal crime, while he was appealing his detention as an enemy combatant to the U.S. Supreme Court. This made the case moot, but left the U.S. Circuit Court of Appeals precedents made earlier in his case, which had upheld his detention as an enemy combatant in these circumstances, on the books as a binding precedent that the U.S. government could invoke in a future case. The leading modern case on the topic is Hamdi v. Rumsfield, 542 U.S. 507 (2004) which addresses the authority to detain an enemy combatant, and the scope of the habeas corpus remedy in the case of a U.S. citizen who is alleged to be an enemy combatant. The official syllabus summarizes the case as follows: After Congress passed a resolution–the Authorization for Use of Military Force (AUMF)–empowering the President to “use all necessary and appropriate force” against “nations, organizations, or persons” that he determines “planned, authorized, committed, or aided” in the September 11, 2001, al Qaeda terrorist attacks, the President ordered the Armed Forces to Afghanistan to subdue al Qaeda and quell the supporting Taliban regime. Petitioner Hamdi, an American citizen whom the Government has classified as an “enemy combatant” for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S. C. Hamdi’s father filed this habeas petition on his behalf under 28 U.S.C. § 2241 alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments. Although the petition did not elaborate on the factual circumstances of Hamdi’s capture and detention, his father has asserted in other documents in the record that Hamdi went to Afghanistan to do “relief work” less than two months before September 11 and could not have received military training. The Government attached to its response to the petition a declaration from Michael Mobbs (Mobbs Declaration), a Defense Department official. The Mobbs Declaration alleges various details regarding Hamdi’s trip to Afghanistan, his affiliation there with a Taliban unit during a time when the Taliban was battling U. S allies, and his subsequent surrender of an assault rifle. The District Court found that the Mobbs Declaration, standing alone, did not support Hamdi’s detention and ordered the Government to turn over numerous materials for in camera review. The Fourth Circuit reversed, stressing that, because it was undisputed that Hamdi was captured in an active combat zone, no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the Government’s assertions was necessary or proper. Concluding that the factual averments in the Mobbs Declaration, if accurate, provided a sufficient basis upon which to conclude that the President had constitutionally detained Hamdi, the court ordered the habeas petition dismissed. The appeals court held that, assuming that express congressional authorization of the detention was required by 18 U.S.C. § 4001(a)–which provides that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress”– the AUMF’s “necessary and appropriate force” language provided the authorization for Hamdi’s detention. It also concluded that Hamdi is entitled only to a limited judicial inquiry into his detention’s legality under the war powers of the political branches, and not to a searching review of the factual determinations underlying his seizure. Held: The judgment is vacated, and the case is remanded. Justice O’Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker. Justice Souter, joined by Justice Ginsburg, concluded that Hamdi’s detention is unauthorized, but joined with the plurality to conclude that on remand Hamdi should have a meaningful opportunity to offer evidence that he is not an enemy combatant. Military Commissions Compared A Military Commission trial is different from detention as an enemy combatant. On November 13, 2001, President Bush issued a Military Order governing the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” The Military Order effectively established the novel military commissions at Guantanamo Bay, which began in 2004 with charges against four Guantanamo detainees. In 2006, the Supreme Court struck down the military commissions (in Hamdan v. Rumsfeld), determining that the commissions violated both the Uniform Code of Military Justice and the 1949 Geneva Conventions. In response, and in order to permit the commissions to go forward, Congress passed the 2006 Military Commissions Act (MCA). Congress significantly amended the MCA in 2009. In 2019, exercising authority granted to him under the MCA, the Secretary of Defense published an updated Manual for Military Commissions, which sets forth the current procedures that govern the commissions. The enemy combatant detainees who face military commission trials are a small subset of the total number of detainees: Of the 779 men detained at Guantanamo at some point since the prison opened on January 11, 2002, thirty two total have been charged in the military commissions. Charges were dismissed in 12 of those cases, and stayed in another. The U.S. government has procured eight convictions total, six of which were achieved through plea agreements with the defendants. U.S. federal courts have overturned several of the eight convictions in whole or in part. There are five cases are currently ongoing in the commissions—and another two pending appeal—including United States v. Khalid Sheikh Mohammed, et al.—the prosecution of the detainees alleged to be most responsible for the September 11, 2001 attacks. None of those five cases has yet gone to trial. Only one military commission case to date produced a conviction following a military commission trial, and that conviction was vacated on appeal in Hamdan v. United States (D.C. Cir. 2012). Another military commission defendant had his case transferred to a civilian criminal court where he was convicted following a civilian criminal trial (Ahmed Khalfan Ghailani) where he was convicted and is currently serving a life sentence in a federal prison. He is the only person originally charged by a military commission who is still incarcerated by the U.S., and again, in that case, outside the military commission process. Two of the six military commission guilty pleas were subsequently vacated in the cases of David Hicks, who was then deported to Australia, and Noor Muhammed, who was deported to Sudan. Five military commission cases remain outstanding. Footnote: Enemy Non-Combatants The parallel case law for civilians who are not combatant is Korematsu v. United States, 323 US 214 (1944), which while deeply criticized, has never been overruled as applied to non-citizens. This case held that the U.S. may detain a non-combatant civilian, even as U.S. citizen, who has ancestry from an "enemy" (with "enemy" defined in the same ways as in connection with "enemy combatant") in an interment camp for the duration of a military conflict with that "enemy." In that particular case, the "enemy" was the Japanese Empire upon which Congress declared war after the December 7, 1941 bombing of Pearl Harbor, and the non-combatant civilians who were interred were ancestrally Japanese or families of people who were ancestrally Japanese. While this precedent has never been formally overruled as as applied to non-citizens, it has received heavy criticism in legal scholarship and is no longer good law as applied to U.S. citizen who were merely born citizens of an "enemy" or shared the ethnicity of an "enemy". The portion of the Korematsu holding that upheld this detention in the case of U.S. citizens was abrogated by a majority opinion of conservative justices in U.S. Supreme Court in the case of Trump v. Hawaii, 138 S.Ct. 2392, 2423 (2018), which stated (in a case upholding the legality of Trump's Muslim ban as modified from its original version): Finally, the dissent invokes Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U.S., at 248, 65 S.Ct. 193 (Jackson, J., dissenting). But, it might very well continue to be good law as applied to non-citizens in the U.S. who were nationals of an "enemy". | Impeachment is unique in that it is a question of politics, not a question of law, that is being discussed at trial. The other exception is that the Senate, not the Supreme Court, is the High Court of Impeachment (that is, legal precedence is based on what the Senate says, not what the Supreme Court or any other appellant court says). There are a few minor details, but the main part of the trial will play out like a criminal trial, with the Managers (people named by the house to argue the case) taking the role of the Prosecution and the Senate as the Jury. Because the trial is purely political in nature, a jurist decision to on the matter before evidence is presented at trial is entirely legal. It's actually perfectly legal to have your own opinion prior to trial start in a normal criminal jury and to vote on that ground... but the attorneys will dismiss you from the pool if they find even a hint of this. Unlike the judicial system, the jurists of Impeachment Trial are the same 100 people (presently) and cannot be dismissed for any reason, including comments about how they will find in the trial. Jury Fixing or tampering is when the decision a jurist makes is colored by some outside motivation to the jurists own convictions (i.e. the crime boss has your family and won't kill them if you find his hired goon innocent.). It could be an issue if a senator was given some pork to vote against his/her choice, but Impeachment is incredibly rare in the U.S. system and there hasn't been any case where this was an issue (If Articles of Impeachment are brought, this will be the 20 case to reach the trial stage since the adoption of the Constitution, and the 3rd for a President.). | Immigration and naturalization is pretty far out of my comfort zone, but I'm confident that the answer is yes. Although people often believe that a foreign embassy is considered the territory of that country, I don't know of any law that supports that belief. Instead, through the Vienna Convention, the embassy grounds remain the territory of the host state but are provided a variety of protections and immunities because of their diplomatic status. With the embassy on U.S. soil, the child would therefore satisfy the "born ... in the United States" prong of the 14th Amendment's Citizenship Clause.* But that would not be the end of the analysis, as birthright citizenship also requires not just that the child is born in the United States, but also that the child be "subject to the jurisdiction thereof." So if the child were born to an American citizen who had entered the Indian embassy to get a travel visa, the child would be both born in the United States and subject to its jurisdiction, making it eligible for birthright citizenship. But if the child were born to Indian ambassador or to diplomatic staff, who would generally be able to claim diplomatic immunity, that child would not be subject to the jurisdiction of the United States and would not be able to claim birthright citizenship. Slaughter-House Cases, 83 U.S. 36, 73, (1872) ("The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."). * I haven't been able to find any cases saying this explicitly, but all the cases involving children born in foreign embassies sort of skip over the question as though they just assume that the child was born in the United States. See, e.g., Raya v. Clinton, 703 F. Supp. 2d 569 (W.D. Va. 2010); Nikoi v. Attorney Gen. of U.S., 939 F.2d 1065 (D.C. Cir. 1991) These cases also go on to conclude that those children are not citizens of the United States, because they are not "subject to the jurisdiction thereof." | Can illegal immigrants sue the U.S. government if they got injured while being detained? Yes, if they are in the USA at the time. See the opinion of the Supreme Court of the United States in Zadvydas v. Davis, 533 U.S. 678 (2001): It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. [citations omitted] But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent. (My emboldenment) In my research for this answer I came across a 2017 FactCheck.org article that disproved a fake news story that was doing the rounds. I have not repoduced it here to prevent its wider circulation by being found by internet search engines. Instead, this is what FactCheck has to say: Q: Did the Supreme Court rule that immigrants living in the U.S. illegally can’t sue anyone if they feel they’ve been mistreated? A: No. That claim was made in a bogus story published on satirical and fake news websites. The fake news story appears to have come from the case of Hernandez v Mesa that... ...centered on the 2010 shooting of a Mexican teenager [Hernandez] on the Mexican side of the Mexico–United States border by a U.S. Border Patrol agent [Mesa] who was standing on the U.S. side of the border at the time he fired his weapon. ... and whether the Constitution extends protection to an individual who is killed on foreign soil, even though that person is standing just a few yards outside the United States. Apparently it doesn't as, after much toing and froing, on 25 February 2020 the SCOTUS... ruled against Hernandez and held that the Court's precedent under Bivens did not extend to cross-border shootings. | The country where the accused person was arrested would extradite that person to one of the countries where the crimes had been committed. The extradition treaties or the law of the arresting country might have a rule to define how to choose which country took precedence. (Perhaps the earlier crime, or the more serious crime if they were different, or the closer ally might get priority.) Once the accused was extradited, s/he would be tried, and if convicted, sentenced. Once the sentence was completed, that person would be turned over to the second country for trial and possible sentence there. Sometimes, particularly if the sentence is long, an accused will be turned over to the second country for trial soon after conviction in the first country, under an agreement that the person would be returned to serve the sentence in the first country after the trial was over, whatever the outcome, and then sent back to the second country to serve any sentence imposed there. Or the second country could choose to count time served in the first country against its sentence, but I believe that this is not usual. Consider the case of Frank Abagnale who was sought by some 12 different countries when he was arrested in France. He was convicted and served time in France, then extradited to Sweden, where he was also tried, convicted and served time. Italy had requested his extradition, but he was deported to the US, where he was also tried, convicted, and served time. | The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted. | The governing law would be the Vienna Convention on Diplomatic Relations (1961). The relevant part is Article 29. Diplomats must not be liable to any form of arrest or detention. Diplomats are also immune from civil and criminal prosecution. Technically, it wasn't a US diplomat but a family member, but by Article 37 they have the same protection. The linked article suggests that her diplomatic immunity ended, but that's a bit of a non-issue. The host nation (the UK in this case) can declare anyone, diplomats or family to be persona non grata which indeed ends diplomatic immunity, but only after the person is allowed to leave the host nation. And when the act happened, the immunity was in place. Immunity cannot retroactively be withdrawn by the host nation. | That an enemy combatant does not have their weapon on them right now does not render them a non-combatant. If the Axis soldiers had been unconscious, it would have been a different story, but "mildly drunk and gun out of reach" isn't enough. It is forbidden have "no quarter given" as a policy, but that doesn't mean that an enemy has to be given an explicit chance to surrender, that just means that if the enemy does indeed surrender, that surrender can not just be denied. Most casualties in war happen due to artillery anyway, so a requirement to give the opportunity to surrender would be kinda meaningless. Where such a situation gets messy is if some of the Axis soldiers had tried to surrender on the spot. The SAS would then be expected to try and shoot only the non-surrendering soldiers. If everyone surrenders, and the SAS kills them anyway because they don't have the ability to take prisoners, that's a clear warcrime. Sources: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule46 https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule47 |
Does double jeopardy apply to the Texas abortion bill? Suppose Alice performs an abortion, and Bob files a suit based on Texas SB8. Can Charlie also file a suit against her? Could a million people file suits asking for $10k each? | Sec. 171.208(c) of the law provides: (c) Notwithstanding Subsection (b), a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion performed or induced in violation of this subchapter, or for the particular conduct that aided or abetted an abortion performed or induced in violation of this subchapter. The apparent intention, as I see it, is that a defendant is only supposed to have to pay the $10,000 damages once, so that it's not possible for a large number of plaintiffs to sue and collect. Some others have pointed out that there may be a loophole in case there are judgments in several cases before the defendant pays for the first one, and that in such a situation the defendant might be required to pay more than once. It doesn't seem to me, on its face, that such a loophole was intended, but we may have to wait and see how courts handle it. In any case, it would seem that the defendant could minimize this possibility by paying the judgment as quickly as possible. | Double jeopardy does not bar him from facing federal charges, although U.S. Justice Department policy reserves such prosecutions for exceptional cases. Also, it depends to some extent upon whether there is a suitable federal crime that fits the conduct. | 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). | There is no legal requirement that a jury be composed of people demographically like the defendant (or the plaintiff), there is simply a requirement that the selection process give all kinds of people an equal chance at being empaneled. So being a different race or gender from one of the parties is not prima facie evidence of a biased jury. The statement that "The jury asked a question because some invoices were not attached to a statement and wanted to impeach the victim's testimony" is somewhat puzzling, since Georgia is widely cited as a state where jurors are forbidden to ask questions. Let us suppose though that jurors manage to communicate an interest in knowing a fact, such as "Do you have an invoice for X?", then the judge could decide whether that is a proper question. At that point, it moves from being a jury matter to a legal judge matter, and if the question was itself highly prejudicial, the case could be overturned on appeal. Alternatively, the way in which the question was framed by the jury could be proof of bias, e.g. "Please ask that lying %@!^* defendant to prove her ridiculous story". The defense attorney has entered an objection (if you don't object, you can't appeal), and perhaps if the question was legally improper then the verdict could be set aside. If the attorney failed to move for mistrial (if the question proves blatant bias) then that's the end of the matter, except for a possible action against the attorney. The implied questions about attorney conduct are hard to understand. An attorney may refuse to engage in a futile legal act, but this does not preclude an individual from seeking another attorney to file a motion or even attempting to file a motion on one's own (which is probably a futile act). However, I also assume that the victim did not have her own attorney and that this was a case between two insurance companies about individuals – a third party claim. In this case, the attorney represents the insurance company, not the victim, and has to be responsible to the interests of the insurance company. The attorney thus is obligated to not cost the insurance company a packet of money if there is no realistic chance of getting anything in return. The alternative would have been be to engage (and pay) your (her) own attorney. | I don't believe your premise is necessarily true. As the Supreme Court has held, a defendant can be prosecuted for perjury after being convicted for another offense at trial: The conviction of Williams, at a former trial, for beating certain victims is not former or double jeopardy. Obviously perjury at a former trial is not the same offense as the substantive offense, under 18 U.S.C. § 242, of depriving a person of constitutional rights under color of law. . . . It would be no service to the administration of justice to enlarge the conception of former jeopardy to afford a defendant immunity from prosecution for perjury while giving testimony in his own defense. United States v. Williams, 341 U.S. 58, 62 (1951) (emphasis added). Now as a practical matter, trying a convicted person for perjury is most likely rare, since the prosecutor has already obtained a conviction for the underlying offense. Starting another prosecution for perjury might be excessive or unnecessary. But that doesn't mean it's categorically prohibited. Note also that perjury by the defendant can be considered by the judge to enhance the defendant's sentence. United States v. Dunnigan, 507 U.S. 87, 96 (1993). | If the question is: "Did she call you and talk about two business contracts? " then this is not hearsay. We have a witness, standing in court, saying that exactly these things happened - that she called, and that she talked about those deals. If the question is: "Did the company sign two business deals that day? " then it is hearsay. We know that she said two deals were signed, because we have a witness for that, but that doesn't mean she said the truth. She could have lied about that. We don't have a witness standing in court saying that the deals were signed. We have a witness in court saying that he heard someone say the deals were signed. In a libel case where Jim sues Joe for libel, a witness says "Joe told me that Jim is a lying thief". That's absolutely not hearsay in a libel case about Joe spreading false rumours. The exact same statement by the exact same witness would be hearsay if someone tried to convict Jim for theft. | 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. | Yes, this is plausible. To be doctrinally precise, "jeopardy" attaches when the jury is sworn in. Once jeopardy attaches, there can only be a second trial if: The defendant is convicted of a charge that is reversed on appeal or in a collateral attack on the conviction. There is a mistrial that is attributable to the defendant or the defendant's counsel's conduct (e.g. the defendant is observed by the bailiff trying to bribe a juror with cash in exchange for voting to acquit), or is requested by the defendant or his counsel (who has not been "goaded" into doing so by the government). There is a mistrial that is not attributable to the conduct of either the prosecution or the defendant. As explained here: Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial as was addressed in United States v. Josef Perez, 22 U.S. 579 (1824). When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, 456 U.S. 667 (1982), the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." |
How accountable are dog owners for their animals' actions? I realise that if I forget that the garage door is open and my dog gets out and bites someone I'm in big trouble. What would be the case if I'm sleeping in my house and someone breaks in and my dog kills the intruder before I'm even fully aware of what's happening? Can I be held accountable if it is considered not to be self-defense? Let's just assume for argument's sake that the dog in question has not received any attack training. | The law on such matters within the US varies from state to state. In general a dog owner is responsible for taking "reasonable" measures to control the dog and prevent harm. What measures are reasonable will depend on the detailed facts. particularly important will be the previous history and actions of the dog. If a dog has a history of attacking people, then the owner is expected to know this, and to take measures which are reasonable in light of that history. The page "Strict Liability Dog-Bite Laws" from Nolo documents states in which an owner may be responsible for any bite. As that page says: When a dog hurts someone, the injured person is likely to sue the animal's owner for medical costs and other damages. In more than half of the states, those lawsuits may be based on laws that make the owner automatically liable for most dog-bite injuries. These laws are often called "strict liability" statutes, because the injured person doesn't have to prove that the animal's owner knew the dog was dangerous (often called the "one-bite rule") or that the dog owner was negligent (legalese for "careless"). That page goes on to say: Also, dog owners may have legal defenses to avoid liability for dog bites. Most dog-bite laws include exceptions—typically when the injured person was trespassing or provoked the dog. And many of the laws don't apply if the dog was performing its duties as a police dog when the bite happened. The page lists details on the laws for holding dog owners liable in the listed states under a "strict liability" theory. The page notes that even when one of the listed exceptions applies, so a strict-liability suit cannot be brought, a suit under a negligence theory (failure to take reasonable precautions) may still be possible. A plaintiff may cite both theories in a single suit where the law permits. The page lists 36 states and the District of Columbia as having some sort of strict liability statute for dog attacks as of December 2020. In a number of states that the person attacked was trespassing is considered an exception to the strict-liability rule. The page "Brief Summary of Dog Bite Laws" published by Michigan State University in 2004 says: Liability can be based on a common law theory of negligence of the owner where recovery is based on the action or lack of action by an animal owner /keeper. Common law is the law derived from court decisions and historical traditions rather than explicit statutory provisions. Recovery at law under this concept requires a showing by the injured party that there was a legal duty owed to the injured party by the animal owner /keeper and that the injury arose because of a breach of that duty. This duty can arise from a failing to properly secure an animal or entrusting the animal with someone unfit to restrain the animal. It can also arise independently from violating a local ordinance, such as those ordinances that prohibit dogs running at large or mandatory muzzling provisions. It has been said that one who keeps a vicious dog, with knowledge of its savage and vicious nature, is presumed to be negligent if he or she does not keep the animal secure from injuring others. ... States may also impose a more stringent standard of fault called strict liability . In those states, liability automatically arises when a domestic animal has a known vicious propensity attacks, bites, injures, or even chases someone. There is no necessity to show that the owner was negligent in his or her actions in proving liability. ( Click here for a summary of states that impose strict liability). In addition, owners may face liability based on the legal category of the dog him or herself. Nearly all states have some laws that govern what can be termed “dangerous dog” or “vicious dog” laws. These laws outline what constitutes a “dangerous dog” or even a “potentially dangerous dog” and under what circumstances an owner will be liable for the actions of such dogs. Moreover, some states impose what is called “strict liability” on dog owners for any injury resulting from a dog deemed dangerous regardless of any knowledge of the dog’s tendencies. These strict liability laws may also limit the ability of the owner to claim a defense to the action. In other words, the law may state that the owner is liable regardless of whether the person who was bitten was trespassing on the owner’s property or whether the owner knew the dog was vicious. Regardless of whether you are dealing with a strict liability state or not, provocation will be an important factual issue. Provocation simply refers to a situation where a dog is incited, encouraged, or provoked into biting a person. In states where there is strict liability, an owner may use provocation as a defense to the dog bite. This will either reduce the owner's liability based in part (comparative or contributory negligence on the part of the victim) or bar the victim's claim completely. A court will either determine provocation from the perspective of the injured party (i.e., did the person intend to provoke the animal or have knowledge that his or her actions would provoke the animal) or from the perspective of the dog. The page "State Dog Bite Laws: "One-Bite" vs. Strict Liability" from AllLaw says: Prior to the twentieth century, a dog owner was usually only held liable for injuries when their dog bit someone if the owner had reason to know the dog might bite. This was known as the "one bite" rule because it generally meant that a dog was allowed "one free bite" before the owner would face legal trouble. In modern times, the one bite rule does not necessarily allow a dog one free bite. If an owner knows the particular breed is dangerous, or if the particular dog might be prone to biting because of its general character or some other factor, he or she could face liability for the dog's first bite. The focus is on whether the owner knew or should have known that the dog might bite, and whether the owner took reasonable precautions based on that knowledge. For example, if a relatively aggressive dog recently underwent surgery and the owner did not warn a house guest not to pet the dog, the owner might be held liable if the house guest is subsequently bitten. As a fault concept, the "one bite" rule has much in common with (and often overlaps) the personal injury liability rule of negligence. Many states have enacted "dog bite" statutes that create a form of "strict liability" for dog bites. Strict liability means that the defendant is held liable if a certain event occurs, regardless of whether the defendant could have done anything to prevent the event. The typical strict liability dog bite statute says that a dog owner is liable if his or her dog bites someone, regardless of whether the owner did anything wrong, as long as the injured person: was not trespassing or otherwise breaking the law at the time of the incident, and did not provoke the dog. If a strict liability dog bite statute applies, what the owner did or did not know about the dog prior to the bite is usually irrelevant. Note that strict liability dog bite statutes are not the same in every state that has one of these laws on the books. ... In short, the particular law of the state or locality, and the particular facts of the case will both be important in the case of any dog attack. By the way, nothing an animal does on its own can be classed as self-defense, although where a human orders an animal to attack that might be self-defense by the human (using the animal), depending on the facts. Actions that would have been self-defense by a human will probably not be grounds for finding an animal's owner liable. | There is a good amount of case law addressing this question going back two centuries. Legally, as soon as you are subject to "excessive force," you are allowed to defend yourself as you would against any assault, even if that force is being used in the course of an otherwise lawful arrest. Furthermore, in some states you are still allowed to resist unlawful arrest. Unfortunately, the matter is no longer as clear as it used to be. (There is a lot of material on this subject; just search for resisting unlawful arrest.) For example, police reflexively invoke a virtual safe harbor by shouting, "Stop resisting!" while battering arrest subjects. Video evidence has uncovered a plethora of examples in which this was done to subjects who were not only not resisting, but even later determined to have been incapable of resisting. If you intend to defend yourself against police, even when justified by law, you need to realize that the system is stacked against you. Police carry the means of escalating to lethal force. So, for example, if you are being beaten but you are potentially able to physically overpower and restrain an officer, you will likely then be met with baton blows or tasers. Since a baton is a deadly weapon, you would be (in theory) justified in shooting an officer attacking you with one. But as soon as any officer shouts "gun!" you will be shot, and most likely killed. Police seem to be given the benefit of the doubt by prosecutors and grand juries when they claim, "I feared for my life." You (even if you survive) will likely have any such claim subject to a full criminal trial. So even though you can legally defend yourself against excessive police force, these days you will almost certainly be unable to in practice. | Generally, what you say you will do in a contract is what you must do - there is no "the dog ate my homework" excuse. For your examples: Employment contracts have so much government regulation that the common law contract is lost in the mists of time. It is unlikely that a court would interpret an employment contract as requiring exact timekeeping; it is also unlikely that the person would have worked exactly 38 hours on every week except the one where they worked 37.5. However, if it were proved that the employee owed 0.5 hours to the employer they could be required to provide it or refund the pay they had received, barring a law that changed this. The dog must be walked. Alice must find a substitute walker if she is unable to provide it. Falling sick is something foreseeable that Alice should have provided for either in the contract ("if I am sick I won't walk the dog") or by arranging for someone else to do it. For purely personal services, falling sick may frustrate the contract, however, dog-walking is probably not personal enough. There is a doctrine which allows termination by frustration where neither party is at fault, however, it is not clear that this would apply. The building burning down is foreseeable and could (should?) have been addressed in the contract. If the destruction of the building was without fault on the owner then the contract is frustrated. If there was some fault on the owner (smoking in bed, inoperative fire alarm etc.) and the cleaner stands willing, ready and able (that is able except for the absence of a building) to perform their obligations, the owner would probably be obliged to pay, at the least for unrecoverable costs (e.g. wages) and loss of profits - if they pay for the cleaning products the cleaner would be obliged to deliver them up. One of the main reasons for the length of contracts for non-trivial transactions is they deal with these contingencies. | user662852 has a good point -- whoever own the property has the right to make the rules. Is the property, land+construction in fact your's or does it belong to the HOA who just grant you access as a lease holder? Different states has different rules, but in my state it is illegal to maroon a property and there must be a access to public streets even when this necessitate passing over somebody else land. However that is irrelevant if the HOA owns the land your house is build on. I think you will have to look at your HOA agreement and see what it says. | In various states, you may shoot a dog attacking livestock or running at large (the latter possibly only in Indiana). In Ohio, ORC 955.28 allows shooting a dog that threatens (etc.) "livestock, poultry, other domestic animal, or other animal, that is the property of another person, except a cat or another dog". So in fact, dog against cat is specifically exempted. The Kentucky law allows shooting a dog that trespasses and attempt to harm livestock (not cats). Texas has such a law, which says "A dog or coyote that is attacking, is about to attack, or has recently attacked livestock, domestic animals, or fowls may be killed", if they witness the event. This law is not limited to livestock and does not specifically exclude cats. | Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception. | Although the assailant (or their estate if they are killed) could lodge a claim for damages it does not necessarily follow that they would win - they would have to show that the shooting was not legitimate self-defence but rather was unlawful by, for example, negligence or use of excessive force - say by shooting them when they didn't pose an immediate and unjustified threat. The Federation rules, as far as I can see, are not actual legislation. Although they should be adhered to in normal circumstances, this shooting would be, in the given circumstances, legitimate self-defence according to Article 122-5 of the Code Pénal which says: N'est pas pénalement responsable la personne qui, devant une atteinte injustifiée envers elle-même ou autrui, accomplit, dans le même temps, un acte commandé par la nécessité de la légitime défense d'elle-même ou d'autrui, sauf s'il y a disproportion entre les moyens de défense employés et la gravité de l'atteinte. N'est pas pénalement responsable la personne qui, pour interrompre l'exécution d'un crime ou d'un délit contre un bien, accomplit un acte de défense, autre qu'un homicide volontaire, lorsque cet acte est strictement nécessaire au but poursuivi dès lors que les moyens employés sont proportionnés à la gravité de l'infraction. Which Google translates to English as: The person who, in the face of an unjustified attack on himself or others, performs, at the same time, an act ordered by the necessity of the self-defense of himself or of others, is not criminally liable, except 'there is a disproportion between the means of defense employed and the seriousness of the infringement. The person who, in order to interrupt the execution of a crime or an offense against property, performs an act of defense, other than intentional homicide, when this act is strictly necessary for the aim pursued, is not criminally liable. provided that the means employed are proportionate to the gravity of the offense. | There is a defense of provocation This doesn’t apply in this instance because the provocation must be such that it would case a reasonable person to lose control. No reasonable person shoots a six year old. |
Is it legal to purposefully contract COVID-19? I may have a number of reasons for wanting to intentionally expose myself to the coronavirus. (Examples: I feel more capable of surviving it while I am younger. It reduces my ability to carry and spread the virus once my immune system has developed antibodies. It may strengthen the immune system against related viruses.) Can a government legally prevent me from intentionally infecting myself with a virus? | 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. | It's probably not unlawful to ask, but an answer cannot be required immediately. Per the Department of Labor, Susan has 60 days to elect COBRA coverage (the qualifying event here being the termination of Susan's employment): Your plan must give you at least 60 days to choose whether or not to elect COBRA coverage, beginning from the date the election notice is provided or the date you would otherwise lose coverage under your group health plan due to the qualifying event, whichever is later. It would be unlikely for an employer to discourage an employee from electing COBRA coverage due to costs to the employer, as you suggest: Susan is still employed and thus could be treated differently in her last two weeks depending on how she responds because the company is struggling financially and is looking for every opportunity to save money. Susan electing to use COBRA coverage is unlikely to cost the company money, because the employer is permitted to charge her the entire cost of the coverage, plus 2 percent to cover the cost of administering it (additional DoL source). As far as privacy goes, I don't think anything illegal has occurred here. The most prevalent law regarding privacy of health information, HIPAA, generally does not apply to employers. Susan could, of course, request a private discussion, and any response from Emily could not rise to the level of illegal harassment or create a hostile work environment. | "Medical lawyer" is really the wrong focus, this is an issue of civil rights. The question would be, is it a violation of your civil rights to prevent you from taking your baby home; is it legal for the federal government to investigate people who refuse to take a covid test? You can take the question along with pertinent evidence to a civil rights attorney. To pick a non-random hospital's web page, they note that "Any person having surgery or a procedure, including birth, at a Texas Health hospital will be tested for COVID-19 to provide appropriate care for the patient, and for the protection of visitors and the care team", and "you will need to be tested at admission to help safeguard you and the care team". In answer to the question whether you can decline testing, they say "Testing is recommended to promote the health of you and your baby. Patients who have COVID-19 can have a weakened immune system and may have inflammatory symptoms that can compromise healing. We encourage you to speak with your provider about the best decision for you", which doesn't explicitly say "No you may not", nor "Yes, you may". However, they cannot literally force you to take the test: at most, they can refuse to treat you. In answer to the question "Will I be separated from my baby if I test positive for COVID-19?", they say "Texas Health will follow guidelines from the American Academy of Pediatrics, American College of OB/GYN and the Centers for Disease Control for how to keep you and your baby safe during your hospital stay. Ultimately, any decisions about care for you and your baby will be between you and your provider, based on what is best for you both". This is also not crystal clear. There are three primary legal issues, putting a worst spin on their policy. They say up front that you will be tested prior to admission: the question is whether you can decline to take the test but force them to admit you. Now we are closer to the realm of a medical negligence attorney – they can refuse to treat you, but that might leave them liable. The second question is whether they can temporarily take the infant away, against the mother's wishes (for example, hold the infant in a separate facility while the mother is in the hospital). The third question is whether they have direct authority to take the infant away when you leave the hospital. The third question gets a plain and simple no. The Texas Dept. of Family and Protective Services has some authority in such a matter, but taking a child requires an investigation and a court order. | There are none. Damages against B’s clinic? A does not have a contract with B’s clinic. No duties nor rights without a contract. Damages against B? A does not have a contract with B. If there was a contract, we need details about it. Tort, § 823 Ⅰ BGB? No. B was neither negligent nor did he/she deliberately incur damage. Report B as criminal? A and B had consensual sexual intercourse. This consent (necessarily) comprises the risk of transmission. You cannot give “consent to facts” though. Yet here B had no knowledge of his/her contagiousness. He/she definitely did not deliberately infect A. Negligence is out of question, because there is no general expectation to get regularly tested before having sex with anyone. | Possibly. I am analyzing this issue under generally applicable, majority, common law rules of law (applicable in the U.S. (except Puerto Rico and Louisiana) and in most countries that are or were part of the British Commonwealth), when not modified by statute or regulation. If there is a contract regarding what is to be done, the measure of damages is "the benefit of the bargain". And if the benefit of the bargain included an express or implied warranty that the transaction would be conducted in a manner that obtained a tax benefit and that tax benefit was not obtained, the difference between the economic value of the agreed result and the actual result would be recoverable as monetary damages (which would then raise the meta issue of the tax treatment of the recovery which is beyond the scope of this answer). Two other kinds of claims in addition to a straight breach of contract claim are also plausible. One is a claim for breach of the duty of good faith and fair dealing arising in every contract, which requires that someone who has discretion in the way that they perform a contract to do so in a manner that reflects the intent of the parties regarding the objectives and purposes of the contract when carrying it out. By intentionally disregarding the intent of the parties, in how the transaction would be carried out, damages in the form of additional taxes could be incurred. Another is a claim for breach of fiduciary duty in a case where the person carrying out the transaction and the person for whom the transaction was carried out are in a fiduciary relationship, such as a customer and a broker with discretionary authority, or an agent and principal, or a lawyer and client. Usually, when someone is entrusted with discretionary management of someone else's money or property, a fiduciary relationship arises by operation of law. The taxes unnecessarily and intentionally incurred in this case could also be damages for a breach of fiduciary duty. On the other hand, in contracts and transactions of this character, there would frequently be an express contractual waiver of any right to recover for taxes incurred, allegedly wrongfully, in the transaction. This waiver would be effective against a claim for breach of contract or a claim alleging that a fiduciary negligently violated a duty of care owed to the person upon whose behalf the transaction was conducted. But, waivers of rights are generally ineffective and void as contrary to public policy, when the wrongdoing purportedly waived is intentional or conducted in bad faith in a manner that is knowingly contrary to the mutual intent of the parties to a transaction. So, while a waiver would be effective if someone accidentally incurs additional taxes for someone else, it generally wouldn't be effective if someone screwed up the tax outcome intentionally as the question proposes in its example. | In addition to the above, mandatory quarantine (self-isolate) means you must: go directly to your place of quarantine, without stopping anywhere, and stay there for 14 days do not go to school, work or other public areas and community settings monitor your health for symptoms of COVID-19 arrange to have someone pick up essentials like groceries or medication for you Emphasis mine. Coronavirus disease (COVID-19): Travel restrictions and exemptions | The CDC does not authorize shots or vaccine distribution. The FDA authorizes vaccine distribution, or distribution of medicines in general. A medicine is authorized for use in a certain way, which is an "instruction" directed at the medical professional. So-called "off-label" use is discussed by the FDA here. Such use if legal, it simply stretches the limits of what the FDA was allowed to approve (e.g. was found to be safe and effective for X, was not similarly tested for Y). Patients are free to take whatever medicines they want if they can find them, and if they are not on the Controlled Substances list. Hence it's legal to take DMSO, but it's not legal to peddle it as a cancer cure. The prescription regime for covid vaccinations seems to be somewhat relaxed, in that it is likely that many people get a vaccine without a (meaningful) doctor's exam, instead, you show up and get the shot. This is normal with flu shots. The upcoming 3rd shot approval is addressed to doctors, so they can then recommend third shots. | No. Arbitrating rather than litigating when not required to do so by contract is almost never considered to be a legally compensable harm as a result of pro-arbitration legal policies. The consumer would be required to continue arbitrating and couldn't change course at that point. In practice, this fact pattern is unlikely, because the consumer needs the relevant details from the contract to commence arbitration. Other examples of unavailable contracts are hard to compare. It is a fact intense analysis. |
Legal standing as a house-sitter during a bailiff visit Let's suppose someone is house-sitting for an associate, and they are away on holiday. Then some enforcement agents come to settle a debt, claiming to be entitled to seize any possessions at the address. What if the majority of the possessions in the property at the time of the enforcement visit belong not to the debtor, but to the house-sitter? What is the situation here then, legally speaking? | england-and-wales (things might be different in scotland and assuming the Enforcement Agents are in possession of a lawful writ or warrant) Short Answer: The house sitter has to prove ownership Long Answer: The law, at para 10, Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 is that: An enforcement agent may take control of goods only if they are goods of the debtor. Note that: Bailiffs can consider at first sight “prima facie” any goods are the property of the debtor and the burden of proof who owns seized goods lies with the debtor or the owner [in this case the house sitter]: Observer Ltd v Gordon [1983] - but does not apply to vehicles [they should check with DVLA] Source This means they can sieze goods they believe are owned solely by the debtor or jointly with a co-owner but not "third party goods" that belong to someone else - therefore onus is on the the house sitter to prove their ownership. If this cannot be proved to the bailiffs' satisfaction and they take some "third party goods" then the house sitter may lodge an interpleader claim as per Civil Procedure Rule 85.4 to recover their goods. | 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. | If it says "no pets" in the leasehold, then yes, that is enforceable. It doesn't have to be reasonable (in your opinion, or objectively) to be enforceable. Your choices are to either negotiate different leasehold terms, or to find a different leasehold. | As far as I understand, no one can jail anyone as a result of a civil matter. I can't just say, hey! You did this! I'm taking you to jail. You simply don't have the reason and authority to do so - and I doubt the jails would want random people coming in for random reasons. Courts also don't send people to jail for this. As far as I understand, you can only be jailed by a judge for a criminal matter. However, you can go to jail as a result of a civil matter. When this happens, you need to found guilty of a criminal offence, most notably Contempt of Court. You can be found guilty of that offence if you don't respond/comply to the court's instructions - such as failing to repay debts. In order to be found in contempt, the court needs to find that you also intended to refuse the court's instruction (this is known as mens rea). If you were found liable, the court would not send you to jail. They would instead tell you to repay the damages that you owed the creditor (the person who filed suit). Inability to do this does not result in contempt of court, however, you should generally let the court know of this. In terms of this, the court can allow the creditor to garnish wages, have scheduled payments... etc of the debtor. To answer the main question, the only time that the court will jail a person will be upon conviction of a criminal offence (such as contempt of court), and not a civil matter (such as liability). | If I don't attend the hearing, can I get evicted? Yes. Never ignore a court hearing date. The Tribunal could otherwise impose an outcome without hearing your side of the story. If you ultimately paid the rent and the late fees, and the Tribunal didn't know that, you could be unjustly evicted if you don't present your side of the story. It could simply be a case, for example, where the landlord confused your non-payment with someone else's. But after the Tribunal rules, fixing that mistake is much more difficult than fixing it at a hearing. It could be that making two late payments that are cured later is still grounds for eviction under the lease, although I very much doubt it. In that case, it still pays to show up to make sure that the Tribunal has all of the facts favorable to you before it makes its decision. | As the article suggests, this is called adverse possession. This seems to have occurred because the original owner did not make use of the property, nor monitored for adverse possession. The reason this method of acquiring title exists is for a number of reasons, including the prudent use of land, as well as being analogous to a limitation on the time period during which a claim can be brought. It would be reasonably easily avoided if the original owner had made use of the property, or monitored it and took action to eject the adverse possessor prior to their fulfilment of the necessary conditions. | It primarily depends on the title that you have to the house: are you "joint tenants with right of survivorship". This could have happened when you bought the house; it also could have been done after the fact in various ways. In that case, the house is outside of your wife's estate (which, under the circumstances, is divided between children and you). The lender might be confused about the status of the property, but they might be right, so the question is, what is your legal "interest" in the house, that is, does the title document say "tenants in common"? Assuming that the property is not recorded as JTWROS, then there are two matters to attend to. First, the lender may need to be satisfied, somehow, that they aren't taking a risk by refinancing when you aren't really the full owner. The second is clarifying actual ownership. Estates Code 201.0002-.003 govern intestate succession with a surviving spouse, where the dividing question is whether it is a community estate or not, which then implies shares for children. In that case, the children are part-owners, so you need their consent to e.g. sell the house (that is, this is a complication that needs to be fixed). Basically, you have to get a lawyer, and straighten this out. | In the US, police do not put a person under house arrest, instead, the courts do, as an alternative to standard imprisonment (either awaiting trial, or serving their sentence). The police are not involved at all; the courts cannot be sued for lenient sentencing. If a person leaves their house (even to buy a bottle of milk), they will have violated the terms of their more lenient sentence, and will be arrested and sent to regular jail. Generally, police are not liable for damages, especially when they fail to be omnipotent in their efforts to prevent others from doing wrong. |
Is it legal for a professional ethics group to demand that I "respect" other agents' exclusive relationships with their clients? I previously asked this question on the legality of anti-poaching agreements. If it's not illegal for two companies to enter into an agreement not to poach each others' talent, why is it legal for a NAR® to state, REALTORS® shall not solicit a listing which is currently listed exclusively with another broker. Why is that though? I mean if I solicit a listing from a client who is locked into an exclusive listing with another broker, but the other broker isn't the procuring cause of the sale it sounds to me like the other broker will not be entitled to a commission and I will (subject to my contract). How is a non-compete between two brokers for a client in contract permissible in real estate, but not in other forms of employment? Here are two questions from my practice ethics quiz (not exam) When can a REALTOR® “solicit” another broker’s exclusive listing? a. Never. b. At any time – anti-trust laws prohibit restrictions on such activities . c. If the owner initiates the contact and the REALTOR® has not directly or in direct ly initiated the discussion¸ the REALTOR® can discuss the terms of a future li sting . d. If the owner does not initiate the contact but the REALTOR® initiates a d iscussion at a social event¸ the REALTOR® can discuss the terms of a future listing. They're saying the answer is "C". But how can it be legal to tell me that I compete with another broker for a client through a discussion I initiate with social even When can a REALTOR® deal with the client of another REALTOR® who has an exclusive agreement with the client? a. Never. b. At any time – there are no restrictions on this activity. c. If the client initiates the dealings. d. If the client returns a call after the REALTOR® has initiated the dealings. They're saying the answer is "C". But again, if I prospective client calls me after a general mailing (which they permit) it's not clear to my how it's legal to say we can't compete and "deal" in terms of future listing or for business? Just wanting to get a better idea of how these non-competition agreements work in real estate and what guiding law limits their use, and when they reach over into being anti-competitive. | They are merely telling you what the law is There is a tort called interference with contractual relations: The question strikes at the heart of our economic and legal system both of which are based upon principles of freedom of contract and freedom of choice. However, parties that freely enter contracts cannot freely breach such contracts and Courts have shown that they are prepared in some cases to provide relief against unlawful interferences with contractual relations. If A (the vendor) has contracted with B (the realtor) it is unlawful for a third-party (you) to induce A to breach their contract. If you were to approach A and they then broke their contract with B, B could sue A for breach of contract and you for interference in contractual relations. Anti-competition law is directed at ensuring there is a free and fair market for goods and services but once two parties have willingly entered a contract, they are no longer participating in the market. Now, if A approaches you, that's on A and hence why the answer o both questions is c. | Only if the company consents While some jurisdictions have by statute allowed corporations to be bound by pre-incorporation contracts, New York is not one of them and holds to the common law principle that a person cannot enter a contract before that person exists. In your circumstances the company is only bound by the second contract. So, who is bound by the first? Well, corporations can only act through agents and agency law tells us that an agent who purportedly acts for a non-existent principal is actually acting on their own behalf. So, the person(s) who signed for Company X on the first contract are personally bound to the contract. Unless they explicitly told Company Y that they wouldn’t be. It seems that they didn’t so Company Y can require performance of the first contract by them and of the second by Company X. Company Y must, of course, fulfil its obligations under both contracts - it needs to bear this in mind if it is actually impossible to do both, for example, transferring the same property to the signers of the first contract and Company X or becoming a full time employee of both. If so, it might be in Company Y’s best interests to let the first contract “die”. | Short Answer The question of whether a real property mortgage is recourse or non-recourse is governed by the law of the jurisdiction where the real property is located. The place where the parties to the agreement reside, or where the documents are signed, is irrelevant. I am not aware of any exceptions to this rule anywhere in the world. In some circumstances, the parties may reach an agreement regarding whether a real property mortgage is recourse or non-recourse if the law of the jurisdiction permits agreements of this type. But, often the parties are not allowed to vary this aspect of their real property mortgage agreement by contract. Choice is law for loans secured by collateral which is property other than real property is pretty much irrelevant in the U.S. This because the law is the same in every U.S. state, territory, or district. Long Answer Background regarding recourse and non-recourse loans To clarify, the terms "recourse" and "non-recourse" are normally used to refer to the remedies available in the event of foreclosure of a loan secured by property that serves as collateral for the loan. When the collateral is real property, the core documents in the transaction are a promissory note that represents a borrower's promise to reply the funds borrowed from any assets available to the borrower that is not exempt from creditor's claims, and a document representing the fact that the collateral may be seized if the promissory note is not paid as agreed, and that the creditor's interest in that collateral has priority over all third parties seeking to collect their debts out of that property which cannot be erased by transferring the property to someone else. This document is sometimes called a mortgage, and a substantially equivalent document used mostly in the Western U.S. is called a deed of trust. I will call this document a mortgage for simplicity, whatever its true name in your locality. In the case of a recourse mortgage, if the borrower defaults, the lender can foreclose on the mortgage, which results in a foreclosure sale at which the lender can bid all or part of the debt secured by the collateral together with any additional cash desired, and their parties may make cash bids. Ignoring for the moment the complications involved when there are multiple mortgages and liens with different priorities encumbering the real property, the person who makes the highest bid at the foreclosure sale is given ownership of the real property in exchange for paying the price bid at the foreclosure sale either in cash (in the case of a third-party bid) or in the from of a reduction in the debt owed, in the case of a lender bidding the debt owed against the property. If the mortgage is a recourse mortgage, then if the lender bids less than the full amount of the debt owed on the promissory note and is the highest bidder at the foreclosure sale, then the debt owed on the promissory note is reduced by the amount of the bid made by the lender and the remainder of the balance owing on the promissory note is a personal debt owed by the borrower to the lender called a deficiency judgment. For example, suppose that you buy a house for $1,000,000 with a $200,000 down payment and an $800,0000 recourse mortgage loan. Some time later, the balance owed on the mortgage loan from regular monthly principal and interest payments is $775,000. But, due to a collapse in the real estate market in the real estate market where your house is located, your house, which had a fair market value of $1,000,000 when you bought it, now has a fair market value of $725,000. You lose you job due to the same economic downturn that has caused the market value of your house to decline and are unable to make mortgage payments. The lender forecloses on your house and bids $725,000 at the foreclosure sale, even though you still owe $775,000 on the promissory note. After the foreclosure sale is completely, the lender owns your house, and you still owe the lender a deficiency judgment of $50,000. The lender may now collect the $50,000 deficiency judgment in much the ame way that the lender would collect a judgment entered by a court on an unpaid credit card bill for $50,000. The lender can garnish your wages (once you get some), can seize your bank accounts, and can seize other property which you own which is not protected by a statutory exemption from creditors. In a recourse mortgage the economic risk of declining property values that wipe out the down payment equity is born by the borrower. In contrast, if you had a non-recourse mortgage, the lender's sole remedy would be to seize the collateral and the lenders would not be able to obtain a deficiency judgment no matter how little your house was worth. Operationally, this means that the lender is required to bid the full amount of the debt owed by the borrower to the lender at the foreclosure sale, even if the property is worth much less than the amount of the debt owed. In the case of a non-recourse mortgage the economic risk of declining property values that wipe out the down payment equity is born by the lender. Choice of Law For Real Property The place where the documents are signed and the domiciles or place of organization of the parties to the agreement are irrelevant to the question of whether a real property mortgage is recourse or non-recourse. In the U.S. (and everywhere else that I am aware of), the law governing security interests in real property, such as mortgages and deeds of trust and liens is the law of the place where the real property is located. So, if you take out a mortgage on property in a non-recourse state, the mortgage will be a non-recourse mortgage. Usually, in a non-recourse state, it is not possible for a lender and a borrower to mutually agree to make the mortgage a recourse mortgage when the default rule is that mortgages are non-recourse mortgages. In contrast, if you take out a mortgage on property in a recourse state, the mortgage will be a recourse mortgage, unless the borrower and lender expressly waive the right of the lender to obtain a deficiency judgment in a foreclosure within the mortgage document. Choice of Law For Other Property The law governing security interests in property other than real property in the U.S. is usually the Uniform Commercial Code which contains choice of law rules. While, in theory, different rules that states could adopt regarding whether security interests in property other than real property are recourse or non-recourse, in practice, every U.S. state has adopted the Uniform Commercial Code as a matter of state or territorial or district law, and at the level of generality of whether a security interest (which is the legal name for a mortgage with collateral other than real property under the Uniform Commercial Code) is recourse or non-recourse, the law is uniform throughout the United States, although there might be slight technical differences between the laws of different states or other jurisdictions within the U.S. based upon the version of the Uniform Commercial Code that is on the books or the decision of state legislators to deviate from the uniform statute's language. The Uniform Commercial Code of each state contains choice of law rules determine which state's version of the Uniform Commercial Code applies to a case. And, the choice of law rules of the Uniform Commercial Code in the state where a lawsuit pertaining to the personal property security interest is what a court in that state applies to resolve the choice of law question. These rules are generally consistent with each other. Footnote on Macroeconomic Implications Of Recourse v. Nonrecourse Mortgages The incentives of lenders and borrowers when entering into mortgage loan arrangements is different in recourse and nonrecourse mortgages, particularly, when the decision to give a borrower a loan is made by a third-party mortgage broker subject to bureaucratic conditions, or by a low level bank employee who acts in the same way, rather than by someone with an economic stake the financial well being of the lender. When mortgage loans are non-recourse, down payments are small, and housing prices are rising, and may be entering a real estate bubble, a borrower is in a "heads I win, tails you lose" situation. If real property values collapse, the borrow loses only his small down payment. If real property values go up, the borrower can sell the property and pocket all of the profits (in some circumstances the profits are even tax free). The borrower has little incentive to worry about the possibility that the fair market value of the real estate could collapse at some point. But, if the decision to allow the borrower to borrow is made by an employee or broker with nothing to lose if a loan is authorized when it shouldn't have been because the risk that the property values will collapse due to a real estate bubble are too great, the mortgage broker has an incentive to be lax in underwriting the loan to make sure that the borrower can really make the payments and that a foreclosure of the loan will realize enough value to pay of the loan if a real estate price bubble collapses. And, since the bank can get its money back and more by foreclosing if the borrower doesn't make payments while prices are going up, there isn't much of an incentive to make sure that the evidence of the borrower's ability to make the payments on the mortgage is accurate. The incentive of the broker or employee is usually to get as many mortgages processed as possible, even if that means overlooking problems with paperwork in a loan application, or using an appraiser who will say that the property being financed is worth what is necessary to get the loan approved, even if you know that the appraiser is cutting corners or just making up inaccurate values to get what the broker wants done. These events can conspire to make a real estate mortgage very bad and to expose the entire community of lenders who make loans in a non-recourse state to catastrophic losses in the event that a real estate bubble collapses. In contrast, this is much less likely to happen in a recourse mortgage state, where the risk of a downside loss deficiency judgment discourages borrowers from trying to finance the purchase of a house that could easily lose more value than the down payment if it was apparent that a real estate bubble was developing. So borrowers would self-police. The reason for this extended footnote and story is that this was one of the root causes of the financial crisis. A handful of states with big real estate markets and non-recourse mortgages (California, Florida and Texas mostly) started to experience real estate bubbles and mortgage lenders, because they had bad incentives in their mortgage origination systems didn't do enough to prevent themselves from financing the purchases of overprices houses. Eventually, the real estate bubble collapsed, lots of borrowers with overpriced houses and little money down defaulted on very large mortgage loans, and the lenders took huge losses on their real estate mortgage portfolios which were supposed to be ultra-low risk but weren't because the people evaluating the real estate mortgage investments overlooked or willfully ignored the risks. This, in turn, resulted in losses so great at the financial institution level that almost every major investment bank in the country and almost every subprime lender in the country went out of business or went bankrupt, and the collapse of this part of the financial industry, in turn, wrecked havoc on every firm in the economy that relied of these financial institutions as a source of investment or a source of financing for their unrelated businesses. The result was the worst recession since the Great Depression. | It is very unlikely that such a sentence ("A 6 month non-compete/solicitation is required") is enforceable, because it is way too broad. The reasonable interpretation of the sentence is that the employer has thereby put the employee on notice that such an agreement will be required, and the actual terms of that agreement will be spelled out at that time, but that sentence does not constitute an "agreement". Ad actual agreement has to be supported by consideration, and have a reasonable scope (including place and activities). Texas law disfavors restrictions on job-changing, so an agreement would have to go beyond just saying that "a non-compete is required". Since the letter asserts that it is not a contract, there is no clear contractual obligation (they can fire you anytime they want, it seems). | the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply & demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled. | One of the principles of contract law is that the offer and acceptance are evaluated based on the objectively ascertainable intentions as judged by a reasonable person. On the facts that you have provided - even if your friend claims that they filled it out wrong, there is no reason for someone to objectively think so, particularly given the fact that they went to the trouble of writing the information in. However, this will depend on what kind of legally binding document this is. If it is, in fact, a contract, then the employer must accept it before it becomes legally binding, and they must actually communicate this acceptance to your friend (the offeror). If this is a policy document, then it is only legally binding if another contract has said that it is legally binding - generally, (smart) employers will include a clause in their employment contract stating that you are to adhere to policies but that those policies do not form part of the contract. If that is the case, then your friend is legally bound by the terms of the policy and will breach their employment contract if they do not adhere to this policy. This is unlikely to be an issue of contract law in and of itself - your friend cannot unilaterally bind their employer to terms as he sees fit. More information - including the nature of the document and other agreements that were made - would be required to provide more useful information (and that's what you would give to a lawyer). | 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. | 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. |
Can I make an audiobook of an old edition of a book that I have in my posession? I have an old edition of a book (a 1918 reprint) - can I make an audiobook of this work? There is a publisher who publishes this work, but a latter print. The author passed away in 1946. I'm really unclear what the law says on this... any advice gratefully received. And I'm in the UK... Thanks | If the author died in 1946 then copyright in his works expired at the end of 2016. The work is in the public domain. The relevant section of the Copyright Designs & Patents Act 1988 extends to the whole of the United Kingdom, but not Crown Dependencies or colonies. You need to be sure that the work is the author's own work. If someone else has contributed then the copyright endures until it expires 70 years after the death of the last of the authors. The same applies to art. If you want to reproduce artwork, say for a cover/sleeve design, that would also have the artist's copyright, which lasts for 70 years after that person's death. The typography of a book has copyright which lasts for 25 years from publication. | Copyright is automatic: when you write something original, it is thereby copyrighted. Thus there is no act of "copyrighting". The only important act is registering. All versions of a work are covered by copyright protection. When you revise a work, the existing copyright still exists, and you have created a derivative work. If copyright is held by a known person, the expiration date is author's death + 70 years. In a work made for hire (the company owns the copyright), it is the earlier of is 95 years from first publication or the shorter of 120 years from creation. A revision does not generally affect the duration of copyright: however, if a joint work is created, the copyright on the underlying work expires relative to the death of the original author and the copyright on later parts created by a second (added) author is relative to the second author's death. So if A writes ch. 1-4 of a book, then adds ch. 5-8 subsequently with a new co-author B, duration of copyright for ch. 5-8 is determined relative to the death of B. None of that matters for a company web page. | 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. | "Educational use" does not get a free pass on the law against circumventing copy-protection. First, "educational use" is extremely broad and could include "to post on Stackexchange", or "so that I can learn something". The cited clause specifically limits this exception to "A nonprofit library, archives, or educational institution" – the library must be nonprofit, and the archive or educational institution may also need to be nonprofit (until the courts fix the ambiguity in the scope of "nonprofit"). Second, the circumvention has to be very limited: the purpose must be only to evaluate the work, to see if you want to legally acquire it. So a nonprofit library can peek into a work to see if they want to buy a copy, but you may not. The only thing the library can do is evaluate the work for legal acquisition, and they have to get rid of the pirated copy once they've made the decision. Additionally (other parts of the subsection say), they can't do this is there is an equivalent legal copy available (e.g. if there's a print book available, they can't hack into the e-book to "determine" whether they want the book), and w.r.t. libraries and archives they must be open to the public. | One principle of copyright law is that if you can prove independent authorship, there cannot be liability no matter how similar your work is to the prior work. "If by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's." (Sheldon v. MGM Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936)). Now, of course, the challenge is proving that you've never heard a given piece of music, or never read a particular work of fiction. If you have, even unconscious copying exposes to liability. And if the plaintiff can prove that you had access (such as the scriptwriter who sent a copy to a movie studio), they will have an even easier time proving the copying. If there is no proof of copying or not-copying, the copying can be proved circumstantially either through expert testimony or the jury's evaluation. The expert might testify something like "There is an identical tonal progression in these two songs, even though they were written in different keys. There were a million different ways the songs could have been written, but they are identical in this respect." The jury can consider that information and find the defendant liable. Or, the judge may simply tell the jury, "You may listen to these two songs, and find the defendant liable if you find them to be substantially similar to the extent that it is more likely than not that the defendant copied the plaintiff." TL;DR: The process can be conclusive, but if it isn't, then the output will be the evidence that the jury will consider. | It would be copyright infringement. You had the copyright holders permission to make one copy of the song by downloading it. At that time, if you gave me a copy of that song, it could be argued that very, very little damage was caused because I just had downloaded that song myself with practically the same effect. Today, that argument is not valid anymore. So this is definitely copyright infringement. That's your question answered. I doubt that anyone would take action if you gave a copy to someone and it was found out. Making it available to the world for free download is another matter. That could easily get you into trouble; in the USA there could be a fine up to $150,000 without any proof of actual damages needed. | TL;DR: Probably not. Per Wikipedia, under USA law, for any audio recordings published after February 15, 1972, the earliest it it will enter public domain is 2043. CBS Mystery Theater was published from January 6, 1974 through December 31, 1982, per Wikipedia. Therefore, these recordings are not likely to be in the public domain until after 2043. If CBS, or whichever company now owns CBS Mystery Theater were to have made it available under a sufficiently permissive license, it's likely that it would, in practice, be in a very similar status to being in public domain. However with a quick search, I couldn't find any evidence that the owner of CBS Mystery Theater has in fact done so. Of course, my searching is imperfect, and Wikipedia might be wrong. It's possible that it is indeed released under a sufficiently permissive license, though I wouldn't personally bet on it. Finally, I'm not a lawyer, so my reading of the whole situation might be really wrong. | One cannot use the works of others unless one of the following applies: The copyright holder has given permission, usually in the form of a license, often explicit, but sometimes implied. The work is not protected by copyright. This can happen in several ways, but the most common is that the work is old enough that copyright has expired. In the US, works older than 1927 are currently out of copyright. So are some others, the rules are a bit complex. In many countries, if the author or creator died more than 70 years ago, the work is out of copyright. In some countries this is a different number, between 50 and 100 years. This is not likely to apply to a file distributed with current software. If an exception to copyright applies. In the US this would most likely be fair use. In the UK it would probably be fair dealing. In other countries there are a variety of exceptions that might apply, including personal use in some. AS a comment by Jen points out "use" here refers only to those rights protected by copyright, such as making and distributing copied, making nd distributing derivative works, and the like. (Displaying and publicly performing seem unlikely to apply.) Now lets consider the specific situation, and which if any of the reasons for lawful use might apply. License or other permission. There is no explicit license. Since the program is distributed to be run, there is an implicit license to make the sort of use of the file needed to run the program. If the documentation describes how to employ the file as part of running the program, there is almost surely an implied license to employ it in that way. There is not, however, permission to make copies unless that is needed to run the program. There is surely not permission to make derivative works of the file or distribute copies to others, even if you do not charge anything. Expired copyright This pretty clearly will not apply. Fair use This might apply, or might not. There isn't enough info in the question to tell, not even to make a good guess. If any use would be non commercial, that helps fair use a bit. If the use would be for a different purpose than the one the developers used it for, that helps fair use a lot. If the use of the file harmed the market for the program, or served as a substitute, that lean against fair use. without knowing what the file is, what it does, and how it might be used, one really cannot weven guess. |
What crimes are senators and representatives immune of? Art. 1 Sect. 6 Cl. 1 of the Constitution states that [Part 1] The Senators and Representatives shall receive a compensation for their services to be ascertained by law, and paid out of the treasury of the United States. [Part 2] They shall in all cases, except treason, felony and breach of the peace, [Part 3] be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place. Formatting mine I am having a little bit of trouble understanding exactly what parts 2 and 3 are saying. From what I understand, Part 2 is saying that a member of Congress cannot be arrested, unless they commit "treason", a "felony", or a "breach of the peace." Part 3, though, is really the part that I find confusing. Is Part 3 essentially saying that a Senator or Representative may not be arrested except for treason, felony, or breach of the peace anywhere, or is it for a specific place? Also, are there any real examples of a Senator or Representative committing a crime other than those outlined above? | Your parsing is incorrect. The semicolon after "from the same" starts a new clause. It should be read as: [Part 2] They shall in all cases, except treason, felony and breach of the peace, [Part 3] be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; [Part 4] and for any speech or debate in either House, they shall not be questioned in any other place. So they are privileged from arrest while attending sessions, or while going to and returning from those sessions, except in cases of treason, felony, or breach of the peace. As a separate privilege, they shall not be questioned anywhere (except in Congress itself) regarding their speech and debate in Congress. But if they are neither attending, going to, or returning from a Congressional session, and the crime is not related to their speech or debate, they have no immunity. Also, to echo user6726, the privilege from arrest while attending Congress or traveling is not the same as immunity. If they commit a crime on the way to or from Congress, they can still be arrested after they get home, and subsequently tried and convicted. | It is my understanding that he was charged under 18 USC § 1001 which gives a maximum sentence of 5 years under most circumstances. This is the absolute maximum; the judge is not allowed to give more than the law allows. Here are the federal sentencing guidelines. If you look in the guidelines, you'll see that the base offense level for this crime is 14. If there was a "substantial" interference with justice, the offense is increased by 3 levels. My guess is that they won't find this to be the case. There are several other adjustments that likely don't apply. Under the "Adjustments" section of the guidelines, it says: (a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels. (b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level. It seems that the first one applies. The second one cannot apply in this particular case since the offense level was not 16 or greater. So the offense level would be reduced from 14 to 12. If you look at the Sentencing Table, you can see that an offense level of 12 has a recommended sentence of 10-16 months for someone with no prior criminal history. Also, this is in Zone C, meaning: the minimum term may be satisfied by... a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in subsection (e), provided that at least one-half of the minimum term is satisfied by imprisonment. so it seems he would go to prison for at least half of that. But if the offense level was dropped just one more level, he would be in zone B, where probation with home confinement would be an acceptable sentence. But there's one more thing to consider: He's cooperating with investigations into other people. This allows a departure from the ordinary guidelines. Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. (a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following: (1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant; (3) the nature and extent of the defendant’s assistance; (4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; (5) the timeliness of the defendant’s assistance. I have no idea where the Guardian got 6 months from. It's certainly possible that's part of the plea deal (although nothing says the judge has to impose the sentence that the prosecutor recommends as part of the deal), and maybe there are adjustments I'm not taking into account that would reduce the offense level further. I just now found a copy of the plea agreement. It specifies that the parties agree he will be sentenced under guideline §2B1.1(a)(2). This ordinarily is for offenses such as theft, property damage, forgery, or fraud. As far as I can tell, the government is just using this to get the sentence down, because there's no real relation to the crime he's accused of. Under that guideline, the base offense level is 6. The two level decrease for accepting responsibility puts it at an offense level of 4, with a possibility of a downward departure for cooperation. Regardless of whether or not there's a downward departure, this would have a 0-6 month sentence recommendation, which is the lowest available in the guidelines. This is also in Zone A of the sentencing table, meaning a sentence of just probation with no imprisonment or home confinement is possible. | The US President is indeed bound by the Constitution, and indeed by the ordinary laws. Current Justice Department policy is that a sitting president may not be indicted. No court has ever held this, the US Constitution does not give explicit presidential immunity the way it gives limited immunity to members of congress (in the "speech and debate" clause). No sitting US President has ever been charged with a crime, much less indicted, so the matter has never come before a court. An old news story indicated that President Grant was stopped for a traffic offense (speeding, in a horse-drawn carriage), accompanied the officer to a police station, paid an appearance bond for the traffic court, and then failed to appear, forfeiting the bond. Even if this is accurate, no claim of presidential immunity was made, and no court decision was rendered. So no precedent was established by that event, one way or the other. Any President may be impeached and convicted, if Congress sees fit to do so. There is no enforceable standard on just what is and is not an impeachable offense. That is left to the sound judgement of Congress. Nor is Congress required to act if it chooses not to, no matter how strong the evidence may be. Nixon's Vice President , Spiro Agnew, was investigated for alleged corrupt practices. It appeared that Maryland (where he had been Governor) was ready to indict him on several charges. He was persuaded to plead "no contest" in a plea bargain to a single count, and was sentenced to probation with no jail time. At the same time, he resigned as VP. No one knows what would have happened had he continued to insist on his innocence, and claimed before the court that a sitting VP could not lawfully be indicted (a claim he had made earlier in the process). Even assuming that a sitting President cannot be indicted or tried, nothing prevents such a person from being charged and perhaps convicted after his or her term has ended. The constitution explicitly says that if an official is impeached and removed from office, there may be a subsequent trial on any relevant charges. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (Art I; section 3; clauses 6&7) Whether any statute of limitations would be tolled (paused) while the president was in office cannot be determined until and unless the matters comes before a court for a decision. Note that the US Constitution imposes few duties or obligations on individuals. it is mostly concerned with specifying he structure of the federal government, and the powers of and limitations on its various parts. It also specifies the relations between the Federal and State Governments. It also declares a number of rights held by individuals, most of which can be regarded as limitations on the power of the government. If the President were to be accused of a crime, it would almost surely be one established by statute, not by the constitution directly, because treason is the only crime defined directly by the constitution. However, the official acts of the president are clearly limited by the Constitution, and in a number of cases have been held void as being unconstitutional. One of the more famous cases is Youngstown Sheet and Tube vs Sawyer 343 U.S. 579 (1952), also known and the "steel mills seizure case". During the Korean War, President Truman attempted to take control of a number of steel mills to stop a labor dispute, on the ground that this was hindering the national defense. The US Supreme Court ruled that he lacked the power to do this, and that his action was void. | 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. | Treason is basically the only crime explicitly defined by the Constitution. According to Article III, Section 3: Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. So, no. What this hypothetical president is calling for is unconstitutional, is almost certainly grounds for impeachment, and may even be criminal, but treason it ain't. And that's assuming he actually does it. Simply calling for it, without acting (or directing others to act) to bring it about, may well be protected by the First Amendment. | Art. 1 Sec. 9(8) says two different things. The first says that "No Title of Nobility shall be granted by the United States". That means that the US cannot grant a title (hereditary or otherwise) like "Duke of Detroit", "Prince of Princeton". It does not prohibit the practice of speaking of POTUS as "His Highness, the President of the United States", likewise "His Elective Majesty" or "His Excellency", but early discussions in the Senate put paid to even calling a president this, and instead he is just called "Mr. President" (just as judges are called "your honor"). An appellation such as "Chief Justice" is not a title of nobility, it is a job description. We don't have titles of nobility granted by the government. There is a constitutional amendment, the Titles of Nobility Amendment, which was considered but not ratified, which is stricter on the anti-nobility statce. Then there is second thing, that prohibits officials from "accept[ing] of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state", without Congressional approval. Accordingly, the president, sec'y of state or a congressman cannot accept a gift, such as a car, from a foreign power, unless it is approved by Congress. Every congressional "exception" was approved by Congress; moreover, such benefits are not from a foreign power. The Speech or Debate Clause Art. I, Sec.6(1) in fact gives congressmen a privilege (immunity from arrest) which ordinary citizens do not have. So there is no connection between titles of nobility and free bean soup or whatever legal exemptions Congress may give itself. | Impeachment is unique in that it is a question of politics, not a question of law, that is being discussed at trial. The other exception is that the Senate, not the Supreme Court, is the High Court of Impeachment (that is, legal precedence is based on what the Senate says, not what the Supreme Court or any other appellant court says). There are a few minor details, but the main part of the trial will play out like a criminal trial, with the Managers (people named by the house to argue the case) taking the role of the Prosecution and the Senate as the Jury. Because the trial is purely political in nature, a jurist decision to on the matter before evidence is presented at trial is entirely legal. It's actually perfectly legal to have your own opinion prior to trial start in a normal criminal jury and to vote on that ground... but the attorneys will dismiss you from the pool if they find even a hint of this. Unlike the judicial system, the jurists of Impeachment Trial are the same 100 people (presently) and cannot be dismissed for any reason, including comments about how they will find in the trial. Jury Fixing or tampering is when the decision a jurist makes is colored by some outside motivation to the jurists own convictions (i.e. the crime boss has your family and won't kill them if you find his hired goon innocent.). It could be an issue if a senator was given some pork to vote against his/her choice, but Impeachment is incredibly rare in the U.S. system and there hasn't been any case where this was an issue (If Articles of Impeachment are brought, this will be the 20 case to reach the trial stage since the adoption of the Constitution, and the 3rd for a President.). | A punishment is basically a harm to someone's person, liberty, dignity, or property imposed primarily for the purpose of harming someone, rather than to accomplish some non-punitive end such as apprehending a suspected criminal, securing compliance with a court order, exchanging truthful facts, or compensating someone for harm legally attributable to the person upon whom the act is imposed. If a police officer shoots and kills a person while they are in the process of committing a crime, that is not a punishment, because the officer is not trying to punish someone for committing the crime, but to prevent the crime from continuing and/or to apprehend the suspect. If the use of force is justified by a law authorizing it under the circumstances, then it is legal and there are no civil or criminal consequences. If the use of force is not justified by a law authorizing it under the circumstances it might be a crime, it might be a "tort" (i.e. a civil wrong for which you can sue someone, especially if it arises at common law), or it might be a civil rights violation. Law enforcement officers generally have broad absolute immunity from common law tort liability incurred the course of their duties in carrying out their jobs, and have "qualified immunity" from liability for civil rights violations which limits their liability to cases of intentional violations of clearly established constitutional rights. In a case arising from an excessive use of force against someone who is not in custody, generally speaking, the constitutional right violated is the 4th Amendment right to be free of unreasonable seizures and to be free from seizures that that are not supported by probable cause. Generally speaking, the law does not recognize an excessive use of force in connection with the criminal justice system as a "taking" for which there is a right to both due process and fair market value compensation (to somewhat oversimplify). Generally speaking, an 8th Amendment analysis involving the use of force (as opposed to taking of money or property in the criminal justice system which are subject to the excessive fines clause of the Bill of Rights), begins, and the 4th Amendment seizure analysis ends, when someone is in custody. A police officer who arrests someone and then beats them up or rapes them and then releases them, might be entering into 8th Amendment, rather than 4th Amendment territory, although the dividing lines are not always clear. |
