anchor
stringlengths 60
12.5k
| positive
stringlengths 32
27.7k
| negative_1
stringlengths 63
27.2k
| negative_2
stringlengths 67
27.7k
| negative_3
stringlengths 63
27.7k
| negative_4
stringlengths 32
27.7k
| negative_5
stringlengths 53
27.7k
| negative_6
stringlengths 90
27.7k
| negative_7
stringlengths 67
27.7k
|
|---|---|---|---|---|---|---|---|---|
Can Congress disqualify people from Federal office? Could the US Congress enact legislation to prevent specific individuals from being elected to federal government offices? | Impeachment In addition to the Constitutional qualifications, one may become ineligible to federal office by being impeached by the House, convicted and removed from office by the Senate, and having the Senate add the "disqualification" term to the sentence. This is surely something done by the legislature but it is not done by passing a law. Criminal Conviction One may also become ineligible by being convicted of treason or insurrection, and possibly other relevant federal offenses. Specific Laws Specifically 18 U.S. Code § 2381 provides that: Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States. (emphasis added) 18 USC §2383 provides that: Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. (emphasis added) 18 USC §2385 (originally passed as the Smith Act)provides in relevant part that: Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof— Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. (emphasis added) 18 USC §2387 provides in relevant part that: (a) Whoever, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States: (a) (1) advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States; or (a) (2) distributes or attempts to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States— Shall be fined under this title or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. (emphasis added) (See also Chapter 115 which collects these and related sections of title 18.) (See also the Wikipedia article) (See further "A Civilian's Guide to Insurrection Legalese" from The Marshall Project.) Case law In United States v. Burr, 8 U.S. (4 Cranch) 470 (1807) Chief Justice Marshall wrote an opinion overturning the conviction of Aaron Burr, because Burr was not actually present at the overt act proved, as charged in the indictment. In Cramer v. United States, 325 U.S. 1 (1945) a conviction for treason was overturend because the court held the "overt acts ... as proved were insufficient to support a finding that the accused had given aid and comfort to the enemy" Possible Future laws While treason is defined (or more exactly limited) by the constitution (Article III section 3), nothing in the constitutional provision requires or specifically authorizes that the penalty include ineligibility to office. (It merely says "The Congress shall have power to declare the punishment of treason".) There is no specific Constitutional authorization for 18 USC 2383, 2385, or 2387, or their penalty sections beyond the general authority of Congress to pass laws and define crimes and their penalties. I am not certain that "employment" in 2385 and 2387 includes elective office, but I suspect it does. 2383 clearly includes elective office. Thus Congress has passed laws, with no specific constitution authorization, that deny people, as punishment for relevant crimes, eligibility to office or employment under the United States. What Congress has done in one case, it could do in another, if it saw fit. Congress could pass a law creating a new offense, or modifying an existing offense, to add the penalty of disqualification. But the Constitutional prohibition of ex post facto laws would mean that such a law would not apply to conduct that occurred before the law was passed or amended. Conviction required Congress may not declare a person guilty of a particular crime; that would be a bill of attainder, which is also specifically prohibited in the Constitution. A criminal conviction by a court is required to trigger the ineligibility provisions of sections 2381, 2383, 2385, 2387, or any similar law. Fourteenth Amendment Section 3 of the 14th Amendment to the US Constitution reads: 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. This forms another ground whereby an individual can be barred from some federal and state offices, but it is not one that can be invoked by Congress for specific people by name. Indeed it is not clear how it can currently be invoked. This provision requires a judicial determination that it applies to a specific person. From 1868 to 1872 there was a law in force for this purpose, but in 1872 Congress granted a broad amnesty which exempted most of those who would otherwise have been subject to this provision because of the US Civil War, and the law was soon repealed. In the wake of the events of 6 Jan 2021 several bills have been introduced to create ma new enforcement mechanism for this provision. To the best of my knowledge, none have yet been passed into law. See "The 14th Amendment’s Disqualification Provision and the Events of Jan. 6" for so9em relevant details and background. That article also says: Section 3 is different from a disqualification from federal office imposed as a sentence for an impeachment conviction. A disqualification sentence from the Senate is final and not, for all intents and purposes, subject to judicial review. By contrast, Congress cannot simply declare an official outside of that body ineligible under Section 3 without the concurrence of the courts. To hold otherwise would allow simple majorities in Congress to oust federal and state officials without judicial scrutiny ... | Congress can't override substantive rules of constitutional law Marbury v. Madison is a binding interpretation of what the U.S. Constitution permits or denies, and in substance, this law seeks to change that interpretation of the scope of the judicial power, so that interpretation may not be overruled except via a Constitutional amendment. Neither the Supreme Court nor any lower federal court, under their appellate jurisdiction, will declare unconstitutional or otherwise adjudicate unconstitutional any law passed by Congress; neither the Supreme Court nor any lower federal court will hear or otherwise engage in cases or controversies in which one or both parties put into discussion the constitutionality of a law passed by Congress, or ask for a law or a statue passed by Congress to be declared unconstitutional. The language in italics is jurisdiction stripping language, which I discuss below, and which is also discussed in another answer. But, the language in bold is enunciating a substantive rule of law regarding how the judicial branch may resolve a case that is otherwise properly before it. And, Congress does not have the power to change that to make the U.S. Constitution a dead letter under its Article III jurisdiction regulation powers. The language in bold language is a direct attempt to overrule a binding interpretation of the U.S. Constitution and that is beyond the authority of Congress to do, so the statute would be unconstitutional, at least, in part. Jurisdiction stripping Yes, Congress can regulate the jurisdiction of the federal courts pursuant to Article III, Section 2 which states: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under the Regulations as the Congress shall make. But, there are parts of Article III that apply in addition to the power of Congress to create "Exceptions" the appellate jurisdiction of the U.S. Supreme Court, and the power to create and modify the "inferior courts" that exist. The first sentence of Article III, Section 1 of the U.S. Constitution states: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts, as the Congress may from time to time ordain and establish. This is crucial, and interacts with the Exceptions power. The default provision is that all judicial power as defined in Article III, Section 2 is vested in the "supreme Court" unless and until that power is instead vested in an "inferior Court" established under Article III that Congress creates by law. Therefore, Congress does not have the power to deny every court (or even every federal court) both original and appellate jurisdiction over any constitutionally justiciable claim arising under Article III, even if the claim is not within the express original jurisdiction of SCOTUS. If they deny every inferior Article III federal court jurisdiction over something within the constitutionally defined scope of the judicial power, then it reverts to the original jurisdiction of the U.S. Supreme Court even though it is not expressly made a part of the U.S. Supreme Court's original jurisdiction. The judicial power of the federal courts collectively is defined in Article III, Section 2 of the U.S. Constitution and extends to all cases arising under the U.S. Constitution which would include a claim to have a provision of federal or state law declared unconstitutional as in violation of the constitution. It says: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; . . . (This analysis is attributed to U.S. Supreme Court Justice Joseph Story.) Now, this is not to say that Congress couldn't do something to make it harder procedurally to have statutes declared unconstitutional. For example, there would be a much harder claim of unconstitutionality if Congress vested original jurisdiction in all such cases in the United States in the U.S. District Court for the District of Wyoming, and then only assigned one judge to that district, and denied the U.S. Courts of Appeal or the U.S. Supreme Court, appellate jurisdiction over those decisions. At some point, however, even this lesser restriction, rather than elimination of a judicial power would still be subject to challenge under the due process protections of the 5th Amendment. Writ jurisdiction Notably, Marbury v. Madison was a case brought in the original jurisdiction of the U.S. Supreme Court under a writ of mandamus, under the All Writs Act, and not in connection with its appellate jurisdiction. So, Congress would also have to repeal or amend the "All Writs Act" to pull off the intent of the proposed statute, because the U.S. Supreme Court's original jurisdiction extends by statute to writs that are not appellate in nature even though this power is very rarely exercised. A writ is a court order directed at a government official directing that government official to do something, or to refrain from doing something. But, there are many ways to back door a seemingly private cause of action, particularly one related to constitutionality, into a writ. And, if a court has jurisdiction over a writ, it has jurisdiction to entertain requests by litigants to have such writs issued. Congress can't remove a state court forum It is worth noting that every single state court from traffic court on up has concurrent jurisdiction with the federal courts to declare that a statute is unconstitutional, and that state courts frequently do declare state statutes to be unconstitutional. Congressional jurisdiction to regulate jurisdiction is largely limited to regulation of the jurisdiction of the federal courts. It can put a federal question (e.g. copyright enforcement or disputes with the IRS) in the exclusive jurisdiction of the federal courts, but there are no cases in which Congress has been permitted to place a federal law in the exclusive jurisdiction of the federal courts while also denying any federal court jurisdiction over claims arising under that law. Otherwise, state court jurisdiction isn't regulated by Congress. And, the Constitution specifically requires all federal, state and local officials to swear to uphold the U.S. Constitution which arguably provides an independent basis for state court jurisdiction over constitutionality claims arising under the U.S. Constitution. This is a really important point. For example, suppose that someone who lives in the same state as you do sues you entirely under state law in a state court, and that state's courts require you to bring any claim you have against that person in state court over which that state court has jurisdiction as a counterclaim or you forfeit that claim forever. If you have federal claims against the person who sued you in state court, and your claims are not one of the handful of issues (e.g. copyright enforcement) that are in the exclusive jurisdiction of the federal courts, you must enforce your federal claims against that person as counterclaims in that state court case, or you will lose them forever. For example, suppose that your employer sues you in state court for conversion (i.e. stealing company property) and you have a right to sue the employer for not paying you the right amount for your overtime work under federal law. Then, you must bring your federal overtime claims in state court as counterclaims to the conversion action, rather than in federal court. Similarly, even though state criminal charges are always brought in state courts, a criminal defendant in a state court criminal case, can raised arguments arising under the U.S. Constitution including a determination that a state criminal law is unconstitutional, in state court as a defense, even though the only federal court recourse a criminal defendant has is through an appeal to the U.S. Supreme Court or a post-conviction writ of habeas corpus brought in federal district court after all state direct appellate relief is exhausted, after petitioning to the U.S. Supreme Court, and after all state post-conviction relief (including petitioning the final state order to the U.S. Supreme Court) is exhausted. In practice, this means, criminal defendants have no meaningful access to the federal courts other than two petitions for certiorari to the U.S. Supreme Court which are discretionary, until they have been incarcerated wrongfully for five or ten years. But, federal defenses can and routinely are raised in the state court trial (and indeed, federal defenses that could be raised in a state trial court may not be raised in a habeas corpus petition in federal court unless they were first raised in or before the original state court trial). N.B.: Federal claims in the exclusive original jurisdiction of state courts The extremes to which jurisdiction stripping is allowed are explored in the handful of claims arising under federal law that are expressly not within the scope of the jurisdiction of any federal trial court or intermediate appellate court, or within the express non-appellate jurisdiction of the U.S. Supreme Court. The most notable of these are affirmative private individual civil lawsuits against offenders under the federal robocall and junk fax law (a.k.a. the Telephone Consumer Protection Act a.k.a. the TCPA a.k.a. 47 U.S.C. § 227), which do not not require a writ, which may only be brought in state court, subject to an ultimate appeal to the U.S. Supreme Court. But, the federal courts have exclusively jurisdiction over litigation many kinds of claims other than private civil actions arising under the TCPA. This law is much less constitutionally concerning than the one proposed in the question, however, because while Congress can't repeal the U.S. Constitution, it doesn't have to pass a law giving private individuals a private cause of action when they receive robocalls or junk faxes at all. It could pass a law that was enforceable by the FCC alone, for example, and in the case of the TCPA, there are persons, including the FCC and regulated persons who want to challenge a regulation issued by the FCC, who are entitled to utilize the federal courts to enforce the TCPA or to dispute it. For example, there is no private cause of action to enforce most federal criminal laws (as such, not just involving the same harm) with a civil lawsuit by the victim against the criminal, in either federal court or state court, but that is not unconstitutional. This is because federal criminal laws can be enforced by government prosecutors and defended against by private individuals, in Article III federal courts. Also, even private causes of action under the TCPA are subject to ultimate U.S. Supreme Court appellate review, and the U.S. Supreme Court is an Article III federal court. | First, this issue doesn't come up for people on active duty. 10 U.S. Code § 973 forbids active-duty military officers from holding or exercising the functions of an elective federal office; DoDD 1344.10 extends that to all active-duty personnel. Both the law and the directive also apply to reservists or retirees on long-term active duty (more than 270 days). Second, for status reasons, this is much less likely to come up with enlisted personnel. The sort of people who serve in Congress are generally also the sort of people who'd be officers. Many of the relevant restrictions apply to people holding office in the executive branch, and enlisted personnel do not hold office (only commissioned and warrant officers do). Third, an interesting quirk that makes this even more significant: Retired military personnel do not technically leave the military. They're no longer in active service, but they are still military personnel, bound by the UCMJ, and subject to both voluntary and involuntary recall. In fact, people retired from active-duty components are bound by the UCMJ at all times, whereas non-retired reservists are only bound by it when called up. If this is an issue for reservists because they might be called up, it's also an issue for retirees. Now that we've handled preliminaries, the central issue comes from the Incompatibility Clause in Article I, Section 6 of the Constitution: [N]o person holding any office under the United States, shall be a member of either House [of Congress] during his continuance in office. The question is whether reservists count as holding an "office under the United States." If it does, you have to resign from the reserves before entering Congress. However, Congress decides whether or not someone is qualified to be a member, and Congress has generally refused to explicitly decide if reservists are allowed (implicitly meaning that yes, they are). 6 Cannon's Precedents §§ 60--62 covers the situation as of World War I: the House Judiciary Committee recommended that members of Congress who had accepted National Guard commissions be considered to have forfeit their seats in Congress, but the full House didn't act on the recommendation. After the war, the House decided to pay members who had been on military service the difference between their congressional pay and military pay. In the second debate, the House considered the difference between temporary and permanent office. It was pointed out that in past wars, members had served as officers in short-term volunteer units and then returned to their seats at the end of their service. It was also pointed out that an "office" is an inherently permanent thing: a temporary commission for the duration of a war might not necessarily be an office. 2 Deschler's Precedents § 14 discusses how things played out in World War II and beyond. Here, the US involvement was much longer, and there was more consideration given to the problems with holding both offices. The executive branch was the one that complained; they decided that serving in Congress was more important than serving overseas, and that military personnel who were also in Congress would be told to pick one (either go back to Congress and serve there, or resign from Congress and be in the military). In 1965, the Defense Department issued an order (currently found in DoDD 1200.7) which provides for the involuntary transfer of people in key positions (including all members of Congress) from the Ready Reserve to the Standby Reserve. Congress did not like that, and they (finally) struck back in the 2016 NDAA: they amended 10 U.S. Code § 10149 to ban transfers to the Standby Reserve based on service in Congress. This certainly seems to promote the idea that Congress thinks reserve service is allowable, but when Barry Goldwater tried to get a resolution to that effect in 1963, Congress didn't act on it. So in summary: Congress (which enforces the Incompatibility Clause) hasn't explicitly said simultaneous reserve service is allowable, but has essentially let it happen. The executive branch has tried to discourage it, but Congress has opposed that (personally, my guess is that members of Congress want the political benefit of saying "I'm currently in the military," while the military would prefer not to have them). I've discussed how Congress handles it, and Congress does have the final authority to judge the qualifications of its members. There was one Supreme Court case (cited in Deschler's Precedents) where a group tried to get the two positions ruled incompatible, but it was dismissed on standing grounds (the group could not establish that they were particularly harmed by the alleged violation). A lower court had held that the offices were incompatible, but that ruling was vacated by the Supreme Court. However, there was another opinion issued in 2006 where the courts couldn't duck the question. Sen. Lindsey Graham was also an Air Force lawyer (he's since retired), and while a Senator he was tapped to be a military judge on the Air Force Court of Criminal Appeals. An airman was convicted at court martial and appealed to a panel that included Graham, then appealed again to the Court of Appeals for the Armed Forces. There's no question that a criminal defendant has standing to challenge whether his judge can legally be a judge, and Congress does not have the final say over whether someone's qualified to be a military judge. In US v. Lane, the CAAF held that Graham's office in the Senate was incompatible with service as a military judge. However, the CAAF cannot tell Congress "you can't be an active reservist and a sitting member of Congress." Even the Supreme Court is limited in its ability to interfere with Congress's decisions on the qualifications of its members: the Court did hold that Congress can't add qualifications, but this is a question of "does this provision apply to this person," which Congress has final authority over. | Yes, the President can certainly veto such a law. Per the US Constitution (emphasis added): Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. This can have a very real effect: legislators are under no obligation to vote the same way on a veto override as on the original bill. The reason the President needs to supply written objections in the first place is that it lets legislators reconsider, see if they're swayed, or see if they think this is a matter where a Congressional majority needs to be respected even if they disagree (they can change their mind in either direction). They can also get a sense of public reaction. And because the threshold for this is "present and voting," it's possible that just more legislators show up. Even if legislators won't be swayed, it still matters for pocket vetoes. That's where the President neither signs the bill nor returns it within 10 days; normally this is equivalent to signing, but if Congress adjourns in the meantime, it means the bill does not become a law. Because "Congress adjourns" is a necessary part of a pocket veto, it's impossible to override the veto (you can't do it if you're not in session). And even when this doesn't apply either, it matters for politics. Example of a futile veto: Public Law 100-4. Passed 406-8 in the House, 93-6 in the Senate. Vetoed; veto was overridden 401-26 in the House and 86-14 in the Senate (note that at least 7 Senators who voted for the bill voted not to override the veto). Example of an effective veto: While technically there was a conference report agreed to by both houses, and it doesn't seem to have had a roll-call vote (my guess is it was agreed to by unanimous consent; side note: many, many laws don't have roll-calls to check on, because they're passed by voice vote or unanimous consent), H.R.10929 from the 95th Congress was passed in the House by a vote of 319-67 and in the Senate by 87-2. After President Carter vetoed it, the House voted on whether to override the veto. The motion to override was defeated 191-206: after the veto, they couldn't even get a simple majority to override the veto of the bill which had been passed by an overwhelming supermajority. I mentioned it above, but the two-thirds threshold is "present and voting." As a general rule, any time you see a fraction of something needed for a vote to succeed in a deliberative assembly, then unless it specifies some other denominator, it's talking about the fraction of members present and voting. Relevant CRS report on override procedure. | There is no legal process whereby a demand can be made that POTUS nominate or consider a specific individual for some appointment such as a court position. There can be no law prescribing how such nominations come about, other than The Constitution which says that POTUS shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law Congress does not have the power to pass laws limiting how POTUS makes nominations, therefore whatever POTUS wants to do in this respect is a non-justiciable matter. | Federal facilities are required to adhere to the flag code. Non-federal governmental entities are not, and the explanation is more complicated. In theory, the federal government should have very little power over the decision-making of state governments -- this is a principle of federalism and is expressly stated in the 10th Amendment. In practice, however, the federal government has a lot of power over state governments. Congress can condition the allotment of federal monies to states, i.e. block grants, as long as such a condition meets the five point test spelled out in South Dakota v. Dole. The most stringent of these points is that the condition "must not be coercive" so as to apply "irresistible pressure", creating a false choice where accepting money is the only realistic option (thus complying with the conditions). I couldn't find a clause within USC Title 4, Chapter 1 for withholding funds from states in the event of noncompliance, similar to one that exists for the national drinking age. Therefore states (state, county, municipal all treated as an extension of state power under the US Constitution) are not required to to adhere to the flag code. Theoretically, Congress could pass a new law that would condition the receipt of some federal funds on the states' compliance with the flag code. But the new low could face additional hurdles, since the condition must be "directly related to one of the main purposes for which... [the funds] are expended" (quoting from Dole). This restriction is the reason why states were given the right to opt out of the Obamacare medicare expansion without losing their pre-existing Medicaid funding (567 U. S. ____ (2012) at 51), and is also the reason why the recent "Sanctuary Cities Ban" is having legal trouble. It would be unlikely that any law like this would hold up. It's also worth noting that most states have their own flag law, which makes this whole discussion of the federal law's effect on state facilities. As you noted, since US v. Eichman, all criminal penalties for violating any flag code have been unenforceable against individuals. My best guess is that the proper method of enforcement in federal buildings is simply administrative action, since violating the code can provide cause for firing federal employees under Chapter 75 of the Civil Service Reform Act of 1978. | Does this mean that anyone who is born in the US is automatically a US citizen, whether they want it or not? Yes (subject to a couple of exceptions, namely the children of diplomats with full immunity and the children of a hostile foreign occupier). Or does this amendment just offer the possibility of requesting citizenship? In other words: is there an action to be made in order to become a US citizen when born in the US (and therefore one is not before this action is performed)? No. For someone who falls under the 14th amendment's citizenship clause, the only way to avoid being a US citizen is to relinquish or renounce it, which generally means that one is stuck with the US citizenship for at least 18 years. Most countries' citizenship laws, or at least all of those with which I am familiar, operate this way—automatically—for "normal" cases of acquisition of citizenship by virtue of the circumstances of birth. This is true whether the citizenship derives from the place of birth or from the parents' citizenship. | The only way that a member of the House of Representatives, or a U.S. Senator can be removed from office (other than by resignation, death, or expiration of a term of office without being re-elected) is by a two-thirds vote of the chamber removing that member. The relevant provision of the United States Constitution is Article I, Section 5, Clause 2 which states: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. So, a member of the U.S. House of Representatives may be removed by a two-thirds vote of the U.S. House, and a U.S. Senator may be removed by a two-thirds vote of the U.S. Senate. This has been done five times since 1789 in the U.S. House, most recently in 2002. It has been done fifteen times since 1789 in the U.S. Senate (the most recent 14 times in 1861 and 1862 in connection with the U.S. Civil War). The case of William Blount in 1797 established the precedent that expulsion of a member by a chamber, rather than impeachment, is the proper process to remove a member of Congress. Members of Congress may not be recalled, and are not automatically removed from office upon conviction of a crime. Apart from the expulsion process, there is no way for voters or states to remove U.S. Senators not from their own state, something that doesn't make sense to be possible in the overall context of the structure of the United States government under the U.S. Constitution. Senate Rule XXIII in part provides that ``if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of the members present, a judgment of acquittal shall be entered;'' A quorum of the full Senate and not just those sworn in for the trial is required. The Senate rules in the case of an expulsion of a member are analogous. |
How do you dispute a large bill for damages? Suppose that a person T (for tenant) had a year ago rented an apartment that had some water damage due to a pipe bursting inside the building. There was a lot of back and forth between T and the property manager P, and recently T finally got a bill for $10k+ to cover the cost of repairs, as they're claiming T is at fault due to not reporting it sooner. T disagrees and would like to take this to court if need be. How is T supposed to dispute said bill? This page talks about disputing a debt with a debt collector, but as far as I understand T only has a "bill" for now and it would only turn into a "debt" if T fails to pay. However suppose T wants to be proactive and make sure to dispute it ASAP using the right legal mechanism. Assume T is located in Washington/Seattle. | With that much potentially at stake, you might want to discuss this with a lawyer. many lawyers will do an initial consultation for free or a low charge. However, you could simply write a letter saying that you do not agree that you owe the money and that you dispute the charge. You may give any reasons why you think you are not liable. It might be a good idea to add that there may be other reasons as well, so you do not foreclose any possible legal arguments that you may learn of later. Send the letter by certified mail, return receipt, and keep a copy with a note of the date that you sent it. It is not a bad idea to get the certified mail form first and include the certified item number as part of the inside address in the letter. Keep the copy, and keep the receipt with it when you get it. It is not a bad idea to send a copy by email, noting that it is a copy of a certified letter. This will put a record of the date and time it was sent in the email service provider's records. Normally it is up to the person who claims another owes money to file suit. If your former landlord takes no action, you need do nothing. However it is a good idea to check your credit reports and see if this was reported as a bad debt. if it is, you can file a statement of dispute with the credit bureaus. If there is any further correspondence on the matter, be sure it is in writing, and that you keep a copy. If you are called on the telephone about it, send a prompt followup letter summarizing the conversation, and particularly any statements made by the other party, and any agreements reached. Keep a copy, and send a copy by email as well as by postal mail. It should probably start something like "In our telephone conversation on {date} about {topic} you stated ..." If you are sued you will need to consider whether to retain a lawyer to represent you. | The simple answer is, get a lawyer and explain your case, and pay him to solve the problem (or tell you that it's hopeless). The two main questions would be whether the appraiser have any duty to you, and whether his action was within the scope of what he is supposed to do. If you hired the appraiser, he has a duty to you. I will assume it was you that hired the appraiser (if it was the bank, that's a different matter). Then the question is whether his action or non-action is within the scope of the job. If the place is infested with termites, that is probably irrelevant because an appraiser is not a termite inspector. On the other hand, if he failed to measure the structure, or erred substantially in the measurement, that kind of negligence could be legally actionable. The seller (not the appraiser) is required to "disclose", so it's not obvious that there is any thing that an appraiser could disclose that relates to a map. | australia A tenant must return the property in the state it was given subject to fair wear and tear Fair wear and tear represents the deterioration that occurs in normal use - so it includes wear on a carpet from walking on it but not wear from having a horse walk on it (unless you’re renting a stable but who puts carpet in a stable?) If the wall is in the condition that it was given to you but for the normal deterioration over time, then you are not liable to fix it. As for who has the onus of proof, since the landlord is the one claiming the entitlement, they have to prove it. However, the burden is only the balance of probabilities. So, if there is a fist shaped hole in the plaster wall and there is no evidence it was there when the tenant moved in, then, it’s more likely than not that it happened on the tenant’s watch and they have to fix it. Because putting fists through walls is something that residents are more likely to do than landlords. However, if there is a painted wall and the initial application of the paint is defective, then absent evidence that the tenant painted the wall, it’s more likely than not that the landlord did it. Because painting walls is something landlords are more likely to do than residents. | If the tenant and the landlord dispute the amount to be repaid, the amount repaid is arbitrated by the TDS used. This is what is currently happening. Deductions can be made for costs incurred to the landlord by the actions of the tenant, such as: Unpaid utilities or rent Damage to the property caused directly by the tenant or indirectly by the tenant's poor maintenance Damage to furniture owned by the landlord Cleaning of the property Storage and removal of items left on the property by the tenant Deductions cannot be made for items that are the landlord's responsibility to maintain. This includes essential appliances and fittings, as well as the exterior of the property. At this point, your best source of advice is the Citizen's Advice Bureau. They will have more information about how best to handle this dispute. | Give the contract language now included in the question, it seems that payment is not due until after the invoice is submitted. I don't see any obligation on the homeowner's part to prompt the contractor to submit the invoice, nor to pay until it is submitted. It might be well to keep a sum reserved so that a late invoice will not find the homeowner with a cash flow problem leading to a default, which could allow the contractor to claim damages or file a lien. But I don't see how a lien can be field before the invoice is delivered, because the payment is not due until 30 days after the invoice date, and no lien can be field until payment is overdue. It seems that the warranty on the work is not in effect until after final payment is made. If there is any reason to consider a warranty claim, it might be desirable to get and pay the invoice. | What do I do? Promptly hire a new lawyer. Dispute claims for fees to the extent that they were not earned or that no value was conferred. | You will need to sue them for the money. You may decide that the cost and stress of doing so is not worth it, and just write off the cost. In future you should require a deposit (if you don't already), and not return it until you have checked that the final utility bills have been paid. (I am assuming there was no deposit, or that you have returned it already; if not, you can pay the electricity company out of that deposit.) | Landlord-tenant laws are state-specific, and given the number of states it's impractical to scan all of the laws, but based on a reading of a handful of such laws I doubt that there is any law requiring landlords to pay the oil for a rented house. (The matter would be different if there was a multi-unit building with no individual control over temperature, thus pooled fuel usage). It's not clear to me what you assumed the agreement means, where it says "N/A". Perhaps you believed at the time that the place had a different heating system, and you relied on that assumption. In that case, you might be able to go to court and have the contract voided, and you could pick another place to live. If the "options" are specified so that some things are assigned to tenant, some to landlord, and some are N/A, that would especially lead to the reasonable belief that there was no oil heat in the house. But if the only indications were "landlord" versus "n/a", then you could interpret "n/a" as meaning "not the responsibility of the landlord". Analogously, if the agreement only lists "tenant" and "n/a" then a reasonable interpretation would be that this means "the tenant pays" versus "the tenant does not pay". This reasoning would also have to survive the alternative interpretation that the tenant pays for everything, except that n/a means "there isn't one of these". In other words, the meaning of the term might be determinable from the overall context of what's in the agreement. Since the house does not come with a full tank (as with car rentals), the question of what to do with the residual oil at the end of the lease should also be specified. Unlike gas or electric, you're not just paying for actual consumption, you're paying for potential consumption, and you would have an interest in the remaining half-tank at the end of the lease. You could just walk away from that investment (pumping it out and taking it with you could be illegal, since the stuff is kind of a contaminant), or you could have an agreement where the landlord buys the oil back from you, but that should be specified in the agreement (and I assume it isn't). This kind of consideration could support a claim that you reasonably believed that there was no oil system (if there were, there would be some term relating to your interest in the residual oil), or even a belief that the landlord would pay the cost of the oil (since he ultimately gets the remaining oil at the end of the lease). You attorney (hint) should advise you how to approach this. |
Is it legal for a restaurant to assume tips on cash payment? A friend recently posted that, She is a waitress that receives tips. Her restaurant has a POS machine. This POS machine assumes a 15% tip on all cash payments. She can not alter this setting. Because the tax liability is on the waitress the only value I can see in the restaurant forcing this on her is to mitigate the likelihood of triggering an audit. This seems to amount to the theft of wages for a service to mitigate the establishment triggering an IRS audit, does this satisfy a claim to wage theft? It creates a situation where wait staff can actually be forced to pay income tax on unearned wages. | The difficulty is that tips are, by statute, considered a form of wages rather than a form of self-employment income for the tipped employee for income tax purposes (in contrast, employers don't have to keep track of tips for minimum wage purposes, tipped employees just have an extremely low minimum wage+). (If it was self-employment income, withholding and paying self-employment tax which is paid in lieu of FICA taxes, would be solely the employee's problem and none of the employer's business.) A comment notes, probably correctly, that: If wages plus tips do not add up to the full regular (non-tipped) minimum wage, the employer must pay the difference. This is not well-enforced, however. So, employers have a duty to report to the IRS and withhold taxes from their best estimate of combined wages and tips in a manner authorized by IRS regulations. If they don't, the employers face stiff penalties from the IRS for failing to withhold taxes. There are tax regulations and other forms of official guidance governing when it is permissible to infer tips on cash payments in this fashion. It isn't truly "wage theft". The employee still gets whatever the actual tip is, and the employer still doesn't get the tip itself. Instead, what the employer does is withhold taxes for the benefit of the employee (and with respect to FICA an equal share of employer obligations withholding) based upon estimated wages and tips combined. The income tax withholding is annually reconciled (in theory anyway) against actual taxes owed on the annual tax return. If you maintain good records, you might get audited, but you'd probably win. If you maintain sloppy records or don't keep track at all, you'd probably lose in an audit. To reconcile the error in income tax reporting in federal tax law, the waiter files a 1040 with the W-2 from the employer. The waiter reports the amount withheld in one box. The waiter reports the correct amount of wages and salary and tips rather than the incorrect amount in the wage and salary box. The waiter files a supplement to the tax return page explaining the that W-2 is inaccurate. The waiter calculates tax and shows entitlement to a refund, and the IRS either writes a check or audits after which the IRS or if there is no agreement the tax court decides who is right. Cash tips should be logged daily by the waiter and regularly deposited. (I've done this before personally, with success in the audit process, in cases of erroneous 1099s for my personal taxes.) Reconciling errors in FICA withholdings is rather more difficult, but erroneous overwithholding still provides a benefit to the employee, and the employee's survivors, in the long run in that case. This is done in the form of larger Social Security benefit checks that are based on the inflated wage and tip estimate and the actual FICA taxes paid. If the employee actually receives more cash tips than reported by the employer and doesn't correctly increase the amount in a tax return, the tipped employee is actually engaged in petty tax evasion (and, in practice, excess cash tips are rarely reported). The circumstances under which a fixed percentage may be properly set and what it should be are too technical for an answer here. Systemically, the problem with the applicable regulations is that the inferred tip percentage is benchmarked against the tips paid on credit card payments, per IRS guidance and permission, but actually, customers tip at lower percentages of the bill when paying in cash than when paying via credit card. This is a flaw in the law, but it doesn't represent impropriety on the part of the employer. | 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. | No. Theft is, in most jurisdiction, an action by which the offender takes another person's property with the intent to permanently deprive them of it. The clerk isn't taking any property from the store, and she doesn't have any intent to deprive the store of anything. She is therefore not guilty of theft. If she were doing this intentionally -- either in league with the customer or even without the customer knowing -- she could likely be held liable for the theft, either on a conspiracy theory or perhaps an innocent-agency theory. The lack of criminal liability of course does not mean that there can be no accountability. The employer is free to terminate the employee, and it will have different options -- depending on jurisdiction -- to recover the value of the uncharged printers, perhaps by docking her paycheck or through a negligence action. | As seen here, the laws of the employee's state and city are controlling, and not that of the employer. A person working for a North Dakota company in Seattle is owed at least Seattle minimum wage. This to "were the employee usually is working" so it does not suddenly switch when the employee takes a working vacation. | You certainly can claim whatever you want. Will you be granted it though? Time is money indeed, and replacing the damaged items requires some time not just items themselves. The question is how much time and at what rate? Your duty will be to mitigate the damages and so to minimise the time and its cost. Will your normal hourly rate be applicable? Only if you have to use your actual work time and miss out on earning for those hours. It will probably be unreasonable to use work time in the first place, let alone that you may not necessarily miss out any earnings in case it's a salaried job and your boss is fine to just let you go for a few hours to sort out personal issues. If the time you use for replacement is evenings/weekends then you would need to quantify how much you miss out on not doing what you would do otherwise. | No. Reason: Taxes are not a contract for specific services, so even if the government did nothing for you in return for your taxes, you do not have recourse to a rebate for "breech of contract." The only recourse is political. Theoretically if the government failed to provide a service that was required by law or Constitution, there could be legal action to force the government to do that action but you still don't get your tax money back. It might be an interesting act of civil disobedience, but no not legal. That is the answer. But to address some of the other premises of your question (Note: these are irrelevant because see above answer): The U.S. government runs at a deficit anyway, meaning the amount spent each year is more than the amount of revenue collected. For example, in May, 2018 the CBO estimated that for FY2018: BUDGET PROJECTIONS FOR FY 2018 (As of May 24, 2018 ) OUTLAYS $4.1 Trillion REVENUES $3.3 Trillion DEFICIT $793 Billion DEBT HELD BY THE PUBLIC (End of Fiscal Year) $15.7 Trillion So even if in the partial shutdown, gov saved 20%, every cent of your taxes would still go to the expenditures; the deficit would just be a little less. The U.S. government is saving quite a bit of money by not paying some subset of its employees, etc. .... believe that many of those employees will not receive back-pay. Probably not true. In the past modern shutdowns, employees received the back pay, whether they worked as emergency employees or were home. A bill as already been proposed in Congress to ensure that all will be paid when this ends. Some contractors might not get paid because they get paid by their employers, not directly by the gov. So in some cases no work, no pay. There are bills proposed to get them paid also. Note- I do not at all mean to downplay the effect on people's finances and morale. Missing a paycheck today even if the money will/might come eventually is a real hardship. | If your LLC made 300K before paying salaries, and paid 300K total in salaries, that seems quite reasonable. You might have a point if the order of events was: LLC pays 100K in salaries, LLC gets sued for 200K, LLC raises salaries by 200K. Note that the owners have to pay income tax on 300k earnings, plus whatever else employers and employees have to pay. And an LLC doesn't pay salaries to owners, it pays salaries to employees who be sheer coincidence are also owners. It's a different matter if the company pays dividends. A company must keep dividends low enough so that it can run its business, including paying damages for lawsuits that it knows about. So if the company planned all along to pay 300k in dividends, then is sued for 200k, they likely have to reduce the dividends. | Go to know that you live in Washington. Per RCW 49.48.210, They must give you written notice with their evidence. Per RCW 49.48.210, section 3, you can (and should) request a review of the employer findings. Since the employer gave you the money, and you nor they saw any error until now, you may be protected under estoppel (WAC 388-02-0495). In the response letter, I would write something along the lines of " [Company Name] has paid IAW my expected rate and acted correctly when I received my money. I have also spent the money in good faith. Indeed, I still cannot see that any overpayment has actually happened. Please send me exact details why you believe that I have been overpaid, and why you believe that estoppel does not apply. Until this manner has been resolved per RCW 49.48.210, section 3, I request that you continue to pay my wages at normal rate for my time. I do not accept liability for the actions or inactions of [company name] and the claimed overpayment." Get receipt that the employer received the notice. Because it is in review, they don't have the right to garnish your wages. Challenge everything at the review. If something was changed or edited, challenge that. I would open up a new thread if they did that much. Best of luck |
If a company agrees to pay travel cost for a job interview, is the promise binding and enforceable? There is a question on workplace.SE about a company which offered to pay travel costs for a job interview, but canceled the return ticket after ending the interview - Potential Employer Cancels Return Flight. Generally, when arranging a job interview which requires the candidate to travel, it is common for the potential employer to pay travel cost and lodging for the candidate. In practice, the employer will ususally offer this, often in writing, but not write up a formal contract or similar document. In that situation, can the employer later renege on the promise to pay costs? In particular, can they renege after the candidate has begun their journey, thus saddling the candidate with the travel cost? My thoughts: On the one hand, a simple one-sided promise is usually not binding, as a binding agreement requires both sides to give something (called consideration in Common law). On the other hand, there is the notion of detrimental reliance, which appears to fit here. Also, one could argue that the candidate does provide something in exchange, namely their presence and willingness to attend the interview (basically, the company trades travel costs for having the candidate present for the interview). So, is the promise to pay the candidate's cost enforceable or not? Im interested in any jurisdiction, particularly European and US. | This aspect (and many others) of contract law is applicable in the US and various countries of the EU. can they renege after the candidate has begun their journey, thus saddling the candidate with the travel cost? No. The company would incur breach of contract. There is no need for a formal contract. The candidate only needs to prove that the company agreed (in writing, orally or clearly through its conduct) to cover or reimburse those expenses and that this elicited a meeting of the minds. The agreement would be void if the candidate incurred the expenses despite knowing (via timely notice) that the company changed its mind. Likewise, if the candidate lied on his CV, the contract (here, the company's agreement to cover the expenses) would be voidable by the company, since the candidate's intentional misrepresentations preclude the aforementioned condition of meeting of the minds. --Edited on 1/18/2019 to add ...-- Per suggestion by @KRyan, the aspect of void or voidable contract is expanded. But first, two disclaimers are pertinent: We need to be mindful that many of the follow-up concerns are either premised on or inspired by the situation described in the underlying Workplace SE post. These are somewhat beyond the scope of this Law SE question but addressed nonetheless, given their relevance as well as the OP's & audience's interest. The follow-up hypotheticals [in this Law SE question] and clarifications thereto neither speculate nor pass judgment on the stranded candidate who asked on Workplace SE. The Workplace SE post reflects a company's breach of contract. The subsequent comments here about fraud hypotheticals are mostly derivative inquiries beyond what is described in Workplace SE. In particular, we do not assume whatsoever that the stranded candidate committed fraud. The_Sympathizer commented: can the contract be voided on the spot like that without first proving in court? As it seems like it grants a rather "vigilante" justice power that is open to abuse, since effectively the "punishment" (cancellation of the flight and thus inducing a rather serious physical situation) is administered before any due process has been afforded the one accused. Yes, it can be voided on the spot (aka sua sponte). "Vigilante" justice denotes a self-attribution of punitive powers that exclusively belong to the state/government/court, whereas a party's voiding of a contract is the act of foreclosing his losses/exposures with respect to a contract that de facto never existed (such as when that contract was induced by fraud). I agree that unfortunately that is open to abuse: As a pretext to actually incur breach of contract, a company might allege that the contract was void. That is why (if taken to court) it will be the company's burden to prove that (1) it reasonably relied upon a candidate's representations (2) which were significant and blatantly false (3) given the candidate's knowledge that his lies contravened the job's core requirements. That can be quite burdensome. For instance, is the company handing out airfares without first conducting some competent corroborations about the candidate's credentials/skills? If so, one can hardly concede the company's allegation of reasonable reliance. The resulting finding would be that the contract was not voidable by the company, and thus that it is liable for breach of contract. Also, belatedly "informing" the stranded candidate that the company "is going in a different direction" falls short of evidencing that the contract was voidable. That applies even if the candidate performed very poorly in the interview or screening process. Given the hardship imposed on a stranded candidate, a company has to be morally and legally very judicious about its method and timing for "going in a different direction". But absent any representations or [company's] bylaws to the contrary, a company generally does not have the obligation to afford due process to a candidate. The court is the entity with an obligation to enforce due process as provided by law (although many of us in the U.S. have repeatedly experienced the courts' disavowal of due process). --End of edit on 1/19/2019-- a binding agreement requires both sides to give something Here, the candidate's consideration is his time and effort to accommodate the company's interest in assessing the candidate's profile at a location that is convenient to the company. | The contract would be binding Many people make the mistake of thinking that the document is the contract - it isn’t. The contract is the binding legal relationship between the parties of which any documents are just evidence for. As this is a simple mistake on the document misidentifying one of the parties, it’s irrelevant. You and the company are clearly the parties to the contract - you because you signed it and they because they sent it to you. Minor errors in one or more of the documents that make up a contract are immaterial. | Can an employer apply one-off pay cuts via forced contributions? No. This type of issues pertains to state law, and many (if not all) jurisdictions in the U.S. have statutes prohibiting forced deductions that are neither ordered by court, nor pursuant to bargaining agreements, nor as required or expressly permitted by law. See, for instance, MCL 408.477 and .478. The case of the CEO's book sounds in clear violation of MCL 408.477(2) since the user who asked on Workplace SE mentions that the employees did not consent to that deduction. Even if an employee consents to the deduction, it is important to discern between (1) his altruistic consent, and (2) his concession for the sake of continuation of employment. Unless the consent is altruistic, the clause(s) allowing for the deduction might be rendered null and enforceable by virtue of Restatement (Second) of Contracts at § 178(1) in relation to the aforementioned statutes. Any form of deductions as a permissible sanction (as fining when the employee gets late to work) would have to be provided in the agreement between employer and employee. Otherwise it is unlawful. | 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. | NO (mostly). Servitude means that the employer, or owner of the indenture, or whatever, can use physical force to make the indentee carry out the work given. If the indentee runs away they can be arrested and forcibly returned. This is distinct from the law of contracts. If Alice agrees to provide labour for Bob and subsequently fails to fulfil the contract then Alice may have to pay damages, but that is all. Even in cases of crminial fraud where Alice never meant to provide the labour in the first place, the penalty is defined by law, and would not be the provision of the contracted labour. As the OP notes, military service is generally an indenture-style contract; desertion is a crime. However the other party in that case is the government acting under law rather than a third party acting in their own self-interest. The Universal Declaration of Human Rights prohibits all forms of servitude. | No, they are not obliged to take you back early As you say in your TL;DR you arranged 4 months leave and your employer no doubt made arrangements to deal with your absence. Now, you want to return early; they are not obliged to allow you to do so just as you would not be obliged to do so if they wanted you to cut your leave short. No doubt the current pandemic has changed the situation and in its absence, they might have been more willing to have you back early. But then, you wouldn't want to be coming back early. Your employment status is that you are employed and on leave. Subject to the details of your employment contract; there is nothing stopping you taking another job - there is a huge demand for logistics workers particularly in the health sector at the moment; much of it unskilled work. dIf you want to be unemployed, you can always resign. | In general, in the US, Bob may do this. If the second company is a competitor of the first and Bob has access to confidential information from his first employer, then there could be an issue. Some employers require their employees, or some of them, to agree to "exclusive employment", that is to agree not to accept any other employment while employed by the company. If Bob has agreed to such a contract, he would be in breach of it if he took a second job and could be fired if his main employer learns of this. This is not a problem if Bob gets permission for the vacation work from his usual employer. In any case, Bob is not committing a crime, even if he is violating his contract. | Consideration has to be sufficient; it does not have to be adequate See What is a contract and what is required for them to be valid? Consideration need not be adequate; that is, the deal does not have to be "fair". Consideration must be sufficient - this is different from adequacy. Insufficient consideration falls under: performance of a duty imposed by law, performance of a duty imposed by an existing contract, acceptance by a creditor of part payment by a third party, composition with creditors, moral obligation (i.e. you can't do it for love), illusionary or uncertain promises. Parties are free to make whatever bargain they choose and it is not for the courts to enquire as to whether it was an objectively "good" bargain for both parties. The court does not care why you made the deal you did or if anyone else would make such a deal (with some very narrow exceptions: see unconscionability) or even if you come to regret the deal you made: they will just enforce it. In fact, contracts where one person promises to pay £1 or some other nominal sum are so common that they have a name: Peppercorn contracts. That's because under common law (civil law is different) "bare" promises cannot be enforced but if I pay you £1 in return for your promise, then we have a contract. |
Does secret or semi-secret prior art invalidate granted patents when presented? An example would be inventions from the former Soviet Union that were officially secret, then some became semi-secret as they leaked into the public realm but so obscure that only very narrow circles knew or were interested in knowing about them. And of course there may still be inventions that have never been leaked to the public, that are officially secret, that may still qualify as prior art to some current patents. | The patented RSA algorithm (public key exchange) was independently developed by Rivest, Shamir and Adleman. However the algorithm had been found much earlier and secretly by Ellis and Cocks. This was eventually revealed, but the RSA patent remained valid until it expired in 2000. The prior art must be known to the patent office before the patent is granted to stop a patent from being granted. What the patent office grants will obviously depend on what they know. To invalidate a patent later, what counts is the date when the "secret" prior art became public knowledge. So if the patent office could have theoretically found the prior art, then you have a chance. In the case of RSA, that wasn't the case. It is clearly documented that Ellis and Cocks invented the algorithm earlier, and it was even shared with US intelligence, but it was not known to the public when RSA got their patent. For your semi-secret prior art: If I try to get a patent, could you write to the patent officer "there's a small village named XYZ in Siberia, and in their public library there's a book titled "Secrets of ABC" that has prior art to gnasher's patent" before I get my patent? So it's public, but so obscure that nobody would ever find it in practice, but the patent officer could book a flight to Siberia, a bus to the village, and he could enter the library and find the book with the prior art? | There is something called the exhaustion doctrine that says that once the holder of a patent sells a patented device, they have relinquished control over that particular instance of the patent implementation. Anyone who legally purchases this hardware has the right to run whatever software they want on it, as long the software is otherwise legal (software designed to defeat DRM would be an example of software that is is not legal). | Yes The US constitution is in the public domain. Anyone may publish a version of it, including an altered version. No US law forbidding publication of an altered version would itself be constitutional -- the First Amendment would prevent such a law. However, if an altered version were sold under such conditions that a customer might reasonably believe it to be an unaltered version, that might be false advertising, or perhaps fraud, because the seller would be deceiving the customer as to what the product is. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. | Under US copyright law, all works are protected by copyright except for US Government works. The concept of "public domain" is not legally well-defined, and is used colloquially to refer to government works, works whose protection has expired, works available to all, and works not copyrightable (such as scientific laws or old software). Under older copyright law, releasing a work without the copyright symbol effectively put the work in the public domain. One can simply say "I dedicate this work to the public domain", and that is typically taken to be enough. CC0 purports to do this (using more words). However, as far as I can tell, author rights under European law are so strong that it is simply impossible. Releasing works into the public law has to be consistent with other aspects of the law. If you grant an perpetual exclusive right to copy and distribute to a publisher, their right does not go away on your death (a right which they would not have with a real public domain work). A problem is that an author who makes such a dedication (a bare license) could revoke the license and reassert their copyright. They could be estopped from making that argument. As property, your heirs would inherit the copyright and could (try to) revoke the license. Presumably the courts would not allow them to pursue ostensive infringers. Nevertheless, your plan is neither trivial nor bullet-proof. | Generally, this question is not a singular inquiry as its wording may suggest on its face. What typically tends to come up as the subject of dispute is rooted in the urban legend that one cannot obtain a patent (utility) on software. This is substantially incorrect, and any patent attorney asserting to the veracity of this makes a substantially false conclusory statement of law knowingly and willfully controverting the actual state of law in, at least, all Western jurisdictions as it omits to assert to the fact that one is not barred to obtain a patent on any system that comprises of non-obvious software, and hardware to run on is entitled to a patent — except in the U.S. where one must also comply with the Alice decision requiring that at least one hardware component in addition to the hardware of a generic computer be necessary for the utility of the system. However, in the U.S., one may obtain a software-centered patent through a (i) method or (ii) a computer program product in addition to (iii) systems or apparatuses which are available avenues for patents everywhere else. When disputes around IP and software come up, this is typically at the crux of the debate: May one obtain a software patent? The answer is: One is not barred merely because the non-obvious aspect of an invention is software. For example, if one uses hardware that are prior art, in fact, patented to someone else, but by the use of software a system, method and/or computer program product achieves a different objective (since utility patents, axiomatically, must have a utility objective) one may obtain a patent, and a layman may very well consider their invention of the system as that particular component that appears to them as having required any inventive steps, encompasses the inventive novelty (understandably) which, in many cases may be software. So the advice from a patent attorney that “you can’t patent software” is simply malicious (or wide and far disbarringly incompetent). One may patent software so long as it is an invention, and the administrative (or at times judicial) process requirements are complied with. Nevertheless, since the question inquired about “IP”, below is the answer to other avenues of intellectual property. Copyrights The software code written to make this operable could be the subject of copyright as long as it is not substantially identical with another solution (or such to give reasons to believe it to be a derivative thereof) that also put buttons in the four corners. The visual design may possibly also enjoy copyright protection, but that is less plausible to imagine since not only the copyrighted work of art is protected, but anything that may objectively be deemed a derivative work (regardless of whether the “re-author” actually knew about the copyrighted material that it may be deemed the derivate of). Design patents It is possible that one could get design patents for the actual graphical design of the layout provided there isn’t something substantially similar already out there protected by a design patent. Utility patents This would most certainly not overcome obviousness, that is, the requirement for one to obtain a patent which needs that a presented invention not be obvious for anyone “with ordinary skill in the art” (an ordinarily knowledgable person in the field of the specific area of tech). Trademark I have a hard time stretching my imagination to see how this could be applicable. | Can only be done one way and has been done - not novel; you can only think of one way to do it and don't know if it has done that way or at all, may be is patentable. From one example it is hard to give a general answer that might apply to a case you might actually be thinking about. One can not get a patent on something that is not novel or is obvious (using U.S. patent law concepts) or not useful. Novelty is judged by trying to find a single reference, published before the filing date, that contains all elements of the claimed invention. An examiner can't just say "that is the way I would have solved the problem" or "everybody knows that already". This is to make the test for novelty more objective and give the applicant something tangible to argue against. Next consider obviousness. The examiner can't just say "seems obvious to me". Besides the problem that it is far from objective, there is a strong psychological effect called "hindsight bias". Once you know a solution, it seems obvious even if you would never have come up with it independently. To assert a rejection based on obviousness an examiner needs to find one or more references that, together, have all the elements in a claimed invention. That part is pretty objective. Then they need to argue that a (fictitious) person of ordinary skill in the art would think to combine those references to achieve the claimed invention. A POSITA knows everything that was ever published anywhere at any time in any language in the relevant field or specifically relevant to the problem from an other field and is of median/average skill in the field. There are rare cases where the problem was never recognized and the recognition of the problem is an important part of the invention. In that case the solution might be obvious once the problem was (inventively) identified. That would still not be an obvious invention. Your example might fit into this. In the rest-of-the-world obviousness is replaced by "having an inventive step", not exactly the same concept. And the rules of what can be considered prior art different. A third criteria is "useful" in the U.S. It is somewhat analogous to "industrial applicability" in the rest of the world. Until about 2000 this was a trivial hurdle in the U.S. As long it was not a law of nature (abstract), something completely done in your head or a perpetual motion machine, it was probably useful. There have been many rulings since then that have put more and more things in the "abstract" category and if it's abstract its not useful. This is the basis of the "you can't patent software" mantra. There are plenty of things that look like software that get patented but it is getting harder. | That is not at all what USPTO is telling you. Courts do not simply "dismiss" patents - that isn't a terminology you'd ever see used for a patent that was found to be invalid. Timeline of events: United Industries Corporation brought a suit against the owner of the patent, claiming unpatentability. That case went to trial, and the court found the claim to be invalid and that UIC failed to show unpatentability. UIC appealed that decision to the Court of Appeals. The Court of Appeals dismissed the case because both parties agreed to its dismissal (it's possible they reached some external agreement we don't know about). As far as I can tell, at this moment, the patent is active. |
Is it legal to distribute a mixtape? Rap/hip-hop artists often distribute albums as "mixtapes." Are people actually free to redistribute them? For example, take Lil Wayne's No Ceilings album: DatPiff.com has been distributing it for free for years, and Lil Wayne's record label ("YMCMB") seems totally fine with that. Legally, what is going on here? Is the mixtape in the public domain? Does YMCMB retain copyright and just does not exercise it? Would it be legal for another site to re-distribute this mixtape? Would it be legal for a person to burn the album onto CDs and hand it out, or to sell it? Note: This question is not about sampling and all the legal concerns that exist around that issue. For the purpose of this question, please assume a mixtape does not contain any potentially copyrighted samples. I have searched the web about this and all I get are results related to sampling, but that is not what I am wondering about. | The tape is not in the public domain. Either they have granted permission to copy, or they have not taken action to pursue infringement. The current youngmoney website does not (on its public-facing page) grant any permissions, but things can change. In addition, permission could be granted in a specific instance as a personal favor or as a contract deal. There is no practical way for John Q Public to know. Datapif does not affirmatively represent that they have copyright-owner permission, and the attending circumstances indicate that "somebody" uploaded the album, but also they detected that there was some probable infringement and deleted a bunch of tracks, saying Some tracks were excluded from the zip file of this mixtape. This is most likely because a scan discovered that these tracks contained material that was commercially available. As such, we can not legally provide these tracks for download through DatPiff.com That "somebody" could have been the copyright owner, or Jane Q Public. Datapif is supposedly safe behind DMCA safe harbor provisions. In their TOS, they do say that The copying, redistribution, use or publication by you of any such matters or any part of the Site, except as allowed by Section 4, is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site. The posting of information or materials on the Site does not constitute a waiver of any right in such information and materials. So Datapif states that you may not legally redistribute the material from their website on your own. But they are not the copyright holder, only the copyright holder can authorize redistribution, so Datapif is not in a position to grant permission. | Generally speaking, copyright flows from the end of a pen (or at the A/D converter of a digital recording device). However, owning the copyright to a specific artifact, such as a digital video clip, does not trump all the other rights and claims that may be made regarding the materials captured within that clip. Which means that there are several rights all in play at the same time, and those rights may conflict. The legal term for getting enough rights so that you can do what you want with the rights you own is called "clearance" by those in the industry, and "collective rights management" by Wikipedia (see https://en.wikipedia.org/wiki/Collective_rights_management). The long and short of it is that it is not enough for you to "own" your video clip if you want to use it somehow. Depending on how you want to use it, and your tolerance for risk, you need to get every party who might lay a claim to any copyrighted or trademarked material within your video clip to agree that they are OK with you using it in whatever way you say you want to use it. Sometimes you can ask for, and receive, a "worldwide, perpetual, royalty-free license to use XYZ material in any way, imagined or not yet imagined". Other times, you might have to settle for more limited rights "a performance of the video at the ABC Bar in New York City, on December 31, 2015 only, for a fee of $10,000 paid to XYZ Rights Holding Company," and agree to a whole bunch of other stipulations to boot. There are entire industries that make furniture and automobiles for Hollywood studios so that they don't have to ask for the rights to feature an IKEA kitchen table or a Ford station wagon in a movie. That's how bad/hard the clearance problem can be. If you are lucky (and risk-tolerant), you might only need permissions from the band and the film maker. If you are unlucky or not risk tolerant, you might need permission from every person captured on camera, and from every company that made every item that appear anywhere in the film. Good luck! | First, copyright does not apply to "brands". Copyright exists in literary works which includes art - a picture (any picture) usually has a copyright belonging to the creator of the picture. Brands are protected by Trade Marks. To be clear: A picture of you is protected by copyright belonging to the creator The phrase "Mickey Mouse" is protected by trade mark belonging to the Disney corporation A picture of Micky Mouse is protected by copyright and trade mark. (when) would it be legally OK for me to do so without the copyright owner's permission? You can use copyright material without permission if you meet the fair use criteria in your jurisdiction. You can use trade marks if there is no risk of people confusing your goods and services with the trade mark holder's and you do not cause damage (including loss of potential income) to the trade mark holder or it is fair use (e.g. you are writing a review of a Micky Mouse cartoon). Is it legal if I do not distribute them to others at all? No, this would be OK as copyright fair use, but not as trade mark fair use. Is it legal if I give them to my family/relatives for free, e.g. as a gift? No, not fair use for either copyright or trade mark. Is it legal if I give them away to others for free (meaning I'm losing my own money on them)? No, see above. Is it legal if I sell them to others at-cost (i.e. for the same price I obtained them, meaning I'm not making any money from them)? No, see above. If the answer is "yes" to any of the above, can the copyright holder explicitly prohibit me from doing so, or would such a prohibition be unenforceable (e.g. if this would be fair use)? It isn't allowed. Yes they can stop you. No, it isn't fair use; there is no "fair use" defence for trade mark infringement here - you are depriving them of income because you are not buying their T-shirt! Any other factors that are relevant but which I'm forgetting? Will they sue you for doing these things? Probably not. | The comment is incorrect; creating a derivative work without permission is still disallowed, even for private use. In US copyright law 17USC 106 defines the exclusive rights that the copyright holder has, the right "to do and to authorize". The second of these is: (2) to prepare derivative works based upon the copyrighted work; Note that the right is the right to "prepare" a derivative work, not the right to "distribute" or "sell" the work. US copyright law defines a derivative work in 17 USC 101 which reads: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. The laws of other countries are similar to US law on this point. Article 2, paragraph 3 of the Berne Copyright Convention provides that: (3) Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work. However, it should be noted that if a person creates a derivative work in private, and never shows it to anyone else, the copyright owner would never learn of it, and so could never sue for infringement. But if it were shown or described to anyone, and the owner did learn, then he owner could in theory sue. Whether the owner would choose to sue over a derivative work never circulated is a different matter. The real effect of this law is that when an infringing derivative work is distributed and the owner wants to sue, the owner need not prove distribution. Proving creation of the derivative work is enough. The quoted comment asks about whether such a rule is "unconstitutional or something" and says that "You should be allowed to do whatever you want with your own stuff in your own home." The US constitution does not grant any such broad right. There are lots of things one might do in own's own home that are illegal: building a bomb for example. Article I, Section 8, Clause 8 of the US Constitution, sometimes called the Copyright Clause or the IP clause, grants Congress the power: To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. See the LII page "Intellectual Property Clause" and the page Nature and Scope of the Right Secured for Copyright where it is written that: Congress was within its powers in giving to authors the exclusive right to dramatize any of their works. Even as applied to pantomime dramatization by means of silent motion pictures, the act was sustained against the objection that it extended the copyright to ideas rather than to the words in which they were clothed. {Kalem Co. v. Harper Bros., 222 U.S. 55 (1911). For other problems arising because of technological and electronic advancement, see, e.g., Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968); Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984).} See also the Wikipedia article "Copyright Clause". | These files are not public domain Read it carefully, it only says “public domain musical compositions in a MIDI (Musical Instrument Digital Interface) file format.” The compositions are public domain, the MIDI files aren’t - they are a derivative work (a translation) covered by their own copyright. Specifically, “© Copyright 2001 University of Arizona. All rights reserved” right next to a big “Contact us” link. Literary and artistic works that are derived (legally) from existing works have independent copyright even if the original no longer does. Mozart, for example, did not write his compositions in MIDI format. Now, it may be the intention of the University of Arizona that you can use it but, if so, they have not made this clear. It’s possible that the authors (mistakenly) thought that because the originals were public domain, their derivatives would be too. The music school should have talked to someone from the law school. All of the purposes that they talk about on the “Purpose” page are equally applicable to widely licensed (e.g. everyone) or narrowly controlled (e.g. staff of the University). Overall, a prudent person would assume that these works are copyright of the University of Arizona and can’t be used without permission or a fair use exemption. Your proposed usage is not fair use. However, there is a big “Contact us” link on every page so you can always ask for permission. | This appears to be very clear to me: "NPR does not allow other websites to post our content..." I cannot think of a more clear way to say "Do not reproduce our content on your site." Since you asked about licensing the right to reproduce their content, and they flatly ignored your request, I think it is safe to assume that they are not interested in licensing that right to you, even for a fee. This is also consistent with their "NPR does not allow [any] other websites to post..." language. It is always the copyright holder's right to refuse to offer any particular person (or all persons generally) a license, no matter what payment they might offer. (With the exception of statutory licenses, which in the U.S. exist only for recording covers of musical works.) They have also ignored your request to recompense them for infringement already performed. If in the future they decide to take legal action against you for your past infringement (hugely unlikely that such a hassle would be worthwhile for NPR) or seek any out of court settlement (again, quite unlikely they will care enough), I'm sure they will let you know. As they've said in their email, you are welcome to link to NPR's content. You are, of course, not welcome to spread misinformation or lies about NPR by claiming something like, "Look at this wonderful article that NPR wrote purely for us, at our personal request," or "NPR thinks that In Home Teaching Agency XXX is a great company, so we built a curriculum around their content," when NPR has never said any such thing. Any legal issue around linking would probably be a trademark offense, by wrongfully suggesting that NPR endorses you, or by misrepresenting yourself as an agent of NPR. If you don't do either of things, and just say, "Here's an article on [subject X] published by NPR," you're probably fine. If you want to be very thorough, you could include a disclaimer on your site like, "In Home Teaching Agency XXX is not a licencee or partner of NPR. Links to NPR articles are included for educational purposes only," or similar. This seems pretty excessive to me, since a reasonable person won't assume that linking to an article from a major news source suggests a partnership, but I suppose it couldn't hurt to include such a disclaimer. | I don't see how. Remember that a license is a contract where the author gives permission to copy (modify, redistribute, remix, etc) a copyrighted work, provided that the licensee fulfills the stated conditions. If the license is not in effect, then we revert to the default situation under copyright law, which is that the potential licensee has no rights to copy the work. (Not counting particular instances of copying which are permitted under fair use and similar exceptions - I presume that's not what you have in mind, or the whole question is moot.) In this case, the conditions include that the licensee must credit the author under their chosen pseudonym. The licensee can't get out of that obligation simply because they find it distasteful or objectionable for whatever reason. If they don't want to do it, then they should not accept the license in the first place, and so refrain from copying the work. (Of course, if the author is offering the CC license in hopes of encouraging reuse of the work, then this may not be a desirable outcome for the author, so they might want to think twice about their choice of pseudonym.) Even if the author's pseudonym were something that would actually be illegal to quote (say, because it is obscene), I don't think it lets the licensee off the hook. A contract with illegal terms is void, so legally it is as if there is no license at all, and we revert to the default in which there is no right to copy. A question was raised in comments about the word "reasonable". I don't know of case law where this has been tested, so I can only speculate: The context suggests that "reasonable" is intended to refer to the means of attribution (for instance, where the attribution should appear in a piece of source code or documentation), not to the pseudonym. There's a legal principle that the specific governs over the general, and the requirement to credit the author by a particular pseudonym is clearly more specific than the general requirement of "reasonableness". It seems clear that the author, who is the one offering these terms, didn't intend for the general term "reasonable" to render meaningless their request for the use of a specific pseudonym; if they had, why would they have bothered to put it in? On the flip side, there's the principle of contra proferentem, that ambiguities in a contract should be resolved in the favor of the party that didn't draft it - here, the licensee. But it's hard to argue that this is really ambiguous; it seems quite clear what the author wants. Of course, the author can circumvent the whole issue, if they're worried, by licensing the work instead under a modified version of the CC license in which the word "reasonable" is removed. After all, there is nothing particular magical about CC's language: the contract is whatever the author and the licensee agree to, and they're just using the pre-written CC license as a convenience to streamline their negotiations. | Both. The user made an infringing copy with the upload, the developer did with the download. Further the ToS between the app owner and the user will not protect them from being sued by the owner of the copyright. They don't have any ToS with them. |