Can I make a restaurant from a game and make it into a real business? Is it illegal to make a restaurant from five nights at Freddy’s and make it into a real life Restaurant? It‘s just a thought that randomly came to mind. | The game Five Nights at Freddy's and the other elements in the large media franchise of the same name are surely protected by copyright. In addition the name of the fictional restaurant in the game may well be protected as a trademark, and I would be astounded if "Five Nights at Freddy's" was not protected as a trademark. Other names and phrases may well be trademarked also. If the suggested actual restaurant was at all closely based on the images and descriptions from the games or the novels, it would be a derivative work. Unless one had permission from the copyright owner, creating such a restaurant would be an act of wilful copyright infringement. The owner could sue, and quite likely win. In the US the owner could get up to $150,000 in statutory damages for each work that was infringed, which in this case might well mean several of the games and novels, depending on just what images and descriptions were imitated or used. Or the owner could elect to receive damages and profits, meaning all damage provably done to the owner, plus all profits made by the infringer. In addition to either, the owner might well obtain an injunction against further operations of the restaurant. Beyond that, if the imitation used any of the trademarked names, slogans, or other protected trademarks, there could be a suit for trademark infringement. There could be no question that the marks were being used in commerce, and were not instances of nominative use. A restaurant is a very different thing from a video game, a novel, or a film, of course. No doubt it falls into a different trademark category. Normally trademark protection extends only to the category for which the mark is protected. But in the case of a "well-known" or "famous" mark, protection under US law is wider. Also, when the infringement might lead reasonable people to falsely belie that the infringing product or service has been endorsed, approved, or sponsored by the trademark owner, it may be a violation even in a significantly different category. This a successful suit for trademark infringement might well be possible also. Of course, if the new restaurant only vaguely resembled the one in the games and novels, and did not use the phrase "Five Nights at Freddy's" or the name "Freddy Fazbear’s" or any other distinctive names from the media franchise, That might not be copyright or trademark infringement. But that would not seem to achieve the effect suggested by the question. If the creator of the restaurant obtained permission from the copyright and trademark owner(s) then there would be no legal issue. But the owners might well not grant such permission, or might charge a high fee for it. I doubt that the idea is workable. As a side note, many years ago I regularly patronized a restaurant named "Bilbo's Pizza" It was decorated with murals obviously based on descriptions for The Hobbit and The Lord of the Rings. The intended reference was clear. They may have gotten permission from the Tolkien estate; I understand that Tolkien was rather free about granting such permissions. Or they may have just counted on word not coming to the copyright holder. But modern media franchise companies are probably much more watchful and much more quick to enforce IP rights. | Yes, this is a valid concern As written, every piece of IP you produce while employed belongs to the employer. This includes your hypothetical game. It also includes your weekly shopping lists, your Christmas card to your Great-Aunt Nellie, the … a-hm … private video you make of you and your significant other. As written this is overly broad and probably unenforceable. However, it’s always better to have clear and legally enforceable clauses in your agreements because unclear, arguably unenforceable ones lead to disputes. To be fair, the employer has probably lifted some (bad) boilerplate and hasn’t actually thought through what it means. Get it redrafted. | No First, gambling is not illegal - only illegal gambling is illegal. Lotteries are legal in the United States when operated by or under licence from a state (44) or territory (3). That's legal gambling. It's illegal when operated by somebody else. Clearly, Omaze isn't one of these; but they aren't running a lottery. They are running a sweepstakes. Not only is this legal, but it also isn't gambling because in a sweepstakes the players do not pay to play. If you look closely, you can see a link that says "enter without contributing". Look even deeper and you can see "NO PURCHASE, PAYMENT, OR CONTRIBUTION NECESSARY TO ENTER OR WIN. Contributing will not improve chances of winning. Void where prohibited." No stake means no gamble. | There is no IP in ideas! There is copyright in writing it down - they can't use your exact words without permission. However, sending it to them in the form of a suggestion would give them a pretty much unassailable argument that you have given them an implicit licence. You can patent an invention (not an idea), claim IP in a trade mark (also, not an idea), register a design (again, not an idea) and hold copyright in an artistic work (once more, not an idea). They are required to keep confidences but offering them a suggestion probably doesn't count as supplying confidential information. I can see no risk in acting on customer suggestions. Hence, the idea to raise prices can be acted on or not at the discretion of the company. | 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. | Game mechanics are not copyright able. However, the images, words used, description of the rules are all copyright. If the original games is the source of the video game then the video game is a derivative work. If the original game is only the inspiration and the look and feel is different then this is OK. Which is which will turn on the actual facts. | united-states The license won't let you sell the .stl file. Probably you have created a derivative work, which means you can't sell it without a copyright license (and the CC-A-NC won't do). If it were licensed under CC-A you could sell it without problems (you'd have to give attribution, of course). You could also sell it under the CC-A-SA, but once you do you have no control over the result -- anyone you sold it to could give it to someone else under the terms of the license. This could work, though, if it were (say) a commission and you only expected to sell one copy. I don't know what the situation would be with the physical objects printed under any of these licenses. | at what point can you just leave? Is it always technically illegal in the UK to leave without paying the bill? Probably depends on what you mean with just leaving. If just leaving translates I haven't paid and I won't pay (because of the hassle with the card) then that's probably Making Off Without Payment, section 3 Theft Act 1978 (Thanks @bdsl). Could the restaurant just force you to wait until close of business if necessary? What if they still hadn't fixed the payment system by then? I don't think a restaurant can physically detain you. Not even the 45 min you have been waiting. But if you leave without paying and without an agreement with them how & when to pay they can of course call the police because again that looks very much like making off without payment. According to your post, they did provide a payment system (cash) which was working all the time and that moreover has the special status of being legal tender. if you don't physically have the cash on you, you can be sued? You can be sued if you don't pay your bill (assuming the bill itself is correct) when it's due. In order to avoid endless hassle of the "I tried to pay via x, but they wouldn't accept this." type, legal tender defines ways of payment of a debt that the creditor/seller must accept. In many legislations, cash in the local currency provides such a fallback if other payment methods fail. Note that cash payment is very robust against internet failure, broken devices and power The UK (+ US) meaning of legal tender is that the restaurant must accept this means of settling the debt (at this time, the food is already eaten but not payed) - but they don't have to accept any other means of payment. (Note that e.g. for the EUR-countries there is at least a recommendation to make acceptance of legal tender mandatory also in retail, which includes simultaneous exchange food vs. payment). The 2nd important implication of this is that any argumentation along the lines that no reasonable means of payment were available would be very weak. You are not required to have sufficient cash with you to pay your bill if you can reasonably assume that some other way of payment will be acceptable to the restaurant. I see that like a spare wheel for a car: if you have a flat tire (card doesn't work) having a spare wheel (cash) allows you to deal with the issue with less hassle than if you don't: change your wheel vs. having to get your car brought to a workshop and wait until they put on a new tire (pay cash instead of waiting for the card to work again or a tedious hunt for another payment method). I'd like to point out that card doesn't work and not sufficient cash at hand (or forgotten purse) is something that happens quite often in general (rarely for any given transaction, but we have lots of transactions). I'd expect a restaurant or a gas station to be experienced in dealing with that. In any case, there are several possibilities to resolve the issue short of "just leaving": The key to all this is communication: talk to the restaurant to find a way to resolve the issue. Reassure them that you're not trying to use the opportunity to defraud them - that's what they are afraid of in this situation. "Where can I find an ATM?" Possibly offering a deposit: "And would you mind looking after my bag [phone] until I'm back?" Possibly showing them your ID card (or similar, if you have any) so they have your address: remember that so far you are an anonymous customer for them: which means that suing you for the money would be somewhere between too expensive and impossible. If you are a group, it should be sufficient if only one of you leaves in search of cash. Credit cards can be charged in a total offline way (MOTO = mail order/telephone order) where the credit card data is entered manually by the seller: the restaurant may be able to charge your credit card if fill in a paper credit card payment form. They may accept settlement via other payment systems: paypal & Co. wire the money via your online banking account (even if that doesn't give an instantaneous transfer, ask them if that's OK with them if you show/forward them the "transfer accepted message" for now) allow them to withdraw the money from your account via direct debit or something similar I'd not expect a restaurant to accept this possibility as they're probably not familiar with it and it means a lot of hassle for them with their bank to get listed to receive money that way. if you are in a region where cheques are still in regular use, that may be a solution as well. Restaurants like any other business can write invoices. They usually don't like this because their risk of having costly trouble to get the money is high. While your printout bill is technically an invoice already, it can be turned into an invoice (+ copy for them) giving your name + address and specifying how and when you'll pay. Which would keep track of how you (pl. = you + restaurant) decided to settle the bill under the peculiar circumstances. This works even in case of e.g. a power outage that prevents you from getting cash from an ATM in the neighborhood. |
Can the "de minimis non curat lex" rule render actions that are otherwise illegal, legal? My understanding is that the rule can be used in court to strike down actions in court. I was wondering whether it might also perhaps be used legitimately by someone, outside of a court case, and apart from a court ruling, to determine that an action that would otherwise be considered illegal, was in fact lawful, in a legal positivistic sense, by virtue of this rule. For example, perhaps it's the case that photocopying a page of a book, in a particular situation, would be considered to be a copyright crime without the use of the rule. Is it then the case that the rule might be able to be invoked, to say that the photocopying is perfectly lawful? Or is it perhaps alternatively the case that the "de minimis non curat lex" rule throws no comment on the legality of the photocopying, and that the rule can only be used to determine unenforceability in a court of law? | The maxim "de minimis non curat lex" is not so much of a rule as a guideline. It essentially says that when a court considers a matter too trivial to bother with, it can simply dismiss the case. It also constitutes advice not to make a legal case over trivial matters. It always involves judgement over what is or is not trivial in a particular context. It does not ever change the law. For example, perhaps it's the case that photocopying a page of a book, in a particular situation, would be considered to be a copyright crime without the use of the rule. Is it then the case that the rule might be able to be invoked, to say that the photocopying is perfectly lawful? Photocopying a single page of a book is very unlikely to be a crime. Under US law the government must prove intentional copying of works for personal financial gain with a total retail value of at least $1,000 (and in practice criminal charges are not brought unless unlawful copies are made in bulk as a business). I have not found the exact monetary lower limit of criminal copyright infringement in England and Wales, but I am confident that a single page of a book would not qualify. Beyond that UK law specifically provides for fair dealing. This allows one to lawfully make a copy or use copyrighted materiel for, among other purposes: Private and research study purposes. Performance, copies or lending for educational purposes. Criticism and news reporting. Incidental inclusion. Copies and lending by librarians. Caricature, parody or pastiche. (Source: "UK Copyright Law: Fact sheet P-01" If making a copy of a page of a book did not fall within the scope of fair dealing, then it might be an actionable tort, and if the copyright owner choose to peruse it, the maxim would not automatically lead to a dismissal, although it could form part of an argument for dismissal. If such dismissals occur routinely, a legal realist might say that showed that such copying was not in fact covered by the law, but most legal theorists would not put it that way. (Legal realists generally take the view that the actual law is what courts actually enforce, not what is on the statute books or even what is described in court opinions.) | It is legal to be wrong, it is legal to say false things in public (leaving out defamation), and it is legal to buy and manufacture signs that say false things. Moreover, the sign does not make a false statement, in that legal liability is distinct from moral responsibility. In fact, the sign helps to decrease their legal liability. Via this sign, you have been put on notice that the truck may spray a bit of gravel, so by following too closely, you are negligently contributing to the damage. This is what also underlies those disclaimer signs with "not responsible for theft from your auto". There is nothing "official in appearance" about this sign (a legal citation of a statute might have such an appearance). | 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. | 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. | 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. | Almost all works recorded in some fixed way that are not a couple of hundred years old or created by a government agency are protected by copyright. In the absence of an exception to the general rule, copying a work that is protected by copyright is copyright infringement, which can be a basis for the copyright owner to sue the infringer. This can also be a basis for criminal liability is certain additional elements are proved and a prosecutor proves a case of copyright infringement in a criminal case. But, there are some important exceptions to this general rule of what constitutes legally sanctionable copyright infringement. The most important exceptions to the general rule have the character of affirmative defenses. In order words, if someone sued for copyright infringement and the person sued admits that they copied the copyright protected work, they can use these exceptions to avoid having legal liability. One of the exceptions is the permission from the copyright owner to use the copyright work. This can be either in the form of affirmatively given permission to use the copyrighted work in a particular way (called an "express license" to use the copyrighted work), or in the form of permission to use the copyrighted work that can be inferred from context (called an "implied license" to use the copyrighted work). Another of the main exceptions is "fair use". If the way a copy of a copyrighted work is used constitutes fair use, the person using the copyrighted work without an express or implied license to do so it not liable for copyright infringement. Of course, while you don't need more than one exception to the general rule to avoid liability for copyright infringement, you can have more than one. For example, you can use copyrighted work in a way that would constitute "fair use" and not give rise to liability for that reason if you were sued, even if you can't be sued anyway because you already have been given permission by the owner of the copyright to use the copyright in the way that you did. It isn't a case of a contradiction. It is a case of a general rule that has exceptions. | "Educational use" does not get a free pass on the law against circumventing copy-protection. First, "educational use" is extremely broad and could include "to post on Stackexchange", or "so that I can learn something". The cited clause specifically limits this exception to "A nonprofit library, archives, or educational institution" – the library must be nonprofit, and the archive or educational institution may also need to be nonprofit (until the courts fix the ambiguity in the scope of "nonprofit"). Second, the circumvention has to be very limited: the purpose must be only to evaluate the work, to see if you want to legally acquire it. So a nonprofit library can peek into a work to see if they want to buy a copy, but you may not. The only thing the library can do is evaluate the work for legal acquisition, and they have to get rid of the pirated copy once they've made the decision. Additionally (other parts of the subsection say), they can't do this is there is an equivalent legal copy available (e.g. if there's a print book available, they can't hack into the e-book to "determine" whether they want the book), and w.r.t. libraries and archives they must be open to the public. | Who knows. It doesn't matter. 17 USC 102 lists the kinds of things protectable by copyright under US law. These are: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. A landscape feature is none of these and is not subject to copyright protection under US law, nor I think under the law of any other country. The "copyright notice" has no legal effect. 17 USC 120 Specifically prohibits copyright being used to prevent the taking of pictures of a building from a public place. In many countries Freedom of panorama (FOP) specifically permits publication of photos taken from public places. Se also this article on FOP. FOP is an exception to copyright protection, which applies to copyrighted architectural works and publicly posted works of art, such as sculptures. Since landscape features are not copyrightable at all, FOP does not strictly apply to them, but all the arguments for FOP would apply to them even more strongly. In US Law, particularly under the Fiest vs Rural case, only works with original content, created by a person, are protected by copyright. (Other countries generally have similar limits on copyright.) But a feature of the landscape is not the original creation of any person. (If someone carved the landscape into a designed shape, it might be protect able as a sculpture.) 3 and 4. If it were a building, you could take pictures of it from a public place or a private place where you have a legal right to be, under 17 USC 120 . But since a part of the landscape is not protected by copyright at all, this is not really relevant. No under the US First amendment there is generally a right to say even false things. But if the landowner attempts to enforce this "copyright" it would be considered frivolous and any court proceeding would be promptly tossed out. The sign gives the landowner no rights s/he would not otherwise have. |
What if someone put a non-lethal "bomb" in a package addressed to them to get back at a mail stealing thief Already I know this is a bad idea. Someone keeps stealing my friends packages that were left on their doorstep. They had the bright idea of rigging a smoke bomb or itching powder bomb or something nasty that would be triggered when the package was opened and leaving it on their doorstep to get back at the thief. Not sure if they are going to do this, but I'd want to have solid legal advise I can give them to prevent them from doing this. Yes opening someone else's mail is a federal crime, but what if the person is injured by this "bomb"- even if only mildly. How would that play out if they tried to press charges? They'd have to admit to a federal crime OR maybe they lie and say they were confused (haha not sure how plausible that argument would be in court though). Essentially I want a realistic worst case legal scenario. | "Revenge" is not a legal concept. If you injure someone other than in self defence or for another legal reason than you are committing assault. Hence dangerous booby traps for trespassers are illegal, so anything that might cause injury, however minor, is definitely out. That includes itching powder. However I would make an analogy with anti-climb paint. This allows you to use a paint that damages clothing provided you put up warning signs. So if you were to leave a parcel coated with anti-climb paint or containing a bag of paint or glitter rigged to spill it over the person opening it then that would be legal as long as there was a warning that tampering may cause property damage. (Note "spill", not "squirt" or "splash": anything ejecting paint or glitter under pressure might get it in someone's eyes, causing injury). So your friend could put a notice up saying that unauthorised tampering with parcels could cause damage to property and then put out parcels that might do exactly that. Your friend could also put a GPS tracker in a parcel to try to find out where they are going. Update Here is someone who did this. The BBC story does not mention any legal issues for him. A former Nasa [sic] engineer spent six months building a glitter bomb trap to trick thieves after some parcels were stolen from his doorstep. The device, hidden in an Apple Homepod box, used four smartphones, a circuit board and 1lb (453g) of glitter. Mark Rober, who is now a Youtuber, caught the original thieves on his home security camera. [...] The former Nasa engineer said: "If anyone was going to make a revenge bait package and over-engineer the crap out of it, it was going to be me." | Barela was convicted of robbery affecting interstate commerce and faces a sentence of up to 20 years and $250,000 in fines. I assume your issue is that you think this is too high (although I don't see what it has to do with the 14th or 6th Amendments). Fortunately, it's also almost completely unrelated to the actual sentence. The number that was quoted is the statutory maximum for robbery or extortion affecting interstate commerce. It represents the maximum amount that any defendant under any circumstances could receive for one count of that crime. A career criminal who threatened to kill an armored car guard in order to steal $10,000,000 would face the same 20-year statutory maximum as someone with no record who threatened to give COVID to a store clerk in order to steal $90. In some situations, things like the amount stolen or the defendant's criminal record affect the actual crime the defendant is convicted of. At the federal level, that's mostly not the case. Robbery affecting interstate commerce doesn't have degrees or statutory enhancements. Instead, a judge decides what sentence is appropriate. The judge can, in theory, pick anything between the statutory minimum (here there is none) and the statutory maximum (here it's 20 years). 18 U.S. Code § 3553 lays out the factors for the court to consider. In practice, federal courts generally sentence within the range given in the U.S. Sentencing Guidelines. While the statute itself doesn't distinguish between stealing $90 by threatening to cough and stealing millions by threatening to shoot, the Guidelines do. Courts don't have to follow the Guidelines range but typically do. If they don't, it's much more likely their sentence will be overturned as unreasonable on appeal. Popehat has a good blog post on the Guidelines, how they work, and why press releases quoting statutory maximums are basically straight-up lies. Sentencing.us has an unofficial calculator you can use to estimate the Guidelines range for a particular crime. If you plug in 18 U.S. Code § 1951 (which translates to the "Robbery" guideline) and enter in $90 stolen, no weapon used, no threat of death, and no criminal record, then you get a range of 33-41 months and/or a fine of $7,500 to $75,000. This is basically the lowest Guidelines range possible for robbery. For comparison, under California state law robbery is punishable by two, three, or five years in state prison. Robbery is a serious and violent crime, so a sentence of multiple years would not be considered unreasonable. But it takes a lot for the Guidelines range to approach the statutory maximum of 20 years. | Bad people are quite uncommon Most people behave in good faith most of the time - don't tie yourself in knots over the very few people who would be unscrupulous enough to try to do this. Burden of proof The person who makes the allegation has the burden of proof on the balance of probabilities. So the person who claims they didn't receive it has to prove that. If there are two equally credible witnesses, one saying they packed and posted the thing and one saying the thing was not packed then the burden has not been met. If the person who packed it has a photo of it packed and addressed then the other person has definitely not met their burden of proof. Insurance Insure it against loss or damage in transit. Then you can just replace it and claim on your insurance. | The probable answer is right there in the article: the Kim Dotcom case has been a PR coup but a legal disaster. Mr Dotcom has not, at this time, been jailed and it may have become apparent to US and NZ law enforcement agencies that he probably never will be! It is really, really easy to accuse someone of committing a crime; it can be really, really hard to prove it beyond reasonable doubt in a court of law. So after initiating a case that has turned out to be a total disaster, why would you expect them to do the same thing a second time? | The Postal Services Act 2000 does not allow you to delay someone else's post: Section 84: 84 Interfering with the mail: general. (1) A person commits an offence if, without reasonable excuse, he— (a) intentionally delays or opens a postal packet in the course of its transmission by post ... Section 125(3)(a) defines "transmission by post": a postal packet shall be taken to be in course of transmission by post from the time of its being delivered to any post office or post office letter box to the time of its being delivered to the addressee ... In the case of a postal item put through your letterbox, it has not yet been delivered to the addressee, merely to an address. You have an obligation not to delay the mail, so you can't simply put it in a safe place. You certainly can't cause its destruction (because that delays the mail permanently: it will never be delivered). The best thing to do is to follow Royal Mail's advice: If you’ve received mail which has your address, but not your name, this is because we deliver to addresses rather than names. If this does happen, you can put a cross through the address and write 'Not known at this address' or 'No longer lives here' and put it back in a letterbox. Where possible, we’ll return the item to the sender hopefully allowing them to update their records That way, you have done everything you can not to delay its delivery, and you have alerted the sender that their records need updating. | Leaving out who the shipper is for a minute, the primary loss would be the seller's (UCC 2-613) in that the loss would be total and the contract would void (so the buyer has not obligation to pay the seller, and the seller's stuff is nevertheless gone). The seller has a remedy against most shippers, so that UPS or Fedex would be liable to covering their loss (assuming buyer has not assume the liability by agreeing to delivery without signature). However, USPS has special immunity: the government is liable to tort claims, but 28 USC 2680(b) states that The provisions of this chapter and section 1346(b) of this title shall not apply to... Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter Thanks to Nate Eldredge for raising the case Dolan v. USPS 546 U.S. 481 (2006), where it was held that USPS has very narrowly circumscribed immunity from liability. Under this provision, they are not liable for breaking contents when delivered negligently, but that does not mean that they are not liable for breaking things as a result of their deliveries (they broke Mrs. Dolan, in how they piled stuff on the porch). Although this case does not rule on the meaning of "loss" or "miscarriage", on a plain reading of the terms, theft results in a loss ("loss" is not restricted to "mysterious disappearance"). The court also observes that losses of the type for which immunity is retained under §2680(b) are at least to some degree avoidable or compensable through postal registration and insurance and the court explains that one purpose of the FTCA exceptions was to avoid “extending the coverage of the Act to suits for which adequate remedies were already available” (that is, Congress opened the government to tort liability in just those cases where there were no remedies: but there has long been postal insurance). | A mail slot is not a mailbox. So putting a key through a mail slot after locking the door is not the same as putting the key in a mailbox. | 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. |
Is the register by the U.S. Patent and Trademark Office seachable by the public? Is it possible to review the data base of existing marks beforehand? Or must one assume the government's data base is in perfectly good order? | The register of trademarks can indeed be searched before an application is filed, and any prudent applicant will make, or pay an expert to make, such a search. Note that each country has its own trademark register (although some EU countries are working on a shared EU register, I understand). Marks registered in one country will not be protected under the laws of another, unless they separately qualify for protection under the laws of the second country. Note that in the US, marks that have never been registered but are in active use receive some trade mark protection, although not as much as those that have been registered. Searching for unregistered marks in current use is significantly harder than searching for registered marks. Application may be refused for conflict with an active, unregistered mark. Also in the US, registered marks may have their registrations canceled if they are not in use for a significant time, I believe at least 5 years. Many advise hiring a firm that specializes in trademark applications to do the entire application, including searches. This involves significant added cost. US trademark searches may be done via the Trademark Electronic Search System (TESS) Some information about doing such searches is provided at Search trademark database (an official USPTO page). That page states: Private trademark attorneys If you are an applicant, registrant, or party to Trademark Trial and Appeal Board proceedings domiciled in the United States or its territories, you are not required to have a U.S.-licensed attorney represent you at the USPTO. However, deciding what to search for and interpreting your results can be complicated. There are many factors to consider in determining likelihood of confusion. We can’t advise you on how to do a clearance search for your mark, do one for you, or interpret your search results. Therefore, we strongly encourage you to hire a U.S.-licensed attorney who specializes in trademark law to guide you throughout the application process. If you are a foreign-domiciled applicant, registrant, or party to Trademark Trial and Appeal Board proceedings, you must be represented at the USPTO by an attorney who is licensed to practice law in the United States. See the why hire a private trademark attorney webpage to learn more about what an attorney can do for you and how to find one. For more information about conducting a clearance search, please watch the news broadcast-style video titled “Searching” (video #3 in the Trademark Information Network (TMIN) series). I am sure that similar searches of the register in other countries are available. | You are correct that it is quite expensive to patent something in U.S. law. Under U.S. patent law, once an idea is publicly published, if no one else has a patent application for the same idea that is pending, the idea enters the public domain and no one can obtain a patent of that idea. The publication become "prior art" with respect to any future patent application which cannot be protected by patent law. Of course, if you publish an invention which you discovered independently, that someone else already has a patent application pending for that will be approved the following week, the fact that you published it after the patent was applied for doesn't prevent the person with the pending patent application from having it approved. The term "invention" rather than "idea" is what I will use for the remainder of this answer, because there are many ideas which may not be patented, while the lion's share of patentable ideas are appropriately described as "inventions." But, understand that as used in this answer, the term "invention" is being used to refer to the concepts and ideas necessary to make the invention, and not to a particular instance of a product made using those concepts and ideas. When an invention is in the public domain, anyone can utilize the invention free of charge without a license. People who use the invention are not even required to acknowledge that you invented or discovered it. An invention is also not eligible to be patented if more than a year has elapsed since the first sale of a product using it. But, in that case, the invention can still be protected as a trade secret until it is voluntarily disclosed in some fashion to someone who is not subject to a non-disclosure agreement. (I say voluntary, because the fact that, for example, an unauthorized corporate spy sees the trade secret doesn't end the status of the invention as a trade secret.) Some inventions, are effectively publicly disclosed and published the moment that anyone looks at it closely. The patentable element of other inventions are invisible to an end user, or to observer of an end user. For example, if the invention involves something in the interior of a device, or the invention involves something not visible to the naked eye (e.g. a process for synthesizing an industrial chemical from other chemicals where the chemical formula of the ingredients and end result can't be determined without a microscope or analytical chemistry tests), merely showing someone a product made using the invention will not put it in the public domain. It is generally legal to reverse engineer or independently come up with an invention which is merely a trade secret. It is not legal to use a patented invention or process, even if it is not directly copied and is instead reverse engineered or independently discovered, during the lifetime of the patent. There is no straightforward way to put an invention into the public domain while retaining any right to acknowledgement that you invented it or otherwise exercise control through a licensing agreement without patenting it. | The simple way is to post a picture of you and the widget to a site like Flickr. A more expensive way (but with rather more weight) is to get a Notary to certify they saw you and the widget on January 9th. Both the above provide evidence you had access to the widget before January 10th, but neither prove you owned it. For that, you would need a dated (possibly even notarized) bill of sale or similar - but if you acquired the widget via a gift, that won't work. A signed witness statement from the giver would probably serve (and the statement could legitimately be created when you are prosecuted). None of the above are unforgeable - but you don't need that. Depending on how the law is written, you will only need to show ownership on the balance of probabilities, or you might only need to show reasonable doubt that you didn't own it on 9th January. | Trademarks apply only to a limited field. If you follow the link, it reports that it applies to class 42, graphic art design. So you are free to use (and register "mama" for your food delivery service, for example. | For the first question - No, patents are territorial. A US patent is not "working" anywhere else. Of course one can apply in multiple countries if the proper time frames and procedures are followed. There is a mechanism (PCT Treaty) that allows a straightforward way to apply in over a 140 countries simultaneously. Although it is frequently used, it is expensive to continue to prosecute the application in each place and even in high-value inventions only a handful of places are eventually chosen to actually pursue patents. Each country's/region's laws and processes are different and success in patenting can vary. Normally two countries would not have the same thing patented by different inventors. The patenting or publication of the first one would make it prior art to the second filed one. This should be found by the second examiner and stop a duplicate patent by a second inventor. However there can be subtle differences between similar inventions and mistakes do happen. In the case of true simultaneous invention this can happen. To get a patent, the invention must be novel - that means no one has published or patented it anywhere in the world at any time in any language. Before the AIA law in the U.S. the law said "or known in this country". It could have made a loophole where something was known publicly elsewhere but did not constitute prior art in the U.S. That is now changed to be world-wide. Even if the examiner does a world wide search they might miss something and a patent might get issued even though the invention was not novel and a patent elsewhere is granted. To invalidate it the original patent owner would need to look into available procedures in country A. It might be court or it might be administrative. In most places an annual “renewal” fee must be paid to keep a patent in-force. In the U.S. a “maintenance” fee must be paid at the 3.5 year, 7.5 year and 7.5 year points in order to stay in-force. A patent who’s renewal or maintenance fee hasn’t been paid is expired for fee reasons. That can imply that it can be revived by the patent owner by paying the fees and usually a penalty. There may be a time limit or a small set of allowable circumstances to revive. A patent labeled expired for fee reasons might now be past its normal lifespan and therefore not revivable. In general patents are given to inventors and those an inventor assigns their rights to. Someone else can’t come along and revive a patent they had nothing to do with originally. There is no “re-patenting”. | As was mentioned in a comment, in the United States, businesses are generally registered at the state level. The information collected, and the extent to which or manner in which the public has access to it, varies from state to state. There may still be states where that's a paper-only process, but I'd guess in most of them it's accessible online, at least for basic information. For example, in Michigan the Department of Licensing and Regulatory Affairs has a Business Entity Search tool. If a business deals directly with consumers, it may be a member of the Better Business Bureau. Even if it isn't, but consumers have complained about it, the BBB will make public the information it has about the purported business. If a company is publicly traded (that is, it's corporation that issues stock, and the stock is traded on a stock exchange), it is required by law to be registered with the Securities and Exchange Commission. The SEC's EDGAR tool will display the company's filings, which should include annual and quarterly reports. If the company is or wants to be a government contractor, it generally needs to register with the General Services Administration, and certain information about successfully registered entities is publicly viewable in that system. (Conversely, the same system also lists "Excluded Parties" who are prohibited or partially restricted from doing business with the government.) Depending on what the business does, it may also be subject to registration with and regulation by additional state or federal agencies. For a full picture, however, unless you're dealing with the obvious agent of a Fortune 500 company, you'll probably want to get information from a private credit-check service as well; for example, as also mentioned in a comment, Dun & Bradstreet for the business itself, or for a really small business a personal credit report on each of the owners and officers. | Yes, you may The layout of the board and its appearance are not protected by copyright, because they are not expressions or any other type of copyrightable content. Even if they were (say if some protested art was displayed on the board) you are displaying this for instructional purposes, and not harming any market for the board, so fair use is likely to apply (in the U.S.). The device could be protected by patent, but you are not copying or imitating the board, nor showing anyone how to do so, so that would not apply. You are not selling or advertising the board, nor knock-offs of it, so trademark protection would not apply, even if a protected trademark is visible on th board. Just in case, be sure to make clear that your video is not authorized or endorsed by the maker of the board. | In US law, a trademark application only requires that you are now selling, or intend to sell in the reasonably near future, a product (or service) using the specified name. You don't have to provide an example, or a design, and it does not have to be patented. The applicant might be planning to license someone else's patent, or to market off-the-shelf tech not protected by patent. The applicant might be planning to market tech still under development and not yet ready to be submitted for a patent. I do not know Chinese trademark law, but I suspect it is similar in this regard. I have not heard of any country that requires a patent, a design, or an example of a working product along with a trademark registration. However, there is, in many countries, a requirement that actual sales occur within a limited period after the trademark is granted, and if this does not happen, the trademark registration may be canceled. The time allowed varies. |
What do the different abbreviations after lawyer names mean? There are numerous. I'm looking for anyone that could list them and answer what all mean and what they entail. For example, ESQ, P.A., PLLC, etc. | "Esq" Is short for "Esquire" which was once the lowest level of the English system of titles for nobility and gentry (originally an esquire was a sort of apprentice knight, and later it indicated that a person was a "gentleman" but without any higher title) Lawyers started using it to indicate that although paid professionals, they claimed a social status above that of tradesmen and shopkeepers. It is now largely obsolete, but some lawyers still use it. Most of the other initials refer to the form of business organization that a lawyer or law firm uses. More specifically: "PA" means "professional association" a form of organization which reduces the individual liability of members of the firm. See this q&A A pay is in many ways similar to a corporation or an LLC. "PLLC" means "professional limited liability company" which is a version of an LLC used specifically by groups of doctors and lawyers. "PLC" like "PLLC" means "professional limited liability company". The two terms are interchangeable when used for law firms, but PLC is also used for a Public Limited Company, which is a quite different sort of thing, and will not be a lawyer or law firm. APC, A.P.C., PC, P.C., and Prof. Corp. all stand for "Professional Corporation" a form of organization which is similar to a PLLC. "LLP" means "Limited Liability Partnership" a variation on the classic partnership organization. "SP" means "Sole Proprietorship", that is one lawyer working alone. None of these tell you anything about the kind of law a lawyer or firm does. None except SP tell you anything about how many lawyers a firm has. And none tell you anything about how competent a lawyer is. For the most part, none of these terms is of any importance to a client or would-be client of a lawyer or law firm. Reputation of the specific firm is far more important. | Another possible answer: The legal profession is a cartel, protected by laws. "Unlicensed/Unauthorized Practice of Law" is a big enough issue that its acronym (UPL) is well known among people who discuss law. Non-lawyers may decline to provide legal advice because they don't want to be charged with UPL. Likewise, as a matter of policy (at least in the U.S.) most government agencies and many employers in businesses that frequently receive requests for legal information instruct their employees to avoid giving anything that could be construed as legal advice. Which policy employees might cite to avoid helping with requests for even the most basic legal information. | Now I'm having another conversation with a lawyer and I'm not particularly happy (not to say outraged) that to answer a simple question they require £95 + VAT for 30 minutes Skype session. Maybe it is a common practice in law industry - in my industry (web development) we share our knowledge in an open-source manner. The rate you were charged is actually reasonable for such a limited engagement. Few lawyers are willing to even consider providing any advice on such a limited basis. Most would try to limit their clients to cases generating thousands of pounds in an in person visit. Lawyers are in the business of selling knowledge and time, not documents and results. An open-source approach would undermine their business model just as much as it would for the movie industry or the recording industry. While I appreciate professional legal advice (I know it is required) I have a belief that by obtaining some knowledge first I'll be in a position to ask better questions. This belief is not necessarily very well founded in this context. The reality of information about the law is that the raw data has limited usefulness. One of the main things that a legal education provides is an ability to "issue spot" so that you know what points need to be researched and where to look for them. Without the overall context that a legal education provides, knowing what issues you should be looking for is difficult or impossible, and this is particular true in Anglo-American common law systems, where the law is embedded in an opaque network of appellate cases rather than laid out more or less completely in a carefully organized statute. Also, you are almost completely unqualified to distinguish between a simple question and a hard one. Just as it is difficult for a non-expert to know what is difficult or impossible for a computer to do (e.g. turning raw image input in the models of reality is very hard for computers but easy for people, while intense calculations are simple for computers but hard for people), it is often very difficult for a non-lawyer to know what is an easy or hard legal question. For example, the rights of neighboring home owners when trees start to grow across property lines seem like simple questions but are actually extremely complex legally, as is another simple question such as explaining what a book means in IP terms as a book migrates to a new platform. But, some seemingly complex points (e.g. detailed questions of tax law or civil procedure) can have very simple and clear answers. Finally, keep in mind that in a situation like spousal alimony, if you've done as much research as you state, it is very likely that a definitive answer that you are looking for simply does not exist. There a lots of legal questions that do not have clear objective answers. This is because trial judges in family law matters have wide discretion in a lot of the fine points of alimony decisions, much of it exercised at the trial court level that does not generate binding legal precedents and is not widely available to researchers. Therefore, there is really no substitute in evaluating how judges will exercise that discretion for the collective experience of an attorney who has been through the process many, many times before the particular group of judges who are likely to handle your individual case. In sum, while I understand your frustration, a lot of it is rooted in common, but inaccurate assumptions about how the legal system works. | If what you show is correct and above-board then you are being sued in superior court. However it sounds unlikely that the plaintiff could have served you with notice of such a lawsuit without you realizing it, so if I were you I would first call the court to see if they do in fact have a case with the docket number listed. Then ask: When and who served the original notice in the case (because if you really didn't get it then whoever said you did majorly screwed up and is probably in trouble) Who the plaintiff's counsel is If the letter was from a real lawyer on the California Bar, and that case really is open in the superior court with you as a defendant, then you really are being sued, and you should either get a lawyer or negotiate a settlement, because if you don't answer and defend then you're just going to have more judgments against you. If any of the above does not check out then whoever sent that letter is in big trouble if you report it to the DA, postal inspector, and (if they are a real lawyer) the Bar. | The question actually asked, "what legal theories would support or harm...", is somewhat unclear. But what the questioner seems to be asking is, basically, what would happen if you tried it? The answer, it seems to me, is pretty straightforward. In the hypothetical case, you have been publishing a notice for years, saying "I have not been served with a subpoena." You then get served with a subpoena that includes a gag order. The gag order, presumably, includes wording prohibiting you from revealing the existence of the subpoena. You then cease publication of the warrant canary. By doing so, you have revealed the existence of the subpoena, and you are in violation of the gag order. You will be subject to whatever penalties you would be subject to if you violated it in some other way; for example, by publishing a notice that said, "Hey! We got a subpoena! It's a secret!" The distinction between revealing the existence of the subpoena by action, rather than by inaction, is a false one. It's exactly the kind of cutesy legal formality that non-lawyers love to rely on, but real judges ignore. If you tell someone: "Hey, you know John Smith's three sons, Joe, Ted, and Bill? Joe and Ted are good people; they have never molested any children. As for Bill--well, I don't have anything to say about Bill." If Bill is not a child molester, you have defamed him, and you are not going to convince a judge otherwise. The EFF link you link to tries to claim it'll "work" because courts are reluctant to enforce speech. Even if that were true, that might mean your canary would be effective in the sense of giving the public notice of the subpoena. That doesn't mean you wouldn't be liable for giving the public notice. For example: I put up a billboard saying "Bill Smith is a pedophile." Even if the court can't force me to add the word "not", that doesn't mean the billboard isn't defamatory. Realistically, though, courts compel speech all the time. Court-ordered apologies, disclosures, and notices are not unusual. And if ever a court would be inclined to compel speech, it would be in a situation like this one, where a company intentionally set out to get around a gag order with this kind of convoluted sea-lawyering. | There is a legal dictum, de minimis non curat lex, which might lead to an exasperated court official refusing to issue your lawsuit (with or without providing the $1 out of his own pocket to save everybody's time); I recommend you look it up. But there is no official term for what you suggest, although many lawyers might off the record provide colourful descriptions. If you wish to waste your money on such a claim, then obviously in your view it is worth pursuing. Clients often say "the principle is more important than the money", though they say so more often before they receive the bills than after. | Yes An American would spell it as “your honor,” but yes, this is how we refer to all judges. This is simply a custom that shows respect. There is no law or concrete fact I could cite that requires this; it is more of a “tradition.” But I have seen plenty of court proceedings (mostly on TV), and I can confirm that all judges, ranging from small claims court to the Supreme Court, are called “Your honor.” (The chief justice of the Supreme Court is sometimes addressed as “Chief Justice.”) Googling articles about courtroom etiquette also mostly leads to people who agree with this. Apparently, there are some countries where it is customary to say “my honor,” or even something else altogether. Sometimes people from these countries immigrate to the US and continue using their local terminology in a US court. Although every judge is different, my perception is that most judges try to be inclusive of other cultures, and if whatever term they use is intended as a sign of respect, most judges will usually just interpret it as it was intended. | I virtually never see "without prejudice" used in anything but court documents, unless the writer does not know what he's saying. A typical example would be when a person sues someone, but brings the case in the wrong court. The judge would dismiss the case without prejudice, meaning that the plaintiff could refile somewhere else. In contrast, if the person filed in the correct court, but the judge ruled that the plaintiff had done nothing wrong, the judge would then dismiss the case with prejudice. I believe I have on some occasions seen the phrase used in legal correspondence, perhaps noting, for example, that a party was willing to settle his sexual harassment claim for X amount of money without prejudice to their claims for some unrelated issue. In either event, "without prejudice" is typically referring to the ongoing ability to litigate a claim. I'm not entirely clear on how you're envisioning it being used as e-mail boilerplate, but I can't see any reason to do so. If you did, that would not have any effect on the e-mail's admissibility. EDIT: One other note, because I hadn't looked at it before. The LinkedIn article to which you linked and the comments on it are basically nonsense. Legal advice from a graduate of the "School of Life" is about as valuable as life advice from a graduate of a school of law. |
Can a business which only loses money be a "money laundering" method? Let's say a criminal opens a business (a restaurant) which only loses money, there are basically no customers at all or there are very few in a way which is certainly non profitable in a given time period (say, a tax year). Can that be a "money laundering" method, somehow? | Sure You run a restaurant employing relatives and cronies and you scrupulously pay them and their taxes. Say $500k. That is clean money. You take some money from running the restaurant but not enough to cover costs. Say $200k. However, you declare that your revenues were actually $800k with the difference being $600k of dirty money which “customers” paid in cash. You pay your taxes on your $300k profit and now have nice clean legitimate money. Now, what legitimate businesses typically do is underreport their cash income to minimise taxes but a laundering front overreports and pays too much tax to clean the money. For every $1 of dirty money going in you only get 70c out (or whatever depending on local taxes) but that money is clean. | My question: Do I need to declare this income when filing my 2018 tax return? considering that I was actually losing money. Yes. If you would otherwise have to file income taxes if you didn't have this money losing venture, you need to report this income. If you otherwise wouldn't have to file an income tax return, you don't have to file an income tax return simply to report a loss from a money losing rental, but you would still want to do so, because reporting the loss in this year could reduce your income taxes in future years. When you lose more money than you earn from sources other than capital gains, you have what is called a "net operating loss" or "NOL" for short, that can be carried forward to future years to reduce your income for income tax purposes. An exception applies if a business or rental losses money year after year after year. In that case, the IRS considers the business or rental to be a hobby rather than something done with an intent to make money and the loss is disallowed. But, obviously, that exception does not apply to your case. If the answer is yes: How do I also declare the rent I paid to the agent, to show that I actually didn't earn anything. What tax form do I need? Usually, you would report the rents received as income on Schedule E to your primary tax form (probably a 1040NR) and list the money paid to the agent and any other expenses you incurred as expenses. This will generate a net loss and can be used to reduce your income subject to taxation from other sources. Under the tax law that takes effect in 2018, you can't deduct as many expenses related to the rental as you could in prior years. But, you can still certainly deduct the rent you paid for the property that you then leased to a third party in short term rentals. Airbnb issues W-9 form for US person, W-BECI for non-US person with TIN, and W-8BEN for non-US person without TIN. A Social Security Number (SSN) is one of several forms of Taxpayer Identification Numbers (TIN). So you would provide Airbnb with a W-BECI. Airbnb will then send a Form 1099 to you early next year, and will send another copy of that Form 1099 to the IRS. The fact that the IRS will learn about your gross rental income from short term rentals from Airbnb is one of the main practical reasons that you should file a tax return declaring that income. | Businesses only keep transaction data for as long as they have to For a live loan account they will keep transactions while the account is live and then for as long as local law dictates (it varies but 7 years is typical). For transaction accounts it will generally be only for as long as required by law - typically what is required by tax law (again 7 years is typical) or as long as you can sue them under statues of limitations (2-5 years). Banks (and other businesses) do not keep records indefinitely. 10 years seems more than necessary. | No, it is not illegal There is no law that says a business must have a bank account, let alone that they must make deposits to it. | Don't do it. So clearly tax fraud is bad and the state can prosecute this when tipped off. Alice is also clearly allowed to report the possible tax fraud to authorities and to serve as a witness if necessary. The problem is that Alice can expose herself to various liabilities, and could be sued by Bob or by the state. On what grounds did Alice snoop around in Bob's room? Even if they are roommates, Alice might not have a right to enter the room. Even if she has grounds to enter the room, she might not have permission to trawl through Bob's private stuff. A glance at a computer screen is also quite unlikely to show evidence of tax fraud, as even selling lots of stuff does not imply running a business.1 On what grounds can Alice collect and share personal data with authorities? There is no constitutional right for snooping and snitching.2 Alice must instead identify a legal basis for sharing such screenshots or pictures with third parties. Data protection law such as the GDPR does recognize that there might be a legitimate interest, but Alice is unlikely to have such a legitimate interest unless she is personally affected by Bob breaking the law. For example, some people have been sued for overly enthusiastic reports of parking violations. Footnotes: People can sell goods e.g. on eBay without running a business that would have to be registered with the tax office. A business in this context is any regular business-like for-profit activity. Thus, a registration might not be necessary for occasional activity, or if the activity isn't for profit. For example, a person selling their old stuff for less than they bought it for is not acting with a profit motive. Even if there is occasional profit, this can be a privates Veräußerungsgeschäft (private sale). Whether such a sale is taxable depends on the duration between acquisition and sale. If it is taxable, it has to be reported as part of income tax filings. Generally, the profit is free from income tax after one year. VAT is a different matter. Private sales don't involve VAT. When a sole proprietor registers a business, they can elect to ignore VAT until they reach certain turnover or profit limits (Kleinunternehmerregelung). This kind of tax fraud is typically not a crime, and more of an administrative offence. Thus, intrusive investigations are not proportional – and even then, they would be up to the state, not to individuals. It is worth noting that Germany has extremely poor whistleblower protections and has failed to implement relevant EU laws. | 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. | An incomplete list: Getting the money. How did you plan to get paid? Credit card? Paypal? Integrating those into a website in compliance with their terms of service is not easy. (I wouldn't touch credit card numbers, in particular, even with a ten-foot pole. Too much liability risk for weak implementations. Too many highly skilled attackers to pounce on any mistake.) Distributing the App. Places like the Apple App Store have their own terms of service, especially regarding payment and in-app purchases. At a guess, Apple would reject your app, but if they allowed it, how does your withdrawal policy fit with the 30% cut they want from the initial transaction? Holding the money. So there are user accounts with a credit balance that can be withdrawn again. Would you be able to repay them if all users withdraw at the same time? Where do you keep the money? Currency risks. Say international customers pay in currency A, which the payment provider transforms into currency B. Then they want their money back, but exchange rates have changed. What do they get? Knowing your customer. There would be money laundering concerns. Do you have the infrastructure to identify your customers? Can customers change the (re)payment method from one account to another? Can you handle withdrawals if a user no longer has the same credit card, for instance? Scammers leaving you to hold the bag. Say a scammer tricks a victim into making a deposit, and then finds a way to redirect the withdrawal (see above). Would you be able to deal with the legal and administrative fallout? | 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. |
How can civilian security personnel do their jobs without risk of committing assault or related crimes? As I understand it assault can include the implied threat of using physical force against an individual, such as looming over someone, to compel them to do something. I believe many US states also have related laws about harassment, menacing, etc. However, the job of security personnel seems to be primarily to discourage activities by being present as deterrent against such crimes. Their mere presence is not a threat or assault of course, but if they are attempting to deter someone from acting in negative manner the security personnel would likely have to get close to the person and make demands that they leave or stop whatever activity their engaged in in a manner that could be considered a threat of force if they don't comply. To go with a particular difficult example think of a bouncer at a bar. More then most security personnel a bouncers job is practically defined by their ability to loom. My father owned a bar, and as he described it to me a good bouncer should be identifying someone who's likely to cause an incident and basically pre-emptively start looming nearby them to remind the inebriated fellow that the bouncer is ready to use physical force if necessary in hopes of preventing a situation from occurring. Likewise breaking up a minor fight often involves a good amount of getting between the two fighting and looking menacing enough that no one want's to try to go around you. Basically you want your bouncer to be able to menace people when a situation is escalating because it's a far safer way of preventing the escalation then allowing it to degreed to violence. Is a bouncer, or other security individual, guilty of assault or related crime when they do something like this? Does the fact that they are employed by a business with the explicit task of keeping the peace give them any extra leeway with such actions? Is the fact that they are trying to prevent/discourage other crimes give them more leeway? | The above is not quite accurate. First, assault. The correct definition is "a threat or physical act that creates a reasonable apprehension of imminent harmful or offensive contact." Therefore, no attempt at a battery is necessary. Rather, simply making someone subjectively believe that you are about to commit a battery against them is enough for an assault charge. Please note the following two points. One, that apprehension does not mean fear. Apprehension means that the victim has to believe that the actor's conduct will result in imminent harmful or offensive contact. Two, it's not necessary that the victim believes such conduct will actually be effective - rather, he only has to believe the conduct is "capable" of making the contact. I can't tell if by "other security personnel" you mean, in addition to bouncers, say, security at concerts or if you mean private security guards, such as ones who guard warehouses or other businesses. Nonetheless, for the warehouse/business "guards," they do not have a special privilege above or beyond what any random person may do. That is, you may use force to the extent you reasonably believe necessary to prevent a felony, riot, or serious breach of the peace. You may use deadly force only if it appears reasonably necessary to prevent a "dangerous felony" involving risk to human life, including, for example, robbery, arson, burglary. However, if the private security personnel are operating under authority vested to them by local ordinance or the state legislature, then their rights (and also any attendant restrictions, such as those provided to citizens under the Fourth Amendment) would apply instead. So where's the difference? It comes about at the standard a situation must meet to allow use of deadly force. A police officer can use deadly force to effectuate an arrest based on a reasonable belief that a suspect has committed a felony involving the risk of physical harm or death to others (murder, manslaughter, kidnapping, rape or burglary) or if there is substantial risk that the suspect was dangerous to the point that he may cause serious physical harm or death to someone if the arrest were delayed. On the other hand, as a private citizen, you may only use deadly force when attempting to effectuate an arrest if the suspect did indeed commit such a felony. Police can base their action on a reasonable belief and even if that belief is wrong, they will be safe from prosecution. A private citizen actually must be right about the suspect having committed the requisite crime. No matter how reasonable the belief was of a private citizen regarding a suspect, if that suspect did not actually commit the crime, the private citizen who used such force will be subject to prosecution. Bouncers are afforded no more rights than private citizens. They can issue verbal warnings, ask a patron to leave the establishment, check identification, refuse entry, call the cops, protect bystanders from violence, break up fights, and respond with equal force if necessary. They may not strike an individual with a punch or kick, push or physically toss someone out of the establishment, restrain them using chokeholds or other submission techniques, or use weapons or pepper spray. | Bobstro gave the practical answer, that it's a stupid idea for many reason. This is for the US in general, states may have laws that say otherwise. It is not illegal to provoke someone or a government official (police), it's done all the time in protest (not riots). It is not illegal to run from a cop who has not detained you in any way, or has not issued an order to you. The U.S. Supreme Court has made clear that people not suspected of criminal activity can ignore a police officer who approaches them. Wisconsin has even said, that even after a police officer knocked on your window, you can still leave. However, it may give probable cause, especially with the statement of "Oh shit! The police!" It IS illegal to run from a cop who has detained you or issued a lawful order. The order "STOP" is a lawful order, and from that point on, you are committing a crime if you do not stop. For your case, check out the NYTimes article "Supreme Court Roundup; Flight Can Justify Search By Police, High Court Rules". | “I’m going to kill you” is not a threat Or at least, not necessarily. A criminal threat is more than words - it must encompass the intent to carry out the threat. Except in wholly exceptional circumstances, this type of language between parent and child is not a threat. | I'll use California penal code 837 as an example, though most other states have similar statutes: A private person may arrest another: For a public offense committed or attempted in his presence... 839 says: Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein. Generally, someone making an arrest is allowed to use "reasonable force" to effect the arrest. The question then becomes, is the act of interrupting a football game a public offense? Once a fan at a football game enters the field, assuming it is a violation of the license granted to the fan, they are trespassing. These fans are often drunk when performing their midfield dance so that is another public offense for which they could be arrested. Once arrested, the interloper must be turned over as soon as possible to a magistrate or peace officer. The person making the arrest is always subject to being sued. It is a question for a trier of fact to determine if unreasonable force was used in effecting the arrest. My guess is that in most of these cases security simply ejects the exuberant fan from the premises and the fan never looks back. If a lawsuit were to be filed it would be based on unreasonable force being applied during the arrest. California penal code 240 defines assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Certainly, one could be charged with assault in effecting a citizen's or private arrest but it would go back to the definition of reasonable force and what force was necessary to effect the arrest. If someone resisted arrest I think it more likely that that person could face an assault charge. | The purposes of criminal justice include (this list is based on the Sentencing Act 1991 in Victoria): Deterrence Rehabilitation of offenders Denunciation ('this behaviour is wrong') (Retribution can also be a purpose.) What the question is talking about is rehabilitation. As discussed in the book 'Starship Troopers', you can't expect a person to improve their behaviour if they are not shown how. Some simple examples in practice include violent offenders being sent to anger management classes, or bad drivers being sentenced to remedial training. Why aren't all offenders put into rehabilitation programs? Some reasons include: Cost. It would be very expensive to offer all the rehabilitation which would help all offenders. Often this kind of thing is court-ordered, so if the judge does not know about relevant programs or does not assess the offender's needs correctly, then the offender will not be sent to them. The offender is unwilling to participate in programs that are available, and there are limits to how much coercion a given society is comfortable applying. There is no 'one size fits all' rehabilitation. Some people need to talk about what makes them use drugs, others need to talk through their childhood issues, others need training so they can get a job and not fall back into bad habits when they are released from prison. Perhaps North Korea has a great curriculum for putting lots of people in a camp and they come out model citizens, but I'm not aware of the details. Can a person really be forced to do anything? Even the army can't do that. The army might put you in prison, but that's redundant for a person who is already a prisoner. You can always threaten to kill them, I suppose, whip them, or brainwash them with electrodes perhaps, but that depends on your principles as a society. I think it's fair to say that, these days, the trend is towards what the question suggests, which is putting as many offenders as possible into rehabilitation. In 2014 it was reported that Texas took the money it would have spent on building a new prison and used it on rehabilitation instead, and there were suggestions that that worked well. | To provide an initial answer, without getting to the specific of the 51 statutory standards for self-defense in U.S. states and the exact Canadian standard, as applied to your examples, I'll make some general observations: Self-defense is a justification for doing something that would otherwise be illegal (intentionally using force against someone else). Self-defense justifications include a sense of proportionality. It isn't proper to use more force than is reasonably necessary to achieve the defensive objective. There are basically two levels of self-defensive force: Deadly Force and Non-Deadly Force. Preventing some crimes and harms is statutorily justified to do using deadly force (e.g. to prevent a murder). To prevent other crimes and harms statutes only justify the use of non-deadly force (e.g. to prevent shoplifting). The exact list of crimes in each category varies somewhat. Historically, for example, there have been some U.S. states that have authorized the use of deadly force to prevent a rape that does not put the life of the victim at risk, and others that have not authorized the use of deadly force for that purpose (I don't know if that is still the case). Typically, law enforcement officers are also authorized to use deadly force in some circumstances in which a non-deputized civilian could not. As a practical matter, a use of force that causes death is presumptively considered to be deadly force, even if the means used are not inherently deadly in all circumstances. Meanwhile, a use of force involving the use of a "deadly weapon" such as a firearm, is presumptively considered to be deadly force, even if it doesn't actually kill someone. But both of these "presumptions" (and I am using that term loosely in this answer, rather than with its precise legal meaning), can be overcome with relevant evidence. Mildly shoving someone with hemophilia (or tossing a dish full of peanuts in the face of someone with a severe peanut allergy), without knowing that this person suffers from this condition, is not a use of deadly force within the meaning of laws justifying self-defense, even if it actually ends up causing their death. Similarly, proving that you intended to and did, shoot out the tires of someone's car, or shot their foot, instead of shooting to kill, would not always constitute a use of deadly force for purposes of statutes justifying the use of force in self-defense. Getting to the specifics of the question, the majority rule would be that the use of deadly force is justified in most circumstances to prevent a home invasion burglar from harming you or other people in the residence, and to repel the home invasion burglar from the residence, although some jurisdictions would qualify this in one respect or another. The case that the use of deadly force is justified would be stronger if the home invasion burglar was armed than if he was not, and would be stronger if the homeowner was not physically competent enough to be confident of an ability to dispatch the invader in a non-deadly manner. If deadly force was justified in that circumstance, it wouldn't really matter how you killed him, nor would it matter that you intended to kill him to defense your home and the people in your home. If the law only authorized the use of non-deadly force in the circumstances, for example, because the burglar had seized an envelope full of cash and was fleeing the house, so you were really only using force to protect your property, rather than to protect your home or the safety of the people in it, at that point, then the analysis would get tougher. If you intended to kill the fleeing thief in circumstances when only non-deadly force was authorized, the weapon you used wouldn't matter. You intended to use deadly force, the force you used caused the intended death, and you did those things even though the law didn't authorize you to do so in those circumstances. If you didn't intend to kill the fleeing thief in circumstances when only non-deadly force was authorized, but you ended up killing him anyway (so that you didn't have a prohibited intent behind your actions), then the question would be whether your intent and belief that your actions would not kill him was reasonable under the circumstances. If you caused his death with your bare hands, or with a less lethal weapon (in truth, there is no such thing as a non-lethal weapon), your belief that the thief wouldn't die from your use of force would be more likely to be seen as reasonable. If you caused his death with a lethal weapon, your belief that the thief wouldn't die from your use of force would be less likely to be seen as reasonable. If the jury (or a judge in bench trial) didn't believe you were reasonable in your use of force which you didn't intend to be deadly, then the jury (or judge as the case might be) would not allow a self-defense argument to prevent them from convicting you of some kind of homicide crime. So you would probably be convicted of some form of homicide (perhaps heat of passion manslaughter), although you might still not have the requisite intent for first degree murder in circumstances like that (so that your self-defense argument might end up providing you with an incomplete defense). | The basic reason to avoid speaking to police is the concern that something that you say will provide the police with a basis for arresting you or someone you care about, or charging you or someone you care about with a crime. Often, the reason that the police are talking with someone is specifically for the purpose of developing probable cause or a case to convict someone of a crime, when without your information they wouldn't have that information. Statements far short of a confession to committing a crime can be critical lynch pins in establishing a case against you. For example, a statement that confirms that you were in a particular place at a particular time could link you to a crime that happened at or near that location at that time, when otherwise the police might have no idea where you were at that time and might never link you to the crime. Also, it isn't uncommon for a request for police assistance to end badly, with the police assistance being deployed against you, or the means used by the police to resolve a situation having a deadly or undesired outcome. On the other hand, often you will need to communicate with police. You may need to report a crime for insurance purposes. You may need help when you or someone around you is currently being victimized by someone committing a crime. Cooperating with police to provide information may help to remove someone who is a potential threat to you or someone you care about from the streets. A better rule than "never talk to the police" is really more along the lines of "think twice before talking to the police". You should thoughtfully evaluate if what you hope to gain from doing so is greater than the risk that a case against you as a suspect could be established and is also greater than the risk that if the police do respond when you communicate with them that the situation could end badly. As you do this, try to see yourself from a police officer's perspective. How will you look? Also, are you capable of saying what needs to be said and then stopping, rather than blabbering on out of nervousness. A related notion is that you should be much more wary about talking to the police when the police initiate the conversation than you are when you are the one initiating the conversation. This is because ulterior motives on the part of police that could harm you or people you care about are much more likely when the police initiate the conversation than when you do. Yet another consideration is how much you understand about the situation you are in, how sophisticated you are in dealing with the police, and how glib you are compared to the average person. For example, there are people who a guilty of a crime and are in a situation that they understand well where they are at high risk of being implicated in a crime, where smooth talking can deflect police attention away from you and onto another person or a non-existent suspect. But, not many people are smooth enough and understand their circumstances well enough to pull that off. In general, the more that you fit "the profile" of someone the police are likely to suspect of a crime (e.g. if you are a young adult African American man in a "high crime neighborhood"), the more you should assume that responding to a police inquiry directed to you is a bad idea. | In Connecticut, this is covered by the firefighter's rule. Police and fire personnel entering a property as part of their official duties are considered licensees, which limits the duties of the landowner. The rules are as follows: You can't intentionally hurt or lay a trap for the licensee. If you know or should know the licensee is there, you need to exercise due care with them. You don't have to worry about obvious hazards (but keep in mind that it's harder to see stuff at night). If you're doing something dangerous, you need to watch out for them. If you know about a hidden hazard, you must warn them. I'm not sure how in-depth you need to go with the warnings; various things I find suggest the duty to warn might only be there when you know or should know the licensee is present, but signs are a good idea regardless. On the other hand, if you do need to warn them, you might need to mention the specific locations of the pits you actually know about. However, there's no duty at all to proactively look for possible hazards. This rule originated as a rule for professional firefighters responding to a negligently-started fire: the idea is that professional firefighters sign up to do a dangerous job, and letting them sue for hazards inherent in their job (they aren't called without a fire) is a bad idea. Also, since they cannot be denied entry, go in places not open to the public, and can arrive at any hour, needing to keep the property safe for them is an unreasonable burden. Of course, there's an exception if a law is passed to protect their safety, because statutes override common law. The rule has since been extended in some states to police, and to situations besides the very problem they were called for. Other states have abolished it. In any event, this is for civil liability only: this is when cops can sue for injuries caused to them. |