If you buy an apartment that has a rent controlled or rent stabilized tenant in it can you evict them to move in? Suppose I buy an apartment which has a rent controlled or rent stabilized tenant but I want to use the apartment as a primary residence in NYC. Do I have the right to evict the tenant and move in? | You cannot evict them immediately. You can, however, decline to renew their lease when it expires if you give proper notice. From this information sheet: In NYC, an owner may refuse to renew a rent stabilized tenant’s lease because the owner has an immediate and compelling need to possess the apartment for use as his or her primary residence or as a primary residence for his or her immediate family. Under the Rent Stabilization Law, an owner may begin an eviction proceeding when the current lease expires, but only after the tenant is given written notice that the lease will not be renewed. This notice must be served at least 90 and not more than 150 days before the current lease term expires. In addition, if the tenant is elderly, is disabled, or has lived in the apartment for more than 15 years, you must provide an equivalent (or superior) apartment to them at the same (or lower) rent in a nearby area. This may be difficult if you only own one unit in a larger building, rather than an entire building. Finally, due to the ongoing COVID situation, the COVID-19 Emergency Eviction and Foreclosure Prevention Act (CEEFPA) allows tenants to submit a hardship declaration to avoid eviction. Such a hardship declaration can be filed if the tenant has experienced financial hardship due to COVID-19 or if moving would present a health risk to the tenant or a member of their family. Note that the above link is out of date; the moratorium was recently extended to January 15, 2022. | Yes, but not without notice KS Stat § 58-2557 (2015) 58-2557. Landlord's right to enter; limitations. (a) The landlord shall have the right to enter the dwelling unit at reasonable hours, after reasonable notice to the tenant, in order to ... exhibit the dwelling unit to prospective or actual purchasers, ... | 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. | You can contract to do anything that is not illegal. In many jurisdictions unconscionability is a thing that statute or case law makes illegal. These clauses may be unconscionable, however ... In most jurisdictions real estate rental agreements are highly regulated; particularly as regards eviction. So, even if these don't cross the line into unconscionable (and for what it's worth, they're nudging it at least) they are probably prohibited anyway. There probably is an independent third party that decides on evictions anyway in the form of a court or rental tribunal. | 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. | Generally, you would have to bring an eviction action just as you would for an ordinary landlord-tenant relationship. This means given written notice served as required by MA law of a deadline to leave, and then if the child did not leave, filing an eviction lawsuit and serving the papers on the child, and then attending an eviction hearing, and then, if you prevailed in that hearing as you probably would (probably with horrible TV and newspaper publicity that might go viral in social media), and then, arrangements would be made to remove him and his stuff from the house on an appointed day with law enforcement and movers and you would change the locks. It would probably take a few weeks start to finish. It is not something that a non-lawyer should try to do themselves. A lawyer would probably charge you a few thousand dollars for this proceeding. The main exception would be that generally a parent has a duty to support an adult disabled child who cannot provide for himself. You probably do not have the legal right to simply kick out your child without an eviction action, although few adult children would choose to push their legal rights not to be removed in that manner if they were. The fact that a child would likely end up homeless in some circumstances if you did this is something that most parents would not be at peace with and would regret later even if they felt good about the decision at the time, but that is a parenting decision and not a legal one. | The default rule is that a landlord can refuse to rent to anyone for any reason, in which case the landlord can refuse to rent in this case. There are civil rights laws that limit this discretion in the case, for example, of discrimination based on race, or family status. But, those laws often have exemptions for owners of small amounts of property (e.g. a unit in their own home), which can't easily be determined from the question. If a civil rights law applies, the landlord must choose among potential renters on a non-discriminatory basis - the landlord doesn't have to rent to anyone in particular, but can't use the prohibited reasons to make the choice. If the default rule does not apply because a civil rights law unrelated to immigration bars discrimination against a tenant, someone's undocumented immigrant status probably doesn't provide an absolute defense to the civil rights law, but might be one factor among many that a landlord could consider in choosing among available tenants in much the same way that credit ratings, income, and a prospective tenant's criminal record, and other factors might be considered. | In most common-law jurisdiction, a purchaser buys a house subject to any existing lease. If that is true in your jurisdiction, the notice to vacate was illegal, and you are entitled to remain until the end of the current lease. The return of the deposit will depend on the condition of the property when you move out, and will be governed by the specific law of your jurisdiction. Residential leases are highly regulated in many places, and the laws vary widely. Often they vary even by individual cities or towns within a country. Without the specific locality in which the hosue is, no specific answer is possible. |
Are there jurisdictions in which it is illegal to presell a house (without the property being already finished)? Are there jurisdictions (countries) in which it is illegal to presell a house (i.e. contractor selling a house without the property being already finished)? The purpose should be to prevent contractor delays and/or construction malformations and even constructions deformations (the lack of one or more crucial structure parts). | I know that in many countries, including the US, the UK, and most, perhaps all, of Europe, it is common for houses to be sold while still under construction, so no such legal prohibition exists (or at least is enforced) in any of those countries. I have never heard of any country which has a general law against such a practice, but I cannot be sure for all countri8es in the world. There are other was to "prevent contractor delays and/or construction malformations and even constructions deformations". Many counties have building codes, which make improper building techniques unlawful. In some countries failure to adhere to proper professional standards in such matters is unlawful, and it is usual for the purchase of an unfinished building to involve a contract, in which performance standards and dates are spelled out. Failure to adhere to such requirements would give the purchaser grounds for a lawsuit for damages. | As soon as possible. Liability There is no contract here so you would be relying on the tort of negligence and/or trespass. If you have suffered damage from somebody else's negligence then they are liable for your loss. Part of the problem that you face is you need to determine exactly who was potentially negligent. It probably isn't your neighbour! It is quite likely that your neighbour was using a contractor; a contractor is not an agent and so your neighbour has not been negligent, the contractor has. If you were to sue your neighbour in those circumstances you would lose. You need to take steps now to find out exactly who the person was who caused the damage - that's the person you would need to sue. To win a negligence claim, you need to 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, in law, the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged. If the facts are as you say: They probably have a duty, They probably failed in that duty, See below, You have clearly suffered harm or damage. Types of loss or damage The treatment of loss or damage under the law depends on what type of loss it is: Direct loss includes the repair and rehabilitation of the property - this would generally be recoverable, i.e. legally it is a cause of harm. Consequential loss includes the loss of rental income during the period that the property is unavailable. Alternatively, a court may consider that the loss is the cost of you providing alternative accommodation to the tenant if this was an obligation on you; this could be more or less than the rent. It would also include relocation costs etc. This is also generally recoverable. Pure economic loss would include loss of earnings if the tenant terminated the lease and you were unable to find a replacement or were forced to lower the rent as well as any advertising or agent's costs. While it is possible to recover this, it is quite likely that this would be considered unforeseeable and therefore not a legal cause of harm. The legal reasoning is that the loss (tenant terminating the lease) is too far removed from the proximate cause (damage to the unit) to hold the defendant responsible for it. You have already indicated that the tenant is trying to use the circumstances to their advantage; this is not something that could have been foreseen. Duty to mitigate loss You have a duty to mitigate the loss caused by the negligence. This would normally include ensuring that repairs were carried out in the most time and cost-efficient way possible. The defendant is only liable for reasonable costs; not actual costs. Insurance If a third party is liable for the loss, then they are liable for the loss irrespective of if it is covered by your insurance. Your insurance company can sue in your name to recover whatever they have lost; while they can, they will only if they believe it is commercially worthwhile. You need to talk to your insurer to determine what they will cover and what they won't and if they are going to seek to recover and what they will do if you seek to recover - they may choose to take the lead and tack your stuff on the back. | 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. | Every lot on the subdivision is and always will be acquired “through the Developer” Unless the developer still owns it. Somebody is the heir or assignee of the Developer - that’s who you need to seek approval from. Even if the Developer was at some point a company that got liquidated, the right of being the Developer would transfer to the creditors of that company. | What does your contract with your client say? What does your contract with your sub-contractor say? Typically the client contract will not specify HOW the work gets done, just the deliverable(s), the price and the liability. Unless your client contract says otherwise, it's perfectly legal for you to farm out the work. It's also perfectly fine for you to deduct the cost of the sub. As long as that's profitable the IRS will have no problem for that at all: that's a perfectly normal business practice. Things are a bit more complicated if you farm out at a loss since that could be interpreted as a tax evasion scheme. However, as long as it's reasonable, that's fine. If there are defects in the work product, the client will come after you, regardless of who did the work. It's generally your responsibility to fix the issues, cover damages etc. You, in turn, can try to recover your damages from the sub, but that depends on the nature of the contract you have with the sub. | Do I have recourse against seller? Is the seller liable or obligated to disclose this and if so what are my options? Probably not. The general rule is that you accept any condition which could be discovered with reasonable inspection. When "At the time of sale I waived inspection and did As-Is" you are greatly limiting your claims. If the seller believe that the work done fixed the problem, you probably have no remedy. It could be that the seller made a false representation in the disclosure (you'd have to look at the exact language) but even then proving it with only the kind of circumstantial evidence provided would be very challenging. In particular, as a practical matter, it isn't really economic to sue in a $10,000 non-disclosure case without open and shut clarity of fault, as opposed to some suggestive but ultimately inconclusive indicators. You could always ask and state the case in a demand letter, but if you came to me as a potential client, I wouldn't take your case because the high cost combined with the low likelihood of success would make it unlikely that an attorney could bring the case in a way that would generate net value to the client. | In the Netherlands, this qualifies as a deceptive trade practice (misleidende handelspraktijk) and is therefore directly illegal. It's likely also an unfair trade practice, (oneerlijke handelspraktijk) as the claim appears intended for end consumers. This means that the seller cannot count on the consumer knowing anythong about stuffase. It is a dutch implementation of EU directive 2005/29/EG, so similar laws apply in other EU countries. But the illegal per se part might vary. | The simple answer is, get a lawyer and explain your case, and pay him to solve the problem (or tell you that it's hopeless). The two main questions would be whether the appraiser have any duty to you, and whether his action was within the scope of what he is supposed to do. If you hired the appraiser, he has a duty to you. I will assume it was you that hired the appraiser (if it was the bank, that's a different matter). Then the question is whether his action or non-action is within the scope of the job. If the place is infested with termites, that is probably irrelevant because an appraiser is not a termite inspector. On the other hand, if he failed to measure the structure, or erred substantially in the measurement, that kind of negligence could be legally actionable. The seller (not the appraiser) is required to "disclose", so it's not obvious that there is any thing that an appraiser could disclose that relates to a map. |
When is a firearm able to "be readily restored to shoot automatically" according to the NFA? The NFA defines a machine gun as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger". What level of work is required to keep a gun from falling afoul of the "can be readily restored" clause? | Gun University has a lengthy article on the topic. They point out that there is no precise definition for "readily restored," but there is case law. They cite United States v. one TRW Model M14, 7.62 Caliber Rifle from William K. Alverson: Just as the GCA does not define “readily converted,” the NFA does not define “readily restored.” However, the term “readily,” with respect to the NFA, has been read by courts to “encompass several elements of restoration: (1) time, i.e., how long it takes to restore the weapon; (2) ease, i.e., how difficult it is to restore the weapon; (3) expertise, i.e., what knowledge and skills are required to restore the weapon; (4) necessary equipment, i.e., what tools are required to restore the weapon; (5) availability, i.e., where additional parts are required, how easily they can be obtained; (6) expense, i.e., how much it costs to restore the weapon; (7) scope, i.e., the extent to which the weapon has been changed . . . ; (8) feasibility, i.e., whether the restoration would damage or destroy the weapon or cause it to malfunction.” They then point out how the line varies from court to court. The courts do not always even focus on the same elements of the list above. They do mention that, if you need to have a reliable determination, the Firearms Ammunition and Technology Division (FATD) is available to assist you on a case by case basis. The article suggests they don't offer sweeping guidance, but will look at a sample item and make a judgement on it. | "As we know non-adults aren't allow to carry weapons" This is not something that we know or an obvious point. It is also not obvious that a knife would qualify as a weapon for these purposes. This would not be true in most jurisdictions in the world. I have no idea what knife control laws look like in China or Taiwan. A reference to why you think that this is the case would be helpful. Even if there are laws banning possession of knives (i.e. carrying knives) when one is in public for use as a weapon, it would be very surprising to me if teens weren't allowed to possess knives in a kitchen, or a work site where a knife was a necessary tool. It would similarly surprise me if a teen working on a knife design in a craftsman's workshop would be illegal. What makes you think that any of these things are illegal in China or Taiwan? This might have been illegal in Japan in the 1600s when metal blades were highly regulated (this is one of the reasons that most Japanese food is served with portions pre-cut to be bite sized), but I very much doubt that teen possession of knives for practical purposes is illegal in any of those places today. There is also, in general, nothing wrong with factories run by adults making knifes from other people's designs. They do that all the time and it wouldn't be illegal to do so just because the designer wasn't allowed to use the product of the factory in public. I would be surprised if a factory even asked how old the designer was, particularly if he was operating through a company formed for him (something an adult might have to do). The harder question would be whether the teen can enter into an enforceable and valid contract with a factory without having the co-signature of a parent or guardian. Many countries don't allow this so that the teen is not exploited into agreeing to a big contract on unfair terms. Also, many countries make a distinction between criminal acts committed by adults and the same acts committed by minors. A teen, particularly a young teen, may be under the relevant law, capable of only engaging in juvenile delinquency, rather than an adult felony. But, again, I don't know how this is handled in Taiwan or China. In general, the legal system in Taiwan strongly resembles that of the legal systems in Continental Europe not long after World War II (i.e. in the 1940s), with its own local developments since then. But, China's legal system is quite unique and is not very similar to the common law legal systems of England and former or current English colonies, or the civil law legal system of Continental Europe (or for that matter, Islamic law). China's legal system is different at the level of very deep concepts of legal process, of what is and isn't law, and of many core legal concepts. It also has piecemeal bits that are imposed by treaty even though they are not organically natural fits with the rest of the Chinese legal system (e.g. its intellectual property laws). | A teacher could not instruct students in how to build explosives for use in Federal crimes: It shall be unlawful for any person to teach or demonstrate the making or use of an explosive, a destructive device, or a weapon of mass destruction [...] with the intent that the teaching, demonstration, or information be used for, or in furtherance of, an activity that constitutes a Federal crime of violence (source) This Federal statute creates a law preventing the teaching (in any context, including schools) of bombmaking for the purpose of committing a federal crime. So "bombmaking" is one subject that cannot be taught, although I don't think that there have been any prosecutions of regular K12 teachers under this law. | The pawn shop has the "use of property" of their own premises. The pawn shop has obviously the right to examine the gun to determine its value, for example, or to clean it if it needs cleaning to avoid damage, or to show it to a potential customer. And the pawn shop is allowed to let the police onto their own premises, even without a search warrant. | Evidence is simply those things (verbal and physical) which are given to the court as evidence. When a witness gives testimony, that’s evidence. When a gun is submitted as an exhibit, that’s evidence. When an expert report is tendered, that’s evidence. Basically, whatever either party in the case submits to the court to prove their case is evidence. There is noting objectionable about the sentence - they are saying the statement is true, as they will be required to do in court and that they intend to submit it as evidence. While it’s not evidence yet, when submitted to the court, it will be. Courts have rules about what is allowed to be put into evidence (e.g. relevance, hearsay) and there may be some parts of the statement that fall foul of these - the other party can object to the proposed evidence on those grounds and the first party can withdraw it, the parties can agree on a modification or the judge rules on it. This can (and should) be done now in order to save time in the hearing. Evidence and proof are not the same thing. The judge will consider and weigh all the evidence and, where it is contradictory decide which to believe and which to reject in order to determine if the party which has the onus of proof has met it. | They both can be found liable, but not by using the but-for test. Suppose that person A and person B each independently negligently discharge firearms and that each on its own would be sufficient to kill person C. Is it true that, "but for the actions of A, C would still be alive?" No. Is it true that, "but for the actions of B, C would still be alive?" No. Using the but-for test would not be able to assign liability to either A or B. "But for" is not an obvious phrasing for non-native English speakers. It's the same as asking, "If it were not for the actions of A, would C still be alive?". However, courts and juries are not limited to using the but-for test for causation. See Corey v Havener, 182 Mass. 250 (1902): It makes no difference that [...] it is impossible to determine what portion of the injury was caused by each. If each contributed to the injury, that is enough to bind both. | This is the Texas law pertaining to self defense, which says that "a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force". Relatively little of the law pertains to firearms, and none of it restricts the right to self-defense based on whether you are a resident, or you are using your own firearm vs. a borrowed one. The one provision, subsection (b)(5), that refers to firearms is an exception whereby force is not justified, namely if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was: (A) carrying a weapon in violation of Section 46.02; or (B) possessing or transporting a weapon in violation of Section 46.05. (Sect. 46.02 is about conditions unlawful carrying of weapons, which covers such things as under-age carrying of certain knives, or not having control of your weapon, or being a felon in possession, etc. 46.05 is about machine guns, explosives, zip guns etc.) Deadly force is covered by a separate section, 9.32, adding the requirement that the actor "reasonably believe[] the deadly force [to be] immediately necessary". (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Note that "deadly force" is defined as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury". Sec. 9.33 likewise allows deadly force to be used analogously in defense of a third person, and intreestingly, in 9.34(b), "A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other's life in an emergency". In addition, deadly force can be justified in defense of property, per sec. 9.41, if you "reasonably believe[] the force [to be] immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property", and you may also use force to recover or re-enter the property (as long as the force is used "immediately or in fresh pursuit after the dispossession", and "the actor reasonably believes the other had no claim of right when he dispossessed the actor; or the other accomplished the dispossession by using force, threat, or fraud against the actor"). Sec. 9.42 then provides the possibility of justified use of deadly force in protection of property, if the force is immediately necessary (A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury. The short version is, if deadly force is justified in the particular circumstances, then deadly force with a borrowed weapon is justified. However, there are federal laws regarding non-resident aliens possessing firearms. 18 U.S.C. 922(g)(5)(B) says that It shall be unlawful for any person...who, being an alien (A) is illegally or unlawfully in the United States; or (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)))...to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce Under subsection (y) there are exceptions for licensed hunters, government representatives etc. You can also petition the Attorney General for an exception. The point is that federal law would make possession of a firearm illegal for most visa types: here is the list. | District of Columbia v. Heller 554 U.S. 570 (2008) is the Supreme Court's latest and clearest interpretation of the 2nd Amendment. The majority's analysis is almost entirely a textualist/original-meaning interpretation. They took the following to be the text of the 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. The capitalization differences were treated as inconsequential in the analysis. The opinion refers to "the phrase “the militia” in the prefatory clause", with no capitalization when mentioning it. In interpreting the object of "keep and bear Arms", "Arms", the opinion immediately removes capitalization in its own discussion of the term. They even explicitly rule out the possibility that "keep Arms" has any special meaning: No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” The opinion also refers to Vermont's adoption of Pennsylvania's "right to bear arms", calling any differences in capitalization or punctuation inconsequential: In 1777, Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization. Neither of the two dissents make anything of the difference in capitalization. None of the 68 amicus briefs mentioned the difference in capitalization. It did not come up in oral argument. The Brief for the Professors of Linguistics (in support of Petitioners) says: The Amendment’s first and third commas signal a pause for breath and can be omitted without affecting the meaning. They say that the second comma is consequential, but that comma is consistent between the two variants that you quoted. |
How long can someone sleep over at someone else's rented accommodation? In Scotland, how long can a person legally sleep in another person's flat without being a tenant? I expect that spending one night at a friend's is totally permissible, but being allowed to live there for months without paying that landlord would surprise me. I have discovered that in civil partnerships/marriages, most tenancy agreements allow the sole tenant to live together with their partner, but this question would not be about that case. | Notwithstanding the current COVID-19 regulations, I cannot find any Scottish law, regulation or rule that prevents a lawful tenant from having long-term visitors. However, it may (or may not) be a breach of the tenancy agreement depending on its terms which is where one should look for a definitive answer. | Council tax arises from Part 1 of the Local Government Finance Act 1992. This provides that liability for the tax is to be calculated on a daily basis. If there are two residents on some days and one resident on other days, then the single person discount applies only on the days when there is one resident. Crucially for this question, however, In this Part, unless the context otherwise requires ... “resident”, in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling. The answer to the question, therefore, depends on an analysis of Bob's residence. The single person discount should remain in place for any day when Bob's sole or main residence is somewhere else, and it should be forfeit on any day when Bob's sole or main residence is Alice's place. Where Bob sleeps will be one element considered in determining his sole or main residence, but it should not be the only one. | As stated, this is not a reasonable restriction and runs afoul of the Fair Housing Act. You cannot discriminate based on family status, with an exemption for "housing for older persons", and the act "does not limit the applicability of reasonable local, state, or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling" (let's leave aside HOA restrictions for a moment). The number of occupants can legally be restricted in terms of a reasonable relation to a legitimate interest such as parking availability, safety, noise or securing the property. A restriction based on square footage or number of bedrooms might be reasonable: a blanket rule "no more than 4 people" is not reasonable. This article notes some of the state complication in interpreting "marital status", in terms of "not being married to each other". | If you have an actual lease under which you reside at your parents' place, they must abide by the terms of that lease – presumably that sets the rent that you pay and states how long the lease is good for, Otherwise, if you're just living there, and have been living there for some time, then the courts may treat you as a month-to-month tenant. That means that they can end the tenancy with 30 days notice. Or, they can initiate an eviction proceeding. The less optimal outcome is that the court may treat you as a house guest, in which case no formal eviction proceeding is necessary. One way or the other, it is illegal to physically give a person the heave-ho from their residence, even if it is a family member. One recourse then is to hire an attorney to persuade your parents of at least that aspect of the law, if it is really in doubt. This gent addresses the matter for parents whose children have moved back home. He also mentions hiring a mediator, which could put the situation on a clearer legal ground. As for psychiatrists, anybody can see a psychiatrist; and anybody is free to hire a lawyer to try to force another person to see a psychiatrist. The prospects of getting a court order to force a child or a parent to see a psychiatrist because they are at loggerheads over some matter is extremely remote. The courts only force psychiatric treatment in extreme cases (e.g. threats of violence, actual delusions). | Yes, they still have to go through the normal eviction process and must still provide the minimum number of days required by their local jurisdiction in order to vacate the property. By moving in and establishing residency, the tenant and landlord form an implied lease - the tenant does not need anything in writing in order to establish their legal rights to tenancy. More information: No written lease--Am I in trouble? | From the time that the lease expired and you remained with permission, you had a shorter period of obligation and protection. I assume that the lease ended long ago, and you've been living there month to month. Assuming that we can read "two rental periods" as "two whole months" (if there is something else in the lease that indicates this, such as a rent due-date), then we can interpret the notice requirement as saying that you must give notice before the first of the month 2 months before the intended end of tenancy – that is one meaning of the lease. Another meaning is that you can give notice 58 days in advance. The lease has an ambiguity as to what the notice requirement is. Since you did not write the lease, and they did (well, someone, whose obligations they inherited, did), the ambiguity is construed against the party to wrote it. In the present circumstance, because you want to leave soon, you would not be held to the notice requirement that favors the landlord. It's entirely non-obvious why such wording would be used. In 504B.135, the statutes say (a) A tenancy at will may be terminated by either party by giving notice in writing. The time of the notice must be at least as long as the interval between the time rent is due or three months, whichever is less. (b) If a tenant neglects or refuses to pay rent due on a tenancy at will, the landlord may terminate the tenancy by giving the tenant 14 days notice to quit in writing. Once you're past the end of the lease, you are a tenant at will, by the definitions section: "Tenancy at will" means a tenancy in which the tenant holds possession by permission of the landlord but without a fixed ending date. Assuming that you pay rent at the first of the month, then the lesser of a whole calendar month and three months is, obviously, a whole calendar month. The stuff at the end of the statute that you cite – "The notice must be in writing and direct the tenant's attention" – is addressed to the landlord's notice to tenant, where he says "Your tenancy will not auto-renew". This applies to leases of 2 months or longer, not recycled 1 month leases, and requires the landlord to give the tenant appropriate notice (it does not define the tenant's notice requirement). | This article basically says "it depends": If it is genuinely used to improve tenant safety then that is OK, but if it is used to track your private life then that is not acceptable. Cameras that cover communal areas used by several properties are generally acceptable, but cameras covering individual properties are much less so. It sounds like this falls into the latter category. Assuming you haven't got the camera yet, I suggest you write to the Landlord asking for a written justification of the cameras, and a policy for the use of the camera. E.g. it will only be viewed if an incident is reported. Once you have the justification you can then look for inconsistencies (e.g. if they aren't planning to snoop at random times, how are they going to notice someone up to no good? And how would they tell?) You could also just say "no". The installation of this camera probably counts as a material variation of the rental agreement. You could also propose a compromise: you will install the camera, but only provide footage as you see fit rather than allowing your landlord to view the camera at any time. CCTV installations are covered by the GDPR, so you should ask your landlord for the associated paperwork. Amongst other things they will need to state how long they want to keep the footage and provide a justification for that. "We might want to re-run it" is not a justification. Having all this stuff written down will help if you ever suspect he is abusing the footage. Edit Another thought: does the landlord own other properties? Are they having cameras installed too? If not, why not? They should have a policy about this. | Probably not, although it is impossible to say without reading the lease. Usually leases are monthly. That means you pay for the entire month or lease term regardless of how much or how little you use the property. It seems weird that the lease ends on the 21st, but if that is the case, then you are legally obligated to pay for that time interval. That said, if you want to drive a hard bargain, you could threaten to reoccupy the apartment and stay in it until the 21st which are legally entitled to do, unless he refunds you some money. You would have to be a pretty serious hard-ass to pull this off, or be prepared to go to court. One possible course of action is that you demand return of the key and say you changed your mind and will be staying in the apartment until the 21st. Make sure the conversation is recorded and that he knows the conversation is recorded, or have a witness. He will refuse. You can then sue him for denying you the use of your property. |
Does Age Discrimination Apply to those over the age of retirement (US)? I know that it is illegal to discriminate solely on the basis of age in the hiring process. I know that it is intended to help those that are over 40. But does it still apply to those over the age of retirement? Could a 70 year old individual make a reasonable legal claim against a company that passes over his application solely for the purpose of his age? I'm not asking if it would be successful, but whether the law is intended to apply to someone that might be too old to be considered in the job market? | Yes - there is no age upper limit written in the law. However it does include this exception at 29 U.S. Code § 623(f)(1): allowing an employer - (1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, and there may be actual job requirements that a specific older person might not be able to perform and therefore they would be eliminated from further consideration legally. | This may be allowed, or prohibited, it all depends. At the federal level, there is no specific prohibition against asking this question, however it may be found to violate Title VII of the Civil Rights Act if the result discriminates in employment based on race. At the state level (in Washington), WAC 162-12-140 gives examples of fair and unfair pre-employment inquiries. W.r.t. arrests, it deems such questions as fair under limited circumstances: Because statistical studies regarding arrests have shown a disparate impact on some racial and ethnic minorities, and an arrest by itself is not a reliable indication of criminal behavior, inquiries concerning arrests must include whether charges are still pending, have been dismissed, or led to conviction of a crime involving behavior that would adversely affect job performance, and the arrest occurred within the last ten years. Exempt from this rule are law enforcement agencies and state agencies, school districts, businesses and other organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons, developmentally disabled persons, or other vulnerable adults. See RCW 43.20A.710; 43.43.830 through 43.43.842; and RCW 72.23.035. In other words, asking just about arrests is unfair and illegal. You can look up the law of other states here. In California, you can't ask about an arrest until late in the process as part of an individualized investigation, and can't be an automatic "arrest? No job!" rule. In contrast, Arkansas has no prohibition against arrest as job disqualifier. | Is a firm required to arbitrate disputes arising after the expiration of employment contract? The wording of this question is problematic. From your description it is doubtful that the contract truly expired at the end of the first year. It is valid for a contract to encompass multiple phases with different provisions specific to each phase. Providing that "[a]fter the first year the employee may continue working for the company, until terminated, as an at will employee" is different from expiration of the contract at the end of the first year. The contract simply outlined what happens before and after that point in time. The employer's allegation that the contract expired at the end of the first year is inconsistent with outlining in that same contract the nature of the parties' continued relation after the first year. Said nature of the employment relation should have been outlined in a separate contract in order to preempt an interpretation of there being one same/ongoing contract. The employer's allegation is vague and untenable also in a scenario where the employer terminates the employee within the first year. The employer's allegation seemingly implies that the employee's deadline for arbitration proceedings expires at the end of the first year. That would give the employer the opportunity to evade the arbitration clause by choosing a timing that de facto prevents its employee from enforcing the clause. Questions regarding arbitration are unanswerable without knowing the exact terms of the relevant clause(s). Just like the contract provides a transition from fixed term employment to at will employment, it is possible --but not necessarily the case-- that the arbitration provision is applicable only to some of the phases that the contract encompasses. | There is and never has been a single “age of majority” The law treats people of different ages differently for a wide variety of reasons. Just a small sample of typical limits (jurisdictions vary): you must be 4 to go to school you must be 10 to be criminally responsible you must be 11 or 13 to get a job in the australian-capital-territory but there is no specific age limit in new-south-wales you must be 15 to attend an M-rated movie alone (your rating system may differ) you must be 16 to get a learner driver permit and 17 to get a provisional licence you must be 18 to attend an R-rated movie at all you must be 14-17 years old to have sex depending on the age and relationship with your partner. you must be 16 to 21 to buy and consume alcohol (jurisdictions vary a lot on this) you must be 18 to marry without the consent of the court but can be as young as 16 with that consent you must be 18 to legally take and post sexually explicit pictures of yourself you must be 18 to get a tattoo you must be 18 to join the defence force you must be 18 to vote you must be 35 to stand for President of the united-states So tell me, when is the age of majority. There isn’t one - there is simply a long period where an individual is granted progressively more control and responsibility over their life. Now, as to why some things happen at particular ages, that’s a political question, not a legal one. | 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. | Yes Businesses (and consumers) can choose who to do business with and what information they ask for and disclose and when they do that. If you’re uncomfortable with how they do business, don’t deal with them. If they don’t like how you do business, they are free not to deal with you. This is called discrimination. However, it is not unlawful because only discrimination against a person due to membership of a protected classes is unlawful. This person “won’t answer my questions” is not discrimination based on a protected class (unless they are a monk who has taken a vow of silence). | The comments have basically covered this, but: It's a slightly weird parallel structure ("who shall not be at least 25, and been a citizen for 7 years, and who shall not be a resident"). The Constitution is not written in fluid 21st-century English. But the obviously correct way to parse the sentence is that no one can be a representative who isn't a 25-year-old or older who's been a citizen for at least 7 years; furthermore, no one can be a representative who wasn't a resident of the state they represent when they were elected. With some parts of the Constitution (like the Second Amendment), the drafting results in actual disputes about the intended meaning. With other parts (like here), only one reading makes any sense. It's the same with the requirements to be President. The Constitution says "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President," which could be read as "you're not eligible unless, when the Constitution was adopted, you were either a citizen of the US or a natural-born citizen." But that's a silly reading, so "at the time of the Adoption" is read as only applying to "a Citizen of the United States:" natural-born citizens are eligible period, and people who were born before the US was a thing but were citizens by the time the Constitution was adopted were grandfathered in. | No First, there does not appear to be unlawful discrimination: there is nothing to suggest that you are a member of a protected class and were terminated because of that. Second, you were given no reason for your dismissal so your employer is not claiming you were terminated for just cause. So, in BC, an employer "can end an employee's job by giving written working notice or pay" and this is perfectly legal. For someone who worked for "about 6 months", the notice/pay period is 1 week. So either they must give you 1 weeks work or pay you 1 weeks wages. |
Can a Muslim widow claim from her late father-in-law's estate when her husband dies before him? Does a Muslim widow (with one daughter) have a valid claim to her husband’s father's property (30 acres of agricultural land in India) in cases where her husband dies first, then her father-in-law dies? The property was in her father-in-law's name (there is no wasiyat and will) but following his death it is now registered to his two surviving sons (ie her husband's brothers) who have told her that "you and your daughter will not get any property according to Islamic law in India" and "the Islamic scholars told you and your daughter have no rights to claims the property." On what basis can they say this is according to Islamic law? The widow is 84 years old and has spent her life in this family until now. Should the widow and her daughter seek legal advice? | I think it is not possible to answer the question as is, but this document from the Indian courts lays out the relevant legal variables. A major split is between Sharers and Residuaries: a Sharers are all related by blood. A secondary split relates to testate vs. intestate succession (was there a will?). There are also special rules for West Bengal, Chennai and Bombay. A widow is generally entitled to a share of her husband's property, but if the husband dies before his father, the husband does not have his father's property. But then, if a Muslim marries under the Special Marriage Act, 1954, they are not treated legally as Muslim for purposes of inheritance. All told, it is most likely that the widow has no legal claim on the property, but still a person should engage an attorney who can assess the particulars of the case. | Is there default caste of child born out of inter-caste marriage? Short answer The child normally takes the father's caste, but it may be contested if it can be shown that the child is brought up by the mother. Long answer The case law has been evolving in recent years, the latest findings by the Supreme Court of India can be found at Rameshbhai Dabhai Naika vs State Of Gujarat & Ors on 18 January, 2012 [T]he legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an inter- caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. | 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. | Is this realistic? Yes. The dramatic performance plays out in the same way that it would in the U.S. Court system. The actual killing of the wife would be 'legal', so can he be charged for murder for something that has been done legally, only because they can prove is intent to kill her before that? Especially since he has already been acquitted of that fact. Mostly, this is an issue of causation and not double jeopardy. From a double jeopardy perspective, the crime of murder is not complete until the person dies, and they have not be tried for murder, so this is a different crime that had not occurred until after the attempted murder trial was over. Causation Issues Even if the immediate cause of the wife's death is withdrawal of life support, the shooting could still be a legally sufficient cause of the wife's death. For example, suppose that you shoot someone and the hospital can't give the victim a blood transfusion because the victim has blood type O- (universal donor) which can only receive blood from other people with blood type O-, and the hospital, due to negligence on the part of a hospital administrator, has run out out of type O- blood. The fact that the victim would not have died if the hospital has not negligently failed to have type O- blood on hand does not provide a defense to murder on the part of the person who shot her. While terminating life support is "legal" it also constitutes a non-judicial finding with legal effect on the part of the person authorizing it and the physicians signing off on the decision, the further medical care would have been futile and that the person whose life support was terminated was already dead in key material respects, even though they would not be dead for purposes of a murder charge until life support is terminated. When death is a natural and foreseeable result of action that causes physical harm, the death is caused by the act that causes the physical harm. Something else that causes death would have to be a "superseding cause" and not just an additional cause of death. Thus, the fact that life support was terminated legally does not mean that she cannot be a murder victim. Indeed, many murder victims are people who are on life support for some period of time and then have that life support terminated because it is futile to continue medical care and the person is already "brain dead" or something equivalent to that. Collateral Estoppel Issues Double jeopardy does carry with it a related concept of "collateral estoppel" which provides that facts necessarily decided in one criminal case cannot be decided differently in a subsequent, related criminal case in some circumstances. But, collateral estoppel applies only when the facts in the prior criminal case were necessarily decided on the merits in the prior criminal case. Acquittal of criminal charged does not necessarily include a determination that someone was innocent of the charges. The fact that he was acquitted of attempted murder does not mean that the jury found that he didn't attempt or intend to murder her. In particular, a dismissal of criminal charges as a result of a technicality that excluded evidence related to an element of the crime for which there was an acquittal, is not a determination on the merits that a particular element of a crime was actually absent, so it would not be binding in the subsequent criminal case for murder. An acquittal does not mean that every element of the prior criminal charges was found not to be present. Collateral estoppel arising from the double jeopardy right, in contrast, might be a ground for dismissal of the murder case, if the man's primary (and perhaps only) defense to the attempted murder case had been that he had established the affirmative defense that someone else committed the murder, or that he had an alibi that made it impossible for him to have committed the murder. Then, the jury would have found on the merits that this defense, equally applicable to the murder case, had already been established. | Whether or not the estate has an obligation to pay the mortgage is really dependent on the terms of the estate plan and the solvency of the estate. The fact that someone is on the deed to a property (whether a deed of gift or a transfer on death instrument) that automatically passes upon death of the original owner to a relative has little or nothing, really, to do with the estate plan. While it may have been part of the person's ultimate plan for the disposal of their assets in life and at death, that is different than being part of the actual estate plan, which deals with the disposition of assets upon death, setting out the wishes of the deceased as it pertains to all property. There are lots of people who end up in this position, even though the original person on the deed did not intend to purchase or leave the other any property. It happens a lot when say a child does not have adequate credit to secure a mortgage to buy a home, but has the money to pay a mortgage. So, in that scenario usually a parent or grandparent will put the mortgage in their name (the other will live there and pay the mortgage) and then in the event the "helper" dies, they have it pass to the other at death, either thru a "TOD" or a "joint tenancy", so that in the event they die intestate, or if the will is challenged, there will be no question who owns the house...the equity in it, anyway. It (the instrument) is its own separate entity, not subject to the will except to the extent the deceased makes it subject (I'm getting to that part). Like a life insurance policy, that pays on death but is not subject to any terms of the will, it can stand alone since deed is its own instrument, separate from any wills or trusts. Under federal law, the mortgage must be allowed to remain in effect without changes when it passes from one person to another because of a death. This negates any due-on-sale clause in the mortgage. Who pays for the remainder of what is owed, however, generally depends on the deceased's will. The will might stipulate, for example, that the heir receive the home, free and clear, with the estate to pay all monies due. In this case, the executor will either use liquid assets, or sell other non-liquid assets in the estate to pay off the mortgage. Other times, it will say that the heir get the equity, plus X amount of dollars, which the heir can put toward the home's mortgage or not. If the will is silent on the issue, it is the responsibility of the heir/person to whom the property transfers (they needn't even be an heir) to pay the mortgage upon its normal term due, or sell the property to satisfy the debt. In the event the property is worth less than the remaining mortgage, the bank will usually take the house in "deed in lieu of foreclosure" rather than seek overage from the estate. | In 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. | I am not a lawyer, I am not your lawyer, I am unfamiliar with the jurisdiction I demand you give me your hat! You're not going to, are you? The point of that is that you are not obliged to do anything just because someone demands that you do. Now, if I had a court order that required you to give me your hat ... It appears that there is some confusion over who owns some land in Nebraska. This is a problem; it is not your problem. From my understanding which is entirely based on this: A warranty deed is a type of deed where the grantor (seller) guarantees that he or she holds clear title to a piece of real estate and has a right to sell it to the grantee (buyer). you would be extremely unwise to sign such a deed since it is in no way clear that you (or anyone) does have clear title. Now I take it that you are not interested in owning land in Nebraska and even less interested in getting into a legal battle over it. If that is the case then I suggest that you consult a local lawyer and ask for his advice on the following plan of action: You and your wife will renounce any claim that you may have if: You do not guarantee that you have any claim or title, The person to whom you are making this grant indemnifies you against any legal action that may result, They will prepare the documents, Your lawyer will review them, They will reimburse you for your lawyer's fees. Come back and tell us how this works out. Edit to address subsequent questions Can you be responsible for costs? Well, anything is possible but it would be extremely unlikely. If there was any wrongdoing it was many years ago by someone else! If you approach this in a reasonable way and attempt to assist in reaching a resolution (so long as it doesn't cost you time or money) then it is highly unlikely a court would award costs against you. What about background checks? This would be a civil case. It would not appear in your criminal history. While it is a matter of public record all it really means is that you and someone else had a dispute that required a court to settle; happens all the time. | The co-tenants in any real property are entitled to possess and enjoy the entire property, "unless otherwise". The conveyance might say otherwise (it's on the deed), and it is most likely that you are equal co-owners. You and your brother could take exclusive possession of the property for some period of time, meaning that you can legally exclude your sister from the property during that time – if you all agree to that (I assume you didn't, maybe you did). In that case, your right to possess the property could be contingent on the prior agreement to pay rent (again, I assume there is no such agreement). Your sister also has the same right live in the house without paying rent. She cannot throw you out of your own house if you don't pay rent. The primary question is whether from a legal perspective, you and your brother have exclusive possession of the property, under the laws of your jurisdiction, so in a few jurisdictions you might have to pay rent. That's not the same as "living there". |
Is it illegal to parachute from a paraglider in the UK? Question 1: Is it illegal to parachute from a paraglider in the UK? The jumper and pilot would know and understand what they are doing. Jump would (ideally) take place over an unpopulated body of water. There would be a briefed person on the ground to react in case of an accident. Equipment would involve BASE parachute and an unpowered tandem paraglider. I am aware that 'normally' skydiving takes place in designated areas, with all manner of controls and regulations. This activity would take place outside of these controls, regulations, British Parachute Association etc. Question 2: If this is illegal, is there a way that it could be made legal - as a 'stunt' or similar...? | Is it illegal to parachute from a paraglider in the UK? ... This activity would take place outside of ... regulations... YES See Article 90(1) of the Air Navigation Order 2016: Subject to paragraphs (9), (10) and (11), a person must not drop, be dropped or be permitted to drop to the surface or jump from an aircraft flying over the United Kingdom except under and in accordance with the terms of either a police air operator's certificate or a parachuting permission granted by the CAA under this article. The penalty, found via Schedule 13, is at Article 265(6): Any person who contravenes any provision specified in Part 2 of Schedule 13 is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale. "Aircraft" is not expressly defined within the Order or in its parent - the Civil Aviation Act 1982 - but an unpowered paraglider is (in my opinion) insinuated by paragraph 3(b): An aircraft is deemed to be in flight — ... (b) in the case of a pilotless flying machine, or a glider, from the moment when it first moves for the purpose of taking off, until the moment when it next comes to rest after landing ... But it would ultimately be a decision for the court to make whether it is an aircraft or not. | Is it illegal to display a flag in front of a store? Maybe - not because it's a flag but because it could be an unlawful obstruction of the highway (which includes the pavement) contrary to section 137(1) of the Highways Act 1980: If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale. (i.e. £1,000) Many shops fall foul of this if they don't have a licence, especially with 'A' boards and goods displayed for sale. | In the US, obscenities, insults, racial slurs and so on are legal, owing to the First Amendment. An actual, believable threat to maim you would not be legal, under Cal. Penal 422, but "I oughta punch you" would not be a criminal threat. Some forms of aggressive driving constitute reckless driving, if they are driving "in willful or wanton disregard for the safety of persons or property". It is also against the law to follow too close (you must follow reasonably and prudently). Exceeding the speed limit is a violation of Veh. Code 22352, even if it's to pass a guy on a bike. Of course, we can't tell if you are obeying the law, but even if you were doing something illegal in your biking such as blowing away a stop sign, "the other guy was bad" is not a defense against a citation for illegal driving. | First of all, to clarify some numbering, HR 4635 (107th Congress) was not actually passed. The language was passed as part of HR 5005, becoming Public Law 107-296, and this provision now appears at 49 USC 44921. The exact text of this provision is: A Federal flight deck officer shall not be liable for damages in any action brought in a Federal or State court arising out of the acts or omissions of the officer in defending the flight deck of an aircraft against acts of criminal violence or air piracy unless the officer is guilty of gross negligence or willful misconduct. The language makes it clear that this is only referring to civil liability. So, if the officer is defending the flight deck, and they are sued for damages resulting from their actions, the plaintiff will not win (assuming the law is correctly applied). But this law says nothing about whether or not they can be prosecuted for a crime. In any case, the officer in your example does not appear to have been defending the flight deck, so this law wouldn't apply at all. In your example, the officer's defense against a murder charge would probably be based on defense of others. There is a discussion on Justia. It seems that a key question would be whether shooting the unruly passenger was proportional - was there a reasonable fear that the passenger was actually going to kill someone? | You can basically take pictures of anything from your property if it is "public" (i.e. easily visible from your property). People on the road are in public, and have no reasonable expectation of privacy. The basic restrictions on photography are (1) you cannot trespass (you aren't), and (2) you cannot take pictures of certain government operations (e.g. airport border crossing – certain aspects of government prohibition may require lawsuit to rein in government policy that is at odds with the 1st Amendment; also secret military installations, for which there is specific law, 18 USC 795). Commercial exploitation of people who you photograph is strongly protected in California, and that is it. | I do not know the particular legal environment in France, but in general the shop is private property and the owner decides who may enter and who may not. You have no right as such to enter somebody else's property against their will. Doing so would at least be classified as trespassing, possibly more serious considering you mention using force to enter the premise. | ORS 166.220 suggests this would be illegal - specifically its "unlawful use of a weapon" if a person (emphasis mine): Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge. So what's "within range"? With a homemade bow of unknown construction, draw weight, and unknown arrows I'd say it's pretty much going to be something you find out when an arrow goes that far. I wouldn't expect it to match the range of high-end bows and arrows (I've seen 40lb recurves cover ~250 yards) but 100 yards plus doesn't sound ridiculous - more if it's got some elevation to it. The point is you really don't want to find out the hard way when a shot goes astray giving your neighbours the old King Harold treatment. | 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 |
NYS Tied House Law, explained Upstate NY (USA) here. Reading the NYS State Liquor Authority's Brewery Quick Reference Guide and trying to understand the Tied House Law passage on page 1: "Tied House...Additionally, the 'tied house law' prohibits any person who holds a direct or indirect interest in any retail establishment selling alcoholic beverages (whether in New York State, another state, or abroad) from holding a brewer’s license (or any other manufacturing or wholesaling license) in New York State." Does this actually mean what I think it means? That if I am even part-owner of a NYS restaurant that serves alcoholic beverages, that I would be denied a Brewer's License? If not, then what is the correct interpretation of that passage? And if I'm correct, then what would be the motivation behind such a stipulation? For instance, what if I wanted to own a "brewpub" where I would not only make and sell beer, but also make and sell food as well? If I'm reading this right, it almost sounds like that's an impossible setup, even though (of course) its not... | The law is here (too long to quote, or understand). There is a proposed modification of the law which may be enacted. In the section Justification, it is noted that under the existing law a global corporation may technically "own" five subsidiary corporations. Company A may own a winery in France while Company D may own a hotel containing a restaurant in New York. Under New York Law, the liquor license for the restaurant would be prohibited - and it could be subject to financial penalties. So the restrictions are broader that you mention (ownership of stock is an "interest"), but certainly what you mention is prohibited. The proposed law limits the effect to an interest in a restaurant or brewery "licensed under this chapter", i.e. in the state of New York (currently, a NY manufacturer cannot have an interest in an alcohol-selling restaurant anywhere). | What does it accomplish? It guarantees that all corporations doing business in New York can be served. (A company's having an agent for the service of process does not prohibit people from serving the corporation directly. The secretary may be "the agent upon which process may be served" but is not "the sole agent upon which process must be served." And besides, process need not be served on an agent; it can be served on the company itself, at its office or on one of its officers.) With this requirement, New York makes it impossible for a company to avoid service of process by closing or moving its offices, by sending its officers and employees out of state, or by making itself unavailable by any means. No matter what steps a company might take to avoid service of process, the process server can always resort to serving the company's agent: the Secretary of State. | First of all, anyone can sue for more or less anything, with a good case or without. We have no possible way to predict who will sue or for what. What we might be able to predict is whether in certain circumstances a suit has plausible legal merit, and if someone filed such a suit, there would be a reasonable chance of winning it. Even that often depends on detailed facts which cannot be discussed or addressed here. Trademark protection is limited in several ways. First of all, trademark protection is limited by country. Each country has a different set of trademark laws, and a different mechanism for registering trademarks or determining which marks are protected, although there are many similarities. If a mark is protected in the US, that does not give grounds for suit in Canada, although if Canadian products or services are sold into the US, there could be a suit there. Secondly, trademarks are protected for specific industries or kinds of products/services. for example, "Bass Ale" is a well-known trademark for a beverage. But that does not mean that "Bass Media" used to identify a media company, would infringe that mark, because a drink and a media company are very different things, and one would not be likely to be confused with the other. Thirdly, some marks are "descriptive" while others are "distinctive" or "original". For example, "Tasty burgers" is descriptive. It describes the product (or claims to, at least). "Quadzos Burgers" is original. It is a coined word that has no meaning except to name this product. Original marks get significantly stronger protection than descriptive marks. Fourthly, Trademarks only protect against uses in trade, or in commerce. If you are not selling anything, or doing business using a mark, you are probably not infringing that mark's protection. Finally, and most important, the key question is whether a reasonable person in the market would be confused into thinking that the alleged infringer is the same as the maker of the goods or services named by the mark, or is endorsed or approved by that maker. Trademark protection is supposed to prevent one person or firm from benefiting by the reputation and good will of a product or firm with which they have no connection, from, in effect, falsely advertising "I am the same as those guys". If no reasonable person will be confused, then there is probably no infringement. If reasonable people might well be confused, there might well be infringement. | Section 381.00316 is unconstitutional because it is an unjustifiable content-based restriction on speech, in violation of the First Amendment. The law is unconstitutional because private businesses and their owners have a First Amendment right to demand that their customers engage in speech as a condition of doing business. If you've watched Showtime at the Apollo or America's Got Talent, you understand the concept that a business owner can make decisions -- objectively or subjectively -- about what kinds of speech they want to host. If you want to make it through your performance, it's incumbent on you to satisfy the predilections of the business owner. And this doesn't just apply to TV. If you went to a poetry slam at your local coffee shop, the owners could boot you if talked through the performances, making it difficult for other customers to enjoy the show. Likewise, they could boot you if you went to the mic and started spouting racist nonsense, or if you just stood at the mic and said nothing at all. In the Florida case, Norwegian is doing the same thing -- just not for artistic reasons. Beyond requiring customers to pay for a ticket, it is requiring its customers to communicate the message that they are vaccinated, and they are requiring them to communicate using written documentation. In other words, Norwegian is demanding that customers engage in speech ("I am vaccinated") in a certain way (written proof of vaccination), and that kind of exchange falls within the protections of the First Amendment. That speech is subject to regulation because of its vaccination-related content of that speech, making Section 381.00316 a content-based restriction on speech, which subjects it to strict scrutiny, meaning that the state cannot enforce the law unless it furthers a compelling governmental interest and is narrowly tailored to advance that interest. The state argued that the law furthered compelling governmental interests in protecting medical privacy and preventing discrimination, but the court wasn't buying it: Here, Defendant has presented no evidence to demonstrate that his asserted interests are in response to real problems that Florida residents are actually facing. There is no evidentiary support to show that residents have experienced intrusions on their medical privacy or discrimination because some businesses, including cruise lines, have required COVID-19 vaccination documentation. The legislative record cited by Defendant is bereft of any facts or data underpinning the Statute’s purported purpose. In light of the absence of any appropriate data, reports, or even anecdotal evidence on this issue, the Court cannot conclude that Defendant’s articulated interests are based on a problem that exists in fact. And even if these were compelling interests, the state failed to prove that the law was actually advancing them. Because the law outlawed the exchange of written communication rather than outlawing the vaccination requirements themselves, businesses remained free to demand information about vaccination status (through oral statements, for instance), and to discriminate against who they knew or believed to be unvaccinated. (N.B.: For procedural reasons, they court actually applied intermediate scrutiny, but the law ends up invalid for basically the same reasons.) Section 381.00316 is unconstitutional because it substantially burdens interstate commerce in violation of the Dormant Commerce Clause. The law was also struck down because it intrudes on the federal government's authority to regulate interstate (and international) commerce. When a law is challenged under the Dormant Commerce Clause, courts ask two questions: (1) Does the state law favor in-state economic interests; and (2) Does the state law's burden on interstate commerce outweigh the legitimate local benefits to the state? A "yes" answer to either will invalidate the law. Here, the court held that the law did not directly favor in-state economic interests, but that the burdens on commerce outweighed the local benefits. Because the law did not meaningfully advance any of the local interests it had invoked (as discussed above), but it did impose a substantial burden on interstate commerce because Norwegian's ships travel to additional ports where proof of vaccination is required: Section 381.00316 will prevent NCLH and other cruise lines from possessing verified information necessary to effectively and efficiently process landing and disembarking at various, preferred domestic and international ports where documentary proof of vaccination is required. This affects not only opportunities for vacation activities like sightseeing, but also responses to mechanical and medical emergencies, or even geopolitical crises. Depriving cruise lines of corroboration of passengers’ vaccination status impedes their ability to prepare and address these eventualities. Either the First Amendment violation or the Commerce Clause violation would have been independently enough to invalidate the statute. Norwegian also argued that the statute was preempted by the CDC's Conditional Sailing Order and related orders, but the court declined to address that argument. | In most states, the answer would be less clear, as First Amendment protections begin falling away quickly when you enter private property. In California, though, there is some strong precedent indicating that this behavior would be protected. In Robins v. Pruneyard Shopping Center, 23 Cal. 3d 902 (1979), the California Supreme Court held that "the soliciting at a shopping center of signatures for a petition to the government is an activity protected by the California Constitution." That case adopted the reasoning of a dissent in a previous case where the court had rejected such an argument: It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations ... would not markedly dilute defendant's property rights. I'd bet there is case law addressing religious leafleting, as well, but I don't know California law well enough to cite to it. Even if there isn't, though, the First Amendment's requirements of content-neutrality in government decisionmaking would probably require that the same protections be extended to religious speech. Of course, the answer to these kinds of questions always depends on the specific facts, requiring you to engage a lawyer to get a reliable answer. For a lower cost, you could also just ask the local police if they would enforce a request from the property owner to have you removed. | The felon-possession law is Utah Code Ann. §76-10-503, which distinguishes Category I restricted person and Category II restricted person, a complex definitions that distinguish felons in general and violent felons, as defined at Utah Code Ann. § 76-3-203.5. In the case stricter case, the law says: (2) A Category I restricted person who intentionally or knowingly agrees, consents, offers, or arranges to purchase, transfer, possess, use, or have under the person's custody or control, or who intentionally or knowingly purchases, transfers, possesses, uses, or has under the person's custody or control: (a) any firearm is guilty of a second degree felony; or (b) any dangerous weapon other than a firearm is guilty of a third degree felony. and in the less strict case: (3) A Category II restricted person who intentionally or knowingly purchases, transfers, possesses, uses, or has under the person's custody or control: (a) any firearm is guilty of a third degree felony; or (b) any dangerous weapon other than a firearm is guilty of a class A misdemeanor. The law does not impose any restrictions unrestricted people. A "dangerous weapon" is defined in 76-10-501(6)(a) as "a firearm; or an object that in the manner of its use or intended use is capable of causing death or serious bodily injury". They add a bit of subjectivity to their definition of "dangerous weapon" (i.e. "we'll decide after the fact if the thing is a dangerous weapon"), because: (b) The following factors are used in determining whether any object, other than a firearm, is a dangerous weapon: (i) the location and circumstances in which the object was used or possessed; (ii) the primary purpose for which the object was made; (iii) the character of the wound, if any, produced by the object's unlawful use; (iv) the manner in which the object was unlawfully used; (v) whether the manner in which the object is used or possessed constitutes a potential imminent threat to public safety; and (vi) the lawful purposes for which the object may be used. The felon could not have a stun gun with the intent to use it as a dangerous weapon, but it is not prohibited for a felon to have one to use on for legal purposes. There are contexts where stun guns are held to be dangerous weapons (United States v. Wallace, 800 F.2d 1509. Some states define stun guns as dangerous weapons, but that is not the case in Utah. It is also illegal for an unrestricted person to "sell, transfer, or otherwise dispose of any firearm or dangerous weapon to any person, knowing that the recipient is" a restricted person, and in cases of flagrant negligence the court might find that allowing such a person access to a dangerous weapon constituted "transferring" the weapon. | I've been wondering if it is possible to hire / create a company with someone who would open a restaurant in my place and manage it according to my guidelines. Yes, of course. You can do it just like you described: Create a company, hire employees, (let them) open the restaurant. You, as the owner of the company, could set up whatever guidelines you have in mind, and your employees would be bound by them (limited only by general laws, such as on health and safety). Some caveats, however: You will need money to set this up - for buying / renting space for the restaurant, for paying your employees, obtaining supplies, initial marketing etc. It may take a while until the restaurant earns money (if ever), and you'll need money in the mean time. Someone will need to manage, that is make decisions. You can do that yourself, but then you will work for the restaurant (which you write you do not want to do). Or you can hire someone to do it for you, but that will cost more (in salary), plus you will have to find someone you can trust. That's a tradeoff for you to make. I guess it'd be like an intellectual property. That depends, but usually there will be little in terms of intellectual property. If you have a unique idea for the restaurant, you could patent it, but there are many restrictions on what you can protect, and ways around it, plus this also costs money (a lot if you need a lawyer's advice). Apart from that, you can register a trademark for the restaurant, but that only protects the name / logo, not any ideas. Finally, some of your ideas might be considered trade secrets, but again the protection is limited. In general, there is no blanket "idea protection". If you have a good idea for a restaurant, in most cases other restaurants will be able to copy them, possibly with slight changes - take that into account. | First, to be clear, this is almost never a state level limitation. To the extent that the link in the question implies otherwise, it is incorrect. Instead, local governments, typically a municipality or in an area that is not part of any municipality, a county, enacts land use regulations, the most common of which is usually called a "zoning code." There are also usually locally adopted building codes that supplement the zoning code. A zoning code typically establishes rules regarding how different kinds of real estate can be used in different enumerated zones. Usually, there are several different zones in which residential uses are allowed and different rules apply in each one. One of the typical limitations in a residential zone is to establish the number of unrelated people who don't own the home who may live there. The purpose of such limitations is to discourage the establishment of boarding houses, group homes, women's shelters, homeless shelters, flop houses, and halfway houses in relatively low density residential zones, on the theory that these uses are undesirable in terms of neighborhood character and cause undesirable people to move into a neighborhood that lowers property values for other people who live there. More crassly, people in affluent neighborhoods want to ban property uses that make it possible for poorer people to live near them. Often the actual scope of the limitations, however, is far broader than is necessary to prohibit these particularly unpopular "NIMBY" (not in my backyard) uses. The drafters of zoning codes are frequently more concerned about preventing loopholes in their restrictions from being identified than about limiting property rights in a respect that most current property owners in the zone don't avail themselves of anyway. For example, in Denver, where I live, the City Council recently passed a Group Living Amendment to its zoning code easing restrictions on uses of residences by unrelated people. This measure was sufficiently controversial that members of the public used their referral powers to petition to have the repeal of the recently enacted legislation places on the November 2021 general election ballot for voters to consider repealing it. As the link in the question notes, homeowner's associations, frequently also impose limitations on this kind of use of a residence, which are often even more strict, and are frequently adopted for the same reason. HOAs have more authority to do so than local governments because as private entities, they aren't required to meet constitutional law limitations on their authority. The question is, if both parties agree to forgo any safety measures that it might be there to protect, who exactly is it hurting if one person pays the other to stay over? In simple terms: why is it illegal? Why does the government care who stays in who's house, while paying money? Is there some 3rd party that is negatively affected if the guidelines aren't followed? The third-party is the neighboring property owners who fear that the quality of their neighborhood will be reduced by this kind of agreement. I am sympathetic to these criticisms. But, they aren't barriers to enacting laws if people with the power to enact legislation disagree. The simple rule is that in the real world, legislation is not required to adhere to a liberal/libertarian ideal in which laws are enacted only to regulate matters in which someone else may arguably be harmed. Subject to light constitutional regulation, the authority of local government's to enact legislation regulating the use of property is frequently plenary (i.e. unlimited) or close to it. The government can do anything it wants that it isn't forbidden from doing by the constitution or a higher level government's statutes. Courts aren't permitted to second guess the accuracy or desirability of these legislative determinations in most cases. Many states, furthermore, have "home rule cities" that are expressly protected from having their legislative authority limited in many respects by state legislation. A regulatory taking, the prevents property from having any beneficial use, must be compensated by the government enacting the regulation of its use. But regulatory laws may reduce the value of property by limiting the uses to which it can be put so long as there is still some beneficial use of the property that remains available. A very light and disputed impact that is perceived to be negative, such as the one in this case, is a sufficient rational basis for a municipal or local government to enact such legislation, and many local government zoning codes do, in fact, regulate this kind of activity. The U.S. Supreme Court upheld the authority of local governments to enact this kind of legislation in the United States in the face of a constitutional challenge to it, in the case of Village of Euclid, Ohio v. Ambler Realty Co. in 1926, although some more extreme versions of limitations on non-related people sharing a home have subsequently been held to be invalid, mostly as a result of later enacted federal fair housing laws. |
Mail sent to my address for someone who doesn't live there and I don't do any work for free I don't work for free. I don't write on envelopes, call the post office, or do anything that I don't personally want to do unless I am getting paid to do it. I keep getting mail in my mailbox that isn't for me or anyone residing at my address. I don't want this mail, and as far as the effort I have remaining it is writing this post and reading the answers, as well as immediately dropping all my mail (that includes mail for me) into the garbage bin above which I occasionally pull some random items to keep and open. I know I am not required to work for free and write on other people's mail that ends up in my mailbox. I am a free person and not required to do servile labor without compensation. There appears to be a contradiction to my lack of enslavement or indentured servitude with a concept that someone can put mail in my mailbox and then expect me to work for someone else if that mail isn't for me. How does this actually work? If my intent is not to do unpaid labor, and a natural consequence of this is that other people's mail to my address ends up in the trash bin how is this a crime? My intent is for the mail to disappear and take care of itself, what ends up happening is that it sadly descends into the trash bin and doesn't disappear. | There appears to be a contradiction to my lack of enslavement or indentured servitude with a concept that someone can put mail in my mailbox and then expect me to work for someone else if that mail isn't for me. The law can, and does, impose duties on a person that that person never chose to accept. For example, paying taxes. The prohibition on slavery does not mean that no requirements can be placed on a person. As another answer has said: in the US 18 USC 1702 makes it a crime to improperly handle mail, including to "secrete" or "destroy" such mail. This is a Federal felony, punishable by fine and up to 5 years imprisonment (and being required to work in prison is an exception to the prohibition on slavery). The Findlaw page "Is It Illegal to Shred Previous Tenants' Mail?" reads: Is It Illegal to Open or Shred a Previous Tenant's Mail? Yes. It is a federal crime to open or destroy mail that is not intended for you. The law provides that you can not "destroy, hide, open, or embezzle" mail that is not addressed to you. If you intentionally open or destroy someone else's mail, you are committing obstruction of correspondence, which is a felony. If you are found guilty of obstruction of correspondence, you could potentially face five years in prison and/or fines. What Should I Do If I Receive the Previous Tenant's Mail? It is common to receive previous tenants' mail, especially if previous tenants did not change their mailing address with the U.S. Postal Service. If this happens, you should write something like "return to sender," "wrong address," or "person does not reside here anymore" and put it back in the mailbox. The mail carrier will take care of it from there. The page "Did You Accidentally Commit a Felony? What to Do With Mail That Isn’t Yours" reads: There’s a reason that the federal government makes tampering with mail illegal. Most people receive a number of personal and confidential documents through the mail that can be used to steal their identity. In fact, seven people were arrested in Georgia for stealing mail and cashing the checks they found. In 2018, a postal worker received felony and misdemeanor charges for failing to deliver thousands of pieces of mail that he later dumped in a ravine. But for every person who intentionally mishandles mail and makes headlines, there are many more who accidentally break the law just by failing to properly forward the wrong address mail they receive. The page "How to Return Mail to Sender" from US Global mail reads: Step One: Write “Not At This Address” On The Envelope This does also work with parcels! You need to ensure that you write “Not at this address” on the packaging. You might be tempted to write “Return to sender” in this instance but this isn’t the proper wording here. Alongside this, there are some other considerations at this stage. You must ensure that any barcodes are defaced. Otherwise, you will find that the parcel or envelope will come back to your address. However, be careful to not cross the address. The mail carrier needs to understand that the person no longer lives there. If the problem persists (i.e. you keep getting mail addressed to the previous resident), you need to let your mail carrier know. Alternatively, you can contact your local Post Office. Either way, this should help stop the issue. Step Two: Give The Mail Item Back To Your Carrier If you are at home when your mail carrier delivers your items, you need to hand the envelope or parcel back to them. Make sure you explain that the addressee does not live at your address anymore. Of course, you need to write on it before you give it to the delivery person. If you are not at home when your mail carrier typically delivers, you can put the pieces back into your mailbox. Make sure you erect the red flag when you do so. This signifies that there is something for the mail carrier to collect the next time they do their rounds. I have been told by postal officials that these rules apply only to first class mail or higher (such as express mail) and does not apply to "standard" (bulk) or third class (junk) mail. None of the sources say that, however I have also been told by a postal employee tht mail addressed to 'occupant" or "our friends at {address}" has reached its destination if it gets to the right address, and may safely be discarded. Conclusion The actions described in the question are criminal in the US, although perhaps not very likely to be prosecuted. I think they would also be criminal in many other countries. They are also profoundly anti-social, as they deprive others of potentially important mail, possibly causing them serious inconvenience or even loss, to save a trivial effort. | Employees are only required to work in the sense that refusal to report can result in discipline (like reprimand or firing) and forfeit of whatever money you would have earned had you shown up. This is exactly the same way federal employees (or most employees, for that matter) are always required to work. The fact that they're not being paid on time has nothing to do with whether it's slavery. That's because pay has nothing to do with slavery. Slavery is forced labor and/or ownership of people, and civilian federal employees are just as free to quit as they normally are. Military personnel can't freely quit, but they can never freely quit. Nothing relevant has changed for either group. Not paying employees is potentially a violation of labor law, and the government in fact lost a lawsuit after the last shutdown for violating the FLSA. If that happens this time too, they'll have to pay damages. | 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. | Your rights notwithstanding, the government has the power to do such things under appropriate circumstances. First, you would have to be in violation of some ordinance, for instance in Columbus OH you are a violator if the grass is over 12". This should generate a notice informing you what the issue is and giving a deadline for remedy. If you don't comply by the deadline, they are then empowered to send out guys with tools, and the city will bill you for the work. You could call them and ask what the deal is. They might say "We put the notice on your gate", or "we mailed it to you". From a legal POV, the onus is on them to be sure that you're notified. It would be a good idea to verify that this isn't a scam. [Addendum] Bryan TX kindly provides a video about code enforcement, and gives a link where you can go directly to the section of interest (starting 0:43). Your description of the situation is at variance with what they say is the law (12"; 7 day advance notice whereafter they will correct the violation. They also say no notice is required for second violation within a year; $100 administration fee added to costs; lien will be placed on property if unpaid). I assume that your back yard is publicly visible: they recognize that "when the area observed is plainly visible, from a vantage point where the Code Officer has the right to be there, there is no reasonable expectation of privacy". That could include visible from a neighbor's property if the inspector has permission from the neighbor to be there. Otherwise, there's a simmering 4th Amendment problem (assuming that they didn't get a search warrant). | You may be interested in a recent New York Times article, "The Lonely Death of George Bell", which described in detail the case of a man who was found dead in his apartment (of natural causes). It took a long time for him to be positively identified, and no near relatives could be located. Affairs were handled by a city official called a "public administrator". Bell's valuable possessions were sold at public auction and the funds added to his estate. Items of no significant value were discarded (a junk removal business was hired to clean out his apartment; a few items were kept by the workers). They did eventually find his will, and at least some of his heirs, so his estate went to them. The public administrator had Bell cremated by a local crematorium, with the ashes stored permanently in their columbarium. The cost was paid out of Bell's estate. If he hadn't had any assets, or hadn't been positively identified, the article mentions that he would have been buried in a "potter's field" at the city's expense. | In general, "a signed piece of paper" is not "a contract". It may be a record of a contract, but the contract itself is the meeting of minds where an agreement is reached and doesn't depend on the existence of the piece of paper. (Depending on the jurisdiction, some sorts of contract are required to be in writing, but this doesn't usually apply to employment contracts; it's usually contracts involving land.) What is far more worrying to me is that you don't know how much they are going to pay you. That suggests there hasn't been a meeting of minds, and there is no contract. (It might be that "the going rate" is good enough to form a contract - to determine that would require advice from a local lawyer.) I suggest you don't write up a formal agreement, but nag your boss to decide how much they are actually going to pay you. | I think this shows a misunderstanding of the meaning of the GDPR. A data subject has the right to demand information, correction, deletion etc. about some of their data held by some institutions, depending on the legal basis for the data processing. One John Smith does not have the right to see the data of any other data subject named John Smith, and he cannot even demand to know if there are other John Smiths in the database. The data controller has to make reasonable steps to ensure that an individual who seeks account information is in fact the individual who is the data subject. In the case of an email, that's usually easy -- if John Smith can access the mail account [email protected], one can assume that he is the John Smith who opened the account. If not, then not. If the data controller has the birthplace and birthdate in their records, they can possibly match that against some government-issue identity document, too, but why would they have that data? | 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. |