How to write a correct and effective introductory letter to an attorney? Is the following a well-done example of a letter to a lawyer making an initial (or telephone or zoom-meeting follow-up inquiry about the lawyer taking a case? {name} Would your law firm have an interest in reviewing the extensive evidence we - identity - have in hand, in light of the possibility of initiating lucrative legal action against an Ohio business - identity - under Chapter 2741 of the Ohio Revised Code (ORC) comprising sections 2741.01 thru 2741.99. Particularly relevant are 2741.02, 2741.06, and 2741.07. Will you kindly provide me with an opportunity to present our evidence? We will be genuinely grateful if you come to see that we are authentic traditional jewelry-making craftswomen who have been grievously wronged. Our hope is to redeem the good name of our cooperative in the market of humanitarian fashion vs. businesses counterfeiting our identity. We only want to be in our home workshops alongside our families earning a life of dignity as an jewelry-making artisan, so nobody needs to migrate. To accomplish this, we find ourselves forced to learn how to sue an ex-customer using the images of our families for commercial purposes. This bad practice seems to closely fit the letter of the cited law. If this suit suceeds, it could become very lucrative for the lawyers. If you give me a chance to explain, I'll show you what I mean by this. Please allow me to provide you with what you want to know about our case. Attentively, {name of the President and legal representative of Cooperative} | 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). | united-states But what is that legal reason? Why would an organization not be able to state their position with respect to the issue, such as "We believe we acted correctly, but this will be decided in court"? Is there a law saying that commenting a court case is illegal? Who does this apply to? Or is this just some guideline or established advice to avoid problems (which ones)? Legal Ethics Considerations There are circumstances when commenting publicly on litigation violates the ethical rules for lawyers related to trial publicity See Rule of Professional Conduct 3.6 (the numbering system for professional conduct rules for lawyers is uniform nationally in the U.S. although the substance of the rules can differ in detail from state to state - Colorado's rule is fairly typical). Mostly this rule calls for avoiding statements that could prejudice a jury unless the other side has already done so and those statements need to be rebutted. This rule states (in its Colorado version): (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;(iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). Statements such as "We believe we acted correctly, but this will be decided in court" are allowed and are not terribly uncommon. But, making a comment about something that can be easily inferred from the publicly available documents filed in court provides little or no positive advantage for a litigant. Also, one doesn't have to say much to create at least a colorable Rule of Professional Conduct 3.6 issue that a mediator can raise in settlement talks, or that a judge can be forced to analyze. Even if the claim of unethical trial publicity ultimately doesn't hold water, it still muddies the waters and distracts lawyers and litigants from dealing with the substance of the dispute. The Risk That A Statement Will Be Used Against You Usually, the main concern is similar to the concern about talking to police: Anything you say can and will be used against you at trial. For example, this week former President Trump's public statement about his knowledge of classified documents, which are the subject of an ongoing federal criminal investigation of him, seriously harmed his position legally. (His statement was made quite a while ago in a semi-private forum, but at a time when the possibility of a criminal investigation still should have been on his radar screen.) In the civil rape-defamation case against him (as noted, for example, in this Law.SE answer), Trump's decision to continue to speak publicly about matters that were the subject of active litigation against him in an earlier case resulted in an extended statute of limitations and an opportunity to refile the case without having to worry about Presidential immunity from liability for statements he made while in office. It isn't just former President Trump that does things like this, but his conduct provides good textbook examples of what lawyers worry about when their clients talk about cases that are being litigated. Social media statements about pending cases by litigants routinely provide powerful evidence against them in trials. Some clients (particularly politicians and many senior executives of big and medium sized businesses, but also more ordinary people with big egos) are "forces of nature" who can't resist running their mouths, usually to their detriment, when given the least leave to do so. It is easier to teach them to say "no comment" across the board about pending litigation, than to transmit the depth of understanding necessary to comment without saying something potentially harmful. Lawyers spend many hours and sometimes days preparing their clients for depositions for a reason. Avoiding Annoyance To Opposing Counsel, Parties, And Judges Making a comment about pending litigation has the potential to aggravate opposing counsel and can emotionally influence non-lawyer opposing parties with whom a negotiated settlement will be reached 90%+ of the time (only about 1-2% of civil cases go to trial, but some are resolved by default judgments or on motion practice as opposed to by settlement). It can also irritate a judge who frequently prefers to be out of the public spotlight when necessary, even when the statements made aren't prohibited, and judges in the U.S. have lots of discretionary authority. | user6726's answer about civil action is good, as you appear to have lots of evidence that document-based in terms of bank records, etc. And media shaming would work; but you could be sued in retaliation, even if you're right. But try calling a prosecutor - such as a county attorney - rather than an arm of law enforcement. The police are always overworked and can be reluctant to try and put a case together for the local prosecutor. Contacting a county attorney is free and doesn't require you to get a lawyer, and it can be a surprisingly effective tactic against a criminal. A phone call or a detailed letter to the county attorney for the person's county of residence that explains the criminal activity may be the key to getting some movement in the situation. You have lots of hard evidence to hand the attorney about an individual who is committing fraud, and that evidence may make simply make the case for the attorney, as it is documented evidence they can immediately verify and use, either at the county level, or be passed to the district (state) prosecutor. A loss of $4000 is significant, and may be a felony in that state. But the "$6,000 in products that were not shipped" is intent on the criminals' part and is not a loss to you. If it is a county with a large population, the attorney will have many assistants who may have time to pursue the case. An attorney for a small county may be looking for an easy case. And who knows? The attorney's office may already know the person - if it's a county with a small population, or if that person already has a criminal history (which you could research yourself in that county's records) - and that makes the case even easier for the attorney. | This appears to be a complaint about lawyers using the legal process to achieve what their client wants. Forgive me, but this seems to be like complaining that doctors only want to cure the client's disease, architects only want to design the client's buildings and generals only want to kill the client's enemies. Your lawyer is not your business strategist or your life coach! A civil case is always about the money. If you are pursuing a civil case over a principle then you are going to spend a lot of money and probably lose. The use of a lawyer should always be part of your wider negotiation strategy in the same way that your armed forces are part of your diplomacy; in both cases the threat of use is usually better than the actual use. A civil case always follows a failure to successfully negotiate. Not all by any means, but most, civil cases would be better settled by agreement than litigation by all parties. If you believe that your objectives can best be served by a social media campaign, political pressure, etc. then go for it. Your lawyer can advise you what the risks are wrt to defamation etc. but ultimately how you choose to pursue your goal is up to you. Lawyers, understandably, look for legal solutions. A public relations professional is far better placed than a lawyer to inform your media strategy. | If I read this correctly, (and more context would support this, but I don't have time to do research at the moment; I also don't have the book in question, so I'm only basing off of the provided snippet) then it appears two different (higher court) justices making rules, not only to guide their own judgements before them, but for reference for lower court justices to base their rulings against. Note that these two cases appear to have taken place about 3 decades apart, and in two different countries, albeit with related legal codes. The Purple is "identical" to the Green, because their wording is near enough identical between the two passages. I don't think "dumbness" or lack of distinguishably is implied. Rather McRae's rule is Conditions Green AND (logical "and") Condition Red, while the British rule is just Condition Green. The orange text suggests that, under the rule in Associated Japanese Bank Ltd v Credit du Nord SA, Condition Red need NOT be shown. I.e., you don't need to show that a party is responsible for convincing the other party of an unreasonable falsehood, to prevent the first party from using the doctrine of "common mistake". It also suggests that the rule from McRae does impose Condition Red. Essentially, the text is describing two different (non-exhaustive) tests for determining when the doctrine of "common mistake" can be invoked. | Is it acceptable for person A (representing themselves) to refer to person B as "their neighbor" instead of by their name, or would that cause the suit to be dismissed? Omitting the neighbor's name in the pleadings & proceedings cannot singlehandedly cause the dismissal of a defamation suit. The matter would result in dismissal only if the plaintiff repeatedly disobeys court order(s) (if any) to disclose that information. Before the proceedings get to that point, the plaintiff will have had one or more hearings to dispute the defendant's alleged need for identifying a non-party by name. When opposing to that disclosure, the plaintiff's goal is to establish that the false narrative about robbing a neighbor at gunpoint is defamatory regardless of neighbor's name. Keep in mind that the focus in a claim of defamation is the defamed person, whereas the relevance of details such as who the non-parties are pertains to context and evidence. Lastly, the fact that a party to the suit is a pro se litigant is irrelevant from both substantial and procedural standpoints. | I found a mention of this issue here, where the case Rhonda Eddy v. Ingenesis was cited. Eddy worked from home in West Virginia, but had signed her contract with a company headquartered in Texas. The link is the decision of The State of West Virginia Supreme Court of Appeals, which upheld the decision of the Circuit Court of Jefferson County, namely, that the Circuit Court did not have the authority to hear Eddy's petition against her employer because she was out of the Circuit Court's jurisdiction. The circuit court found that it did not have personal jurisdiction over respondent under West Virginia’s personal jurisdiction statutes, and that respondent did not have sufficient minimum contacts with West Virginia to satisfy federal due process considerations. The circuit court also found that it did not have subject matter jurisdiction over petitioner’s WPCA claim because petitioner’s employment contract contained a valid choice of law clause that mandated Texas law would govern any dispute between the parties. Emphasis mine. It all depends on stipulations made in the employment contract. This (in the United Kingdom) states 4. Place of Work Allows the employer to specify the location where the employee will work. However, it also allows for the employer to specify any other location in the future. This gives the employer much greater flexibility. That would seem to indicate that (at least in the U.K.) the place is specified in the contract. | You can ask a law enforcement officer or district attorney to press charges. Generally, you cannot do so yourself. In practice, this kind of allegation is almost never criminally prosecuted. A prosecution would be particularly unlikely if the witnesses and/or notary confirmed his story that it was your father's signature or was authorized, and if the lawyer received no personal benefit from the will. Sentences for forging a will vary from state to state and sometimes depend upon the amount of personal benefit secured from doing so. Absent a huge personal benefit, it would probably be a minor felony punishable by a few years in prison or more likely, in the case of a lawyer without prior convictions, a deferred judgment, or probation and a fine. Proving that the signature is forged is extremely difficult and under certain circumstances a person trying to execute a will can lawfully have someone do it for them by directing the lawyer to do so in the presence of the witnesses (for example, if your father's hand was shaking too much to make it possible for him to sign his name due to a condition like Parkinson's disease). The witnesses to the will would be in a bad position to testify against him because they could face charges too if they witnessed the will despite knowing that it was not signed or authorized by the testator. You could contest the validity of the will due to an allegedly forged signature by raising a timely objection in a probate proceeding to have the will determined valid. In this proceeding, you would only have to show that it is more likely than not that this happened and the consequence would be that the will would be found invalid. In theory, you could sue the lawyer for damages to you caused by the alleged forgery, but only if you were harmed and realistically, only if the will was found to be invalid, which would eliminate any harm, unless the probate process has already been completed. Finally, you could complain to the attorney regulatory body in the state where the lawyer practices. If they found your allegations to be credible they would investigate. If they found that your allegations were probably true following an investigation and a hearing, they could suspend his license or disbar him. |
Can B1B2 Visitor Visa Holder marry a person who has been waiting for her asylum interview in USA but alredy got her work permit and SSN I am a Permanent Resident of Canada (Indian Passport Holder) living in British Columbia. My girlfriend has been waiting for her asylum interview in USA (State: North Carolina) but she already got her work permit and SSN Here are some questions Regarding Our Case: Can I go to the USA with my B1B2 visa and marry her within a week and come back to Canada, will this be legal ?? Or would it be a visa fraud that I misuse my entry to USA for marriage and will this cause problems for my Future Green Card application ?? Or would it be misuse of entry only if I marry to green card holder ( which she is not yet) and not come back to Canada and apply for visa status adjustment there in USA ? If Yes, What kind of marriage it would be ? A marriage between two non-immigrant or marriage between non-immigrant (Visitor) and immigrant (Her) As she just got her work permit and SSN but has not appeared for her asylum interview yet, do I need to apply for any kind of k visa for marriage ? Or she needed to be a green card holder first then I can apply for a k visa. If I can marry her with my B1B2 visa as she is not a green card holder or citizen yet. Should I also have to wait 90 days in USA before marriage so that USCIS not consider it as misuse of my entry in future when I apply for green card once she get her green card after completion of her asylum case . If in my l-94 Form I am just allowed to stay for 2 weeks in the USA but I stay 90 days then marry her and come back to Canada. Then what will be its consequences for my Future green card application. | Can I go to USA with my B1B2 visa and marry her within a week and come back to Canada, will this be legal ?? Yes. Or would it be an visa fraud that I misuse my entry to USA for marriage and will cause problems for my Future Green Card application ?? No. It is only visa fraud if you lie. Or would it be misuse of entry only if I marry to green card holder ( which she is not yet) and not come back to Canada and apply for visa status adjustment there in USA ? As long as you leave the US within the period of admission granted to you on entry and otherwise abide by the conditions of B-1 or B-2 status, there is no violation. If you attempt to enter in B visitor status with the intention of marrying and not leaving, but rather adjusting status, however, the immigration officer is entitled to refuse entry, and if you attempt to adjust status after entering in B visitor status, you may find yourself having to prove that you did not have the intention to do so when you entered. If Yes, What kind of marriage it would be ? A marriage between two non-immigrant or marriage between non-immigrant ( Visitor) and immigrant (Her) As noted in a comment, l don't think this matters. As she just got her work permit and SSN but not appeared for her asylum interview yet, Do I need to apply for any kind of k visa for marriage ? Or she needed to be green card holder first then I can apply for k visa. K visas are for the fiancé or spouse of US citizens (and their children). You don't need to worry about K visas. If I can marry her with my B1B2 visa as she is not green card holder or citizen yet. Should I also have to wait 90 days in USA before marriage so that USCIS not consider it as misuse of my entry in future when I apply for green card once she get her green card after completion of her asylum case. Gaming this is a recipe for trouble. Your best bet is to hire an immigration lawyer and follow your lawyer's advice. If you can't afford an immigration lawyer, you can get some generalized advice over at Expatriates. If in my l-94 Form I am just allowed to stay for 2 weeks in the USA but i stay 90 days then marry her and come back to Canada. Then what will be its consequences for my Future green card application. If you overstay a 2-week period of admission and then leave the US you will trigger a few adverse provisions of immigration law. If the US finds that you had intention to do this when you entered, for example, and lied about it, you could trigger permanent inadmissibility for misrepresentation. What would be the best possible solution for our case ? How should we proceed so that we don't have any kind of immigration problems for future. Find a good lawyer. Getting married in the US is fairly easy. Using your marriage to immigrate to the US requires a bit more care. | There is a report about a male-to-female transgender woman here: http://www.abc.net.au/radionational/programs/lawreport/2017-06-27/8651398#transcript She managed to do the following: 1. While legally being a male, she got a preliminary passport as a woman so she could travel to Thailand, have an operation, and not run into trouble returning with a male passport and a female body. 2. While legally still being male, but with a female body, she married a woman in Australia. That was fine because legally she was male. 3. She has received a passport as a female. 4. She was refused a change of her birth certificate as long as she is married. So the current state is: She is (in fact, biologically) a woman. She is married to a woman in Australia. That marriage is perfectly legal, however, it is officially a marriage between a man and a woman. She has a woman's passport. The Australian government cannot and doesn't want to do anything to make her marriage illegal. BUT she cannot change her birth certificate without getting divorced first, and if she got divorced and changed her birth certificate, she couldn't remarry the same woman, or any other woman. | Constitutionally, a person is only required to be granted U.S. citizenship if they are born in the United States. Any other form of citizenship is as provided by statute. So, 8 U.S.C. § 1409 makes some people citizens who would not otherwise be citizens in its absence. In that sense, it grants citizenship. Meanwhile, 8 U.S.C. § 1409(g) supports the proposition, which is a legal fiction in some cases, that someone is a "natural born citizen" of the United States, and hence eligible to run for President someday, and is retroactively considered to have been a citizen in the meantime for myriad other purposes, despite the fact that in the case of an unmarried non-citizen mother and a citizen father, this right is not vested and could never come into being if the required actions aren't taken after the fact. Incidentally, this statute has been upheld against constitutional challenges. Miller v. Albright, 520 U.S. 420 (1997). So, while you would like to clearly distinguish between someone having citizenship granted and having citizenship revoked, Congress, in its wisdom, has not been so accommodating and has declined to clearly distinguish between the two interpretations. This statute is a bit like the question of Schrödinger's cat, who is indeterminately alive and dead at the same time until there is a measurement of its state, in quantum physics. A person with an unmarried non-citizen mother and a citizen father is both a U.S. citizen from birth and always has been, and has never been a citizen of the U.S., until the situation is resolved with an actual determination of the question in accordance with the requirements of the statute. | What could be the consequences of this wedding? They would be married For example, if they break up and end their PACS in France, would they still be officially married in the USA? Yes, and also in France. And if after that they marry other partners, could this be a problem for them when applying for an American visa? Yes, bigamy is illegal in both the USA and France. Does France and the USA exchange information on wedding of foreign citizens on their soil? Don't know, probably not. Could they even end up being officially married in France even without doing any paperwork themselves? Most definitely. France recognises US marriages so they would be married in France (and the U.K., and Australia, and Germany, and ...). This is true even if the French government doesn't know they are married. | As long as they have diplomatic immunity, they don't have a residency status. If either parent didn't have diplomatic immunity, then the child is a subject to the jurisdiction and they become a citizen at birth. The short explanation with the reasoning can be found on the uscis website. Namely Children born in the United States to accredited foreign diplomatic officers do not acquire citizenship under the 14th Amendment since they are not “born . . . subject to the jurisdiction of the United States.” and If one parent was an accredited diplomat, but the other was a U.S. citizen or non-citizen U.S. national, then the child was “born . . . subject to the jurisdiction of the United States,” and is a citizen. | switzerland A mariage that is only made to get citizenship or a residence permit is illegal. The german legal term for it is "Scheinehe". This is defined as Eine [Scheinehe] liegt dann vor, wenn das heiratswillige Paar offensichtlich keine Lebensgemeinschaft führt, sondern die Bestimmungen über Zulassung und Aufenthalt von Ausländerinnen und Ausländern umgehen will. A sham marriage (see below for terminology) is on hand when the couple that requests the marriage obviously doesn't live in a partnership but wants to circumvent the laws about immigration and residence of foreigners. The marriage registrar may deny the marriage, or it may even later be voided. This source says that you can get a fine or a prison sentence of up to three years for this. If one even takes money to enter a fake marriage with someone, the sentence can be up to five years. So, better wait for the right one ;-) Terminology remark: It needs to be distinguished between the terms "Scheinehe" (english "sham marriage") and "Konvenienzehe" ("marriage of convenience"). The later is a marriage mostly to keep one's social status and is typically arranged by the parents. This is legal and was very common in former times. In some countries, e.g. in India, it is still common. It differs from the sham marriage by the fact that the social status of both spouses is the same. | I'm very sorry to hear about your situation. Unfortunately, this is too important to trust advice from strangers over the Internet. You should talk to an attorney familiar with Bulgarian immigration law. @jwh20 is correct; entering another country is not a human right. If they are not allowing you to return to your home country despite your following all laws, that is likely a human rights issue. This does not necessarily mean you won't be able to get into Bulgaria; if one person is preventing you from entering, an attorney may be able to get that person's decision overturned. | Maybe To be a refugee (a necessary prerequisite to claiming asylum) you must meet the UN definition as incorporated in the host country’s domestic law: a person who: has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’; ‘is outside the country of [their] nationality’; and is unable or, owing to such fear, is unwilling to avail [themselves] of the protection of that country’. It is important to note that “gender” is not one of the 5 grounds enumerated. However, while the definition is from the UN, the “the right of asylum is a right of States, not of the individual” or the UN. That is, each state decides who does and does not fall within one of the 5 categories even if their home state might not decide that way. This article discusses that “woman” (or a subset of “woman” e.g. divorced woman, transitioned woman etc.) could fit one of the categories - usually the “social group” or “religion” or “race”. It also mentions that common law jurisdictions have divergent approaches: Australian courts have adopted a ‘social perception’ approach which examines whether a group shares a common characteristic which sets it apart from society at large. In contrast, the jurisprudence in Canada, United Kingdom and USA has emphasised the ‘protected characteristics’ approach, which considers whether a group is united by an immutable characteristic or by a characteristic so ‘fundamental to human dignity that a person should not be compelled to forsake it’. |
Who has the burden of proof in a defamation case, plaintiff or defendant? If a defamatory statement is published and the defamed person sues the person making the statement or claim for making a false and defamatory statement, who has the burden of proof, the plaintiff or defendant? For example, a woman tells a newspaper reporter that a businessman, who is not a public figure, raped her and the newspaper publishes this claim. The businessman sues the woman for defamation. Does the woman have to prove that the man raped her, or does the plaintiff, the businessman have to prove that he did not rape her? | The burden of proof is always on the plaintiff (except for counterclaims brought by the defendant against the plaintiff). In your example, the businessman has to prove that he did not rape her. | Yes, One Can In the United States, one may assert the Fifth Amendment privilege not to testify or otherwise give information that might tend to implicate the speaker in a crime. This is true in any court proceeding, civil or criminal, whether the person asserting the privilege is an accused, a witness, or a party to a civil case. It may be asserted in a Grand Jury or trial proceeding. One may also assert the privilege under police interrogation, or in an administrative proceeding. One may also assert it when testifying before Congress, a state legislature, or any local legislative body. One may also assert it when testifying before a government agency, such as the Interstate Commerce Commission. Asserting the privilege is often informally called "pleading the Fifth", although strictly speaking "pleading" is something that only an accused does (as in "I plead not guilty"). The availability of the privilege in civil cases has been true at least since the Saline Bank case of 1828 (see below). The privilege is not available when no criminal prosecution is legally possible, such as when the statute of limitations has expired, or when the law invoked has been held unconstitutional or otherwise invalid, and no other valid law applies. Thus, if an authorized government official (usually a prosecutor) offers a grant of immunity, the privilege is no longer available on matters covered by the grant, and the person asserting it must then testify on such matters. The privilege may be asserted when the person doing so is actually guilty, or when the person is not guilty, but has a reasonable belief that the statements asked for might be used against the speaker in some current or future criminal proceeding. A person who has been tried for a crime nut had the case end in a mistrial, or a dismissal without prejudice, could still be re-tried for that accusation, and so may assert the privilege. Any assertion must be clear, but need not use a specific form of worfs. The standard form advised by many lawyers is I decline to answer on the grounds that the answer might tend to incriminate me. but less formal wording such as 'I take the Fifth" will also serve to assert the privilege. When the privilege is asserted in a court case, the Judge may question the person asserting it in private, off the record, to determine whether the fear of incrimination is reasonable. Case Law Saline Bank (1828) In the case of United States v. Saline Bank of Virginia, 26 U.S. 100 (1828) Chief Justice Marshall wrote: It is apparent that, in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule clearly is that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it. [This case was cited in Murphy, below] Saline Bank was a civil suit by the US treasury in Federal curt against an apparently unincorporated bank, but a Virginia state law of the time made it a crime to operate or participate in a bank without a proper charter. Thus the Marshall Court held that a witness in a civil suit could assert the privilege against the future possibility of a state criminal proceeding. Kastigar (1972) In Kastigar v. United States, 406 U.S. 441 (1972) the US Supreme Court wrote (footnotes omitted): It [the privilege against self-incrimination] can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values that underlie the privilege [Citing the Miranda case in a footnote]. (Kastigar was a case in which people subpoenaed before a Grand Jury asserted the privilege, were granted immunity, and still refused to testify, alleging that the grant of immunity was not enough to revoke the privialge. They were held in contempt, appealed, and the Court held that the immunity was sufficient to allow the witnesses to be compelled to testify. In the court of its opinion, the Kastigar Court reviewed the history of the privilege and of immunity statutes in some detail.) Murphy (1964) In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) the US Supreme Court wrote: We have held today that the Fifth Amendment privilege against self-incrimination must be deemed fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1. ... Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminated them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York. [Footnote 2] Notwithstanding this grant of immunity, they still refused to respond to the questions on the ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend. [This case was cited in Kastigar above.] McCarthy v. Arndstein (1924) In McCarthy v. Arndstein, 266 U.S. 34 (1924) (footnotes omitted, boldface added) The US Supreme Court wrote: The case is now before us on rehearing, granted in order to permit argument of the proposition, not presented by counsel before, that the privilege against self-incrimination does not extend to an examination of the bankrupt made for the purpose of obtaining possession of property belonging to his estate. ... The contention now is that the privilege against self-incrimination ought to have been disallowed because, under the Constitution, it does not extend to the examination of a bankrupt in a bankruptcy proceeding. The government insists broadly that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. It protects likewise the owner of goods which may be forfeited in a penal proceeding. See Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 563-564. The government urges more strongly a narrower contention. It claims that the constitutional privilege does not relieve a bankrupt from the duty to give information which is sought for the purpose of discovering his estate. It asserts that, in England, such an exception to the common law privilege prevails, and that the exception had been established there prior to the Declaration of Independence. Whatever may be the rule in England, it is clear that, in America, the constitutional prohibition of compulsory self-incrimination has not been so limited. | We may soon have a more definitive answer. A Grand Junction, Colorado newspaper is suing a politician for calling it "fake news", and the resolution of that case and the hypothetical that you propose would turn on the same legal principle. It is highly unlikely that such a lawsuit would prevail, because "fake news" probably doesn't constitute libel per se, because the comment could be construed as hyperbole or as a statement of opinion (neither of which are actionable), and even potentially, because a "speech and debate clause" defense under the state constitution might apply (depending upon the context in which the statement was made by the politician). The context of the particular tweet cited generally defines specified organizations as "the FAKE NEWS media" rather than accusing them of any particular instance of making a false statement, so it is probably an opinion or hyperbole. But, if the statement were made knowing it was false or with reckless disregard as to truth or falsity, and if the term "fake news" in the context in which it was used could be legitimately construed the imply a statement of fact which is not true, it wouldn't be impossible for the lawsuit to succeed, and depending upon the context of the statement, it could have such an implication. A suit against Trump could also implicate Presidential immunity doctrines which are more robust than immunity doctrines for other public officials, particularly if the "fake news" comment could be construed as part of the official duties of the President (for which there is absolute immunity) as opposed to his unofficial duties. The immunity question is a closer one than the question on the merits of defamation law about which there is much more case law to flesh out what is and isn't covered. | Must/may the court give that instruction? No. It would be error for the court to give that instruction. The only privilege for which an adverse inference instruction is generally authorized in civil litigation is the 5th Amendment privilege against self-incrimination. This is because when you invoke it, you are implicitly asserting that your testimony could be used against you, if you gave it, to show that you were guilty of a crime, and because a relevant question will be about events pertinent to the lawsuit. An adverse inference is also not allowed for invoking the 5th Amendment when you are a defendant in a criminal case because that would undermine its purpose in the the criminal justice system. An invocation of a marital privilege, in contrast, merely implies that you are married, which is not something that would normally and naturally suggest that you did something for which there is civil liability. One could probably imagine a fact pattern in which being married was a disputed issue that could give rise to liability (e.g. under the "family car doctrine"), of course, in which the invocation of the privilege would estop A from asserting a defense on the ground that he isn't married to A's wife (either at the time of the communication if the confidential communication privilege is raised, or at the time of the testimony, if the right to not testify against a spouse privilege is raised, as the case might be). Tricky cases would involve people who were unmarried at the time of the accident but subsequently married. But, outside very unusual facts, people generally don't deny that they are married in a lawsuit and then try to assert the marital privilege in a lawsuit. Does the answer change depending on whether it is the litigant or the spouse who invokes the privilege? No. | If the question is: "Did she call you and talk about two business contracts? " then this is not hearsay. We have a witness, standing in court, saying that exactly these things happened - that she called, and that she talked about those deals. If the question is: "Did the company sign two business deals that day? " then it is hearsay. We know that she said two deals were signed, because we have a witness for that, but that doesn't mean she said the truth. She could have lied about that. We don't have a witness standing in court saying that the deals were signed. We have a witness in court saying that he heard someone say the deals were signed. In a libel case where Jim sues Joe for libel, a witness says "Joe told me that Jim is a lying thief". That's absolutely not hearsay in a libel case about Joe spreading false rumours. The exact same statement by the exact same witness would be hearsay if someone tried to convict Jim for theft. | The Fifth Amendment always protects someone from being forced to testify against themselves if it would implicate them in a crime (see, among others, Ohio v. Reiner, 532 U.S. 17). Any person can assert the privilege, regardless of their role in the trial, with the possible exception of the plaintiff (who is the one person who wanted to go to court). Like always with the Fifth Amendment, they can answer some questions but not others (but if they do answer a question, they need to fully answer it). In civil cases, the Fifth Amendment itself does not keep the jury from making adverse inferences against whoever invoked the privilege; if you refuse to testify, they can assume that it's because testifying would be extremely damaging in that particular case. However, most states have rules against that, and so invoking the privilege in state courts generally works like it does in a criminal case (where the jury basically ignores that the question was even asked). In federal courts, if a case is being heard under diversity jurisdiction (plaintiff and defendant are from different states but the claim is not a federal claim) the state rule is supposed to apply; if the claim is a federal claim, the federal rule applies and adverse inferences are allowed. While the Fifth Amendment can be invoked by anyone, there may be consequences. In many states (where adverse inference isn't allowed), a witness who will just invoke the Fifth and answer no questions can't be called, because it's a complete waste of time. If the plaintiff invokes the Fifth to not answer key questions, then the court can potentially dismiss the case; they have the right to assert the privilege, but their lawsuit might suffer for it. In federal court, another possibility that's been done several times before is that the civil case is just put on hold until the criminal matter is resolved. Sources: “The Fifth Amendment Can & Will Be Used Against You In a (Federal) Court of Law” Taking the 5th: How to pierce the testimonial shield Plaintiff as Deponent: Invoking the Fifth Amendment | A person isn't required to state their evidence that the claim is true when they make the claim, and as a public figure, a defamation suit filed by Trump would be judged under the stronger "actual malice" claim, meaning that the statement was made with knowledge that the claim is false or with reckless disregard of whether it was false. You would have to look at the specific statement. It is generally not defamatory to hurl insults like "rapist!", "pedophile!", "criminal!" etc. against a public figure especially a political figure, since such word don't generally amount to an actual accusation of wrong-doing. On the other hand, a detailed but false claim purporting to relate factual events could cross the threshold. Hyperbole is not actionable. | Posting such a pic and statement may give grounds for a lawsuit, but probably not Overview That is going to depend very much on the the jurisdiction, and on the specific facts. If the statement that the pictured person owes a debt is false, this may be a case of defamation, but that was explored thoroughly in Can you post a picture in your business to embarrass or defame a customer? and its answers. See FindLaw's page "What Is Invasion of Privacy?" for an overview of the classic privacy torts. See also this page quoting the Restatement (2nd) of Torts, § 652 See further the Wikipedia article "Privacy laws of the United States" which gives a history of the four torts. Note that not all US states recognize all, or indeed any, of the privacy torts. Nor do all non-US jurisdictions. In some places these torts have been recognized, or blocked, by legislation, in others by court decision. And in the US they are limited by the federal First Amendment's guarantee of freedom of speech. Right of Publicity,aka Appropriation There is, in general, no right to privacy in one's physical appearance under any of the standard privacy torts, except that if one's likeness is being used to advertise something, or imply sponsorship or approval of a commercial product, many jurisdictions protect a right of publicity (sometimes called the tort of Appropriation of Name or Likeness). But here it does not appear that the image is being used to advertise or promote or sponsor anything, so that would not apply. Intrusion upon Solitude and Seclusion The tort of Intrusion upon Solitude and Seclusion would only apply if the picture were taken on someone's private premises or somewhere else there the person had a reasonable expectation of privacy. Otherwise it would not apply, there is no general right to privacy for a picture taken in public. Private Facts The tort of Public Disclosure of Private Facts could possibly apply if the fact of the unpaid debt had been carefully kept secret, and if its disclosure would be highly offensie to a reasonable person. But nothing that is a matter of public record can be the subject of such a suit anywhere in the US, because under Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) publication of facts derived from public records is protected under the first and fourteenth amendments, even against a specific state law granting protection. This will obviously not apply outside the US. False Light If the statement of the debt were true, but in some significant way misleading, the tort of False Light might apply. This is described by the Restatement of Torts (2nd) § 652E as: One who gives publicity to a matter concerning another before the public in a false light is subject to liability to the other for invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in a reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Note that the standard of (b) above is the same as the "Actual Malice" standard for defamation cases where the plaintiff is a public figure. False light cases are in many ways similer to defamation cases, and some jurisdictions have treated themn as identical tro defamation, while otrhrs do not recognize them at all. Nothing in the facts stated in the question would imply a false light claim, but more context might possibly support such a claim,. Conclusion Nothing in the question clearly indicates that any privacy-based tort would apply, but the facts are stated it a very brief way in the question. Further context and detail might clarify the answer one way or the other. This answer is largely based onunited-states law, althoguh some of it will apply elsewhere. |
Does Bob have to file a courtesy physical copy of his complaint to the courtroom clerk even if he e-files a suit? For example, Alameda County Superior Court Local Rule 3.30(c) provides as well as its "Technical E-Filing Requirements" instructs in point 12. "Printed Courtesy Copies" that "an identical[, printed] courtesy copy of any paper filed, lodged, or otherwise submitted in support of, in opposition to, or in connection with any motion or application must be delivered to the courtroom clerk assigned to the Department in which the motion or application will be heard[; f]or regular motions, such delivery must be made by noon the court day after the paper is filed, lodged or otherwise submitted". Do these regulations include the original complaint e-filed, too? In other words, does Bob have to file a physical copy with the courtroom clerk? | When it says "any e-filed document submitted in support of, in opposition to, or in connection with any motion or application must be delivered to the courtroom clerk assigned to the Department in which the motion or application will be heard" this appears to apply to motions and other requests and not to complaints. This said, the easiest way to determine the answer would be to call the clerk of the court's office and ask. An answer from a clerk of the court would be definitive and easy to secure. | Assuming you have an assured shorthold tenancy, it's not the landlord himself that can evict you. The process is that he serves you notice, and if you don't move by the time the notice period ends, then he has to go to court in order to obtain a court order to end the tenancy. The landlord must demonstrate to the court that he has properly served notice to the tenant. This is a bit of a grey area, but this article suggests that, to avoid ambiguity, the landlord should either use recorded delivery (which would provide proof as to whether or not the tenant received it), or deliver it by hand with an independent witness present. In the case of a section 21 "no fault" eviction, the only defence a tenant has is that the correct procedure has not been followed. So it is in the landlord's interest to ensure that notice has been received beyond any doubt. | The ordinance is not very specific about how notice is to be given: therefore, it need not be in writing, and it need not be sent by mail. It would not be surprising if the "notification" came in the form of a city person inspecting the reported obstruction, walking up to the house and knocking and finding nobody home (thus triggering the "In case the owner cannot be found" condition), whereupon the city removes the rocks. That clause does not mean "In case we do not know who the owner is", it almost certainly means "in case the owner cannot be contacted immediately". Article III is in general about obstructions on streets, which are not allowed, except by permit in section 78 under "Permit to Obstruct Traffic Lane". Assuming that no obstruction permit was obtained, what usually happens is that an officer is sent to tell the owner to remove the obstruction (more or less immediately), and if nobody is at the site whom they can tell, they probably won't go any further (e.g. asking neighbors where the owner is). There is no legal definition of "reasonable time", instead the law simply takes that to mean "the amount of time a reasonable person would require". It would thus depend particularly on the size of the obstruction and the volume of traffic. One measure would be how quickly the rocks were moved -- if it was a matter of days and there was no notice, written or otherwise, then there would not be the kind of urgency that might justify the "We knocked and nobody was home" version of notification. | The written document is given very high priority, so parties will be held to what is in the document. Both parties sign at the bottom, as a way of signalling their agreement with the terms specified in the document. If conditions are added or subtracted (by crossing out), especially with pre-printed forms, the "customer" (person who didn't write the contract) can initial such modifications, as a way of clearly signalling that they indeed agree to the deletion of such-and-such clause. Since both parties have a copy of the signed agreement, this is not strictly necessary. The potential issue would be that an unscrupulous person could cross out a clause after the contract was signed, and claimed that they aren't bound by that clause. A comparison of the two copies would then reveal that the unscrupulous person was attempting fraud. There is nothing special about handwriting in or crossing out conditions, except that it poses a potential evidentiary problem as to what exactly was agreed to, if for example one party threw away their copy and then maintained that the crossed-out clause had not been crossed out. (So, keep your copy). In case you are proposing a scenario where one party is unaware of a change, i.e. at the very last minute Smith crosses something out and signs it, and Jones did not see that happen, then both copies would be the same and Jones would be legally bound to what's in the paper. Smith should announce to Jones that a clause was being deleted. We might suppose that there are innocent reasons why Smith made changes without making an announcement to Jones, in which case the parties do not have an agreement. There may be amicable ways to deal with that situation, but push could come to shove, in which case the written form of the document is generally taken to be the most important piece of evidence (though not always the only admissible evidence, unless you're in Colorado, Florida or Wisconsin). | There is a relevant rule, the "posting rule", according to which an acceptance is effective once posted (this is a quirk of acceptances). This would be as soon after 7 May 2016 as Bobby sent his letter, presumably well before the deadline. So yes, a professional lawyer would be needed. If Bobby is in Australia, it might be more complicated; if Bobby is in Norway, it's simpler because they don't have the posting rule. | Update: I've filed a complaint with the CA Attorney General. They automatically forwarded the complaint to Comcast and sent me a notice in the mail. If you have filed a complaint against a business, we will forward your complaint to that business and request that it contact you promptly to resolve the issues you raised. Please note that we cannot represent you, advocate for you with the business, or force the business to satisfy individual requests for relief. Please contact the business directly to discuss your complaint. While we cannot provide specific legal advice, please see the information below, which may help address your concern. For more information about the CCPA, please see https://oag.ca.gov/privacy/ccpa and https://cppa.ca.gov/. [...] If a business has violated the CCPA, you may notify the Office of the Attorney General by filing a consumer complaint. While we cannot file an action on behalf of an individual consumer over an individual violation, consumer complaints are an important source of information for the office. We will review consumer complaints to identify patterns of misconduct and to determine what law enforcement actions to take. You can sue a business under the CCPA only if your unencrypted and un-redacted personal information was stolen in a data breach as a result of the business's failure to maintain reasonable security procedures and practices to protect it. You must generally give the business written notice of its violations and 30 days to fix the violations before you can sue. For more information about when you can sue for a CCPA violation, visit https://oag.ca.gov/privacy/ccpa If you want to consult an attorney, you can obtain a referral to a certified lawyer referral service through the State Bar at (866) 442-2529 (toll-free in California) or (415) 538-2250 (from outside California), or online at https://www.calbar.ca.gov. If you cannot afford to pay an attorney, contact your local legal aid office to see if you qualify for free or reduced-rate legal assistance. For a referral to local legal aid offices, visit https://lawhelpca.org/ and click on the Search for Legal Help tab. Comcast responded immediately to the forwarded complaint and appears to have deactivated my login, but nearly a month later have still not confirmed whether any personal information has been deleted. I'd strongly recommend anyone in a similar situation to file a complaint as well. There's no guarantee the Attorney General or California Privacy Protection Agency will act on it, but it can increase the civil penalty to the company by $5,000 per complaint (see section 1798.155) and makes it more likely they will comply. Don't waste your time with any unnecessary calls from the business or obfuscating information yourself as a commenter here mentioned. Just submit your CCPA request in writing, complete the identity verification, wait the 45 days as allowed by the law (or 90 if an extension is requested, see section 1798.130), and file a complaint if it's not completed. Update 2: I received a forwarded letter from Comcast to the Attorney General in response to my complaint. They lied and backdated their alleged completion date of the deletion request to fall within the 45 day deadline, despite emails I sent past their claimed date repeating the request as I was still able to login. Before filing a complaint, make sure to take screenshots showing you logged into the account and email it to the business in order to document it. | In California, the small claims court has jurisdiction over claims up to $10,000. In order to have personal jurisdiction over him: He must have a summons and complaint hand delivered to him (or to certain other people such as an adult who lives in his household, or to his secretary if he has one). This is called "service of process" and there are professionals called "process servers" who can do this for you in most cities. The service of process can take place anywhere in the world and still be valid. The summons and complaint must be hand delivered by a person over the age of eighteen who is not a party to the lawsuit and is not your attorney. The events that form the basis of the lawsuit must have happened in California, not merely the United States (long arm personal jurisdiction), or he must have the summons and complaint personally hand delivered to him in the State of California (tag jurisdiction). If you win, either by default if he fails to respond by the deadline, or following a trial, you will get a piece of paper called a judgment that legally determines that he owes you $X, which you must then enforce. A judgment can be enforced, for example, by garnishing his bank accounts, garnishing monies due to him from an employer or from a sole proprietorship he operates, seizing tangible personal property that he owns with the assistance of a sheriff, or putting a lien on real estate he owns. A judgment from a California small claims court can only be enforced against assets in California. There is a relatively simple process for having a judgment from California turned into a judgment from any other U.S. state. There is a relatively difficult and expensive process for having a judgment from California turned into a judgment from England that only sometimes works because some aspects of the U.S. civil court system (like punitive damages) are considered to be against public policy in England and are thus not enforceable there. You cannot have someone arrested for failure to pay a civil judgment. Enforcing the judgment is likely to be much more difficult than getting the judgment in your case. It is also possible to make a criminal complaint if the acts genuinely constitute theft. If a prosecutor finds that there is probable cause to back up your claim, the prosecutor could obtain an arrest warrant from the court in the place where the theft took place and that could be served within California when the individual is present in California (i.e., he could be arrested in California, after which the criminal justice process would proceed). Generally, to constitute theft, it must be intentional and must not be a mere breach of an agreement, in which case it is a breach of contract rather than theft. Any theft small enough to be addressed in small claims court would probably not be considered serious enough for the government to request extradition from the U.K. for, a step usually reserved for serious felonies, but if extradiction was sought from the U.K., the process on the U.K. side is described here. Any extradiction request would be handled by the prosecutor's office and law enforcement, in cooperation with federal law enforcement agencies. | A self-represented person, as a practical matter, has no choice but to engage with the court when an oral argument is conducted. A person present in a courtroom likewise has an obligation to acknowledge a judge addressing them. Usually it wouldn't be contemptuous to fail to appear at oral arguments of a fully briefed matter (e.g. a motion for summary judgment, or an appeal), but it would generally be viewed negatively. One could respond to a question from the court with "I don't really have anything more to say, my brief speaks for itself." And, sometimes a court would leave it at that, but if the court insists there is really no other option than to clarify and explain yourself. Most often, this helps more than hurts a pro se party, although I've certainly seen cases with ghost written pleadings (which are authorized if disclosed in many jurisdictions) where this isn't the case. A fairly common tactic in civil litigation is the take a deposition of a party, or to call a party to the witness stand, and to ask them if they really want the relief that their filed legal documents says that they do, as a way to narrow the scope of the claims brought against the questioning lawyer's client. But, this is less of an issue with a pro se party when the person who drafted the legal documents and the person engaging in oral arguments are the same person. This can't be done in criminal litigation, but I could see a prosecutor trying to do something similar in oral argument, although usually in that context, the judge and not the prosecutor, is asking the questions. |
Can owner of stolen goods found for sale subpoena seller to disclose the source? Someone steals Bob's bike in 2010. In 2020 Bob finds it for sale. It's too late to prosecute for theft, so the police wouldn't bother. Of course Bob doesn't know if the seller was the thief. The bike could have changed many hands in 10 years. But Bob wants to find the thief and get compensated via a civil claim and/or publicly name/shame them. Bob may not care about the bike now anymore (it can be in horrible condition). But he wants to track down the thief and sue them for damages (depriving of using the bike which was almost new when stolen). Can Bob get the court to subpoena the seller to reveal where the bike came from, and then subpoena all revealed previous owners too? | Civil claims have statutes of limitations too Usually shorter than 10 years. Therefore, Bob cannot sue anyone for recovery and therefore does not practically own the bike. In some jurisdictions, limitations acts make it explicit that Bob loses title to the goods meaning he doesn’t own the bike de jure as well as de facto. It’s not possible to say what a “typical” limitation period is but periods above 10 years typically only apply to actions on real property (land) not personal property (bike). However, that just begs the question. The criminal limitation is irrelevant to the civil action They are completely independent so whether a criminal action has happened, is in progress or can’t happen doesn’t affect the civil action. Bob doesn’t need the information The person who has the bike may or may not be the one who converted it: Bob doesn’t care because they are presently the one detaining it. So Bob sues for detinue: you have it, it’s mine, give it back, or, give me monetary compensation. Whether the person who has it acquired it lawfully or not is a matter of complete indifference to Bob. If they did acquire it lawfully then they have a breach of contract cause of action against the person who sold them goods without good title. But that’s their problem, not Bob’s. | Suppose Publisher printed 10,000 copies under the terms of the contract, and within those two years they sold 7,000 copies (and paid royalties). If you did not receive leftover copies at the end of the 2 years, then either (1) they broke the contract or (2) at the last minute they sold the remainder to some third party. If the latter is the case, they would be obligated to pay royalties on that last sale, and the numbers should add up (assuming you know how many were printed initially). If they failed to pay royalties, or they continued to sell the book, you would need to send your lawyer after them. Another possibility is the lost-email excuse – "We emailed you asking if you wanted the books, and you didn't reply, so we sold them" (disposing of does not necessary mean "destroy"). The burden would be on them to prove that they offered you the remainders and you elected not to purchase (if that is the wording – the contract could have required a specific refusal, not just a failure to respond). Under the contract, Publisher can't just decide to keep printing the book, nor can they continue to distribute it (but a third party could distribute existing copies forever). You would have "legal exposure" i.e. some risk of being sued if you republish, but it might be minimal – definitely get your attorney to advise you on that. Vendors might refuse to sell the republished work if they think it is an unauthorized edition. | Generally: Theft. All Three times. With only one exception. germany I assume that John declared "Sperrmüll" and put it out for collection or was put into the black bin. The chair thus was properly intended to be given to the trash collection service. The declared item was put out for collection or chucked into the bin. Till the moment the waste truck arrives, the item is property of John, then he relinquishes ownership via § 959 BGB Abandonment of Ownership the moment the declared item is pricked up by the intended recipient, which has (prospect) ownership interest1. For example, waste disposal services could burn a wood chair for its thermic value, a metal one would be scrapped etc. Jane isn't allowed to take it, so she steals from them2 under § 242 StGB Theft3. In case John just put the chair onto the street without anything in the intent to dispose of it, he might be guilty of "Unerlaubter Umgang mit Abfällen" aka "Wild Littering" (§ 326 StGB Unauthorised Waste Management) if he can be identified, but at the same time, Jane does steal from him under § 242 StGB Theft, as he never relinquished ownership properly (because §326 and local ordinances preclude that). John puts out the chair to dispose of it to anyone and makes sure it's clear to everybody that he has relinquished his ownership to whoever wants it by putting a sign gift or for free on it. Now he still might commit wild littering but he also properly relinquishes the item under § 959 BGB Abandonment of Ownership, Jane would acquire the chair under § 958 BGB Acquisition of ownership of ownerless movable things In case John didn't want to dispose of the chair but just place it there so he can have a break there later, it's just Jane committing theft under § 242 StGB Theft. The chair was John's property for sale. Jane took it without the required payment to make it a sale contract and the intent to deprive him of chair and money. So she steals it under § 242 StGB Theft. It's exactly the same case as 2, but replace "chair" with "cookies". 1 - if John doesn't own the item, he can't relinquish the item and so technically the waste disposal service does commit theft, yet in declaring the item for collection, John also declared he would own all items or have the allowance to put them for collection or pay for any and all damages that result from him disposing of the items. 2 - the collective of both John and the Waste Disposal Service - technically both can sue jointly and separately 3 - As an extra caveat: John also needs to make sure that his Sperrmüll doesn't create dangers or harms anyone, as he is liable for damages from it till it is collected. Even if Jane would throw around the waste and create the danger. The best he might manage is to get part of the fines back from Jane for contributing to the danger, but he is technically required to prevent or remove the danger. | In theory its only a crime if you know, or reasonably suspect, that it is stolen. The fact that you have to ask means that you have some level of suspicion, so that's not good to start with. In practice merely being investgated by the police will bring you a world of hurt long before it gets to trial. How much can you afford to spend on legal fees, and will you be able to make bail? | If that which you describe in your comment ( Facebook post as only basis for warrantless search) is, and can be shown, to be the only basis for the search, and there was no evidence of a crime in plain view when they arrived.....then yes, it is likely the search and all evidence acquired from the search would be excludable. As to whether the individual could still be prosecuted, that depends if a case could be built independent of the evidence collected during the search. | When Bob buys a thing, it becomes his, and it ceases to be the property of the seller. By "buy", we understand that to mean "pays for and receives physical control of". At that point, Bob is responsible to control of his new property. His ownership of the property is not contingent on him leaving the store. You might assign blame to the shop if they were negligent in some way, for example if they hire a thief to do the exit-check and the door guard takes Bob's property. Obviously, the thief is ultimately liable, but the store might under special circumstances be liable if they indirectly caused his loss. A store does not have an obligation to guarantee that a customer immediately and securely exits the store after making a purchase, so they are not liable for failing to immediately eject him from the store after buying the goods. | If Bob acknowledges how he has altered the evidence at the time he submits it, there shouldn't be any issues with it turning into falsification, which generally only becomes a problem when it's done with an intent to mislead the court. More likely, an opposing party would raise an authenticity objection, i.e, that the evidence has been altered and is therefore not trustworthy. It's probably going to be up to the judge whether to sustain that objection or not, and I'd expect the court's decision to turn in large part on how plausible it finds Bobs allegations of fraud and retaliation. I'd also expect that the Court would be less concerned with the pitch alteration than the redaction of portions of the recording. If we don't know what Bob is saying, it makes it hard to understand the full context of the conversation. Of course, all of this assumes that Bob hasn't already been forced to turn over the original recordings to Company, which he will be. The parties have a right to each other's evidence, and they are required to identify their witnesses to each other. The moment Company knows about the recording, it is going to submit a discovery request demanding a copy, and Bob will be obligated to comply. If Bob objects that doing so would expose the representatives to retaliation, I would expect the court to warn Company against tampering with witnesses and then order Bob to comply with his discovery obligations. | 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? |
Obtaining information that requires a court order but before to going to the court? I'm struggling with the following dilemma. Some information is not accessible without a court order, for example, some data stored in Apple / Google / Facebook servers. Going to the court directly is too risky. Once the papers have been served, there are various circumstances that could prevent withdrawing / closing / resolving / settling. It happened to me in the past - both parties were in agreement, but the court did not agree on the agreement and forced yet another court hearing 4 months later. Ideally, I would like to obtain the data (that requires a court order to obtain) so that I'm equipped with factual evidence when going to the court. Maybe there is some mechanism available to humans? From reading books, my naive understanding is that in criminal law there is a pre-trial discovery, prosecutor and defender agree what evidence will be put in front of the jury. My situation is civil law and the main intention is to obtain factual evidence but going to court directly is too much risk, too many unknowns. EDIT / UPDATE: From the comments: 🇬🇧 UK jurisdiction pretty sure that discovery occurs in civil lawsuits as well, I would like to have the 1st mover advantage, not disclose to another party that I'm entertaining a thought of taking them to the court. | There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order. So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore. In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order. | This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification. | The order of operations is important I assume that plaintiff filed for a Protective Order. To get this granted, the plaintiff has to allege some kind of wrongdoing and evidence of that. If the defendant responds, then the plaintiff can amend their filing. Then the defendant once more can respond to the allegations. If the plaintiff wants to amend the filing once more, they need to ask the court to be allowed to do so, and that opens the door for the defendant to answer once more. That's all history for the case presented: The court apparently found the evidence lacking and dismissed the application for a PO. Plaintiff can only file for reconsideration or appeal but not bring in new evidence at this point. Dismissed Cases are not automatically evidence A case that did not establish its burden of proof and was dismissed - especially with prejudice - has not established that the evidence in it is good. You have to ask each item to be admitted separately and re-establish that it is good evidence. A bulk filing "I want to bring this case as evidence" is generally denied unless you prevailed in that case. A dismissed case is one you didn't prevail in. Get a Lawyer! It seems like you are in serious need of legal counsel to clear up the situation. Contact a lawyer for at least a free consultation if you even have a case. | You could probably hire a Pennsylvania lawyer to intervene in the case on your behalf and file a motion to seal the evidence in the case, and there is a good chance that it would be granted, and quite possibly, unopposed by the parties. But, the fact that it has already been made available to the public on the Internet could cause the court to deny your request on the grounds that it is futile to do so. | Question #1: is this even possible? Is there some sort of central database which contains details of all recent court cases involving custody of children in New York City? Yes, it is possible. The court clerk for each respective court in the State of New York maintains a list of every case pending that court that goes back many years in electronic form, and there is some minimal classification by case type although the classifications used might not precisely match what you are looking for - it might be necessary to include more than one kind of case and some classification categories might be over broad for your purposes. There are probably at least three courts that could have jurisdiction over this kind of case in New York City. The Supreme Court (i.e. the trial court of general jurisdiction) which has jurisdiction over custody cases that are incident to a divorce or legal separation and in certain other cases, for example, criminal felony child abuse and neglect cases take place in the Supreme Court; the Family Court, a court of limited jurisdiction which lacks jurisdiction over divorces and legal separations but often handles custody matters involving unmarried couples, custody determinations incident to allegations of child abuse or neglect, and post-decree child custody matters; and the Surrogate's Court, which handles custody determinations incident to deaths and incident to some incapacity determinations (as guardianships of minors) and if I recall correctly, incident to adoptions. It also isn't inconceivable that a de facto custody decision could also be made in another court incident to issuance of a protective order or criminal case. It is also quite possible that there may be multiple related cases in the same or separate court. For example, there might be a child abuse and neglect case terminating person B's parental rights in family court, and then a guardianship of a minor case appointing the adult child as guardian of the minor child in Surrogate's Court. It is quite possible that more than one database (or portion of a centralized database) would have to be reviewed, rather than a single database. When I practiced law actively in New York there was not a single database, but that was more than 20 years ago and given the explosive improvement in information technology that has taken place since then, it would not surprise me at all if some or all of the relevant databases have since been consolidated. They do not know person B's name or other identity, but know they are somewhere in New York City, New York, USA. But they know the following about B: within last 4 years, B was a parent involved in a court case where their older adult child won custody of their younger underage child from them. Some information about the children is known but not precise identity (let's say birthday and first name for one of them is known; as well as ages). Notwithstanding my answer to question #1, it wouldn't be easy. While birthdays and ages would be present in documents filed in the various court cases, they would not be indexed centrally. The index of case names would contain the names of the parties to the case, the general case type, and the case number, and possibly the assigned judges and the attorneys who entered an appearance in the case. Difficulties Involved In Searching By First Name Unless the first name was very unique, locating it in a central index could be very difficult. Also, it isn't at all uncommon for the day to day name that someone uses to differ from the person's legal name used in the court case caption, or for the person's name to be misspelled due to lack of accurate information or clerical error, or for a nickname of someone to be used instead of their legal name. For example, suppose that the person you are searching for has the legal name: Jonathan Ralph Lee. This could easily have an indexed first name of Jonathan, Jonathon, Johnathan, Johnathon, Jon, John, Ralph or some totally unrelated nickname in the central index. I know someone, for example, whose legal name is "Claire" who uses the name "Denny" which has no source in any part of her legal name, in all circumstances except legal documents, because at one point in her life that is what other people and she started to call her (for reasons that are not entirely clear to me), and it stuck. A nickname totally unrelated to a legal name is particularly common among people who immigrate to the U.S. or have parents who do, whose legal name is not commonly used in the U.S. For example, I know someone born in Korea whose true name is Hei-Hyun who used the name June, which she used in English as a second language classes when she was first learning English abroad, in almost all circumstances except in legal documents. In those cases, either the legal name or the nickname could easily appear in court documents. Everyday use of a middle name rather than a true first name is particularly common when father and son have the same true names apart from Senior and Junior or the third, for example, and when the first name is less common or otherwise embarrassing or overlaps with a classmate. I've also known people who used a first name growing up and then later transitioned to a middle name at some point (often upon moving to a new school or new place) and people who have transitioned in the opposite direction under similar circumstances, in each case in connection with a desire of the person involved to "reinvent" themselves. Other Information Which Would Greatly Help In Searching It would be extremely helpful (cutting the number of cases involved dramatically) to know which borough within New York City this took place in, because at the level of court administration, each borough of New York City is a separate county with a separate set of court clerks and all case indexes would reveal the borough in which the case was brought. The more you can narrow the time period, the easier it is for you to conduct the search. If you knew the name of the school that the younger child who was subject to the custody order attended at any time and the younger child's first name and ethnicity, attempting to locate and review school yearbooks and newsletters in the relevant time period (often children are identified by name in newsletters listing children who won academic or attendance or sports awards, or who participated in special field trips, for example) would provide a much more solid basis for a further search of records related to person B, because this would give you a full name for the child and would also establish the most likely borough in which the records would be located. Often a list of parent names at the school can be found in PTA newsletters or lists in school newsletters of parent volunteers who are being thanked. If you knew the address of person B or the younger child or the older child at some point, this would be very helpful. If they lived in a home that they owned you could search property records to find a name of person B or someone related to person B. If they rented, you would still narrow down the likely school that the younger child attended, the likely courts in which the action could have taken place, and you could go in person to the neighborhood and ask former neighbors. Either a first name or a surname for person B, the parent, would also be extremely helpful, although a full name and borough of residence for person B would be much better and might limit the search, if you were authorized to make it, to just a handful of names. Knowing person B's gender would also help. If person B is the father, usually the child's surname will be the same as the father, while if person B was the mother and not married to the father, this would be much less common. The more you know about the precise nature of the proceeding, the better. It would be very unusual for an adult child rather than a parent to be awarded custody of a minor child outside of an abuse and neglect proceeding terminating person B's parental rights, or an adoption proceeding in which person B voluntarily relinquished his or her parental rights. So, the odds are good that you would want to search records in Family Court or Surrogate's Court, rather than in the Supreme Court which handles matrimonial actions. If person B were prosecuted criminally for child abuse or neglect, there is a very good chance that the person is incarcerated in a state prison at this time and so a search of prisoners with the right partial name who were incarcerated at about the right time and were of the right gender could be fruitful. This would be particularly helpful if person B is a woman because there are far fewer incarcerated women than there are men, and there are far few women's prisons than there are men's prisons. Knowing the name of the judge who handled the case would be extremely helpful and would greatly narrow the scope of the search. Also, if you identified the case with sufficient specificity in a request to the judge who handled the case to allow you to gain limited access to court records, it is quite likely that the judge would be able to identify the exact case involved with the help of court clerks from memory or partial memory of the case, making it much more likely that the judge would let you access the information that you needed. Media accounts of a case and appellate opinions arising from case (which are often publicly available in redacted form) are much more likely to identify the name of the judge than the name of the parties in a case involving a minor child. Knowing who represented person B as a lawyer, or in the alternative, knowing that person B was not represented by a lawyer, would help narrow the list considerably. If you knew who the lawyer was, calling the lawyer's office and asking in a manner that explained your need to know would probably be more likely to provide information that obtaining it directly from the court system. Knowing the name of the opposing counsel would be almost as helpful. If you new that person B acting pro se in the case, you could eliminate from the list all cases in which all parties were represented by a lawyer. This search could be made considerably more powerful if you knew the gender of person B as this would allow you to narrow the search to cases where someone of person B's gender was not represented by a lawyer. If the case was an abuse or neglect case, it would have been prosecuted in the name of the State or the People, so you would look for cases where the defendant was not represented by counsel without regard to the attorney for the plaintiff. Question #2: If this is theoretically possible, who would have access/privilege to do this? Any random person? A registered lawyer? Police? Court officer? Usually cases involving juveniles are closed to the general public, so to access them, you would need to be an "interested party", and neither a "random person" nor a lawyer admitted to the bar in New York State could do so without that connection. It might be possible to search case names that might contain the name of the child or the sibling without being allowed to access the contents of the file in some cases, I am not entirely sure on that point. If the case were incident to a case in which the child or the sibling was not a named party (e.g. the probate of a parent), this might not be sufficient to even identify the right case, however. A good summary regarding access to court records in New York State is available here. In some of the pertinent parts, it states: A number of statutes limit access to court records where the interest in confidentiality outweighs the public interest in disclosure: A. Family Court Records Access to court records in the Family Court is governed by Section 166 of the Family Court Act, which provides that the records of any proceeding in Family Court are not open to indiscriminate public inspection. In order to access a particular Family Court record, the requesting party must make an application to the Court and set forth the reasons for the request. It is solely within the discretion of the Court whether to permit the inspection of such records. Certain individuals, such as the parties and their representatives, are permitted access to Family Court records without application to the Court. 22 NYCRR205.5 Given that "B was a parent involved in a court case where their older adult child won custody of their younger underage child from them.", it is conceivable that one could articulate a reason for the need to do the search that a Family Court judge would authorize, but that would depend to a great extent on the precise nature of the reason for the search. It helps that the person you are actually searching for is an adult who would have been a named party in the case, and not the actual minor child. But, a Family Court judge would probably be pretty reluctant to authorize a search on behalf of someone who didn't even know the name of the person being searched for and instead only knew the first name and age of one of that person's children. In part, this is because it indicates that the "need" to locate person B is not very strong, and in part, this is because the search would be much more intrusive requiring review of actual court filings in many cases rather than merely reviewing the index of cases. It further states: B. Civil Actions Like criminal proceedings, civil actions are presumptively open pursuant to the guarantees under the First Amendment. Unlike criminal actions that present constitutional considerations for criminal defendants, in civil actions the First Amendment guarantees must be measured against the public interest in requiring disclosure. Family Court Proceeding The declaration in Section 4 of the Judiciary Law of a presumption of public access to court proceedings does not differentiate among the courts, and therefore applies to the Family Court, subject to any other statute that gives special treatment to Family Court proceedings. As such, there is also a presumption of openness to all Family Court proceedings, and Section 205.4 of the Uniform Rules [22 NYCRR] expressly provides that the Family Court is open to the public, including the media. However the presumption can be overcome on a case-by-case basis by an overriding interest that closure is essential to preserve higher values. See e.g., Globe Newspaper Co. v. Superior Court, 457 US. 596, 608; Matter of Ruben R., 219 A.D.2d 117 (1st Dept.),lv. to app. denied 88 N.Y.2d 806 (1996) (holding potential trauma to mental and physical well-being of children required closure of child protective proceeding to public and press); Matter of Katherine B., 189 A.D.2d 450 (2d Dept. 1993) (holding public properly excluded from child protective proceeding where compelling testimony established that child would be adversely affected). Section 205.4 (b) of the Uniform Rules [22 NYCRR] provides specific factors that a judge may consider in determining whether to close the courtroom or to exclude specific individuals, such as preserving courtroom decorum, avoiding a disruption in the proceedings, and serving the orderly administration of justice, including privacy interests of individuals before the court and the need to protect litigants from harm. Matrimonial Proceedings Domestic Relations Law § 235(2) grants the court the discretion to exclude the public if "the public interest requires that the examinations of the witnesses should not be public." Because matrimonial proceedings include matters concerning child custody, visitation and maintenance, aside from potential embarrassment to the litigants in a public proceeding, the public interest standard may protect minors from public testimony. See CPLR 4019; Matter of Lincoln v, Lincoln, 24 N.Y.2d 270 (1969) (trial court had discretion to interview the child in a custody proceeding in private). Adoption Proceedings Given the nature of adoption proceedings, the proceedings are confidential and held in closed courts, and the records pertaining to adoptions are sealed pursuant to Domestic Relations Law § 114. See Matter of Walker, 64 N.Y.2d 354 (1985) (setting forth the considerations for deeming adoption records confidential). Mental Competency Proceedings The media has a qualified right of access to competency hearings, whether held pursuant to the Mental Hygiene Law or the Criminal Procedure Law. See Matter of New York News v, Ventura, 67 N.Y.2d [sic] C. Matrimonial Actions Section 235 of the Domestic Relations Law provides that neither an officer of the court with whom the proceedings in a matrimonial action or a written agreement of separation is filed or an action or proceeding for custody, visitation or maintenance of a child are filed, or before whom testimony is taken, or his clerk, either before or after termination of the suit shall not permit a copy of any pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or examination to be taken by any person other than a party, or the attorney or counsel of a party, except by order of the court. D, Confidential Records Records contained in a court file that are deemed confidential may not be disclosed absent a court order including the following: . . . • Court records in sex offense cases that might identify the victim. See Civil Rights Law § 50-b. • Mental health records, including records of commitment, retention and discharge proceedings of the mentally ill and mentally retarded (see Articles 9 and 15 of the Mental Hygiene Law; CPL 330.20) and clinical records submitted in connection with the proceedings (see Mental Hygiene Law § 33.13[c]). . . . • Records of adoption proceedings. See Judiciary Law § 90.10. • Other records or documents that have been sealed or designated confidential by the court. I am not completely clear on the extent to which the case name itself is suppressed, as opposed to merely the contents of the case file in some of these situations, but where the name of a child is suppressed due to confidentiality this often extends to the name used in the caption and indexing of a court case that is available to lawyers not involved in the case and the general public. A court official would have authority to look at the information, but probably wouldn't be allowed to disclose it to you in any situation where you or a random lawyer was not allowed to do so, for the reasons set forth above. I can imagine circumstances in which the police or the prosecutor's office would be allowed to review sealed juvenile custody case records in furtherance of a criminal prosecution or potential criminal prosecution, but I couldn't tell you how they would go about getting that authorization as I have never practiced criminal law and am not familiar with that level of procedural detail in New York State. But, it is hard to imagine law enforcement coming to your aid in the circumstances you describe, although without knowing the reason that you want to locate person B, it is hard to know for sure. | Only if counsel challenged the point during the trial Difficult as it might be, you can’t allow the judge to be wrong during the trial without calling them on it: very, very politely. For example, there is case law that says you can’t successfully appeal because the judge was asleep through significant parts of the trial; appeals courts are clear that you have to wake them up. If you don’t then you accepted that you didn’t want the judge to hear the parts of the case they slept through, it’s your choice how you present your case. Frankly some cases are better if the judge misses half the evidence. Of course, if the error of law makes it through to the oral or written judgement then you can appeal even if you didn’t take issue with it. | The most innocent of your scenarios is "against the rules", so less innocent acts fair worse. The idea behind researching legal theory and precedent (presumably not presidents) is that surely it is good for a juror to know what the law is. But that thinking is wrong. The judge will instruct you as to what the law is, and will also instruct you that "the law" is limited to what he says it is. I will draw on the instructions for an antitrust case, Best Buy v. Toshiba, HannStar. The core instruction is: It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. The preliminary instructions (the pattern instructions for California civil trials) say the same basic thing: At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law. The judge instructs the jury that: When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. Your research might find alternative statements of the law out there, which seem entirely plausible. That doesn't matter: you have to set aside whatever ideas (about the law) that you've gotten from anybody besides the judge. In fact, if the judge makes a (serious) mistake and rules against a party in a manner that is contrary to established law, and you know this (it doesn't matter how), you are supposed to apply the law (including rulings during trial as to admissibility) as given to you by the judge. As for a case of a juror knowing that the judge was mistaken (specifically, knowing based on his pre-existing knowledge of statutes and case law – not based on forbidden research during a trial), we can get the "should" from the absolute instruction to follow the judges instructions. Additionally, if you read transcripts of voir dire (not a trivial task), you can observe judges probing attorneys who happen to be in the prospective pool, asking questions to determine whether that person can just do as they are told. But it would be difficult to establish a "hard rule". There never will be an instruction that says "You must follow my orders even if you know for a fact that my orders are wrong" – jury instructions never admit the possibility of judicial error. | It is possible that you could be required to testify in a coroner's inquest, or in a criminal trial (if it were later determined that a crime was committed despite first impressions to the contrary). You could also conceivably be called to testify in a civil trial concerning, for example, insurance payment eligibility. But, it is also quite likely that none of these proceedings will happen and that your initial statement to police on the scene will be sufficient for all purposes in the future. The coroner may be satisfied that he needs no further information. Law enforcement may decide that no crime was committed. And, the death certificate's cause of death and date of death may be found to be sufficient in any future civil dispute. |
Is it illegal to put a license plate from another province on the front of your vehicle in Alberta? In Alberta you are only required to have one plate on the rear of your vehicle. However, many people will put a decorative plate on the front, just for fun, usually a flag, or a sports team, but you can get all sorts of decorative plates from Canadian Tire or most truck stops. I've seen lots of people put plates from other counties on the front of their cars (Germany, England). What I'm wondering is if it would be illegal to put on a plate from say neighbouring British Columbia, where all vehicles are required to have a plate on both the front and back of the vehicle. What would the law be in Alberta for putting a BC plate on the front of your truck? What would happen if you drove it into BC? | I couldn't find any decisions on CanLII where someone was punished for a fictitious or out-of-province front plate in Alberta, however the Traffic Safety Act states the following: 1(1)(s) “licence plate” means a licence plate that is issued under this Act and includes an object that is recognized under this Act as a licence plate; (9) For the purposes of sections 1(1)(rr) and 11.1 and Part 8, licence plate includes a licence plate issued in another jurisdiction. 53(1) Except as otherwise permitted under this Act, a person shall not do any of the following: (b) display on a motor vehicle or trailer a licence plate other than a licence plate issued or authorized for use on that vehicle; (c) operate or park a motor vehicle or trailer on a highway with an expired licence plate displayed on it; (Part 8) 168(1) If a peace officer has reasonable grounds to believe (a) that a vehicle is displaying licence plates that (i) were not issued for that vehicle . . . the peace officer may seize and take possession of the licence plates displayed on that vehicle. 169(1) A peace officer may arrest a person without warrant if the peace officer, on reasonable grounds, believes . . . (2) For the purposes of subsection (1), the following are the provisions for which a person may be arrested without a warrant: (c) section 53(1)(b) relating to the displaying of a licence plate other than one authorized under this Act; While the connection of the extended definition in s.9 to s.53(1) is a little vague, the connection to Part 8 is not, and therefore I can confidently say that the Act clearly states it is a violation to use out-of-province plates on the front of a vehicle. The plates can be seized and you may be arrested. It may further be a violation of the BC Motor Vehicle Act if/when you travel there. | I think it's important to keep in mind the essence of your actions. @Mowzer gave a great answer on the matter in hand, but I'd like to add a point of view. Is it illegal to eat while driving? Like pointed out by @Mowzer, if no law prohibits it, it's allowed by default (lots of countries have this premise). But what about the consequences of your actions? Maybe there's no law against eating in the car, but there sure is one in my country that specific says that you are not allowed to drive without using both hands in the wheel. The only exception to this rule is to take out your hand from the wheel to use the stick to change gears. Another point of view to add is the liability. Let's say you're minding your own business while driving and a lunatic trying to commit suicide jumps in front of your car. It's a pretty straight-forward case, you have no reason to be blamed. Now, let's add to the same scenario your snack; with a small change, you are now facing a accident that may have been caused by reckless driving (another thing commonly illegal). To sum up, the law is not really like math that have axioms that determine true or false statements without any distinguishment. That's why every case is single handled in the law by it's particularities. | Road Rules in Australia in each state and territory are based on the Model Road Rules 2012. Each state and territory has enacted these rules (with some modifications; mainly relating to administrative matters) through their respective parliaments. The laws specifically for Victoria are the Road Safety Road Rules 2009 (Part 3 of which includes the obligation to obey speed limit signs) and the Road Safety (Traffic Management) Regulations 2009 (Part 2 of which says who can put up what speed signs where and prohibit ordinary people from doing so), both made under the Road Safety Act 1996 (section 95 and Schedule 2, items 44 and 45). | Their code, their rules A copyright holder is free to offer their work under none, one or many licences. They can, at the same time, use their own work however they see fit without regard to the licences they have given/sold to others (except, they can only give one person an exclusive licence). As an analogy, let’s say I own a fleet of cars. I can drive my cars anytime I want. I can let Jim drive my cars anytime he wants for free. I can let Mary drive a specific car on Thursdays and only within 10km of the depot. I can let Joe drive my cars providing he pays me $50 a day. And I’m not going to let Fred drive them at all because Fred’s a jerk. Each of those is a different licence. | TITLE XXI Section 263:1-a 263:1-a Allowing an Improper Person. – No person shall knowingly permit a motor vehicle owned or controlled by him to be driven by a person who is not properly licensed or otherwise entitled to drive. Any person who violates this section shall be guilty of a violation, and if the license or driving privilege of the person allowed to drive is under suspension or revocation, the owner or person in control of the vehicle, notwithstanding title LXII, shall be fined not less than $100. I would also hazard that allowing someone to use your vehicle knowing they intend to commit a crime would make you an accessory but I don’t think that’s the answer they’re looking for here. | This is an excellent explanation. All Australian jurisdictions have (in general) common road rules. In NSW these are enacted by Road Rules 2014 regulation under the Road Transport Act 2013. The relevant provision is Clause 306: 306 Exemption for drivers of emergency vehicles A provision of these Rules does not apply to the driver of an emergency vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the rule should not apply, and (b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm. From your statement (a)(i) and (b) would seem to apply so it becomes a question if (a)(ii) does. Well, you don't know the circumstances so you can't judge if it is reasonable that the rule not apply: if the police car were involved in a collision, caught on a red light camera or booked then the driver would have to show that it was. It is worth noting that some road offences like drink or dangerous driving are not in the Road Rules, they are in the Crimes Act and so the exemption doesn't apply to them. It is also not a shield from civil liability although the difficulty of proving negligence goes up because disobeying the road rules is no longer enough. | Yes for individuals, and yes for vehicles. They're customs laws rather than immigration laws. | From the Highway Code: Rule 112 The horn. Use only while your vehicle is moving and you need to warn other road users of your presence. Never sound your horn aggressively. You MUST NOT use your horn while stationary on the road when driving in a built-up area between the hours of 11.30 pm and 7.00 am except when another road user poses a danger. Law CUR reg 99 Rule 195 Zebra and parallel crossings. As you approach a zebra crossing ... do not wave, flash your lights or use your horn to invite pedestrians across; this could be dangerous if another vehicle is approaching be patient, do not sound your horn or rev your engine as this can be intimidating ... Rule 214 Animals. When passing animals, drive slowly. Give them plenty of room and be ready to stop. Do not scare animals by sounding your horn ... |
What authority (or authorities) have established the status of State ratifications of U.S. Constitutional amendments? Background In the United States, the NARA is the authority that receives all final documents related to the State ratification of a United States Constitutional amendment as implied on the NARA website: TITLE 1 -- GENERAL PROVISIONS CHAPTER 2 -- ACTS AND RESOLUTIONS; FORMALITIES OF ENACTMENT; REPEALS; SEALING OF INSTRUMENTS Sec. 106b. Amendments to Constitution Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States. In addition, the NARA has also received recession or rejections of certain Constitutional amendments from the states, the validity of which is not pronounced by the head archivist, but is seen as conclusive by another (unnamed) authority as stated here: In a few instances, States have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive. Since the most credible source I found on the matter does not state who "established" that the legal sufficiency of ratification documents is final and conclusive, I wanted to ask the following question: Question What authority (or authorities) has established that the facial legal sufficiency of ratification documents is final and conclusive? | From what I read, it appears that the final quoted statement is not saying another authority does this so much as the Archivist does not do it. Which would mean that the when the state notifies the Archivist and says "We ratified the amendment" the Archivist accepts that the state did all required steps to ratify the amendment and doesn't need to tick a check box list of steps. Or to put anotherway, the lawful Ratification of a Constitutional Amendment in a State is determined by the state's own institutions and not the Federal Government's. Once the state says it's ratified, the Feds assume it was done so following the states own processes and was not done in an underhanded fashion. | The President has the power under Article II of the U.S. Constitution to faithfully execute the laws enacted by Congress. Any power that the President has to regulate international travel of non-U.S. citizens arises from statutes enacted by Congress that give the President (or the executive branch more generally) that authority. Immigration laws, in practice, give very substantial discretionary authority to the President, and public health laws probably also do so. I don't have chapter and verse to cite to you regarding which specific statutes provide that authority, without considerably more research, but that is the general idea. The primary statute regulating immigration is the Immigration and Nationality Act of 1965 (and more generally, Title 8 of the United States Code). It is not uncommon in the United States for there to be disputes over how much discretion a President has under a particular statute in the United States, because unlike parliamentary systems of government, the execution of laws and the passage of law is split between different branches of the federal government in the Presidential system of the United States, rather than being fused with a Prime Minster who serves at the pleasure of the legislature. | Are there any underlying reasons behind the nonsensical structure of U.S.C. titles? Is it simply a case of "This is how it's been for awhile, don't fix what isn't broken." or is there more to it than that? First of all, the United States Code is generally not designed to be used by non-lawyers. Second, one of the main ways to research case law interpreting a statute is by doing a boolean search on the code section of that statute. Every time you change a title or section number, you impair the ability of people doing legal research (both judges and lawyers) to find previous case law interpreting the meaning of the statute. Third, you make it much harder to determine when the substance of the provision was originally enacted (e.g. if you want legislative history or to determine which of two conflicting statutory provisions was enacted first) since an annotated statute will often show when the current section was enacted but will not explain what it was derived from. Fourth, the location of a statute within the context of other statutory sections often informs its meaning. Machine gun may have one definition in two or three laws, and a different one in two or three other laws, and there may be yet other laws where machine gun is an undefined term. Moving a statutory section from one part of the code to another could influence the default definition that one uses for an undefined term changing substantive law. Fifth, usually a new codification will also involve some drafting standards, for example, to add gender neutrality or to avoid notoriously ambiguous constructions (like 250 word sentences). But, it isn't at all uncommon for very slight changes like the position of a comma or the formatting of a section with multiple indents, to result in a change of the likely meaning of a somewhat ambiguous statute and it is pretty much impossible to know a priori when a statutory section is ambiguous until you are confronted with a fact pattern that makes the ambiguity in that context clear. This isn't confined to obscure laws of little importance. For example, the question of whether Obamacare applied in states that hadn't set up their own exchanges hinged on these kinds of issues. None of this is to say that you should never recodify the statutes. But, a basically aesthetic motivation that mostly matters to people who make up a tiny portion of the main users of the product (non-lawyers) that poses multiple threats to how statutes will be located using legal research tools, and how it will be interpreted once located, means that reorganizing statutes is not something to be done lightly. In short, there are a lot of serious, substantive costs that can accompany a recodification of a law. As a result, re-codification is most often done only as part of an overall omnibus reform of an area of law on the merits where the interest in being able to track prior interpretive caselaw and determine the original meaning of a statute enacted long ago is at its lowest. Barring the even more ridiculous case of Congress repealing everything and passing the exact same laws again, just under different Titles/Chapters/etc, This is not so ridiculous. Most states have done exactly that one or two times in their history (sometimes more for older states). Also, many newly admitted to the union states also do something similar. For example, the basic template for the statutes in Colorado was the statutes of the state of Illinois. Basically, the first time around, somebody started with an Illinois statute book, eliminated Illinois specific laws and laws that they didn't like, rearranged them and adopted them as the original statutes of the State of Colorado (it may have actually been version 2.0 after a stopgap set of statutes, I don't recall which). Also, most states completely repeal and readopt all of their statutes in codified form on the recommendation of the codifier to a legislative committee, to reflect the acts passed in the previous session, every year. This doesn't involve overhauls really, but in principle is a complete repeal and reenactment. While the federal government has never overhauled the entire U.S. Code in this manner, it has been done at the level of individual titles of the U.S. Code. For example, the most recent major reorganization and overhaul of the structure of the Internal Revenue Code (Title 26) was in 1986. The copyright laws were overhauled in the late 1970s. Both of those accompanied major substantive changes in those areas of law. Another major recodification of many parts of the U.S. Code took place following 9-11 in connection with the creation of the Department of Homeland Security, which reorganized both the bureaucracy and the associated U.S. Code language associated with dozens of federal agencies. would it be possible for Congress to arbitrarily merge, combine, and delete Titles, and to rearrange the location of laws, definitions, etc? Are there laws/regulations governing this? Yes. Congress can do so any time it wants by passing a bill (it would be the longest bill ever - dozens of volumes long) doing so, and getting the President to sign it. The legislative process would be exactly the same as any other bill. | The document may, but probably doesn't say what it is you are witnessing. For example, a person witnessing a statutory declaration in NSW attests: their qualification to be a witness (JP, solicitor etc.) that they actually saw the declarant sign it that they asked the declarant if they believed their declaration was true that they have known the declarant for more than 12 months OR the declarant provided a photo ID and either their face matched the photo or they had a valid reason for not showing their face. If it doesn't say then what you are witnessing is that the signature was made by a person whom you could identify if necessary (e.g. if the person denied the signature). | National security letters can compel the production of some kinds of (non-"content") user data, and (according to Wikipedia) typically contain a nondisclosure requirement forbidding the recipient of the letter from disclosing it. I assume that a witness has received and complied with a national security letter, and a non-government party wants to ask the witness questions which outside the courtroom, the witness would be forbidden to answer by the national security letter. The witness, or the government if represented in the lawsuit in question, may object to the questions. The purpose which justifies the secrecy requirements of a national security letter is also likely to justify the exercise of state secrets privilege. If the judge thinks a statute might otherwise be violated, they might intervene in the absence of any objection, or consider alternative remedies like an in camera hearing. If the court does not intervene to prevent the evidence being given, and the witness is charged with breaching the secrecy law, this would raise complex questions about the interpretation of the law imposing criminal penalties. The common law doctrine of absolute privilege for witnesses giving evidence in judicial proceedings applies in the United States, and could be raised in defence to any criminal charges. | From the holdings of May 14, 2018 in NJ. v. NCAA, As the Tenth Amendment confirms, all legislative power not conferred on Congress by the Constitution is reserved for the States. Absent from the list of conferred powers is the power to issue direct orders to the governments of the States. The federal law in question forbids legislatures from passing certain laws, but PASPA’s anti-authorization provision unequivocally dictates what a state legislature may and may not do. The distinction between compelling a State to enact legislation and prohibiting a State from enacting new laws is an empty one. The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event. The anti-authorization provision does not constitute a valid preemption provision. To preempt state law, it must satisfy two requirements. It must represent the exercise of a power conferred on Congress by the Constitution. And, since the Constitution “confers upon Congress the power to regulate individuals, not States,” New York, supra, at 177, it must be best read as one that regulates private actors. There is no way that the PASPA anti-authorization provision can be understood as a regulation of private actors. It does not confer any federal rights on private actors interested in conducting sports gambling operations or impose any federal restrictions on private actors. The Commerce Clause does not enter into the majority opinion, though in Thomas' concurring opinion, he indicates he is not entirely happy with purely in-state applications of the Commerce Clause. But, at present, interstate gambling does not differ. | Typically an Answer would have two parts. The first part presents the Defendant's side of the story raised in the Petition in an effort to assert that the Petition when viewed in light of the actual facts hasn't demonstrated a right to relief. The second part sets forth "affirmative defenses", most of which are procedural in nature. An affirmative defense raises some set of circumstances not discussed in the Petition that make it appropriate to deny relief even when, but for the defense, if everything in the Petition was true, this would suffice to establish grounds for relief. For example, procedural defenses might include: failure to meet a deadline, failure to give notice to the proper persons, failure to pay a filing fee, failure to include required information (such as a case number or a statement of facts or a signature) in the Petition, or lack of standing to file the Petition on behalf of the child because parental rights or legal guardianship are absent or because the person filing the Petition isn't an adult. The notion is that the Reply, in theory, should limit itself to responding to the newly raised procedural defenses stated in the Answer, or to new documents provided with the Answer, instead of trying to argue and resolve every dispute of fact or credibility issues between the Petition's version of the facts and the Answer's version of the facts. When in doubt, talk about it in the Reply. At worst, it is beyond the scope of what should be included in a Reply and can be ignored by the hearing officer as harmless. And, sometimes the hearing officer will decide that they want to know what is said even if it isn't strictly within the proper scope of a Reply. Certainly provide any documents that weren't previously provided that rebut the claims in the Answer. | Several examples come to mind. This may not be comprehensive. Attorney General's Opinions Ands The Equivalent In state and federal governments in the United States, there is typically an official in the Attorney General's office who reports directly to the Attorney General who writes Attorney General's opinions which are binding legal authority on the government officials in that state or in the federal government, as the case may be, on legal issues. One purpose for which an Attorney General's Opinion is frequently used is to declare that a law shall be considered unconstitutional for all purposes by government officials in that governmental body. Typically, this is only done when the precedents regarding a law's unconstitutionality are unequivocally clear, for example, because the U.S. Supreme Court or the state supreme court in the state in question, has declared a virtually identical law to be unconstitutional (e.g. a religious test to run for public office in a state constitution), even though a court has not ruled on this particular law and it remains on the books. County attorneys and city attorneys in their respective local governments often do the same thing. State and federal tax collection agencies often following the federal model of regulation like documents called "Revenue Rulings" and "Revenue Procedures" will sometimes make determinations that are binding on the government that are essentially identical in process and effect to an attorney-general's opinion, except that these are typically issued under the supervision of the top tax policy official in the tax collection agency, rather than by an official in the Attorney General's office. This is also sometimes done by administrative or independent agency boards in the course of carrying out their determinations. For example, the Environmental Protection Agency might determine, by regulation, that a "right to farm" law under a state statute or state constitution is unconstitutional to the extent that it interferences with its environmental regulation of farms. Prosecutorial Discretion Frequently prosecuting attorneys refrain from bringing charges under laws that they believe to be unconstitutional (at least in the circumstances that present themselves where the law could theoretically be used) as a matter of explicit or implicit policy. Even when a policy is explicit, however, it is often an internal policy not disclosed to the general public. And, since prosecutors routinely exercise prosecutorial discretion for all manner of reasons, it isn't easy to identify cases where a failure to bring a particular charge is a result of a determination by a prosecuting attorney that a law is unconstitutional, at least as applied in the circumstances of a particular case. Real Estate Title Standards A somewhat similar practice is found in real estate title work, most often in cases involving racially restrictive real estate covenants. Often there is a statute, regulation, or simply an industry standard privately adopted title standard that title companies trying to determine the state of title to real property use to disregard racially restrictive real estate covenants (and certain other less well known title issues) on the grounds that they are unconstitutional. This is done notwithstanding the general common law rule that duly executed and recorded real estate covenants are binding and run with the land. Mass Implementation Of Retroactive Precedents In rare circumstances, when a once widely used legal practice is determined to be unconstitutional and to have retroactive effect, such as convictions of crimes by non-unanimous juries in the State of Oregon, an ad hoc administrative process is established to identify and summarily invalidate the unconstitutional convictions or judgments, without litigating those cases in the courts on a case by case basis. Legislative Determinations and the Veto Power A legislative body will often repeal or amend a law for the reason that the law in question is believed to be unconstitutional, even if the constitutionality of this particular law has not been adjudicated in a court. In theory, this is a way in which a legislative body deems an existing law unconstitutional. In practice, however, different legislators will justify the repeal or amendment of an existing law for different purposes and there is no obvious way for someone not familiar with the legislative history of an act and the related deliberations to know if a law was repealed or amended because it was unconstitutional. Similarly, sometimes a President or Governor vetos legislation for the reason that this politician believes that a bill passed by the legislature is unconstitutional. But there is generally no definitive way to determine which vetos are for this reason and which vetos are for some other reason. Pre-Litigation Advisory Opinions The federal courts are not allowed to issue advisory opinions in the absence of a genuine case or controversy as a rules of the jurisdictional limits on their authority under Article III of the United States Constitution. But some states grant either the state supreme court, or a special committee or council, the authority to review newly enacted statutes, and/or proposed ballot initiative, to determine if they are unconstitutional on their face, before they take effect. In many civil law countries outside the United States, a constitutional court, or a "council of state" has similar authority. Military Law Under the Uniform Code of Military Justice (UCMJ) in the United States, disobeying a lawful order is a ground to impose military justice penalties, but court-martial or otherwise. Implicit in the provision of the UCMJ, is the right and obligation of people subject to this provision of the UCMJ (basically active duty military personnel), to exercise independent judgment to disobey an unlawful order. One form of unlawful order is a military order to do something unconstitutional. So, in the first instance, a soldier given an order must evaluate whether or not the order which has the force of law as to them, is unconstitutional, and secondarily, this is raised as a defense before the appropriate military justice body (e.g. a court martial) to a prosecution seeking to discipline the soldier for disobeying an order under the UMCJ. To the extent that raising a defense in a court martial is equivalent to raising a defense in a court proceeding, that really isn't any different than ordinary judicial review. But, when a soldier refuses to follow an order on the grounds that the order is unconstitutional, this amounts to an invalidation of the order on constitutional grounds by a means other than judicial review. Constitutional Amendments The 14th Amendment to the United States Constitution specifically held that all laws adopted by the Confederate government during the U.S. Civil War issuing public debts were void as a matter of law. Similarly, the adoption of various other constitutional amendments, such as the 13th Amendment prohibiting slavery, upon adoption, immediately caused all laws authorizing and regulating the institution of slavery in the United States to become unconstitutional. Prohibition and the abolition of poll taxes provide other examples of existing laws being determined to be unconstitutional immediately, when constitutional amendments take effect. Non-Court Precedents Specific historical acts and courses of dealing are often treated as determinations that different kinds of conduct are, or are not, constitutional. For example, the U.S. Civil War was taken as a non-court precedent establishing that a U.S. state does not have a right to unilaterally secede from the United States of America, even before a court reached that determination. This likewise implicitly resulted in the conclusion that all confederate laws were unconstitutional. Many examples of this involve separation of powers provisions of the constitution and provisions adjudicating the internal affairs of legislative bodies. The former are rarely litigated so custom, practice, and political pronouncements have to suffice instead. The latter are often expressly non-justiciable (i.e. beyond the jurisdiction of the courts) so determinations of when legislative procedures are constitutional or not are often vested in the discretion of the legislative bodies themselves. Most constitutional questions related to electoral college results, Congressional elections, and the constitutional amendment process are non-justiciable and are therefore resolved by legislators rather than judges. |
Under what circumstances can a subpoena be issued? I'm trying to help someone out on a different Stack Exchange website about a stolen device. Not many of us know many too much about the law. We are trying to figure out who has/where is the stolen device. We know the device manufacturer account system (I'm just avoiding stating the company name) will log all logins and where they came from. One of the things they log is an IP address which can be used to trace it to an extent. Unfortunately this information isn't public, and we think the only way to get this information would be with a subpoena. How could we get a subpoena issued to retrieve this information? Would there need to be an attempt to press charges in court to get a subpoena? Or can the police department issue one? | Law enforcement officers can obtain information with a search warrant, which is a document issued by a judge or magistrate that authorizes them to search for specific information or evidence based on "probable cause" to believe that it will inform the investigation or prosecution of a crime. A court can also issue a subpoena at the request of a party to a proceeding before it. Since in most cases only the state can bring criminal charges before a court, an individual would have to bring a civil complaint before a court in order to even request a subpoena related to his complaint. Also, it is up to the court to enforce its subpoenas: It's not like a warrant where you can then pursue the items subpoenaed through force. If the subject of a subpoena doesn't respond you have to ask the court to compel the party, which means you have to bring your complaint before a court that has jurisdiction over the party you wish to subpoena. This can be difficult when it involves a third party – especially a third party that would rather ignore or object to the subpoena than hand over the information. I.e., if you can't convince law enforcement to investigate the crime, and you can't convince the company in possession of the data that it's in its interest to help you, then you would most likely be facing a steep legal bill to get an attorney to successfully obtain the information through civil process. | 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. | We need to assume that the stop was legal (not a high hurdle to clear), that is, there was some reason to stop you. Even so, following Utah v. Strieff, police don't actually have to have a reasonable suspicion to stop you and if in the course of an ID check they discover that you have a warrant out for your arrest, the arrest is still legal. So if the police stop you, RCW 46.61.020(1) says: It is unlawful for any person while operating or in charge of any vehicle to refuse when requested by a police officer to give his or her name and address and the name and address of the owner of such vehicle, or for such person to give a false name and address, and it is likewise unlawful for any such person to refuse or neglect to stop when signaled to stop by any police officer or to refuse upon demand of such police officer to produce his or her certificate of license registration of such vehicle, his or her insurance identification card, or his or her vehicle driver's license or to refuse to permit such officer to take any such license, card, or certificate for the purpose of examination thereof or to refuse to permit the examination of any equipment of such vehicle or the weighing of such vehicle or to refuse or neglect to produce the certificate of license registration of such vehicle, insurance card, or his or her vehicle driver's license when requested by any court. Any police officer shall on request produce evidence of his or her authorization as such. There is no law that says "you have to provide ID only if accused of a crime", or "police can pull you over only if you are suspected of a crime". Various traffic infractions will get you pulled over but are not crimes; random sobriety checks are legal. However, note that the requirement to provide ID applies to the operator. There is no law requiring citizens to carry identification papers (but there is a law requiring a vehicle operator to carry a specific form of ID). In some states there are "stop and identify" laws which allow police to demand ID from a person suspected of a crime, but Washington does not have such a law. | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. | Yes, you may call a defendant as a witness and compel the defendant to testify in a civil case. If you need this testimony to prove your case, you should have the clerk issue a subpoena for trial to the defendant and have that subpoena personally served by a process server upon that defendant (sometimes a witness fee, a mileage allowance, and a copy of the relevant statute must also be included in the package). There should be a standard court form available to do this. The subpoena to appear and testify at trial must be delivered to the defendant by the process server a certain amount of time in advance (usually two days, but court rules vary). Also, when you call a defendant as a witness you may generally examine the witness with leading questions, which is something that you are not usually allowed to do with witnesses that you call in your own case. Forcing a defendant to testify to the indisputable facts is a good way to meet your burden of proof towards establishing those facts. But, when you call a defendant as a witness, you should limit your questions to those you know the answer to and can ideally prove with other evidence if the defendant lies. Don't try to tell the entire story of the case with the defendant, just the undisputed facts. The one narrow exception to this would be a criminal contempt of court proceeding (i.e. one seeking the remedy of throwing the offending party in jail where there is no way to obtain relief by taking the action requested) prosecuted by a party within a civil case, to which 5th Amendment protections would apply. But, this would not apply to the kind of case described in the original post. | Keep in mind that a warrant doesn't require proof that you stole the property or have the property. Instead, the warrant is just authorization to look for that proof. The standard for securing a warrant is probable cause, which is a much lower bar to clear than people seem to think. It just requires that given everything the officer knows, there's a "substantial probability" that a piece of evidence will be in a given place at a given time. If the officer swore to a judge that a reliable source had told him that the letter was stolen, then seen in your front yard, and not seen since, I wouldn't be at all surprised if the judge gave him a search warrant. | In US law, there was, as far as the question indicates, no probable cause to search her phone at all, Therefore (unless there is some cause not mentioned in the question), any such search is illegal, and any evidence found in such a search, or that is found as an indirect result of such a search (pointers toward it are found in the search, and followed) would not be admissible in any criminal case against Alice. In the case of Bob, if his friends and family approach the police or other authority with a vague suspicion that Bob might be involved in the creation of illegal content That will probably not constitute probable cause for an arrest of Bob or a search warrant for his phone. Unless the accusation does prove to constitute probable cause, any evidence found during such a search would not be admissible against Bob in a criminal case. In practice, most US police would not undertake either search without better evidence than is described in the question. But some police will overstep the lines, which is what the US exclusionary rule is for. Legal procedure does not as far as I know make a distinction between "exploratory" and "confirmatory" evidence. Instead, evidence is either admissible or not. The rules for when evidence is admissible are quite complex, and vary by jurisdiction. Some of them are more traditional than logical, and some of them are addressed to particular problems that have arisen in particular circumstances. But the US Fourth Amendment protections against unreasonable searches, and the requirement of probable cause before search or arrest warrants are issued, serves some of the same purpose. Other countries have different rules, but many of them restrict the authorities to some extent from making arbitrary searches with no initial evidence. Response to the Revised Question As the question has been edited, there seems to be fairly clear probable cause to search Alice's phone, and if clear evidence of "illegal pornographic content" presumably actually child pornography, as no other kind is illegal simply to posses) is found, she can be brought to trial and perhaps convicted. The mere "suspicion" of Alice's "friends and relatives" would add little and mi8ght well not even be admissible. The facts, if any, on which those suspicions are based might be admissible, one cannot tell from the summary in the question. The case against Bob, however, remains weak. Indeed there still seems to be no probable cause either to arrest Bob nor to se3arch his phone, and the results of any search that was done would not be admissible. Probably none would be done without more evidence. The OP wrote: Thus, although the situation looks grim for both, since the evidence against Bob is confirmatory, it might be considered stronger. Not so, the case against Bob is weaker, indeed so weak that an arrest would be unlikely, and if one were made, the case would likely be dismissed before going to trial, assuming no more evidence than was included inn the question. The evidence prior to the search seems to consist only of vague suspicion not supported by any actual evidence, and so there is nothing to confirm, and no valid search would occur. That suspicion of Bob came before the search, and the search is thus "confirmatory" is not relevant. The question is, what evidence against each defendant is admissible, and does the totality of the admissible evidence amount to "proof beyond a reasonable doubt" no matter what order it was discovered in, or what idea was in the minds of the investigators, provided that they were acting lawfully so that their findings are admissible. | In the USA communication between an attorney and their client is "privileged". This makes it illegal for, amongst other things, the police to listen in to conferences between a suspect and their attorney. However in practice there is often little to prevent the police actually doing so. |
Does Biden OSHA vaccine mandate apply to remote workers? Does Biden vaccine mandate apply to remote workers? I am programmer full-time employee working from home. Our company was fully remote before the pandemic in 2019. | The emergency temporary standard requires either vaccination, or testing with masks for unvaccinated workers, for employees of an employer with 100 or more employees but has exceptions for employees working alone or exclusively outdoors. According to 1910.501 - Vaccination, testing, and face coverings: 1910.501(b)(3) The requirements of this section do not apply to the employees of covered employers: 1910.501(b)(3)(i) Who do not report to a workplace where other individuals such as coworkers or customers are present; 1910.501(b)(3)(ii) While working from home; or 1910.501(b)(3)(iii) Who work exclusively outdoors. | Overview An executive order cannot make new law. However, most executive orders are based on powers granted by law to the President, or to some executive agency or department. Others are based on laws that come under the general power and duty of the President to "take care that the laws are executed" and announce some policy for how laws will be interpreted and enforced. Announced mandates In the case of the mask and vaccine mandates announced but not yet issued by the Biden administration, they apparently claim to exercise powers granted under various laws, particularly the Occupational Health and Safety Act. It is likely that once such regulations are formally issued they will be challenged by those opposed to such mandates. If they are upheld, (or are somehow not challenged and thus assumed to be valid) they will carry the force of the laws under which they are issued, and thus the Supremacy Clause will apply to those laws, and to the orders as ways to enforce those laws. Other Precedents The question says: Currently, the only precedent to enforce fines and vaccine mandates (at a state level) that I am aware of is a 1905 decision by the Supreme Court, Jacobson v. Massachusetts (197 US 11 (1905)), where it allowed Massachusetts to fine an individual for refusing to comply with vaccine mandates set by the state. This is not quite correct. Jacobson is the leading case on this issue, but there have been some others. In Zucht v. King, 260 U.S. 174 (1922) the US Supreme Court held that a local ordinance mandating vaccinations for school attendance did not violate federal constitutional rights, citing Jacobson and calling the matter settled law. Note that the ordinance in Zucht applied to both public and private schools without exception. In Prince v. Massachusetts, 321 U.S. 158 (1944) the Supreme Court opinion included (at 166) the statement that: Acting to guard the general interest in youth's well being, the state, as parens patriae, may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. Thus, he cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death. People v. Pierson, 176 N.Y. 201, 68 N.E. 243. The catalogue need not be lengthened. It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare, and that this includes, to some extent, matters of conscience and religious conviction. (Emphasis added, footnotes omitted) Prince v. Massachusetts was a child labor case, not a vaccination case, and the above comment was technically obiter dictum (not binding precedent). But because of it Prince has several times been cited in later vaccination cases alongside Jacobson and to show that Jacobson is still good law. Note that Prince, like Jacobson and Zucht, was a case supporting state law against a 14th amendment challenge. Supremacy Clause An Executive Order that is not backed by any valid law would not be the "Supreme law of the land" under the supremacy clause, and might well be simply held invalid for lack of Presidential authority to issue it, depending on the subject of the order. But orders claiming to make law on the President's own authority are quite rare. Youngstown Sheet & Tube Co. v. Sawyer Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (the steel seizure case) invalidated such an order. In that case the President not only did not have the backing of a specific law, but failed to follow the procedures set out in a relevant law. In Youngstown Sheet & Tube Co. v. Sawyer the concurring opinion by Justice Jackson has proved influential in later cases and in later congressional drafting of laws. The key passage of that opinion starting at 343 U. S. 635 reads: Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category. Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class, because Congress has not left seizure of private property an open field, but has covered it by three statutory policies inconsistent with this seizure ... Would a vaccine mandate or mask mandate that goes beyond any law passed by Congress fall into Jackson's "zone of twilight"? In the absence of a court ruling, no one can say. | This is covered by the page Job Applicants and the ADA from the U.S. Equal Employment Opportunity Commission. There it is said: I have a disability and will need an accommodation for the job interview. Does the ADA require an employer to provide me with one? Yes. Employers are required to provide "reasonable accommodation" -- appropriate changes and adjustments -- to enable you to be considered for a job opening. Reasonable accommodation may also be required to enable you to perform a job, gain access to the workplace, and enjoy the "benefits and privileges" of employment available to employees without disabilities. An employer cannot refuse to consider you because you require a reasonable accommodation to compete for or perform a job. The page mentions as plausible required reasonable accomodations: providing written materials in accessible formats, such as large print, braille, or audiotape providing readers or sign language interpreters ensuring that recruitment, interviews, tests, and other components of the application process are held in accessible locations providing or modifying equipment or devices adjusting or modifying application policies and procedures. The page goes on to say that: You must inform the employer that you need some sort of change or adjustment to the application/interviewing process because of your medical condition. You can make this request orally or in writing, or someone else might make a request for you (e.g., a family member, friend, health professional, or other representative, such as a job coach). A letter from a doctor is not automatically required. But in some cases a prospective employer might reasonably insist on nsuch a letter. The page says: If your disability and need for accommodation are not obvious, the employer may ask you for reasonable documentation explaining the disability and why an accommodation is needed. There is no specified evidence or form that an employer need provide in rejecting a request for an accommodation. The employer is only required to provide "reasonable" accommodation, and is not required to provide any accommodation if it would cause "undue hardship" to the employer. If several possible accommodations would reasonably allow the potential employee to apply the employer may choose which one or ones to offer. It need not offer the one preferred by the prospective employee. All this also applies to accommodations for an employee after s/he has been hired or has a job offer. | No You can outsource if you don't disclose Confidential Information (as defined in the agreement), or if you have the principal's permission to disclose it to the third-party contractor. The clause only applies to confidential information - a subset of all information. I know that independent contractors should have the freedom to complete the work in whatever way they want Not at all. George Clooney, the actor, is an independent contractor - he can't outsource. Of course, this is an example of a personal services contract but, more generally, while the starting position in contracting is that either party may delegate their obligations (although they remain responsible for them) the parties are free to structure their contract however they like. If they want to prohibit outsourcing, they can. If they want to specify that certain personnel must be used (or not used), they can. | Parents have very wide latitude to make their children do what they are told, especially when the action is mandated by law. Vaccinations for school children are mandatory, and that could include covid vaccinations. A child is not eligible for an exemption on their own (only the parent can request a non-medical exemption). Force can be used on the child to get them to comply with a mandatory vaccination, per RCW 9A.16.100. It is the policy of this state to protect children from assault and abuse and to encourage parents, teachers, and their authorized agents to use methods of correction and restraint of children that are not dangerous to the children. However, the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child. Any use of force on a child by any other person is unlawful unless it is reasonable and moderate and is authorized in advance by the child's parent or guardian for purposes of restraining or correcting the child. However, that does not mean that the shot-provider is willing to tie the child down on parental say-so, so it is reasonably likely that a court order would be necessary. If the child has been legally emancipated, they are the ones who would have to consent to a vaccination, so their parents can't make them get shots. | It looks like your PTO already met the legal qualifications for the law were met by your PTO policy prior to the law's enactment. The linked material lists the exemption for full time employees. You should have a leave balance in your pay stub (and if not, you should talk to your company's payroll department to find out your balance(s)) and can use leave that you have for sick leave (they just aren't calling it sick leave it). Likely your leave is valid for sick or vacation leave combined or you have two pools (sick and vacation) that you can use any leave pool for sick days (typically, sick leave will be paid out on departure from the company and has no caps on banking it (if you have X amount of hours per year and don't take sick days at all, you can add that to the sick leave you get next year) so you can retire early by using the sick leave to cover the time you would have remaining to work before retirement benefits can take over. Vacation or Annual may also payout but has a cap on banking (often this bank will be the days per year value of the year. If in year one you take no vacation days, you can still have X vacation days banked in addition to year 2's days, but you need to use that same amount by the end of year two or you will lose the hours banked in year one. Basically amounts to longer Christmas Break for a lot of people). | Usually, a clause like this is used in contracts of full time managerial or professional employees of a business who are employed on a salaried or commissioned, as opposed to an hourly basis, in positions that are exempt from overtime requirements. It basically prohibits moonlighting with a second job while employed at your current job. A non-competition clause, in contrast, would typically prohibit working for a competitor for some period of time after ceasing to work at your current employer. This is concerned about spreading your time and efforts too thin, rather than competition. You could violate it even if your moonlighting job has no direct impact (other than loss of some of your full time services) on the firm that employs you in your primary job. It does not prohibit you from having a personal life (e.g. going to the dentist, visiting family, watching a movie, etc.). Normally, this is used as a backstop against gross abuses, with performance based evaluation as the primary means by which the employee is evaluated. The line between personal investment activity and moonlighting or an intensive hobby can be vague and it is usually only enforced in extreme cases. | In germany, this is called Friedenspflicht. Both employers and employees (and their unions) are required to refrain from strikes and lockouts in disputes on issues which are covered by a currently valid collective bargaining agreement. The agreement may also stipulate that there will be no labor actions on issues which are not covered, as long as the agreement is in force, but that is not necessary. Example: There is a collective bargaining agreement on wages, which is still running. Strikes for higher wages are prohibited. Strikes to get better staffing for the night shift would be allowed, if the agreement doesn't say how many employees should be on duty even during slack hours. |
How can I get more than 10 years of transaction history from my bank? I will shamefully admit that it was only in the year 2021 that I finally built my own bookkeeping system. Yes, I should have done it 10-20 years ago, but I didn't. So now I'm in this situation: First of all, I logged in to my bank (Nordea in Sweden) and discovered that it now only supported dumping data from not very long ago at all. I think it was just a couple of years, or even months. So I contacted them. They responded that they "will not" give me any data that is older than 10 years, but that I can exploit a secret bug (yes, they actually said this...) on their website to basically ignore multiple error messages and force their website to keep feeding me data, until it hit 10 years back. That's when it stopped feeding any data, so I dumped the CSV and exported it into my own local database. So now I have all my bank transactions between the first day of 2009 up until today. (Yes, that "10 year" limit was slightly off, so you clearly cannot trust a single word they or their website claims...) I also tried to analyze the JSON data blobs and modify the requests to fetch older data, but it just displayed error messages then. But obviously, the bank does have all my old transactions in their real database. I don't believe for a second that they have actually thrown it away, or that they ever will. So why won't they give it to me? They didn't state a reason, and I kept asking repeatedly in different ways, but they consistently just told me that data older than 10 years isn't available or some cryptic sentencing like that. They didn't explicitly mention it, but many other companies keep using this stupid "GDPR" nonsense as an excuse to not give me their data, and perhaps this is somehow related to this. But still. This is my own data. Not the data of somebody else. It's my personal bank account, and I'm logged in securely to prove my identity. I'm not asking for this via e-mail! Clearly, they are unwilling to hand it out, but is there some way for me to force them to do so against their will? That is, without "going to court". It really annoys me that I don't have a full transaction history to analyze. Can they be forced/persuaded? PS: I've even offered to pay them money for it, but even if you pay them, the time limit is still "10 years". | Businesses only keep transaction data for as long as they have to For a live loan account they will keep transactions while the account is live and then for as long as local law dictates (it varies but 7 years is typical). For transaction accounts it will generally be only for as long as required by law - typically what is required by tax law (again 7 years is typical) or as long as you can sue them under statues of limitations (2-5 years). Banks (and other businesses) do not keep records indefinitely. 10 years seems more than necessary. | An incomplete list: Getting the money. How did you plan to get paid? Credit card? Paypal? Integrating those into a website in compliance with their terms of service is not easy. (I wouldn't touch credit card numbers, in particular, even with a ten-foot pole. Too much liability risk for weak implementations. Too many highly skilled attackers to pounce on any mistake.) Distributing the App. Places like the Apple App Store have their own terms of service, especially regarding payment and in-app purchases. At a guess, Apple would reject your app, but if they allowed it, how does your withdrawal policy fit with the 30% cut they want from the initial transaction? Holding the money. So there are user accounts with a credit balance that can be withdrawn again. Would you be able to repay them if all users withdraw at the same time? Where do you keep the money? Currency risks. Say international customers pay in currency A, which the payment provider transforms into currency B. Then they want their money back, but exchange rates have changed. What do they get? Knowing your customer. There would be money laundering concerns. Do you have the infrastructure to identify your customers? Can customers change the (re)payment method from one account to another? Can you handle withdrawals if a user no longer has the same credit card, for instance? Scammers leaving you to hold the bag. Say a scammer tricks a victim into making a deposit, and then finds a way to redirect the withdrawal (see above). Would you be able to deal with the legal and administrative fallout? | Normally the statute of limitations is five or six years (I think it's different between Scotland and the rest of the UK). The reason for the limitation is that if your employer asks for money back, you obviously should be able to defend yourself, for example by proving that you never received that money. After five or six years it is assumed that you wouldn't be able to provide any such evidence, so nobody can ask for the money back anymore. That's not specific to overpaid wages but quite general. In addition there is the question whether the pilots should have known they were overpaid. For example, I'm quite happy with my salary, but if it was less, I would look for and find a different job that pays better. If the company claimed in five years time that I had been overpaid all the time, then I would say that if they had given me the "correct" lower payment, I would have found a better job elsewhere, so asking me to repay the money seems quite unfair. (Why do you need to defend yourself? Maybe your salary was £3,000 per month. Someone in the right position records that they are paying you £4,000 but puts £3,000 into your account and £1,000 into their own. Then that person has an accident and their replacement finds that you were overpaid according to their records.) | 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. | This is less of a compliance question, and more of an infosec question. On one hand, you want to be able to restore access to an account to users who have lost their access. On the other hand, you must prevent unauthorized access e.g. from hackers. These factors must be balanced. Whether you'll fulfil a data subject access request will generally follow the same criteria as deciding whether you'll reset someone's access credentials, so I'll mostly discuss identity verification in general. Trying to validate names is generally pointless from a security perspective, since the name on the account might not be real, or because validation documents like scans from a passport can be easily forged. When a service has identity validation measures like requesting a copy of photo ID, or requesting a photo of you holding up a validation code written on paper, that doesn't actually help validating that the person requesting access is the account owner, but that the person requesting access appears to be a natural person, and now documents about their identity are on file. A lot of information like names, birthdates, or addresses is also not at all secret and could be easily guessed by a malicious actor. Most websites work by equating access with control over an email account. If you can receive a password reset code over email, you have access. In effect, this delegates the responsibility of account recovery to the email or OAuth provider. So the issue is what happens when someone loses their email account, which is not entirely uncommon for accounts that are multiple years old. One reasonable (and likely GDPR-compliant solution) is to deny access when someone loses their account. Quite a lot of services operate this way. A milder form of this is to email the old address that someone is trying to take over the account, and turn over the account only if you have other evidence of ownership and there has been no reply over multiple weeks. Since this is part of an identity verification measure, I don't think the GDPR's normal 1 month deadline would apply. However, this approach is very risky: an attack can succeed through the mere inaction of the true account holder, and it would arguably be a data breach if you give access to the wrong person – safer for erasure requests only. Also, emails like “click here or we'll delete your account” look a lot like spam (I get a lot of those about alleged problems with my Paypal account). A potentially more reasonable approach is to use questions about the account to verify ownership. When did they create the account? When did they last use it? Can they answer questions about non-public content of the account? (But don't let an attacker choose the questions!) You see some older sites that ask the user to select a “security question” for recovery purposes. But this isn't a best practice – they are frequently the weakest link in an authentication system. If the user answers truthfully, the answer may be easy to guess or discover for an attacker. E.g. the infamous “what is your mother's maiden name” question is horrendously insecure in the age of Facebook. If the user provides a more secure answer, that is essentially just another password that's even easier to lose than an email account. High-value accounts typically offer a secondary authentication method as a fallback. E.g. my bank can send me new access codes via physical mail. GitHub can optionally link a Facebook account for recovery purposes. But these measures would be overkill for most cases. Especially collecting a physical address for the sole purpose of offering account recovery would likely violate the GDPR's data minimization principle, though it may be fine when the user opts in with freely given consent. To summarize: what you're trying to do is extremely difficult, because you've need to balance different security aspects: keeping malicious actors out, and letting legitimate account owners in. Whereas I'd resolve that by denying any account recovery or subject access requests, other approaches exists with other risk profiles. The GDPR requires you to perform reasonable identity verification measures, but what is reasonable depends on the business context and is ultimately an infosec question. | The way you describe this UUID, it is pseudonymous data (see GDPR Art 4(5) and Recitals 28–29). That is, it is not directly identifying, but you have a mapping between pseudonyms and identifiers that can be used to re-identify this data. Effective pseudonymisation requires not only that the data is logically separate, but that there are effective organisational and technical measures preventing re-combination by unauthorized persons. Alongside with encryption, pseudonymisation is one of the safety measures that the GDPR explicitly requires whenever appropriate (see Art 25, Art 32). Pseudonymous data is still personal data, because you can easily re-identify the data. The PII concept is US-specific and is misleading in a GDPR context, where it is not the inherently identifying characteristics of the information that matters, but the realistic ability of the data controller to single out data subjects to whom this data relates (compare Art 4(1) and Recital 26). However, were you to irrevocably erase the UUID–email mapping, things are more tricky. There is no longer any connection with directly identifying data, so this data might be anonymous. On the other hand, such a persistent UUID still allows you to recognize/distinguish persons, so it might still be personal data. This might be the case especially when the UUID is used in long-lived cookies of website visitors, thus matching the GDPR's concept of an “online identifier”. This conclusion could be avoided by limiting reuse of UUIDs, e.g. creating a new UUID after some context-dependent appropriate duration. The GDPR does not require all data to be stored in the EU, but requires international transfers of personal data to have sufficient protections. If you're processing these data in countries without adequate legal protections (like the United States), additional safeguards have to be used. Pseudonymisation could be part of such safeguards, and has been suggested by some data protection authorities in the wake of the Schrems II ruling. However, pseudonymisation alone does not make the international transfer legal, it is more of a strategy to reduce remaining risks. I think that your systems has a good chance of being OK, but not neccessarily so. If in doubt, perform a DPIA and possibly consult your data protection authority under GDPR Art 36. If feasible, storing/processing data only in the EEA or in countries with an adequacy decision will simplify compliance. Safeguards such as pseudonymisation could be strengthened by rotating UUIDs, and by restricting access to the table with identifiers. | So I suppose we basically need to disclose the exact geolocation of the datacenters that store this kind of content. That is incorrect. You need to identify a place of business where federal investigators may inspect the records without first making an appointment for access. The location of cloud storage is not particularly relevant. is it possible in any way to achieve compliance with 18 USC 2257A while using Google Cloud Storage (Or perhaps any other cloud storage service)? Yes. You must store the records as required by the statute and by the regulations issued under the authority of that statute, 28 CFR Part 75. I only scanned the regulations, but it seems that the "location" of the records is the place where they are available for inspection, not necessarily the place where digital files are stored. (The regulations also provide that you may indeed keep the records in digital form.) But consider, for example, what would happen if the FBI came knocking for an inspection and a local utility company accidentally severed the fiber cable on the next block. Such a network outage happened at my company a few years ago, and the incident disabled all of our redundant networking, so we had no internet access whatsoever for several hours. The investigators would probably tolerate such a disruption, but it is probably better to have a copy on site in addition to any off-site copies you might have. Regardless, you should hire a lawyer with relevant experience, because you need advice from someone who can find out whether there has been any litigation that may have a bearing on your rights and obligations, and you should find out what state and local law have to say about this, if anything. This is a criminal statute, and trying to protect yourself from criminal liability without qualified legal advice is quite possibly going to leave you vulnerable. | It is legal for a company to ask for any information they want as a condition of doing business with you, so long as their request isn't proscribed by law. I don't know of any jurisdiction where a request for banking or credit information is illegal. (In this case, however, it does seem like you are being phished. You could report the matter to your country's consumer protection agency.) |
Is it more difficult to convict politicians because of juries? Let's say a politician is charged with a crime that is normally punishable by prison. But one or more people on the jury is/are of the same party as that politician and thinks they did nothing wrong or they don't want them to go to prison. That person votes not guilty or asks for jury nullification regardless of if the more nonpartisan jurors agree the person is guilty. In the United States, is such a scenario plausible? | Yes, such a scenario is plausible, and there are some cases where it has probably happened. But since juries do not normally give reasons for their votes, it is hard to establish when it has and when it has not happened, and I have seen no statistics on such occurrences. By the way, "Jury Nullification" is simply when one or more jury members vote in a particular way because of something other than the law and evidence as presented in the trial. Most often the term is used when a jury votes to acquit because they dislike or disapprove of the law involved. For example, in the 1850s a number of people accused of violating the US Fugitive Slave Law by harboring runaway slaves were acquitted, reputedly because juries who disliked the law (quite unpopular in many northern states) no matter what the evidence. Later, during Prohibition, some people charged with possessing or selling alcohol were acquitted, reputedly by juries who disapproved of Prohibition. In both cases, it is hard to get authoritative sources that specific cases were actual instances of jury nullification. Anyway, a juror need not "ask" for jury nullification, that juror just votes to acquit. A jury that votes to acquit (or convict) because of political or personal views about the accused might be said to be "biased" but I am not sure if that would be described as "jury nullification". | Legally and safely? Have a good and true reason for being excused, and hope the judge accepts it. If being on a jury would somehow cause you legitimate hardship, you may be excused. If you're a felon, and haven't had your rights restored, many courts won't even let you sit on a jury. Don't "pretend" anything, though. If you intentionally deceive the court in order to avoid jury duty -- or, where it's possible, even to get onto a particular jury -- that is illegal in probably every court that has a concept of jury duty. | The US legal system deals with this by punishing you for the crimes of which you are convicted. That is, those where the evidence (whatever it is) convinces a jury that you are guilty beyond reasonable doubt. If there is insufficient evidence, for whatever reason then you would not be convicted. The prosecution can, subject to admissibility, put forward whatever evidence they like in order to convince the jury. This can include a pile of ash that they allege contained convincing and unambiguous evidence of guilt. Of course, if that's all they've got the prosecution would probably be censured by the judge for wasting everybody's time and money, more likely, a prosecutor wouldn't lay charges in the first place. As to punishment for an evidence tampering conviction: you have been convicted of evidence tampering, not drug production so you will be punished for evidence tampering, not drug production. The legislature sets different punishments for these for a reason, possibly a reason known only to them but a reason nevertheless. The judge has discretion to apply anything between the minimum and maximum sentence prescribed. A conviction for evidence tampering in a drug case rather than, say, a jaywalking case, is likely to get a more severe sentence all else being equal. | There is no legal requirement that a jury be composed of people demographically like the defendant (or the plaintiff), there is simply a requirement that the selection process give all kinds of people an equal chance at being empaneled. So being a different race or gender from one of the parties is not prima facie evidence of a biased jury. The statement that "The jury asked a question because some invoices were not attached to a statement and wanted to impeach the victim's testimony" is somewhat puzzling, since Georgia is widely cited as a state where jurors are forbidden to ask questions. Let us suppose though that jurors manage to communicate an interest in knowing a fact, such as "Do you have an invoice for X?", then the judge could decide whether that is a proper question. At that point, it moves from being a jury matter to a legal judge matter, and if the question was itself highly prejudicial, the case could be overturned on appeal. Alternatively, the way in which the question was framed by the jury could be proof of bias, e.g. "Please ask that lying %@!^* defendant to prove her ridiculous story". The defense attorney has entered an objection (if you don't object, you can't appeal), and perhaps if the question was legally improper then the verdict could be set aside. If the attorney failed to move for mistrial (if the question proves blatant bias) then that's the end of the matter, except for a possible action against the attorney. The implied questions about attorney conduct are hard to understand. An attorney may refuse to engage in a futile legal act, but this does not preclude an individual from seeking another attorney to file a motion or even attempting to file a motion on one's own (which is probably a futile act). However, I also assume that the victim did not have her own attorney and that this was a case between two insurance companies about individuals – a third party claim. In this case, the attorney represents the insurance company, not the victim, and has to be responsible to the interests of the insurance company. The attorney thus is obligated to not cost the insurance company a packet of money if there is no realistic chance of getting anything in return. The alternative would have been be to engage (and pay) your (her) own attorney. | Since electors are in fact free to vote for whoever they want (though don't usually deviate from their assignment), the branch of federal government that would be most involved is Congress. A constitutional amendment would be required, to repeal Article II Section 1 Clauses 2 and 4 and the 12th Amendment (i.e. eliminate electors entirely), and substitute a different method. Most of the work would be done by the states, in ratifying the amendment. [Addendum] It is true that it is constitutional to require a pledge of faithfulness (Ray v. Blair 343 U.S. 214). A bit over half of the states have laws requiring 'faithful voting', though the laws have not been enforced. Washington RCW 29A.56.320 may be typical, in that the law simply says "thou shall" with no mechanism for enforcement. Even with strict enforcement such as class X felony penalties, this cannot implement IRV. The number of electors is not proportional to population (there is the "plus 2 for senators" factor), and various other reasons why state-based electors cannot be morphed into an IRV-like system. | The constitutional provision quoted in the question has been interpreted to require that a jury trial be available to a person accused of crime by the US Federal Government. Then accused is free to waive this right, and be tried by a judge only if s/he so chooses. The accuse is also free to waive the right to a trial altogether, and plead guilty (or "no contest" which waives a trail without an admission of guilt). The provision could reasonably be interpreted to require that if there is a trial, it be by jury. But I don't see how it could reasonably be read to require trials in all cases, and forbid guilty pleas. | Yes, this is plausible. To be doctrinally precise, "jeopardy" attaches when the jury is sworn in. Once jeopardy attaches, there can only be a second trial if: The defendant is convicted of a charge that is reversed on appeal or in a collateral attack on the conviction. There is a mistrial that is attributable to the defendant or the defendant's counsel's conduct (e.g. the defendant is observed by the bailiff trying to bribe a juror with cash in exchange for voting to acquit), or is requested by the defendant or his counsel (who has not been "goaded" into doing so by the government). There is a mistrial that is not attributable to the conduct of either the prosecution or the defendant. As explained here: Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial as was addressed in United States v. Josef Perez, 22 U.S. 579 (1824). When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, 456 U.S. 667 (1982), the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." | The closest case to this is Brady v. United States 397 U.S. 742 (1970): We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty. In Brady' case, there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened Brady with a harsher sentence if convicted after trial in order to induce him to plead guilty. In Brady, had he not entered a guilty plea, he would have been risking the death penalty. The court recognized: It may be that Brady, faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty, and thus limit the penalty to life imprisonment, rather than to elect a jury trial which could result in a death penalty. They upheld the plea: Although Brady's plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty, we are convinced that his plea was voluntarily and intelligently made, and we have no reason to doubt that his solemn admission of guilt was truthful. So, even in the case where the risk of a death penalty may have motivated a guilty plea, the plea has been upheld. All of the above is with respect to actions of the prosecution. In any case, the main test is whether the defendant entered a plea voluntarily and intelligently. |
California: How long does right-of-way persist after a lane change? Suppose I am driving on a road in California with 2 lanes going in the same direction. My car is 3 car lengths ahead of another car in the adjacent lane, and both cars are going 45 MPH in the same direction. My turn signal has been on for quite some time as I wait for space to enter the other car's lane (and despite this, for whatever reason, the other car isn't slowing down. For the purposes of this question, also assume it's not speeding up either). Now suppose I change lanes, so I'm in front of the other car, 3 car lengths ahead of it in the same lane, and both cars still going 45 MPH. How long does the other car's right of way last? I.e., how long must I maintain 45 MPH? Initially, I don't know anything about the other car's stopping ability. If the other car remains 3 car lengths behind me for 30 seconds, can I assume that his reaction time is better than 3 car lengths? Does the car behind me, despite having once had right-of-way, eventually need to maintain a safe following distance? Suppose both cars remain at 45 MPH for 30 seconds, and then I slow down to turn off of the road, and I'm rear-ended. Will the lane change be a potential cause of the accident, even though it occurred 30 seconds before I slowed down? Now change 30 seconds to 20 seconds, 10, 5, and then just 2 seconds. At what point does the lane change potentially become relevant to a rear-ending case? | They don't treat right-of-way persistence at all You are required to follow the car ahead at a distance that is reasonable and prudent, having regard for both speeds, traffic generally, and road condition (i.e. curves, rain). CVC 21703. This would apply to the other driver. You must only shift lanes left or right when possible with reasonable safety and only after signaling. CVC 22107. That applies to you. If you "cut them off" such that they must make adjustments to re-acquire a distance that is reasonable and prudent, then you are guilty of 22107. If you changed lanes properly, then it is immediately and continuously THEIR duty under 21703 to maintain safe distance despite whichever lawful maneuvering you may need to do. Note that 22109 forbids you to stop or suddenly decrease speed without first giving an appropriate signal, unless there is no opportunity to give that signal. 22109 is a civil infraction that assumes accidental or negligent braking. (i.e. me going for the clutch and not remembering the car is an automatic). Intentionally brake-checking someone is a crime with risk of jail and other more serious consequences than "fine and points". | The nuisance of potentially waiting for all the traffic on the main road is a notion alien to the law. Seeing the red light, y correctly does not enter the intersection, because it would block the intersection, § 11 Ⅰ StVO. Keeping intersections clear is a general consideration, say for emergency services. Nevertheless, if safely stopping required entering the intersection, it’s not an issue here, § 4 Ⅰ 2 StVO. Stopping before entering the intersection is not a hard requirement, because the traffic lights do not regulate the intersection but an “isolated” pedestrian crossing. § 37 Ⅱ StVO concerns traffic lights at intersections. x has to yield traffic as indicated by the sign, § 8 Ⅰ StVO. Making a U‑turn or right-hand turn would be no issue, since this would not interfere with traffic (assuming properly dimensioned streets). Going straight is permissible if done with caution, § 8 Ⅱ StVO, but I would not recommend that. y might decide any moment “Eff it! I’m taking B street [Am Falkplatz].” and boom! Going left, however, is not allowed, since x had to stop short of the traffic light, which is frowned upon (blocking the intersection), but moreover it would take y’s right of way. | Once I figured out the term I was looking for was "cooling off period" a google search led to this SFGate article which seems to say, no, there is no cooling off period in California. breaking a lease, even before moving into a new home, can be a legal challenge. If you must cancel a lease before moving in, be prepared for a financial loss and possible legal difficulties. And this article There is no "cooling off" period for residential releases. In some states, a cooling off period is required for certain contracts, which give signers a window of time, typically one to three days, during which they can void the contract if they change their mind. Unless such a condition is explicitly stated in the lease or there is a rare jurisdictional law that requires a cooling period, your lease is binding the second you sign your name. So, the answer to my question is "No, there is no grace period" and that my current apartment, with the 3 day exception was just a kind offer on their part. I'd just guess because they're a large firm (they run ~80k apartments) they've learned it's better to let people go if they change their mind in 3 days than go through the trouble of forcing them to honor the lease. Interestingly, and related IMO, there is also no cooling off period for car purchases. I thought there was which is why I thought there might also be one for apartments since, at least in California, many apartments yearly rent is more than the entire cost of a car. (avg in SF is $40k a year) But, at least in California, if it's a used car and if the car costs less than $40k, the dealer is required to offer you the option to purchase a 2-day cancellation clause for around 1% of the car's price. | If you are texting while driving and you kill someone, you can expect to be charged with vehicular homicide or manslaughter with an aggravating factor. The crime can potentially carry a penalty as high as any other manslaughter charge that arises from a gross indifference to the safety of others.It could be as high as 20 years in some circumstances. That said, it's usually much less. The penalty for such a conviction will differ based on the circumstances and the remorse/attitude of the defendant; the judge has wide discretion in sentencing. The charge may differ by state from vehicular homicide, to manslaughter, but the fact that you intentionally engaged in a distracting activity is an aggravating factor that gives rise to these type charges, where otherwise you may have been able to avoid the accident or limit the injury caused. In the state I practice in most, an 18-year-old was convicted just a couple of years ago for vehicular homicide, texting while driving, and negligent operation. He was sentenced to nearly 5 years, all but 1 suspended. He was 18 and he killed someone. In MA, texting while driving is its own offense, as it is in CA. In nearly every state in the union, texting while driving either is illegal under its own statute (or one is pending in legislature), or it is prima facie proof of reckless driving if you cause injury or death. In Santa Ana, just this past August, a 23-year-old CA woman killed someone texting while driving. After a first mistrial, due to a hung jury, she was finally convicted of manslaughter and inattentive or distracted driving causing injury or death as an aggravating factor. She got a similar sentence. The NTSB has recently released a report finding that more injury occurs in the 16-30 age group from texting while driving than drunk driving, causing nearly 3,000 deaths last year and nearly 300,000 injuries. There is no doubt with these statistics why nearly every state has either already regulated/banned this practice or has legislation pending. See these texting and driving statistics. | 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. | 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. | No. Such a marking is equivalent to a solid double yellow line, and passing is not permitted. These raised pavement markers are known as Botts' dots and are commonly used in California together with, or instead of, painted lines. A line of evenly spaced dots is meant to signify a solid line. Since here there is a double line of dots, it is a solid double yellow line. If passing were allowed, you would see a single yellow dashed line, which would be indicated with dots by a group of 3-4 evenly spaced dots, then a longer gap, and repeating. California Vehicle Code section 21460 provides as follows: (a) If double parallel solid yellow lines are in place, a person driving a vehicle shall not drive to the left of the lines, except as permitted in this section. [...] (e) Raised pavement markers may be used to simulate painted lines described in this section if the markers are placed in accordance with standards established by the Department of Transportation. The relevant standards are found in the California Manual on Uniform Traffic Control Devices (MUTCD). On page 655, Detail 23, you can see a diagram showing exactly this configuration of dots and stating that it is an alternative to a solid double yellow line. It appears that current policy is to phase out the use of Botts' dots, so this question may become moot in the future. | "Hit and run" isn't a precise legal term, but there are laws against what many people call "hit and run" in California. §20002 of the Vehicle code covers property damage without injury, and violation of the section is a misdemeanor possibly resulting in up to 6 months in prison and a $1000 fine. If you cause property damage either while driving or because it was parked and became a runaway vehicle, you are required to notify the property owner. If the owner cannot be located at the scene, you must leave your contact information and a description of the circumstances, and you must notify the police. It is irrelevant whether this was on the street or in a parking lot, because the law will "apply upon highways and elsewhere throughout the State, unless expressly provided otherwise". |
If applied in the United States, what is the most obvious legally functional difference between the British and American "mirandizing" phrase? In the United States, police must read your rights regarding police questioning as shown below1: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?” In the United Kingdom, there is something similar read out to arrestees like so (taken from an analog question in English stack exchange): You do not have to say anything, but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence. There are many things floating around on the internet but I wanted to know from here: If applied in the United States, what are the main functional differences between the British mirandizing phrase and the US one? | So the most obvious is that the U.S. Miranda Rights specifically mention right to legal counsel and right to state provided legal counsel (Public Defenders) if you cannot afford legal counsel (Contrary to some opinions, these guys are very good at their job... it's just that they are also very over worked and private industry pays better). While the right exists in the U.K., the U.K. version of the required reading of rights only speaks to right against self-incrimination, which, if you want a difference is a good place to look. In the self-incrimination clauses, the U.K. and U.S. versions are very different. The U.K. right is a qualified right where as the U.S. is an absolute or unqualified right. This is a distinction which sounds silly upfront but is very serious in how things will transpire. Suppose that you are arrested for the murder of your spouse. You definitely did not do and the "one armed man" definitely did. Either way, you remain silent during interrogation. At trial, your defense is "It wasn't me it was the one armed man" and you intend to present evidence of this. In the U.S. this would be permitted, no further questions asked (or at the least, defeated by other means unrelated to you giving the cops the cold shoulder). In the U.K., this would be first be challenged by the prosecution with "Why didn't you say this when you were arrested?" and your silence on this matter will be used against you. In fact, asking that challenge in the U.S. is very inappropriate, as was recently seen in the Kyle Rittenhouse trial, where the Prosecution did ask that up front to Rittenhouse, prompting a scolding from the judge out of view from the jury. The reason for this is that in the UK there are more strict rules placed on cops during interrogation than there are in the U.S. (In the former, cops cannot lie to you about the facts of the case and they cannot interrupt your statements to them once you start to respond. This is par for the course in the U.S. for cops. In fact, in the U.S., shouting "It was the one armed man" on arrest can do more damage than just shutting up until you're before a judge and jury since that lets the prosecution use the implausibility of a one armed man against you (in both nations, statements that are against your interest do not violate hearsay rules, thus, the cops will only use such a statement against you... it's your job to prove it true or at least plausible enough to make a jury doubt the cops are right.). Also note that this is England and Wales jurisdictions only. Scotland, having its own legal system, retains the right against self-incrimination as an absolute right. Also a big obvious one but the read rights would not be called the "Miranda Rights" by the police or legal community (it may be, by the crooks they are arresting who have no clue that the TV version might be the U.S. one since it's more likely to get shown there than on U.K. TV.). In the U.K. they would be called "Standard Cautions" or "Reading the rights". The U.S. name derives from the SCOTUS case Miranda v. Arizona which was the ground-breaking case that made this required by all police when interrogating a suspect. Additionally, each state has their own version, which generally reads the same way (they explain your 5th and 6th Amendment rights to silence and an attorney) and may vary on asking if you choose to waive the rights upon receiving an affirmative answer that the rights were understood ("With these rights in mind, do you wish to speak to me?" is the proper phrasing). They also are read from cards (business card to index card sized) where the right is printed in English and Spanish and the suspect must sign it as part of acknowledging that their rights were read. | In your example, there is nothing that indicates to me that there is a "particularized and objective basis for suspecting the particular person stopped of . . . criminal activity". If you have described the totalilty of the circumstances, the officer does not have the right to arrest or detain the individual. To your broader question about how specific descriptions must be in order to provide a basis for a stop, the assessment is based on the "totality of the circumstances". For example, an anonymous tip that "a woman would drive from a particular apartment building to a particular motel in a brown Plymouth station wagon with a broken right tail light [carrying cocaine]" was enough to warrant a stop. Alabama v. White, 496 U.S. 325 (1990)1 In contrast, the court "determined that no reasonable suspicion arose from a bare-bones tip that a young black male in a plaid shirt standing at a bus stop was carrying a gun." Florida v. J. L., 529 U. S. 266 (2000) The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” Navarette v. California 572 U.S. ___ (2014) In any case, a crime must be part of the particularized suspicion. 1. This case focused on the indicia of reliability necessary for an anonymous tip to support a reasonable suspicion, but it is also an example of a degree of non-specificity in identification of a suspect. | You don't know. You can't know. And you can't force the officer to tell you. Detention Status As a practical matter, you have no way of knowing if you are compelled to follow an officer's order because you are being detained unless the officer volunteers that information (your detention status) which they are not compelled to disclose and have every incentive not to disclose. Consider the situation when the officer does not have reasonable suspicion do detain you. If the officer instantly informs you that you are "free to go" then you are likely to leave and end the encounter immediately. However, if the officer says nothing, then you might stay and inadvertently say or do something that would give the officer reasonable suspicion to detain you from that point forward. Your behavior during that detention could lead to probable cause, arrest, etc. Every officer knows they have nothing to gain by being quick to tell you you are free to go. Deceptive Conduct To compound the issue, police encounters are particularly problematic because police officers have a lawful right to engage in deceptive conduct during an investigation including but not limited to lying. You, on the other hand, can be prosecuted for lying to the police conducting an investigation. (See this article for more information.) Hobson's Choice Therefore, all things considered, police encounters present a Hobson's Choice. Either comply with every order in an effort to end the encounter quickly. Or try to press the officer to determine whether you are "being detained" or "free to go." The former course of action voluntarily cedes some of your rights. The latter risks "provoking" the officer into making your encounter more difficult, painful or costly than it otherwise might be. Never Consent to Searches That said, you are never under any obligation to consent to a warrantless search of your home or vehicle. Typically, saying, "I do not consent to searches." is usually sufficient if asked. Evidence obtained from warrantless searches is barred from being used at trial unless you waive this right by consenting to the search. See this question (and answers) if you are concerned about the officer falsely claiming you gave consent if you didn't. Never Talk to the Police As a legal matter, talking to the police can never help your case in court. Anything you say to the police that might help your case (i.e., exculpatory) is not admissible as evidence because it's hearsay. On the other hand, anything you say to the police can and will be used against you. In fact, even if you are completely innocent of all crimes AND you are completely 100% truthful to the police, you can still give the police all they legally need to convict you of a crime simply by talking to them. Whereas, without your statement, they would not have had sufficient evidence to convict. See this Youtube video for more details and examples of how this can and does happen every day. Practical Matters The above analysis presents the reader with some practical concerns. You don’t want to risk being harmed by an officer in fear for his safety. You don’t want to be handcuffed and taken to the police station if you can avoid it. You must obey all unconditional commands of a peace officer. It does no harm to inform the officer that you are willing to comply with all unconditional legal commands and ask him or her if a given command is, in fact, unconditional. Some attorneys go in the opposite direction from the "never talk to the police" rule and advise that, say in the case of a domestic violence dispute, the best course of action is to answer police questions matter-of-factly, never lie and never admit guilt. That course of behavior can avoid a potential trip to the police station in handcuffs in the back of a police car even if you are never ultimately arrested. TL;DR: Police encounters are tricky. It's difficult to know what to do. The best course of action is to educate yourself about your rights and the law and apply judgment and common sense to guide your behavior to achieve the best outcome. I am not an attorney. I am not your attorney. This answer is not legal advice. Please consult an attorney to obtain proper legal advice. | You know that a judicial proceeding has been filed against you when you are "served" with notice. In fact, legal proceedings cannot generally proceed without somebody swearing that you were served notice. If a criminal complaint is being pursued against you then you might also learn of this fact when an investigating law enforcement agent contacts you to question you or arrest you. "Filed a case" could mean all sorts of other things. For example, it could be that they filed a police report, or filed a complaint with some company or non-law-enforcement entity. It could be that they have in fact filed a claim in a court of law and whoever is serving process just hasn't been able to find you. In any of these events I don't know of any way that you could proactively determine that without knowing exactly where and how the "case" was "filed." Actually, if a criminal complaint was filed against you and approved then a court in another state could have issued a warrant for your arrest. Contact your local police and they should be able to do a nationwide search for open warrants on you. Police will not typically release information on "open investigations." So even if you knew the exact agency where it was filed they may not tell you anything. If they decided not to investigate it then you might have a right to request the complaint under open-records laws – that depends on the state and the agency. | Special regimes For some kinds of questions there are special presumptions or forms of evidence that are specified by statute. For example, in Canada and the United States, registering a copyright creates presumptive proof that the copyright exists and is owned by the registrant. In Canada, breathalyzer results are conclusive proof of the blood alcohol concentration if certain conditions are met. Some of these regimes are not subject to challenge: they are legal facts even if they are not objectively true (e.g. the breathalyser results). Others create presumptions that can be overcome by contrary evidence (e.g. copyright ownership). The default: present relevant evidence, including testimonial evidence But outside of special regimes, you prove a fact by introducing evidence. The default is that all relevant evidence that bears on a material fact is admissible. Evidence is relevant when, if is were to be accepted, it would make the fact in issue more or less likely to be true. Evidence comes in many forms: testimony of the parties or witnesses, documentary evidence, physical evidence, expert opinion evidence. If you are wondering, "How do I prove X?" Ask yourself, why do you believe X? Or, how do you know X? Or, how has the event X left its mark on the world? Whatever has led you to believe X probably is the evidence that you would want to introduce to the court to help prove X. Perhaps you saw X: you can tell the court you saw X. Perhaps you took a photo of X: you can present that photo in court. Perhaps you have a receipt for X: you can show that receipt in court. Perhaps X is a proposition about your own actions: you can tell the court about those. Obtaining the evidence Evidence can be obtained from the other party during the discovery process, or from third-parties using subpoenas, subject to objections relating to relevance or privilege. Not all (potentially) relevant evidence is admissible However, some evidence will be inadmissible despite it being potentially relevant. I will only present a few categories, some very general and some more specific: hearsay (unless it falls within an exception to the hearsay exclusion), privileged material (unless it is a case-by-case privilege or a discretionary privilege and the person seeking to admit the evidence demonstrates to the judge that it should be admitted), sexual history evidence of a sexual assault complainant when it will be used to support an inference that the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge or is less worthy of belief (this is because it has been recognized as not relevant for this purpose), material that was obtained in contravention of the Charter and where the court has decided that the remedy for the Charter violation is exclusion of the evidence (in the United States, there is stricter, exclusionary rule), there are many more. There are also some meta-rules about the evidence that may be used to impugn a witness's credibility, themselves at trial to provide evidence, but for now I am leaving those out of this fairly summary answer. Weighing the evidence The trier of fact (the judge or a jury) then is to weigh all the admissible evidence, including by weighing the witness and party testimony according to its credibility and reliability after testing through cross-examination, to come to a conclusion on the ultimate question(s) at issue. | The Sixth Amendment to the US Constitution guarantees assistance of counsel for the accused in all criminal prosecutions. The Fifth Amendment protects a person from being forced to self-incriminate. Taken together, in Miranda v. Arizona, the Supreme Court interpreted this to mean that police cannot continue interrogation after you have requested an attorney. Laughter is actually not a violation of your rights, the violation would come from continuing to interrogate you, or in prohibiting you from contacting your attorney or not providing an attorney if you cannot afford one (via the public defender's office). | I haven't found a recent case like this where it constitutes evidence. Military members didn't have an express right to remain silent until somewhere in the 1950s, so one chances are there might be cases prior to that point. The present right is codified in 10 U.S.C. 831, which is Article 31 of the UCMJ. That said, there is certainly a well documented adverse inference effect. While jurors aren't supposed to take the silence into account (e.g. when a defendant elects not to testify or exercises a right against self-incrimination), it's a difficult thing to do, practically speaking. | In a deposition, attorneys are supposed to keep their objections short and refrain from making an objection that indicates to the witness how he should answer. A question might be objectionable because it lacks foundation, because it is compound, because it calls for speculation, etc. Example 2, for instance, could be said to assume that Ms. Redacted was involved, and I might not want my client to discuss how he would act in that situation. Some attorneys in that situation might say, "Objection, assumes that Ms. Redacted had anything to do with this, which you haven't proved, and it's impossible to say what would have happened under circumstances that never happened." This gives my client a pretty clear signal that he ought to make clear that Ms. Redacted wasn't around, and that he should try to avoid getting pinned down on any questions about what he would have done if she had been. This practice -- known as "a speaking objection" -- can be used to signal to the witness how best to answer, and it leads to huge fights in a deposition. To avoid those fights, courts have developed a practice of requiring lawyers to simply "object to the form," rather than coaching the witness. That puts the objection on the record so it isn't waived, and if it's truly problematic, the parties have an opportunity to explain in greater detail after the deposition is concluded. |