USA: Is "I am not a lawyer" disclaimer generally necessary? Is it legally necessary to disclaim "I am not a lawyer" when engaging in casual conversation, writing Internet posts, etc. to avoid civil or criminal liability for one's comments? Specifically, in the absence of: claims to be a lawyer or implied claims (i.e. posing) accepting payment or other compensation for legal advice Is there any presumption under US law that casually giving advice to others on matters of law constitutes professional legal advice? If a hypothetical statement is needed, let's say you said this to your next-door neighbor, who has no particular reason to believe you are a lawyer: "Based on my own past experience, and my reading of this statute, you are free to ignore this letter you received in the mail, as not answering does not change your outlook." If your neighbor took this advice, and ended up in a bad position, and blamed you, are you in any way more liable under the law than if you had also said, "But I'm not a lawyer, so you should seek professional advice"? I'm neglecting the practical (psychological) reasons to make such disclaimers. Whether they have any real effect or not, giving them may preclude making trouble in people's minds. | What you are talking about here is the tort of negligent misstatement, a subset of the tort of negligence. First, there is no presumption in any jurisdiction that I am aware of that anyone is or is not a lawyer (or doctor, or engineer etc.). If people knew that you were, however, then it is reasonable that they would give your statements more weight then if they did not know. It may also be reasonable if they suspected you were. The practical purpose of such a disclaimer is to ensure that they know you aren't. For the specific facts you give, you would certainly be in a better position if you said: "But I'm not a lawyer, so you should seek professional advice"; not so much because you told them you weren't a lawyer but rather because this changes your advice to "seek professional advice". It's impossible to be wrong with that advice! The standard form in Australia is: "this advice is general in nature and not to be taken as personal professional advice". If the statement is limited to "I'm not a lawyer" or if your neighbour knew you were, for instance, a dog catcher with no professional qualifications, then you could still potentially be liable. Your neighbour would need to demonstrate: You had a duty of care; by giving advice you potentially do, however, a for negligent misstatement there must be a 'special relationship' [Hawkins V Clayton (1988) 164 CLR 539, MLC Assurance V Evatt]. You breached that duty; the advice given was "unreasonable". There was a factual cause in a "cause and effect" sense; 'but for' your advice there would have been no loss. There was a legal (proximate) cause; damage to the neighbour as a result of the advice must be foreseeable. Harm; the neighbour must suffer real loss. The main point of the disclaimers is on the 2nd point: what is "unreasonable" for a professional is different than for a "lay person". Oh, and by the way: this advice is general in nature and not to be taken as personal professional advice. | First, read the definitions of defamation and libel be sure you understand them: Defamation | Wex Legal Dictionary | Cornell. Yes, posting to Twitter and Reddit is publishing, and people can post provably false facts on those services and defame someone in a civil law sense. But Section 230 of the Communications Decency Act (Electronic Frontier Foundation) mostly protects those services from defamation claims based on statements made by users of such a service. (Things are different if the case is criminal as a result of clear threats of violence, terrorism, etc.) ...what are the steps for them to exact damages in a civil court case? Find a lawyer, convince him/her to take the case, and file suit. if you don't know the person's real name, your lawyer will have to sue "John Doe" and point that out in the suit (and subpoenas) with the alleged Twitter handle or Reddit user name. How would a person compel Twitter/Reddit/etc to disclose the ISP information on their account? Read the various legal aspects of each service, i.e. Twitter Legal FAQs and User Agreement - Reddit and others. Your lawyer can explain that you can only try to compel them to disclose the IP and the ISP used with a subpoena during your lawsuit. How would a person compel an ISP to disclose the subscriber information (address, name) on the IP address? Since most ISPs protect their customer data, you will probably have to subpoena the ISP during your lawsuit. But your ability to do this can depend on if the ISP is a private company or a government entity, such as a university. State laws may come into play. Is obtaining the ISP subscriber's information enough to bring a lawsuit against them? Would they able to argue they didn't post the messages and bear no liability, even if it originated from their network? If it originated from an open wifi hotspot, would the proprietor bear responsibility at this point? Yes, you can sue an individual with such information; but there's no guarantee you'd win. Sure, because they can claim anything, such as someone else was using their computer or IP. No, owners of hotspots are generally not liable, and they protect themselves with TOS you agree to when you use the hotspot. Can the extensive legal costs of pursuing the case to it's conclusion be added to the damages sought easily? Legal costs can possibly be added, depending on jurisdiction. But seeking damages and actually winning them through a jury verdict are completely different things. | Is it legal to publish a cease and desist letter that I have received? Generally speaking, yes. My interpretation of your post is that you published your opinion about a business or businessperson, and the businessperson now is trying to intimidate you or deter you from sharing with others your opinion. The phrase "the actionable statements listed are clearly statements of my opinion" is otherwise unclear. Under defamation law, only false statements of fact are actionable whereas statements of opinion are not. The businessperson is not entitled to your silence. If your criticism is about the business, the cease and desist letter sounds in unfair and misleading practices to the extent that the business is trying to conceal from the public some inconvenient information that you as actual or potential customer possess. Even if you published as a competitor, your statements would have to be untrue and misleading for these to constitute disparagement. See the Black's Law Dictionary definition of disparagement [of Goods]. For the reasons stated in the other answer, copyright issues are not a matter of concern. It is preferable to publish the letter as is. Transparency preempts confusion as to "I said, he said". By contrast, paraphrasing the letter for the purpose of avoiding an imaginary violation of copyright creates a risk of you inadvertently giving him grounds for a claim of defamation. | The question of whether a person was acting on their own behalf or that of a company would generally be a question of fact, so if such a case came to court it would be for both sides to present evidence and argue for their interpretation of it. In most cases the context makes it clear. You mention having a company email domain and associated email signature; that is certainly good practice and would go a long way towards creating a presumption that you were acting for a company. Also signing yourself with your job title or role (e.g. "Joe Bloggs, Chief Bottlewasher") makes it clear that you are speaking in your role as an employee. The content of the communication also matters; if you use your company email address to order goods from a supplier that the company has used before then the recipient can reasonably assume that you are ordering on behalf of the company and a court is likely to agree. OTOH if you use the company address to send libellous emails then the recipient would have a much higher bar to claim that this was the company view rather than a personal one. | It's a bit like talking to the police: anything you say might be used against you, so the conventional wisdom is to say nothing. It is a good rule of thumb. When you are paying a professional to represent you, why make things complicated by speaking on your own behalf about the same issue? As you point out, not everyone follows this rule. In some circumstances there might be benefits to discussing your case publicly, such as fundraising or deterrence. Whether the risk outweighs the benefits will depend on the details of the legal case and your role in it. Lawyers are likely to emphasise the following risks: If you are a witness whose credibility is in issue, any public statement could potentially become a prior inconsistent statement which is used against you in cross-examination. Again, one of the purposes of hiring a lawyer is to be careful about how you communicate your position on a litigious matter and reduce the risk of careless remarks having unexpected consequences. Speaking publicly undermines this goal. In Commonwealth countries, there is a significant risk that public comment on a case before the court could amount to sub judice contempt of court. Attempting to litigate the case in the media can be perceived as undermining the authority of the court. Lawyers are expected to uphold public confidence in the administration of justice and would be reluctant to condone anything that could be regarded as a contempt. This contributes to a culture where discussing active litigation is "not the done thing" and may itself cause problems with a witness's perceived credibility, aside from the risk of a contempt allegation. Speaking publicly about litigation is risky and the consequences are difficult to predict, which is why people often engage lawyers to do it. When the client continues to make their own statements without legal advice, it makes the lawyer's risk management job more difficult, so they are likely to advise against it. | While German law indeed requires providing correct contact information it does not require the recipient to answer queries. It is there so that you can submit legal notifications. In your case I wouldn't be so sure that the information is not correct. However, even if the contact information is incorrect, there is not much you can do about it. This is reserved to the following groups by § 8 Abs. 3 UWG: every competitor; associations with legal personality which exist for the promotion of commercial or of independent professional interests, so far as a considerable number of entrepreneurs belong thereto, and which distribute goods or services of the same or similar type on the same market, provided such associations are actually in a position, particularly in terms of their personnel, material and financial resources, to pursue the tasks, under their memoranda of association, of promoting commercial or independent professional interests, and so far as the contravention affects the interests of their members; qualified entities that prove that they are entered on the list of qualified entities pursuant to section 4 of the Injunctions Act or on the list of the Commission of the European Communities pursuant to Article 4 of Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumer interests (OJ Number L 166 page 51); Chambers of Industry and Commerce or Craft Chambers. Unless you are a competitor you are out of luck. The hoster or other providers can't do anything and don't need to, as they are not required to check legality of their user's websites. It doesn't really matter where you are by the way for these laws. | You have two downvoted answers here. One of them is actually correct, one is nonsense. Question: Which one? Answer: Doesn't matter. If you provide this service without getting advice from a competent lawyer first, your risk is much too high. Making the wrong decision (either giving up on a good business idea without reason, or providing a banking service without license) will cost you much much more than paying a lawyer for advice. | No A lawyer is considered an "officer of the court" in the sense that certain duties to the court are imposed on the lawyer. That does not give the lawyer authority as if the lawyer was part of the court staff, nor a law enforcement officer. A statement can be prosecuted as perjury only if it is made under oath (or affirmation) in court, or if it is made "under penalty of perjury". This is generally done by a statement in a document signed, something like "I declare under penalty of perjury that all statements in the above document are true to the best of my knowledge and belief." It can also be done verbally, with the person making the statement agreeing that it is true and that this is subject to perjury prosecution if it is false. The exact wording will vary, but it must be clear and explicit. Aside from that, false statements to a lawyer are not generally subject to prosecution for perjury, nor otherwise illegal. In some cases a lie in a business transaction may be fraud, which is actionable, and possibly criminal. But that will not have anything to do with whether the person lied to is or is not a lawyer. This Wikipedia article says: Perjury is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding. ... The rules for perjury also apply when a person has made a statement under penalty of perjury even if the person has not been sworn or affirmed as a witness before an appropriate official. An example is the US income tax return, which, by law, must be signed as true and correct under penalty of perjury The US Federal law on perjury, 18 U.S. Code § 1621 says: (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States. Title 9 of the Maryland code, section 9-101 says: (a) Prohibited.- A person may not willfully and falsely make an oath or affirmation as to a material fact: (1) if the false swearing is perjury at common law; (2) in an affidavit required by any state, federal, or local law; (3) in an affidavit made to induce a court or officer to pass an account or claim; (4) in an affidavit required by any state, federal, or local government or governmental official with legal authority to require the issuance of an affidavit; or (5) in an affidavit or affirmation made under the Maryland Rules. (b) Penalty.- A person who violates this section is guilty of the misdemeanor of perjury and on conviction is subject to imprisonment not exceeding 10 years. Nothing about statements made to a lawyer not under oath or affirmation, or under penalty of perjury. Other US state laws are similar. |
How to write a retroactive letter of representation? An attorney began representation of Mr. X some months ago, as assigned counsel, without a letter of representation. Such a letter is needed now in order to make a court-ordered restitution payment to a certain company (which requires a signed letter of representation). Should this letter be back-dated, or should it be written in the past tense, stating the date that representation began? Or should it be a regular letter, with the current date (I'm thinking that for the purposes of the restitution payment, maybe the only thing that matters is the fact that Mr. X is currently represented.) | Since Mr X has a lawyer, the lawyer should advise what form this letter should take to be most helpful to Mr X's interests. In the absence of such advice, I would suggest soemthing like My lawyer, Y, now represents me in connection with {matter} and has done so since {date}. Plus any additional content that the company wants to see. | There are basically two kinds of conduct that you identify. One is backing away from what you believe were oral promises made by the employer and lawyer regarding payment. Whatever the status of the promises made by the employer, the oral statements made by the lawyer would probably be viewed by a court or ethics board as settlement offers or proposals rather than actual binding agreements, and this is unlikely to be considered an ethical lapse. For purposes of ethics questions and fraud lawsuits, lies about what kind of deal you are willing to make with an adversary don't count as lies. This isn't a terribly logical rule, but is is a well established one. Given that: I was told (by employer), verbally and in text/email messages that I "would be paid when the deals closed." It is going to be very hard for the employer to take back those written statements and text and email messages are usually given the effect of signed writings in a court of law. This is going to be taken as a confession of the employer regarding the probably unwritten agreement of the parties regarding your right to be paid on these deals, so you would be well advised to stick to your guns on this issue. The percentages will be another point that is hard for the employer to fight if there is a course of dealings between the parties in which you receive a consistent percentage or there was a written agreement concerning your commission percentage. Also, even if the lawyer did make a promise and breached it, this would still only be a breach by the employer of a contract made on the employer's behalf by his lawyer. It is not an ethical lapse to breach a contract about future conduct, and a lawyer is not personally responsible for contracts he makes as a disclosed agent of your former employer. The second is making a false statement of fact about whom the lawyer has discussed the matter with. Lawyers do have an ethical duty to be truthful and failing to do so is an ethical lapse. But, this duty is generally interpreted to apply only to statements of fact which are material. If a lawyer lies to you about how old he is, or whether he's ever had an affair, in the context of a pre-litigation negotiation like this one, the ethical officials won't care. If a lawyer lies to you about something material to the transaction (e.g. claiming that the employer has money in the bank to pay a settlement when in fact it is overdrawn on all of its accounts and has no money coming in and the lawyer knows those facts), this is a serious ethical breach. It is hard to see how this information would be material, even though it casts doubt on his credibility. Ethically, he owes any duty of confidentiality to his client and not to you, so it isn't your complaint to make from a confidentiality point of view. Also, unless he discusses confidential advice that he provided to his client when no one else was present to you, he has not waived the attorney-client privilege, contrary to the answer by @IñakiViggers on that issue. Of course, proving that the lawyer said anything in an oral conversation at which no one else was present comes down to a credibility fight between your sworn statement and his if the lawyer testifies inaccurately about the discussion. A sworn statement from you is proof and would meet the "burden of production" to provide proof in support of your case at a trial, but wouldn't necessarily prevail easily at trial since the judge might not be convinced regarding who is accurate in their account of the discussion (I have avoided the word "lying" because there are a variety of reasons that people inaccurately recall discussions). What would be the sensible way to use this information to my advantage while trying to resolve these matters with having to bring suit and go to court? Is there anything that this lawyer should fear, if his unethical behavior was brought to light, either in court or to a bar association? The conduct you describe on the part of the lawyer will provide you with little or no leverage in your negotiations and is likely to not even be considered admissible evidence in court since it may be considered a form of settlement negotiations. Your strongest leverage will be the written statements from the employer. But, depending upon the amount in dispute, it may still make sense to compromise given the time and expense and uncertainty of going to court. Even in the clearest case, you probably only have a 90% chance of winning a contested case, and you wouldn't cross the street if you knew you had a 10% chance of being hit by a car as you crossed, even if you knew that the collision wouldn't be fatal. Unless your state has a wage claims act that covers you, you may have little or not prospect of an attorneys' fee award if you prevail, and representing yourself when the employer has a lawyer will always put you at a disadvantage in a court setting. If the amount in dispute is great (e.g. $50,000+), hiring a lawyer is probably worth it. If the amount in dispute is small (e.g. $5,000) you may want to file a suit in small claims court and only hire a lawyer for a couple hours of pre-hearing coaching. | A settlement is fundamentally a contract where parties A and B promise to do certain things (one of them being "stop litigating"). A court order is an enforceable order to do something. A contract cannot be directly enforced (where force is used to make a person comply), it requires a court order for actual enforcement. The conditions of a contract might be enforceable, but you can't get the sheriff to come out based just on a contract. It appears that you got to the "facilitation" phase where the parties talk about the issue and the CRT case manager talks to the parties in neutral terms, aiming for an agreement. If you don't reach an agreement, the Tribunal Decision Process escalates the matter. Under the decision process, the CRT member makes a decision, and it can be enforced in court. They state that "For a $25 fee, the CRT can turn your agreement into an order, if both parties agree that an order should be issued. This is called a “consent resolution order”." I suppose that you did not go through that step, and you only have an agreement. So you would need a separate court process to get a court order. Because everything that you did in this negotiation phase is confidential, if you want CRT to give you something that is enforceable, you have to present the case from the beginning, since they don't have access to what has happened before. The problem in your account is that a settlement has to be reached by yourselves – possibly with the assistance of the CRT case manager. I assume you did actually get a settlement (agreement) with the landlord, but have not filed for a consent resolution order. It may be that the case is too old for you to just pay the $25, and it does require agreement by the other party. Read their FAQ about how cases end. | It isn't 100% clear from the question if a case has been filed in court, or someone was just planning on filing a lawsuit, which is an important fact. It seems like the ex filed a court case and you hired attorneys who responded. If there is a court case filed, that can't just be abandoned until all the i's are dotted and t's are crossed in the eyes of the court. The lawyers can't quit unless the court gives them permission to do so. Usually, lawyers are entitled to be paid for all of the work they do and out of pocket charges they incur in a case, until it is wrapped up, even if some wrap up work happens after the event that determines the final outcome of the case like your ex deciding to abandon his arguments. But, otherwise, if there isn't a pending court case, you normally have the power to tell your lawyers to stop everything and give you the moment left (if any) in your retainer. At first read, it almost sounded as if your lawyers are willing to do that, but are warning you that your ex might continue to be a problem after the lawyers quit and that if that happens, it will be more costly and time consuming to start all over dealing with the threatened lawsuit that your ex made, than it would be to get it over and done with now. But, upon closer inspection, it seems that there is a pending lawsuit and that this is the issue. | Different courts have different practices, but I believe the general practice is for plaintiffs to use exhibit numbers, and for defendants to use exhibit letters. As with most procedural questions, the final decision belongs to the judge. The repetition in letters comes in when you get to the end of the alphabet. After you've used A-Z, you go to AA, BB, CC ... ZZ, then AAA, BBB, CCC, and so on. | As the answer by Iñaki Viggers says, you should submit an affidavit, not simply a letter to the court. An unsworn letter will probably not be admissible at all. It is common for a witness to tell his or her story to the lawyer for the side that wishes to use the affidavit, and for the lawyer to then draft the actual affidavit in such a way that it will be acceptable to the court where it will be used. Then the lawyer sends it to the affiant (the person who would be a witness if s/he came to court, who is making the affidavit) with instructions. Generally an affidavit must be notarized or otherwise sworn to in front of an appropriate official. However, a person can draft his or her own affidavit. It is usual for it to be headed with the name and case number of the case where it will be used. It should include a statement that everything in it is true, and that the affiant swears (or affirms) this under penalty of perjury. It should include only relevant facts that the affiant has personally witnessed, not anything heard from anyone else, or guessed at or deduced. The facts should be stated clearly and simply. The affidavit should be signed in the presence of a notary, who will witness the signature and the oath that the contents are true. This WikiHow page describes the process in detail, with a template form. | No landlord-tenant laws that I have ever seen impose an obligation on a landlord to give a point by point response to everything in an email from a tenant. However, a tenant probably has the right or obligation to provide a landlord with written notification of a problem requiring remedy. You might then be required by law to provide a specific reply within some time frame, for example "We will fix that tomorrow afternoon", or "We are not required to fix that": it would depend on the jurisdiction and the accusation. Some caution in how you respond is warranted, because your answers can be used against you in a court of law, thus you want to be sure that your response is not misleading, and that you don't accidentally promise to do something that you won't actually do. There is a concept of "adoptive admission", where silence can be used against you. A typical case is if Smith says to Jones "That was really cold-blooded, the way you murdered Thompson", and Jones does not respond to the accusation – that fact can be introduced as evidence, because there is an assumption that if Jones were really innocent, they would protest the accusation. I don't see any way for "failure to respond to everything" in this manner could constitute an adoptive admission – an "admission" means that you directly or indirectly indicate that you did a thing, which is not the same as ipso facto agreeing to something (for example, not replying to a statement "I'd like my rent reduced by $100 per month" is not an "adoptive agreement"). | This is very, very weird. I've never heard of a case like this one. Is there some context that could explain why anyone would refile a divorce someplace new twelve years after getting divorced the first time around? The logical thing to do if Canadian civil procedure is at all analogous to U.S. civil procedure on this point, would be to have a Canadian lawyer file a motion in the Canadian divorce case to set aside the judgment on the extraordinary grounds that you were not married any longer at the time that the 2015 divorce was filed, seeking to set aside the 2015 case ruling. In most U.S. jurisdictions with civil procedural rules modeled on the federal rules of civil procedure (California's are not), this would be a motion under Rule of Civil Procedure 60, but obviously, the Canadian rule numbering would probably be different. Alternatively, if the home is in California, you could bring an action for declaratory judgment declaring that the Canadian judgment is invalid because it was brought in a divorce action between people who were already divorced and probably also lacked jurisdiction over you and the property. I'm not sure what you mean by CPL in this context. Normally, in a real estate context, a CPL would mean a "closing protection letter", but in the context you are using it, it sounds like you are referring to something akin to a lis pendens or a lien. Perhaps you mean a "certificate of pending litigation" which is another name of a lis pendens in at least some Canadian jurisdictions (but is terminology rarely used in the U.S.). This sounds like slander of title, or "abuse of process" or the filing of what is known as a spurious lien, any of which are actionable, but without knowing what a CPL actually is, it is hard to know. |
Are there any regulation, or laws put in place that regulate how often privacy policies can be updated? In reference to the recent change of the Stack Exchange privacy policy: Most people reading this are probably aware, but the Stack Exchange Privacy Policy has changed, which is a little frustrating. I may or may not join a site based on their policies. It does seem practical to change it one every year or two, but they just changed it in march, and now they changed it again. They say it is a couple small changes, but the text actually reads completely different, and I am a developer not a lawyer, I have to use 3rd party resources to really understand the policy every-time they change it. Considering they hold a ton of work I have authored, is there in law in place that prevents them from changing the policy multiple times in a certain time period? Here is the link to the recent policy change: https://meta.stackexchange.com/questions/370216/updates-to-privacy-policy-september-2021?cb=1 | The privacy policy now includes the statement: We may amend or update this policy from time to time and will notify you of any material changes to this policy. Previous versions of this privacy policy are available upon request. Previous versions of the policy included the same or similar language. When an agreement includes such language, it can be modified unilaterally and remains binding in many cases. However, a privacy policy is not generally an agreement or a contract, it is a statement by a service provider of its current practices and intentions. To the best of my knowledge there is no law or regulation limiting how often such a policy may be updated. There are several laws which make having a privacy policy mandatory for certain web sites and service providers. None of them apply to all sites in the US. These include: the GDPR the CCPA (California Consumer Protection Act) the Children's Online Privacy Protection Act (COPPA) The Cable Communications Policy Act of 1984 The Consumer Credit Reporting Control Act the Gramm-Leach-Bliley Act (applies to Institutions engaged in the financial sector) the Health Insurance Portability and Accountability Act (HIPAA) Most of these laws require that a privacy policy be "current" or "up-to-date" at all times. The page "how often should our IT policies be reviewed and updated?" includes the advice that: In general, we recommend reviewing all your IT policies at least annually. It can be your new ‘New Years’ tradition. The page "Update Notices for Privacy Policy Changes" reads: Your Privacy Policy is a critical part of protecting your business and your customers. It's an up-to-date notice of your data practices, including everything from collection to storage to security. The key word in that sentence is up-to-date. Whenever you make a meaningful change to the way you handle customer data, you need to update your Privacy Policy to reflect the change. In short it is common to update such policies with some frequency. Various laws may mandate such updates whenever privacy practices change. No law that I have found limits the frequency of such updates. | gdpr The obligation to provide a privacy policy stems from GDPR Articles 13 and 14. When the information has to be provided depends on when personal data is obtained. Information under Art 13 (data obtained directly from the data subject) must be provided at the time when the personal data is being obtained. Since most websites will obtain personal data pretty much continuously, they will likely have to keep this information available continuously as well. Information under Art 14 (data obtained from other sources) must be provided within a reasonable time after obtaining the information, but at the latest when the data subject is contacted. So this depends very much on when data is obtained, and whether personal data is obtained directly from the data subject. E.g. a website generally obtains some personal data directly from the data subject every time a user visits the page, thus it will likely have to keep a minimal privacy policy available all the time, for all visitors (whether registered or not). In contrast, for individual instances of personal data processing, it may be sufficient to provide the information only once. For example, if we ask a user to enter information to enter a raffle, the privacy policy regarding the raffle might only have to be shown in context of the form where the user can enter data. However, all such approaches stink. Doing the bare minimum that's explicitly required is an easy way to run afoul of more foundational GDPR principles, e.g. the Art 5(1)(a) requirement that all data processing must be transparent (compare also Art 12(1)), and the Art 5(2) accountability principle: the data controller must be able to demonstrate how what they're doing is compliant. The Art 13 and 14 time frames are the latest point in time at which this information has to be actively provided to the user (compare also the guidelines on transparency WP260). But it would be entirely possible for a court to argue that the transparency principle implies that all such information must be available to the user for the duration of all related processing activities, possibly both before and after the data subject was explicitly informed. The WP260 document also emphasizes that the data controller must take the reasonable expectations of the users into account, and most users expect a “privacy policy” link in the footer of every page. As a more general point, the GDPR never requires that data subjects agree to a privacy policy. A privacy policy is largely unidirectional information, not a contract. Under some circumstances, the data controller may rely on consent as a legal bases for processing, and will then have to obtain consent from the data subject. In the course of this, it is necessary to provide information about the specific processing activities for which consent is being asked. Usually, this is done by a short summary with key information, and a link to the privacy policy for the full details (a layered privacy notice, compare the WP260 document and the EDBP guidelines on consent 05/2020). But valid consent can only be obtained for specific processing activities, not for a bundle of processing activities or a privacy policy in its entirety. | "This policy" is referring to the Mozilla Community Participation Guidelines as amended (basically a Terms of Service (TOS) agreement). If so, does it mean adherence to Guidlines is fixed to version current at the moment of commencement of employment? Not really. It means that Mozilla Community Participation Guidelines are primarily guidelines for members of the general public who are not employees, and that different unstated policies delivered to employees are what govern employees instead. There are consequences for Mozilla employees failing to honor the current version of the Mozilla Community Participation Guidelines, but those consequences are set forth in an employment contract with the employees rather than being limited to the consequences and procedures set forth in the Mozilla Community Participation Guidelines for members of the general public who aren't employees. | The 2018 Data Protection Act specifically implemented the GDPR EU Regulation in the UK - while the regulation itself was directly binding it required member states to create their own legislation for implementing the details - setting up the required supervisory and accreditation bodies etc. The various 'opening clauses' in the regulation also provided the means for the members states to implement specifics in local legislation (so long as that legislation exceeded the minimums set out in GDPR). At the end of the Brexit transition period the UK was no longer a member state (and it's citizens were no longer EU citizens), keeping the DPA 2018 as was would have actually meant that UK citizens weren't eligible for the very protections it was intended to provide them! Therefore the basis of the law needed updating (as well as certain minor provisions that no longer made sense) hence the "UK GDPR" provided a substitute. The fundamentals are the same and crucially it also codified the necessary basis for the UK's data protection laws to have what is referred to as "adequacy" - which means that the EU considers the UK GDPR/DPA to provide "essentially equivalent" levels of protection and therefore data is allowed to continue to flow between the UK and the EU. | The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? No. It will be true only if they make that clarification in the clause or a properly added amendment. The clause currently has no indication that it is limited to "current client and any past clients that [you] have work[ed] on". The CEO's & lawyer's refusal to amend the clause so as to make it consistent with their attempts [to persuade you] would be a red flag. Their inconsistent representations to you suggest that they are not planning to honor the covenant of good faith on which all contracts are premised. Should I expect the CEO to offer a fair contract or is this something you read and negotiate? You should require a contract that seems fair to you. And by "to you" I mean that it has to be in line with your expectations regardless of the average conditions in the labor market. Negotiations are not binding. They are merely a preamble to a contract, and that contract is binding. This is why you should reject a contract that falls short of your requirements. Some clauses are unlawful and/or void and unenforceable as unconscionable or for contravening legislation (unlawful clauses can and do arise even if drafted by attorneys). Thus, although you might not have to worry about those clauses in particular, the company's mere attempt to include them in a contract should alert you of the high risk of ending up with other abusive terms & conditions which are binding and enforceable nonetheless. | Federal and state laws do protect a variety of different types of personal information in particular contexts, but there isn't really any information that is necessarily personal and protected from disclosure in all contexts. For instance, the Health Insurance Portability and Accountability Act generally protects a person's health records from unnecessary disclosure, and the Federal Education Rights and Privacy Act generally protects a student's educational records from unneccessary disclosure. But that doesn't mean that all of an American's health information is protected, or that all of the information that a hospital holds about an American is protected. The hospital can typically disclose the fact that it is treating a specific person, and if that person provides his health records to a government employer, that employer may be required to produce them in response to a request under the Ohio Public Records Act. But Facebook isn't a health-care provider, so it isn't required to protect medical records, and it isn't a school, so it isn't required to protect educational records. At the federal level, I don't know of any privacy laws that require it to maintain the privacy of its users' information, though it may be required to do so under state laws, or as a contractual matter because of its privacy policy. But that doesn't mean it has nothing to worry about. Like any business in the United States, it is prohibited from engaging in deceptive trade practices, so it can't make broad promises to protect users' privacy when it has no intention of honoring them. That's why it ended up paying $5 billion for privacy violations in the past and remains under court orders requiring it to better protect users' data. Further, Facebook has users all over the world, so it is required to comply with the international privacy regulations like GDPR that can be far more stringent. | You are responsible for what data is being processed by your website. When you embed third party components on your website (e.g. iframes, scripts), you are at least jointly responsible with the third party providing these components. You are only responsible for what happens on the website (i.e. what processing is under your control), not for what the third party provider does with collected data on their services. However, note that information will be transferred to Google's servers regardless of whether the visitor has a Google account! The Fashion ID case is relevant case law establishing and explaining these points. Since you are (jointly) responsible, you need a legal basis for collecting personal data through the tracking snippet and sharing it with the third party (here Google). For example, the legal basis could be a legitimate interest, or could be consent. A legitimate interest requires that you balance this interests against the interests, rights, and freedoms of the data subject (the site visitor). If the data subject wouldn't reasonably expect this tracking, you cannot rely on a legitimate interest. Consent can always work, except that it is a freely given, informed opt-in – likely unsuitable for conversion tracking. Which legal basis to use is primarily your responsibility. You argue that the tracking snippet does not collect personal data. However, this argument is not well supported. Under the GDPR, personal data does not only include directly identifying information such as an email address, but also any information “relating” to an identifiable person. Identification includes the ability to single out someone, e.g. by a browser fingerprint. For purposes of conversion tracking, Google will clearly try to collect data that allows the visitor to be singled out, thus collecting personal data. Furthermore, specific kinds of information are regulated by the ePrivacy directive. This includes “traffic data” and “information stored on a terminal device”, regardless of whether this information is personal data under the GDPR. Under ePrivacy, such information can only be used as strictly necessary to provide the service requested by the user (and conversion tracking is not strictly necessary), or when the user gives their consent. Depending on what information is collected by the tracking snippet and on whether you are subject to ePrivacy, you would have to collect consent anyway. There is also the issue that Google Ads is an US-based service, and transferring data to the US is largely illegal since the 2020 Schrems II ruling. The US do not provide an adequate level of data protection, so that transfers would require additional safeguards. Standard Contractual Clauses (SCCs) for Controller to Controller transfers are not sufficient by itself. Of course those extra safeguards are effectively impossible to implement and no one is doing this correctly, but it's worth considering that there is additional legal risk. Explicit consent can provide a legal basis for transfers even to a country with inadequate protections, but that mechanism is intended for occasional transfers. In conclusion: you have wrongly concluded that no personal data would be involved you are jointly responsible with Google for whatever data is processed by the conversion tracking snippet you need a legal basis for sharing this data with Google legitimate interest may be sufficient, depending on what data is involved (consider ePrivacy) and depending on the result of your legitimate interest balancing test alternatively, you may require every visitors consent to track their conversions – unlikely to result in good data additionally, such use of Google Ads may run into issues around international transfers due to the Schrems II ruling this kind of stuff is difficult, and no one is really doing this correctly :/ | No You say you won't disclose personal information, therefore, you can't disclose personal information. Now, if your privacy policy said "We won't disclose your personal information except ..." then, so long as you did the "..." that would be fine (subject to privacy law). |
Is it legal to point a domain to someone else's ip (website)? The question is pretty straightforward: Is it legal to point a domain on the web to someone else's ip (website)? The domain owner is not actually copying the content, but just opening the website in his or her own domain. The resolution happens in the USA and the domain was bought at Google Domains | Yes One could certainly put up a site whose only content was a link to another domain. And I can't find any law which this would violate. If the link is a "deep link", and if it bypasses a log-in page, while the other site is so designed that all access is intended to go through the login, I believe (but cannot at the moment verify) that the owner of the other site could claim that this violates their copyright. In any case it is not a good idea.But a link to an appropriate page should have no problem, nor should pointing your domain at an appropriate entry page. Therefor, since simply re-pointing a domain should have the same effect as simply linking, in those cases where it works at all, it should be legal. Doing it with an iframe, which would truly open another site within your site, may not be if the other site forbids such use, as in the ToS. The case law on that is not settled, but many sites object to it, as the answer by @BlueDogRanch points out. I don't see a good reason why one would want to do this, but that isn't the question. Copying the HTML of another site and modifying the URLs while keeping the content the same would pretty clearly be a copyright infringement, besides being a lot of work to little obvious point. It also isn't what the question asked about. Building a one-page site that has only a simple link or a redirect would clearly be legal, and would serve the purpose of causing your domain to lead a user to another site, but it isn't, strictly speaking, what was asked about either. | Since your website operates in the US (regardless of where you live), it is subject to US law, so you can be sued in the US. Also in The Netherlands: there is a non-trivial chance that the parent corporation registered their trademark in The Netherlands (and anywhere else they operate). Your domain name could be cancelled by ICANN as a result of a court proceeding in either country. You should consult with an attorney, if you want to fight this. In court, you could try to argue that your use of their trademark does not violate trademark law, and you might read this in preparation. This article gives an overview of trademark litigation in The Netherlands, and §9 explains how infringement is assessed. | You can license the use of your IP only for certain uses, for example (most commonly) "non-commercial". The general template of permission is "You have permission to ___ as long as you ___". What the user is permitted to do, in your scheme, is something along the lines of "only distribute the output in this manner", or "not distribute code developed with this tool anywhere else". It's up to you to prove that someone violated that condition, if they did. | No If they have prior usage then they have the trademark already and are the only ones who can register it. Trademarks arise through use - registration is not required. | "LearnIT" and "Learn it" are both descriptive, and thus are generally weak trademarks. It is not unlikely that a challenge would result in cancellation of any trademark on either, or in allowing a similar trademark in an unrelated category of business. For the matter of that, you don't seem to have determined whether the other company is making any trademark claims. In some countries there is no trademark protection unless a mark is registered. In others, including the US, use without registration can create some protection for a mark. It will also be relevant where the other company is doing business, and where you plan to. Trademark protection is always specific to a particular country, and generally requires proof of use in commerce in each such country (or of a plan to start such use in the near future). Domain registration is a different thing, and is not necessarily tied to a trademark (although registering a domain that infringes an existing trademark will often be disallowed). It appears that "learnit.net" is listed as available. That does not mean that a dispute filed by the other company would not be successful. The Uniform Domain Name Dispute Resolution Policy (UDRP) states in section 2 that: By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name registration infringes or violates someone else's rights. If you register a domain name, and another person or firm complains that the name is "confusingly similar" to an existing name or to a valid trademark, you might be required to participate in an arbitration proceeding under the UDRP, or else forfeit the registration. Note that nothing happens if no one complains. Section 4(s) of the policy reads: You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts ... that (i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) you have no rights or legitimate interests in respect of the domain name; and (iii) your domain name has been registered and is being used in bad faith. In the administrative proceeding, the complainant must prove that each of these three elements are present. "Bad faith" can be shown by evidence that you obtained the domain for purposes of selling or renting it, not for use; that you intended to prevent a valid trademark owner from obtaining the name, and have engaged in a pattern of such conduct; that your purpose was to disrupt the business of the other; that you intended to attract users who were looking for the other site. The page "What Are 'Look-Alike' Domain Names?" states: An essential element of any domain name dispute is whether the domain name bears some important resemblance to a relevant trademark. The Uniform Domain Name Dispute Resolution Policy (UDRP) refers to this as the “identical or confusingly similar” test. In many cases, a disputed domain name actually contains the trademark, and in other cases it may contain a typographical variation of the trademark (such as by omitting a single letter; transposing two letters; or substituting one letter for another, often adjacent to it on a keyboard). Yet in other cases, a disputed domain name may simply look like the trademark at issue, even if the domain name doesn’t contain the trademark or fall into any of the popular cybersquatting tricks described above. I refer to these simply as “look-alike domain names.” You may wish to determine if the operator of the learnit.com site has in fact obtained a trademark on "learn it". Most national trademark systems provide a means to search the trademark registers. This will not be conclusive, but may give a reasonable idea. One option is to consult a lawyer skilled in trademark law. Another might be to reach out to the exposition firm and ask if they would have any objection to your proposed blog. If they don't object, the will be no problem. Another option is to choose a domain that is not as similar to that of the existing site. One technique that can help avoid an accusation of bad faith is to provide an notice where someone first opening the blog site will see it, something like: This is XY.net. You may have been looking for XX.com,which is about {short description} If co, click here. with a link to the other site. Such a notice might help establish that you were not using the domain to improperly attract traffic looking for the other site. | You are only responsible for the data that you collect or process, or data that you direct others to collect or process on your behalf. You are not responsible for the actions of third parties that may carry out incidental collection or processing that you have no control over - this includes such things as your ISP, backbone providers etc, but if you direct a service provider (eg Cloudflare, Amazon AWS etc) to cache your content and process it on your behalf then you need to include that fact in your data processing policy and link to the providers own data processing policy. | "Checking someone's digital footprint" could be stalking, depending on the circumstances. The better question to ask is about the legality of a certain action, and not the specific name used in a jurisdiction (although indeed in Washington there is a defined crime of "stalking"). I don't know what you mean by "checking someone's digital footprint", and it is not defined by law. Looking at RCW 9a.46.110, we can first discern that it does not matter for the definition of the crime where these people live or where the robbery took place. If two people from Alberta travel to Alaska and harass or murder a person from Texas, Washington law does not enter into the equation. The crime that you're asking about is the snooping, so for Washington to have jurisdiction, the snooping has to be "in" Washington. That does not mean that both parties have to be in Washington – there can be complex jurisdictional laws if the accused is in another state or country. The accused can easily be prosecuted in his own state, he can also be prosecuted in a foreign country, if he is caught there or if he is extradited to that country. For the act to be stalking, the first element is that "He or she intentionally and repeatedly harasses or repeatedly follows another person; and...". Harassment is defined in that section as a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or when the course of conduct would cause a reasonable parent to fear for the well-being of his or her child. Since there was no communication between the parties, there is no harassment in the legal sense. There is no "following" either, therefore the act fails to constitute stalking w.r.t the first elements. Since the crime is defined by a conjunction of elements and your scenario fails on the first conjunct, it is not "stalking" (it is also not "harassment" as defined in RCW 9A.46.020, 9A.46.060. | Being or not being open source makes fairly little difference in trademark law. If a commercial firm (Yoyodyne, say) had used the name "Portable Network Graphics" and the abbreviation "PNG" in trade, and taken such further steps as would be needed to protect it in the relevant countries, that firm would have a protectable trademark. Note that in some countries, a trademark must be registered to have any protection at all (much of the EU follows this rule). In others, use in commerce can offer some protection even without registration (the US follows this rule). Had this happened (in an alternate reality) Yoyodyne could have sent a cease and desist letter when open source developers started using the mark. If the devs did not cease, Yoyodyne might have obtained an injunction, or damages for trademark infringement, or both. They could also have issued a takedown notie to the site hosting the project. But had Yoyodyne failed to defend the mark effectively and allowed it to become generic, Yoyodyne might have lost all rights to it. Also, had Yoyodyne ceased to use it in trade for a significant period, they might have lost rights. This is a place where the different laws in different countries might lead to different results. Note that "Portable Network Graphics" is rather descriptive, and not particularly distinctive. Descriptive marks, like "Tasty Pizza" generally get weaker protection, while more distinctive marks, such as "LuAnn's Tastee Pizza" are more strongly protected, in general. Again this depends on the country, and the specific facts. In general the first to use, or to register a mark, gets the rights. When one entity is the first to use, but a different one is first to register, things can get confusing, and results will be different in different countries. Note that a Cease and Desist letter is not a legal requirement. It is a threat of possible future legal action, and often an offer to avoid such action if the recipient does as the sender requests. The recipient can comply with the letter, wait for court action, or try to make some sort of compromise deal. Open source projects, as other answers suggest, often choose to comply. |
Quitting before the start date: is the non compete enforceable? Prospective employee E signed a job offer stating that his or her first day of work will be two months into 2022. The contract includes a non-compete agreement (NCA) of a duration of 8 months within 100 km of the employer's headquarters (effectively the whole city of Montreal). Would the NCA would be enforceable if E quit before the starting day because of a better offer? The fields/duties could overlap. E is a fresh graduate with only a couple of internships (no specialized skills). E's livelihood would be severely impacted if the NCA is to be enforced. | Quitting before the start date: is the non compete enforceable? The non-compete is unenforceable unless the employer has provided you with material information that you can use to the detriment of the employer. Even in that case, the non-compete as outlined in your description seemingly exceeds the legitimate interests of the employer (see art. 2089 of the Civil Code of Québec). This means that the non-compete clause would be curtailed in court because the employer cannot prove that his business (or market share) encompasses the area depicted in the clause. The reason of being of non-compete clauses is to protect the employer from a potential misuse of information the employee obtained pursuant to his employment, such as trade secrets and information about clients. The fact that you are a fresh graduate suggests that you are dealing with just some typical intermediary who really has no "trade secrets" and who is not providing you with key information, let alone for a job that is scheduled to start five months later. Non-compete clauses that are overly broad contravene public policy in that they would singlehandedly exclude civilians from the labor market and disproportionately impair free trade. | If correctly structured, probably First, there is no issue with escorts in Canada. If you are in Toronto and need a plus one for the big gala dinner, you can hire a date provided sexual gratification is not part of the deal. An NDA as part of that sort of contract would be fine. Similarly, in jurisdictions where sex work is legal, there’s also no problem. So, we will just focus on contracts where one of the fundamental obligations involves an illegality. This doesn’t have to be prostitution, it could be a contract for murder, or the supply of illicit drugs, or the supply of unpasteurised milk. One of the requirements for a valid contract is legality of objects. A contract for an illegal purpose is void. See What is a contract and what is required for them to be valid? Therefore, an NDA that was a term of such a contract is also void. However, an NDA that was a separate contract, even a collateral contract, would be enforceable because NDAs do not have illegal objects. This can probably best be illustrated by an example. Let's imagine there is an establishment where people can go for food, drink, entertainment, and socialise - we'll call it the club. As part of the contract for using the club or being an employee or supplier to the club or its patrons, there is an NDA not to reveal anything that happens in or is associated with the club. There is no reason to believe that this NDA would not be a valid and enforceable contract - subject to the normal laws that limit such agreements. Now, if visitors entered other agreements that were void, with each other or with the club - such as for the supply of sex or illegal drugs - this would not, on its own invalidate the NDA contained in the other contract. If a court decided that the whole operation was a sham and that the club was merely a front for a brothel, they may find the original contract is void as being against public policy or, it quite likely may be an irrelevancy, because people engaged in a joint criminal enterprise have very few rights against one another anyway. However, if the club is primarily a legitimate business, then there would be no reason to impugn the original contract. | Is a firm required to arbitrate disputes arising after the expiration of employment contract? The wording of this question is problematic. From your description it is doubtful that the contract truly expired at the end of the first year. It is valid for a contract to encompass multiple phases with different provisions specific to each phase. Providing that "[a]fter the first year the employee may continue working for the company, until terminated, as an at will employee" is different from expiration of the contract at the end of the first year. The contract simply outlined what happens before and after that point in time. The employer's allegation that the contract expired at the end of the first year is inconsistent with outlining in that same contract the nature of the parties' continued relation after the first year. Said nature of the employment relation should have been outlined in a separate contract in order to preempt an interpretation of there being one same/ongoing contract. The employer's allegation is vague and untenable also in a scenario where the employer terminates the employee within the first year. The employer's allegation seemingly implies that the employee's deadline for arbitration proceedings expires at the end of the first year. That would give the employer the opportunity to evade the arbitration clause by choosing a timing that de facto prevents its employee from enforcing the clause. Questions regarding arbitration are unanswerable without knowing the exact terms of the relevant clause(s). Just like the contract provides a transition from fixed term employment to at will employment, it is possible --but not necessarily the case-- that the arbitration provision is applicable only to some of the phases that the contract encompasses. | As I understand it, the legal distinction here is: Whose choice was it that you not continue in your job? If the company was prepared to offer you an extension, until you told them that you were not interested, you are leaving of your own free will, and would not be entitled to redundancy rights. If your employer did not extend the contract when you would have been willing to continue, that is either a redundancy, or a dismissal of another kind. If you were dismissed for valid cause, you have no redundancy rights. if you were let go because of a lack of work, or because the employer decided not to have anyone doing that job, that I gather would be redundancy. | There is nothing in that contract that says anything about 3 months notice period. The 3 months is the legal default for contracts that do not expire on their own, unlike yours, that has all properties of a limited time contract. I would personally see the detailed description of how you can end this contract as overriding any legal default. But as always, with this specific contract in the original language, you need to see a lawyer to know for sure. Your contract clearly states: you can leave your appartment whenever you want, even before the agreed upon time. If you leave between the 15th and the end of a month, you have to pay for that month in full. If you leave between the 1st and the 14th of the month, you have to pay the fair share of the rent for the days you where there. So for example, on a 30 day month if you lived there for 10 days, you still have to pay a third of the rent and the landlord will return the rest if you paid for the month in advance. If you live there for 16 days, you have to pay for the full month and nothing will be returned if you paid for the month in advance. Please note that you need to "hand over" the vacated rental object during normal business hours. So don't go in there on the evening of the 14th at 16:59. And don't try to "hand it over" when you haven't moved your stuff out yet. At the hand over, you give the keys to the landlord and that is it, it is the last thing you do. Very likely your landlord will want to have a look at the rental object while you are there, so they can make sure it is all in order, you did not damage it or did not leave any of your stuff. Generally speaking, there is nothing your landlord could do to you if you decide to leave early. They cannot make you leave even earlier or any other retaliatory shenanigans you may have heard of in other countries. In Germany, such contracts are not adversarial. You don't need to keep it a secret to the last second. If you know you want to leave on a certain date, inform your land lord, make an appointment for the "hand over" well in advance and save yourself (and them) all the stress from doing things last minute. | Restraint clauses, restrictive covenants, or non-compete clauses are fairly standard in professional contracts. You would usually find, in a well-drafted restraint clause, cascading duration and geographic limitations. For example, it might read: ... as a potentional customer or client of EMPLOYER. This shall apply: For 12 months; or, if that is found to be unenforceable, For 6 months; or, if that is found to be unenforceable, For 3 months; or, if that is found to be unenforceable, For 1 month and within a radius of: 20km; or, if that is found to be unenforceable 10km; or, if that is found to be unenforceable 5km; or, if that is found to be unenforceable 1km from the work location. These cascading clauses are designed to protect the employer in situations where a court finds the original restraint to be unreasonable and unenforceable. The usual remedy for an unreasonable restraint clause is that a court will simply nullify it, or reduce it to a more reasonable time and geographical scope. However, if it materially changes the nature of the contract, then the contract as a whole may be voided. | Not very nice of the employer, actually quite cowardly. Being not nice and cowardly is not against the law. Being in the EU, and having been employed for ten years, the company will have duties to find a different position in the company at the same pay, and only when that fails, the employee can be laid off and will have a reasonable amount of notice, plus a reasonable amount of redundancy pay due to him. Unfortunately, he can expect only the legal minimum if the company behaved like this already. Good companies would provide a generous redundancy pay, plus pay for you to have any agreements checked by an employment lawyer of your choice - which means the employee can be sure they are not ripped off, and the employer is sure they cannot be sued for any reason. Obviously if they want him to quit, then the one single thing your relative mustn't do is to quit. Let them pay him. Plenty of time to look for a new job. | 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. |
Can an 18 year old with just a permit drive alone in Colorado? If you are under 18 [with a permit], Colorado driving laws prohibit you to drive alone. You must be accompanied by a parent, legal guardian, a driver’s education instructor, or a licensed driver at least 21 years old whenever you go out for a drive. What if you are over 18? I haven't found any sources that seem to indicate one way or another whether an 18 year old with permit but not licence can drive alone. | The Colorado Drivers Handbook says: Instruction permits: An instruction permit allows limited driving privileges for people learning to drive. Regardless of age, if you are driving with an instruction permit, you must be accompanied by a person 21 years of age or older who holds a valid Colorado license and is riding in the seat beside you. (Emphasis mine) So if you are an adult, regardless of your age, you are required to have somebody 21 years of age or older who has a valid Colorado drivers license. An 18 year old (or anybody for that matter) with just an instruction permit may not drive alone. In Colorado adults (21 years of age or older) are required to get a permit, but there is no time requirement to hold it before taking the written and driving test to obtain a regular (Class-R) drivers license. | 4511.71, "driving on a closed road", doesn't apply here: it requires that the closure be done using a sign, rather than a generic "traffic control device". It also appears to be intended to apply specifically to construction closures, not closures in general. However, what you describe is, at a minimum, a violation of: 4511.25, lanes of travel: (A) Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows: [exceptions that don't apply] where "roadway" is defined in 4511.01 as (EE) "Roadway" means that portion of a highway improved, designed, or ordinarily used for vehicular travel, except the berm or shoulder. and 4511.28, passing on the right: (A) The driver of a vehicle or trackless trolley may overtake and pass upon the right of another vehicle or trackless trolley only under the following conditions: (1) When the vehicle or trackless trolley overtaken is making or about to make a left turn; (2) Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaking vehicle. In short, the road is "closed" in the sense that there is no legal way for you to drive past the police car. And it doesn't really matter which offense you're charged with: all three are classified as "minor misdemeanors", carrying the exact same penalties. | We cannot stipulate that a 6 year old does not understand the concepts of life / death / murder / assault, but that stipulation might be baked into the laws of the jurisdiction. In Washington, a child under age 8 is statutorily incapable of committing a crime. Between 8 and 12, there is a statutory presumption that a child is incapable of committing a crime, but that is rebuttable. The statute says "Children under the age of eight years are incapable of committing crime", and it say nothing about understanding concepts. Florida law used to allow that a 6 year old can commit a crime, then when they arrested a 6 year old, they changed the law. But, the law says A child younger than 7 years of age may not be taken into custody, arrested, charged, or adjudicated delinquent for a delinquent act or violation of law based on an act occurring before he or she reaches 7 years of age, unless the violation of law is a forcible felony as defined in s. 776.08 so a 6 year old can be arrested (charged, tried, convicted) for murder. Virginia does not appear to have any statute declaring 6 year olds to be categorially incapable of committing a crime. The question of capacity is of course a real consideration – insanity remains a defense against criminal charges. | As far as I know in the United States, no DMV provides test vehicles. You need a vehicle to take the driving test. Since you are not currently licensed, you can not legally drive yourself to the test alone... So logically, you must bring someone... anyone... willing to drive you to the test and provide a vehicle for you to test in. As others have stated in the comments above, worse case scenario is the hiring of a driving instructor. If you read the written instructions (and I remember correctly), it does state something along the lines of "must be accompanied by a licensed driver and provide an insured, registered, vehicle". Which is a bit more formal than the "bring a friend". Most people just naturally use more casual terms when speaking. I don't know your age, but it's probably more common to hear "bring a parent" than "bring a friend" when speaking face to face with the DMV staff. Also, not all insurance policies are driver limited. Some policies are on the vehicle regardless of driver. Typically Liability-only insurance is vehicle specific, not driver specific. [*1] You'd have to review the policies or call the insurance agents to confirm this. You may even do something as simple as add you to the current insurance for a month or two while you're practicing and testing. Just reimburse your friend for any increase in premiums during this time. Contact the insurance company/agent. The cost may be minimal. In addition, there are non-owner insurance policies which cover you even if you do not own a vehicle. This would provide insurance if none of your friends has a policy which would work. Realize that most people taking the test for the first time have probably already been added to a policy owned by their parents. So, your situation is a bit more unique. It's not meant to be inherently confusing but if you're "outside the norm" you have to do some deductive reasoning on your own. And finally, if an accident or damage were to happen during your practicing or testing, it would still be your responsibility. If you are in control of the vehicle, you are responsible for any damage to it or damage caused by the vehicle due to any negligence on your part, regardless of any insurance policy. You'd be a pretty bad "friend" if you caused damage and didn't financially make restitution leaving your "friend" holding the bag, so to speak. Restitution could be something as simple as paying the deductible on your friend's policy. Of course, if you are not covered by insurance any claim may be denied -- leaving you responsible for everything. The mindset that just because your friend owns the car they are totally responsible for anything that happens while your driving seem very, very self-serving and, well, I'd be apprehensive about loaning you my vehicle as well. In fact, I absolutely would not. | According to German law (Jugendschutzgesetz), §9: Minors 14 years of age and older may drink undistilled alcoholic beverages, such as wine and beer, when accompanied by a Custodial Person, Minors 16 years of age and older may drink undistilled alcoholic beverages, such as wine and beer, without accompaniment, and Adults (18 and older) may drink distilled spirits without restriction as well. Note that the act of drinking itself is not illegal for a minor. It is only the offering or facilitating of alcohol that is illegal (and punishable). | if the child exchange time and locations are fixed, and the husband can no longer legally drive, does this effectively nullify his visitation rights? No. He can get a ride from someone or get an Uber or Lyft or Taxi or take a bus. The drop off location is near her house, not his, and even if public transportation were an option he would not be the type to use it. He's more the type that would ignore the suspension of his license and go pick up the kids in his car anyway. He is also the kind to try to attempt to manipulate the wife into doing what he wants regardless of what a court order says. Emotional abuse and manipulation were a big part of his game, but fortunately she has gotten much better at ignoring it. What he is inclined to do and why have nothing to do with whether or not it is legal. If he has his license revoked and attempts to pick up the children as always, are there any potential legal repercussions for her if she allows him to pick up the kids? Practically speaking, no, particularly in light of a court order to transfer custody. Theoretically, it is remotely possible, even though it is very unlikely. In theory, she could be held liable for negligent child neglect by allowing this to happen, particularly if the children were then harmed in an automobile accident. If he was visibly drunk or intoxicated at the time of the transfer, however, her risk of criminal liability would be considerable. Would there be any potential legal repercussions for her if she refuses to allow him to pick up the children himself with a suspended license/registration? Potentially, she could be held in contempt of court for refusing to follow a court order. Her better course would be to call the police when he arrived to report that he is driving with suspended license, to not transfer the children and wait until they arrive (seeking cover inside a home and advising the 911 operator again if the situation starts to escalate into a potentially violent situation), and to explain to the police that he is also attempting to endanger the children by trying to drive with them on a suspended license. There is a good chance that he would be arrested and that the police would leave her with the children. The police might, rather than arresting him, drive him home with the kids and tell him not to drive and cite him for driving with a suspended license. Then, she should make an emergency motion to the court, regardless of how it is resolved by the police, seeking permission to formally give her a right to refuse to transfer if he arrives unaccompanied with a suspended license. If he attempts to convince her to drop the kids off somewhere else (presumably at his house) due to the suspension of his license, are there any potential legal repercussions for her if she refuses? Probably not. This time he's not following the court order, not her. It would still be advisable for her to file an emergency motion with the court explaining the situation. | Is odometer fraud a felony or a misdemeanor? It's both: a felony under federal law, and a misdemeanor under Colorado law. There's no conflict; each of those sovereigns can enforce its laws independently. Someone who tampers with an odometer could be prosecuted in federal court, and convicted of a felony; or prosecuted in Colorado court, and convicted of a misdemeanor; or even both. In practice, it sounds like the federal authorities are most interested in prosecuting large-scale odometer fraud schemes, and would generally leave one-off cases to the state authorities. Are there exceptions where this may not be enforceable? This site (https://www.nhtsa.gov/equipment/odometer-fraud) indicates that the requirement for a written disclosure of odometer roll-back is not applicable for vehicles over 20 years old (also pre-2010 models, which seems a bit more restrictive). I'm having a hard time nailing this particular restriction down in the Colorado Statutes. Can anyone point out where this law is defined? As far as I can tell, Colorado law simply incorporates the federal requirement: CRS 42-6-202 (5): It is unlawful for any transferor to fail to comply with 49 U.S.C. sec. 32705 and any rule concerning odometer disclosure requirements or to knowingly give a false statement to a transferee in making any disclosure required by such law. 49 USC 32705 (a)(5) permits the Secretary of Transportation (i.e. the federal Department of Transportation) to make regulations that carve out exemptions from the mileage disclosure rules, which can be found at 49 CFR 580.17 and include the 20-year and 2010 rules. So these same exemptions apply to the state requirement. (Incidentally, the Colorado title forms do not mention this exemption.) Note, however, that this is only an exemption from the disclosure requirement. There is no exemption from the general law against odometer fraud. It is illegal to tamper with an odometer no matter how old the car is. What is the statute of limitations to pursue crimes of odometer fraud? I think this is answered in Colorado Statute 13-80-102(j) (https://leg.colorado.gov/sites/default/files/images/olls/crs2020-title-13.pdf). This seems to indicate this type of fraud has a 2-year timeline. Does this apply from date of purchase or date of discovery? 13-80-102 is a statute of limitations for civil actions, and it does indeed cover actions for odometer fraud (see (1)(j) which references CRS 42-6-204). This would apply if the buyer wanted to sue the seller in civil court. But that's unrelated to the criminal statues we discussed above, which would be prosecuted in criminal court by the state or federal government. The limit is two years "after the cause of action accrues", which is defined in 13-80-108(3): A cause of action for fraud, misrepresentation, concealment, or deceit shall be considered to accrue on the date such fraud, misrepresentation, concealment, or deceit is discovered or should have been discovered by the exercise of reasonable diligence. For criminal prosecutions, the Colorado statute of limitations for misdemeanors is generally 18 months, from the time the offense was committed (CRS 16-5-401). For some crimes, it is defined to start instead when the offense was discovered, but odometer fraud doesn't appear to be one of them; still, it could conceivably be prosecuted under other fraud statutes. As for federal law, the statute of limitations is generally 5 years from commission (18 USC 3282). | In most U.S. states, a citizen's arrest using proportionate non-deadly force is authorized when the citizen has witnessed the crime or has been asked by a law enforcement officer to assist in making an arrest. The U.S. Constitution is not violated by this authorization. For example, in Colorado, citizens arrests (not made at the direction of a law enforcement officer) are authorized by Section 18-1-707(7) of the Colorado Revised Statutes, which states that: A private person acting on his own account is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to prevent the escape from custody of an arrested person who has committed an offense in his presence; but he is justified in using deadly physical force for the purpose only when he reasonably believes it necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force. Generally speaking it is illegal in the context of a citizen's arrest to use: disproportionate force, force applied to punish rather than detain someone, or deadly force, although there are times when deadly force is authorized for reasons similar to those that would apply for self-defense in the absence of a citizen's arrest. Deadly force is generally not authorized to protect tangible personal property or most forms of real property, but some places authorize the use of deadly force to protect a residence. I've heard before that a thief have "right" to flee, and trying to knock him out is not justified because you can only use violence to protect your self, instead of your money. While it is understandable that you might think this based upon U.S. Supreme Court cases like Tennessee v. Garner (1985), the law is actually more nuanced and that case held that: when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." It was found that use of deadly force to prevent escape is an unreasonable seizure under the Fourth Amendment, in the absence of probable cause that the fleeing suspect posed a physical danger. Thus, it is illegal to shoot to kill a fleeing thief or shoplifter, even though it is not illegal to restrain a shoplifter physically to prevent that shoplifter from fleeing the scene prior to the arrival of the police. |