Is this "Bait-And-Switch" defence possible? I was kind of inspired by a television programme I was watching recently - I won't spoil it by saying its name. Let's say my friend committed a murder and wanted to get away with it. So together we conspire to frame me for the crime. By subtly "allowing" the evidence to point to me, all the time I protest my innocence to the police, but I am careful never to do so to their absolute satisfaction, e.g. acting like I'm unable to explain certain pieces of key evidence. After much investigation, they are confident that in spite of my protests, it was me, so we go to trial where I plead "Not Guilty". Then, during the trial, a new piece of evidence is suddenly "found" that proves I could not have possibly committed the crime! (e.g. Someone who happened to be recording a video on their phone with a clock in the background as I walked past or something, showing me somewhere else at the time of the murder). So I'm acquitted. So do the police just give up now? Was that their only chance? Or will they start a new investigation to try to find who really did the crime, with another possible trial of another suspect? I've tagged several countries that I'm familiar with, but if the answer is different in different jurisdictions then that would be interesting too. For those curious the show I was talking about is You Don't Know Me Not exactly the same thing that I'm asking about happens, but along similar lines. | 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. | canada Evidence of offences other than the one for which the accused is being sentenced is admissable at a sentencing hearing, even evidence of untried offences. R. v. Edwards, 2001 CanLII 24105 (Ont. C.A.): [39] There are statutory provisions that do permit the use of evidence about the offender, even though that evidence also discloses the commission of other crimes. First, s. 718(c) and (d) of the Criminal Code set out as two of the objectives of sentencing: (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; [40] Neither of these objectives can be fairly achieved through sentencing without knowing something, and perhaps quite a bit, about the background and character of the offender. The Crown, in this case, in effect put its case for admission of this evidence on the need to separate this respondent from society. The sentencing judge can consider such evidence of untried offences. (R. v. Jordan, 1991 CanLII 203 (B.C.C.A.)) When there is a dispute about any fact that might aggravate the sentence, the Crown (prosecution) must establish that fact by proof beyond a reasonable doubt. Criminal Code, s. 724(3)(e). See also R. v. Roopchand, 2016 MBCA 105: The first ground [of appeal] is whether the sentencing judge erred by taking into account the accused’s pending charge for an untried offence when imposing sentence. The use to be made of evidence will be informed by the purpose for which it is to be admitted. With respect to what use can be made of evidence of untried offences at a sentencing hearing, the case law is clear: while such evidence cannot be used for the purpose of punishing the accused, it is admissible when its purpose is limited to shedding light upon some aspect of the accused’s character and background which is relevant to the objectives of sentencing being considered by the judge R. v. Angelillo, 2006 SCC 55: The fact that Mr. Angelillo had been charged with two new counts of fraud, both of which were allegedly committed while he was waiting to be sentenced, was obviously relevant to the assessment of the danger his release would represent for the community. In Angelillo, the judge could even have "postponed the sentencing hearing to a date after the interim release hearing regarding the new charges in order to be better informed of the risk resulting from the subsequent act." | The appeals court has found that the county court judge made a decision that was consistent with the evidence that was presented at trial. As such, the decision is sound. It appears that the defendant tried to present additional/different evidence or different arguments about the law in the appeal than they did at trial - this is not permitted. As to responsibility, the defendant and their legal team were responsible for deciding how to run their case and what evidence to present and what arguments to run. What evidence to present and how to present it and what submissions to make on the law is a tactical decision for each party. You can get it wrong. That doesn't let you try again on appeal. If your barrister has been negligent, and that directly caused you to lose, you can sue your barrister. In terms of interpreting a particular paragraph of a judgement, the appeals court may or may not make comment on a particular paragraph but the reasons, while important, are not really subject to interpretation other than that. A judgement will give orders, these should be very precise and not open to interpretation - things like "the defendant will pay X to the plaintiff" or "the case is dismissed" etc. | An appeal to ignorance asserts that a proposition is true because it has not yet been proven false. That is not in any way the situation here. The defendant knows if he/she has or has not so the only available answers under oath are "yes" or "no" - the jury knows this too so any other answer will be seen as disingenuous. However, this information (affirmative or negative) is off limits to the jury as it could prejudice their decision, hence the mistrial. A quick judge could instruct the defendant not to answer and instruct the jury to disregard the question but if a conviction results the defence team could use the fact that it was asked as grounds for appeal. A judge must decide if the interests of justice are better served by a retrial or a tainted conviction. | Bob will be convicted if he is found guilty beyond reasonable doubt. Now it is a logical fact that he cannot be guilty of both crimes, but it is entirely possible that his first conviction was incorrect and he is guilty of murder. His defense would point out that the first conviction creates reasonable doubt about his guilt in the murder case. The prosecution would have to show how it doesn't, for example by finding a police officer who forged the evidence in the first case. And then the defence would point out that the fact that evidence against Bob was forged once means reasonable doubt for the evidence in the second case. Fact is, the prosecution must show guilt beyond reasonable doubt for the murder, and the fact that Bob was found guilty beyond reasonable doubt for a different crime, and that he cannot have committed both crimes, makes the prosecutions task a lot harder. Now what if the prosecution finds a second criminal who is an exact visual match for Bob? On the positive side, this would explain how there are two videos apparently showing Bob committing two crimes in different places. It would put the prosecution into the difficult position to have to prove which one is the murderer. And they can't say "Bob is in jail already, so it must have been Bill", because now Bob's first conviction looks very unsafe. | Being misunderstood is not a crime. You could concoct scenarios where any number of statements could be a crime if interpreted unfairly. "I went to Georgia last weekend." "I choose to believe you mean the country instead of the state, and you don't have a passport, therefore you admitted that you went to a foreign country illegally!" The police would be free to investigate, but they wouldn't be able to get a warrant or arrest him based just on an ambiguous statement, let alone obtain a conviction. Of course, if the younger sister decided to accuse him, and the older sister decided to lie about having a relationship with him, that puts the statement in a whole other context - but if someone is falsely accusing you and someone else corroborates their story, you're probably in trouble no matter how exactly that came about. | The jury would never hear the recording The recording and its provenience would be provided to the prosecution who would, rightly, have issues with its admissibility. The defence and prosecution would make submissions on this to the judge, normally well before the trial date and the empaneling of the jury. If the recording had genuinely emerged during the trial, such submissions would be made without the jury seeing them. The submissions would typically be in writing rather than verbal. If the judge decided the evidence was inadmissible the jury would never see it and never know of its existence. If the jury somehow found out about it anyway, this would be grounds for an immediate mistrial and we would start again with a new jury. Illegally obtained evidence is not automatically inadmissible Hong Kong is not the United States - admitting or excluding illegally obtained evidence is at the discretion of the judge based on where the interests of overall justice are best served. In any event, the absolute prohibition in the US applies only to prosecution evidence - evidence illegally obtained by the defence is subject to the same rules as in Hong Kong; the judge decides. | First, if the police officer had reasonable cause to believe that a crime was in progress then the search would not be illegal in the first place. However, let's assume the search was illegal. Normally the evidence would be excluded under the exclusionary rule. However, there are two exceptions known as the independent source and attenuation doctrines. The evidence of the police officer as to the imprisonment would be excluded. However, the evidence of the victims is independent of that illegal search and their testimony would be admissible. Further, that testimony would allow independent discovery and admissibility of any physical evidence in the property. However, if the victims were dead, then there would be no independent discovery and none of the evidence would be admissible. |
A motorcycle hit my car. He was speeding, I made a left turn on a double continuous line. Who is liable for what? I was driving uphill on a 35mph limit road heading to a church wedding (Connecticut). Near the top of the hill, the parking lot was to the left. I signaled to turn and since no one was coming from the opposite direction I started making a left turn. I was driving very slowly looking to see if the parking lot was full when I heard the bike coming down the hill. It's one of those street racing bikes, very fast. He was about 90 feet away when I saw him and he did not slow down, I think he just tried to avoid me and wiz by. He ended up crashing the side of my car, in the back seat. He was taken to the hospital and had surgery on his arm but other than that he was ok. Police came and investigated the scene for a couple of hours. He was speeding and did not have a license. However, where I turned to enter the church parking lot was a double continuous line in the road, meaning I could not turn left there. Because of these circumstances, what should I do? Am I liable for his hospital bills and his motorcycle? | The Ct. driver's manual p. 44 says that "Solid yellow lines may be crossed to make a left turn to or from an alley, private road, driveway, or street", and also "A double solid white line prohibits lane changing" (turning left is not the same as lane changing). In Washington, there is a fine of $136 for crossing a double white line, but this is related to the hyper-limited access pay lanes on the freeway. I have not found anything in the Connecticut code that indicates an analogous absolute prohibition against crossing a double white. In lieu of a statutory prohibition, you may succeed in arguing that it was a legal turn, as long as the turn was in compliance with the rest of the law, e.g. you signalled, you yielded right of way (which essentially means he was driving so fast that he appeared after you started to turn). His speed may be contributing negligence that prevents you from being liable, so it just depends. | It may depend on the jurisdiction (although I can't readily think of one where this is not the case) but deliberately, recklessly or negligently putting a burning object next to someone else's property knowing that there is a real risk of it catching fire (and going ahead with it anyway) will almost definitely make one liable: especially if there is an ulterior motive. In england-and-wales This would be called arson - causing criminal damage by fire - an offence contrary to section 1(3) of the Criminal Damage Act 1971 Cross posted with the jurisdiction defining comment | The nuisance of potentially waiting for all the traffic on the main road is a notion alien to the law. Seeing the red light, y correctly does not enter the intersection, because it would block the intersection, § 11 Ⅰ StVO. Keeping intersections clear is a general consideration, say for emergency services. Nevertheless, if safely stopping required entering the intersection, it’s not an issue here, § 4 Ⅰ 2 StVO. Stopping before entering the intersection is not a hard requirement, because the traffic lights do not regulate the intersection but an “isolated” pedestrian crossing. § 37 Ⅱ StVO concerns traffic lights at intersections. x has to yield traffic as indicated by the sign, § 8 Ⅰ StVO. Making a U‑turn or right-hand turn would be no issue, since this would not interfere with traffic (assuming properly dimensioned streets). Going straight is permissible if done with caution, § 8 Ⅱ StVO, but I would not recommend that. y might decide any moment “Eff it! I’m taking B street [Am Falkplatz].” and boom! Going left, however, is not allowed, since x had to stop short of the traffic light, which is frowned upon (blocking the intersection), but moreover it would take y’s right of way. | The problem with these situations is that you don't get to choose how it goes once it's in the hands of law enforcement. Possible scenarios on bringing a complaint to police or prosecutors: "So you guys had a dispute, but everyone's OK now. We're not pursuing this; we have more important things to do." "Hmm ... that could have gotten ugly. We'll do an investigation and check the records of both you and the bus driver to see if either of you have any priors." "We're trying to make this a more bike-friendly city. And we're cracking down on CDLs especially. Thanks, we'll investigate that driver." "Thanks for the evidence. You're going to get charged with criminal mischief, and the bus driver is going to get charged with assault." Of course, you could also send a complaint to the bus company. They are (hopefully) more likely to worry about what their drivers are doing. The DoT is also concerned with CDL safety, so you can file a complaint with the FMCSA NCCDB. | You can't sue her for not having insurance. You sue for the damage you suffered. You can name her as a defendant alongside her son on the theory that she contributed to the accident by letting her son use the car, and then let the judge sort out who gets landed with the liability. Depending on the rules in your jurisdiction you might have to pay her travel expenses and/or lost wages if the judge decides she wasn't to blame (and the same for her son, but that sounds like a slam-dunk). However you might be better off going for victim restitution. That way the order gets made as part of the criminal case against the son. Less hassle for you, and the state authorities are responsible for actually getting the money out of them. Edit: It turns out that Idaho has the Family Car Doctrine in its law, so the mother is legally liable for her son's accident (thanks to ohwilleke for the pointer). | Maybe, but probably not, although this would be a question of fact to resolve on a case by case basis under broad legal standards by a jury, and would also depend upon the state where it took place, and upon the nature of the employer of the paramedic. The hypothetical facts in this case are rich enough and ambiguous enough that the case could go either way depending upon how it was presented and what could be proven at trial. This is a case it would be good to take to a medical malpractice/personal injury lawyer in the jurisdiction where it happened to be evaluated. Usually a PI lawyer would not charge you for doing so or would ask for only a nominal fee. Additional factual investigation would probably also be necessary regarding some of the key facts identified below. It's complicated and there are multiple issues presented in this case where the law is not uniform from state to state. The general rule is that a medical professional has to carry out the delivery of medical care to a patient with the reasonable care that would be taken by a medical professional of that type. If the medical professional fails to take reasonable care, and that negligence failure to do so causes injury, then there is civil liability for medical malpractice. A threshold issue would be whether a medical professional-patient relationship was established. This would be a question of fact for a jury and would be a question upon which various potentially applicable state and federal laws would often not be uniform. On these facts, it could easily go either way. In federal court and in a majority of state courts (although there is variation from state to state) you need to know the name of the paramedic you dealt with who provided the bad advice to bring a successful lawsuit before suing. In a minority of states, you could sue first and get the name of the paramedic in discovery through the court process from the hospital after the lawsuit was commenced. The standard of reasonable care liability in this case would be judged by the standard of a reasonable paramedic, not a reasonable doctor. But, often states would have statutes that would limit the liability of paramedics in these situations to liability for gross negligence (which the facts in the question would probably not suffice to show), but not for ordinary negligence (which a jury could come out either way upon and which would hinge heavily on expert testimony). These tort reform type laws differ considerably from state to state. Whether or not particular conduct was negligent or grossly negligent, is a question ultimately decided by a jury under very broad and general legal standards after the fact in a trial, based largely upon expert testimony, on a case by case basis, unless the facts are unequivocally clear one way or the other, which is rarely the case. With my layman's level of knowledge about what a reasonable paramedic should be able to diagnose, I could see this determination going either way. Two cases with identical facts in front of the same judge in separate trials, in which juries are presented with exactly the same evidence could come out differently. The resolution of one case of the question of whether a particular act constituted negligence giving rise to liability is not binding as precedent and is not admissible as evidence in another case (subject to a narrow exception called "collateral estoppel" which applies when the same individual is sued by multiple people for the same conduct in different lawsuits that have resulted in final orders resolving key questions of fact that the lawsuits have in common). Many states would require that someone suing the paramedic have a medical professional certify that the paramedic's actions constituted legal negligence before the suit could go forward in a court. If there is a medical professional-patient relationship, and if the medical professional was found to have negligently caused injury, the medical professional's employer would have vicarious liability in some (but not all) states under a respondiat superior doctrine. Usually, the paramedic at an ER would be an employee of a private EMS ambulance company or a municipal fire department, and not of the hospital that runs the ER. But, some hospitals have their own in house paramedics. Also, some hospitals are run by for profit or nonprofit private companies, some are state or local governmental agencies, and some a federal government agencies. Usually only a small minority of the medical professionals in a hospital are employed by that hospital, and most of them merely have "privileges" to provide medical services for which they bill patients separately while working for their own professional corporation through which they are self-employed. Legally, the hospital itself is more like a hotel or a WeWork office space than to being a firm that directly provides medical services, although it isn't quite that black and white. Holding the ER directly responsible for failing to have good triage policies, as opposed to holding the paramedic responsible and assigning vicarious liability to the employer of the paramedic, would be very difficult, although not necessarily impossible if the ER had official policies that fell far below the standard of care for emergency room triage. It would be very uncommon for an ER to have bad policies of this type. Typically, ERs are only held directly liable for bad triage policies when, for example, they have a policy of not evaluating at all someone who does not have health insurance, which is a practice expressly prohibited by federal law. If the paramedic's employer was a government entity such as a fire department or a government owned hospital, the paramedic would be entitled to absolute immunity from civil liability under the doctrine of sovereign immunity, unless an exception applied. Usually there is an express exception to absolute immunity for medical malpractice liability by a medical doctor who has established a doctor-patient relationship with a patient, when the medical doctor is employed by a state or local government, usually there isn't when the doctor is employed by the federal government. But these laws differ from state to state in fine details that matter in a case like this one regarding whether the exception to immunity from liability is limited to medical doctors or applies also to paramedics. Causation would also be an important factual issue for trial. There is liability only to the extent that taking a non-negligent action could have prevented the harm. If you are infected with COVID, one common consequence is a stroke, and if someone had a stroke while infected with COVID, the case that taking them to the ER would have prevented the stroke from doing serious damage in the long run is weaker. On the other hand, guessing that a stroke was really something else, might or might not be reasonable. The injured person would also have to prove that the EMS response occurred at a time within the roughly 1-2 hours after the start of a stroke when it is possible to take medical action that could do something about a stroke. If the stroke had already happened an hour and a half later and it was rush hour and would have taken half an hour to get to the nearest hospital, causation might be absent and there would be no liability. There would be a legitimate question of fact over whether there was an actual diagnosis and treatment, or whether there was a refusal to get treatment. The reasonable care test is a balancing test. It takes into consideration not just the potential benefits of taking action, but also the cost that would be incurred if action was taken, and the downside risks of a proposed action. The paramedic's concerns about getting a COVID infection at the ER when the person responded to didn't appear to have it at the time would make the cost of a false positive diagnosis higher and would thus influence what would constitute reasonable care in this situation as the jury applies the relevant legal test. Liability would be evaluated based upon what the paramedic reasonable understood he was being told. This would be a question of fact for the jury. It is likely that different people who were present understood what was being said differently. Even if bystanders understood what was being said and meant, what matters is what the paramedic reasonably understood was being said and meant. Given the communication difficulties involved, that question could go either way. | The fault lies with the people who vandalized your house. In general, whoever causes you damage is responsible (liable) for that damage. This is true whether or not you are selling your house, having guests over, letting a friend stay over for a night or a week, or whatever the circumstance is. Insurance is there to cover many such losses: if a friend trashes your house in a drunken rage, your insurance will cover the damage, but they will invoke the doctrine of subrogation whereby they get to go after the friend, and you have to cooperate. In a situation where nobody has a clue who did the damage, the only possible way that the agent has any responsibility is if they were negligent in their duty to take care of the house. For your specific case, you'd need to discuss the forensic facts with your attorney. But generally speaking, the issue would be whether the agent had breached his/her professional duty of care, which is best understood as comparing his actions (or lack) compares to actions of other professionals in the same circumstance. If a house has 3 or 4 sets of visitors simultaneously, it is really not possible for an agent to supervise all of them at once. So the question would be, was this the result of one concentrated vandalism attack, or serial vandalism. The former is more in the realm of "stuff happens", and the latter is indicative of an endemic lack of care. To repeat, the fault lies with the miscreants who vandalized your house. You, or your insurance company, may nevertheless have to bear the financial burden. Your insurance company will certainly have an interest in spreading responsibility to the realty firm, if warranted by the facts. | 40km/h There is no ambiguity. The speed limit on the through road is clear and the speed limit on the side road is irrelevant. The fact that Bob may be legitimately unaware that this is the speed limit doesn’t matter either. If you want to ask if Bob has a defence if issued with an infringement notice, please feel free to post a new question. |
Are gift cards considered currency or an object? In the eyes of the IRS, are gift cards viewed as an object or as currency? Like if I were to accept gift cards as payment for items I sell in an online store, am I accepting dollars or am I trading property with my customers? Do they differentiate between a physical gift card and a 'virtual gift card', as in an identification code that operates exactly like a gift card, minus the physical plastic card with a magnetic strip. | In the eyes of the IRS, income is income It doesn't matter if that income is in the form of dollars, or gift cards, or red kidney beans, so long as you pay the correct tax on the income the IRS is happy. | Since sales are in dollar and the OP does not specify a jurisdiction, I will assume Washington state US. You may need a business license, depending on the municipality. There are various permits required for sale of certain wares, such as food, explosives or poisons, but otherwise no special municipal permits are required. A state money transmitter license is required, and there are a number of bond and auditing requirements that also have to be obeyed. The state has a website which implies the pertinent restrictions, but does not actually explain them or how to comply: you would need to hire a lawyer to determine what you have to to to be legal. Those restrictions are not limited to flea markets, they regulate all bitcoin sales in the state, including internet and yard sale. | If the situation described is accurate, then maybe First, let's deal with the implicit assumption that sales tax is not payable on gifts. Whether that is true or not depends on the law in your jurisdiction. For example, in australia there is no Goods and Services Tax (GST) payable on a gift because a gift is not a "supply" under the law. Technically, a value-added tax like the GST is not a sales tax but close enough. However, exchanging a "gift" for something of value (airline points, for example) is not a gift. Of course, Australian States and Territories levy Stamp Duty on the transfer of a vehicle's registration, and this is calculated on the sale price or the market price whichever is the greater. Also, technically, that's not a sales tax either. If it's a tax avoidance scheme, then no and it's a crime Assuming that there is no sales tax payable on a gift; if John and David entered into this arrangement (not a contract because of its illegal purpose) to avoid tax, then tax is payable and they are now criminals. If the relevant tax authority learns what happened and decides to investigate, then John and David might have some explaining to do. If David can show that he has routinely given John large cash gifts on John's birthday, then they may convince the authority not to prosecute. If they can't, then they get to try to convince a judge. It is not atypical for tax law to reverse the onus of proof: the government doesn't have to prove tax is payable, John and Dave have to prove it isn't. | I would imagine they are yours and were always yours. You bought them. You intended to either give them to the company as a gift, sell them to the company or sign them over to the company as part of your initial capital contribution. Without a company none of those can happen. | When does it become illegal to exchange bitcoin for cash? When the transaction purposefully skips the controls in place regarding anti-money laundering. Generally speaking, the issue is not the mere involvement of cryptocurrency in a transaction, but the crimes a wrongdoer seeks to camouflage or conceal by means of cryptocurrencies. Such crimes typically involve money laundering, identity theft, stolen card numbers, and the like. As quoted in one of the links you provide, "[t]he use of bitcoins in the transactions is a new technological flourish to this very old crime". Is there any direct source or any laws with numbers? Apropos of your first link, mentioning that "a Florida judge threw out money transmitting charges against a bitcoiner" (see also here), I will point out that the court's dismissal of charges against that defendant has been reversed early this year. See State v. Espinoza, 264 So.3d 1055 (2019). Although the judges' narratives of a case are questionable and/or sloppy and to be taken with a grain of salt, the appellate decision cites language from Florida legislation as applicable to virtual currencies (and, impliedly, cryptocurrencies). You will notice that the focus in the Espinoza decision is the interpretation of Florida Statutes in its sections 560.125(1) and (5)(a) (regarding unauthorized vendors), and 560.103(21), (29) (defining monetary value as "a medium of exchange, whether or not redeemable in currency"). As usual, each legislation may present subtle and/or fundamental variations. For instance, the court in Espinoza at 1065 identified that federal law is inapplicable there in that 31 C.F.R. § 1010.100(ff)(5)(i)(A) contemplates that "the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means" (emphasis added), and Espinoza's transaction(s) did not involve a third party. By contrast, the Florida statute does not allude to third parties in that transmission of monetary value, hence preventing the statutory sanctions from being preemptively foreclosed in the matter of Espinoza. What about when someone buys with stolen money or money from illegal proceeds. Did you commit a crime if you sell bitcoin to someone and the money is stolen, or the gift cards are stolen? That also depends on the jurisdiction and the facts of the case. In Espinoza, he was allegedly informed that the cash he received (or was about to receive) in exchange for bitcoins "derived from engaging in illegal activity and that [the buyer] was planning to use the bitcoins to engage in further illegal activity", Espinoza at 1058. The court highlighted the State's argument that "dismiss[ing] a charge of money laundering is improper because money laundering requires intent" (emphasis added), which is sanctioned by section 896/101(3)(c). | To avoid criminal penalties in the U.S. (18 USC 473 and related general provisions of the federal criminal code in Title 18 of the United States Code), the suspected counterfeit status must be disclosed, and the seller must be able to reasonably determine that the buyer does not intend to pass off the bills as true and genuine (otherwise there would be potential accessory or conspirator liability for the counterfeiting conduct of the buyer). Counterfeit currency may be sold as an object, but not as currency or as a tool for someone else to engage in counterfeit currency offenses. | If you were to seek legal recourse for breach of contract (their Terms and Conditions), the best outcome you could hope for would be "making whole", and since they have already offered this a court could award you what the retailer already offered, but make legal costs on both sides the plaintiff's liability (ie. you), since you could have taken the offer and avoided court. The Terms and Conditions associated with the discount code mean that you won't be able to return the gift cards for cash. It will be argued that by using the code, you agreed to those terms and conditions. The second paragraph of their reply looks like an attempt to scare you, but it has legal merit. By using the unauthorised code you could be considered to have made false representation when you entered into the contract. This could render the contract void, and if they could demonstrate it had been done deliberately to gain money it could meet the threshold for fraud (which is what the police would possibly investigate : if it can be shown that you were aware the discount code didn't apply to you it would constitute making "a false representation ... to make a gain for himself" [sub-paragraphs 1-5, paragraph 2 of the Fraud Act 2006]). You may be able to argue that the voucher websites misled you (though it sounds like you, I and the retailer already know that's not true), but since the retailer has offered to repay what you paid there are unlikely to be any damages - and, unless the voucher site took commission from your transaction, a contract between you and the voucher sites would be difficult (possibly impossible) to establish. In the circumstances, returning what you originally paid is a good offer. | It is currently legal to barter goods or services in exchange for gold or silver bullion in the United States. Gold and silver do not have to be registered or certificated, although a prudent person would usually seek evidence confirming their authenticity and it would be common practice to keep gold and silver in a repository such as a bank or Fort Knox, and to conduct the transaction via negotiable certificates evidencing ownership of the gold or silver (basically warehouse receipts whose transfer is governed by the Uniform Commercial Code) rather than to physically transfer the gold or silver, in a large dollar value transaction. There are been periods of time in the United States where this was not allowed, unless done by a state government (which has a constitutional right to do so), or by a local government authorized by a state government to do so. But those laws are not currently in force and haven't been for a long time. Transfers conducted with gold or silver bullion in excess of $10,000 per transferee per year, probably have to be reported to the same officials to whom a cash transaction in that amount is reportable on IRS Form 8300, because it is considered a collectible cash substitute, even though it is legal to do so and no tax is specific to barter transactions in gold or silver. IRS Publication 1544 explains the rule. |
Insurance law, DIY improvements gone awry I have watched a few videos online where DIY projects went awry. For instance, tree removal with tree winding up on a homeowner's roof and auto. What are the general insurance rules regarding such projects that result in loss? When would such losses be covered, and under what circumstances would these losses not be covered? | Read your policy Insurance contracts spell out in excruciating detail in which circumstances they are on risk and which they aren’t. For example. In that policy, page 39 excludes "Loss or damage caused by lopping or felling of trees when this is performed or authorised by you, your family, or a household member". So DIY tree felling is at your risk. So is authorising a contractor to fell a tree (although you would presumably look to the contractor's insurer for restitution) You would be covered if a neighbour (or their contractor) dropped a tree onto your house or if a utility company did so. They didn't need or get your authorisation so the exclusion does not apply. | There are both statutes and customs aimed at preventing "Malicious Prosecution" and "Abuse of Process." (In Pennsylvania, for example, the 1980 Dragonetti Act allows the victim of a frivolous lawsuit to counter-sue for compensatory damages.) One can also buy insurance against this type of risk: Umbrella liability policies will generally provide a defense against civil lawsuits and any damages awarded, as will many business insurance policies. Of course, none of this is to say that a skilled legal team can't avoid all of these countermeasures and, in practice, take up a significant amount of your time and trouble. We do not have a perfect system of justice. | Agreement You say: my landlord added a clause stating: "All moving must be done in rear of driveway or pay $250 (near basement door)" Was this addition made at the time you signed the lease or subsequently? This matters because the terms of a contract cannot be changed unilaterally, they must be agreed. If the change happened after the lease was signed then , unless you agreed to it, it has no effect whatsoever. Since that resolution is boring; I will assume that it was always there. Enforcability Is this actually enforceable, since I did park in a public space and not necessarily on his property? Yes, it is enforceable. People can agree in a contract to do (or not do) anything so long as that thing is not illegal - that is what a contract is; a legally enforceable agreement for two people to do certain things. You agreed "All moving must be done in rear of driveway ... (near basement door)" and you didn't do what you agreed to do. Therefore you broke a term of the contract. It doesn't matter that you don't know why he wanted you to do this or if it was reasonable or if it meant that you couldn't use your parent's truck - if these were issues for you they should have been raised before you agreed to do it. If the clause said "When moving out you will wear a blue double breasted suit with a yellow and purple bow tie" then that is what you must do. Consequences There are a number of options open to the wronged party when the other party breaches a term of a contract. The most relevant in these circumstances is to sue for damages. So how much are damages? Well, they are an amount to restore the wronged party to the position they would have been in if you hadn't broken the agreement. In situations where damages can be hard to calculate, contracts can make a provision for liquidated damages; a pre-agreed amount of what the damage will be: in this case "$250". However: In the United States, Section 2-718(1) of the Uniform Commercial Code provides that, in contracts for the sale of goods: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. This largely mirrors the common law rule, which applies to other types of contracts under the law of most US states. On the face of it, it would appear that $250 may be "unreasonably large" given the nature of the breach where it appears that the landlord has actually suffered no damage. | Liability The concept of liability for damages is to place the wronged party in the same position that they would have been in but for the wrongful act. If restoring their car costs $300,000 then you are liable for $300,000. If the car is a total write off then you are liable for the cost of them getting an equivalent replacement, usually assessed at market value of the asset. Insurance Insurance is a different concept. An insurance company agrees to indemnify you for liability for your negligence within the limits of your policy: these usually include a deductable and a limit and sometimes a co-payment. You are liable to the wronged party - your insurer indemnifies you. If your insurance doen't cover all of your liability, you are responsible for the balance. | Yes, barring any statutory prohibitions against such a rule. I would be very surprised if any existed. They don't exist in any jurisdiction I'm familiar with. Look up the local by-laws to be sure. | 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. | IANAL. I am not your lawyer. The following is not legal advice. The insurance company, regardless of how you feel about their process, has it appears, to have discharged their duties, namely they have paid out two separate claims. The personal property claim has been paid to the estate as the beneficiary, while the property claim has been paid out with the mortgage company as the beneficiary. The mortgage company seems, to me (disclaimer, I work at a financial institution, albeit in an IT role), to also be reasonable. Six months is an extremely long time without contact or payment (where I work, the loss mitigation department is sent all loans that are 3 months delinquent); the fact that you, the estate executor were not aware of the passing of the debtor is of no consequence. Also, many loans contain clauses that allow the lender to accelerate the loan (i.e. demand "immediate" payment of the whole outstanding balance). So they've started foreclosure proceedings, probably about 3 months ago. As for the foreclosure proceedings: The received $45,000 will be applied to the loan. The property (not just the house, but the entire lot) will be sold at public auction, as all foreclosed houses are in the state of New York. Proceeds from the sale of the house shall be applied to paying off the loan. If the proceeds exceed the outstanding mortgage amount, the estate will be sent the remaining proceeds. If the proceeds are less than the remaining amount, the estate is retains (i.e. owes) the remaining debt. EDIT: As an example of why the noting of jurisdiction is important on this stack-exchange, Nate Eldredge has informed me that in New York, it is possible for a judge to reduce the "remaining debt" of the estate by declaring that the sold house had a higher "fair market value" than it sold for. | The most important fact to bear in mind is that there's no way to predict whether a given individual will decide to file a suit against you, though we might say on what basis he might, if he so chooses. There are two basic grounds for a suit, one pertaining to trademarks and the other pertaining to use of names – misappropriation and violating the right of publicity. A word can be a trademark, but the scope of protection is somewhat narrow because the protection is in terms of use within a given business. So calling your computer company "Apple" is out, but calling you roofing service the same is okay (assuming that somebody didn't previously register "Apple Roofing"). The main consideration is the likelihood of confusion. Supposing your business were selling landline telephones and I don't think Apple computer company sells such phones, you might still be in trouble if you called your company "Apple Phone", since they certainly do sell phones. There are thousands of trademarks that include "Puff", including Cocopuffs and various pizza and cheese puffs. Since "Puff" is such a generic word, there is a higher bar to proving infringement (there are thousands of trademarks including "Puff"). "Puff Daddy" is, however, a registered trademark covering perfume, jewelry, clothing and certain online services, so there is a non-negligible chance of confusion. In the case of names (or apparent names), an additional concern is whether this is commercial exploitation without consent of a person's name (which causes harm to the subject). The underpinning of this tort is that such a use falsely implies an endorsement of the product. Again, with a fairly generic word like Puff, there isn't a clear implication that Sean Combs has endorsed a product that is called "Puff Communications", but "Puff Daddy Communications" would almost certainly cross that line. The main issues, then, are the extent to which the name is generic vs. unique, and whether it is likely that a person would interpret the product or service as being the same as another, or would constitute an endorsement. |
What is the law about adults dating a minor? Say that a guy was dating this girl since he was a junior in high school and at the time she was a freshman. Say that they stayed together over the years and he is now 18 and graduated. Is this relationship illegal since he is an adult and she is a minor? Or is this allowed since they started dating when they both was minors? | So as pointed out in the comments, most states do not set 18 as the age of consent (in the U.S. a majority of states have 16 as age of consent. 18 becomes famous because that's the age of consent in California (the world's largest supplier of porn) and the Federal Government, which means if they are looking at an older partner, the FBI gets involved... and usually a state line was crossed.). So for the first part, this is not going to get the 18 year old in trouble. That said, most age of consent laws do acknowledge and address this question with a "Romeo and Juliet Exception" of some kind worked into the law. These usually allow for exceptions to the age of consent laws if the ages of the couple are within a few years of each other and the older partner is not in a position of trust over the younger (i.e. a student teacher cannot date a student even if there is a three year age difference between the two). Generally, it allows for ages in early 20s to date those in late teens as the difference does occur occasionally, although not often. | Actual sex with a minor is an offence. Under the Criminal Attempts Act 1981, doing something "which is more than merely preparatory to the commission of the offence" is attempting to commit the offense, and is itself an offence. They have attempted the offence of having sex with a minor, although they didn't succeed because unbeknownst to them the other party was not a minor. There is some variability in whether it matters that there is no actual minor involved. In that specific instance the offence he was charged with was arranging the commission of a child sex offence (Sexual Offences Act 2003 §14), where one "intentionally arranges or facilitates something that he intends to do". Since he pleaded guilty, we won't find out how an appellate court would interpret 14(1)(b) ("doing it will involve the commission of an offence"). | Any written communication is generally admissible Subject to all the normal rules for admissibility of course. For texts between you and a third party the major issue that springs to mind is relevance. As in, how are they relevant to the dispute between you and this man? If they are not, your lawyer should have objected to them on this basis, however, its too late now. I'm curious as to how he obtained these and whether it was done legally or not. Illegality will not affect their admissibility as the exclusionary rule doesn't apply to civil matters, however, it does speak to the gentleman's character. | The legal age of consent in the United Kingdom is 16 years old, and the legal age of consent in Algeria is also 16 years old so "sexting" itself would not be against the law. However, it is illegal in the UK "to take, or permit to be taken [..] any indecent photography of a child". This counterintuitively also applies to a child (under 18 years of age) taking a photo of themselves, as the photo is considered "Indecent". Within the UK prosecution of possessing, distributing, showing or making of indecent images of children isn't binary. Determining factors in potential prosecution are based on if (amongst other things): There is reason to believe that a child or young person has been coerced, blackmailed or groomed, or there are concerns about their capacity to consent (for example, owing to special educational needs). Source: gov.uk If the adult was trying to repeatedly solicit a picture from the minor then it could come under the Protection of Children Act. It's a legal grey area where it really depends on if the minor was pressured into sending pictures for the purposes of exploitation, malicious intent, persistent behaviour. 'Outcome 21' allows police in the UK discretion to determine if such behaviour occurred and whether to take action against those involved. | It is illegal to marry while you are already married This is the crime of bigamy in all 50 states. A marriage ends with the death of one of the couple, a divorce or (in some very limited circumstances) an annulment. The US will recognise any of these wherever they happen so it’s your choice whether you get divorced in your home country or the US. By the way, don’t cause the death of your husband, that’s also illegal. | If the younger person starts a civil suit against the older person for statutory rape, can the older person countersue for "actual" rape? There is no civil action counterpart to statutory rape. Is there any way that the older person can use the "actual" rape as a defense in either a civil or criminal charge? Statutory rape does not give the person who is defined as a victim of statutory rape to bring a civil action for money damages against the adult with whom that individual had sex. Sometimes there might be a civil action for breach of a fiduciary or confidential relationship, or intentional infliction of emotional distress/outrageous conduct. But that would be the exception, rather than the rule, and the civil action tort would not be a strict liability offense. While statutory rape is sometimes a "strict liability crime" in the sense that actual subjective consent is not a defense, and reasonable mistake of age is not a defense, a prosecution for statutory rape still requires proof of a voluntary act by the defendant charged with the offense. The claim that someone did not voluntarily have sex with the underaged person and instead was forced to engage in sex with the underaged person without their consent would be a valid defense to the crime. This is because it would prevent the prosecutor from proving that the defendant committed the voluntary act element of the crime beyond a reasonable doubt. This kind of defense could also be conceptualized as the affirmative defense of duress which would still apply to this offense. My understanding is that if the older person has been convicted criminally for statutory rape, that would bar that person from prevailing in a civil suit for "actual" rape. Would this be true[?] One could bring a civil action for assault and battery in connection with a rape not implied in law by virtue of age (i.e. what you mean when you say "actual" rape). A criminal conviction for statutory rape (for which all appeals have been exhausted) would probably be a valid defense to such a civil action pursuant to the doctrine of collateral estoppel (i.e. because a binding determination of the same issue with the same or stronger burden of proof was finally resolved on the merits in another case involving the same people). This is only true, however, because the lack of voluntary act defense would have been available in the criminal case for statutory rape. has such a sequence of events actually happened anywhere in the United States? Probably. The United States has had states with statutory rape laws for many, many decades and many hundreds of millions of people, if not billions of people, have lived in that time period. So, almost anything that could happen with respect to a widely enacted law involving activities that are possible for ordinary people to engage in has probably happened. This said, however, I've never heard of a legal case with this fact pattern in the news media or in reported case law (although admittedly, this isn't my area of practice). The more common case which does come up from time to time is a case of brother-sister incest where there is dispute over who should be charged (usually, but not always, the older sibling, and in rare instances, both are charged). Historically, in the overwhelming majority of cases where statutory rape charges could easily be proven, they are not brought by prosecutors. Sometimes this is because that is what the victim wants. Historically, victims have frequently wanted this outcome, either out of hope for an ongoing relationship with the adult, or doesn't want to relive a traumatic event, or out of the well founded believe of the victim that the case would do more to harm her reputation and well being than it would to suitably punish the adult (and keep in mind that statutory rape is often a misdemeanor offense which might be punished fairly lightly at sentencing depending upon the judge). Sometimes this is because the prosecutor sees keeping the perpetrator employed and able to pay child support when a pregnancy results as a preferable options. Sometimes this is because proving that sexual intercourse happened with someone beyond a reasonable doubt in cases that did not result in pregnancy, when the only witnesses are the alleged defendant and the allege child victim whose credibility may be questioned, was very difficult prior to DNA evidence, widespread use of rape kits, and cheap, ubiquitous video and photography use. Furthermore, factually, it is exceedingly uncommon for young minor girls to rape adult men, and until quite recently, the statutory rape laws applied only to female victims. Even now, with gender neutral statutory rape laws being the norm, prosecutors are much less likely prosecute an alleged statutory rape involving a male victim than a female victim. Finally, many prosecutors feel morally justified in invoking their authority to press statutory rape charges only when they believe that there was a non-consensual sexual act committed against the victim which happened even if it was hard to prove and are reluctant to bring such charges if the prosecutor believes under the circumstances that the act was consensual in fact, even if legally the defendant is still legally guilty in those circumstances. Generally speaking, attitudes towards this have grown more harsh towards men who have sex with young minors in recent years, but historically, this was a pretty important factor. | U.S. law does not forbid 15 year olds from joining dating websites. Direct U.S. regulation of Internet communications mostly via the Children's Online Privacy Protection Act (COPPA) has a cutoff age of 13 years old. This said, nothing obligates websites to allow minors to join their dating app, and they may be reluctant to do so for fear that if you are mistreated by someone as a result of the app that they could be held responsible. In particular, amendments to the Communications Decency Act (CDA) called FOSTA-SESTA for the "Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and "Stop Enabling Sex Traffickers Act (SESTA)" which took effect April 11, 2018, limited the prior near total protection from liability under Section 230 of the CDA. The amendments maked it illegal to knowingly assist, facilitate, or support sex trafficking, and amended the Communications Decency Act's section 230 safe harbors (which make online services immune from civil liability for their users' actions) to exclude enforcement of federal or state sex trafficking laws from immunity. Federal sex trafficking laws largely apply to commercial sex by people under the age of 18, which an online dating app could facilitate, if used by someone inclined to use it in that manner. The two main federal sex trafficking laws are as follows: Section 1591 now provides in part the following: “Whoever knowingly in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion ... , or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act,” shall be imprisoned not less than 15 years (not less than 10 years, if the victim is 14 years of age or older and the offender is less than 18 years of age). The Mann Act outlaws prostitution and unlawful sexual activities that involve interstate or foreign travel. It consists of three principal substantive sections. Section 2421 proscribes the interstate or foreign transportation of someone for purposes of prostitution or unlawful sexual activity; misconduct which is punishable by imprisonment for not more than 10 years. Section 2422 condemns coercing or enticing another person to travel in interstate or foreign commerce to engage in prostitution or unlawful sexual activity, or using interstate communications to coerce or entice a child to engage in such conduct. The communications offense is punishable by imprisonment for not less than 10 years; the travel offense by imprisonment for not more than 20 years. Section 2423 outlaws four distinct offenses: (1) §2423(a) - transportation of a child in interstate or foreign commerce for purposes of prostitution or unlawful sexual purposes; (2) §2423(b)—interstate or foreign travel for purposes of unlawful sexual abuse of a child; (3) §2423(c)—foreign travel and subsequent unlawful sexual abuse of a child; and (4) §2423(d)— arranging, for profit, the travel outlawed in any of these offenses. The first is punishable by imprisonment for not less than 10 years, each of the others by imprisonment for not more than 30 years. So, the reluctance of a dating app to allow minors to use their services is understandable. They either need to aggressively police a low cost or free except for ad support service with considerable employee expense to do so, to avoid the risk of FOSTA-SESTA authorized liability, or they can not offer the service at all. In a nutshell, the app providers consider you to be jail-bait and don't want to face the associated risks. | Not successfully It is not required that a person knows they are dealing with an agent of the principal rather than the principal directly - an agent speaks with the principal’s voice. Robert has consented to allow Elizabeth to act as his agent. It actually doesn’t matter if he consented before she acted or afterwards, he has agreed to be bound by Elizabeth’s actions. Rachel & Jared have agreed to enter the lease and indicated as much by signing the document. It doesn’t matter who signed it for the landlord or even if it was signed - leases have to be in writing but there is no common law rule that they need to be signed. |
Which country should have exclusive jurisdiction in a simple software development contract? There's a simple contract template going around design and development communities that includes this clause: Although the language is simple, the intentions are serious and this contract is a legal document under exclusive jurisdiction of English and Welsh courts. Regardless of the rest of the template, if a contractor sends this contract to an American client: Would the American client refuse to have to potentially deal with non-American courts, in the possibility of a conflict? Should the contractor pick just one court (English OR Welsh)? What happens if there's an issue and English and Welsh laws disagree on that specific point? Could the contract stipulates that is enforceable under exclusive jurisdiction of American, English and Welsh courts, but that the Welsh one takes precedence? What is simpler and best for both parties, considering the extreme unlikeliness that such a minor project would end up in court? | Would the American client refuse to have to potentially deal with non-American courts, in the possibility of a conflict? Some might, but probably not all. Most wouldn't bother to read it; others who do won't understand what the jurisdiction provision means. Should the contractor pick just one court (English OR Welsh)? No. England and Wales is a unified legal jurisdiction. The two countries share a single court system. Could the contract stipulates that is enforceable under exclusive jurisdiction of American, English and Welsh courts, but that the Welsh one takes precedence? If US courts have jurisdiction and English-and-Welsh courts have jurisdiction, then there is no exclusive jurisdiction. | According to CENDI, yes the US government is able to claim copyright on works internationally. The law in question which makes US government works public domain in the US (17 U.S. Code § 105) only does so within the confines of US copyright. Since copyright protection is on a per-country basis, there's no reason that the US government couldn't assert IP rights under foreign copyright law (though I didn't go looking for an example). While the Berne Convention generally requires countries to provide foreign works the same protection as domestic works, I can think of two general reasons why US government works wouldn't fall under copyright protection in some countries: The country simply doesn't apply copyright protection to any government works (don't know how common this is). The country applies the rule of the shorter term. If they do, they aren't required to provide a longer term of protection than the country of origin does (which is nil in this case). | According to US law, the GPL is a license, not a contract. This means it is valid without consideration, it also means if you are in violation of the license, then you are committing copyright infringement, instead of being in breach of a contract. In Germany, the GPL is a contract. And that's fine, because German law doesn't require consideration for a contract to be valid. It's interesting in that the GPL license doesn't require you to state whether you agree to the license/contract or not. But if you don't agree to the contract then there is no contract, and you have no right to use the software. | That a company (C) has a website that can be accessed from a given county does not mean that the company operates in that country. If C is located in country A, markets and advertises to country A, offers products designed to appeal in country A, has its site only in the primary language of country A, uses servers located in country A, and has all its assets and physical offices in country A, it is not operating in country X, even if a few people from X do business with C over its web site. Country X may have laws which claim to apply to C or its web site. It will find it hard to enforce those laws, particularly if owners and officers of X do not travel to X. It will find it hard to extradite anyone for violations of the laws of X unless those actions are also crimes under the laws of A. If X is a major, powerful country such as the US, the UK, or the EU it may be able to get A to enforce its court orders, or to use its influence over the banking system to impose penalties on C. If X is North Korea, or even Brazil, it is probably out of luck. Thus the management of C needs worry primarily about the laws of A, and to a lesser extent the laws of major countries that make some effort to enforce their laws outside their own borders, such as the GDPR, or certain US laws. It probably has little reason to worry about the laws of other countries. If A is itself a major country that can easily resist any pressue from X, C has even less reason to worry. If C does significant business in countries D and E, and particularly if it opens physical offices in D or keeps assets in E, it will have much more reason to worry about the laws of D and E. If it does advertising in the D & E markets, this also gives C more reason to be concerned with their laws. There is always some risk of X finding a way to enforce its laws, but the risk is small. | I can answer for the U.S., if that's helpful. The general rule, in the United States, is that covenants not to compete are enforceable as long as they are reasonable. What constitutes "reasonable" varies from state to state. Factors considered generally include: What kind of actual harm will come to the business if you go to a competitor? In other words, is this rote language they include in every contract, or did they put it in yours because you know all the secret formulas and have the customer list memorized? Is it reasonable in time, location, and scope? Something preventing you from taking any job anywhere in the United States for ten years won't be enforceable; something preventing you from taking a job with the exact same title in the same industry in the same town for the next six months might be. The general rule at common law was that covenants not to compete were unenforceable restraints of trade; the fact that they're enforceable at all is later law created by each jurisdiction, and that means it's going to vary based on your specific jurisdiction. If you want to know whether it's okay to take a specific job based on a specific non-compete you signed, you will need to talk to a legal professional licensed in your jurisdiction--and even she may not be able to tell you for sure. | I realize it has been eight months, but I believe I can offer an opinion. Given the nature of the question, please keep in mind that I am not a lawyer and my opinion is no substitute for professional legal counsel. [Preparing this post has been an educational experience and my opinion should in no way be interpreted as expert opinion] Assuming you have not infringed on any patents, the relevant legal challenges Valve could try include breach of contract, copyright infringement, and trade dress infringement. Breach of Contract The potential breach of contract occurs because the Steam client setup application requires you to accept a contract of adhesion (The License) before the software can be installed. I could not find a copy of The License online in plain text (this is separate from the Steam Subscriber Agreement, which you also agree to by accepting The License), but you can read it any time by running the Steam client setup application which is available at [redacted due to low rep - the Steam website]. These so-called "shrink wrap licenses" are of questionable legal value, depending on how the licensee assents to the contract. People often bring up Specht v. Netscape Communications Corp. In that case, the only reference to a license was on the download webpage, and it was only visible if the user scrolled down past the download button - Netscape argued unsuccessfully that clicking the download button indicated assent to the terms of the license. The Steam client setup application has a prominent dialogue box showing the terms of The License and requiring your explicit assent before installation can continue. A more relevant case may be ProCD, Inc. v. Zeidenberg, where the Seventh Circuit ruled that a license agreement was valid where the licensee had to click on a dialogue box assenting acceptance to the agreement. In short, you may be required to defend yourself under the terms of The License. If the licenses are thrown out as unenforceable, the prosecution would probably move towards copyright infringement. Section 1 Paragraph C of The License states (emphasis added): Except as expressly set forth elsewhere in this License Agreement, you may not, in whole or in part: copy, photocopy, reproduce, translate, reverse engineer (with the exception of specific circumstances where such act is permitted by law), derive source code from, modify, disassemble, decompile, or create derivative works based on the Program. Now you assert that there has been no reverse engineering, that you made yours "completely from scratch using completely different styling and images (even different website inside the client that is mine)". You may be challenged on these claims in court, for example comparison of source codes could rule out reverse engineering. I will touch on derivative work status later. Note that under Section 5, the provisions of Section 1 Paragraph C do not apply after you have uninstalled the Steam client software. This means in the case that you [can prove you had] uninstalled the Steam client software before making your own client, you would have a defense to breach of contract under Section 1 Paragraph C. However... The License also includes the terms of the "Steam Agreement", viewable online at http://www.steampowered.com/agreement. The Steam Agreement takes effect when you register for your Steam account. Section 2 Paragraph G of the Steam Agreement echoes the above referenced Section 1 Paragraph C of The License, and even survives termination of the Steam Agreement (your steam account being cancelled). Now assuming you can provide defense against reverse engineering, you may need a defense against the charge that your work is a derivative work. Your case may be pretty strong if you can show that your client was indeed written from the ground up - which rules out the possibility of deriving your program code from Steam's code as literary copyrights go. The prosecution could try saying you have copied the audiovisuals of their program, but your program was written "from scratch using completely different styling and images". Eventually prosecution may have to move into trade dress infringement. Copyright Infringement In a case of alleged copyright infringement, the first order of business is to prove there is a copyrighted work to begin with. The work in question is the Steam client by Valve Corporation. Again, I am not an expert but I could not find any copyright registration for the Steam client (http://www.copyright.gov/records/ -> Post-1978 Records -> Search by Name "Valve Corporation"). Copyright registration is required before infringement suits can be filed. Valve can register after infringement occurs but they will be limited to actual damages and profits. Nevertheless Valve does claim copyright over its product. A notice is posted on The License and Steam Agreement, and from the client itself the Help menu contains a command "Legal Info" which opens a webpage containing a copyright notice. Since 1979 it has not been necessary to post a copyright notice, but a notice helps break a defense of innocent infringement. You imply that you copied elements of the Steam client "to give customers a similar feel to what they are used to [the Steam client]". In your specific case innocent infringement may not be a valid defense. It seems you are most concerned about copyright infringement over the menus. An extremely relevant case is Lotus Development Corp. v. Borland International, Inc. In that case the First Circuit held that the menu heirarchy for Lotus 1-2-3 (the progenitor of virtually all menu heirarchies today) was uncopyrightable as a "method of operation" under U.S.C. 17 Section 102(b). We think that "method of operation," as that term is used in [U.S.C. 17 Section] 102(b), refers to the means by which a person operates something, whether it be a car, a food processor, or a computer. Thus a text describing how to operate something would not extend copyright protection to the method of operation itself; other people would be free to employ that method and to describe it in their own words. Similarly, if a new method of operation is used rather than described, other people would still be free to employ or describe that method. We hold that the Lotus menu command hierarchy is an uncopyrightable "method of operation." The Lotus menu command hierarchy provides the means by which users control and operate Lotus 1-2-3. If users wish to copy material, for example, they use the "Copy" command. If users wish to print material, they use the "Print" command. Users must use the command terms to tell the computer what to do. Without the menu command hierarchy, users would not be able to access and control, or indeed make use of, Lotus 1-2-3's functional capabilities. If specific words are essential to operating something, then they are part of a "method of operation" and, as such, are unprotectable. This is so whether they must be highlighted, typed in, or even spoken, as computer programs no doubt will soon be controlled by spoken words. The Supreme Court affirmed the decision with an even court (Judge Stevens recusing), so no national precedent was set. Nevertheless the ruling has not been overturned - the First Circuit goes into great detail explaining their decision, and I do recommend reading the ruling. We have already discussed derivative works and reverse engineering with contracts, and the same defense would apply under copyright law: source code comparison. Trade Dress Normally things like design and layout are left to patent law. A desperate prosecution, however, may claim that by copying their "look and feel" you infringe on their trade dress. The relevant text is part of U.S.C. 15 Section 1125(a) (emphasis added): (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which- (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. (2) As used in this subsection, the term "any person" includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity. (3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional. Defense against such a claim would be showing that the elements of Steam's "look and feel" were adapted because of functional reasons - see example rationale in the previously mentioned Lotus v. Borland. Overall, so long as you did write the program from scratch and there are no patent violations, you have in my opinion a strong case. There may be moral questions about unfair competition (why should you be allowed to capitalize off Valve's work put into the Steam client?), to which I would point out that your product does not appear to be in direct competition with the Steam client. Without direct competition or confidence in evidence of IP infringement it is quite unlikely Valve will file suit against you. If you would rather avoid even the possibility of legal action, you could always contact Valve directly and ask for a license. | What would be the legal validity of this behaviour? Your changes to the browser source of the website contract or license of Terms of Service (TOS) - essentially a "click-wrap" license - before agreeing to it means nothing in a legal sense, other than to void the contract. The other party (the website) can't possibly agree to those contract changes without them being submitted as contractual changes and agreeing to them, if they did agree to them. That's basic contract law. That website TOS probably has a clause that says that if you don't agree to the TOS in full, as written, without modifications, you can't use the website. And the TOS may also say that they reserve the right to prevent you from using the site by closing your account or even blocking your access. Your "witness" to the contract changes is meaningless, as your witness is not a party to the contract. And any witness to the fact that you have changed the terms of the TOS before agreeing to it would work against you in a civil proceeding as proof of your attempt at modifying the contract. | I wrote a letter to the Eclipse Foundation. The consultant pointed me to section 5 in their FAQ. My case falls under the term "linking". He warned that he isn't a lawyer, but offered the following short answer: The Eclipse Foundation does not consider linking with EPL content to be a derivative work and so you are not required to disclose your source code. |
Can constitution amendment interpretation be negated by the Supreme Court in the US by citing unconstitutional during judicial review? I am curious that, when the constitution is amended, can the Supreme Court reject the amendment via the judicial review process by citing the amendment is unconstitutional and says the negation (by the correct semantic representation) of the amendment is now in the Constitution? If can't, does it mean the process of amending constitution is a power that is not governed by the constitution and so out of the reach of the Supreme Court decision. As a direct result, the Supreme Court justice can only interpret the amendment via the precedent constructed by how the people who amend the constitution interpret, and so the judicial review process cannot interpret law in the sense of "creating precedent". If can, does it mean the current, existing US citizen does not have the ultimate interpretation about Constitution since theoretically the justice can reject and negate it by creating a precedent vacuously? (In a philosophical sense, I assume a Constitutional Amendment is not decided (logical consequence) by the existing Constitution, and so there must be someone to create the precedent to decide how to use the law, which can be done by the judicial review by saying the amendment is unconstitutional is vacuously True by the pure definition of "not a logical consequence") I know it's a game of words and extremely like some form of Godel's Incompleteness proof but the self-reference property of judicial review and strong arithmetic property of principle of precedent at least in a logical sense may have unexpected behavior. | While the Supreme Courts of Germany, Honduras, India and Italy have asserted such authority, the U.S. Supreme Court's justiciable decisions about a U.S. Constitutional Amendment are generally limited to a determination of whether the amendment was lawfully adopted pursuant to Article V of the U.S. Constitution, which states: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. Usually, U.S. Supreme Court litigation over a constitutional amendment would be over whether the process of Article V has been conformed to in a particular case (which has been litigated in several prior cases). The U.S. Supreme Court has held, however, in Coleman v. Miller, 307 U.S. 433 (1939), that even some procedural issues are political questions for Congress to resolve that are non-justiciable, in part because the mode of ratification is expressly delegated to Congress in Article V. As the summary of Coleman at the link above explains: In an opinion by Chief Justice Hughes, the Court held that the Kansas legislators had standing to sue, but found that two of the plaintiffs’ claims raised political questions that could only be resolved by Congress. With respect to the whether the Kansas legislature’s previous rejection of the Child Labor Amendment precluded its subsequent ratification, the Court stated that this “should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the amendment.” But, with respect to the language in bold in the quoted language of Article V above, the U.S. Supreme Court could determine that a constitutional amendment is unconstitutional. This narrow ground, however, is the sole basis upon which it may do so. | No The case was dismissed on procedural reasons. Like this. Well, perhaps not so pedantic but there are things that have to happen before the Supreme Court can get involved and they haven’t. For example, the Supreme Court only has original jurisdiction in a limited classes of case; if this isn’t one of those (and it isn’t) it has to be heard in a court that does and then get appealed up the chain. When they have, the court will make a decision on the merits. | Contra proferentem However, it's a principle that is rarely applied in practice since it's at the end of a long line of judicial reasoning that gets applied first. Ambiguity in contract provisions are usually resolved by the golden rule: Determine the ordinary and natural meaning of the words used Consider the context of the contract including its purpose, any "recitals" or "background" clauses and other relevant provisions If the ordinary and natural meaning is inconsistent with the context or gives rise to absurdities, modify the meaning as appropriate. In the vast majority of case, this approach will give a meaning the court adopts without needing to invoke the contra proferentem rule. However, in the minority of cases where the rule is applied it works like this. The ambiguity should be interpreted against: the party who prepared the contract (particularly for standard form contracts offered on a "take it or leave it" basis) the party seeking to rely on the ambiguous position (e.g. the beneficiary of a guarantee, indemnity, limitation or exclusion provision). Finally, contra proferentem may not apply because: it can be specifically excluded in the contract (which most drafters do) where the provision has been the subject of back-and-forth amendments by the parties it can be impossible to say that only one of the parties drafted it. | Isn't there tension between these two parts of the opinion? There is perhaps some tension, but the resolution of that tension is clear. There is certainly no self contradiction. The most obvious tension is between the chief justice's line of reasoning and Justice Ginsburg's. It may be described thus: Justice Ginsburg would uphold the statute by interpreting it as a tax, avoiding the need to consider whether it is authorized as a command under the commerce clause. Chief Justice Roberts notes that the statute reads on its face as a command and says that this requires the court to find that this "more natural" reading is "not authorized" before it can consider other interpretations under the "duty to construe a statute to save it, if fairly possible." Only by following this line of reasoning may the court consider whether the provision may be upheld under the power of taxation. The reasoning paraphrased in the first paragraph of this question explains that the court may go beyond congress's labels -- the claimed basis of its authority -- when it interprets a statute. The quotation from the opinion explains that it is however necessary to consider congress's claimed source of authority first, before moving on to other possible sources. There is a bit of a chicken-and-egg nature to this: if we don't consider (and reject) the commerce clause argument, we can't justify the statute as a tax, but if we can't justify it as a tax, we have to consider the commerce clause argument. Ginsburg's reasoning would avoid this paradox. Therefore, to the extent that a chicken-and-egg paradox is "tension," yes, there's internal tension in Roberts' reasoning, but not outright contradiction. The more significant tension is between Ginsberg's desire to avoid considering the commerce clause justification and Roberts' reasoning that requires it. | There is no definitive answer, which can only be determined by SCOTUS if faced with a case. DOJ has opined twice that "the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions". The Impeachment Clause (art.I, §3, cl.7) says Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law The exegesis of this clause is that this means a sitting president cannot first be prosecuted for a crime, but must first be removed from office. The counter-argument is that "nevertheless" indicates that this clause only states that a president can be removed and then prosecuted, and that removal does not preclude further action. In other words, the law has yet to be determined on this matter. | It is binding precedent for lower federal courts in the Ninth Circuit. They are required to follow it. It is persuasive precedent for the other circuits and for state courts. They may be persuaded by the reasoning and will consider the fact that the Ninth Circuit held as it did to be one factor in their decision-making, but they can make a different decision if they want to. Some courts are also more persuasive than others, although this is usually not explicitly acknowledged in written opinions. For example, state courts in the Ninth Circuit are likely to give more weight to a Ninth Circuit opinion than they are to give weight to a decision from another circuit. Cases from the Second Circuit are more likely to be persuasive than cases from other circuits, because of its reputation. Cases from the Southern District of New York are more likely to be persuasive than cases from most other non-local District Courts. There is also a personal reputation function that comes into play when looking at persuasive decisions. Some judges have a better reputation or a better reputation with a particular other judge, and their decisions may be considered more carefully. This is not explicit, but it means a good lawyer will mention the judge's name when a case in support of his position was decided by a well-regarded judge. Finally, the Ninth Circuit's holding would be persuasive precedent for the Supreme Court. You could write law review articles about this, but to dip one toe in: they may be persuaded by the reasoning and it matters to their function of providing unifying law, so especially during the process of applying for a writ of certiorari, they will care what different circuits have held on an issue and which circuits are going which way. But they are not bound by the circuit courts, and will overturn all of the circuits if they think that's the right decision. They did that a while ago with a statute about what it meant to use a firearm while committing a crime, for example. | Current Place of Magna Carta in US law Magna Carta is not now a current statute in any part of the US. I don't think it ever was (not since the US became independent of the UK), but I am not sure of that. Its words influenced the drafters of the US Federal Constitution. In some cases it may thus be helpful in understanding the original intention of the framers, but probably The Federalist and the records of the debates of the Philadelphia Constitutional Convention are far more persuasive and more helpful. The major decisions of the Marshall Court are also very relevant. The US Supreme Court can and does change its interpretation of laws passed by Congress and of the Constitution. The words of Magna Carta are not more binding than Supreme Court decisions. In fact they are not binding at all, on any court or official in the US in any way. They are part of our legal history, but they are mnot current law, no more than the Code of Justinian or the Laws of Hammurabi are. The detailed procedural rules of Magna Carta are certainly not in fore in the US in 2022, nor in the UK either. The Ninth Amendment, which protects unenumerated rights of the states and the People does not protect,such procedural details, At least it has never been held to do so, to the best of my knowledge. I don't even know of a case where such a contention was seriously argued. The question states that: The meaning of “Due Process of Law” of the Fifth Amendment is, primarily, chapter 28 of Magna Carta and everything that built on it by judicial decisions. There is a sense in which this is true, but a very weak one. The concept of “Due Process of Law” was to some extent spelled out in Magna Carta, and later court decisions and legal and political philosophers (such as Locke) built on it. But most of the specifics of what constitute "due process" at the time of Magna Carta have since been dropped, and most of the current requirements were added much later. The idea of a hearing before an impartial tribunal, where the accused can present evidence, goes back to MC. Other requirements of due process, such as a right to a lawyer, rights against self-incrimination, rights against double jeopardy, the right of an accused to testify under oath, the right of an accused to issue subpoenas to witnesses, the right to an impartial jury, The right to be free of search, seizure or arrest unless probable cause has been shown under oath, and many others were added long after MC, some not until the 20th century. Such one-time aspects of due process as the right to be tried by members of one's own social class, a vital aspect of MC, are long gone, and never really existed in the US. Two-Witness Rule There was an early debate in a Supreme Court case, a perjury case if I recall correctly, on the need for two witnesses for conviction, but later statues have altered that rule. I don't know of any such rule ever applying to arrests in the US. It surely does not apply now. Coke and Magna Carta Early in the 1600s Lord Justice Edward Coke used the text of Magna Carta (among other things) to argue that Equity courts should not be able to use injunctions to stop cases pending in common-law courts. To do this he gave to Magna Carta a semi-sacred status it did not have when it was originally issued. (Indeed J.C. Holt, in his classic study Magna Carta, arguses that the charter was a victory for King John, and a defeat for the Barons, because the Barons allowed themselves to be bought off by promises that John never intended to keep, and that were not, in fact, kept. He further argues that it was the re-issues over the period 50-100 years later that gave MC what contemporary force it had, but that it was Coke's invocation of it that gave it the modern reputation as a foundation of freedom. I agree.) Coke claimed things for Magna Carta it could not have meant at the time it was issued, as the equity courts did not exist as an institution at that time, and would not for several generations. Charles Rembar, in his excellent non-technical history of Anglo-american law, The Law of the Land: The Evolution of Our Legal System (ISBN: 978-1-5040-1566-0; 1980) wrote (pp. 57-8): Early in the 1600s, Lord Justice Coke declared that neither king nor Parliament could transgress fundamental principles of common law. In time the proposition was true enough for king (also, academic: he himself could make no law, fundamental or trivial), but it has never held for Parliament; no one in office followed Coke along this line, not even Coke himself. Removed from the bench, he entered the House of Commons, and fought the Stuarts there. In the last stage of his long career, Coke asserted the utter supremacy of Parliament, an assertion which by the century’s end had become the constitutional law of England. The equation of "Due Process of Law" with "Law of the land" was part of this argument on Coke's part; it was, in effect, a piece of spin, which not all later scholars have noticed. "Due process" was, at beat, a part of the "law of the land", and it was always subject to modification by Act of Parliament (earlier, by acts of King-in-Council). It is true tht the US Supreme court has taken "Due process" in a procedural sense, to imply in most cases the right to a hearing, before an impartial tribunal, including a right to present witnesses and evidence, and that several of these principles are mentioned in Magna Carta, and come down to us from MC through much legal history. Magna Carta in the Case of Murray's Lessee In the case of Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856) The US Supreme Court looked back throigh legal history to consider what is and is not permitted by the US Fifth Amendment, and its "Due process" clause. This is the kind of extensive excursion into legal history that was more common in Court opinions from the fist half of the Nineteenth Century that it is now. (Rembar remarked, on p 170 of The Law of the Land, "the Supreme Court, ... is fond of legal history and often gets it wrong.) But it is important to note how that opinion from the Taney Court (not the previous Marshall Court) used Magna Carta. The court wrote: [59 U. S. 277] We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. We apprehend there has been no period since the establishment of the English monarchy when there has not been, by the law of the land, a summary method for the recovery of debts due to the crown, and especially those due from receivers of the revenues. It is difficult, at this day, to trace with precision all the proceedings had for these purposes in the earliest ages of the common law. In short that court is interested in Magna Carta only as it has influenced US state and Federal statutes. It in no way states or implies that the exact procedure of Magna Carta must be that of the current US, or is assumed to be such in the absence of a statute changing that procedure. Rather it looks at how US States adopted procedures derived from MC as a guide to the meaning of the Due process clause. After discussing at 59 U. S. 278 what the procedure for retrieving money from tax officials who had allegedly retained it improperly under the statutes of the Tudors (already long after Magna Carta, although well before Coke) the Court wrote: [59 U. S. 278] This brief sketch of the modes of proceeding to ascertain and enforce payment of balances due from receivers of the revenue in England is sufficient to show that the methods of ascertaining the existence and amount of such debts and compelling their payment have varied widely from the usual course of the common law on other subjects, and that, as respects such debts due from such officers, "the law of the land" authorized the employment of auditors, and an inquisition without notice, and a species of execution bearing a very close resemblance to what is termed a warrant of distress in the act of 1820, now in question. It is certain that this diversity in "the law of the land" between public defaulters and ordinary debtors was understood in this country, and entered into the legislation of the colonies and provinces, and more especially of the States, after the declaration of independence and before the formation of the Constitution of the United States. ... [59 U. S. 279-280] Provisions not distinguishable from these in principle may be found in the acts of Connecticut (Revision of 1784, p. 198), of Pennsylvania, 1782 (2 Laws of Penn. 13); of South Carolina, 1788 (5 Stats. of S.C. 55); New York, 1788 (1 Jones & Varick's Laws, 34); see also 1 Henning's Stats. of Virginia, 319, 343; 12 ibid. 562; Laws of Vermont (1797, 1800), 340. Since the formation of the Constitution of the United States, other States have passed similar laws. This legislative construction of the Constitution, commencing so early in the government when the first occasion for this manner of proceeding arose, continued throughout its existence, and repeatedly acted on by the judiciary and the executive, is entitled to no inconsiderable weight upon the question whether the proceeding adopted by it was "due process of law." *Prigg v. Pennsylvania-, 16 Pet. 621; United States v. Nourse, 9 Pet. 8; Randolph's Case, 2 Brock. 447; Nourse's Case, 4 Cranch C.C.R. 151. Tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 cannot be denied to be due process of law when applied to the ascertainment and recovery of balances due to the government from a collector of customs It is to support this last conclusion on what is and is not Due Process under the Fifth Amendment that the Court examined history, including Magna Carta. All the rest of this discussion of history was Obiter Dictum not binding precedent. And of course, not Supreme Court precedent is binding on future Supreme Court rulings. The court can and does overturn its own decisions, and change its interpretations of the Constitution. Wooden v. United States and its citation of Murray's Lessee In Wooden v. United States (Mar. 7, 2022, No. 20-5279), Justice GORSUCH in his opinion concurring in the result, but dissenting from the majority opinion's reasoning, wrote, starting on page 6 of his separate opinion: Consider lenity’s relationship to due process. Under the Fifth and Fourteenth Amendments, neither the federal government nor the States may deprive individuals of “life, liberty, or property, without due process of law" Amdts. 5, 14. Generally, that guarantee requires governments seeking to take a person’s freedom or possessions to adhere to “those settled usages and modes of proceeding” found in the common law. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856); N. Chapman & M. McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1774–1775 (2012). And among those “settled usages” is the ancient rule that the law must afford ordinary people fair notice of its demands. See, e.g., Sessions v. Dimaya, 584 U. S. ___, – (2018) (GORSUCH, J., concurring in part and concurring in judgment) (slip op., at 3– 5). Lenity works to enforce the fair notice requirement by ensuring that an individual’s liberty always prevails over ambiguous law. Early cases confirm the message. In United States v. Wiltberger, a sailor had killed an individual on a river in China. 5 Wheat. 76, 77 (1820). But the federal statute under which he was charged criminalized manslaughter only on the “‘high seas.’” Id., at 93 (quoting Act of Apr. 30, 1790, § 12, 1 Stat. 115). Chief Justice Marshall acknowledged that other parts of the law might have suggested Congress intended to capture the sailor’s conduct. 5 Wheat., at 105. But he insisted that “penal laws are to be construed strictly” because of “the tenderness of the law for the rights of individuals”—and, more specifically, the right of every person to suffer only those punishments dictated by “the plain meaning of words.” ... United States v. Mann tells a similar story. 26 F. Cas. 1153 (No. 15,718) (CC NH 1812). ... As the framers understood, “subjecting . . . men to punishment for things which, when they were done, were breaches of no law . . . ha[s] been, in all ages, the favorite and most formidable instrumen[t] of tyranny.” The Federalist No. 84, pp. 511–512 (C. Rossiter ed. 1961) (A. Hamilton); see also McBoyle v. United States, 283 U. S. 25, 27 (1931) Although it is not likely that a criminal will carefully consider the text of the law . . . fair warning should be given to the world in language that the common world will understand The first thing to note is that this is not a majority opinion, and so not binding law. Indeed another opinion in this case specifically responds to Justice Gorsuch's views, taking issue with them. The next thing to note is that while the opinion does cite Murray’s Lessee, it never so much as mentions Magna Carta, nor does it quote any of the mentions of Magna Carta in Murray’s Lessee. Justice Gorsuch cites Murray’s Lessee to support two principles. One is the "rule of lenity" whch says theist when there is ambiguity in a criminal statute, it shall be read so as to favor the accused. The other is the "rule of fair notice" which says that a person shall not be convicted of crime unless some law clearly makes the actions charged criminal. Justice Gorsuch derives both of these from the Due Process clauses of the Fifth and Fourteenth amendments. To establish this, he cites, not Magna Carta, nor cases from Tudor times, nor US cases from before the Constitution, but US Supreme Court cases written by Justices Marshall and Story (both members of the Marshall Court), and one of the numbers of The Federalist (often considered a good guide to the intentions of the framers). Nothing in this citation implies that the detailed procedures of Magna Carta are now in force, nor that they ever were in the US. It applies only a general rule of law, not a detailed procedure, and that on the basis of US Supreme Court precedent, not because Magna Carta says so. The Great Charter may have been one of the earliest statements of these rules, but it is the reconfirmation of them, in case after US case, that makes them part of US law today. | The US Supreme Court has made some decisions that legal scholars, other judges, lawyers, and people in general have strongly criticized as mistaken, but none anywhere nearly as wild as the one suggested in the question. Many such, well let me call them "disputed", rulings have been later overturned by the court itself. A well known example is Minersville School District v. Gobitis, 310 U.S. 586 (1940), which was overruled a few years later by West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Many of the so-called Lochner era economic decisions were also eventually overturned by the Court itself. Some disputed holdings have been altered by changes in the law, State or Federal. Some have been overturned via a constitutional amendment, such as Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), which is now held to have been overruled by the Fourteenth Amendment, although the Court did not come to that conclusion until early in the 20th century. Perhaps the most notorious case is Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) which held that a person of African descent could never become a US citizen, and that Congress was without power to prohibit slavery in any US state or territory. This is perhaps the most denounced decision of the US Supreme Court in its history (See the linked Wikipedia article for a few such comments.) This decision was undone de facto by the outcome of the US Civil War, and de jure by the adoption of the Thirteenth and Fourteenth Amendments. Some cases have later been treated as "bad law" even though not formally overturned. An example is Korematsu v. United States, 323 U.S. 214 (1944), in which the Supreme Court upheld the removal of US citizens of Japanese ancestry from the US Pacific coast during WWII, and their confinement in what has been described as a series of concentration camps. This has not been formally overruled, but in Trump v. Hawaii No. 17-965, 585 U.S. ___ (2018), Chief Justice Roberts wrote: The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—'has no place in law under the Constitution.' 323 U. S., at 248 (Jackson, J., dissenting). [quoting Jackson's dissent in Korematsu] And some cases, although much disputed, still stand as good law. The case of Flood v. Kuhn, 407 U.S. 258 (1972), holding that Baseball continued to be exempt from anti-trust laws, federal and state, has been much criticized, but remains in force to this day. (See the section "Subsequent jurisprudence" in the linked Wikipedia article) Congress has not, so far, acted to limit the exemption, as the opinion indicates that it had the power to do. In short, a US Supreme Court decision, however "erroneous" or "absurd" commentators or the public may consider it, remains the law of the land until it is overturned or distinguished by the court, or made obsolete by changes in statute or in the Constitution itself. It the highly unlikely situation described in the question, John Doe would remain in prison until his sentence expired or he received a pardon. |
How does "property in the goods" make any sense? Aren't goods the property? The SGA 1979, like s 2, uses "property in the goods" X. But this feels bizarre in ordinary lay English! Native English speakers say that they are buying goods, fuel and food — not they are buying property in the goods, property in the fuel, and property in the food? What does property in the mean here? Can you please demystify this? 2 Contract of sale. (1) A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. (2) There may be a contract of sale between one part owner and another. (3) A contract of sale may be absolute or conditional. (4) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale. (5) Where under a contract of sale the transfer of the property in the goods is to take place at a future time or subject to some condition later to be fulfilled the contract is called an agreement to sell. (6) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. Burnett LJ (former) — now LCJ — also uses this syntax at the bottom of this quotation from Lee Roach, Commercial Law 2019 3rd edn, p 208. After the Supreme Court’s ruling in PST Energy 7 Shipping LLC and Another v OW Bunker Malta Ltd and Another (The ‘Res Cogitans’)13 it may not always be that straightforward to be able to recognize a contract of sale of goods. Despite its initial appearance as a contract of sale, the Supreme Court held that a contract for the supply of fuel bunkers, which contained a retention of title clause and permitted the shipowner to consume the bunkers during the period allowed for credit, was not a contract of sale within the meaning of SGA 1979, s 2(1). The contract was silent as to whether property in the consumed bunkers passed to the owners before or at the point of consumption. Lord Mance rejected an argument that property in the fuel must have been transferred a nanosecond before it was consumed and concluded that title in the consumed bunkers never passed to the owners. This case will be discussed in greater detail at pp 257–59. An unsuccessful attempt to extend the principles in The Res Cogitans to a case involving a claim for food poisoning at an all-inclusive catering holiday was made in Wood v TUI Travel plc, t/a First Choice,14 where the tour operator sought to rely upon the case in support of the contention that there was no intention to transfer any property in the food until the precise moment it was placed in the customer’s mouth and thereby destroyed. Burnett LJ was unconvinced by the reliance on The Res Cogitans, stating: The conclusion reached by the Supreme Court depended upon the relationship between the retention of title clause and the liberty nonetheless to consume fuel in which property had not already passed. The problem would not have arisen but for the retention of title clause. If the contract had been a straightforward one for the sale of fuel oil with no such clause, property in the bunkers would have passed on delivery, assuming the seller itself had property in them.15 | "Property in" in the Sale of Goods Act 1979 is an archaic phrase, carried over from previous versions of the Act adopted in the 1800s (which in turn carried on terminology from prior British common law cases), that means "Ownership of". The archaic language was retained because it has such a rich case law (not just in the U.K., but throughout the British Commonwealth) interpreting it that would be lost or hard to access if the terminology were revised, in a situation where the case law was seen as a positive worth keeping. | 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 German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content). If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court. Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms. Also note that everything said is only based on my own knowledge and can not be used as safe legal source. | A "land contract" is not a way of renting property, it is a way of purchasing property on an installment basis without bank financing. It is Ohio's version of what in some other places is known as "contract for deed". See "What is a Land Contract in Ohio" and "How Land Contracts Work" The actual law is Section 5313. In a land contract, the buyer has equitable but not legal title. The buyer normally pays all taxes and fees, and is responsible for maintaining the property, just as if s/he has bought the property. But if the buyer defaults, all payments and equity would be forfeit to the seller. Until the buyer has paid 20% of the purchase price, or made 5 years of payments (whichever comes first) a single missed payment constitutes default and can lead to the buyer being evicted with all payments to date going to the seller, the buyer coming out of the deal with nothing. Also, if the seller still has a mortgage and defaults, the buyer may lose everything paid to date. The buyer does not have the protections that a lease gives a tenant, nor the protections that legal title gives a purchaser via a traditional mortgage. Land contracts are often used when the buyer cannot qualify for a mortgage. The buyer pays interest, and it is often at a higher rate than the current rate on a mortgage. Land contracts are often a form of predatory lending, but for some buyers they make sense. A buyer needs to carefully review the contract with a lawyer knowledgeable about land contracts, and consider the risks and benefits of this form of financing. As I understand it, there cannot be a valid land contract for one apartment in an apartment building. A land contract must be for title to the land and all fixtures, including all buildings, on it. (There was at one point some unclarity if the question referred to an apartment. It is now clear that it refers to a house, so this statement is not relevant to the OP, but may be to others.) It is not clear just what the OP's landlord (LL) has in mind. It may be that LL plans to offer a "land contract" in which the purchase would be completed only after a very long time, with the idea that the OP would simply default when s/he wanted to move. Such a default could harm the OP's credit. There seems no benefit to the OP in such a scheme compared to a lease, unless LL will lower the price significantly, taking into account maintenance costs and taxes, which OP may well be expected to pay under a land contract. Note that a landlord can't legally force a tenant to sign a document cancelling a lease, or to sign whatever s/he will call a "land contract". Nor can s/he cancel the lease without the tenant's consent except for good cause as specified in the law (such as not paying rent). S/He could become uncooperative on other matters if a tenant doesn't do as s/he wants. If a tenant does cancel his or her lease, s/he will lose some rights. Others are guaranteed by law as long as the tenant is paying rent. If one signs a "land contract", what happens depends on its provisions. OP needs to very carefully consider just what is being offered, and its risks and any possible benefits. Details of the contract will matter. No matter exactly what LL has in mind, this is not at all a usual procedure for a landlord. OP or anyone in a similar circumstance should be very careful. | Inferring from the question, it appears that: The tenancy is an Assured Shorthold Tenancy. The tenancy agreement started on 16 December 2014. The initial fixed term was for 12 months. (Please comment below if any of this is incorrect). A Section 21 order gives notice that, unless the tenant leaves by the date given in the document, the landlord will begin legal proceedings against the tenant, in order to obtain a court order forcing the tenant to leave. To answer the OP's questions: Does it mean that she wants to use her right to cancel the contract after 2 months? It looks like that to me but I am not 100% sure. Yes - but if this is before the end of the fixed term (which I'm assuming is 15 December) there must be a clause in the tenancy agreement (normally called a "break clause") allowing the fixed term to be terminated early. If there is no break clause, then you cannot be asked to leave before the end of the fixed term. What does it mean "after 16/11/2015"? After can mean anything... even end of contract in December. Yes. The landlord would like you to leave before the date shown - but if you don't, the landlord can begin legal proceedings any time after that. Is this a legal document or just something she made up? It is a legal document. Section 21 of the Housing Act 1988 allows a landlord to ask a tenant to leave without having to give a reason. The landlord must meet certain conditions in order for the notice to be valid. What happens if I want to leave the house later because I don't find alternative? You'll need to discuss that with the landlord. However, if you don't leave by the end of the fixed term, you are entitled to stay (and pay rent!) until a court (not the landlord) orders your eviction. EDIT: This website goes into a lot more detail about the whole Section 21 procedure. | Because English loves homophones A lot of words in English have more than one meaning. The current front runner is run with 645 definitions in the OED. Understanding English requires more than knowing the definitions, it requires understanding the context. Warranty in a contract law context means a term the breach of which does not justify terminating the contract. Or a term of a contract rather than a representation about the contract, depending on context. Warranty also has a common meaning that makes it a synonym of guarantee. It can also mean a court order calling for the arrest of someone (an arrest warrant) or to search a premises (a search warrant). It can also mean the authorization from the government to act as a high ranking NCO in a military service - NCOs hold warrants, officers have commissions. Among others ... | You are not bound by any contract. You bought a physical good that the seller was barred from selling outside of the listed countries by his supplier. You did not enter a contract with the seller's supplier. Let's look the stream of commerce: Supplier of the item (Printing press) offers it. Sale with a sales limiting contract to resellers. Sale by reseller to customer without limiting contract. The first sale doctrine says, that without a form of contract, the rights of the supplier are exhausted in step 2. Even with a contract limiting the reseller's rights, step 3 exhausts any right the supplier has in the item, unless he too explicitly signs a contract. Selling an item in normal commerce is not satisfying this requirement. There already were no rights in the physical copy of the book when whoever bought the book first sold it to the second-hand seller you bought it from, and there can't be any more rights in the selling of this book gained by the original supplier unless he bought the book back from you. | No Common law jurisdictions read contracts objectively - that is if it unambiguously states what the parties agreed to then that is what the parties agreed to. If that includes selling your offspring into slavery or mortgaging your organs then so be it (such terms would be void for illegality but if they weren’t illegal then what it says is what happens). Terms can be implied into contracts but only in limited circumstances: implied by statute. A statute can imply a term if a contract doesn’t. A statute can also override an explicit term with the statute’s term. implied by custom. Customary usage in an industry or market can be implied into a contract. implied by past dealings. If the parties have repeatedly entered into contracts, terms may be implied by their past conduct. implied at law. Specific categories of contracts can assume implied terms, for example, property leases imply that the tenant will have quiet enjoyment of the premises. Such terms can be overridden by explicit terms. implied by fact. Such terms must be reasonable and equitable; necessary to give business efficiency to the contract. For example, the contract will not work effectively without the term; so obvious that it ‘goes without saying’. An impartial bystander in the position of the parties should be able to assume that the term is part of the contract; capable of clear expression; and not contradict any other terms of the contract. If there is no clause permitting the host to cancel the contract, there is no basis for implying one: the host cannot cancel the contract. If they do they are repudiating the contract and the other pa try can sue for damages. |
If a dispute arise between two parties, and a third party volunteers to mediate, are any agreements made to the mediator binding on the two parties? For example Bob hires Fred to do a job. Bob does not believe Fred fulfilled his duty and refuses to pay. If Fred asks a friend of Bob to talk to Bob about it, and Fred agrees (to the mutual friend) to pay 50% the initial wage, is this agreement binding? Would it make a difference if Fred is CC'd on the email where Bob agrees to pay Fred 50%, and Fred replies accepting this as a settlement? Hypothetically if Bob decided to still not pay 50% could Fred use this as evidence to sue? Aside: I had asked a lot of questions regarding getting money back from a landlord. I would like to sincerely thank everyone who provided information. It was difficult, but I prevailed in court without a lawyer. | Mediation is non-binding Mediation and conciliation are non-binding methods of dispute resolution. If properly conducted, a mediator does not make any suggestions as to how the parties might resolve a dispute; they simply maintain a space where such a resolution might occur. If the parties reach an agreement, that agreement might be a legally binding contract. See What is a contract and what is required for them to be valid? If it is, then it could be enforced by a court. If it isn't then compliance is voluntary. What you describe is not mediation However, the agreement facilitated by Bob & Fred's mutual friend either is or is not a contract and the same circumstances follow. | If Bob acknowledges how he has altered the evidence at the time he submits it, there shouldn't be any issues with it turning into falsification, which generally only becomes a problem when it's done with an intent to mislead the court. More likely, an opposing party would raise an authenticity objection, i.e, that the evidence has been altered and is therefore not trustworthy. It's probably going to be up to the judge whether to sustain that objection or not, and I'd expect the court's decision to turn in large part on how plausible it finds Bobs allegations of fraud and retaliation. I'd also expect that the Court would be less concerned with the pitch alteration than the redaction of portions of the recording. If we don't know what Bob is saying, it makes it hard to understand the full context of the conversation. Of course, all of this assumes that Bob hasn't already been forced to turn over the original recordings to Company, which he will be. The parties have a right to each other's evidence, and they are required to identify their witnesses to each other. The moment Company knows about the recording, it is going to submit a discovery request demanding a copy, and Bob will be obligated to comply. If Bob objects that doing so would expose the representatives to retaliation, I would expect the court to warn Company against tampering with witnesses and then order Bob to comply with his discovery obligations. | No The tenant is liable if they break a contract: there is no contract here. One of the tests for a contract is that there is an offer that if accepted will create a clear, unambiguous contract. Looking at the enumerated facts: Alan advertises a room to rent in a joint tenancy property in which they are lead tenant - not an offer, this is an invitation to treat Zoe views the room and verbally expresses an interest in renting it - not an offer, this is the opening of negotiations Alan passes on Zoe's contact details to the estate agent - not an offer, this is communication between one party and their agent The estate agent contacts Zoe by email, providing a draft contract and asking for further information in order to complete her details - not an offer, the contract is a "draft" Zoe provides the requested details, again by email - not an offer, just a transfer of information The contract is drawn up and the estate agents inform both Alan and Zoe that it is ready to be signed - this is an offer A week later (having not yet signed), Zoe informs the estate agent that she no longer wants to take the room - ... that was not accepted Further, the tenant is liable if they are promissory estopped - they have withdrawn a promise made to a second party if the latter has reasonably relied on that promise. Zoe has made no promises other than one to negotiate - she has negotiated. | If you do not get anything from this "contract", and all it says is that you will pay someone a sum of money "on demand", it does not meet the basic requirements to form a contract, and in particular, there is no consideration being received by you. It would therefore not be a contract and would have zero legal force. If you do receive consideration, demonstrating that you signed the contract under duress will require specific legal advice, and you need a practicing lawyer in your jurisdiction. | Since this seems to have been viewed a lot, an update/answer. I can't comment on the normalcy of such clauses since this has been my only experience. But the Estate Agent immediately struck the clause without any fight, so it seems like it was just there "in case I let it slide". It turned out to be a great decision, since I ended up finding my own buyer in the same week that the agent acquired a suitable offer, which I would then have been liable to pay the fees for. | Do I have any recourse for invalidating all or part of the contract? No. There is a presumption in contract law that when a contract is reduced to writing then what that writing says is what the parties agreed. Also, if you signed it, then you are legally stating: I read it, I understand it and I agree to it - don't sign things you don't understand. If your lawyer has produced something you don't understand then have them redraft it until you do. Would a successful suit against the lawyer for malpractice or negligence make any difference? No. A suit against you lawyer may get you damages from your lawyer but it will not affect the rights of third-parties. What is best practice for avoiding flawed contracts like this in the first place? Read and understand the contract. Educate yourself enough in the law so that you can do this. Your lawyer is there to give you professional advice; you are there to make your own decisions. | If I did not sign promotion bonus document, my career would be over. Is this duress? No. The premise is hardly true or even logical, and what you describe falls short of duress. Not every imbalance of bargain power implies duress. First, it seems that you could have declined the bonus, thereby preempting the sanction/remedy for leaving within 12 months. Second, it seems hard to prove (and unrealistic) that your career would have been over if you refused to sign the document. The employer can easily refute that allegation by pointing out that there are many others who did not sign that employer's document and yet work elsewhere as investment bankers. You would need certain, additional context to reasonably allow for a conclusion that your career altogether depends on what happens with this single entity. Third, your mention that "the bonus mitigates the horrendous weekly hours" reinforces the idea that signing the document was your preference (namely, for the purpose of obtaining some additional, non-compulsory stimulus) rather than employer-inflicted duress. The rationale and decision for acceptance of those conditions reflects that you knowingly exercised your freedom of contract. A party is not entitled to void a contract only because he belatedly changed his mind about conditions of which he was aware beforehand. | Some portions of your inquiry are confusing, as in "I insisted that we were going to continue to send money to the mortgage company if we don’t understand what the fees are for". It is unclear why you would continue to send money without understanding the reason for fees, especially since you purportedly sent "the complete payoff" already. What is an appropriate response to an email from a lawyer that says she’s going to withdraw from my case, because I would like to understand the additional fees and charges my mortgage company is charging (over and beyond the plan payment/payoff)? Rather than replying to the lawyer's email, it is more important that you timely file in court a response (with 2 or 3 copies) to her motion to withdraw and that you attend the court hearing (if any is scheduled). Don't forget to also mail your attorney a copy of your response. In the response, you will need to argue that your lawyer's refusal to adequately address your inquiries is in violation of the rules of "professional" conduct (with which attorneys are supposed to comply). By granting the attorney's motion, the court would improperly release her from pending obligations she has with respect to you. For instance, Rule 1.4 of Michigan RPC states: (a) A lawyer shall keep a client reasonably informed about the status of a matter and comply promptly with reasonable requests for information. [...] (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (note: other jurisdictions in the U.S. have equivalent rules, so you will need to refer to their corresponding label) By pushing you to pay another $850 without actually explaining you the details of the "settlement" with mortgage company's counsel, your lawyer clearly is failing her duty to reasonably inform you of the matter for which you retained her. Therefore, your response should substantiate that a granting of the attorney's motion to withdraw ought to be conditioned on the fulfillment of her obligation to provide you with reasonably sufficient information which you as her client are entitled to obtain. It will help if you attach to your motion & brief an exhibit showing that the mortgage company actually directed you to inquire of your lawyer the clarification(s) you are pursuing. Once you take care of that issue, I encourage you to seriously assess (and proceed accordingly) whether your attorney's misconduct merits being reported with the entity in charge of disciplining lawyers for their legal malpractice. If I were knowledgeable of bankruptcy law, I would be happy to address your first question. I can only suggest you to do some research on leagle.com to become acquainted with how courts decide bankruptcy issues. Be sure to set parameter "Search By Court" to "Federal Bankruptcy Court". |
What are the simplest ways to gain a Property/Proprietary Interest in equity shares held by a defendant? I don't understand how someone can have "a property interest that is not a security interest". I'm assuming the example below, of a claimant havinmg "a priorietary interest in shares that are held by the defendant" instantiates a property interest that's NOT a security interest? But how can someone acquire "a proprietary interest in shares that are held by the defendant"? What does this mean exactly? Secondly, where the claimant has a property interest that is not a security interest, if the property in which the claimant has the interest has increased in value, the claimant will get the benefit of that increase. So, for example, if the claimant has a proprietary interest in shares that are held by the defendant, the claimant will be able to gain both the benefit of any dividends paid in respect of the shares and any increase in the value of the shares. Of course, if the claimant has a property interest in shares that have fallen in value, it may be preferable for the claimant to pursue a personal rather than a proprietary claim. So, for example, if the defendant trustee has misappropriated £200,000 from a trust fund which was held for the claimant beneficiary, the claimant will have a proprietary claim against the defendant to recover the £200,000 that was misappropriated and, alternatively, a personal claim for the amount misappropriated. If the defendant used the £200,000 to buy a house, the claimant will be able to claim the house instead of the money.71 But, if the value of the house has fallen to less than £200,000, it will be preferable for the claimant to rely on the personal claim to recover the amount of £200,000. In reality, in such a case it is unlikely that the defendant will have enough money to repay the claimant in full. The defendant may well be insolvent and so the claimant, who would be treated as an unsecured creditor as regards their personal claim, will have an equal claim with all the defendant’s other creditors to the defendant’s assets. It may, therefore, still be worth pursuing a proprietary claim to recover the value of the house, even though it is less than what the defendant actually owed to the claimant. Virgo, The Principles of Equity & Trusts 2020 4th edn. Page 16. All boldings and italics are mine. | A security interest is an interest that only extends as a security, i.e. "Property that is given or pledged to guarantee the performance of an obligation". So for example, a bank mortgaging a house has a security interest in the property, allowing them to do things such as force a foreclosure sale in certain circumstances, as well as claim their money immediately if the property is sold; likewise, a car title loan issuer has a security interest in the car their loan is based off of. This doesn't have to be a loan debt; it can be a performance bond, such as a bail bond to appear in court. A security interest does not extend to the property itself, merely the obligation. So, for example, if you default on a home loan, the mortgage company can foreclose and force a sale, but they cannot claim all of the money of the sale, only the portion corresponding to the debt (e.g. if you default on a debt that is currently 100k, secured by one's house, and the house sells in foreclose for 200k, the bank can only keep 100k (plus allowed fees); the remainder must be paid to the former owner). A property interest that is not a security interest is an interest in the property itself. So for example, owning a portion of a house, via an inheritance, is a property interest; because it is not a guarantee for anything, it is not a security interest. Or in other words, a property that is not a security interest is the "default" state, with said property interest only becoming a security interest if it is pledged in some manner. | It’s your house You can’t be forced by a co-owner to pay rent for a property you own. You can’t be forced by a co-owner to sell if you don’t want to. You can’t be forced by a co-owner to pay to maintain the property.or to pay utilities. Of course, if no one maintains the property or pays the rates then eventually you won’t have a property but you can’t be forced to. This applies to her as much as it applies to you. It’s possible, even likely, that your mediation agreement meets the requirements of a contract. If it does, then breaching it will allow the aggrieved party to sue for damages. The good news is, you can get on with your life right now - sign over the house to your sister and walk away. Except you can’t because your interest in the house needs to be dealt with in the divorce. If you want your “fair share” and your idea of what that is is bigger than hers then you have to fight for it - lawyer up. | In Civil law jurisdictions, the heir of a deceased person will generally inherit all the possessions, rights and obligations - this may include debts. So if a borrower passes away, the lender will typicall find out who is the heir, and ask them to pay. The heir will be required to pay, and the creditor can use the usual channels (reminders, collection agencies, court judgements) to make them pay. However, if the inheritance is "under water" (has more debts than assets), there are ways to avoid having to pay the debts: In Civil law jurisdictions, acceptance of an inheritance usually means being liable for all the debts, too. Details vary between jurisdictions - in Germany, for example, acceptance of an inheritance is automatic, and a heir must file a document to refuse it (this is called disclaiming the inheritance). In France, in contrast, the default is to disclaim the heritage, but certain interested parties (such as creditors) can require a heir to formally make a choice, then the default is acceptance (https://www.service-public.fr/particuliers/vosdroits/F1199). In contrast, in the United States (which generally uses Common law), creditors are paid first, and the heirs only inherit what is left, in a process called probate. In that case, a heir need not explicitly disclaim an inheritance that is "under water" - they will simply not inherit anything. Note that the heir may choose to inherit certain debts in exchange for keeping certain assets - for example, if a home with a mortage is part of the inheritance, the heir may either choose to sell the home and pay the mortage, or keep the home and accept the mortage as debt. Notes: Even if inheritance is not automatic, the system usually allows a heir to disclaim it. There are other reasons for disclaiming an inheritance apart from debts, for example tax advantages, or the desire to grant the inheritance to a different relative. If a heir disclaims the inheritance, no matter the reason, the inheritance automatically passes to the next heir in line. If all potential heirs disclaim in turn (as would typically happen if the inheritance has more debt than assets), the inheritance will usually fall to the state. Then, the assets will be divided up among the creditors (similar to insolvency proceedings). As an exception to the rule above, the state does not have to pay outstanding debts - so that money would be lost for the creditors. | 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. | 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. | Check your local law. In Washington, the chapter RCW 63.21 says what you are supposed to do. The first part of the law has apparently been satisfieds: Any person who finds property that is not unlawful to possess, the owner of which is unknown, and who wishes to claim the found property Then you need to get a signed appraisal stating current market value from a qualified person engaged in buying or selling the items, or by a district court judge (I have no idea where district court judges get their qualifications to appraise bricks), then within 7 days, report this to the cief LEO where the stuff was found (and surrender it, if requested). You also have to serve written notice upon that officer stating your to claim the property. The burden now shifts to the government, which must publish notices in a local newspaper at least weakly, for 2 weeks. The notice might be publishable in a no-cost venue, in case the publication cost is greater than the value of the stuff. If the owner appears and establishes ownership, that's the end of the finder's potential interest. If the owner does not show up, the property will be released to the finder once he has paid the government's publishing expenses plus $10, but if the goods are appraised at less than publishing cost, there is no fee. As a finder, you have 30 days after that 60 days to pay required costs, otherwise it goes to the government. There are some exceptions, things not subject to finders-keepers (crab pots, secured vessels, motor vehicles, unclaimed property in the hands of a bailee). If you do not comply with these requirements, you forfeit any right to the property and you are liable to the property owner for the value of the bricks. Under the definition of theft, you have a defense that The property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable since you presumably intend to claim ownership of the bricks under the lost property statute. | 1.a) Is there any states in the U.S. where stolen property is statutorily (and/or by case law) mandated to be returned to the legal owner from an equitable owner in the above scenario or in cases where the victims’ footings are more balanced? Yes 1.b) Which are they? All of them. The relevant cause of action is the common law tort of detinue: The gist of an action in detinue is that the defendant is wrongfully in possession of personal property which belongs to the plaintiff ... In modern practice, detinue has been superseded almost entirely by statutory actions for the recovery of personal property. 2.a) Is there anything else whatsoever than the law (statutory or decisional) that Alice may plead to bind the court to issue a mandatory injunction ordering Charlie to return the violin to Alice if Alice is willing to forgo any and all damages in return of such injunctions? Alice is not seeking an injunction for the return of the violin; she is seeking a judgement ordering the return. An injunction is an interim order to preserve the status quo. She might seek an injunction that Charlie be restrained from using, damaging or disposing of the violin while the case is ongoing and that might be granted but one ordering the return where ownership is yet to be established would not. However, given that monetary damages are a suitable recompense for Alice's loss in this instance, the court might not issue an injunction. 2.b) If there is, how does it overcome Ebay? Ebay is not applicable to the final judgement. If the violin is found to be Alice's, the court will order its return (not an injunction). If Alice does seek an interim injunction, then Ebay will apply. Hence why I suggest that some types of injunctions might be granted and others will not. 3.) Which states, if any, in the U.S. punish the knowing possession of stolen property as opposed to punishing the knowing receipt thereof? None as far as I know. What is happening between Alice and Charlie is not a state punishment - it is the resolution of a civil dispute about ownership. Most states do have forfeiture laws that might allow them to confiscate the violin irrespective of if Alice succeeds in proving ownership but, again, that is not punishment of Charlie - his loss was at the hands of Bob, not the state or Alice. | No, One cannot lawfully do this in Ohio Historic Common Law In English common law, granting a share of a future legal judgement was prohibited as Champerty According to the Wikipedia article just linked: Champerty (from Old French champart) is the financial support, by a party not naturally concerned in the suit, of a plaintiff that allows them to prosecute a lawsuit on condition that, if it be brought to a successful issue, the plaintiff will repay them with a share of the proceed from the suit.{"Oxford English Dictionary". www.oed.com. Oxford University Press. Retrieved 14 January 2021.} In Giles v Thompson{ UKHL 2, [1993] 3 All ER 321 (26 May 1993)} Lord Justice Steyn declared: "In modern idiom maintenance is the support of litigation by a stranger without just cause. Champerty is an aggravated form of maintenance. The distinguishing feature of champerty is the support of litigation by a stranger in return for a share of the proceeds." At common law, maintenance and champerty were both crimes and torts, as was barratry (the bringing of vexatious litigation). This is generally no longer so1 as, during the nineteenth century, the development of legal ethics tended to obviate the risks to the public, particularly after the scandal of the Swynfen will case (1856–1864).2 However, the principles are relevant to modern contingent fee agreements between a lawyer and a client and to the assignment by a plaintiff of his rights in a lawsuit to someone with no connection to the case. Champertous contracts can still, depending on jurisdiction, be void for public policy or attract liability for costs. In any common-law jurisdiction that inherited the common law of England (which includes all US states other than Louisiana) champerty will remain unlawful unless a) a specific stature has removed or altered this part of the common law, b) a general statute has done away with the common law entirely, replacing it with statutory law generally (in which case a similar prohibition may or may not be in statute), or c) an appellate court has declared that champerty is no longer unlawful in that jurisdiction. Ohio In Ohio a case precisely on point was Rancman v. Interim Settlement Funding Corp., 99 Ohio St.3d 121, 2003-Ohio-2721.. In that case a Ms. Rancman, who had a valid claim against an insurance company, did not wish to wait for the resolution of her case, and contracted with Interim Settlement Funding Corp. for an advance against the settlement of $6,000, in return for a promise of an amount ranging from $16,800 to $27,600, depending on how soon the case was resolved. If she lost the case, she would owe nothing according to the terms of the contract. When her insurance case settled for $100,000, she refused to pay as specified in the contract, instead offering to return the money advanced plus interest at eight percent per year. The lower courts upheld the eight percent rate as valid, The Ohio Supreme Court, however, held (at ¶19}) that: The advances made to Rancman constituted champerty and maintenance. Consequently, the contracts requiring their repayment are void and shall not be enforced. Apparently this left Interim Funding not even getting their principal back. Given this relatively recent holding (2003), one doubts that funding companies would be willing to advance money on future Ohio claims. In the Rancman opinion Justice O’Connor wrote: {¶9} It is unnecessary for the resolution of this case to determine the threshold level of risk necessary for a contingent advance to be treated as an investment rather than a loan. The advances here are void as champerty and maintenance regardless of whether they are loans or investments. {Emphasis added} {¶10} “Maintenance” is assistance to a litigant in pursuing or defending a lawsuit provided by someone who does not have a bona fide interest in the case. “Champerty” is a form of maintenance in which a nonparty undertakes to further another’s interest in a suit in exchange for a part of the litigated matter if a favorable result ensues. 14 Ohio Jurisprudence 3d (1995), Champerty and Maintenance, Section 1. The doctrines of champerty and maintenance were developed at common law to prevent officious intermeddlers from stirring up strife and contention by vexatious and speculative litigation which would disturb the peace of society, lead to corrupt practices, and prevent the remedial process of the law.” 14 Corpus Juris Secondum (1991), Champerty and Maintenance, Section 3. See, also, Bluebird Partners, L.P. v. First Fid. Bank, N.A. (2000), 94 N.Y.2d 726, 709 N.Y.S.2d 865, 731 N.E.2d 581. {¶11} The ancient practices of champerty and maintenance have been vilified in Ohio since the early years of our statehood. Key v. Vattier (1823), 1 Ohio 132, 136, 1823 WL 8. We stated in Key that maintenance “is an offense against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression.” Id. at 143. We have held the assignment of rights to a lawsuit to be void as champerty. Brown v. Ginn (1902), 66 Ohio St. 316, 64 N.E. 123, paragraph two of the syllabus. We have also said that the law of Ohio will tolerate no lien in or out of the [legal] profession, as a general rule, which will prevent litigants from compromising, or settling their controversies, or which, in its tendencies, encourages, promotes, or extends litigation. (Davy v. Fid. & Cas. Ins. Co. (1908), 78 Ohio St. 256, 268-269, 85 N.E. 504.) {¶12} In recent years, champerty and maintenance have lain dormant in Ohio courts. Historically, champertors and maintainors were attorneys, and these practices by attorneys have been regulated by DR 5-103 of the Code of Professional Responsibility. See, e.g., Disciplinary Counsel v. Williams (1990), 51 Ohio St.3d 36, 553 N.E.2d 1082. Nonetheless, the codification of these doctrines for attorney discipline did not remove them from the common law. “[T]he doctrines of champerty and maintenance appear in numerous Ohio cases as contract defenses * * *.” Tosi v. Jones (1996), 115 Ohio App.3d 396, 400, 685 N.E.2d 580, appeal dismissed upon the application of appellant in (1997), 78 Ohio St.3d 1430, 676 N.E.2d 535. ... {¶18} ...[A] lawsuit is not an investment vehicle. Speculating in lawsuits is prohibited by Ohio law. An intermeddler is not permitted to gorge upon the fruits of litigation Ohio Conclusion To be clear, noting that I found in Ohio law makes such an agreement a crime, even though it was on under ancient common law. In the Rancman case, it seems that no one was criminally prosecuted. Such an agreement is not legal in Ohio only in the sense that the court will not enforce it. Thus no funding company who checks the law would, I expect, enter into such an agreement and risk the same fate as Interim Settlement, not even getting the money advanced back when the suit had been won by the plaintiff. Nor is this case obscure -- a simple google search found it via the Wikipedia article, and other simple searches probably would also. Notes Abolished by Part II of the [UK] Criminal Law Act 1967, except as regards embracery, abolished by section 17 of the Bribery Act 2010. Pue, W. W. (1990). "Moral panic at the English Bar: Paternal vs. commercial ideologies of legal practice in the 1860s". Law and Social Inquiry. 15 (1): 49–118. doi:10.1111/j.1747-4469.1990.tb00275.x |
Texas: Standing Citizens can sue abortion providers for alleged violations, and plaintiffs will receive $10,000 from the accused if successful. The law also impacts anyone who "aids or abets" an abortion, which could potentially include a driver who unknowingly drove a woman to an abortion clinic. Source: https://www.cnn.com/2021/09/04/economy/companies-against-texas-abortion-law/index.html If the source is correct, what is there a general rule of thumb or reasoning that determines who can / can not litigate for said $10K in a Texas court room? Is there Federal law that governs who has standing? or is it solely at the discretion of TX law? I am trying to understand: with respect to standing, is this a state decision or does national law somehow trump state law. | Standing requirements are different in state and federal courts, and from one state to the next. A random individual would not have standing to object to a stranger's abortion in federal court, and likely not in any state court, under normal circumstances, as they are not injured in any meaningful way by the abortion. I don't know what the normal rules of standing are in Texas, but it is likely perfectly acceptable for the Legislature to wave its wand to grant standing to whomever it wants regarding any violation of the law it sees for. That seems to be what is happening here. | If we go by Indian case law (as we should), you have to find a way. The relevant case is K.P. Adbul Gafoor v. New India Assurance Ltd, where appellant drove on a motor cycle on a learner's permit without a licensed driver positioned correctly, in violation of Rule 3 of the Rules, and smacked someone. The bulk of the case is about the insurance and liability consequences of violating the rule: the main point here is that the court deemed this to violate the rules. | There are none. Damages against B’s clinic? A does not have a contract with B’s clinic. No duties nor rights without a contract. Damages against B? A does not have a contract with B. If there was a contract, we need details about it. Tort, § 823 Ⅰ BGB? No. B was neither negligent nor did he/she deliberately incur damage. Report B as criminal? A and B had consensual sexual intercourse. This consent (necessarily) comprises the risk of transmission. You cannot give “consent to facts” though. Yet here B had no knowledge of his/her contagiousness. He/she definitely did not deliberately infect A. Negligence is out of question, because there is no general expectation to get regularly tested before having sex with anyone. | No. Under Texas Penal Code Title 2 Subchapter A, one of three three conditions must be true to use the defense-of-others defense, that the person against whom force is used unlawfully and with force entered the person's residence, vehicle of business (not applicable), or attempted to forcibly remove the person from same (idem), or attempted aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Abortion is not statutorily murder in Texas, even if it is illegal. | Maybe, but probably not, although this would be a question of fact to resolve on a case by case basis under broad legal standards by a jury, and would also depend upon the state where it took place, and upon the nature of the employer of the paramedic. The hypothetical facts in this case are rich enough and ambiguous enough that the case could go either way depending upon how it was presented and what could be proven at trial. This is a case it would be good to take to a medical malpractice/personal injury lawyer in the jurisdiction where it happened to be evaluated. Usually a PI lawyer would not charge you for doing so or would ask for only a nominal fee. Additional factual investigation would probably also be necessary regarding some of the key facts identified below. It's complicated and there are multiple issues presented in this case where the law is not uniform from state to state. The general rule is that a medical professional has to carry out the delivery of medical care to a patient with the reasonable care that would be taken by a medical professional of that type. If the medical professional fails to take reasonable care, and that negligence failure to do so causes injury, then there is civil liability for medical malpractice. A threshold issue would be whether a medical professional-patient relationship was established. This would be a question of fact for a jury and would be a question upon which various potentially applicable state and federal laws would often not be uniform. On these facts, it could easily go either way. In federal court and in a majority of state courts (although there is variation from state to state) you need to know the name of the paramedic you dealt with who provided the bad advice to bring a successful lawsuit before suing. In a minority of states, you could sue first and get the name of the paramedic in discovery through the court process from the hospital after the lawsuit was commenced. The standard of reasonable care liability in this case would be judged by the standard of a reasonable paramedic, not a reasonable doctor. But, often states would have statutes that would limit the liability of paramedics in these situations to liability for gross negligence (which the facts in the question would probably not suffice to show), but not for ordinary negligence (which a jury could come out either way upon and which would hinge heavily on expert testimony). These tort reform type laws differ considerably from state to state. Whether or not particular conduct was negligent or grossly negligent, is a question ultimately decided by a jury under very broad and general legal standards after the fact in a trial, based largely upon expert testimony, on a case by case basis, unless the facts are unequivocally clear one way or the other, which is rarely the case. With my layman's level of knowledge about what a reasonable paramedic should be able to diagnose, I could see this determination going either way. Two cases with identical facts in front of the same judge in separate trials, in which juries are presented with exactly the same evidence could come out differently. The resolution of one case of the question of whether a particular act constituted negligence giving rise to liability is not binding as precedent and is not admissible as evidence in another case (subject to a narrow exception called "collateral estoppel" which applies when the same individual is sued by multiple people for the same conduct in different lawsuits that have resulted in final orders resolving key questions of fact that the lawsuits have in common). Many states would require that someone suing the paramedic have a medical professional certify that the paramedic's actions constituted legal negligence before the suit could go forward in a court. If there is a medical professional-patient relationship, and if the medical professional was found to have negligently caused injury, the medical professional's employer would have vicarious liability in some (but not all) states under a respondiat superior doctrine. Usually, the paramedic at an ER would be an employee of a private EMS ambulance company or a municipal fire department, and not of the hospital that runs the ER. But, some hospitals have their own in house paramedics. Also, some hospitals are run by for profit or nonprofit private companies, some are state or local governmental agencies, and some a federal government agencies. Usually only a small minority of the medical professionals in a hospital are employed by that hospital, and most of them merely have "privileges" to provide medical services for which they bill patients separately while working for their own professional corporation through which they are self-employed. Legally, the hospital itself is more like a hotel or a WeWork office space than to being a firm that directly provides medical services, although it isn't quite that black and white. Holding the ER directly responsible for failing to have good triage policies, as opposed to holding the paramedic responsible and assigning vicarious liability to the employer of the paramedic, would be very difficult, although not necessarily impossible if the ER had official policies that fell far below the standard of care for emergency room triage. It would be very uncommon for an ER to have bad policies of this type. Typically, ERs are only held directly liable for bad triage policies when, for example, they have a policy of not evaluating at all someone who does not have health insurance, which is a practice expressly prohibited by federal law. If the paramedic's employer was a government entity such as a fire department or a government owned hospital, the paramedic would be entitled to absolute immunity from civil liability under the doctrine of sovereign immunity, unless an exception applied. Usually there is an express exception to absolute immunity for medical malpractice liability by a medical doctor who has established a doctor-patient relationship with a patient, when the medical doctor is employed by a state or local government, usually there isn't when the doctor is employed by the federal government. But these laws differ from state to state in fine details that matter in a case like this one regarding whether the exception to immunity from liability is limited to medical doctors or applies also to paramedics. Causation would also be an important factual issue for trial. There is liability only to the extent that taking a non-negligent action could have prevented the harm. If you are infected with COVID, one common consequence is a stroke, and if someone had a stroke while infected with COVID, the case that taking them to the ER would have prevented the stroke from doing serious damage in the long run is weaker. On the other hand, guessing that a stroke was really something else, might or might not be reasonable. The injured person would also have to prove that the EMS response occurred at a time within the roughly 1-2 hours after the start of a stroke when it is possible to take medical action that could do something about a stroke. If the stroke had already happened an hour and a half later and it was rush hour and would have taken half an hour to get to the nearest hospital, causation might be absent and there would be no liability. There would be a legitimate question of fact over whether there was an actual diagnosis and treatment, or whether there was a refusal to get treatment. The reasonable care test is a balancing test. It takes into consideration not just the potential benefits of taking action, but also the cost that would be incurred if action was taken, and the downside risks of a proposed action. The paramedic's concerns about getting a COVID infection at the ER when the person responded to didn't appear to have it at the time would make the cost of a false positive diagnosis higher and would thus influence what would constitute reasonable care in this situation as the jury applies the relevant legal test. Liability would be evaluated based upon what the paramedic reasonable understood he was being told. This would be a question of fact for the jury. It is likely that different people who were present understood what was being said differently. Even if bystanders understood what was being said and meant, what matters is what the paramedic reasonably understood was being said and meant. Given the communication difficulties involved, that question could go either way. | Based on some quick searching, this would likely be a wrongful death action. I have to pick a state, so I'll pick Nevada. The first question is what damages could be. I don't know offhand what is typical in wrongful death suits, but this appears to be beyond mere negligence: there was a hit and run involved. I have no trouble believing the claim would reach at least six figures. This is important, because federal diversity jurisdiction only includes lawsuits with over $75,000 at stake. Now, Santa Claus's citizenship matters; if he were stateless it'd be an issue, but he is a citizen of Canada. That means that federal court has diversity jurisdiction: because the lawsuit is between a citizen of one state on one side and a foreign citizen on the other (no state has citizens on both sides of the lawsuit), and meets Congress's extra requirements (enough money at stake), it can be in federal court. The way diversity jurisdiction works is that the plaintiff can file in federal court, but if they choose to file in Nevada court then the defendant can remove the case to federal court. Either party can get it into federal court. Conventional wisdom is that federal court is more defendant-friendly than state court on state law claims. It is likely that if Grandpa files the case in any court in Nevada, the case will end up in the United States District Court for the District of Nevada. But suppose it is in state court? Most states don't have separate "county court" and "state court" systems; county courts are a thing, but they're a specialized thing and the serious stuff is not in those. A six-figure wrongful death claim won't go in Nevada's equivalent of small claims court. It'd go in Nevada district court, if it's in state courts. But what about other courts? Grandma was walking home, so it can be assumed she was a Nevada resident. Assuming Grandpa lived with her (which is rather likely), so is he. They then can't sue in any US state other than Nevada without being laughed out of court -- a lawsuit needs to have something to do with where you're suing. The other option is Canada, but such a suit is unlikely. | Traffic offenses, which are generally class C misdemeanors in Texas, and more generally, pretty much any offense for which you are required to appear in person at the court in Texas (which can result in issuance of a warrant for your arrest if you fail to appear) will generally be subject to the right to trial by jury in Texas. Note that this is not a U.S. constitutional requirement unless one can be incarcerated for six months or more for the offense, so, in all other cases, the right to a jury trial in traffic cases is a right that arises solely under the State of Texas Constitution and by state statute and state court rules. But, generally speaking, a parking violation in Texas in punishable with an administrative citation for which only a small fine is authorized, in which there is no right to a jury trial. See, e.g., this regulation governing parking violations on the property of the state capitol in Austin. More pertinent to the question, in particular, this also appears to be the case in the City of Houston (see also here). This process is governed by Texas Transportation Code §§ 682.001 to 682.011. This makes parking violations under municipal ordinances civil offenses punishable by civil fines imposed in administrative hearings before a "hearing officer" (i.e. a parking court judge). Failure to attend the hearing confesses liability but is not otherwise wrongful. An unpaid fine is enforced by a lawsuit rather than a criminal charge. The U.S. Constitution's 7th Amendment does not confer a right to a trial by jury in civil matters which is strictly a function of state law. And, while the Texas Right to a Jury Trial under Article 1, Section 15 of the Texas Constitution is very broad, it does not include reviews of administrative decisions, which are what parking hearings and appeals of them to a municipal court are classified as being. | I exclude Shari`a law because I don't know, but generally there would be no legal recourse that depends on the lie. A marriage is not legally viewed as a contract with enforceable obligations, so a woman could not be forced to bear a child against her will if she had earlier promised to do so, and she could not be penalized in any way. The man still has the ability to obtain a divorce. There is a difference between a fault-based divorce and a no-fault divorce, where a fault-based divorce may be quicker (dispenses with the requirement for months of separate living). In a jurisdiction that has fault-based divorce, the traditional grounds are cruelty, adultery, desertion, imprisonment, and physical inability to engage in sexual intercourse undisclosed before marriage. The latter does not include the inability to get pregnant. Division of marital assets is governed by law, where the principles of division are not punishment, they are equity (although states split into "community property" vs. "equitable distribution" based on the distinction "what is equitable" versus "50-50" – equitable distribution states do not sanction punishing a spouse for misconduct). There are also "marital torts" for certain kinds of wrongful acts, such assault, infecting a spouse with an STD, defamation etc. But as is the case with any tort, there has to be a legal duty between the parties, and that duty has to come from operation of law and not just agreement. There is no legal duty to always tell the truth or to bear children. |
If a person punches my wife and I am right there, do I have a right to punch that person, or use a singular subduing technique in response? Background The other day my wife and I were ordering takeout from a restaurant. As we were leaving there was a really narrow doorway of people coming in and out. My wife, probably out of a mix of tiredness and single mindedly getting back to the car accidentally walked into another woman on her way out the door. She said "Did you see me going through the door? What the heck?". My wife gave a quick apology in response. I was right next to this and didn't think anything of it until now. Suppose this stranger was not as understanding and punched or otherwise physically harmed my wife. As her husband, I feel I have an extra right to do something, I can't let my wife just be assaulted in front of me and do nothing. However, browsing around Quora gives me some mixed answers on this. So I come here to ask: Question What actions am I legally allowed to do in response to someone else physically harming my wife like in the hypothetical above? | massachusetts This is a matter of state law, so let's look at a particular state: Massachusetts. My answer below is largely based on the Massachusetts model jury instructions for self-defense cases. Short answer: the most problematic part of using force in the situation you describe is that you have a "duty to retreat" in the state of Massachusetts. In other words, you would not be justified in using force in your own defense or your wife's defense unless there was no reasonable way to get away from the assailant. (The opposite of a "duty to retreat" state is a "stand your ground" state; the Wikipedia article on the subject lists which US states are which.) Long answer: You would be acting in defense of another (p. 17 of the instructions): [A] person may use reasonable force when that is necessary to help another person, if it reasonably appears that the person being aided is in a situation where the law would allow him to act in self-defense himself. In other words, your use of force to defend your wife is acceptable if it reasonably appears to you that your wife is in a situation where she would be justified in using self-defense. So would she be justified in using non-deadly force in self-defence? To prove that the defendant did not act in self-defense, the Commonwealth must prove one of the following things beyond a reasonable doubt: First, that the defendant did not reasonably believe he (she) was being attacked or immediately about to be attacked, and that his (her) safety was in immediate danger; or Second, that the defendant did not do everything reasonable in the circumstances to avoid physical combat before resorting to force; or Third, that the defendant used more force to defend himself (herself) than was reasonably necessary in the circumstances. The second point would be the tricky one for your hypothetical case. In a public space, you have the "duty to retreat"; this duty does not apply in your home (the "castle doctrine"), but it does apply everywhere else. Here are the model jury instructions for this point of law: A person cannot lawfully act in self-defense unless he or she has exhausted all other reasonable alternatives before resorting to force. A person may use physical force in self-defense only if he (she) could not get out of the situation in some other way that was available and reasonable at the time. The Commonwealth may prove the defendant did not act in self-defense by proving beyond a reasonable doubt that the defendant resorted to force without using avenues of escape that were reasonably available and which would not have exposed the defendant to further danger. You may consider any evidence about where the incident took place, whether or not the defendant might have been able to escape by walking away or otherwise getting to safety or by summoning help if that could be done in time, or by holding the attacker at bay if the means were available, or by some other method. You may consider whether the use of force reasonably seemed to be the only means of protection in the circumstances. You may take into account that a person who is attacked may have to decide what to do quickly and while under emotional strain. | No. I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter. So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it. Civil suit for wrongful death Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him"). Reckless driving charge In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law: [In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit. http://manassascriminalattorney.com/2015/10/can-reckless-driving-in-virginia-be-a-felony-charge/ In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor. Misc links https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412 | My lawyer answers my question, thinking he is giving legal advice to a non-client when he is actually answering a client's question. But if you read the FAQ, posts at law.stachexchange are not legal advice. In fact, questions that are so specific as to risk becoming a request for legal advice are routinely closed. But let's go further: The issue at hand is not the one your lawyer is hired to help you with. He is not your lawyer for that issue. Even if we considered the relationship through law.stackexchange legal representation, the conversation would not be privileged. You are posting in a public forum, and expecting reply in the same way. You are free to waive the privilege of communication with your lawyer, and you are doing that by using this way of communicating with him. At this point, the only thing your lawyer would have done would be voluntarily giving for free some info that he could have billed you for. What exactly would be the issue here? It is exactly what pro bono is for. The only way to breach confidentiality would be if your lawyer were to convey things that you said to him confidentially to the public, but here it would not be relevant if the OPs author were already his customer or not. | There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files. And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity. | Your wife has no say at all. This is as it should be. He decided who should have the power to make decisions for him and your wife wasn't someone he trusted to do that. Her competent mother does have the power to make decisions for him and should do so. Your wife shouldn't try to interfere with, or involve herself, in decision making related to him. If her mother at some point in the future ceases to be competent herself and can no longer make decisions for her husband, then that will be a problem for her brothers to deal with and not one for your wife to deal with. | I think it's important to keep in mind the essence of your actions. @Mowzer gave a great answer on the matter in hand, but I'd like to add a point of view. Is it illegal to eat while driving? Like pointed out by @Mowzer, if no law prohibits it, it's allowed by default (lots of countries have this premise). But what about the consequences of your actions? Maybe there's no law against eating in the car, but there sure is one in my country that specific says that you are not allowed to drive without using both hands in the wheel. The only exception to this rule is to take out your hand from the wheel to use the stick to change gears. Another point of view to add is the liability. Let's say you're minding your own business while driving and a lunatic trying to commit suicide jumps in front of your car. It's a pretty straight-forward case, you have no reason to be blamed. Now, let's add to the same scenario your snack; with a small change, you are now facing a accident that may have been caused by reckless driving (another thing commonly illegal). To sum up, the law is not really like math that have axioms that determine true or false statements without any distinguishment. That's why every case is single handled in the law by it's particularities. | I am not a lawyer; I am not your lawyer. You do not cite a jurisdiction so this makes it very difficult to get a definitive answer. What follows is for Australia but the general principles are common law and would be applicable to other common law jurisdictions except where statues apply or case law has diverged. In the first instance, it seems that you were not party to any arrangement to pay for the electricity. So on the face of it you are not party to any contract requiring you to pay. Even if there was such an agreement: family, domestic, social and voluntary agreements (which this would be) are presumed not to be intended to legally bind the participants. Whether this presumption would be overturned would depend on the specific facts. On the face of it, there is no legal obligation to pay. Your options are: Do nothing; this puts the ball in their court, they can: Forget about it (it would then be over) Attempt to sue you with little prospect of success (which would cost them and you a lot more than $50 irrespective of who won) Do something illegal like beating you up (you really need to assess this risk) Tell everyone they know (in person and on social media) what a skiving prick you are (you could probably sue them for damages but that's not really going to happen, is it?) Pay them what they are asking Offer to pay them something less. Option 1 is likely to break any relationship you have with the person, Option 2 is likely to preserve it and Option 3 could go either way. Ultimately, like most legal questions, this is not about the law; it's about relationships ... broken ones mostly. | No. Self-defence law does The right of self-defense (also called, when it applies to the defense of another, alter ego defense, defense of others, defense of a third person) is the right for people to use reasonable or defensive force, for the purpose of defending one's own life (self-defense) or the lives of others, including –in certain circumstances– the use of deadly force. Whether you would succeed in such a defence depends on the exact circumstances. Good Samaritan laws protect you from trying to help, screwing up, and causing further damage. |
My ISP is injecting .swf into my webpage. How legal is this? I recently saw a pop-up, on a http page. It was the advertisement of some offers provided by the ISP. Here is the code: <td> <object width="480" height="195" data="<url>/V3/front_porch_RAN.swf" style="pointer-events:none;>...</object> </td> There is no javascript that is collecting my data, but is indulging in the activity of injecting code into the webpage, legal? I live in India. | Unless there is a law or regulation against it, it is legal. However in a big government it can be practically impossible to determine whether something is legal. For example, nobody even knows how many criminal statutes have been promulgated by the U.S. federal government. And that's nothing compared to the volume of executive regulation and judicial case-law that determines whether something is illegal. I.e., in practice determining that something is legal is a bit like proving a negative. Furthermore, if you look long enough some argue that you can probably find some law under which almost any action could be considered illegal. Note also that even if it is not against the law, it could be proscribed by contract (read your Terms and Conditions!), and breach of contract is in general – but with an astonishing number of exceptions! – illegal. | 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. | From a German perspective, it would be absolutely normal and expected that you're providing identity & contact information publicly. Per §5 TMG (Impressumspflicht / Anbieterkennzeichnung) this is required for German tele-media offerings, such as websites or email providers, even if non-commercial. Whereas for you as an upstanding and diligent email provider an abuse@... address should be enough, the German context expects a street address where you could be served with a lawsuit… There absolutely are privacy and free speech issues with this compelled self-doxxing. But by running an email service, you're not just acting as a private person. Your privacy interests and the transparency and security interests of other people have to be balanced. Now since you are not in Germany, the TMG does not apply to you. You have no legal obligation to provide this information. However, the ISP also has no legal obligation to to deliver your email. The ISP does have an obligation to apply appropriate organizational and technical safety measures. It seems that one organizational measure they have found appropriate is that they will only deliver emails from providers that provide public contact information, as would be the norm in Germany. I am not entirely sure how the GDPR applies here. The GDPR doesn't really allow or prohibit disclosures of personal data, it just requires that every purpose of processing for personal data has a legal bases per GDPR Art 6. One such legal basis is a legitimate interest, which boils down to a balancing test between your rights and freedoms and other people's interests. I'm also not sure if the contact information should be classified as personal data in this context, because the contact info primarily relates to your role as an email provider. I'm also not sure if the ISP is processing your personal data in the sense of the GDPR when they merely require you to publish it on your own site. They would be processing it as soon as they scrape, store, or otherwise use this info. | The requirement to make the code publicly available is binding on Olio, and on Olio's successor, Flex. Olio, by accepting the code under the GPL, had contracted with the original author of that code, one of the contract provisions being to make any modified code available publicly. If Olio fails to abide by that agreement, it is in violation of the license, and the original author could sue Olio for copyright infringement, or sue Flex as having bought the assets and liabilities. But the individual employees of Olio are not under any obligation to publish such modified code, as they were presumably not parties to the license deal -- Olio was. Therefore the NDA does not require them to violate any law or contract to which they might be parties. The NDA could probably not be used to prevent the employees from testifying if called in such a copyright suit. If the NDA did require an illegal action, it would be void. If it merely required a person to violate a civil agreement that could be settled for money, it might or might not be enforceable, depending on the exact provisions, its reasonableness under the exact circumstances, and the local law. | It is hard to say: this article sketches the legal landscape. So-called deep linking that bypasses the main page for a site is not believed to be infringement, following the reasoning of Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146. The URL itself does not have the bare minimum of creativity required for copyright protection, and storing a URL on a computer is not storing the contents that it refers to, so no copy was made in violation of copyright law. It is unlikely that competing theories would develop in other US districts (there don't appear to be any at the present). However, such a link could create secondary liability for infringement, see Erickson Productions, Inc. v. Kast, where a party "has knowledge of another’s infringement and (2) either (a) materially contributes to or (b) induces that infringement". If I link to a file on a pirate website, I am secondarily liable for that infringement. However, if I link to a legally-uploaded file which the author did not intend to make public, there is no infringement. Copyright law requires permission of the copyright owner, which is more than just "explicit denial". The problem is that a person can put a file out there and not say one way or the other whether you have permission to copy the file. The US Copyright office says that "A copyright owner must have expressly or implicitly authorized users to make retainable copies of a work by downloading, printing, or other means for the work to be considered published" (let's not care at the moment whether it is important to be "published"). The court may infer implicit permission from a copyright owner's conduct, but there is no rule "if it's on the internet, you've granted permission". A rights-owner may make a valiant but insufficient effort to block access to the work (except via a password), so in that context, the courts would infer that the rights-owner had not given permission, therefore the copying is infringing and you have secondary liability for your direct link to the material. | 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. | First off: Legally, everything is copyrighted anyway. Licensing is not at all necessary. Hence, even if a court would disagree with # SPDX-License-Identifier: Apache-2.0, that would just make it closed source. Having said that, the law generally doesn't bother with trivialities such as "file headers". Any commonly accepted way to state the copyright and license terms is OK. Your LICENSE is such a common convention. If you want to avoid all doubt what is covered under that license, put a reference to that LICENSE in each header. If you have just five files in one directory that are all licensed the same, I wouldn't even bother with that. Again, the default position is that everything is closed source. | Is that extortion? false advertising? or in any way illegal? Not at all. The owner of the site is simply exercising his right as outlined in the terms and conditions from when the user signed up. And giving users an option for continued use of the site (that is, for him not to exercise a right of which they were always aware) does not constitute extortion. |
Why would a shrewd seller even transact with a buyer who must pledge bills of lading, just to finance the transaction? I don't grok the facts of this case. What does refused to redeem the pledge when the bills of lading were tendered to them by Chabbra mean? Why must the buyers redeem the pledge, once Chabbra (seller) tendered the buyers the BoL? Why would a savvy seller even transact with buyers who couldn’t pay for the transaction upfront? Aren't such buyers — who must pledge BoLs to finance a transaction — obviously risky and unreliable? Chabbra Corp PTE Ltd v Owners of the Jag Shakti (The Jag Shakti) [1986] AC 337 (PC) FACTS: Chabbra Corp PTE Ltd (the seller) shipped a cargo of salt on board the Jag Shakti (a ship belonging to the defendants). The buyers of the cargo had pledged the bills of lading to Chabbra in order to finance the transaction. The buyers persuaded the defendants to release the goods to them, without presentation of the bills of lading, by providing them with an indemnity, and then refused to redeem the pledge when the bills of lading were tendered to them by Chabbra. Chabbra sued the ship owners for conversion. HELD: Chabbra was entitled in principle to recover the full market value of the goods at unloading from the carrier, though owing to a lack of evidence as to that value, it must be content with the sum it had advanced to the buyers. Lee Roach, Commercial Law 2019 3e, p 39. | The note you have quoted does not accurately summarise the decision, which is available on BAILII. What happened was: IOC agreed to sell 5,000 tons of salt to Mumtazzudin. Atlas paid IOC for the salt on behalf of Mumtazzudin. Because Atlas paid, Atlas received the bills of lading. Thus, the salt was pledged to Atlas to secure the money owed by Mumtazzudin. Atlas endorsed the bills of lading over to Chabbra for value. In other words, Atlas sold Chabbra the right to be repaid by Mumtazzudin, and to take delivery of the salt as security for the debt. Mumtazzudin persuaded the shipowner to hand over the salt without presenting the bill of lading. Chabbra sued the shipowner for conversion (destroying the value of its security). What does “refused to redeem the pledge when the bills of lading were tendered to them by Chabbra” mean? Chabbra, as the pledgee of the bills of lading, was entitled to possession of the salt, until Mumtazzudin “redeemed the pledge” by paying Chabbra the amount originally advanced by Atlas. But Mumtazzudin managed to get the salt without the bills of lading, so it refused to pay Chabbra. Why would a savvy seller even transact with buyers who couldn’t pay for the transaction upfront? The alternative may be that the sale is not made at all. However, that is not what happened in this case – the seller got paid. | One of the principles of contract law is that the offer and acceptance are evaluated based on the objectively ascertainable intentions as judged by a reasonable person. On the facts that you have provided - even if your friend claims that they filled it out wrong, there is no reason for someone to objectively think so, particularly given the fact that they went to the trouble of writing the information in. However, this will depend on what kind of legally binding document this is. If it is, in fact, a contract, then the employer must accept it before it becomes legally binding, and they must actually communicate this acceptance to your friend (the offeror). If this is a policy document, then it is only legally binding if another contract has said that it is legally binding - generally, (smart) employers will include a clause in their employment contract stating that you are to adhere to policies but that those policies do not form part of the contract. If that is the case, then your friend is legally bound by the terms of the policy and will breach their employment contract if they do not adhere to this policy. This is unlikely to be an issue of contract law in and of itself - your friend cannot unilaterally bind their employer to terms as he sees fit. More information - including the nature of the document and other agreements that were made - would be required to provide more useful information (and that's what you would give to a lawyer). | This is not prohibiting the resale. You can resell your old box, but you can not transfer your account, and since the box can't take a new account, it is not a useful item to anyone but the original account holder. It is not illegal to make a resale effectively impossible, but you can not ban it under the First Sale Doctrine and [Patent] Exhaustion Doctrine. Accounts are in this case not sold items but subscriptions and don't fall under First Sale but instead are running contracts - and can be regulated as the contracting parties put into the contract. This contract can ban the transfer (for money or free) of the contract. | Yes, for those who 'liked' the business after reading the post, but less likely for those who had already liked the business. Under contract law, the business's post is an offer to share the winnings with anyone who is a friend of the business on Facebook. A promise is enforceable if consideration is provided under a bargain; the consideration can be of nominal value (e.g. the act of 'liking' a page). In the context of a business page, in a time when 'followers' and the like are regarded as valuable from a marketing perspective, it is entirely reasonable to interpret the post as offering an exchange of likes for a chance to win money. The commercial context and involvement of money would cause a court to presume that there was an intention to create a legally-binding contract (Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502). I am not entirely familiar with how the designation 'Friend' applies to businesses on Facebook. My understanding is that businesses have pages that are different to user pages. Businesses don't have 'friends'. They have people who 'like' the business. However, the word 'Friend' in the post has to be given content and therefore would be read as 'people who are listed as having liked this page'. People who had already liked the page are less likely to be able to enforce the promise to share the winnings, because they didn't do anything. They might be able to argue that they forwent the opportunity to un-like the business and that this forbearance is consideration. However, they would have to show that this was in consideration of the offer to share the winnings. Contract law is based on objective manifestations of agreement, not subjective thoughts (Taylor v Johnson (1983) 151 CLR 422), so it isn't necessary to show that the individual did in fact have the offer in mind when they liked (or didn't un-like) the page. However, it is necessary that the promisee have knowledge of the offer and not be acting out of some completely separate purpose (R v Clarke (1927) 40 CLR 227); therefore if a user had liked the page some time ago and never knew about the offer until after the lottery was won, then they might have a hard time claiming a binding contract. Aside from contract law, the other possible head of liability is equitable estoppel (I mention this particularly for the people who had already 'liked' the business page before the offer was posted). However, equitable estoppel usually requires some element of detrimental reliance. Leaving a pre-existing 'like' on a page in reliance on a promise to share lottery winnings is unlikely to stir a court to find an equitable estoppel, since the detriment is trivial. Contrast Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, where the detrimental reliance was knocking down a building and starting to construct a replacement. Equitable remedies are discretionary, so the judge has plenty of leeway to not order compensation. This answer is based on the common law. There is nothing in Texas law which would make the outcome any different to the outcome in any other common law jurisdiction. | 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. | Dead people have to pay their debts just like everybody else It is one of the primary roles of the executor to make sure this happens. Dead people can dispute a debt just like everybody else Just because someone says you owe them money, that doesn't mean you owe them money. In fact, the onus of proving the debt lies with the person claiming the money. It is perfectly reasonable for an executor to ask the creditor to do so. Some questions that are appropriate to ask: Presumably, the entitlement arises under a contract; when was the contract entered into? What were its terms? Where is the evidence the deceased agreed to these terms? Do the terms comply with (consumer) law? Have the prices been calculated in accordance with the terms? Have previous invoices been submitted and paid on the same basis? All the issues you mentioned. These are all things the creditor would need to prove if they went to court. If they can provide satisfactory answers to these then pay the bill. If they can't then try to agree to a settlement amount acceptable to both parties. If you can't do that, let them sue the estate and let a judge decide. The debts of the deceased person are payable by the estate of the deceased person for which the executor is the trustee. The executor has a duty to the beneficiaries of the estate to act in their best interest. This means paying bills that they are satisfied are justified, contesting those that aren't but ultimately, making commercial decisions that benefit the beneficiaries. Getting bogged down in a court case may not be in their best interest especially if it delays finalisation of the estate. In any event, the executor is not liable personally for the debt, or for anything they do or fail to do if done or not done in good faith. | Terms in a contract that are not legal or not enforcable are quite capable of causing you trouble and costing you time or money, most likely a generous amount of both. Your friend shouldn't care one bit about whether these terms would be legal and/or enforcable. If he doesn't like them, then he MUST NOT accept the changed contract. Not if these terms are illegal and unenforceable and of course even less if they are legal and enforceable. I would write back "I believe that the suggested change in terms is illegal and would be unenforceable. I also believe that the change is deeply unfair towards me and creates a considerable legal risk that I am not willing to accept under any circumstances. I therefore strongly reject your suggested change. " | Transfer of Personal Property The question is: are you still the owner of the guitar or is your friend now the owner. If you gifted them the guitar, they are the owner. A gift requires: intention to transfer title (you had this), delivery of the property (this happened), acceptance of the delivery by the recipient (he took it). At first glance, the guitar is now his. The concept of a conditional gift is irrelevant once the transfer has taken place - it relates to the promise to gift in the future if some condition is met and, unlike a contract, is not binding. If you have a conditional gift you can decide not to give the gift up until you make the transfer - after that, the item is no longer yours. You are now trying to make out that the transfer was by operation of a contract. This seems unlikely - see What is a contract and what is required for them to be valid? In particular I doubt that there was an intention to create legal relations or that the agreement was sufficiently detailed - was he required to attend the class? complete the class? enroll in the class? something else? You may have been clear in your mind that the guitar was for the class - was he? Or did the conversation go like "I'm taking a guitar class.", "Cool, I have a guitar I can give you." Even if there was a contract and he broke it, you are not entitled to the guitar back. You are entitled to the damage that you suffered by him not completing the class. Presumably, this would be the cost of hiring a competent amateur guitarist to play for you a few times. |