Does a sex-for-food/protection arrangement qualify as rape? The situation I'm thinking of is the one depicted in A Woman in Berlin. The setting is the end of World War 2 with Soviet armies in Berlin engaging in mass rapes. The woman in question, after being raped several times, decides to seek protection from a Soviet officer. The officer protects her from being raped by common soldiers, and also provides "bacon, butter, sugar, candles, canned meat". Does the officer engage in rape? The woman thinks no: she writes that "By no means could it be said that the major is raping me" and that she is "placing [herself] at his service of [her] own accord". However, can it be argued she is acting under duress? I am most interested in modern law, although if anyone knows about what the laws were like in 1945 Germany that would be interesting too. Related: Why must victims of 'sex-for-rent' arrangements be legally defined as prostitutes to seek justice? which indicates that the woman becomes a prostitute in the eyes of the law (something considered by the author as well), but doesn't clarify if the officer engages in rape. | Socially the woman has become a "kept woman". It would not be rape, at least in most jurisdictions, because the officer is using neither force nor threats of force. The duress is from her economic and general circumstance, and most jurisdictions would not consider that to be rape. At least technically, this is a form of prostitution, but a form very rarely prosecuted. Maryland maryland is a not untypical jurisdiction as US law goes in such matters. § 3-303 of the Naryland Criminal Code (Rape in the first degree) provides that: (a) Prohibited. -- A person may not: (a) (1) (a) (1) (i) engage in vaginal intercourse with another by force, or the threat of force, without the consent of the other; or (a) (1) (ii) engage in a sexual act with another by force, or the threat of force, without the consent of the other; and (a) (2) (a) (2) (i) employ or display a dangerous weapon, or a physical object that the victim reasonably believes is a dangerous weapon; (a) (2) (ii) suffocate, strangle, disfigure, or inflict serious physical injury on the victim or another in the course of committing the crime; (a) (2) (iii) threaten, or place the victim in fear, that the victim, or an individual known to the victim, imminently will be subject to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; (a) (2) (iv) commit the crime while aided and abetted by another; or (a) (2) (v) commit the crime in connection with a burglary in the first, second, or third degree. Section 3-304 (Rape in the first degree) provides that: (a) A person may not engage in vaginal intercourse with another: (a) (1) by force, or the threat of force, without the consent of the other; (a) (2) if the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual, and the person performing the act knows or reasonably should know that the victim is a mentally defective individual, a mentally incapacitated individual, or a physically helpless individual; or (a) (3) if the victim is under the age of 14 years, and the person performing the act is at least 4 years older than the victim. Sections 3-306 thru 3-307 have similar provisions but they mention "sexual act" rather than "intercourse" and they do not define the crime as "rape" but as "sexual offense". But the emphasis on force or threat of force, and lack of consent is much the same. So it seems that under Maryland law, at least, the situation described in the question would not be legally "rape" nor a "sexual offense". Maryland Criminal code § 11-301 (2018) defines prostitution in subsection (c) which reads: (c) Prostitution. -- "Prostitution" means the performance of a sexual act, sexual contact, or vaginal intercourse for hire. Whether the provision of food, shelter, and protection by one person to another in return for sex would be considered "for hire" is arguable. In practice such arrangements, even if they also involve cash payment, are rarely if ever prosecuted. | No The argument is vacuous in any event because AFAIK all jurisdictions that enforce sex discrimination laws have parental leave (paid or unpaid), not maternity leave so a man is just as likely to need it as a woman. This, of course, raises the issue of discrimination by marital status (on the basis that unmarried people are arguably less likely to have children) or age (on the basis that people outside 'childbearing' age are less likely to have children; fortunately these types of discrimination are also illegal. Notwithstanding, the loopholess you think there are in the laws are simply not there. For example s14 "Discrimination in employment or in superannuation" of australia Sex Discrimination Act 1984 starts with: (1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: Later in s30 "Certain discrimination on ground of sex not unlawful" it says: (2) (a) the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of a different sex from the relevant sex; If the job requires excessive strength or stamina, then you test your recruits for the level of strength or stamina the job requires. | Can a state declare: "any violence against insert a group here shall not be prosecuted," which is pretty much what Nazis and Communists did, and then claim non-involvement in the violence that would ensue? This would be a violation of the Equal Protection Clause. https://www.justice.gov/crt/guidance-regarding-use-race-federal-law-enforcement-agencies goes into exhaustive detail on the topic of what may constitute an illegal abuse of selective enforcement. A key quote is highly relevant to your question: [T]he Constitution prohibits selective enforcement of the law based on considerations such as race. There is a lot of case law on this topic. This is frequently discussed in the context of race (especially profiling). | There is no clear rule on this matter, but there is a reasonable prospect for using an entrapment defense in this case, when deliberate deception is employed. There are two tests for entrapment: the subjective test and the objective test. The former focuses on the defendant's state of mind: whether the defendant is predisposed to commit the crime without law enforcement pressure. The latter is where the officer uses tactics that would induce a reasonable, law-abiding person to commit the crime. It depends in part whether the jurisdiction recognizes one of these defenses. An example of objective entrapment: "A reasonable, law-abiding person could be tempted into committing prostitution for a substantial sum of money like $10,000." Similarly, applicable to this question: A reasonable, law-abiding person could be tempted to undertake a pleasurable action having been assured that the action is actually legal. Where the subjective test applies: The fact of asking about the legality of an action is evidence that the defendant was not predisposed to commit the crime. | Sexual contact that is not consented to is a crime. Physical contact where the receiver is under the apprehension of imminent risk is the crime of battery. However, spanking in the context of a consensual sexual encounter does not have that apprehension and is therefore not battery. It is akin to the consent given by people who take part in a contact sport. Contracts cannot permit criminal actions. The permission given by the submissive in this agreement would be valid only at that point in time that the contract was made and could be revoked at any time: such revocation could be explicit or implicit. As continuous consent is required for a sexual act and revocation of permission would introduce the apprehension of harm. Whenever the permission was revoked the agreement would be unenforceable. At best, you have a agreement that is enforceable when the permissive wants it to be and not otherwise: more likely, you have a totally unenforceable agreement. More generally, contracts that involve sex acts as consideration are enforceable to the extent that prostitution is legal in the jurisdiction. However, an order for specific performance would not be granted where either of the parties was no longer consenting to the sex act because that would be a court order to commit a crime. Other remedies for breach like damages would be available. For example, if you contracted with a prostitute and refused to pay for services delivered, you could be successfully sued for the fee, any damages, costs and interest. | Breaking and entering, just by entering a private premise without permission. Causing bodily harm, possibly grievous harm, depending on what consequences it has for the victim and how the jurisdiction defines grievous harm. A prosecutor might also insinuate that the defendant had a sexual motive, so they might also add some sexual assault charges In addition to criminal charges, the victim could also press civil claims as compensation for the physical injury and the psychological trauma they experienced from a stranger entering their home at night and drinking their blood. A possible defense which the vampire could use is to claim that they are no longer a human, so human laws do not apply to them. But this would be a rather dangerous strategy, because if human laws don't apply to them, then by the same argumentation human rights might not apply to them either. If they insisted on being tried as an animal, then the court could very well reason that the best way to deal with a dangerous animal that can not be controlled and can not be kept away from humans is to euthanize it. | 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. | canada You have tagged this 'criminal law', so I will stick to that, and avoid non-criminal anti-discrimination regimes. Criminal Code, s. 319 makes it an offence to wilfully incite or promote hatred against an identifiable group. It does not matter whether the person that is being communicated to is a member of the identifiable group (meaning "any section of the public distinguished by colour, race, religion or ethnic origin"). What matters is a strict mens rea requirement that the communication was done with the intent of promoting or inciting hatred against such a group. If the accused holds such intent, it is no defence that they mistook the person they were communicating with as not being a member of such a group. See generally, R. v. Keegstra, [1990] 3 SCR 697. Hypothetical laws If instead you are asking about what a hypothetical law could require (since you ask, "If a law for example criminalises intimidating or assaulting someone who suffers from dwarfism..."), then as a matter of statutory interpretation, the law could be written in a way that makes the mistake you describe a defence or it could be written in a way that does not allow that defence. E.g. "Any person who assaults another, knowing that the other person is X, commits an offence..." This phrasing of the law clearly would require the accused to know that the person they have assaulted is in the category X in order for the assault to fall within this specific variant of assault. E.g. "Any person who assaults a person that is X, regardless of whether they know the other person to be X, commits an offence..." Under this phrasing of the law, knowledge of the status of the target of the assault clearly does not matter. However, Canadian law has constitutional minimum mens rea requirements for elements of crimes that bring risk of imprisonment. If the offence is punishable by imprisonment, then the variant that essentially removes the mens rea from the element relating to the target's status would be unconstitutional. |
US Constitutional text question / federalist papers / republic by definition ..opinion if "treason" against the government was needed to save the country, would "treason" not be a duty? regardless of the current state of the United States(current politics out of discussion) If the country , defined by its creating documents is at its brink. | Legally speaking, there is no such thing as "treason against the government". Any legal charge of treason is treason against the country. Article III, Section 3, Clause 1 of the US constitution reads: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court. See also 18 U.S. Code § 2381 - Treason which reads: Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States. It is hard to see how making war on the United States, or helping an open enemy do so, could "save the nation" and in the absence of either of these, there is no treason, although other charges might possibly apply. The interactive Constitution site from the National Constitutions Center says about this provision of the Constitution: Treason is a unique offense in our constitutional order—the only crime expressly defined by the Constitution, and applying only to Americans who have betrayed the allegiance they are presumed to owe the United States. While the Constitution’s Framers shared the centuries-old view that all citizens owed a duty of loyalty to their home nation, they included the Treason Clause not so much to underscore the seriousness of such a betrayal, but to guard against the historic use of treason prosecutions by repressive governments to silence otherwise legitimate political opposition. Debate surrounding the Clause at the Constitutional Convention thus focused on ways to narrowly define the offense, and to protect against false or flimsy prosecutions. The Constitution specifically identifies what constitutes treason against the United States and, importantly, limits the offense of treason to only two types of conduct: (1) “levying war” against the United States; or (2) “adhering to [the] enemies [of the United States], giving them aid and comfort.” Although there have not been many treason prosecutions in American history—indeed, only one person has been indicted for treason since 1954—the Supreme Court has had occasion to further define what each type of treason entails. The offense of “levying war” against the United States was interpreted narrowly in Ex parte Bollman & Swarthout (1807), a case stemming from the infamous alleged plot led by former Vice President Aaron Burr to overthrow the American government in New Orleans. The Supreme Court dismissed charges of treason that had been brought against two of Burr’s associates—Bollman and Swarthout—on the grounds that their alleged conduct did not constitute levying war against the United States within the meaning of the Treason Clause. It was not enough, Chief Justice John Marshall’s opinion emphasized, merely to conspire “to subvert by force the government of our country” by recruiting troops, procuring maps, and drawing up plans. Conspiring to levy war was distinct from actually levying war. Rather, a person could be convicted of treason for levying war only if there was an “actual assemblage of men for the purpose of executing a treasonable design.” In so holding, the Court sharply confined the scope of the offense of treason by levying war against the United States. The Court construed the other treason offense authorized by the Constitution similarly narrowly in Cramer v. United States (1945). That case involved another infamous incident in American history: the Nazi Saboteur Affair. Cramer was prosecuted for treason for allegedly helping German soldiers who had surreptitiously infiltrated American soil during World War II. In reviewing Cramer’s treason conviction, the Court explained that a person could be convicted of treason only if he or she adhered to an enemy and gave that enemy “aid and comfort.” As the Court explained: A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country’s policy or interest, but, so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions which do aid and comfort the enemy—making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength—but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason. In other words, the Constitution requires both concrete action and an intent to betray the nation before a citizen can be convicted of treason; expressing traitorous thoughts or intentions alone does not suffice. | The direct answer is "no" and the indirect answer is "yes", that is, your way of putting the matter diverges significantly from how the Bill of Complain puts the matter. The claim is that the defendant states violated the Electors Clause, the Equal Protection Clause, and the Due Process Clause. Texas claims that there is an injury in fact, citing various SCOTUS rulings e.g. Wesberry v. Sanders which says that No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined See the argument in the brief for more legal rhetoric. There can be no question that one state can sue another; equally clearly, the plaintiff must show actual harm and not just annoyance. New Jersey v. New York is a case involving a question of equity, not the federal constitution, but there is no legal principle to the effect that one state cannot sue over a constitutional harm rather than an equitable harm. See the brief p. 65 ff. The court does not require that there be exact precedential analogs (otherwise, Roe v. Wade would have turned out differently), what's required is simply that there be reasonable logical steps: SCOTUS gets to decide what is reasonable (or it can decline to decide). | 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. | The constitutionality of each of the charges is well supported and there is no really viable First Amendment defense to any of them. There is literally a U.S. Justice Department handbook on how to prosecute attempts to undermine the integrity of elections accumulating the wisdom its has gleaned from doing precisely what it is doing in this indictment, successfully, for generations. 18 U.S.C. § 371 (Conspiracy to Defraud the United States) This statute states that: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. Fraudulent statements which are protected by the First Amendment are the exception more than they are the rule. When fraudulent statements of presenting existing facts, or fraudulent concealment of presently existing facts, seek to impair someone's legal rights, it is generally constitutional to punish that conduct criminally. At noted here: Fraud and Perjury While, again, the First Amendment makes no categorical exception for false or misleading speech, certain types of fraudulent statements fall outside its protection. The government generally can impose liability for false advertising or on speakers who knowingly make factual misrepresentations to obtain money or some other material benefit (such as employment). Prohibitions on perjury — knowingly giving false testimony under oath — also are constitutional. This statute requires proof of intentional fraud, and not just a good faith difference of opinion sincerely held by the defendant. Probably the most on point precedent upholding the constitutionality of this statute in an analogous context is United States v. Rafoi, 60 F.4th 982 (5th Cir. 2023). This case held that the statute was constitutional where the charged conduct caused harm inside United States or to United States citizens or interests, that provided sufficient nexus, as required by due process, between United States and defendant's conduct in allegedly meeting with co-conspirators in Miami, Florida, where a noncitizen defendant, a citizen of Portugal and Switzerland who was employee of Swiss wealth-management firm, conspired to violate Foreign Corrupt Practices Act (FCPA) as agent of a person while in United States, relating to alleged international bribery scheme between businesses based in United States and Venezuelan officials and the defendant has the intent or knowledge that the monies involved were proceeds of specified unlawful activity would be unlawfully transmitted from or through a place in United States to a place outside United States. The relevant holding in this case is that prosecuting violations of U.S. laws that exist for the purposes of insisting upon orderly and non-corrupt conduct of actions related to U.S. officials or U.S. persons through fraud under this statute, is constitutional. When it affects the conduct of U.S. government business, or of a U.S. business or person, the statute is actionable and constitutional. Also pertinent is a much older U.S. Supreme Court decision, Hammerschmidt v. United States, 265 U.S. 182 (1924): [F]ormer President and Chief Justice of the Supreme Court William Howard Taft explained in a landmark 1924 opinion, the full meaning of the statute almost anticipates our current surreal scenario: “It also means to interfere with or obstruct one of its [the country’s] lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest." In contrast, fraud in the course of a political campaign to persuade voters is protected by the First Amendment. See United States v. Alvarez, 567 U.S. 709 (2012) (holding that a law criminalizing false factual statements about military honors received in a political campaign called the "Stolen Valor Act" in the version then in force was unconstitutional on First Amendment grounds). But that isn't what this charged is seeking to prosecute. A law review article from 2015 attempts to clarify the scope of Alvarez, distinguishing between completely unprotected lies, lies that are protected so as not to chill the expression of truthful statements, and "lies that must be protected for their own sake". The citation to the article is Alan K. Chen and Justin Marceau, "High Value Lies, Ugly Truths, and the First Amendment," 68 Vanderbilt Law Review 1435 (2015). It is notable that in Alvarez every conservative justice on the Court at the time other than Chief Justice Roberts, voted to affirm the constitutionality of the "Stolen Valor Act", over a mostly liberal majority that held that it was an unconstitutional violation of free speech rights. Now that there is a six justice conservative majority in the U.S. Supreme Court, if the positions of conservative justices on the issue was consistent, the U.S. Supreme Court would be even more likely to uphold the constitutionality of a prosecution under 18 U.S.C. § 371 than the U.S. Supreme Court would have been inclined to in 2012. It is unclear, however, how much this conservative ruling was dependent upon the fact that the statute prohibited lying about military honors rather than about other matters. Conservatives tend to hold honor, and in particular, military honors, in greater esteem than liberals. Also, conservative justice may have been more clear than the liberal justices in that case about just how open and shut these cases were, since the truth or falsity of the statement can be determined definitively, from a single official document, the veteran's Form DD214, which there is a strong presumption that almost any veteran capable of running for political office would understand perfectly well. Another issue which influenced swing votes in the Alvarez case is that the statute that the U.S. Supreme Court considered at the time criminalized fraud regarding military honors even when it was arguably immaterial (e.g. in dinner table conservations with friends or family, as opposed to only in the context of an election campaign, or only in a request for economic benefits or legal privileges). This concern is not present in this particular prosecution under 18 U.S.C. § 371, since Donald Trump would receive the legal benefit of being re-elected as President of the United States if his alleged election results related fraud conspiracy was successful. One critical distinction, previously noted by the Washington State Supreme Court its 2007 decision in the case of Rickert v Washington, is whether, in the context of the speech giving rise to the legal consequences, "the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech." This will generally be true in the case of factual statements related to election results and administration, but will generally not be true in wide ranging statements about policy issues in the course of a political campaign. An August 1, 2022 report of the Congressional Research Service, the non-partisan research arm of Congress, generally confirms the analysis above. This is the only D.C. grand jury indictment for which there is even a colorable free speech argument, but given the case law, it is a weak argument. 18 U.S.C. §§ 1512 (Obstruction of and Attempt to Obstruct an Official Proceeding and Conspiracy To Do The Same) Obstruction of an official proceeding in action action with an intended effect and doesn't prevent people from expressing opinions in a way that does not obstruct official government functions, so again this isn't unconstitutional. The charge in this case charges the crime that: Whoever corruptly-- obstructs, influences, or impedes any official proceeding, or attempts to do so is guilty of a felony punishable by up to twenty years in prison. There is already case law testing the constitutionality of this portion of this statute in the context of the same course of conduct related to the January 6, 2021 riot by a lower level minor from the D.C. Circuit whose rulings are binding precedents in this indictment. United States v. Fischer, 64 F.4th 329 (D.C. Cir. 2023). The foundation for this ruling is longstanding: Speech Integral to Criminal Conduct In Giboney v. Empire Storage & Ice Co. (1949), the Supreme Court held the First Amendment affords no protection to “speech or writing used as an integral part of conduct in violation of a valid criminal statute.” A robber’s demand at gunpoint that you hand over your money is not protected speech. Nor is extortion, criminal conspiracy, or solicitation to commit a specific crime. Abstract advocacy of lawbreaking remains protected speech. There is no constitutional basis to distinguish a direct charge of obstruction with official business from a conspiracy charge to do the same. In the case of the conspiracy to obstruct charge, the co-conspirators take actions that collectively seek to deprive people of their constitutional rights or obstruct an official proceeding, the statements made in furtherance of the group effort to achieve those ends are not legally protected speech. It is the action (either a verbal act or another kind of act) and not the expressive content of the speech that is implicated. 18 U.S.C. § 241 (Conspiracy Against Rights) A conspiracy to cause false election results to be certified to Congress to change the results of a Presidential election by two or more persons impairs the constitutional right to vote, and rights under Congressional adopted federal election laws. Notably, a conspiracy to violate rights, which is a felony punishable by up to death if the conspiracy causes someone's death (as can be plausibly alleged in this case due to a death arising from the January 6, 2021 riot) provides that the felony has been committed: If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same. The U.S. Supreme Court has previously held that prosecuting conspirators for tampering with the process of determining the correct result of the election is constitutional. U.S. v. Saylor, 322 U.S. 385 (1944). This also comes within the "Speech Integral to Criminal Conduct" exception to the protections of the First Amendment that is discussed above. FOOTNOTE: If the Justice Department sought the death penalty on this criminal charge the jury would have to be "death qualified" in the court of jury selection which tends to make the jury more conservative. But, there is no indication that the Justice Department intends to seek this relief in this particular prosecution of Donald Trump. As a practical matter, given Donald Trump's age, health, and the length of time necessary to fully appeal a death penalty conviction (which exceeds ten years in most cases), any criminal conviction with a sentences of ten or fifteen years or more would as a practical matter result in him dying in prison, and it is unlikely that appeals of a death sentence would be completed before he died of natural causes. | The most relevant federal Obstruction of Justice type is from 18 USC 1505: Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress— I'm not sure if passed Articles of Impeachment count as an "inquiry", and I'm not sure whether failing to "send" them to the other house is "corruptly impeding". Even if those two conditions are met, members of Congress are immune to judicial process for acts taken while they are in session, as part of the Speech or Debate clause of the Constitution (Article 1, Section 6, Clause 1): ...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. So, if the person in question is not a member of Congress acting in their official capacity and intentionally endeavors to prevent passed Articles of Impeachment from being sent from the House to the Senate (e.g. a courier intentionally failing to deliver them, or an IT person preventing the electronic form from being copied into the Senate's database), I do not know whether that could be considered Obstruction of Justice, as I doubt such a situation has ever been adjudicated. Given the publicity of the proceedings, such an impediment would probably be found out or overcome so quickly that no one would be inclined to do more than fire the perpetrator. | There is nothing wrong with this requirement. The teacher or professor isn't requiring you to change your opinion. Instead, the requirement is simply to marshall evidence in favor of an opinion that you may not hold. Being able to do this is a valuable rhetorical skill (and a skill which lawyers must routinely employ). For example, in competitive debate, you often do not have the freedom to decide whether you will be arguing in favor or against a resolution, and may not even know which side you will be advancing until moments before the event starts. Freedom of conscience does not extend to freedom from understanding people who disagree with your deeply held belief. UPDATE: Requiring a whole classroom of students (possibly many classrooms of students) to advocate with multiple representatives for a bill does seem problematic, in terms of election laws and probably in terms of the legal requirements that apply to the university, and also possibly in terms of "forced speech", because in requiring the advocacy to be submitted to the official and take a particular position, goes beyond the "let's pretend" veneer that applies in most debate contexts. | This depends on how far along you're waiting for court rulings to set in, and if you count laws of Congress passed under the 13th amendment's enforcement clause. There were quite a lot of things that got ruled as violations of the 13th and 14th amendments (mostly the 14th), but many were not ruled or legislated that way for decades. Some were even ruled to have an essentially opposite effect of what the current (overturning) precedents do. "Separate but equal" was challenged on 13th amendment grounds, but was upheld in Plessy v. Ferguson (1896), and wasn't overturned, on 14th amendment grounds, until 58 years later in Brown v. Board of Education (1954). Your particular situation sounds like peonage, which was outlawed by Congress in 1867 via the enforcement clause. This law specifically banned "the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise." However, peonage cases continued to make their way into the courts for more than 40 years thereafter, such as Clyatt v. United States (1905)— which ruled that peonage was involuntary servitude— and Bailey v. Alabama (1911). These cases affirmed that the 13th amendment abolished not just chattel slavery but essentially all forms of involuntary or indentured servitude (except as punishment for a crime). Though exactly what qualifies as "involuntary servitude" is still something courts decide on a case-by-case basis; the draft doesn't, nor does mandatory community service to graduate high school. | First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept. That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows. |
Under GDPR's strict consent requirement rules, could a criminal/hacker/troll remain anonymous in all his activities? Since GDPR strictly requires consent to Personal Identifiable Information (PII), could a criminal exploit online services by remaining anonymous in all his criminal activities? Providers are not allowed to keep PII without consent. Therefore, any online crimes cannot be traced to the offender. I have also learnt that online services cannot deny service if a person refuses to consent to the provider's data collection policy as of Article 7 of GDPR. This is also discussed in this question Wouldn't this create a haven for online criminals/hackers? | It is absolutely not the case that Providers are not allowed to keep PII without consent. Article 6 of the GDPR identifies six possible lawful bases for processing personal information. These are: (a) the data subject has given consent ... (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; (c) processing is necessary for compliance with a legal obligation to which the controller is subject; (d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks. If a person requests services from an online service provider, basis (b) will apply, at least to some information. If there is evidence of criminal activity, basis (c) may well apply, as it also will for much routine record keeping. Any in many such cases, basis (e) or (f) will also apply. In short, article 6 does not create a "haven for online criminals/hackers". In a comment on another answer the OP writes: The offender has the right to not be identifiable and he can't be denied this right That is simply not correct. Nothing in the GDPR says anything of the sort. It is true that consent may not be forced, but if a user requests a service that service may require the user to identify him- or herself. For example, one cannot order physical goods without giving a name and a shipping address. And the provider may retain PI and even PII when it has a "legitimate interest" in doing so, although if challenged it must justify that legitimate interest. | GDPR rights and obligations cover different things: A duty of the data processor towards the government of the country where they operate to present certain documentation, and to implement technical and organizational measures to protect data. These would be audited by government agencies, not the individual customer. A single data subject cannot waive them. A duty of the data processor to process and store personal data only with a legal justification. User consent is one possible justification, if it is informed, revokable, etc. So a single data subject can waive a "ban" on storing his or her data in a database along with all the other users who waived that "ban," but the duties towards the government regarding that data would still apply. A duty of the data processor to respond to an Article 15 request by the data subject in a certain way and timeframe. If a data subject writes a letter to the data processor and explicitly states that the letter is not an Article 15 request, then Article 15 does not apply. The data subject would of course have the right to make an Article 15 request at a later time. | GDPR definitely applies. Your scenario seems to raise two questions: What is the legal basis for processing? Are the security measures appropriate? Legal basis Every processing activity of personal data requires a legal basis. Most well-known is consent, but there are six categories in Art 6(1) GDPR including legitimate interests and necessity for performing a contract with the data subject. Conditions on consent are laid out in Art 7 GDPR. You say that data subjects “explicitly agree to the website's privacy policy and GDPR”. The GDPR does not generally expect “agreement” to a privacy policy, as information per Art 13 is an unilateral notice. Such general agreement also cannot constitute valid consent. In the context of certifications, the legal basis would likely be necessity for performing a contract with the data subject: You were contracted to provide this validation service to the data subjects. You should however make it clear which information will be displayed on the validation page (other than a valid/not valid) response. For example, I am concerned that showing the email address would not be strictly necessary for providing the validation service. You should also consider whether this validation service is a core component of your certification service, or whether there should be an opt-in or opt-out here. Security Measures The GDPR requires that you implement appropriate security measures, “taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms” of the data subjects (see Art 32 GDPR). This gives you a lot of leeway to determine what measures are appropriate, but also criteria that you must consider in your determination. A number of security measures are explicitly suggested and must also be considered: pseudonymization and encryption ensuring confidentiality, integrity, availability, and resilience of your systems ability to restore the service (e.g. backups) processes for regularly testing and evaluating your measures Aside from generic IT security measures like backups and providing the service over a HTTPS connection, I would be concerned about “insecure direct object reference” style attacks on the database. If I know that certification no 1234 exists, I could try to get the information for other numbers like no 1233 and so on. This would leak personal data. Basic defenses could include requiring additional information such as the data subject's name to be provided, or using anti-bot measures such as captchas and rate limits. However, the real solution is to avoid sequential IDs, and to generate sufficiently large tokens with a cryptographically secure random number generator. Instead of a “certification number”, it would be better to view this as a “validation code”. | Technically, yes, GDPR might apply. Filming other people does involve the processing of personal data, and GDPR will apply unless this is for “purely personal or household purposes”. But exactly that will be the case for most holiday snapshots or short clips for your personal social media. As far as I understand, you do not have to worry about purely personal activities. Even if GDPR would apply, this doesn't mean it would be illegal. It means you'd need a “legal basis”, such as a “legitimate interest”. If there are just a couple of people in the background of a video, it's possible that their rights might weigh less important than your interest in shooting the video – but that would need a case by case analysis. Your legitimate interest would almost certainly prevail if you need to record a crime to which you are victim. Regardless of GDPR concerns, note that this is just a small aspect of legal concerns. Instead, also consider personality rights copyright (if art or architectural works are visible) / freedom of panorama customs and reasonable expectations of other people These issues will depend largely on the specific country or area you are travelling to. Europe is not homogenous in its perception of privacy issues. For example, consider the issue of dashcams in a car. These are considered to be quite normal in some European countries, but effectively illegal in others. | Is it GDPR compliant that I can't access the account that I created and the personal data that I shared because "I haven't completed their internal pre-qualification process"? Article 15 defines a “Right of access to the data subject” but it's difficult to see how this could be construed as a right to log into a specific website. Common sense suggests this would be a very bad idea. If they are willing to provide the data through another means (say a report or data dump of some sort), the obligation would seem to be met. In fact, article 15(3) even states that data controllers should merely provide the information in a “commonly used electronic form” (i.e. not necessarily through access to their systems or whatever form they are using internally for the processing). Have you asked for that and would you be satisfied by that resolution? Is it GDPR compliant that their answer to my deletion request is "We will delete the data..." The text of article 17 (right to erasure) explicitly specifies that such a request must be honored without “undue delay”. Article 12, which defines some of the modalities for the rights to access, rectification or erasure by the data subject, also provides that controllers shall “provide information on action taken on a request […] without undue delay and in any event within one month of receipt of the request”. You haven't provided any time frame and I don't think there is anything wrong with acknowledging the request by promising they “will” do it but in light of article 12, it seems you would indeed be entitled to know once they have actually taken further action. However, you implied you might want to access the data first and it's not clear to me whether you explicitly invoked the GDPR in earlier communications. So I would clarify and reiterate my request (access or erasure) and ask them for explicit confirmation once it has been satisfied. | Whether consent is necessary depends on the specific processing purposes. For example, general usage statistics about search terms or about the usage of the site likely fall under a legitimate interest. Outside of the GDPR, there can be consent requirements for the use of specific technologies. Per the ePrivacy directive, consent is required for accessing or setting cookies on a user device, unless the cookie is strictly necessary for the service requested by the user (“functional cookie”). This consent requirement also extends to other storage and fingerprinting technologies. A functional cookie could e.g. be used to store a history of search terms on the user device itself. However, ad personalization is not strictly necessary for the search functionality, so setting cookies (or using similar technologies) for ad personalization requires consent, regardless of whether ad personalization itself would require consent. To determine whether a processing purpose falls under a legitimate interest, the data controller must weight the interest against the data subject's rights and freedoms. There are no objective guidelines on this, and ultimately a court would have to decide. However, I would assume that the tracking necessary for ad personalization is an inappropriate infringement on the data subject's rights and freedoms, so that ad personalization cannot fall under a legitimate interest. The data controller would have to choose a different legal basis, which effectively only leaves consent. | Caution: I am not a lawyer. It depends on who is doing the collecting and storing. If it is done "by a natural person in the course of a purely personal or household activity", then it is exempt from the GDPR, as per Art. 2. Beware, however, that "purely personal activity" means that you do not share or publish them. In this court case, having the name or phone number of someone else on your "personal" website constitutes "processing of personal data wholly or partly by automatic means within the meaning of Article 3(1) of Directive 95/46". | Of course it is illegal. You are attempting to access somebody's data without their knowledge and certainly without their consent. In the U.K. it is a crime under the Computer Misuse Act 1990, the Police and Justice Act 2006 and the Serious Crimes Act 2015. The clue here should be in the term Serious Crimes. The Human Rights Act, and indeed the ECHR, should never come into it unless it was state sponsored or corporate spying. And even then certain states have given themselves Orwellian totalitarian authority to do as they please. |
Given the US Constitution's 1st Amendment freedom of religion, how can current pandemic restrictions on worship be legal? The 13th amendment ending slavery and involuntary servitude, which has a big "except" for allowing it as a punishment for crimes. The 1st amendment has no exceptions listed though. It also has several rights squeezed into it: speech, press, religion, protest. So any threat to 1 right within it should rightly be considered a threat to the others. How can any restriction on worship gatherings be legally justified given the 1st amendment? Are there any legal precedents? Full disclosure: I am an atheist. It absolutely makes sense, from a public health and safety perspective, to put restrictions on large gatherings of any sort, for worship or otherwise. However, given the language of the 1st amendment -- and it being the legal shrine of multiple freedoms -- it seems hard to justify and a dangerous precedent from a legal perspective to enact any laws or rules abridging worship of any kind. | The First Amendment is never interpreted as a complete prohibition against laws that could affect a religion, nor is it interpreted to mean that you can say or write anything whatsoever that you want. You cannot sacrifice humans when in the name of a religion, and you cannot sacrifice (murder) humans for fun. One part of the First Amendment regarding religion is the Free Exercise clause which says that you cannot prohibit the exercise of a religion, and another, the Establishment Clause, prohibits favoring a religion, or favoring religion over atheism. The clauses about free speech also do not mean that you can commit fraud and you cannot threaten people's lives. What decides how far the government can go is "strict scrutiny", a doctrine that limits the extent to which the government can infringe on fundamental rights – First Amendment rights are the canonical example of a fundamental right. The main hurdle that a law so scrutinized has to pass is that the law is necessary for a compelling government interest. Preventing massive deaths is generally seen as such an interest. Then, the law has to be narrowly tailored to affect "just those cases", and it has to be the lest restrictive means of accomplishing that end. Although the prevention of massive deaths is a compelling government interest, a government might screw this up in their legal arguments, as they seem to have done in Capitol Hill Baptist Church v. Bowser, where mass political protests were allowed but smaller religious meetings were prohibited. The government essentially "waived" that compelling interest, replacing it with an interest in preventing church meetings, which is plainly a violation of the First Amendment – they substantially burdened religious practices. | School districts / states do generally have the power to set the curriculum including the viewpoint that will be officially conveyed. One well-known major restriction on such viewpoint restrictions is that the schools cannot restrict the free exercise of a religion, and cannot take a position on a religion. Apart from the religion third-rail, schools have pretty free reign in setting the curriculum, see Evans-Marshall v. Tipp City for one instantiation. In this case, the teacher assigned various books, including Heather Has Two Mommies, one of the books that prompted an outcry. The upshot of that case is that a teacher cannot invoke the First Amendment to override policy. This article (draft version, easier to handle) (published version, annoying footnote structure) reviews the topic, and section III covers prior cases. It notes that the cases of Lawrence, Windsor, Obergefell do not address the constitutionality of these education laws, though the reasoning in the prior cases might be applicable if there were a suit over curriculum. There is an implication that some of these rules have been enforced in the past, but most of the evidence is in the form of news stories (Beall v. London City School BOE is not available in the open). The article does engage in a somewhat deeper study of enforcement in Utah, where it was enforced (until it was repealed). Enforcement is necessarily indirect. The law require school districts to have a particular curriculum; violation would come when an individual teacher taught contrary to the prescribed curriculum. Those laws do not contain any provision like "a teacher who violates these rules gets fired", instead, punishment is via the general rule that you have to teach what is in the state-mandated curriculum. Rather than officially terminating a teacher for violating this curricular guideline, districts use vague reasons for non-renewal such as "due to problems with communication and teamwork" (from Evans-Marshall). | The Constitution does not define any crimes (except for an explicit limit on what can be considered 'treason.') It places limits on what penalties the government may apply for crimes and how crimes are tried in court, but it does not itself actually create any criminal offenses. Rather, state and federal law do that. Having said that, if a state government creates a crime of murder (which, obviously, they all do,) the Equal Protection Clause of the 14th Amendment does require that that law protect all people within the jurisdiction of that state. That is, a state cannot make a law criminalizing the murder of a white person, but not of a black person, for example. States can't just pick and choose who is protected by their laws. It would not violate the U.S. Constitution if a state completely decriminalized murder, though. It's exceptionally unlikely to happen, but it would not be a violation of the Constitution. Depending on exactly what you mean by 'murder,' it could be argued that murder by the government is unconstitutional, though. The 14th Amendment bans states from depriving anyone of life without due process of law: 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. Similarly, the 5th Amendment provides an equivalent protection from the federal government: No person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law | In Egbert v. Boule, 596 U.S. ___ (2022), the Supreme Court held that "there is no Bivens action for First Amendment retaliation." The Court was unanimous on this point. This means that right now, there is no way to sue for a damages remedy for First Amendment retaliation by federal officials. The majority said that "Congress, not the courts, is better suited to authorize such a damages remedy." | A school district has been sued for something like that. In Church of God, Etc. v. Amarillo Indep. Sch., 511 F. Supp. 613, plaintiffs successfully sued the school district "to enjoin the enforcement of the Amarillo School District's absence policy which limits the number of excused absences for religious holidays to two days each school year", where "A fundamental tenet of the Church of God is that members must abstain from secular activity on seven annual holy days". The school district imposed an absence polity where "School work missed may be made up whether an absence is excused or unexcused", and "Excused absences shall be granted to students for a maximum of 2 days for religious holidays in each school year". The court concluded that "This policy poses an unquestionable burden on the Plaintiffs' religious belief", and "This burden is not ameliorated by the make-up work provision. The provision does not require a teacher to evaluate the work made up. It in fact directs the teacher to enter a zero for that work". In this case "Summary judgment is granted and judgment rendered enjoining the enforcement of the Amarillo Independent School District's excused absence policy insofar as it limits the number of excused absences for religious holidays". This is not a matter of religious discrimination, this is a First Amendment issue. The policy is in violation of the Free Exercise clause. Eliminating spring break per se is not a problem: doing so and providing no excused absences is the problem. In the above case, there was clear a religious principle of the church to the effect that one must be off the clock on the holiday. As far as I know, there is no requirement to abstain from work or school on Shrove Tuesday, Ash Wednesday or Good Friday. Nevertheless, in recognition of New Jersey state law which allows any student to take off a religious holiday – including Shrove Tuesday and Ash Wednesday, and dozens more – the Board of Education has prepared a list of such holidays, which includes Wiccan, Hindu, Baha'i, Jewish, Zoroastrian, Church of Scientology (and so on) religious holidays. | Actually, there is not a government kill list, that is just a meme. The First Amendment says (starts) "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...". That means a number of different concrete things: there shall be no laws prohibiting any religion, or preferring a religion, not may there be laws impeding or promoting the practice of a religion. The government therefore cannot reward or punish a person for believing in skin walkers, nor for turning themselves into a coyote (if they can do it). The old practice of burning witches at the stake is illegal, similarly at least under current understandings of the law it would be illegal to punish those without a religion with a fine or death. The aforementioned person can thus practice witchcraft – up to a point. One cannot get away with murder by claiming that they are just practicing the Ásatru ritual of blót. Church of the Lukumi Babalu Aye v. City of Hialeah is an example of how the government can not restrict a religious practice (banning animal sacrifices of a particular religion), Employment Division v. Smith is an example of a neutral prohibition which happens to impinge on a religion (outlawing certain drugs limits a religious practice). | This depends on how far along you're waiting for court rulings to set in, and if you count laws of Congress passed under the 13th amendment's enforcement clause. There were quite a lot of things that got ruled as violations of the 13th and 14th amendments (mostly the 14th), but many were not ruled or legislated that way for decades. Some were even ruled to have an essentially opposite effect of what the current (overturning) precedents do. "Separate but equal" was challenged on 13th amendment grounds, but was upheld in Plessy v. Ferguson (1896), and wasn't overturned, on 14th amendment grounds, until 58 years later in Brown v. Board of Education (1954). Your particular situation sounds like peonage, which was outlawed by Congress in 1867 via the enforcement clause. This law specifically banned "the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise." However, peonage cases continued to make their way into the courts for more than 40 years thereafter, such as Clyatt v. United States (1905)— which ruled that peonage was involuntary servitude— and Bailey v. Alabama (1911). These cases affirmed that the 13th amendment abolished not just chattel slavery but essentially all forms of involuntary or indentured servitude (except as punishment for a crime). Though exactly what qualifies as "involuntary servitude" is still something courts decide on a case-by-case basis; the draft doesn't, nor does mandatory community service to graduate high school. | In Does v Enfield, the ACLU, the ACLU of Connecticut and Americans United for Separation of Church and State sued the Enfield, Connecticut Board of Education. In that case, the school district agreed to stop holding the ceremonies in church. The lawsuit was brought based on the fact that the church had significant Christian iconography and banners reading "Jesus Christ is Lord" and "I am GOD." The school district agreed to stop holding ceremonies in the church after a federal judge declared plans to hold ceremonies in the church unconstitutional. The lawsuit was dropped once the school district agreed to abandon the church venue for school functions. In Elmbrook School District v. Doe, the seventh circuit court of appeals ruled against the town's plans to hold graduation ceremonies in a church and the Supreme Court declined to hear the town's appeal. In each of these cases, the school districts argued that merely using the facilities of a religious institution did not endorse the religion in violation of other Supreme Court precedents. The plaintiffs argued that exposure to the messages found within the church was enough to trigger a violation. Elmbrook School District is in the 7th circuit and the Enfield, Connecticut Board of Education is in the 3rd district. North Carolina is in the 4th district. Note that for the 7th district case, the appeals court initially found for the school district. The full circuit reconsidered and, in a 7-3 split, found that the venue could not avoid being coercive and violated the 1st amendment. In each of the cases presented here there were significant religious symbols in the venue as well as religious pamphlets, publications and bibles. The challenges were not brought based on the venue but, rather, based on the unavoidable messaging found inside those venues. It would be a completely different challenge if a graduation ceremony were held on church property in an unadorned building such as an auditorium with no religious symbols or messages. An example is Wayne Community College, in North Carolina, which has scheduled their 2017 graduation ceremony at Love Temple United Holy Church. When looking at photos of the church's auditorium one notices a lack of religious iconography and messaging. Without exposure to such iconography or other religious messaging it's possible that a public school's choice of such a venue would withstand legal challenge. |