Can a professor ask for private medical information? I was excused from an exam on the basis of a doctor's note and after the exam took place my professor reversed his decision, saying that he does not have adequate information to excuse me and needs proof of a physical exam and treatment plan. Legally, can a university professor ask for private information? This is taking place in Texas at a private university. | Yes. HIPPA does not apply to exchanges of information between professors and students, it only governs disclosures of medical information by medical providers and insurance companies. Educational privacy laws might prohibit the professor from sharing that information with someone outside the educational institution, but that is a different question entirely, than whether this information can be requested from a student. If you have a disagreement with the professor's decision, your remedy would be to ask the department chair, or the dean with jurisdiction over that professor, or provost (a.k.a. the chief academic officer) at the institution to reconsider this decision (ordinarily, in that order). | Probably not. Overview You haven't specified a jurisdiction. I will talk about Australia because that's what I'm familiar with. In Australia the most relevant area of law would be tort, specifically negligence. The university would be liable to pay damages if a court found that it owed a duty of care to your friend, that it breached that duty, and that your friend suffered injury ('injury' including loss of property as well as mental suffering) as a result of that breach. Also potentially relevant would be contract law, if your friend and the university had entered into some kind of agreement relating to his security, or equity, if the university had somehow acted to lead your friend to rely, to his detriment, on the university protecting him (promissory estoppel: Walton Stores v Maher). However, I think this is unlikely unless, for some reason, the university had put up signs saying 'Please come onto our land and we will be responsible for your security'. Negligence You have stated that 'it is their responsibility to make sure all students are safe on campus.' It is not clear whether you mean to state that as a fact or whether you are suggesting it as a possible hypothetical basis of liability. I am not aware of a case that establishes the proposition that universities do have such a duty. The judgments in Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254 discuss the liability of the occupier of land (such as the university in your example) for injuries inflicted by criminals upon people present on land (such as your friend in your example). In that case, the defendant ran a shopping centre. The plaintiff worked at a shop in the shopping centre. At the end of the plaintiff's shift at 10.30pm, it was dark outside because the shopping centre switched the lights in the car park off at 10pm. The plaintiff was mugged in the shopping centre car park on his way out to his car. The key question there was whether the defendant shopping centre was under a duty to keep the lights on for workers leaving work (along with the question of how the failure to illuminate the area led to the attack i.e. whether the plaintiff still have been mugged if the lights were on). Therefore the question that we are presently interested in, about an occupier's responsibility to protect visitors, is only dealt with as a side issue in that case. But the principle is pretty well-established that, generally, you are not responsible to protect another person from the criminal acts of a third person. The common law has a strong presumption against imposing liability for 'omissions' as distinct from acts, which is another way of saying that the courts don't want people being liable to run out into the street and help people. See paragraphs 27 and 28 and thereabouts in Modbury Triangle. Particular relationships may exist which create such a duty. One is in relation to school children; the school is responsible for taking such care of the child as a parent would. The relevant features of this the school-child relationship include the child's vulnerability as a child and the way the school controls their movements and enviroment during the school day. I presume that your friend is not a child and the university does not control his or her movements. Therefore a court is likely to be looking at the general principle that the university is not responsible for protecting people from the criminal acts of strangers, and then looking (and probably not finding) any special feature of the relationship between your friend and the university that creates an aspect of vulnerability, reliance or control that makes it reasonable to impose a duty of care. Some people think that there is a general principle that if something bad happens to them, some identifiable person with cash must be responsible for paying compensation, whether that is an insurer, the government or a nearby corporation. The common law has not picked up that principle. The common law would slate the responsibility home primarily to the mugger. Sue them. What does the university have to do with it? Conceivably the university might also be liable along with the mugger, but the fact that an injury occurred and nobody else can in practice be held responsible does not in itself make the university liable. As mentioned by Pat W., there may be some other feature that creates a duty, such as if the university had made some change to the environment that allowed made the attack to occur when it wouldn't otherwise have e.g. moving your friend's dormitory so that the only entrance was through a dark alley, or if the attack occurred inside a university building where the university controlled entry (even then not sure that would get your friend over the line). | Although your "title" may not of itself have legal force, that doesn't necessarily mean you can do as you please in every situation without fear of liability. For example, if you falsely claim to be a medical doctor or lawyer, you could find yourself liable for civil damages to defrauded clients; you may also violate criminal laws. (An anonymous bureaucratic form probably won't create that problem, because as another answerer pointed out nobody really cares or pays attention to titles most of the time. But stranger things have happened; and by "form" you could mean "tax form" or some declaration made under penalty of perjury. Lawyers generally avoid blanket "that's fine" answers, because there are almost always many ways that it might not be fine.) | Businesses are not required to do what the card says, they are required to do what the card-holder says, to the extend that what the card holder says relates to giving or denying consent to be vaccinated. Since they don't vaccinate people who are unconscious, consent will always be directly obtained from the patient and the card has absolutely no effect. Also, control subjects are selected at random and the subject does not know what group they are in. Possession of such a card therefore has zero scientific effect. | One approach is to direct their attention to this publication from the NY Dept. of Health. It says "Physicians and hospitals are required by state law to maintain patient records for at least six years from the date of the patient's last visit". There is also a PDF printout which you can hand to them. If they still absolutely refuse, the publication explains about the appeals process and the consequence to the doctor, but it also provides some "rationalizations" that the staff-person might invoke (for example "Yes, but we charge for copying, I thought you meant for free" – they can charge up to 75 cents per page). There is no legal basis for their 2-year conclusion. | An adult is normally assumed to be competent to enter into a contract unless there is some reason to think otherwise. It is not usual to demand evidence of competency unless there is something in the appearance or actions of a party that raises such a question, or something about that party, such as a history of mental illness, known to the other party, that raises such a question. I have heard of a party being medically examined just before signing an important document, to provide evidence of competence, but generally in connection with a will, and generally when the signer is elderly and in poor physical condition, and even then such a procedure is rare. If competence is disputed, medical evidence is required to resolve the question, or more exactly to establish lack of competence. In the absence of such evidence, competence will be presumed. That was the conclusion of the MA Supreme Court in FRANCES M. SPARROW vs. DAVID D. DEMONICO & another, 461 Mass. 322* (2011). The court held: without medical evidence or expert testimony that the mental condition interfered with the party's understanding of the transaction, or her ability to act reasonably in relation to it, the evidence will not be sufficient to support a conclusion of incapacity. It was a significant part of the court's reasoning in that case that a reasonable person might well have entered into the agreement in question, and that the party was represented by a lawyer, and acted in accord with the lawyer's advice. That does not, however, seem to be a requirement; merely additional evidence of the reasonableness of the action. | The doctor is a professional Engineers don’t put extra wings on airplanes because the client asks. Lawyers don’t throw unsubstantiated allegations in their pleadings because the client asks. Accountants don’t change the balance sheet because the client asks. And doctors don’t prescribe unnecessary medications or vitamins because the client asks. For most people with normal health and a relatively balanced diet, nutritional supplements are medically unnecessary. They may make the user feel better through the placebo affect but doctors prescribe things that are necessary, not things the patient wants but doesn’t need. You can sue a doctor if they are negligent. One sure sign of negligence is if they adopt the treatment plan proposed by the patient without applying their professional judgement. | Presumably you consented to have an x-ray. It is a reasonable assumption that it was not your intention to simply be given the films without interpretation by a radiologist. If that was your intention then the obligation would be on you to make that clear since it is so far from ordinary practice that no reasonable person could know that. To use your analogy it would be like you asking to have your window washed but not wanting to have the soapy water rinsed off afterwards (assuming these were separately billable services). Further, rights and obligations under contracts are transferable by default. So it is perfectly legitimate for the lab to outsource the radiography without having to ask you. |
Is the DA bound by agreements made during hostage negotiations? I've seen several fictional situations where a District Attorney agrees to not prosecute various crimes committed by a kidnapper while conducting hostage negotiations. Would an agreement made by a DA in furtherance of obtaining the safe release of hostages be enforceable? | No, this is duress. In 1988, James Harvey took 60 people hostage at the West End Christian School in Tuscaloosa, Alabama. The incident ended when Governor Guy Hunt offered him a video pardoning him. The video was made under duress, and they never had any intention of honoring it. https://en.wikipedia.org/wiki/West_End_Christian_School_hostage_crisis As far as I can tell, Mr. Harvey is still in prison for this incident. | Maybe, maybe not. The answer is implicit in the restraining order, which I assume you have a copy of. If the wording is unclear, you can ask your attorney. The order will state the consequences for violating the order, so you have some idea what the risk factor is. A person may also petition for a new restraining order to include bill-paying, which may or may not be granted. | Miranda rights do not attach until the suspect is subject to custodial interrogation. "Custody" means that the suspect reasonably believes that he is not free to leave the conversation. "Interrogation" means that the officer is engaging in direct questioning or other conduct that would reasonably be expected to elicit a response. A suspect is free to waive his Miranda rights and begin speaking without a lawyer, but a waiver must be knowing, intelligent and voluntary. "Voluntary" means that the waiver is obtained without coercion (torture, threats or promises) by the government. None of the five scenarios indicate that Clyde ever believes he is in custody, so he has no Miranda rights in any of them, making his confession admissible in all of them. But to play it out further, let's assume that Officer Olivia arrives and immediately slaps handcuffs on Clyde: No interrogation, no Miranda rights. The confession is admissible. No interrogation, no Miranda rights. The confession is admissible. Miranda rights attached at the beginning of questioning. Clyde waived by confessing. Reading the Miranda rights established that the waiver was knowing. We don't have any facts suggesting the waiver was not intelligent. The waiver was not obtained by government coercion, so it was voluntary. The waiver was effective, so the confession is admissible. Same as 3. No interrogation, no Miranda rights. The confession is admissible. The key thing to keep in mind here is that the purpose of the Fifth Amendment right against self-incrimination was to avoid misconduct by the government, and it has generally been implemented only to that end. The key case here is Colorado v. Connelly, 479 U.S. 157 (1986), which involved a guy who approached a police officer and asked to talk about a murder he had committed. The officer Mirandized him, and he told them all about the murder and where he buried the body. It turned out that he was a chronic schizophrenic and was going through a psychotic break at the time of the confession, which he had only offered because "God's voice" told him to. As with your truth serum scenario, the question became whether the Miranda waiver satisfied the voluntariness requirement. The Colorado Supreme Court held that "capacity for rational judgment and free choice may be overborne as much by certain forms of severe mental illness as by external pressure." But the U.S. Supreme Court reversed, holding that neither the defendant's due-process rights nor his right against self-incrimination are offended by non-governmental influences, even when they undercut the defendant's free will. Since then, other courts have relied on Connelly to hold that voluntariness was not defeated by: a suspect's flu, hangover, hunger, or exhaustion, U.S. v. Elwood, 51 F.3d 283 (9th Cir. 1995); a suspect's heroin use, Elliott v. Williams, 248 F.3d 1205, 1213 (10th Cir. 2001); a suspect's heroin withdrawal, U.S. v. Kelley, 953 F.2d 562, 565 (9th Cir. 1992); a suspect's orders from his father, N. Mariana Islands v. Doe, 844 F.2d 791 (9th Cir. 1988); or a suspect's unusual susceptibility to suggestion or intimidation, U.S. v. Guerro, 983 F.2d 1001, 1004 (10th Cir. 1993). tl;dr: Because the truth serum was not administered by the government, the confession is admissible in all five scenarios. | In California, all parties to a conversation (people being recorded) have to agree to a recording. There are no special rules pertaining to husbands and wives. It is sufficient that the parties are aware that the recording is being made and they continue to talk, knowing that fact. There are exceptions, under Cal. Penal 633.5, in that surreptitious recordings are allowed in order to gather evidence of "extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m". To be used as evidence, there are also "predicate rules" to the effect that you have to prove who the voices are from, that the recording hasn't been altered, and that the recording is reliable (e.g., there isn't a mysterious 18 minute gap). | The validity of the NDA is not an easy question, but a related one is more clear. A lawyer in the U.S. in most states is not permitted to threaten criminal or administrative action (e.g. reporting someone to immigration or tax officials), to gain advantage in a civil case. You can unilaterally bring criminal charges or take administrative action, but it is deemed to be unethical and against public policy to refrain from bringing criminal charges or taking administration action to gain civil advantages. An NDA of the type described arguably violated the same public policy and might be invalidated as a result. Put another way, there is a privilege to make certain reports to public officials without legal consequences and such an NDA might violate that privilege. Some of these privileges found in what are called "whistle blower" statutes specifically prohibit this kind of agreement as to some specific kinds of illegal conduct, but not others. There isn't a general rule. This said, it is not black and white. For example, a private NDA can't prevent someone from testifying under subpoena, but can prevent someone from voluntarily testifying in the absence of a legal compulsion to do so such as a subpoena. Suppose a woman is sexually assaulted at work, and is given an NDA to sign. Can the company legally require her not to disclose the conduct of an illegal activity? I can imagine this example coming out different ways in different jurisdictions. For example, some states have a legal duty (rarely enforced) that requires people to report felonies, and an NDA in this case would contradict that affirmative legal duty, while others do not. Another source of gray in the analysis is that there is a difference between not reporting a sexual assault that actually happened, and, as part of a larger settlement, executing an affidavit stating under penalty of perjury and under oath that a sexual assault didn't happen. The first is potentially an NDA that is void as a matter of public policy. The other, in principle, is a settlement that the person signing the affidavit can only enter into if it is true. There is nothing, in general, wrong, about requiring someone to confirm that certain representations are true as part of a business transaction or contract and allowing the contract to go forwards only if certain facts are true. The gray gets deeper, because whether a sexual assault happened or not is not always a subjectively black and white clear issue of pure fact. (It is subjective because an affidavit or affirmation is made to the best of the declarant or affiants' knowledge and belief, not as a matter of objective fact.) For example, someone may not have perfect memory of what happened, or there could be doubt over the question of whether the perpetrators acted recklessly (the Model Penal Code intent requirement for sexual assault) or merely with criminal negligence (which would not be sexual assault under the Model Penal Code). A statement made under oath about whether a sexual assault happened to the best of your knowledge, thus, might be a mixture of factual issues (A penetrated B at a certain date and time) and legal or not perfectly factually known ones (A acted with X intent regarding consent during that act). So, in a case where there was some room to argue either way about how to characterize what happened and about what actually did happen, there might be some room for a settling party to make a non-perjured statement consistent with the settlement and then to agree not to a true NDA, but instead to not make statements which, if the affidavit is true, would be false. In a plea bargain in a criminal case, one can plead "no contest" without agreeing that the crime factually happened, but that isn't really possibly in the context of an affidavit about what really happened, with an NDA limited to not disclosing the incident since it was already agreed as a matter of sworn fact that there is nothing to disclose that rises the level of a crime. | The legal hook is reported to be §129 of the Code of Criminal Procedure, which authorizes use of force to disperse an illegal assembly, which this sort of is. No statute that I can find states that police can smack lawbreakers who are forced to disperse, but as is common in common law countries, the laws of India are not fully explicit on that which is allowed or forbidden for police to do. As this article indicates, systematic limits on police use of force remain to be developed. | This negotiation tactic is not a crime, but it does implicate an ethical rule for attorneys, Rule of Professional Conduct 4.5, which exists in some states, but has been dropped from the national model rules promulgated by the American Bar Association and is a controversial matter from state to state with several variant forms in different states. In Colorado, the relevant rule of professional conduct for lawyers (Rule 4.5 Threatening Prosecution) states: (a) A lawyer shall not threaten criminal, administrative or disciplinary charges to obtain an advantage in a civil matter nor shall a lawyer present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter. (b) It shall not be a violation of Rule 4.5 for a lawyer to notify another person in a civil matter that the lawyer reasonably believes that the other's conduct may violate criminal, administrative or disciplinary rules or statutes. The concern about the statement in the question is that mentioning that certain allegations would be put in a publicly filed complaint is an implicit threat to expose criminal acts of the other party if the other party doesn't cooperate, but to refrain from doing so if the other party cooperates. This violates Rule of Professional Conduct 4.5(a) above, and goes beyond Rule 4.5(b) above which states that it is not improper to simply tell someone that it may have been illegal and a crime to do the things that he did. The critical distinction is the implied promise not to disclose these crimes publicly if the other party cooperates by not filing the proposed complaint. Under Rule 4.5, a lawyer can tell someone that certain conduct is probably illegal, and can unilaterally report illegal conduct, but can't hold open the possibility of not reporting illegal conduct to gain a civil advantage. The theory is that it is contrary to public policy for a lawyer to put himself or his client in a position where he is promising to help cover up a crime or other violation of the law. This is controversial, and is not adopted in all states, because it makes some very subtle distinctions that often hinge on strongly implied concepts, and that it provides benefit when applied in many cases to someone who has broken the law, instead of making their violation of the law something that makes them worse off in civil cases as well as in other contexts. There is not a counterpart to Colorado Rule of Professional Conduct 4.5 in the Rules of Professional Conduct of New York State, New Jersey, or Florida. So, to the extent that this conduct is subject to ethical rules in any of these states, it would only be indirectly through, for example, through Rule of Professional Conduct 8.4 in each of these states, which is a general catch all clause prohibiting lawyers from committing culpable crimes or that is dishonest or that is prejudicial to the administration of justice. Rule 8.4 is the counterpart for lawyers of the substantive offense in military justice that a military officer has failed to comport himself as an officer and a gentleman. The history of the decision to remove an express prohibition on threatening prosecution from the ethical rules for lawyers is explained in a 2008 ABA article that also discusses how liability might arise under Rule 8.4. In general, there is nothing wrong with making threats in a negotiation. Often that is precisely what negotiations are about. What is (arguably) wrong is making criminal, administrative or disciplinary charge threats in a civil lawsuit to gain advantage in a civil lawsuit. A prosecutor is perfectly free to make those threats in a criminal case, for example. Similarly, it is perfectly acceptable to make a threat of civil legal action, such as filing a lawsuit, in a civil matter, so long as it doesn't imply a threat to bring criminal, administrative or disciplinary charges if the other side doesn't cooperate. Whether it is proper for an attorney to do this depends heavily upon the state in which this negotiation is taking place, which is not identified in the question. | D should be subpoenaing anything and everything they need from anyone and everyone, including E. No matter how good terms you are on, if you are involved in a lawsuit you should not be relying on anyone's good faith to supply you what you need. Suppose you ask nicely and they say yes but, for whatever reason, they don't supply them by your court date. Without a subpoena, if you ask for a continuance the judge will say "tough t*^%^$s"; with a subpoena they will say " Yes certainly, oh, and Mr Sheriff, here is a warrant for the documents, go and get them for me please. Oh and a warrant for the arrest of the person who ignored my subpoena." Where do you want to be? |
Do ghost writers have a claim of copyright? Do ghost writers have a claim of copyright? I am seriously wondering. Can a ghostwriter have a claim of copyright when they redact your work? Let's say they write a novel out of your manuscript, what would be the possibilities? Let's say that you didn't have a manuscript, is their claim of copyright much stronger? I am thinking if you tell them to write a novel and you don't contribute in any way, they would have 100% of the rights. Let's assume the country is the United States. | This depends on the agreement between the person commissioning the work and the ghostwriter; but it is entirely possible that the ghostwriter would have no claim of copyright if it is a "work for hire". This circular (PDF) from the US Copyright Office lays out the possibilities. Under the US Copyright Act, a work may be considered a "work for hire" if it is: a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. If (in the second case) the commissioner and the ghostwriter sign a written contract saying that the work is a "work for hire" (see p. 3 of the PDF), then the commissioner gets the copyright, not the ghostwriter: If a work is a work made for hire, the employer or the party that specially ordered or commissioned that work is the author of that work. If a work is made for hire, the employer or the party that specially ordered or commissioned that work is the initial owner of the copyright in the work unless the employer or the commissioning party has signed a written agreement to the contrary with the work’s creator. However, it is also possible for ghostwriters to negotiate some rights to their own work in the contract process. This FAQ describes one possibility: Question: How can I bargain for a better ghostwriter agreement? Answer: If you are commissioned to create a work, and you don’t feel comfortable signing a ghostwriter for hire contract (perhaps you want to use the characters you create for another project, etc), then you can negotiate to grant less extensive rights and sign a “freelance writer for hire” agreement instead. Limit the amount of time the Client owns exclusive rights, whereby you can initiate a termination of transfer. If this doesn’t fly, bargain for more money. You may also propose that if the Client decides to abandon the project, then the copyright can revert to you. | Almost none. It is a legacy of the era when copyright protection was a function of year of publication. Including it is appropriate, however, to meet the formal requirements for a legal notice of claim of copyright which has some procedural implications if it is omitted. | I would argue that no, there is no copyright for the restored work. Independent copyright is only possible for any original material added, as previously discussed on this site. In this case, the added work was a technical process rather than a creative process, and technical processes cannot be protected by copyright. Copyright licenses would therefore be ineffective. However, I believe one could still impose a license based on owning the copy as opposed to the copyright (contract might be a better term in this case). However, if a third party managed to obtain a copy through some other avenue, any such contract would not be binding on them and nothing could be enforced against them unlike with copyright laws. Another way a license might be imposed is through patent protections, as technical processes can be protected via patents. However, I'm not as familiar with patent law, and this doesn't appear to be the claim being made. | It depends on the nature of the quote. Quotes from Buddha, Aristotle and Lincoln are out of copyright. Otherwise, the two basic questions are: who put that quote in fixed form, and is copying it "fair use"? If for example you happen to be at a political rally where a politician makes a noteworthy extemporaneous quote, you could be the copyright holder, because copyright law protects the person who first puts the work into fixed form. (If he's reading from prepared text, the speech writer or his employer would hold copyright). You can also quote small bits from any source, such as "Don't think about your errors or failures; otherwise, you'll never do a thing". It would not be "fair use" to chop up a novel into a sequence of 2-3 sentence quotes. This assumes that you manually assemble the quotes from legal sources, such as a print copy of "The Martian". Whether or not you can legally pull the data from an online source depends on the terms of service for that site. That lets out brainyquote as a source, so check the TOS for whatever source you get the material from. | Graffiti artists are routinely found financially liable for their work, but assertions of copyright infringement by graffiti artists are vanishingly rare, so I don't know if that has ever happened in that context. In many jurisdictions, filing a lawsuit against someone waives any statute of limitations defense you may have against counterclaims filed by the person you are suing in any related matter. So, if that rule applies, a counterclaim for financial loss from graffiti could be brought in a copyright infringement lawsuit, even though the statute of limitations on the damages claim would otherwise have run. But, I don't know if such a rule applies to copyright infringement claims filed in federal court. | Copyright exists whether they make that statement or not. Giving such notice informs the public that the work is copyrighted, who owns it, and when it was published. If the work is infringed, the defendant will not be able to use an innocent infringement defense. There's nothing special about using the domain name, as it's probably the name or DBA of the business that owns the domain. | I'm wondering whos responsible for this code if people start using it? The user. Can the people using it that think its under GPL in any way get in trouble for it or be made to remove it from their projects? Yes, they can be sued (successfully) for copyright violation. It’s not enough that you think you have permission from the copyright holder - you actually have to have permission. The law places the onus on the copier to seek out and get permission from the copyright holder. In theory, someone deceived in this way could sue the repo poster(s) for misrepresentation, however, there are practical issues about finding them, having them in an accessible jurisdiction and if they are judgement proof. Copyright law was created to protect physical books and paintings - it doesn’t really fit with digital methods of reproduction but it is the law. It doesn’t matter that complying with it can be hard bordering on impossible - comply with it you must. | Primary Theory I suspect there might not be a legal answer to this question. I have always suspected a sort of pseudo-intellectual elitism (or simple preference or carelessness) with passive voice sentence construction in general. I sense license writers have not (yet) escaped this general trend. I would love someone to prove this theory incorrect. But, alas, I doubt it will happen. Alternative Theory But because this is a Law Q&A site, I will advance the following alternative theory. I don't believe it's correct. But I will advance it because it's the only possible explanation I can think of that might be even remotely based on legal reasoning... Maybe they are just basing their construction on the way the law itself is written? For example, if the law says, "Permission must be granted..." Then it would follow that a writer who wants to comply with the law might choose, "Permission is hereby granted..." instead of something like "The authors hereby grant permission..." or, as the OP suggested, "You may..." |
What laws govern being barred from a court you are required to attend? It is in the news that someone was barred from attending their own court attendance, and had an arrest warrant issued for failure to attend, because a security guard determined they were drunk: Andrew Robinson, who has more than 670 offences on his rap sheet, was due before Oxford Magistrates’ Court last Tuesday to answer an allegation he breached an earlier court order. When he didn’t turn up to the hearing, the magistrates issued a warrant for his arrest. Appearing in the dock on Saturday morning, Robinson, 52, of no fixed address, said he had come to court. “Security wouldn’t let me in. They said I was drunk.” What laws govern such a restriction on attending ones court appearances? Can one be forced to miss ones court appearances, potentially leading to a default judgement, on the opinion of a security guard? Is there general restrictions on attending court under the influence of alcohol? Does it make a difference if "under the influence of alcohol" is one's default state, as it very well may be for a homeless alcoholic? If so, is there a blood alcohol limit, or is it behavior based? | What laws govern such a restriction on attending ones court appearances? The relevant parts of Section 53 of the Courts Act 2003 say: ... (2) A court security officer acting in the execution of his duty may— .. (b) exclude or remove any person from a court building, or a part of a court building, if it is reasonably necessary to do so for one of the purposes given in subsection (3). (3) The purposes are— (a) enabling court business to be carried on without interference or delay; (b) maintaining order; (c) securing the safety of any person in the court building. (4) A court security officer acting in the execution of his duty may remove any person from a courtroom at the request of a judge or a justice of the peace. ... Despite the cited news article lacking detail on the precise circumstances and Mr Robinson's behaviour, any of these conditions could be seen as reasonable when dealing with someone apparently drunk during court hours. | Keep in mind that a warrant doesn't require proof that you stole the property or have the property. Instead, the warrant is just authorization to look for that proof. The standard for securing a warrant is probable cause, which is a much lower bar to clear than people seem to think. It just requires that given everything the officer knows, there's a "substantial probability" that a piece of evidence will be in a given place at a given time. If the officer swore to a judge that a reliable source had told him that the letter was stolen, then seen in your front yard, and not seen since, I wouldn't be at all surprised if the judge gave him a search warrant. | 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. | 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. | In general, you do not have civil recourse against the government for (lawful) legal process that you are the victim of. "Counterclaim" would only be applicable when A sues B, and B makes a counterclaim against A – the police don't sue you, they arrest you, and the prosecutor prosecutes you (or decides not to). If the police beat you up, you could sue them for violating your rights, under what is known as Section 1983. Given the scenario you describe, this comes closest to involving false arrest, meaning that there was no probable cause for arrest. Otherwise, the police have immunity for their actions. But if there is a legal arrest warrant, there is probable cause (existence of probable cause is the standard for issuing an arrest warrant), so no claim against the police will succeed. I am leaving out the anomalous concept of an unlawful arrest warrant, where a judge issued an arrest warrant but there is in fact no probable cause. Such a case would be covered by Section 1983, where either the judge or the swearing officer (or both) violated your rights. | We need to assume that the stop was legal (not a high hurdle to clear), that is, there was some reason to stop you. Even so, following Utah v. Strieff, police don't actually have to have a reasonable suspicion to stop you and if in the course of an ID check they discover that you have a warrant out for your arrest, the arrest is still legal. So if the police stop you, RCW 46.61.020(1) says: It is unlawful for any person while operating or in charge of any vehicle to refuse when requested by a police officer to give his or her name and address and the name and address of the owner of such vehicle, or for such person to give a false name and address, and it is likewise unlawful for any such person to refuse or neglect to stop when signaled to stop by any police officer or to refuse upon demand of such police officer to produce his or her certificate of license registration of such vehicle, his or her insurance identification card, or his or her vehicle driver's license or to refuse to permit such officer to take any such license, card, or certificate for the purpose of examination thereof or to refuse to permit the examination of any equipment of such vehicle or the weighing of such vehicle or to refuse or neglect to produce the certificate of license registration of such vehicle, insurance card, or his or her vehicle driver's license when requested by any court. Any police officer shall on request produce evidence of his or her authorization as such. There is no law that says "you have to provide ID only if accused of a crime", or "police can pull you over only if you are suspected of a crime". Various traffic infractions will get you pulled over but are not crimes; random sobriety checks are legal. However, note that the requirement to provide ID applies to the operator. There is no law requiring citizens to carry identification papers (but there is a law requiring a vehicle operator to carry a specific form of ID). In some states there are "stop and identify" laws which allow police to demand ID from a person suspected of a crime, but Washington does not have such a law. | Lawyers neither try nor judge cases; they advise and argue them. Criminal cases in jurisdictions based on British law (which seems to be what you are asking about) are tried by prosecution and defence both putting their best arguments to the court (either a judge or a jury) who then reaches a verdict. There is no reason why the prosecuting lawyer should not be a police officer (assuming he is properly qualified), though in reality 'prosecuting advocate' is a full-time job, so the officer would need to transfer to the District Attorney's office or something similar. Actually, such an officer would be wasted by a transfer to advocacy. Somebody who knows not only what evidence is inadmissible and the leading cases on permitted searches but also where the local crime blackspots are and which officers, likely to fall apart on creoss-examination, should not be put up as the only witness is valuable enough that the authorities (whoever they may be) will make considerable efforts to use these talents to best effect. | A warrant is never automatically issued. A warrant (I assume you mean arrest warrant) can be issued under court orders, if there is probable cause to believe that a crime has been committed. If a court orders A to pay money to B and A does not, A can be arrested. A court will not sua sponte make such an order without some petition by a harmed party. So B could sue A for the amount owed, and the burden is on B. There are criminal laws that pertain to check bouncing, for example in Washington under RCW 9a.56.060 it is a crime, but not every check-bouncing is a crime. You have to have "intent to defraud", "knowing at the time..that he or she has not sufficient funds". If convicted you will be fined, and may be imprisoned. Even in the case of a fraudulent intent, there is no automatic warrant (the police do not know what has come to pass). B does not "press charges", but they can complain to the police who may investigate and find that there is evidence of fraudulent intent (which can lead to an arrest warrant). They may also conclude that the evidence of fraud is insufficient. |
Who owns the asteroid/meteoroid? This is a question I’ve been thinking about but I have no law experience so I wanted to ask it here. Suppose an high valued (suppose billions of dollars) asteroid/meteorite falls and lands on the earth. The question is: who gets to claim ownership of it? Scenario 1: It lands in John Smiths yard. Is it now John Smiths? Or does it belong to the government that John Smith belongs to? Scenario 2: It lands in international waters. Is it a free for all? Scenario 3: It lands on one of the poles. Same as 2? | National territory It depends on the nation. Some countries or jurisdictions have specific laws about meteorites, like the Western Australia Museum Act 1969, ss. 43-45, which provides that meteorites are Crown property (there are many meteorites in the Nullarbor Plain). Absent any specific rule like this, meteorites are likely to be treated in any of the following ways - It's a rock. Mineral rights (which often go along with ownership of the land in general, but can be separately assigned) may apply to meteorites on the grounds (haha) that they are rocks which can be treated as part of the land on which they fell. There may be special law vesting certain kinds of mineral finds in the State, should you be dealing with a meteorite made of gold, for example. Mineral law is a specialist topic even within national law, so the exact answer here may depend on a lot of factors - what the thing is made of, whether it's above ground or not, etc. - but the probable starting point is that rocks from space are no different in law from the rocks that were already there. It's an object that has no clear owner. There are longstanding principles for "unowned things" in civil and common law systems, typically applying to wild animals or other things that are naturally occurring and not part of the land as such. If a meteorite is "res nullius" in this sense, then it might belong to the finder or to the landowner, depending on exactly which flavor of legal tradition is followed. It's a valuable find. There are similar rules about "treasure trove", for example in the United Kingdom which gives rights to the Crown. But a meteorite would not be classed as treasure in the UK, because it is an "unworked natural object". Other jurisdictions might draw these boundaries differently. It's an object of scientific importance. A meteorite might be classed as "cultural property" within the meaning of the U.N. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 , as transposed into local law. The Convention covers "rare collections and specimens of [...] minerals", and objects of paleontological or archaeological interest. This could affect somebody's ability to export or destroy the object (for the latter, see also the 2003 UNESCO Declaration which includes "cultural heritage linked to a natural site"). National law might contain its own similar provisions. International waters and the poles The U.N. Convention on the Law of the Sea 1982, Part XI governs mineral exploitation in "the Area", meaning the part of the seabed that does not belong to any nation. Activities of this kind are meant to be under the auspices of the International Seabed Authority, which has copious rules about application and approval, navigation, environmental controls, and so on - subject to the Convention principle of treating the seabed as "the common heritage of mankind". This Area includes the North Pole. The South Pole is part of the area covered by the Environmental Protocol to the Antarctic Treaty, 1991, which provides in its Article 7 that Any activity relating to mineral resources, other than scientific research, shall be prohibited. In practice, as in international law generally, States might do all sorts of other things. But this is the broad legal position. It might be that States would agree a special regime applicable to the totally unprecedented circumstances, or that it would be a free-for-all. Again, I'm assuming that the applicable principles for digging up a space rock for commercial purposes are the same as for other kinds of rock. There is international law about space rocks when they are in space, and about human-made objects when they crash down to Earth, but seemingly no special provision for meteorites. | Once you have left the hair on the hairdresser's floor, it is no longer your property. They can do what they like with it. In your first two scenarios, you are doing nothing to modify the assumption that you have discarded the hair - you're just letting the hairdresser deal with it. In the third scenario, you are asserting that the hair is still yours; you could gather it up. Similarly, if you had left an empty soda can on a cafe table, the cafe is entitled to assume that you don't want it any longer. They could put it in the recycling bin, or make it into a delightful sculpture, or whatever. If you stop them clearing the table, and say "actually, I'd like to keep that can" - then it's still yours. If you abandon it and walk away, it's not yours. The interpretation of whether you have "discarded" the thing is contextual. There are several possible legal theories about exactly what is going on when you leave objects lying around and wander away. These include the classical Roman view of res derelictae, that the thing becomes ownerless as soon as you physically abandon it with the intention of doing so - and conversely, views such as that of Sir Frederick Pollock, who considered it a "high, grave and dubious question" whether something stops being your property even after you throw it away while declaring that you want to get rid of it. But Pollock would allow that you had transferred ownership of the cut hair to the hairdresser, if only by silently acquiescing to them sweeping it up, rather than because they had claimed an ownerless substance. Either way, the hair is no longer your own, and once it is not yours its fate is not your concern. If you had some agreement with the hairdresser about what would happen, that's another matter, but the default position is that once the hair is theirs, they get to decide what happens with it. The late astronaut Neil Armstrong found out his barber was selling his cut hair as souvenirs. The letter from his lawyer asks for the return of the hair, or payment of a charitable donation, on the special basis of an Ohio law protecting celebrity rights in their 'persona'. It does not assert that Armstrong had any continued property right in the hair itself. The hair samples are still for sale, by the way. Even though your cut hair came from your body, it is not a human tissue to which special rules may apply. Hair is made of keratin and is not cellular, so nothing in the European Tissues and Cells Directive, applicable to Slovakia as an EU member, will kick in regarding your consent. Equally, this is surely not a "wrongful taking of organs, tissues [or] cells" under the Slovakian Criminal Code, sections 159-160. You may feel attached to it, in a continuing emotional sense, despite the result of the scissors: but it is not treated as specially as your actual flesh in terms of consent to what happens after it's removed. Also in EU law, the Waste Framework Directive covers "waste", by definition, "any substance or object which the holder discards or intends or is required to discard". Although there is no coding in the European Waste Catalogue for human hair, it's classed as B3070 in the Basel Convention, an example of a B3 non-hazardous organic waste; Slovakia is one of the parties to this agreement. The substance of the Directive, as implemented in local law, would affect the onward destiny of the hair - such as which bin the hairdresser could put it in for collection, how it may be recycled into another product, or treated as a by-product instead of waste as such. There is a large and confusing case law about all that. Thankfully for you, it is the hairdresser who would have to deal with the implications. | Maybe, Hence the Lawsuits In the absence of clear statute law these all circle around tort law. For the scooter companies, trespass to chattels, and for the affected landowners (who hire the removalists) trespass to land and nuisance seem applicable. In essence, I can’t take your stuff (trespass to chattels) but you can’t leave your stuff on my property (trespass to land) or impeding access to it (nuisance). If you do, I am entitled to the reasonable costs of dealing with it. Note that, as owner, you remain responsible for you stuff even if you rented it to someone else. Both sides are pushing hard into unexplored areas of law so we await the judgement with interest. Then we’ll know. | I can't see anything to say this is a state-wide ban. Do they have to give an opportunity to return unused fireworks for a refund? The ban imposed by Portland Fire and Rescue appears to relate to the use, not possession, of fireworks so I assume that the stores' / State's regular refund policies would apply. Due to unusually hot temperatures and dry conditions, PF&R is announcing an immediate ban on the use of all legal and illegal fireworks... | There is 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. | Not that I am aware of. A person who 'owns' a domain is entitled to utilize that domain including for the purposes of receiving emails. With physical mail, it is a crime in most countries to intentionally interfere with mail that is not addressed to you. For example - Australia. However, this is statute law and as such does not extend to emails - even if it did, if you own the domain then you are the person to whom it was addressed. I note that you seem to misunderstand "confidential" - this only arises in the context of a special relationship between the person transmitting the information and the person receiving it. Usually this is a contractual obligation between A and B but it can be imposed by law (e.g. doctor-patient, banker-client, lawyer-client, GDPR etc.). If A sends confidential (as between A & B) information to C, C is under no general obligation to keep it confidential if C has no relationship of confidentiality with A or B. If C discloses it and B suffers damage, B sues A for breach of confidence (or the government prosecutes A for breaking the law); B has no case against C. For your situation, where B has allowed A to send the information to an obsolete address then B has contributed to the breach to an extent that B would be extremely unlikely to succeed in a suit against A. | The situation is that Executive Order 2020-33 is no more, and a new order, 2020-68 exists. The old orders to stay home are now copied under this order, but it may be necessary for her to re-issue (a subset of) the orders so that they are pursuant to #68 and not #33 (live by the technicality, die by the technicality). If she does not do that quickly, I expect there to be legal challenges. The law (30-403) doesn't say that orders issued pursuant to a declaration of a state of disaster expire when the authorizing declaration expires, but one can reasonably infer that that is what the legislature had in mind when this law was passed. But that is a matter for the courts to decide. Deference to the executive, which is the usual way that courts operate, would favor an interpretation where saying "All previous orders that rested on Executive Order 2020-33 now rest on this order" counts as re-issuing the same orders with a new number in the text. The law does not say that the circumstances authorizing an emergency order have to be completely different. Perhaps the legislature will revise the law in the future, but it is what it is right now. | First Sale Doctrine One of the rights a copyright holder has is an exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending". 17 U.S.C. 106(3). This is distinct from the reproduction right they have to make copies or derivative works. So, absent a licence, you can neither make the model nor distribute the model. If you are operating under a licence, that is a legally binding contract between you and the copyright holder. If it says that you cannot give away models, then doing so is a breach of that contract and a breach of copyright for which you could be sued. However, if you did sell or give away the model to a third party, that would be a lawful transfer of title in the object itself, even though it is a breach of contract. An innocent third party (i.e. one who has no knowledge of the breach) would be a lawful owner and could do what they liked with the object and, under the first-sale doctrine, is not bound by the licence. If you were to die, the executor or administrator of your estate would be bound by the terms of the licence (whether they knew about them or not), and if they breached them, they would be liable for that breach. If done in good faith, they could seek indemnity from the estate, but if the estate has insufficient funds or has been finalised, they would be personally liable. This is largely theoretical as the copyright owner would have to pursue their claim so promptly that unless they were actively monitoring the death notices for anyone who ever downloaded their model, they would miss their chance. A third party who received the physical model from the estate, either by buying it or being given it as a beneficiary, would own it and have first-sale doctrine rights. Although originally a US concept (Bobbs-Merrill Co. v. Straus 1908), it is my understanding that the first-sale doctrine has since spread to all common-law countries. The last was Australia in Calidad v Seiko Epson [2020] HCA 41. ... the public ... The above analysis presumes that the people you are gifting the models to are "the public". This may not be the case where the models are distributed to a small circle of people like family and friends. In that case, there is no general right of distribution, and the copyright owner would need to rely on their right of reproduction. That is, in making the copy in order to give the object away, you breached the licence. This becomes problematic when your decision to give away the object happens later, possibly years later, possibly after you're dead. So, it might not be a problem for the executor or administrator to distribute the object to a beneficiary, but it might be a problem to sell it at a deceased-estate auction. The former is not distribution to "the public"; the latter is. |
When, if ever, can Contract Law assist victims or patients of medical malpractice? I know medical malpractice involves mostly tort law, but when and how can Contract Law enter the fray or picture? I am not a lawyer, but I work in the medical field. Ordinarily, physicians ask patients to peruse and sign forms before prescribing certain medication (e.g. Diazepam) or medical procedure. These forms raise the question of contract law in medical malpractice. I know Capacity is a vitiating factor, but I do not know if it is an element of contract formation??? BUT ASSUME CAPACITY FOR THIS QUESTION. I want to focus on capable, reasonable, shrewd ADULT patients. Undeniably, incapacitated, unconscious, diseased patients lack capacity to form contracts!!! Unquestionably, I am asking about NON emergencies! I know these 5 elements must be formed for contract. See Ewan McKendrick, Contract Law Text Cases Materials 2020 9th edition, pages 17-8. The first is that the parties have reached agreement. This is usually done by demonstrating that one party has made an offer that the other has accepted. The rules relating to offer and acceptance are discussed in Chapter 3. Secondly, the agreement must be expressed in a form that is sufficiently certain for the court to be able to enforce. The tests applied by the courts when deciding whether a term has been expressed in a form that is too vague, incomplete, or uncertain to be enforced are discussed in Chapter 4. Thirdly, the agreement must be supported by consideration (although it is possible that effect may be given to a promise that is unsupported by consideration via an estoppel). The doctrine of consideration and the role that estoppel can play in giving effect to promises that are unsupported by consideration are discussed in Chapter 5. Fourthly, the law may only recognize the validity of the agreement if it is entered into in a particular form (such as writing). The significance of requirements of form has diminished in recent years but they have not been entirely abolished. Requirements of form are discussed in Chapter 6. Finally, the parties must have had an intention to create legal relations. This intention is presumed in commercial transactions, but in the case of domestic and social agreements the law initially presumes that the parties did not intend to be legally bound by their agreement. The doctrine of intention to create legal relations is discussed in Chapter 7. | Hardly ever While all doctors in private practice has a contract with each of their patients: For most practical purposes clinical negligence lawyers can forget about these. It is not that contractual duties do not exist – all private medicine and surgery is performed pursuant to such duties – but that they rarely add anything to the parallel duty owed in tort. The courts have been very reluctant to imply a duty in contract which goes beyond the duty imposed by the common law of negligence. While tort damages aim to restore the plaintiff to the position they were in before the tort and contractural damages aim to place them in the position they would have been in had there been no breach, for medical malpractice there is no practical difference. | Should I ask for a contract, when asking for the money? The proper time to define or formalize a contract is not when asking for the money, but when agreeing what tasks are expected from you and how much you will charge therefor. That way both parties will be clear on what is expected from each other. And if a dispute is brought to court, the fact-finder will have an objective document from which to identify who breached the contract. It is always recommendable that the contract be self-contained, and that relevant interactions between the parties be in writing or memorialized in some way that leaves no room for unverifiable allegations of the type "I said, he said". | Am I correct in arguing that the LHD never really had implied consent to begin with? In other words, does the failure to honour the express refusal inform us about the legitimacy of prior claims of implied consent? No. They had implied consent and had not intent at the outset to dishonor it. They have violated the patient's privacy right when consent was expressly withdrawn, and they discovered that they cannot easily comply and therefore did not comply. The fact that they have made it expensive for themselves to comply with their legal obligations going forward does not imply that they lacked implied consent at the outset, so they should have no liability for the time period from when the training materials started to be used until the time when implied consent ended. They are only responsible going forward for their failure to honor the patient's wishes. It is not at all exceptional for a legal obligation to turn out to be more difficult to comply with when it arises than was anticipated when the systems that make the legal obligation difficult to comply with were implemented. Health care companies aren't expected to be prophets who can foresee the complex confluence of factors that has painted them in a corner, particularly when a situation has never come up before the current one. It is likely that no one person was ever even simultaneously aware of all the facts necessary to know that this could happen. Someone in the IT department will often not be intimately familiar with what is going on in the training part of the operation and what the privacy rules that apply are and even if someone was, that someone may have been in no position to do anything about it at the time. Health care providers aren't supposed to be evaluated with 20-20 hindsight. Given that they almost surely did not and could not easily have known that they had made a future express withdrawal of consent very difficult to effectuate, scienter can't be attributed to it. And, honestly, they are in more than enough trouble simply trying to deal with the problem post-express withdrawal of consent when they did start to violate privacy laws. | You can write anything you want (basic First Amendment protections): the question is whether one would be liable for damage that arises from what you're written, or whether you can distribute what you've written. Distribution may be restricted, thanks to the Commerce Clause (hence FDA regulations, which figure prominently in the analysis). Most software writers are not medical practitioners, and vice versa, and what the software writer does is implement something described by a competent medical practitioner. It is logically possible that a med. practitioner might also try to write software (no problem) and distribute it (possibly a problem); or, a software writer might read up on something on Wikipedia and try to implement it (again, no problem) or distribute it (possible problem). Damages can be sorted into two categories, implementation errors and scientific errors, and having ruled out deliberate sabotage, we are left with negligence. If the software writer failed to use suitable care in writing code that sums a set of numbers, the software writer has been negligent. If the person purporting to have the qualified scientific knowledge mis-states the formula, that person has been negligent. It is possible for many parties to be negligent (the programmer failed to be diligent in understanding the software requirements; the medical professional failed to adequately explain what was required of the program). The FDA does regulate medical devices, and "device" is construed pretty broadly (condoms are non-exempt class 2 medical devices). There is FDA guidance on medical software which makes it clear that the device manufacturer shoulders the regulatory burden. Anytime you manufacture a tangible thing (which is within the scope of FDA regulation for medical devices), you have to have the thing approved. Many (most?) medical devices implement software, and are thus within the scope of FDA scrutiny. It is not illegal to write software that ends up being implemented in an unapproved medical device, but the unapproved medical device itself is illegal. It is reasonably likely that purported medical software (not a gadget with software build in) would be held to be a non-exempt device. To know if something is exempt, you would look at the exemptions list, and determine that your program (or thing) is not on or implied by anything on that list. The visual acuity eye chart is a class 1 exempt item, as is the manual toothbrush. There is no way to specifically look for things that are only software, or that contain software, so the search through the list would have to be guided by knowledge of the subject area. Canada is helpful in explaining when software is a regulated medical device. This is non-probative w.r.t. US law but gives you an idea what is likely to be considered a "device". Under Canadian law, the software would be clearly a regulated medical device. The FDA has a power-point that attempts to say something about the matter which warns you that you are on your own and "You will need to go back to study and use the source regulatory documents" to make the determination. Eventually, slide 13, they hint that if you intend the software to be used in diagnosis, prevention, or treatment, then it is a device (so, yes, the aforementioned software would be a device, and probably not exempt from regulations). General purpose software (word processors, web browsers, communications software, etc.) are not indented to be used for a regulated purpose, although they can be so used, and thus they are probably not subject to FDA regulation. There is a murky relationship between regulatory approval and liability. Being approved by the government does not convey immunity to negligence suits (see Wyeth v. Levine), but being approved can have weight in determining whether a party was negligent, since regulatory scrutiny ostensibly filters out errors that could have been caught. Federal approval does not preempt state tort law, as the court ruled. Regulations pertaining to medical devices hold for anything that qualifies as a device, and is not defined (negatively) in terms of disclaimers. If you sell a medical device but label it saying "this is not a medical device, it is not created by a competent medical practitioner", that doesn't make it not a medical device. Unfortunately, what counts as a regulated device is based on intended use, and there is an obvious connection between disclaimers and intentions. Taking MS Word as an example, MS does not as far as I know say that "Word is not intended to be used as a medical device". It can certainly be used to diagnose, teat, and prevent medical conditions, but so too can a screw driver or pretty much anything else. The number of non-medical uses vastly outweigh the medical uses, so it would be deemed not to be a regulated device. A program which prescribed a set of prayers to be uttered in case of illness would be subject to First Amendment override of any FDA regulations. Quack medical devices are prohibited (that's why there is regulation of devices in the first place), but discerning the fine line between permitted actions based on nutty beliefs and forbidden actions is not easy. The FDA also has guidance on the distinction between "Complementary and Alternative Medicine", which does not clearly state that, for example, a software reading of your cakra-energies based on a computer program's questions is not a medical device. They do say of mind-body medicine (mentioning yoga, biofeedback and tai chi as examples) that "CAM practices in this domain would not be subject to our jurisdiction under the Act or the PHS Act", but then say "any equipment or other products used as part of the practice of mind-body medicine may be subject to FDA regulation, depending on the nature of the product and its intended use" (hence a yoga-enabling program may be subject to regulation). | 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. | Preface and Caveats The question doesn't specify where this happened. I am providing an outline of the way that most U.S. states would handle this situation, if the fats are as they are much more likely to be and not as claimed in the question probably due to a misunderstanding of the underlying transaction. I identify areas where state laws most often vary and don't describe those areas of the law in detail since that is impossible without knowing where this happens. This is a matter of state law and varies from state to state, although most U.S. states are quite similar until you get to the fine details. Atypical language in the contract between the contractor and the client could also lead to a different conclusion. I don't know how this would be resolved in a non-U.S. jurisdiction. Background: The Structure Of A Typical Construction Loan Financed Construction Project In business and contractual disputes you can only understand the answer if you understand the underlying business transaction, which the question itself doesn't spell out very fully. The fact pattern identified in the question is so unusual that I strongly suspect that there is a misunderstanding of the facts, or an inadvertent misstatement in the language used in the question due to sloppy writing that flows from not appreciating the importance of some key facts. The transaction was almost surely structures more or less as follows (for background, I'm presenting a more general very of this kind of transaction rather than the simple one with no subcontractors or material suppliers involved, because this context helps someone understand why the laws are written the way that they are written.) Usually, the client owns real property, takes out a construction loan from a bank secured by the real estate, and hires a general contractor. The client will usually make some down payment to the general contractor who will take care of paying the subcontractors and material suppliers, and will pay the balance of the amount due to the general contractor through proceeds of the construction loan disbursed by the bank which are drawn as the work is done and payment is earned. Typically, each drawn cycle, which is often monthly for a smaller project and weekly, biweekly or semimonthly in a larger project, materials suppliers and subcontractors submit invoices and lien waivers to the general contractor based upon the work done. If the work is complete, a complete lien waiver is submitted, if he work in only partially finished, a partial lien waiver is submitted. The general contractor substantively reviews the invoices based upon a physical review of the construction site and a review of the subcontract. If there are problems it is rejected and must be resubmitted by the material supplier or subcontractor. If it is approved, the general contractor attaches that invoice as a supporting document to a draw request for the draw cycle summarizing all validly submitted invoices from material suppliers, subcontractors and itself, and also attaching a partial lien waiver from the general contractor. Then, the general contractor submits that draw request to a bank officer handling the construction loan as an agent of the property owner-client, and also a client representative for approval. The bank officer and client representative make a much less probing review of the draw request, looking only for obvious irregularities or suspicious amounts, and if everything is in order, they approve the request. Then, the bank write a check in the draw amount approved to the general contractor. The general contractor then disburses the invoiced amounts to the materials materials suppliers and subcontractors and pays itself the amounts that it has earned. Sometimes, however, the general contractor gets a valid invoice from a material supplier or subcontractor, and receives funds from the client in the form of a downpayment or a loan draw, but doesn't pay the subcontractor or material supplier with those funds. Also, sometimes, the general contractor does work that it is entitled to be paid for or incurs an obligation to a material supplier or subcontractor, but the client doesn't pay or the bank doesn't disburse the funds requested even though the request is valid. When a general contractor, material supplier or subcontractor doesn't get paid for work that is actually done at a particular piece of real estate, the law gives the firm that wasn't paid for its work on that particular piece of real estate what is called a mechanic's lien encumbering that piece of real estate. The details of how a firm with a mechanic's lien gives notice to the world of its rights, the priorities of lien's vis-a-vis each other, and the way that mechanic's liens are enforced varies significantly from state to state. But typically the notice must be given very promptly and not long after notice of non-payment is given, a lawsuit to foreclose on the real estate encumbered by the lien is commenced. An unpaid material supplier or subcontractor, in addition to its lien rights, can also sue the general contractor for breach of contract, and sometimes also for misappropriation of disbursements from the client or the bank. An unpaid general contractor, in addition to its lien rights, can also sue the owner of the property for breach of contract. The Facts In The Question and Analysis The first paragraph of the question tells us what went wrong. The client paid an employee of the general contractor (probably a project manager) instead of the firm the employee worked for (basically embezzling the money by deceiving the client into thinking that the employee was authorized to receive a payment to the employee's firm on its behalf when that wasn't the case), and the firm of the employee who was paid now wants to get paid. This happens and lawsuits usually follows when it does. But exactly what happens next depends upon the facts in the next to paragraphs. The next two paragraphs of the question, however, are probably confused and incorrect. The next two paragraphs say: Two weeks later, the client received a letter from the contractor's lender asking the client for money owed to the contractor, saying that if it was not paid, the client could be double charged. Does the client owe the contractor's lender? What probably actually happened is that the finance office of the contractor submitted a draw request to the bank officer in charge of the client's construction loan with the bank, and also gave a notice of the draw request to the client. The client tells the bank officer not to approve the draw request because the client has already paid the draw request directly to the employee of the contractor (probably the project manager) without the knowledge of the firm the employee worked for. What Happens Next If The Facts Are As I Believe Them To Be? When this happens, the finance officer at the contractor firm talks to the client figures out what happens and then talks to the employee to whom the payment was made. If the employee promptly turns over the funds the the contractor firm, the finance officers at the contractor firm scolds the employee for screwing up the system and the client for making a payment to the wrong person and there is no harm, no foul, and the matter is over. But if the employee who took the client's money doesn't turn over the money which the client can prove to the contractor firm that he paid to the employee, several things are likely to happen. Non-Lawsuit Actions: The client will direct the bank not to pay the draw request. The employee who took the money from the client is fired (no big deal, he was probably long gone). The contractor firm and/or the client will often, but not always, report to the police that the employee embezzled the funds from the client, and if the police find it credible, will issue an arrest warrant. The main reason not to do so is that the facts are uncertain enough that the police and prosecutor don't want to touch it (e.g. the client paid the employee in cash and didn't get a receipt, or the employee when asked says that the payment was made but was a "tip" or was payment for something unrelated), or the client and/or the contractor firm don't want to harm their reputations by making public the fact that there was a theft on this job. Three lawsuits could be brought, although, in practice, these might be consolidated as claims against different parties and cross-claims between defendants, in a lawsuit brought by the contractor, or in some other configuration. The contractor firm sues the employee who took the money for converting money from a client intended for it (probably both as a tort and as a breach of fiduciary duty by an agent of the construction firm). The contractor firm sues the client for breach of contract. The question is about the liability of the client in this second lawsuit. The client might also bring a counterclaim against the contractor for negligent supervision of its employee if the employee did indeed abscond with the money and the facts support that counterclaim. If the client prevailed on that counterclaim, the judgment on the counterclaim for negligent supervision (e.g. if the contractor knew that the employee had a history of doing things like this and didn't warn the client) would be setoff against the breach of contract judgment, rather than being a defense to the breach of contract claim. The client sues the employee for fraud, conversion or theft. What Are The Rights Of The Parties In These Lawsuits? In the second lawsuit, the client has breached the contract. The contract said to pay the firm, the client paid someone else, and so the obligation under the contract was not satisfied. The disputes in the lawsuit between the contracting firm and the client will be over whether the employee had apparent authority to accept the funds as an agent of he contracting firm, over whether the payment that the client says was made to the employee was made at all, and over the purpose of the payment if a payment was made to the employee but the employee claims that it was a "tip" or a payment for something else (e.g. the employee also had a catering side hustle and the employee says it was for catering services). The issue of whether the client made the payment at all may be hard to prove if the payment was made in cash and the employee didn't provide a receipt and will come down to the credibility of the client and employee's testimony at trial. if the payment was made with a check or credit card, bank records will make it an open and shut case on that issue that will probably not be disputed at trial. If the facts reveal that the employee had apparent authority to accept the funds from the client for the contractor firm and that the payment was for work on the project and not something else, then the the payment made by the client to the employee satisfies the client's duty under the contract even if the employee wasn't actually authorized to receive the funds for the contractor firm. So, the client wins and the contractor firm's sole remedy is to sue its employee for misappropriating the client's funds. On the the other hand, if the employee did not have apparent authority to accept the funds from the client, or the payment was for something other than work on the project, or the client fails to prove that the payment was ever made, then the client owes the money to the contracting firm and must pay the contracting firm for the amount due (plus interest, litigation costs and possibly attorneys' fees depending on the terms of the contract). The client may pay that obligation out of separate funds of the client's own, or may authorize a the bank officer to make a draw on the construction loan to pay the amount owed. The construction loan bank of the client wouldn't sue the client or demand payment from the client for the amount that should have been paid to the contractor firm but was instead paid to the employee. It didn't pay money to someone it shouldn't have paid it to unless the client authorized the bank to do so. And, the bank won't pay the contractor without the client/borrower's say so. If the client authorized a draw payment from the construction loan to the employee rather than the contractor firm, the client still owes the bank for what it paid to the employee at the direction of the client (in addition to all other draws on the project), although the client may have a suit against the bank officer for negligence in administering the loan by failing to flag that the payee was wrong (which might lose but isn't a sure loss). The amount owed to the contractor firm proceeds under the analysis set forth above. What If The Facts Are Right? If, improbably, the facts as stating in the question are actually what happened, the client will owe or not owe the contractor money under the same analysis as above. But the client will not have liability to any company that the contractor got a loan from (which would not encumber the client's real estate), since the client has no contractual relationship with the contractor's lender. Post-Script On Double Payment Prevention Laws The question hinges on the unfairness of the client having to possibly pay twice for the same construction work. In some situations, where the general contractor firm is at fault for causing the double payment to happen, the law protects the client from double payment, even though those laws don't apply here. I explain why these laws don't apply below. Basically, the client has to eat the double payment when the double payment occurs because the client screwed up though no fault of the general contractor and the general contractor doesn't benefit from the double payment. Some states have laws designed to prevent property owners, often only residential property owners having work performed on their own residences, from having to double pay for work done in some circumstances. But these laws usually only apply when the client pays the general contractor firm as the client is supposed to, satisfying his contractual obligation, and the general contractor doesn't pay the subcontractor, causing the subcontractor to sue the general contractor for breach of contract and the owner to enforce the subcontractor's mechanic's lien. In those situations, the double payment prevention law eliminates the subcontractor's mechanic's lien rights when the client pays the general contractor in full, and the subcontractor is left only with a lawsuit against the general contractor who didn't pass on the client's or the client's bank's payment to the general contractor for the subcontractor's share of work to the subcontractor. In this case, the double payment laws usually wouldn't apply because the legal issue here is whether the client paid the contractor, or was deceived by the employee into paying someone other than the contractor in an act of conversion/embezzlement/fraud. | Is this legal? Yes Or does it mean that employee will be in breach of his/her contract? Yes You are assuming that if the evidence is allowed to be presented then that automatically means that keeping it for that purpose is not a breach of the contract. This is not necessarily so; it can be both at the same time. That said, it is unlikely that an employer would attempt to sanction an employee for this as the courts would (rightly) see it as an attempt to pervert the course of justice. As in most things in the law it is possible for all parties in a matter to be on the wrong side of it. If you want to come to the tribunal with "clean hands" then the best thing to do is make a record (not a copy) of the relevant documents and return then to the employer. Before going to the tribunal get your solicitor to subpoena the documents that you want - they will have to produce them and you have them without breaking your contract. | It sounds to me like the parties made proposals with an intent to draw them up and formalize them but didn't intend to form binding agreements. The first agreement sounds vague. The second was committed to writing, suggesting that the written deal was to be the real agreement, and not executed. In the last case, it doesn't appear that there was an agreement because there was no meeting of the minds on the essential term, which was the price. Going to court is expensive. It is expensive whether this is litigating underlying disputes or trying to enforce an alleged oral settlement that is disputed. Also, settlement discussions that don't result in a resolution are not admissible as evidence in court. Making a deal would be nice, but Dave's concept of what constitutes a deal seems to be out of touch with reality. |
Child Sexual Abuse - is a religious leader required to automatically report such accusations or confessions? All religious organizations seem to have some kind of a process for handling "sin", i.e. some process where a religious leader is spoken to when someone has done something wrong. My understanding is that in United States, statements made in a confession to a religious leader are privileged and confidential. However, how does it work when the sin involves child sexual abuse? Is a religious leader responsible to automatically report accusations (claims that someone else did something) or confessions (admissions of quilt by a person present)? | Testimonial Privilege There is a tradition, embodied in law in many jurisdictions, that a religious confession, is not subject to compelled disclosure in court or to other legal process. This arose from the Catholic practice of confession, but has been long sine extended to the similar practices of other religious organizations. Note that in most jurisdictions this applies only to confessions that a person makes about his or her own actions. It does not apply when a person reports some other person's actions to a religious authority. It also usually applies only to a formal, religiously mandated or authorized communication, not to an informal chat or counseling session. In the US this is usually a matter of state law. Let's look at the relevant law in California, which is tagged as the relevant jurisdiction. (Laws in other US states are usually similar on this subject.) Such a privilege usually applies only to actual testimony under oath, in a court or as part of court proceedings such as a deposition. The law concerning an initial report of possible child abuse is different. According to the California Evidence Code, Sections 1030-1034: Subject to Section 912, a penitent, whether or not a party,has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential communication if he or she claims the privilege. Subject to Section 912, a member of the clergy, whether or not a party, has a privilege to refuse to disclose a penitential communication if he or she claims the privilege. This means that neither the clergy-person, nor the person disclosing information to the clergy-person (the "penitent") can be required to provide court testimony about the content of the confession. (Note that this is part of the evidence code which governs what evidence is admissible in court.) Also, the penitent may forbid such testimony from the clergy-person. Note that the privilege must be explicitly invoked, it is not automatic. Questions may be asked about the confession, and only if the penitent or the clergy-person objects and invokes the privilege does it apply. The previous three sections (included in the linked page) limit the privilege somewhat. Section 1030 states that: a "member of the clergy" means a priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization. Section 1031 states that: "penitent" means a person who has made a penitential communication to a member of the clergy. Section 1032 states that: "penitential communication" means a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member's church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret. So the privilege only applies when the communication or confession was made one-to-one, with no other person present, is part of the regular religious practice of the church or group involved, and the clergy-person has a religious duty to keep the communication secret. All this is normally true of Catholic confessions. It may or may not be true of confessions or communications in other religious organizations, depending on their traditions and practices. Also code section 912(a) provides that: the right of any person to claim a privilege ... is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege Mandated Reporting In recent decades laws have bee passed requiring people in various positions of trust, or positions where such people are likely encounter evidence of child abuse, to report to law enforcement when they know or reasonably suspect such abuse. Such people are called "mandated reporters". A failure by a mandated reporter to make such a report when the mandated reporter has knowledge or reasonable suspicion of abuse is a crime. Note that, in most jurisdictions, mandated reporting applies to all forms of child abuse, not just sexual abuse, but also physical and emotional abuse and neglect. Therefore in this answer "abuse" is not limited to sexual abuse. In the US, this is a matter of state law. What positions carry mandated reporter status, what circumstances trigger a mandated report, an what the penalties are for failing to make a report all vary significantly from state to state. Mandated reporter (MR) status is separate from the testimonial privilege described above in this answer. However, circumstances that would trigger the testimonial privilege may also trigger an exception from mandated reporting. Mandated Reporting in California In California Penal code section 11165.7 (a) (32) and (a) (33) list clergy members (defined as " priest, minister, rabbi, religious practitioner, or similar functionary of a church, temple, or recognized denomination or organization.") and "any custodian of records of a clergy member" as mandated reporters (MRs). However section 11166 (d) (1) provides an exception. Knowledge or suspicion acquired "during a penitential communication" need not be reported. For this purpose a "penitential communication" is defined as: a communication, intended to be in confidence, including, but not limited to, a sacramental confession, made to a clergy member who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is authorized or accustomed to hear those communications, and under the discipline, tenets, customs, or practices of the clergy member’s church, denomination, or organization, has a duty to keep those communications secret. Note that only if the "church, denomination, or organization" imposes on the clergy member a duty to keep the communication secret is the communication a "penitential communication". If there is no such duty, the exception does not apply. Normally, a "penitential communication" concerns the actions of the person making the communication, not of some other person. However in the course of a communication about him- or herself, a person may mention the actions of another person. That mention would, as I understand this law, be part of the penitential communication and thus subject to the exception in section 11166 (d) (1). When is a Report Mandated? Section 11166 (a) provides that: (a) Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in the mandated reporter’s professional capacity or within the scope of the mandated reporter’s employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. ... [The paragraph goes on to define the time and manner of reports.] Section 11166 (a) (1) defines "reasonable suspicion": For purposes of this article, “reasonable suspicion” means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on the person’s training and experience, to suspect child abuse or neglect. “Reasonable suspicion” does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any “reasonable suspicion” is sufficient. For purposes of this article, the pregnancy of a minor does not, in and of itself, constitute a basis for a reasonable suspicion of sexual abuse. 11166 (a) mentions a MR's knowledge of or observation of the possibly abused child. It is not clear to me if a discussion with a third party, such as another adult, would be sufficient to raise a "reasonable suspicion" such that a MR would be required to file a report, if there is nothing that the MR has personally observed that would raise or tend to confirm such a suspicion. However section 11166 (g) provides that: Any other person who has knowledge of or observes a child whom the person knows or reasonably suspects has been a victim of child abuse or neglect may report the known or suspected instance of child abuse or neglect to an agency specified in Section 11165.9. For purposes of this section, “any other person” includes a mandated reporter who acts in the person’s private capacity and not in the person’s professional capacity or within the scope of the person’s employment. {Emphasis added.} Thus the person who makes a penitential communication to a clergy member may (but need not) report directly to Law Enforcement, and the clergy member may urge such a person to do so. Note that 11166 (i) (1) provides that: (i) (1) The reporting duties under this section are individual, and no supervisor or administrator may impede or inhibit the reporting duties, and no person making a report shall be subject to any sanction for making the report. However, internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established provided that they are not inconsistent with this article. An internal policy shall not direct an employee to allow the employee’s supervisor to file or process a mandated report under any circumstances. Note that 11166 (i) (3) provides that: (i) (3) Reporting the information regarding a case of possible child abuse or neglect to an employer, supervisor, school principal, school counselor, coworker, or other person shall not be a substitute for making a mandated report to an agency specified in Section 11165.9. Specified Scenario In a comment on an earlier version of this answer, the original poster of the question (OP) asks: So if there was a situation where church member X tells to a religious leader L (no other persons present) that church member Y has abused a child, then the legal responsibility for the leader to inform authorities depends primarily on state law and secondarily on what the religious traditions of that religious org state? Would this be correct? Yes, the responsibility of L in that situation depends on both the state law of the state where this occurs, and on the rules and traditions of the the church or other religious organization are. There are several questionable points in that scenario under California law: When X tells L about the abusive actions by Y, is that a "penitential communication" under the traditions of the relevant religious organization? For instance, in Catholic practice, a confession is about oneself, and any mention of the misdeeds of others is not confidential unless it would reveal the contents of the actual confession. Does religious law, tradition or practice impose a duty of secrecy on L? If not, the exception does not apply and a report is mandated if the other conditions for a report apply. My understanding (not confirmed) is that the Catholic church, for example, has in recent years changed its canon law so that a persistent course of action, showing no indication of repentance nor effort to stop the sinful action where there is a likelihood of future harm to others relives a priest from the duty of secrecy. When there is no religious duty of secrecy, the exception does not apply. Does the report by X give L "knowledge" or "reasonable suspicion" of abuse? If not, no report is mandated. If there is not at least corroboration through direct observation of the child in question, then the wording of 11166 seems to me to imply that no report is mandated, but I have not found case law confirming or opposing that conclusion. Also, under 11166 (a) (1) suspicion must be "objectively reasonable" to trigger a mandated report. If X is known for making unfounded accusations, X's report might not be grounds for "reasonable suspicion". Thus the detailed facts about the situation, and about the rules or traditions of the church or religious organization will matter. | I'll start with a list of issues presented and also note at the outset that the question correctly notes that both the school district (which is an entity distinct from the county), and the superintendent of schools, are protected from civil liability to a significant extent by the doctrine of sovereign immunity which is outlined here. Two specific provisions bear particular note: an exclusion of liability for someone who has reported a suspected child abuse case, and immunity for a school teacher who acts in good faith with regard to supervision, care and discipline of students. 1. What duty does a public school board in the U.S., or do specific employees of that school board, have to prevent a violent crime from being committed by one student against another student, when that student has no prior history of serious misconduct? Short of malice directed at a victimized student there is no liability under state law. There is also no well established constitutional right violated that could give rise to civil rights liability. Students commit crimes against each other all of the time and school officials are almost never responsible for those crimes. 2. What duty does a public school board in the U.S., or do specific employees of that school board, have to prevent a violent crime from being committed by one student against another student, when that student has a history of prior serious misconduct? The legal standard is the same but the practical analysis might be more fact intensive. Still, outright malice directed towards a victim would pretty much be the applicable legal standard and is unlikely to be present in this case, absent awareness, for example, of conditions of probation or pre-trial release after the first case that weren't enforced. 3. Is a public school in the U.S. permitted or required by law to advise parents of students at the school that student transferring into the new school has a history of violent criminal conduct? Juvenile justice law and educational privacy laws profoundly limit the extent to which a public school, or its officials are allowed to disclose that a student transferring into a school has a history of violent criminal conduct. There is no clear duty of the public school in the U.S. to disclose this fact broadly. 4. Is a statement by a superintendent to parents in a public school district that transgender girl does not pose a threat to cis-gender girls in restrooms an actionable fraud (and does it matter if there is a history of prior misconduct by a particular student in this case of which the superintendent was aware)? The statement is not, in general, false. If it was made after knowledge of this particular student, that might be a different matter, but as noted above, there are severe legal limitations on what the board is allowed to say. It isn't inconceivable that the school board or superintendent could have said more than it did to at least some people. But there isn't a clear legal duty to do so. It also isn't clear what the superintendent actually knew when he made a report to the school board even tough the information should have been shared with him. It is possible that only a lower level official in the school system had actual knowledge at that time. 5. What crime, if any, did the father of the first rape victim commit for trying to warn the parents about someone who attacked his daughter? This is partially speculation, but the father appears to have been arrested for the manner in which he acted disturbing the peace, speaking out of turn, and refusing the leave a meeting when requested, rather than sharing the information per se. 6. Did the school superintendent commit a crime somehow connected to the second rape by concealing the risk posed by the student in question? The school superintendent has a duty to report child abuse to authorities and failure to do so (if it was not done) would be minor crime. My impression of the fact is that the first rape was reported to juvenile justice system officials and resulted in action being taken. So, it does not appear that this duty was breached. According to the article: The boy was arrested and charged for the first assault in July but released from juvenile detention while prosecutors waited for DNA rape kit evidence to come back. Loudoun County Commonwealth's Attorney Buta Biberaj says at the time they had no reason to believe the boy should have stayed in juvenile detention. “If that case had gone forward and we were not able to substantiate beyond a reasonable doubt the allegations that were made by the victim, he would've been out anyway,” she said. “The best decision was made with the facts that were known." This does not, however, give him criminal liability for a subsequent rape of one student by another in which he had not involvement sufficient to constitute criminal conspiracy to commit sexual assault which was the case here. 7. Does the school board have defamation liability for calling the father of the victim of the first rape a transphobe? No. The school board has sovereign immunity from suits for money damages seeking to establish liability in relation to statements made in their official capacity, apparently in good faith. It also isn't clear that the statements made were actionable in the first place, or that such statements were even made by them. The school board also does not appear to have had actual knowledge of what happened until a decisive school board meeting after the second assault. 8. Does the public have any power to remove an appointed official such as the superintendent in this context? No. The political remedy is to elect a new school board that would select a different superintendent. | In new-jersey, the offence of perjury is defined at 2C:28-1 of the Code of Criminal Justice A person is guilty of perjury, a crime of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true. The Code also provides an opportunity for retraction. Assuming that the statement is material, whether answering "no" is perjury will depend on the witness's understanding of the question and his belief about the truth of the answer. If we assume that the witness understands the question to be about parentage in general, including by adoption, and if we assume that they know they have an adopted child, the answer "no" would be perjury. If instead we assume that the witness understood the question to be narrowly about biological parentage, or if they had forgotten at the time of their answer that they had an adopted child, then the answer "no" would not be perjury. | That depends on several things: Do the authorities have solid evidence of what happened? Authorities in which country? A screenshot is not evidence, that would be easily faked. It takes access to the metadata. Does the country where the perpetrator lives consider it a serious crime? Note that when two people exchange such messages, who is the criminal and who is the victim can depend on the ages of both, and the exact rules of who is guilty of what may differ from country to country. There are countries which prosecute child abuse by their citizens or residents abroad once they come back. So it may be that nothing happens, or it may be prosecuted. | There are no small sexual assaults Indecent assault/sexual assault/sexual touching Different jurisdictions have different definitions but, wherever you are, the behavior you describe is a criminal offense and the appropriate course of action is to report it to both your employer and the police. The fact that the perpetrator is under the professional care of the victim does not change this although, if the positions were reversed, this would be an aggravating factor. That is, assuming you are willing to make a statement to the police and, ultimately, testify before a court. It may not come to that - the police may not press charges. You can also civilly sue for the damage you have suffered. Work Health and Safety Your employer has an obligation to provide a reasonably safe workplace. If this is a not uncommon occurrence then they should have analyzed the risk and determined appropriate mitigation strategies and trained you in these. Have they? | In addition to David's answer - it's more than acceptable for a witness to say that they don't know the answer; it's a requirement of their oath / affirmation to say "I don't know" if they are telling: ...the truth, the whole truth, and nothingbut the truth.. | This answer is based upon united-states law. Outside the United States that law may, and indeed, is likely to, differ, as the legal analysis in U.S. law is unusual in multiple respects with regard to these issue. The premise of the question is basically incorrect. There is not a stark legal definitional distinction between physical abuse and psychological abuse. Child abuse and neglect are defined by Federal and State laws. At the State level, child abuse and neglect may be defined in both civil and criminal statutes. This publication presents civil definitions that determine the grounds for intervention by State child protective agencies. At the Federal level, the Child Abuse Prevention and Treatment Act (CAPTA) has defined child abuse and neglect as "any recent act or failure to act on the part of a parent or caregiver that results in death, serious physical or emotional harm, sexual abuse, or exploitation, or an act or failure to act that presents an imminent risk of serious harm. CAPTA Reauthorization Act of 2010 (P.L. 111-320), 42 U.S.C. § 5101, Note (§ 3). (Source). This definition and other definitions were contained in the 2010 amendments to the Act, but were not codified in the United States Code's text. State definitions very considerably, but significantly overlap with the CAPTA definition. For example, a non-exclusive list of conduct that constitutes misdemeanor or low level felony child abuse in Colorado if you engage in it includes: you are in a position of trust in relation to the child, and you participate in a continued pattern of conduct that results in the child’s malnourishment; you fail to ensure the child’s access to proper medical care; you participate in a continued pattern of cruel punishment or unreasonable isolation or confinement of the child; you make repeated threats of harm or death to the child or to a significant person in the child’s life in the presence of the child; you commit a continued pattern of acts of domestic violence in the presence of the child; or you participate in a continued pattern of extreme deprivation of hygienic or sanitary conditions in the child’s daily living environment. (The criminal child abuse statute, Colorado Revised Statutes § 18-6-401, is somewhat tricky to parse). Some of this conduct causes emotional harm more than physical harm. As is typical, this only moderately overlaps with the civil standard for termination of parental rights in Colorado pursuant to Colorado Revised Statutes §§ 19-3-102 and 19-5-105 which state in the pertinent parts: C.R.S. § 19-3-102: (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; (g) The child tests positive at birth for either a schedule I controlled substance, as defined in section 18-18-203, C.R.S., or a schedule II controlled substance, as defined in section 18-18-204, C.R.S., unless the child tests positive for a schedule II controlled substance as a result of the mother's lawful intake of such substance as prescribed. (2) A child is neglected or dependent if: (a) A parent, guardian, or legal custodian has subjected another child or children to an identifiable pattern of habitual abuse; and (b) Such parent, guardian, or legal custodian has been the respondent in another proceeding under this article in which a court has adjudicated another child to be neglected or dependent based upon allegations of sexual or physical abuse, or a court of competent jurisdiction has determined that such parent's, guardian's, or legal custodian's abuse or neglect has caused the death of another child; and (c) The pattern of habitual abuse described in paragraph (a) of this subsection (2) and the type of abuse described in the allegations specified in paragraph (b) of this subsection (2) pose a current threat to the child. C.R.S. § 19-5-105: (3) If, after the inquiry, the other birth parent is identified to the satisfaction of the court or if more than one person is identified as a possible parent, each shall be given notice of the proceeding in accordance with subsection (5) of this section, including notice of the person's right to waive his or her right to appear and contest. If any of them waives his or her right to appear and contest or fails to appear or, if appearing, cannot personally assume legal and physical custody, taking into account the child's age, needs, and individual circumstances, such person's parent-child legal relationship with reference to the child shall be terminated. If the other birth parent or a person representing himself or herself to be the other birth parent appears and demonstrates the desire and ability to personally assume legal and physical custody of the child, taking into account the child's age, needs, and individual circumstances, the court shall proceed to determine parentage under article 4 of this title. If the court determines that the person is the other birth parent, the court shall set a hearing, as expeditiously as possible, to determine whether the interests of the child or of the community require that the other parent's rights be terminated or, if they are not terminated, to determine whether: (a) To award custody to the other birth parent or to the physical custodian of the child; or (b) To direct that a dependency and neglect action be filed pursuant to part 5 of article 3 of this title with appropriate orders for the protection of the child during the pendency of the action. (3.1) The court may order the termination of the other birth parent's parental rights upon a finding that termination is in the best interests of the child and that there is clear and convincing evidence of one or more of the following: (a) That the parent is unfit. In considering the fitness of the child's parent, the court shall consider, but shall not be limited to, the following: (I) Emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely, within a reasonable period of time, to care for the ongoing physical, mental, and emotional needs of the child; (II) A single incident of life-threatening or serious bodily injury or disfigurement of the child or other children; (III) Conduct toward the child or other children of a physically or sexually abusive nature; (IV) A history of violent behavior that demonstrates that the individual is unfit to maintain a parent-child relationship with the minor, which may include an incidence of sexual assault, as defined in section 19-1-103 (96.5), that resulted in the conception of the child; (V) Excessive use of intoxicating liquors or use of controlled substances, as defined in section 18-18-102 (5), C.R.S., that affects the ability of the individual to care and provide for the child; (VI) Neglect of the child or other children; (VII) Injury or death of a sibling or other children due to proven abuse or neglect by such parent; (VIII) Whether, on two or more occasions, a child in the physical custody of the parent has been adjudicated dependent or neglected in a proceeding under article 3 of this title or comparable proceedings under the laws of another state or the federal government; (IX) Whether, on one or more prior occasions, a parent has had his or her parent-child legal relationship terminated pursuant to this section or article 3 of this title or comparable proceedings under the laws of another state or the federal government. (b) That the parent has not established a substantial, positive relationship with the child. The court shall consider, but shall not be limited to, the following in determining whether the parent has established a substantial, positive relationship with the child: (I) Whether the parent has maintained regular and meaningful contact with the child; (II) Whether the parent has openly lived with the child for at least one hundred eighty days within the year preceding the filing of the relinquishment petition or, if the child is less than one year old at the time of the filing of the relinquishment petition, for at least one-half of the child's life; and (III) Whether the parent has openly held out the child as his or her own child. The items in bold have, or could sometimes have, a significant emotional well-being component. In practice, however, this is limited by the constitutional right to raise one's children without undue government interference in circumstances where there is not an imminent risk of serious harm, under the substantive due process doctrine dimensions of the 14th Amendment due process clause, This is especially true when one's child rearing methods of a religious basis implicating the Free Exercise clause of the 1st Amendment to the U.S. Constitution as incorporated against the states through the 14th Amendment to the U.S. Constitution. While these constitutional defenses can be asserted in both cases of alleged physical abuse and alleged psychological abuse, these defenses are particularly hard to penetrate in cases of psychological abuse. In particular, In Pierce v. Society of Sisters, 268 U.S. 510 (1925), the "Supreme Court also recognized a substantive due process right 'to control the education of one's children', thus voiding state laws mandating for all students to attend public school." It said: We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. These are sometimes described as "privacy rights" (and also include the right to legal contraception and the abortion rights of Roe v. Wade), but in this context, a "privacy right" is not the right to keep something unknown to the general public in the literal sense of the words. Instead, it is a privacy right in the less common sense of the words meaning a right to autonomy and freedom of conscience of a parent, associated with the underlying purposes of other constitutional rights that protect more literal forms of privacy. The other issue is that there is less of a consensus concerning what constitutes psychological abuse sufficiently clearly that it is publicly sanctionable, than there is concerning what constitutes physical abuse. Striking a child for reasons other than to improve a child's behavior is usually considered physical child abuse. Intentionally undermining a child's self-esteem, in contrast, for example, can be justified in myriad ways. | Defamation laws do not distinguish between charitable organizations and others: however, in the US there are special considerations for "public figures" (they are not afforded as much protection). The medium does not matter -- texting, blogging, letter-writing, whatever. The defamatory statement need not have been received by a wide audience – it suffices that the message was received by one person other than the person being defamed. A single defamatory act is all it takes: there is no requirement of there being an established and repeated practice of defaming. One way to defend against a charge of defamation is to show that the statement is true. An alternative is to show that the statement is incapable of being proven true or false (e.g. calling someone a "jerk" doesn't assert a factual proposition). A careful scrutiny of the actual statement, performed by an attorney specializing in such matters, is really the only way to know whether words like "may", "possibly" would make a statement an expression of opinion rather than a statement of fact. A person suing for defamation would have to have suffered a loss, but there is a category of false statements, per se defamation, considered to be so injurious that damage need not be proven. That included allegations of criminal activity and allegations of professional incompetence, either of which could be applicable in the context you are describing. The First Amendment provides much protection against such suits, which may not exist in other countries. Because of this, a law was recently passed in the US, 28 USC 111, which says that domestic courts will not enforce a foreign defamation judgment that is inconsistent with the First Amendment. [Addendum] This part is crucial: "The only people I've expressed my concerns to, aside from the organization itself, is my parents and my wife's parents. However, they have shared with a few friends...". If you alleged illegal behavior to your parents, that's a problem. If you only said e.g. "I have concerns", that's not a problem. It would also matter in what way you tried "to disclose to a U.S. based organization details of the foreign organization they are supporting that indicate it might not be on the up and up". |
What happens if a corporate person gets sentenced to prison? I recently saw the quote “I will recognize corporations as people the day the state of Texas puts one to death.", and this got me wondering about how punishments targeting the person of the criminal work with corporate personhood. Is there a guideline for how a court handles imprisoning (or executing) a corporate person? | united-states Corporations cannot be sentenced to imprisonment or death; it would be an absurdity. They can certainly be sentenced to pay a fine, as well as various other punishments. A fine can be so large that it takes away all the corporation's assets, effectively destroying it; this is the closest thing to a "death penalty". There's a good summary in "Corporate Criminal Liability: An Overview of Federal Law" by Charles Doyle, prepared for the Congressional Research Service. Sentencing is discussed on page 20. Corporations cannot be incarcerated. Nor can they be put to death. Otherwise, corporations and individuals face many of the same consequences following conviction. Corporations can be fined. They can be placed on probation. They can be ordered to pay restitution. Their property can be confiscated. They can be barred from engaging in various types of commercial activity. The rest of the section discusses these various possibilities. Under "Fines" is the following note: The corporate fine Guidelines begin with the premise that a totally corrupt corporation should be fined out of existence, if the statutory maximum permits. A corporation operated for criminal purposes or by criminal means should be fined at a level sufficient to strip it of all of its assets. See the article for further information, together with citations for all its claims. | Yes Companies can own companies - that’s what subsidiaries are. On a practical level, you know this is true because you actually have an example. Companies House would not have allowed its registration (barring error) if it was illegal. Why can’t it open a bank account? Banks (or any other business) can choose who they will and won’t do business with. Unless it’s discrimination on the basis of a protected characteristic, it’s not illegal. Since juridical persons don’t have protected characteristics (apart from nationality) it’s virtually impossible to illegally discriminate against them. | Considering that the US legal system is more or less similar in practice to the English Courts, yes it is possible to plea bargian a deal. I'm linking to the wikipedia article on the matter with a specific link to the England and Wales for guidence. Normally, I'd explain, but I'm an American and the differences between Magistrate and Crown courts are big enough differences that I can't tell you what the differences in the case is. I should point out this is a legal area where America differences with much of the world. 90% of the United States criminal cases (and a good number of civil cases, which are settled privately before discovery phase) are plea bargained to lesser sentences. Additionally remorse has nothing to do with the plea bargain. You might only be sorry that you got caught breaking the law and can still plea. The lighter sentence is sort of a "thank you" for saving the state money in not having to build their case against you. It is also used to coerce cooperation with the police, as they may have the accused dead to rights and can prosecute him successfully, but he's a little fish who can give intel to a big fish (this usually comes with the caveat of it being a sworn statement, so they can still prosecute you for something if you're lying... OR that the deal holds on condition that everything is factually true. If evidence contradicts you, you're charged as if you never made a deal). It's also important to note that the police will not honor their deals made for your confession... but they will offer you deals (In the United States, police are allowed to lie to you and do it all the time). However, the prosecutor will honor their deals. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. Finally, most jurisdictions allow the judge final say at sentencing, so if the prosecutor does honor the deal and advises the sentence, don't get upset if the judge is tougher and gives you a harsher sentence on the crime, or rejects your plea outright (expect him to scold the prosecutor for wasting his time with a horrible deal, too. Watch the Law and Order SVU episode Raw for a particularly wonderful instance of this rare event occurring). As a part of US federalism, the rules about this change from jurisdiction to jurisdiction, so make sure you understand this. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. I would definitely do some leg work into the English Legal system's opinions on plea bargains. Just because they have it does not mean the state lawyers like employing it and many jurisdictions see it as full on corruption in other parts of the world, even the Common Law jurisdictions. | Other Entities means Legal Person The reason for the term "legal person" is that some legal persons are not people: companies and corporations are "persons" legally speaking (they can legally do most of the things an ordinary person can do), but they are not people in a literal sense (human beings) This is very similar to Corporate Personhood. Among the recognized items for legal personhood are usually groups of people, such as a corporation, states or countries, but also churches and temples. In rare cases, Temple buildings and at least two rivers are legal persons. All non-natural legal persons have in common, that they are represented by natural persons - aka humans. A computer program is not represented by a natural person. A natural person (possibly representing a legal person) can use a program to agree to a contract, but a program agreeing on its own is not following the basic principle of a contract, which requires a meeting of the minds on the offer. The computer program becomes the tool that facilitates the contract, for example by offering a prewritten contract to people that want to use the service. Since the contract is usually offered by the service providers as is with no renegotiation allowed, those contracts can only be accepted or not - their side of the bargain is offered and then facilitated by the computer of the service provider - we have an invitation to treat. If a natural or legal person is able to agree (through its representative), the contract becomes binding. If you are not a legal person - so neither a human nor one of the recognized categories - you can not agree to the TOS, the contract is void. | You can have as many people with the same job title as you wish. You can have more than one CEO as well, although that would be weird and confusing. Nothing prohibits this and CTO isn't even a traditional and core executive title anyway. This will be confusing to everyone involved, as grammatically and in the common English language usage of the word, a C-level officer is usually singular, so the people with that title may resent the fact that they don't really hold the post that their title implies, but tough. By way of comparison, it isn't unusual for big banks to have hundreds of vice presidents. Also, third parties are entitled to assume in a legally binding way that everyone with the title CTO has the authority associated with that title, even if that isn't the case, under the agency principle of "apparent authority". So, the more C-level officers you have, the easier it is for the company to be legally bound by actions they take and the harder it is to assert centralized control over company operations. | Maybe, but we'll probably never know for sure. Officially, of course, he was not punished for his speech. He was punished for selling explosives without a license, which he admitted to. (He was also charged with illegally storing explosives and illegally mailing 'injurious material," but those charges were dropped in exchange for his guilty plea on the first count.) Whether those charges were a pretext to retaliate is probably unknowable. While it's a well-known fact that law enforcement frequently retaliates against people for exercising their right to free speech, this guy's story doesn't sound very credible. There is precedent for a prosecution for distributing Pest Control Report 2000, including the prosecution of white supremacist Leo Felton, a sad-sack loser who used the same material to build a bomb around to incite a "racial holy war" the same time. And just about a month after Ver's conviction, the man who owned the company that manufactured the product was convicted of violating federal explosives and transportation laws. Several months after that, he and his company entered into a consent decree with the Consumer Product Safety Commission ordering them to stop manufacturing Pest Control Report 2000. | "Criminal organization" is an informal term with no legal significance. It is, however, often used to refer to something specifically addressed by [18 USC 96], the RICO statutes. The definitions section refers to "racketeering activity", "pattern of racketeering activity", and "enterprise". The first term which starts by enumerating murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical, and moving on to pretty much every crime there is. "Pattern of racketeering activity" is committing two or more crimes. An "enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity 18 USC 1962(c), for example, says It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. The italicized part refers obliquely to the Commerce Clause, and similar expressions are commonly used to give the federal government the authority to outlaw or restrict certain activities, if they have something to do with business. The bold parts draw in what are commonly considered to be "a criminal organization", that is, an "enterprise", which has a "pattern of racketeering behavior". Theoretically, the above scenario might fall within the ambit of RICO. There is a manual for RICO prosecution, which gives massive amounts of detail. I think the main issue in deciding whether to pursue a given organization is whether the organization seems to be by nature corrupt, as opposed to having some high-ranking corrupt people. There may be other reasons for not prosecuting under RICO. | Your question is the subject of longstanding and ongoing debate that has generated countless articles and books and dissertations, so you're probably not going to get a fully satisfactory answer here. But here's the short version: Different systems operate on different assumptions. Your question suggests you are not a retributivist, i.e., someone who views sentencing as a means for taking retribution for the criminal's offenses. Some systems (most, I imagine) are built around that idea, but some view criminal sentencing primarily as a means of preventing recidivism, or as a means for achieving rehabilitation, the interests you indicated you see as more important. And even within those systems, there are still different ideas about what you're actually trying to do. Again, you've indicated that you subscribe to an intent-based system (a punishment keyed to what the criminal intended to do), but that approach competes with harm-based sentencing (punishment for the harm the criminal actually caused). While equal punishments make sense from an intent-based approach, they are less justifiable from a harm-based approach. Few would say that attempted murder inflicts the same amount of harm as completed murder, and so that system does not call for the same amount of punishment. Because there are different approaches, sentencing guidelines vary from jurisdiction to jurisdiction. The U.S. Federal Sentencing Guidelines, which I would classify as adopting a harm-based retributivism, treat attempts less severely than completed offenses, but other systems treat them equally. |
Who owns the software in this case? Consider three parties, whose intent was to create an LLC (or some other legal entity) where each would have a 1/3 interest in the business. No legal entity was ever formed, and nothing was ever signed. For some time, one of the people spent considerable time researching and developing some copyrighted material (software) for the prospective business. The other two people were not involved in that work. By mutual consent it was decided that the arrangement wasn't going to work and the parties decided to split up. In this scenario, who owns the copyright on the software? The individual who wrote it, or all 3 individuals who intended to collaborate (in equal shares)? | Canada In Canada, "the author of a work shall be the first owner of the copyright therein" (Copyright Act § 13(1)). Also, "[w]here the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright" (Copyright Act § 13(3)). Nothing in your description of the situation describes to me an employer/employee relationship, so in my opinion, § 13(3) is not implicated. Even if there were an agreement or contract to transfer copyright to an LLC or assign it to the other individuals, absent an actual writen assignment, the original owner still owns the copyright. "[N]o assignment or grant is valid unless it is in writing signed by the owner of the right..." (Copyright Act § 13(4)). In University of London Press Ltd v University Tutorial Press Ltd, there was a contract that required assignment of copyright. "The examiner was the first owner, and he has not assigned the copyright in writing signed by him or his agent. The copyright therefore remains in the examiners, subject to the obligation under the contract of employment to assign it to the University or as it may direct." Even though copyright was owed to the University, it didn't become theirs until the written assignment took place. United States Similarly, in the US, "Copyright in a work protected under this title vests initially in the author or authors of the work.", and "in the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author" (17 U.S.C § 201). "A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent." (17 U.S.C § 204) Conclusion In both Canada and the US, transfer of copyright requires an affirmative act (a written, signed document, or a note or memorandum, etc.) Since nothing in your description indicates that the author has prepared a signed, written, instrument of conveyance or note or memorandum of the transfer of copyright, the copyright still belongs to the original author. | The difference between commercial and non-commercial software use is about as clear as it gets, outlined by the definitions in the license above. One makes money, the other doesn't. There is no gray area. Your intent or expectations for a project may seem to alter the difference between the two and add a gray area in your mind, but they don't. Once you are a commercial user, buy a commercial license and/or upgrade the non-commercial license to commercial. That's the legal angle; and what is illegal and what is unethical are not always the same. If you still feel like your intent does make a difference and you feel unethical about using a non-commercial license - because you are building a community and hoping/planning on making money - buy the commercial license to begin with. | No The general common law rule is that a lawsuit requires an actual dispute. This is a contrived dispute with no real-world relevance. With apparent (or even actual) authority to act on behalf of A, you assisted B with making copies. The moment you contrived this scheme and set it into motion, you consented on behalf of A to allow B to use the materials. It is like paying someone to slip and "fall" on your sidewalk so they can sue you. There is no actual dispute, and volunti fit non injuria. | 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 | There are two common approaches. The first approach is simply to let copyright law apply. Under the default terms, the IT provider has no rights to copy your software. Running software is allowed, of course, and not a problem that you need to deal with vis-a-vis the IT provider. You still can sue them if they copy your software, even in the absence of a contract. That is the chief function of copyright, after all! The second approach is to allow the customer to subcontract third parties to act on behalf of them, while acknowledging that such subcontracting does not dissolve them from any responsibilities towards you. In other words, if the 3rd party would do something unauthorized, you have a claim towards the customer and they have a distinct but related claim towards their IT supplier. | I'm assuming that you are not seeking to change the license, and so it will remain GPLv3. As long as you've built on the original software, that license still applies. You also need to keep the previous copyright notices, including the names of the original people. Assuming that, everything you're doing is legal, which is what's on topic here. There is some etiquette around forks (which is what you're doing), which would be on topic at the Open Source Stack Exchange. I'm puzzled by your desire to have a different license text. You can't change the license from GPLv3, so that has to stay the same. (If the original has GPLv3 "or, at your option, any later version", you can drop the any other version text if you like.) | Bringing fair use into this sounds iffy if you are partnering -- that is a commercial relationship which should be defined. If they did send you a file with their logo for a specific purpose, you can assume that you are allowed to use it for that specific purpose. If they did not send you the file, you can assume that they did not give you permission, or they would have included the file ... | There's usually at least a little wiggle room for a fair-use argument in copyright law, but as you're describing it, this sounds like a pretty straightforward copyright violation. A copyright holder's exclusive rights include the rights to make copies, create derivative works and publicly perform the work. Whichever way you want to characterize the podcaster's conduct, he's running afoul of at least one of these rights. |
How to find status of criminal prosecution (Alberta, Canada) Calgary men charged after 864 investors lose $33M in Crowsnest Pass development Jun 10, 2016 I can't find any further news about this. I tried contacting CBC but got no reply. (Not to be confused with a related civil suit involving Becker and Bradley.) | It appears you would need to contact the Calgary courts directly to discover more about the case(s) as any case files will likely be held with them. It's possible that the case was dropped, or that they were found "not guilty" which would explain the lack of further news on them. I searched the Canadian Legal Information Institute's website for you but wasn't able to find any criminal cases involving them — only some civil cases around bankruptcy and creditor claims. | Mongolia apparently has a list of banned words (list is NSFW) that websites can't use. And according to this State Department report: Additionally, the regulation requires Web sites with heavy traffic to use filtering software that makes the user Internet Protocol addresses of those commenting or sharing content publicly visible. The report also says: The law places the burden of proof on the defendant in libel and slander cases, and both defamation and insult are criminal charges. NGOs reported that these laws were used more frequently than in previous years to control the press. Canada is probably a better choice, even if it isn't perfect. | Spoliation of evidence, once a suit is filed The reason Bob requests the video from Alice Corp is not that he is concerned about his GDPR rights, it is because he wants to file a lawsuit. In fact, it would be super helpful if Bob had filed the lawsuit and served it together with the GDPR request, so there is a pending case... and added a paragraph that he demands the preservation of all evidence at that point. In either case, the sudden deletion of the files by their DPO Charly, after Alice Corp was put on legal notice that they have to preserve evidence, is spoliation, indeed, it would be the very definition: The intentional destruction or alteration of relevant evidence in existing or pending litigation. 1 The main remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would have been unfavourable to the party that destroyed it. This presumption can be rebutted by evidence showing that the “spoliator” did not intend to affect the litigation by destroying the evidence (McDougall v. Black & Decker Canada Inc., 2008 CarswellAlta 1686 (Alta. C.A.)). So, we have the DPO performing spoliation, and thus the lawsuit for the beating will assume that the destroyed video showed exactly what Bob alleged that Alice Corp's security team did to him. in england-and-wales DPO Charly can be further sued for destroying evidence under Section 2 (16) Criminal Justice Act 1987. Spoliation might even happen before the case begins with filing & summons According to an article by Chris Dale, discussion spoliation in england-and-wales the case of Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009) was named as one of the best descriptions of spoliation in English law. That case indeed is illustrative, as it might be explicitly applicable to the case as described (emphasis mine): 28 [I]n this jurisdiction [Bermingham/England] as in Australia, there is no duty to preserve documents prior to the commencement of proceedings: British American Tobacco Australia Services Limited v. Cowell [2002] V.S.C.A. 197, a decision approved in this country by Morritt V.C. in Douglas v. Hello [2003] EWHC 55 at [86]. However, the leading text book in this area – Documentary Evidence by Charles Hollander QC- suggests in paragraph 10-06 of the 10th edition that "there might be cases where it was appropriate to draw adverse inferences from a party's conduct before the commencement of proceedings." In my judgment there would have to be some clear evidence of deliberate spoliation in anticipation of litigation before one could legitimately draw evidential "adverse inferences" in those circumstances. There is no such evidential basis in this case. 29 After the commencement of proceedings the situation is radically different. In Woods v. Martins Bank Ltd [1959] 1 Q.B. 55 at 60, Salmon J. said "It cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court to make sure, as far as possible, that no relevant documents have been omitted from their client's list". 30 In the case of documents not preserved after the commencement of proceedings then the defaulting party risk "adverse inferences" being drawn for such "spoliation": Infabricks Ltd v. Jaytex Ltd [1985] FSR 75. So, yes, we got it in a judgment from the High Court of Justice, Queens Bench Division, Birmingham District Registry, Mercantile Court: if it is extremely likely, that proceedings will begin shortly, destroying the video might be spoliation in anticipation of litigation, and thus be problematic even before proceedings started. As a remedy, an adverse inference might be drawn to the content of it. 1 - RESOURCE ID W-015-7809 © 2022 THOMSON REUTERS. ALL RIGHTS RESERVED. | They could be prosecuted in any state where there was evidence that part of the crime was committed. Realistically, either State A or State B could prosecute for conspiracy to murder as an additional charge, because the conspiracy clearly spanned more than one state, even if they can't prove where the crime was committed, although physical evidence (e.g. traces of camp sites, footprints, testimony about landmarks, evidence of poop with human DNA from the victim in it), would usually make it possible to show that some part of the crime was committed in the state. There is probably also a federal crime that could be implicated such as "murder involving flight across a state line" (hypothetical, but I'm sure that there is something similar on the books). I'm not going to address the further hypothetical as it is too bizzare and law is ultimately very context specific. Find a more plausible fact pattern, perhaps with a different crime, and ask a separate question if you want to really address the issue. | You can try, however, a US court when considering if it has jurisdiction will doubtless ask you to explain why a Canadian business wants to sue a Canadian company for an unpaid debt in Canadian dollars for services provided in Canada in a US court. If you can satisfy them that a US court is the appropriate venue (which I doubt) they will hear the case. | As an academic matter, the US system has struggled with this, and law professors spend their lives debating it. As a realistic matter, I'd bet that company in your example gets nailed. On the theory, the issue here is but-for cause. Civil liability requires that the jury find it more likely than not, or over 50% likely, that but-for D's actions, P's injuries would not have occurred. Your hypo puts it at exactly 50, and tie goes to the defendant, so in this case even the theory is clear. But, say you change it a little bit to make it more like 65 or 70%. Now, you're getting into the territory of the classic blue bus case. A man is hit by a blue bus. Two companies in town own blue busses, and one company owns 90% of them. Can he recover against that company with no other evidence? The black letter answer is no, that naked statistical evidence doesn't cut it. The rationale is that if it were the other way, anytime someone got hit by a blue bus, that company would automatically have to pay out unless they had some evidence to disprove their liability. The burden of proof has been shifted, violating a fundamental tenet of our legal system. But, this doctrine obviously poses an issue for plaintiffs like yours. It's one thing to say that someone hit by a bus needs to have more evidence. Theoretically, they could go out and get it: they could find the bus routes and schedules, examine where they were, and show that X company had a bus going by there at that time. They can also canvas for witnesses. It's much harder when, as your excellent hypo touches on, the science is so complicated. One controversial solution that has been debated a lot recently is market-share liability, but that doesn't seem pertinent here because you have mentioned another company. On the legal realist side. As far as I can tell the system usually finds a way to hold the company responsible. One example is the tobacco litigation. My understanding is the science couldn't definitively prove that smoking caused cancer, but it could prove that it raised the risk significantly. Here's some information on that https://www.tortmuseum.org/the-tobacco-cases/ from the American Museum of Tort Law, which, yes, is a real thing. | Probably not In order to establish negligence as a Cause of Action under the tort of negligence, a plaintiff must prove that the defendant: had a duty to the plaintiff, breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person), the negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged. What standard of conduct do you think your employer failed to conform with? Owning a tree or a parking lot is not, of itself, negligent. Further, the branch fell "during high winds" - the wind is not within your employer's control. Now, if you can prove that your employer knew that the particular tree was ill and likely to drop branches in high winds and failed to do anything about it, that might be considered negligent. I know of a case where a council who had refused permission for a tree to be removed because it was "healthy" was found negligent when that tree latter (in calm winds) dropped a branch on Jaguar. | Important story, but BoingBoing also doubts the BBC's wording. It could be an attempted summary of a previous story on BBC Newsnight on 18 July: Lord Porter of Spalding, a former bricklayer, alleged corporations were running tests on the safety of their high-rise building materials but refusing to share the results. Releasing the results could allow residents and local authorities to know if their buildings are at risk of a fire following the Grenfell catastrophe which claimed the lives of at least 80 people. There Lord Porter was talking about results commissioned by private companies including manufacturers, where the labs wouldn't provide information because of 'intellectual property rights' of the client, or presumably commercial confidentiality. Under these situations, it is said the private concerns have no obligation to disclose. If this is what the BBC story was referring to, then at least investigations by government or third parties wanting to reveal characteristics of the products wouldn't have a copyright (or patent etc) problem. |
Holding refunds for pre-orders until the items become available How legal is the following practice?: A store takes pre-orders for physical items. The items take much longer to become available than estimated. The customers get frustrated and request refund/cancellation. The store holds processing refunds until the items materialize on the shelves. Presumably, the store does so because it does not actually maintain sufficient cash balance for refunds: it puts the money into production and other business expenses. When an item is actually available, there will be new people willing to grab it, and their money will be used to refund the frustrated customer. Assuming there is no actual malicious intent but just over-optimistic estimations, does the store break any laws? Are the refund terms lawful and enforceable in court? | Consumer Protection In addition to whatever the provisions of the contract may be, consumer protection laws will apply to this transaction, and will override any contrary provisions in the contract. There are federal protections, mostly administered by the FTC. The State of California also has consumer protection statutes, the Unfair Competition Law (UCL), Consumer Legal Remedies Act (CLRA), and False Advertising Law (FAL). Contracts may not override these laws except where a specific provision permits such contract terms. Federal Rules The official FTC page "What To Do If You’re Billed for Things You Never Got, or You Get Unordered Products" states: The federal Mail, Internet, or Telephone Order Merchandise Rule applies to most things you order by mail, online, or by phone. It says: Sellers have to ship your order within the time they (or their ads) say — that goes whether they say “2-Day Shipping” or “In Stock & Ships Today.” If they don’t give a time, they must ship within 30 days of when you placed your order. If there’s a delay shipping your order, the seller has to tell you and give you the choice of either agreeing to the delay or canceling your order for a full refund. If the seller doesn’t ship your order, it has to give you a full refund — not just a gift card or store credit. ... Disputing credit card billing errors within the 60-day dispute period By law, you have to dispute a credit card billing error in writing within 60 days of the date that the first statement that has the billing error was sent to you. Otherwise, you may get stuck with the bill. ... Disputing credit card billing errors after the 60-day dispute period ends What if you agreed to delivery on a date in the future that turns out to be more than 60 days after your statement showing the charge was sent to you — but the delivery didn’t arrive or you rejected it because it was not what you agreed to purchase? Can you still dispute the charge? You’re likely outside the protection of the Fair Credit Billing Act. Still, some credit card issuers may extend the 60-day dispute period when a shipment is delayed. Send a dispute letter to your credit card company. Include copies of any documents showing the expected and actual delivery dates, including any notice the seller sent you about the shipment delay. See also the official "Business Guide to the FTC's Mail, Internet, or Telephone Order Merchandise Rule" The actual Federal Mail, Internet, or Telephone Order Merchandise Rule is at 16 CFR Part 435; relevant parts of this rule provide: (435.1 (b)) "Prompt refund" shall mean: (1) Where a refund is made pursuant to paragraph (d)(1), (d)(2)(ii), (d)(2)(iii), or (d)(3) of this section, a refund sent by any means at least as fast and reliable as first class mail within seven (7) working days of the date on which the buyer's right to refund vests under the provisions of this part. Provided, however, that where the seller cannot provide a refund by the same method payment was tendered, prompt refund shall mean a refund sent in the form of cash, check, or money order, by any means at least as fast and reliable as first class mail, within seven (7) working days of the date on which the seller discovers it cannot provide a refund by the same method as payment was tendered; (§ 435.2) ... it constitutes an unfair method of competition, and an unfair or deceptive act or practice for a seller: (a) (1) To solicit any order for the sale of merchandise to be ordered by the buyer through the mail, via the Internet, or by telephone unless, at the time of the solicitation, the seller has a reasonable basis to expect that it will be able to ship any ordered merchandise to the buyer: (a) (1) (i) Within that time clearly and conspicuously stated in any such solicitation; or (a) (1) (ii) If no time is clearly and conspicuously stated, within thirty (30) days after receipt of a properly completed order from the buyer. Provided, however, where, at the time the merchandise is ordered the buyer applies to the seller for credit to pay for the merchandise in whole or in part, the seller shall have fifty (50) days, rather than thirty (30) days, to perform the actions required in this paragraph (a)(1)(ii). (a) (2) To provide any buyer with any revised shipping date, as provided in paragraph (b) of this section, unless, at the time any such revised shipping date is provided, the seller has a reasonable basis for making such representation regarding a definite revised shipping date. (a) (3) To inform any buyer that it is unable to make any representation regarding the length of any delay unless: (a) (3) (i) The seller has a reasonable basis for so informing the buyer; and (a) (3) (ii) The seller informs the buyer of the reason or reasons for the delay. (a) (4) In any action brought by the Federal Trade Commission, alleging a violation of this part, the failure of a respondent-seller to have records or other documentary proof establishing its use of systems and procedures which assure the shipment of merchandise in the ordinary course of business within any applicable time set forth in this part will create a rebuttable presumption that the seller lacked a reasonable basis for any expectation of shipment within said applicable time. (b) (1) Where a seller is unable to ship merchandise within the applicable time set forth in paragraph (a)(1) of this section, to fail to offer to the buyer, clearly and conspicuously and without prior demand, an option either to consent to a delay in shipping or to cancel the buyer`s order and receive a prompt refund. Said offer shall be made within a reasonable time after the seller first becomes aware of its inability to ship within the applicable time set forth in paragraph (a)(1) of this section, but in no event later than said applicable time. There are further provisions which deal with the situation where a delayed order is further delayed, and what consent the buyer may have already given to any delay. In short, where the seller is unable to meet its estimated time for shipment of the order, the seller must promptly inform the buyer, in no case later than the original estimated shipment date, and must offer an option to cancel the order. Unless the buyer explicitly consents to the delay (definite or indefinite) the seller must send a prompt refund, which means within 7 working days. No contract purporting to waive or modify these rights is valid or enforceable on these points, although if the initial order explicitly states that the date of shipment is indefinite, and the customer agrees to this, no shipment date can be enforced under this rule. California Laws California Civil Code section 1723 requires that a retail store selling goods allow returns or exchanges for at least 7 days, or else prominently post its actual policy. But that does not apply to goods ordered for later delivery. The California Business and Professions Code section 17500 makes it unlawful for: any person, firm, corporation or association, or any employee thereof with intent directly or indirectly to dispose of real or personal property or to perform services, professional or otherwise, or anything of any nature whatsoever or to induce the public to enter into any obligation relating thereto, to make or disseminate or cause to be made or disseminated before the public in this state, or to make or disseminate or cause to be made or disseminated from this state before the public in any state, in any newspaper or other publication, or any advertising device, or by public outcry or proclamation, or in any other manner or means whatever, including over the Internet, any statement, concerning that real or personal property or those services, professional or otherwise, or concerning any circumstance or matter of fact connected with the proposed performance or disposition thereof, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading This would include advertising a shipment date which was not reasonably achievable, and which the seller knew or should have know was likely not to be met. The California Civil code section 17770 makes unlawful: (10) Advertising goods or services with intent not to supply reasonably expectable demand, unless the advertisement discloses a limitation of quantity. This may not apply to the fact pattern described in the question, depending on what the seller knew and when. | You owe money if there is a contract obliging you to pay. Whether you receive what you pay for (e.g. services) only affects your stance when suing for non-performance/damages; your obligation to pay still stands until the court decides it does not (or there is a mutual agreement to discharge the contract). It is irrelevant whether the original payment method still works or not. If it does not but you still owe money — you have to pay. The ability to turn the credit card off is just a handy feature. It does not affect your contractual obligations in any way except for when the terms explicitly provide for it (like automatic cancelling subscription when payment method fails). | Physical content The main consideration with physical content is that reading it does not require making a copy, so uncomplicated copyright law is what’s relevant. Copyright law is about making copies (also distributing). Purchase a novel (a physical book which was legally obtained). There is no copying involved (you do not in fact make a copy in your mind, if you're a human). Under the First Sale doctrine, once a copy is sold by the rights-holder (e.g. the publisher, initially to the bookstore or distributor), that owner can do whatever it wants with that specific copy, including reading or re-selling (and anying thereafter can likewise). Books are sold, not licensed. Copyright relates to copying, not reading. It’s true that all (legal) rights are reserved, but the power to prevent resale is not a right. Book (or anything else) on the ground. As above, with the complication that you aren’t at least immediately the rightful owner. But, you don’t have to be the owner of a protected work to read it (otherwise libraries would not exist). The rightful owner might unsuccessfully try to sue you for reading their property, but reading does not cause damage, and your act is innocent (not even negligent), and not wrongful. Eventually (depending on jurisdiction) you may become the owner if the original owner does not reclaim the book. Reading a copy made by someone else. See above about the relationship between reading and copyright. The teacher might maybe be liable for infringement, but you are not culpable (assuming you didn’t encourage the teacher to make an illegal copy). Digital content However, every item of digital content has to be copied many times, in order to actually be read. E.g. a copy is made to video display memory from RAM, which is copied some number of times from RAM to RAM as the program formats and sizes, ultimately reading a copy stored on disk storage (which is installed from.... using N temp files) Typically what happens is that you acquire a copy of a license to use the content. Some number of copies may be statutorily permitted, e.g. the myriad transitory copies created across the internet as you download the work, or on your computer as you install it. The law addresses this matter in part at 17 USC 117, saying that it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. Since Congress chose the word “program” rather than “file”, the plain reading of this is that permission is always required to read digital content. One may assume, when you purchase an electronic book at the store (you thus own the recording medium), that the work also comes with specific permission to make those automatic copies required to actually read the book on a computer. In order to read the book you must make some number of copies. Seeing stuff on a web page. Let’s also assume that the material is on the page without permission, but you don’t know that, and it just jumps out at you. This raises an interesting question regarding statutory language and web pages. The statutory language is not at all clear about link-clicking (the statutes don't say anything about "links"), and I don't know of any relevant case law (probably because it would be ludicrous to go after an innocent link-clicker) Infringement is defined in 17 USC 501(a): Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright and if you infringe, you may be liable. 17 USC 106 spells out those rights: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; … (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; … When you go to a web page and click a link, are you reproducing the protected material? Or is the website owner reproducing the material, and pushing it onto you? I don’t know of any decisions that address this kind of technical question. There is no question that the person hosting the infringing material is liable, the question is whether you would be as well? It would be highly unjust to hold the innocent link-clicker responsible. There is a bit of protection for innocent infringement in 17 USC 405(b) Any person who innocently infringes a copyright, in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, incurs no liability for actual or statutory damages under section 504 for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408, if such person proves that he or she was misled by the omission of notice. In a suit for infringement in such a case the court may allow or disallow recovery of any of the infringer’s profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require, as a condition for permitting the continuation of the infringing undertaking, that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the court. (c) Protection under this title is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords. (You could be prevented from further use of the infringing material, and liable for specific lost profit). Infringement is not defined in terms of what you know or believe about the copyright status of work. Nevertheless, I would expect that in addressing the question of whether a person had in fact made a copy that they would look at the mental state of the individual, looking for mens rea. This could distinguish clicking a link that unexpectedly pushes protected material onto you, versus attempting to obtain protected material by clicking on a link. | united-states No, the first-sale doctrine makes this unenforceable Once a product is sold to a retail consumer, it is generally theirs to do with as they wish, including reselling it. The company likely intends this restriction to apply to distributors/retailers with whom it has contracts: it would likely be a violation of their distribution contract to, say, open a 12-pack of Coke and sell the individual cans. An exception to this doctrine is licensed software. Because it is licensed and not sold, there's not a product that the consumer could legally resell; the license is not required to be transferrable. As far as license agreements to prevent this go, it's been tried: Lexmark sold toner cartridges with a patent license agreement banning refilling and reuse. It ended up at the Supreme Court in Impression Products, Inc. v. Lexmark International, Inc., where Lexmark lost. | No, the only purpose of a money order is that it's effectively a form of guaranteed cash that only one person can access. There are no additional protections offered by it. However, given that you are amenable to paying a little extra to facilitate your payments, you may want to consider using a credit card in the future. Provided it's not an all the time thing, credit cards will withhold payments on your behalf if a vendor fails to fulfill their obligations. This means that you're not liable for the cost of the merchant sending you the wrong thing or ignoring your order requests. I've personally done this for several things: Hotel reservation that was borderline unsuitable for human habitation. When a vendor failed to send something I'd purchased. When proceeding with this, bear in mind that the credit card company will want you to make such a claim as soon as possible and to provide as much information as possible to support your claim. If you've e-mail chains, save them. If you've been communicating by phone, write down and provide a summary of your communications. If you have an issue, don't wait a month to raise the concern, do it within a week. Probably about once a year I need to do something like this. Generally what this does is it starts a dispute process whereby the credit company will contact the vendor to get their side of the story (usually they don't respond to them either). After 60 days, the charge is dropped from your bill and presumably the credit card company refuses to pay for the disputed item. Ultimately, this gets you the best possible result. You get your money back and you didn't have to go to court to do it. | could I claim that my product must be added asap? And is it reasonable to ask for compensation for the missed revenue due to pushing back the launch? Unfortunately, no. Your description reflects that you consciously treated as sufficient the limited knowledge you had at the formation of the contract. See Restatement (Second) of Contracts at §154(b). There is no indication that (1) at the formation of the contract the company committed to a more specific timing, or (2) you would have declined the invitation had you known at the formation of the contract that the company would keep postponing the inclusion of your product in the way you describe. You were given the expected date only after you performed your duties pursuant to the contract, which defeats the notion that the company's timing was any relevant to your decision of entering the contract. The only way you could prevail is by proving that the company breached the covenant of good faith and fair dealing that is implied in all contracts. See Restatement at §205. Other than that, the lack of contract provisions to protect your interests give the company significant discretion. | Can the seller enter a formal agreement with the tenants in which the seller pays a sum of money and in return the tenants vacate the premises before the closing date, and would such agreement hold over the tenants legal right to remain on premises past the closing date? Maybe. It depends on tenancy law in Nova Scotia. Notwithstanding, given that the tenants are “difficult”, what are your plans if they take the cash and don’t move out? What happens if the sale goes though under the assumption that the tenants have left, and in fact the tenants are still occupying the premises? Why would the buyer settle under an “assumption”? At the time of settlement either the tenants have left (so settlement happens) or the haven’t (so the vendor is in breach, settlement doesn’t happen and the buyer decides whether to rescind the contract and claim damages or affirm the contract and claim damages). What guarantees and proofs can the buyer demand as to the vacant status of the property? They take the keys and walk into it. What other questions should the buyer be asking? They should be asking: “Will you be in a position to fulfil your obligations under the contract?” | No they can't. The lease says the premises need to be cleaned without going into details how. You cleaned them yourself before moving out. If the landlord was not happy with that, they should have raised their concerns and discussed options. The security deposit that the landlord holds is only supposed to be used when something goes wrong. When something goes wrong, the landlord is supposed to talk, not to silently chop off a slice of the deposit as they please (unless the lease allows it, which it does not here). If the landlord refuses to refund, read the manual and go to small claims court to tell them where to get off. |
Can I use famous old artworks on my web site? I'm developing a web site for an artist, and I need to do a demo: can I use famous old paintings (from around 1400)? Does the owner of the original painting (like a museum) also own the copyright to a work of art? | YES, if you can get an image of it, you can use it A work that old is not under copyright protection in any country in the world. Under US law any work published in 1924 or before (as of 2019) is in the public domain. Unpublished works may be protected for up to 120 years after creation under US law. But no work that is over 600 years old has any copyright protection. In any case, merely owning the physical work does not mean owning the copyright. In the case of a work sufficiently recent that it is under copyright, say from the 1970s, the copyright initially belongs to the artist. If the artist sells or gives the painting to a museum (or anyone else), the artist retains the copyright unless that is explicitly included in the deal, in a written agreement. If the artist dies, the copyright is inherited, just as any other property that the artist leaves, as directed by will or law. If a museum owns a painting that is out of copyright, it can restrict access to it and prevent people from photographing or copying it, because it can restrict what people do on its property. But if an exact copy (known as a "slavish copy") gets out, the museum has no copyright in it, because making a slavish copy does not create an original, copyrightable work under US law. See the case of Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) and Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991) The law may be different in non-US countries, but the reasoning of the Bridgeman case has bene followed elsewhere. A "slavish" copy is one that attempts to reproduce the original as exactly as possible, without adding or removing or changing anything. A photo of a painting in a frame on a stand with people standing beside it is not a slavish copy. The images of art one sees in books on art are usually slavish copies. So are the images one sees on museum web sites, as a rule. The term implies that the copyist had no more freedom than a slave in making the copy. At least that is the metaphor. Slavish copies do not get separate copyrights because they are not original works. Photos of 3D works such as sculptures require choice of angle, lighting, etc, sufficient t make them original works -- no two photographers will produce quite the same image of a sculpture. But some courts have ruled that wire-frame models of 3D works of art are slavish copies and not protected by copyright. | Depends if the artist is a contractor or an employee Let's say I am the person who created Spiderman, but my artist came up with the design of the costume and everything Well, it certainly looks like you didn’t create Spider-Man - the artist did. If they are your employee then you, as their employer, own the copyright. If they are a contractor, then they own the copyright which can be transferred to you under the terms of the contract or otherwise. What if the design was written in paper and then the concept artist represented the written design graphically, does that make any difference? Not really. Here the artist has created a derivative work but since they did so with your permission, that’s fine. The derivative work is a seperate work with its own copyright owned as stated above. How can you make sure you don't face this problem if you hire an artist for your work? You set out in the contract who owns the copyright. | This may well be infringement, but I agree that you should start by reaching out to the instructor. You don't want to pay a lawyer if the matter can be be adjusted peacefully. In the US there is a special limited exemption to copyright for "use in classroom instruction" which might apply in such a case. I am not sure if there is a similar provision in Canadian copyright law. But the instructor is likely to change his practice if you notify him of your objection, even if he has the technical right to use the photo. At least it is worth finding out. If he won't, then you can always consult a lawyer. | You don't need the copyright. You need a license that allows you to use the artwork. If there was no agreement in writing or verbally about a payment, then she owns the copyright on all the artwork she created, and you have no license. Publishing your app without copyright or license would be legally very dangerous; it would actually be copyright infringement. You have no right to demand the copyright or a license. You can persuade the designer, usually by paying money, or by paying some percentage of the income from the app, to give you the copyright or a license to use the graphics. And you definitely want things in writing. How to get a license? You find the person, send her a letter asking for a license, which would be for example a letter saying "I hereby grant s1ddok the non-exclusive right to include the artwork listed below, to which I hold the copyright, in the applications XXX and YYY, and to sell copies of those applications including the artwork, in exchange for a payment of $ZZZ" or something similar. She may do this if offered an appropriate amount money, or a percentage of the sales or profits, or some amount per application downloaded. A copyright transfer is a bit more complicated (especially if she is abroad) and will also cost you more, because copyright transfer means she loses the right to her own works. | This would be considered a derivative work, which is not peritted without permission. Copyright duration varies by country but is at least the lifetime of the author plus 50 years. In France, it is 70 so Giraud's work becomes public domain in 2082. The second piece is public domain and therefore fine. | Derivative work The Kenku first appeared in Dungeon Magazine 27 in 1991 and appears to be an original work as far as I can tell. It, therefore, enjoys copyright protection until 70 years after the author dies - it seems unlikely that the author died before 1950 so the copyright has probably not expired, AFAIK, the author is, in fact, still alive. Your usage is what is known as a derivative work and making derivative works is one of the rights that copyright grants to the copyright holder. You can't do it without permission unless you have a fair use defence: you don't. If you call your Kenku a duck; it's still a Kenku This is the inverse of the well-known duck test much beloved of philosophers and employment-law judges but equally relevant to copyright-law judges. Changing one (or several or even many) aspects of a copyrighted work is still copyright infringement. You are free to write something inspired by the Kenku but once "it looks like a Kenku, swims like a Kenku, and quacks like a Kenku, then it probably is a Kenku". | Assuming Chegg own the copyright, then they can restrict the activities that copyright protects The statement you quote is no more or less than the rights granted to them by copyright law. Basically, it's their stuff, they get to decide how you can use it. However, that does not necessarily mean that the uses that you have nominated are prohibited. For that, we would have to look at the specific fair use or fair dealing exemptions to copyright protection where you are. It's likely that both of your usage scenarios would meet fair use and probably fair dealing (which is harder to meet). You may also find that, buried somewhere in those massive terms of use, is something that deals with this directly. | It would be terribly risky for you to simply link another company's terms of service. What if they take their server down? What if they change their terms? You would not even know when exactly the changes were made. Copying their terms means you might run into copyright issues on the text. Either pay a lawyer to write your ToS for you, or see if you can find something in the public domain. |
How to take down the piracy website that does not respond to DMCAs Suppose that an app developer, A, finds that a website is distributing copies of A's copyrighted app, without permission. A has sent DMCA takedown notices to the site, but has received no response. Suppose that the site also hosts Micro$oft apps and apps by other major companies. Suppose alos that the site made some clever download link system where the actual files are downloaded from random servers that are not easy to track. The links expire so links cannot be shared to the operators of those download servers: | If a website takes down something that infringes on your copyright because of a DMCA request, the legal effect is that you can’t sue the website, only the person who put the content on the website. If a website doesn’t respond to a DMCA request, then you can sue the person responsible AND the website. And that’s what you would have to do: Sue them. And in extreme cases copyright infringement can be criminal; in that case the police might go after the website. | Using it without permission is copyright infringement and illegal. Legally, you can try offering money to the company for the copyright or for a suitable license. For example offer them $1000 for a copy of the code licensed under the GPL license. If they accept, you are fine. | 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. | It's not clear exactly what you're asking, when you say "the company I work for" – i.e. are you asking "can they fire me?" (almost certainly they can, even if their TOS thinking is legally misguided – unless in your country there are laws that prevent firing employees). To be certain, you need to hire an attorney who is sufficiently savvy about web page technology that they can accurately judge what you are doing, and whether you can fruitfully resist their demands. You seem to be skeptical of their position because you are "not affecting their servers in any way". The TOS is not about affecting their servers, it is about affecting their intellectual property. It appears that your code does a number of the prohibited actions such as and perhaps most importantly "modify". If you have distributed a program that allows users to modify company content on their own computers, then the user might be in violation of the TOS, but not you (since you're not running a server that redistributes). However, I am betting that in order to create and test the program you had to violate the TOS. Additionally, you could be vicariously liable for the infringements of others, especially if this program can only be used to infringe on copyright, and you know this fact. That is pretty much the end of the legal part. As for how you should respond, your attorney, and not Law SE, deals in recommendations. | There are two licenses, and two parties involved who can sue you if you violate copyright by copying their IP without permission according their license. If you give source code that you are only allowed to give to Altera customers to non-Altera customers, Altera can sue you for copyright infringement. If you don’t give them the source code, the copyright holder of the GPL licensed source code can sue you for copyright infringement. Interesting question is who can sue non-Altera customers you give the source code to. And what happens if Altera customers think they are allowed to distribute the code because it is GPL licensed. So you not only commit copyright infringement, you also create a legal mess for others. And for everyone: even if code claims it is GPL licensed, you need to watch out. | Recall the basic principle of copyright law, as detailed in 17 USC 106: The copyright holder has the exclusive right to make copies; prepare derivative works; or distribute copies by sale, rental, lease, or lending. Other people can legally do these things only if they are given permission by the copyright holder, typically via a license. (Remember, the literal meaning of the word license is permission.) Often, the copyright holder will require a prospective licensee to accept various terms and conditions before the license will be granted. If there is "no EULA", or if there is one but the purchaser has not agreed to its terms, then the purchaser has not been granted any such license, hence does not have permission to do any of the things listed above. If they do so anyway, it is illegal copyright infringement and they will be liable for damages. To use a firewall analogy, copyright law is "default deny". So let's take your questions one by one: Do they own the software? US law has no concept of literally owning software. The closest thing is owning the copyright, which the purchaser certainly does not. It still belongs to the vendor that wrote the software (or whoever they may have later transferred it to). Can they legally alter the code of the program they purchased? No, that would be preparing a derivative work. The copyright holder has not granted them a license to do that. (There are some exceptions for purposes such as reverse engineering and interoperability, see 17 USC 1201(f)). Can they legally redistribute it No; again, that is the exclusive right of the copyright holder, and the purchaser has not received their permission. or transfer ownership? Maybe, if the first sale doctrine applies. Its application to software is complicated. The user has a better case for being able to sell the software if it exists as some tangible object which is transferred (physical media, pre-installed on hardware, etc). Can they legally modify the code of the program for others who have also purchased the same package? No, that would be preparing a derivative work. Can they take that software and install it on a secondary machine? No, that would be making a copy. | A more general version of the question, as far as I can see, is "Is Google Drive legal?". I can create an account and upload files to Google Drive, and I can open them from the cloud using various interfaces. I can directly open only certain files types, others I have to download to the device that I'm using in order to open the file. There are various file storage systems that allow this, most or all of which seem to use some sort of system of password access, file-access permissions and encryption to block access by unauthorized individuals. All systems seems to allow "sharing" of a specified file. Google and colleague escape liability by complying with 17 USC 512 aka the DMCA safe harbor provisions. Basically, they don't know, they don't select uploads, they have a removal procedure, they don't know that the material is infringing, and they "are not aware of facts or circumstances from which infringing activity is apparent". There is a chance that you would be sued for inducing copyright infringement, see MGM Studios, Inc. v. Grokster, Ltd, specifically We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties You describe a situation that is unlikely to be found to constitute inducement to infringing, instead it is "enabling possible infringing", and mere possibilty of doing something bad with a tool does not make you liable for selling a tool, under current US law. An eyebrow would be raised, though, as to why this service only allows ebooks to be deposited. | This is similar to giving a hammer and needing to state to one is not responsible if the taker uses it to hit their head with. I believe this is the wrong analogy to use here. It would be more like giving somebody a hammer and saying you are not responsible if the head flies off and injures you. There is a concept in "things" you obtain called "fitness for purpose", so if you download open-source software like a registry cleaner, and it deletes your entire registry, the "WTFPL" doesn't absolve the authors of liability. Explicitly denying any kind of "fitness for purpose" or warranty helps shield the author from legal claims (even if they are meritless) because it kills it out of the gate. It's possible that the WTFPL license granter/author could still be sued and have to defend themselves in court because it isn't explicitly stated that there is no warranty or fitness for purpose. Open source does not mean that it's "use at your own risk", which is why there are so many types of licenses and disclaimers. From comments: Thank you for this very clear answer. Does the fact that someone willingly retrieves free code with no control of the provider changes anything? (vs a software vendor which provides code suitable for A and B, in exchange for money) I think closer to your hammer analogy where I would sue the producer of hammer XXX, a hammer I found on the street or which was given to me without involvement of vendor XXX. No, this doesn't change anything. The software vendor here is the person who writes the code, even if they don't charge for it. They are the ones who license the software and they are the ones who take some level of responsibility for it. In this case, the software author is the "hammer producer" that you would sue... If you buy "Registry Cleaner XL" from Best Buy and it bricks your computer, you don't sue Best Buy, you sue the person who authored the software. In pretty much every case, the author is the responsible party, not the vendor, and it is the author who licenses it, not the vendor (the vendor just acts as an intermediary). |
Can one of my citizenships cause problems with investing? As a citizen and resident of Mexico, American and European brokers are happy to take my business. But I'm also a citizen of Syria, which is sanctioned. While filling out account creation forms, I don't see any options to add multiple citizenship information. So it seems I should be good but just checking. Can my Syrian citizenship cause any problems while opening or maintaining my financial accounts? | To narrow this down to a specific country, you can read about the Syria sanctions here. Sanctions under US law are against a country, and against named individuals: there are no sanctions against "Syrians". A person cannot engage in transactions in (certain) goods of Syrian origin, and you cannot invest in (businesses in) Syria. A Syrian citizen who is resident of a non-sanctioned country is not subject the the limitations that exist on Syrian citizens who are resident in Syria. However, this legal fact is not universally know, so your question does reflect an existing belief. It is entirely possible that a person who believes that there is a law of attainder against Syrian people might cause problems, but if they get advice from their legal department, they will find that also being a Syrian citizen is not an impediment to legally investing. | I suspect that this person could get a green card under 8 USC 1259 or 1255a, since it seems that he entered in 1952 or so, which was long before the Reagan amnesty. These sections of the code concern those who entered the US before 1972 and 1982, respectively. You might try asking on Expatriates as there are many people there who are familiar with immigration law. A consultation with an immigration lawyer is probably advisable. | The order itself is here. It applies to "any United States person", which includes citizens, LPRs, entities with a US basis, and any other person in the US including tourists. It applies to transactions, and not static possession. There is no exception to the effect that "you can trade as long as it's not on the NYSE", and it says Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate the prohibitions set forth in this order is prohibited The order is not just directed at brokers, or the NYSE, it applies to everybody / everything everywhere, if you are a US person. Apparently there was some unclarity on the OTC question, which was clarified by the Office of Foreign Assets Control, to the effect that it includes OTC trading. | Being automaticly citizens of the US and Uruguay, causes no problem with your German citizenship. For Uruguay, you are appling for recognition of your citizenship at birth as a grandchild of a Uruguayan citizen. Only when you, as an adult, apply for nationisation (i.e. that country considers you to be a foreigner at the time of the application) would you lose your German citizenship automaticly when this application has been granted, unless you apply for an exception beforhand. Such an exception would only be granted when you can prove that you still have strong ties to Germany. | Many countries have such restrictions on land ownership. Vietnam does not allow foreigners to own land, likewise Laos, Cambodia (part of their constitution), and Myanmar. Thailand has numerous restrictions on foreigners owning land. Tanzania allows limited land ownership by foreigners (investment purposes only), though technically only the President owns land. Kenya does not allow foreign land ownership, just long-term leasing. Mexico has a no-foreigners zone of 100 km at its borders and the sea, and there is a similar restriction in Honduras. Australia requires government permission for foreigners to buy land. Greece imposes bureaucratic barriers on EU-relative citizenship for land owning. Sri Lanka imposes a 100% title-transfer tax on foreigners. There are enough examples that it might be the usual situation, though less common in Western countries. | Like many US legal questions, there is a Congressional Research Service report about this. It is not generally a violation of US law to do things in another country where the only connection with the US is that the offender is a US citizen. However, there are a number of general situations where the US has jurisdiction over federal crimes if either the victim or offender is a US citizen: if a place isn't within the jurisdiction of any country (e.g. Antarctica); a place used by a US government entity (like an embassy or airbase); crimes by American soldiers and those employed by or accompanying the military; etc. These are considered to be within the special maritime and territorial jurisdiction of the US. Other laws apply if they say so. For instance, any US national committing war crimes inside or outside the US can be punished under US law; ditto for treason. The Foreign Corrupt Practices Act makes it illegal for a US national to bribe a foreign official anywhere outside the US for business reasons (if it's inside the US, there are more requirements). For instance, you aren't allowed to pay kickbacks to a foreign government's acquisition officer to buy your product. The CRS report has more (it doesn't include the FCPA, but that appears to be an oversight). Note that extraterritorial jurisdiction doesn't just apply if the person is a US national. US laws can also confer it if the victim is a US national, if the offense has a significant US component, if it's directed towards the US, if it's in violation of international law and the offender later turns up in the US, etc. For your scenarios: Dual citizenship doesn't matter. A US citizen is a US citizen, and is required to obey all laws that apply to US citizens, unless those laws explicitly exempt dual citizens. A dual citizen isn't treated differently by the government; as far as the US government is concerned, their US citizenship is all that matters (except for certain specific purposes like security clearances). In Kawakita v. United States, a US-Japanese dual citizen was convicted of treason against the US for aiding Japan in WWII. Depends. Plenty of these laws have no requirement that anything related to the crime actually happen in the US; for sex tourism, the subsection about traveling in foreign commerce for the purposes of engaging in illicit sexual conduct is followed by a subsection about engaging in illicit sexual conduct in foreign places. "Travel with the purposes of X" or "with intent to X" means you must have intended to do X at the time you traveled, but most extraterritorial laws don't control travel with intent to X (they cover X directly). Depends on the law. Some laws (like child sex tourism) apply to any permanent resident of the US as well as any citizen. Some apply to anyone, because they're based on a conspiracy started in the US. Others apply just to US nationals; a noncitizen isn't bound by them (for instance, no one but a US national can be charged with treason against the US, for obvious reasons). Still others apply to anyone who later turns up in the US, even if that is literally the only connection between the US and the offense (this is basically reserved for crimes against international law, like genocide). | Yes, in most jurisdictions citizenship or residency is not a pre-requisite for standing. However, be aware that there are plenty of jurisdictions where the practical effect of being non-native gives you effectively no chance of winning. "Fair" in some countries means their citizens always beat foreigners. | The law was changed several times, and different versions apply to different age groups because certain rules were not changed retroactively. The page you link describes the situation for children born after the year 2000. My advice: citizenship is such a serious matter that you should consult a specialized lawyer, not a random crowd on the web. |
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