Using Tinder photos for machine learning I would like to download images from Tinder to use with an image classification app. (Tensorflow with Imagenet to be precise.) Is it illegal to download those images for that purpose? Also, can I post my findings and/or write a publication based on them? | Tinder's Terms of Service (TOS) is pretty clear: Therefore, you agree not to: • use the Service or any content contained in the Service for any commercial purposes without our written consent. • copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, images, trademarks, trade names, service marks, or other intellectual property, content or proprietary information accessible through the Service without Tinder’s prior written consent. • use any robot, bot, spider, crawler, scraper, site search/retrieval application, proxy or other manual or automatic device, method or process to access, retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents. • modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service, or cause others to do so. • use or develop any third-party applications that interact with the Service or other users’ Content or information without our written consent. The Company may investigate and take any available legal action in response to illegal and/ or unauthorized uses of the Service, including termination of your account. If you ignored that and did your machine learning research with images anyway, you're breaking the TOS, and to be honest, you may not be caught. But if you published your research, Tinder could demand you engage in arbitration or sue you on the premise that your research proves you violated their TOS. If your jurisdiction is outside of the US, other laws may come into play, but it's safe to assume you could still be in legal jeopardy from Tinder. | You don't seem to be distinguishing properly between "original artwork" and photographs of it. A 19th-century painting will be out of copyright, so you can set up an easel copy it yourself, or even take a photo if the owners don't mind; your copy can be used however you please. However, other people can't use your photograph without your permission. Similarly, if you want to reuse a photograph used in an art book, the important thing is the copyright on the photograph, not the painting. | The relevant law in England and Wales is the Protection of Children Act 1978. Under section 1 of the Act, it’s a defense to distributing, showing, or possessing indecent images of children if you had a “legitimate reason” to distribute, show, or possess them. It’s also a defense if you had not seen the images, didn’t know they were indecent, and didn’t have any cause to suspect they were indecent. However, the 1999 case of R v. Bowden held that downloading a digital copy of an image counts as “making” an image. This is not subject to the “legitimate reason” defense by statute (although I don’t know if it’d count as “making” if you have no reason to know the contents, like if a computer repair shop backs up a customer’s hard drive without looking at what’s on the drive). However, it is explicitly still subject to defenses in sections 1A and 1B of the Act. 1A covers spouses and partners. If you are the spouse or partner of a child between 16 and 18, then with their consent you can legally make indecent images of them (although this doesn’t apply if anyone but the two of you is in the image). You can also possess those images with their consent and give them a copy. Section 1B covers criminal proceedings, investigations, etc., and was added after R v. Bowden. Because copying a digital image counts as “making” an image, it would generally be illegal for people to work with digital copies of indecent images even if done for a good reason. To avoid that, Parliament made an exception for making an indecent image when necessary to prevent, detect, or investigate crimes, as well as for criminal proceedings anywhere in the world. Parliament also exempted the UK’s intelligence agencies (MI5, MI6, and GCHQ) when carrying out their duties. These are specific statutory exemptions, so they can’t really be generalized to “if you have a legitimate reason.” | This seems to be a mix of question about law and a meta-question about this site, but I'll treat it as an on-topic question about law. The author of a question, or answer, owns the copyright to their contributions, and they can re-publish to their heart's content. Any user who posts here grants a license to SE and other users to use content posted here, so I don't have to ask you permission to quote you. As part of the permission granted by SE to use this website, you have agreed to "follow the rules" set by SE. There are many rules, some spelled out more clearly that others. For example, if you post a question, you indirectly agreed that your content can be upvoted or down-voted. Certain content can be "closed" and deleted, when the content is deemed to violate the rules in particular ways (is spam, porn, abuse, or judged to be poor-quality). Judgment (on different matters) can be rendered by community managers, moderators, or other users. The agreement is here, see especially here. If we take the post that you linked to, it is quite possible that it was deleted because it is not a general legal question, in violation of the acceptable use policy. If you want a historical analysis of your particular case, it should be asked on Law Meta. | The key issue here is the unauthorized collection of video thumbnails, not the use of cloud services. Under GDPR, every personal data processing activity has one or more controllers who are responsible for the activity, and every such activity needs a “legal basis”. With such cameras, the operator will typically be a controller, since they determine the purposes for which this camera is used. In this scenario, the operators – as part of their responsibility to conduct the data processing activity in a GDPR-compliant manner – had disabled any cloud features provided by the camera manufacturer. Despite this configuration, the camera manufacturer collected thumbnails and uploaded them to servers under their control. So, we likely have two distinct issues at hand: the camera manufacturer misled its customers about the privacy settings of the cameras. This is not necessarily a GDPR issue by itself. the manufacturer performed data processing activities in contravention of various aspects of the GDPR. Relevant aspects of the GDPR that might have been violated: the manufacturer did not have an Art 6 GDPR legal basis for this processing activity, such as a “legitimate interest” the manufacturer did not provide information per Art 13 GDPR to the people being monitored this way even if the cloud-based thumbnail processing were intended, this could be a violation against the Art 25 obligation to ensure “data protection by design and by default” depending on how the cloud storage services were configured, there might be violations against the Art 28 responsibility to contractually bind such vendors as data processors, or against the Chapter V rules on international data transfers Different actors might have different remedies against this violations: buyers of the camera might have remedies under consumer protection and product liability laws against the manufacturer data subjects of the illegal processing activity have remedies under the GDPR they can exercise their data subject rights against the data controllers, such as erasure of the thumbnails. However, this will be difficult to exercise in practice since the manufacturer will not have identifying information, and would then be free from having to fulfil certain data subject requests per Art 11 GDPR. they can lodge a complaint with a responsible supervisory authority, which would be the data protection agency in their EU/EEA member state (or the ICO in the UK). The EDPS is irrelevant here, since it is only the internal supervision authority for EU institutions. The competent supervisory authorities can levy fines. they can sue the data controllers, both for compliance (e.g. deleting unauthorized thumbnails) and for damages, if any were suffered. However, immaterial damages awarded for GDPR violations are typically fairly low, if they are recognized by the court at all. the right to judicial remedy (sue the controllers in court) and to lodge a complaint are independent. They largely pursue different remedies. Both can be used to seek compliance, but only supervisory authorities can impose fines, and only direct lawsuits by the data subjects can seek damages. | Photographs of objects other than flat artworks, including pretty much all the things you list except in some cases oil paintings, involve creativity and originality in composition, positioning, lighting, and other aspects, and each such photo would be copyrighted by the photographer (or the photographer's employer in a work-made-for-hire situation). Such photos (or copies of them) could be sold if the copyright owner chooses to, just like any copyrighted work. If the object being photographed is itself a work of art, and if it is recent enough that it is still under copyright protection (See this chart for US rules on copyright terms), then the photo would be a derivative work, and the permission of the copyright holder on the original would in theory be required. But such a requirement could only be enforced by the copyright holder on the original work filing suit, and if the work is not clearly identifiable this might not be likely. If the photographer knows the name of the original artist, and the work seems likely to be still in copyright, an attempt to secure permission would be at least good practice, and quite possibly legally essential. For a flat (2D) work of art, such as a painting, if the photo attempts to reproduce the original exactly (a "slavish copy" ), then under the Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) decision, the photo will not be original and so will not be protected by copyright. See this question and its answers for more on Bridgeman A photo of a painting on a stand, showing the painting and its frame, and not trying to just reproduce the painting exactly, will not fall under the Bridgeman rule. This answer is quite US-oriented. Much of it will apply in any country which adheres to the Berne Copyright Convention but the details may vary, and if a different jurisdiction is intended, that should be stated. | It's hard to say, under the Twitter TOS. They do not claim that copyright is transferred to them: "You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your photos and videos are part of the Content)". But you do license the content: By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services. The totality of conditions, including the Twitter Rules, is ever-evolving and not apparently contained in a single link. From what I can tell, there is no condition that prohibits a user from copying tweets into a book. There are numerous statements about "respecting copyright" which refer to taking material that is not licensed to Twitter and redistributing: nothing about redistributing licensed material.A plain reading of the first bold sentence says that you can make your content available to the world, not restricted to "retweeting". | Owing to the First Amendment, in the United States your recourse would be limited to civil action based on violations of terms of service (meaning that "the authorities" are not going to knock on their doors to tell them to behave). This is not "spam" (which could be regulated) as the term is generally understood. It is annoying, but probably does not constitute threatening or child porn. It might involve violation of an anti-impersonation law such as this one from Texas, if the offender uses the persona of a real person as opposed to a fictitious person). That law, moreover, does not criminalize simple annoying. Prosecution may be possible in the UK. |
How do I challenge my HOA's decision on my request to modify my property? I'm in St Louis, Missouri. My house is a part of a HOA. It has bylaws and the bylaws state that alternative dispute resolution may be done through the City of St Louis in accordance with Chapter 435, Mo Rev Stat. In which court do I have to file a petition to have a judge review the board's decision and what form do I need to fill out, as I believe the board's decision is unfair? | You can’t go to court Chapter 435 is an arbitration statute. By joining the HOA, you agreed that disputes would be resolved through arbitration, not litigation. The contract should specify how the arbitrator is appointed. | I have bad news. California's vandalism law prohibits maliciously: defacing property with graffiti defacing property with inscribed material damaging property destroying property Chalking the sidewalk probably doesn't sound very malicious, but maliciousness includes “an intent to do a wrongful act, established either by proof or presumption of law.” So the questions is whether you intended to do a wrongful act -- meaning that you intended to do the act, which happens to be wrongful, not that you intended to act wrongfully. So unless you drew on the sidewalk accidentally, the malicious-intent requirement isn't going to help you. So then you have to ask if your conduct is described by the statute. In Mackinney v. Nielsen, the Ninth Circuit said that sidewalk chalking did not violate the law, but California has since amended the law to add the "deface with graffiti" language. I haven't seen any chalk cases since then, but another case, In re Nicholas Y., from the Second District, dealt with someone who used a marker on a window. He argued that it could be easily erased, but the court said it was still vandalism because: it "mars the surface with graffiti which must be removed in order to restore the original condition" the definition of "deface" "does not incorporate an element of permanence" "marring of the surface is no less a defacement because it is more easily removed." Given that language, I'd argue that the vandalism statute includes sidewalk chalking. But one important element here is that most sidewalks are owned or controlled by the government, so any effort to restrict "expressive conduct such as writing with chalk" (Guilliford v. Pierce County) expressive activity" there must comply with the First Amendment. The government has varying degrees of latitude on the restrictions it can impose, depending on the character of the space involved. So in a courtroom, whose function is incompatible with free-wheeling public debate, a judge can set quite a few rules about how people may speak. But sidewalks are considered a "public forum," where the government's ability to regulate speech is a lot more limited. So how does the First Amendment apply? There's a D.C. Circuit case (Mahoney v. Doe) dealing with abortion protesters who wanted to use chalk on the streets and sidewalks outside the White House. Police told them they would be arrested for violating D.C.'s defacement statute, so they brought a First Amendment challenge. The court upheld the law, saying that it satisfied all three prongs of the public-forum test: The law must be content neutral, meaning that it prohibits conduct without reference to what is being said. The Court said the defacement statute was content neutral because people could be prosecuted regardless of what they wrote or drew. The law must be narrowly tailored, meaning that it serves a significant governmental interest and does not restrict more speech than is necessary to achieve that goal. The Court said the defacement statute was narrowly tailored because it served the government's interest in maintaining the aesthetic appeal of the area in front of the White House and didn't restrict any speech that does not deface public property. The law must leave open ample alternatives for communication, meaning that even if you can't express yourself in the way restricted, you still have meaningful opportunities to express yourself. The Court said the defacement statute law allowed adequate alternatives for communication because the group could still congregate, march, speak, hold signs, and hand out leaflets. There's an interesting wrinkle there in terms of whether the interest in aesthetics is heightened because we're talking about the White House, but generally speaking, aesthetic concerns can still justify speech restrictions. So the bad news is that unchaining your inner six-year-old may subject you to criminal liability. That leaves the question of whether you want to unleash your inner teenager and do it anyway. This could help put you in a frame of mind for making the decision. | Does the HOA's lawyer have a duty or is it standard practice to label documents (including) as privileged if it contains privileged information? While it is sometimes labeled, this is done by attorneys when it is done, mostly to prevent stupid clients from sharing the information and waiving the privilege. Usually, however, documents are not marked as privileged in advance and when documents are requested from a third-party this analysis is usually done by junior attorneys and paralegals working as a team for the first time. Formal designation is not required because the definition of what is protected is defined by statute and common law rules on a uniform basis. The duty to share information with HOA members does not generally extend to privileged information. If a document that would otherwise be required to be disclosed (like attorney invoices) contains privileged information, the usual course of action is to redact the invoice so that it contains only non-privileged information (e.g. a bottom line amount owed and the date of the invoice and the matter). In an HOA context, the privilege of the HOA as a client belongs functionally to the board and its officers, not to all of the members of the HOA. Does the Association's contractor who maintains the records have a duty to act as a gatekeeper to said invoices if they are not labeled? This depends upon the contract between the Association and the contractor. A well written contract would include this duty, and spell out the mechanics of how it is implemented, but not all contracts live up to best practices. A related issue is whether a release of privileged information by an independent contractor constitutes a waiver of the privilege by the client if the contractor is not in an agent-principal relationship with the Association, which is often a determination made only after the fact by a court. Some jurisdictions' rules of civil procedure provide a waiting period between the issuance of a third-party subpoena for documents and the earliest time that those documents can be delivered to a third-party, to allow objections on grounds of privilege or another basis to be raised prior to the disclosure of the documents. Colorado Rule of Civil Procedure 45, for example, has such a provision. I don't know what the rule is in Florida on that issue. | I would assume that the seller ('Transferor') still owned numbers 7 and 11 at the time of the sale. If so, this clause means that the owners of 7 and 11 (now and in the future) have a right of way on the path coloured blue on the plan. The land still belongs to number 9, but the owners cannot build on it so as to block the path. (As mckenzm comments, "on foot only" is an important qualification; the neighbours do not have a right to install utilities under the path, and the owner can put in obstacles that prevent bringing cycles down it). | Typically the landlord will have a preexisting clause in the lease that says the landlord may choose to amend the lease at a later date. While that may be in contracts, I don't see that holding up in court. You can't unilaterally amend contracts to add new terms without acceptance on part of the lessee. Any clause in the contract like that will require notification of the lessee of the change and a chance for the lessee to terminate the contract without recourse on part of the lessor. Generally this must be done in the same format as the original lease (written). Most jurisdictions don't allow for a verbal amendment to a written lease. So in a way, yes, it is legal for a landlord to require payment via a certain method (like a direct debit from a bank account). They cannot however change the payment terms unilaterally without notification and acceptance. They can use language such as sending the notification (via registered mail) and then saying that a failure to respond is acceptance (because you are, by actions, accepting the terms by continuing to live there). | Neighbors(including us) around the property started to mow the part in front of their yard(the weeds grew very high) and continue to do so(is it illegal for us to mow this overgrown land?). There are probably city codes around maintenance of lawns, cutting grass and clearing weeds. You should alert the relevant authorities and they will make sure that the maintenance occurs. You should probably not do it yourself since (a) you don't owe the owner any favors and (b) you might cause trouble for yourself. Recently there was some mowing by large tractors but very little was cut and most of it grew back. The question is really whether their activities bring them into compliance with applicable city codes or not. If they are compliant and you simply don't like how they maintain their property, that is tough luck. If they are not compliant, you are well within your rights to vigorously report them to relevant code enforcement authorities. This overgrown golf course is home to many wild animals(coyotes, snakes, foxes, alligators, etc..) See above 1) Is there any legal action that we can take to force the land owner to maintain the land? See above 2) Could this land somehow under some law be divided and given to the maintainers. This is an interesting question. Technically there are circumstances wherein you could take what's called adverse possession of part or all of the property. This would probably include doing things like actually residing on some piece of that land and establishing a residence there - perhaps getting mail or paying taxes there or paying utilities or operating a business - for a certain period of time without any interference from the technical owner. If you can meet the requirements of adverse possession then you might be able to become a legal owner. Unless you have little to lose, however, actually doing it might be difficult. 3) Is it legal to walk/drive on this land. (I see people walking their dogs, and driving atv's and motor bikes on the golf course) Unless you have been given notice otherwise, it is perfectly legal to walk wherever you like. It is the owner's responsibility to provide reasonable notice and take reasonable precautions against unwanted trespass; e.g., putting up a wall or fence, closing and/or locking a door or gate, posting signs and/or hiring security to patrol the property and enforce property rights - or occasionally checking to make sure their property isn't overrun with squatters. | Gated communities are generally part of homeowner's associations that have covenants, rules and regulations regarding how you can use your property. In all likelihood, blocking sidewalk, and perhaps even parking in your driveway, is prohibited by these HOA limitations. HOA's have the right to ticket and fine you for violating its rules. The fines, if not paid, can be converted to liens and used to foreclose upon your property. You can also be banned from using HOA common areas if you do not refrain from violating HOA rules and/or don't pay your fines. This is perfectly legal. If you live in gated community, you are required to follow their rules. Even if you didn't live in an HOA, blocking a sidewalk is usually a violation of municipal ordinances and is tortious activity that can be the basis for a lawsuit against you. | My general belief is that in the United States entering structures like the ones you've pictured would be considered trespassing regardless of if there is a sign in place or not. This is based on the fact that I'm almost certain that if you become injured while on the premises you could sue the land owner. I believe the trespassing signs are just there to give legal cover to the land owner in case someone does try to sue them. Here are two sources that essentially support my beliefs: General definition: Trespass is defined by the act of knowingly entering another person’s property without permission. More detailed legal definition: § 11.411 Criminal trespass. (a) A person commits an offense if, knowing that he or she is not licensed or privileged to do so, he or she enters or surreptitiously remains in any building or occupied structure. An offense under this subsection is a misdemeanor if it is committed in a dwelling at night. Otherwise it is a petty misdemeanor. As you can see these buildings are clearly owned by someone, and you clearly haven't gotten permission to enter the building. Ergo, you're trespassing. Now if you were talking about ancient Mayan ruins, or an Old West ghost town then this would be more of a gray area, I believe, since those structures have been abandoned for 150+ years. The same goes for structures in National Parks, since a National Park is public land you could make a case that you thought you were allowed to go since you weren't specifically told you can't go (assuming you didn't cross a fence line/no trespassing sign). You should definitely contact a real lawyer though. Now if you do enter then I think the probability that you will be caught and prosecuted would be fairly low. It is your decision if that risk is worth the reward of entering/exploring the structure. |
Why must victims of 'sex-for-rent' arrangements be legally defined as prostitutes to seek justice? This Morning Star article describes attempts by Labour politicians to make it easier to prosecute 'sex-for-rent' arrangements, where landlords "demand sex from tenants in lieu of rent". The article includes the following paragraph: Under current legislation, victims must be legally defined as prostitutes, which is thought to be a deterrent to victims coming forward since they may fear that it will adversely affect their future. Under what law must victims be legally defined as prostitutes in order for a prosecution to take place? | Why must victims be legally defined as prostitutes in order for a prosecution to take place? The arrangement is currently illegal* because it constitutes causing or inciting prostitution for gain or controlling prostitution for gain, contrary to section 52 or 53 of the Sexual Offences Act 2003, so the victim would then be a prostitute. *At least in the view of the Crown Prosecution Service. As there has not been a prosecution brought in court, this interpretation on the applicability of s. 52/53 remains uncertain. | Yes. It is fairly common for there to be one owner at law, but another person who has a beneficial interest - such as a long-term cohabiting partner. This may arise because the parties set it up that way, or perhaps more often when courts find that there is a "constructive trust" or a "resulting trust". See for example the concurring opinion of Lord Hope of Craighead in Stack v Dowden [2007] UKHL 17, Parties are, of course, free to enter into whatever bargain they wish and, so long as it is clearly expressed and can be proved, the court will give effect to it. But for the rest the state of the legal title will determine the right starting point. The onus is then on the party who contends that the beneficial interests are divided between them otherwise than as the title shows to demonstrate this on the facts. The resulting court process may find that the beneficial interest exists, or not, and what fraction of the property it represents. It's common to find situations where one party put up most or all of the whole purchase price of a house, which was then registered in both names, and they then disagree about whether it should be split 50-50 or otherwise - that's an example of the beneficial ownership differing in proportion from the (equal) legal ownership. (See Jones v Kernott [2011] UKSC 53 at paragraph 51 for an explanation of this particular pattern.) The same sort of case arises when a cohabiting partner does not own the house, but still contributes to the mortgage and other bills - then, depending on the facts at hand, there may be a "constructive trust", and the partner is entitled to a share of the sale price of the house even though they are not its legal owner. A "resulting trust" might arise when someone contributed money for the purchase of the property, even though they didn't end up as a registered owner, but the parties acted in other respects as if they were joint owners. | Its worth actually reading through the law again - they're meant for different categories of drugs - and its worth looking up the relevant laws as a whole. You can't cherrypick which law you charge them under in this case. It depends on what the suspect has in posession, and if you have more serious charges, they're probably going to be preferred unless the prosecution decides to throw the entire library at the suspect and charge them with everything they can, or a larger subset. A quick search on the internet - which shouldn't be taken as legal advice, brings up this link. Category 1 drugs are addictive and seen as therapeutically useless - you shouldn't have any realistic reason to have quantities of it in your posession. Category 3 is drugs with therapeutic use - stuff like codine. You could get a prescription for that, but there's potential for abuse. They're aimed at different classes of drugs - and the confusion is over a misinterpretation of what the law is about. As an aside, this is why you need to usually read more than just a specific statute or law to get what its about. | Section 170 of the Online Safety Bill proposes a new section 66A in the Sexual Offences Act: 66A Sending etc photograph or film of genitals (1) A person (A) who intentionally sends or gives a photograph or film of any person’s genitals to another person (B) commits an offence if— (a) A intends that B will see the genitals and be caused alarm, distress or humiliation, or (b) A sends or gives such a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether B will be caused alarm, distress or humiliation … (5) References to a photograph or film also include— (a) an image, whether made by computer graphics or in any other way, which appears to be a photograph or film … So the law doesn’t define or prohibit the sharing of “deepfakes” as such. What makes the sharing illegal is the sender’s state of mind and the recipient’s potential “alarm, distress or humiliation.” Subsection (5)(a) then makes it clear that the law applies even if the shared image is computer-generated and therefore not really “a photograph or film of any person’s genitals.” | If you introduced the bedbugs, liability could flow to you by way of the landlord keeping your security deposit (if there is one) and explaining when sending you notice that a portion/all of your deposit was withheld due to you causing the infestation for the purposes of remediation. The inverse is also true, in that if you do not have a deposit, you could be sued in housing/small claims court for the infestation if you were negligent in some way (grabbed the mattress curbside and didn't put a bedbug proof sealed cover on the mattress. Since you said you rent a room, my curiosity is piqued as to whether it came with the bed (mattress). If the bed came with the room, it is almost certainly not your fault. Even when there are statutes/codes/regs delineating a lessor's/lessee's obligations and rights re pest control (from jurisdiction to jurisdiction) they rarely exclude the right to general civil remedies. I used to represent my municipality and remember reading that bed bugs are difficult to treat unless the bed is disposed of and all bedding is washed in hot water with a disinfectant and even that can not ensure their removal because if you brought them in because of access to them on a regular basis (e.g., if you are a maid at a motel), then you may continue to introduce them. If the room had no bedbugs and you brought the bed in and now it does, it may be easier to prove who created the unsafe/unsettling condition, as opposed to ants, roaches, spiders, which can be introduced in myriad ways. | Not disclosing transgender identity is not a crime of any kind, not rape, not fraud, not anything else. There is really no qualification to this statement. There is pretty much no plausible scenario in which concealing a transgender identity leads to liability for fraud of any kind and this never constitutes rape by deception. What is a crime and is regularly prosecuted, is retaliating against the person or property of someone who they discover is transgender while having sex. Incidents like these happen with some frequency and they alway create criminal liability for the person retaliating and never for the transgender individual in the cases where the transgender individual isn't killed (dozens of time each year in the U.S. the transgender individual is killed in a situation like this one). | The official clause in question is here: Pecandu Narkotika yang telah cukup umur sebagaimana dimaksud dalam Pasal 55 ayat (2) yang sedang menjalani rehabilitasi medis 2 (dua) kali masa perawatan dokter di rumah sakit dan/atau lembaga rehabilitasi medis yang ditunjuk oleh pemerintah tidak dituntut pidana which unofficially says Narcotics addicts who are old enough as referred to in Article 55 paragraph (2) who are undergoing medical rehabilitation with at least two treatments by doctors in hospitals and / or medical rehabilitation institutions designated by the government shall not be not criminally prosecuted where the italicized part involves some interpolation – a professional legal translator could have a better English rendition. The point is that you have to actually be getting treatment, and it has to be at a facility that is approved (ditunjuk) by the government. Such addicts are not criminally "dituntut", which could cover being charged, indicted, prosecuted or sued, a minor ambiguity resolved by the fact that the prosecutor is the "penuntut umum" (same root word). Under the law, it is not sufficient to just register (report yourself), you have to actually be receiving treatment. The part about "was not sentenced" is just a mistake. | 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". |
How, and under what circumstances would the introduction of "sociological" evidence be allowed in a courtroom? A female founder of a bankrupt healthcare company is being tried for fraud. Her defense team foreshadowed its intention to blame her actions on her former male partner, for things like "domestic abuse" and "domination." If I were a prosecutor, I would want to rebut this, e.g., by showing full length photos of the woman standing several inches taller than the man. I would want to play recordings of the two people's voices (Elizabeth's voice is deeper, at least her fake voice). I might show comparisons of the popularity of young white women versus middle aged Indian (or Asian) males on such dating apps as Tinder or Instagram to show that the woman was socially dominant. I would also want to have experts comment on the meanings of these matters. To what extent would such "sociological" information (and related expert testimony) be allowed in a California courtroom? Would some items be allowed and some not, all allowed, or none allowed? And how might they be used; would they be mainly in "rebuttal" or in other contexts as well? Edit: My current understanding is as follows: On one hand, the defense can elect to "say nothing" and let the prosecution prove its case, in which case the above would be irrelevant. On the other hand, if the defense puts up an affirmative defense, e.g. "insanity," the prosecution has a certain latitude in picking apart the proffered defense. So the sociological information could only be used in rebuttal. But suppose the defense team does try to shift the blame in this matter. How much latitude does the prosecution have to use sociological information like the above in rebuttal? | There is virtually no chance this would be admissible. When a defendant argues that abuse at the hands of third party led to a mental defect that excuses her from culpability, the prosecution is free to rebut that argument. However, the prosecution's evidence must be relevant, i.e., it must have a tendency to make a fact of consequence more or less likely to be true. Here, none of the proffered evidence has any real bearing on any fact of consequence: The fact that the defendant is taller than the alleged abuser does not make it less likely that the defendant was abused. The fact that the defendant's "fake" voice (what does that even mean?) is deeper than the alleged abuser's does not make it less likely that the defendant was abused. The fact that young white women have more Tinder matches than middle-aged Indian men does not make it less likely that the defendant was abused. Even if you could find some thin reed on which to hang the relevance of these racial and gender stereotypes, the evidence would likely still be excluded under Rule 403, as the probative value would be so trivial that it would be outweighed by the likelihood of unfair prejudice or misleading the jury. | 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. | I'm curious as to how the US legal system determines who should present evidence and how much evidence is required by them to prove one side of an argument against a counterargument. In General In both criminal and civil cases in common law legal systems (legal systems derived from the English legal system, basically, the U.S., U.K., Ireland, Canada, Australia, New Zealand, India, Pakistan and Bangladesh), the burden of proof is on the party seeking to have a court do something. So, if the absence of evidence, the party seeking relief loses. Proof Of The Elements Of The Charge Or Cause Of Action Presentation of Evidence and the Prima Facie Case The party seeking court action presents their evidence first. If at the close of their opening case that party has not presented enough evidence to meet their burden of proof with respect to every "element" of the list of legal elements that they must prove to prevail in court, that party has not established a "prima facie case" and the case is dismissed without granting relief. If the prosecution or party bringing a civil case establishes a prima facie case, or if the defense does ask to have the case dismissed for failing to establish a prima facie case at the close of the evidence of the party asking the court to do something, then the defense presents their evidence if the defense wishes to do so (this is optional). (If the defense does present evidence, the prosecution or civil party seeking relief can then present a rebuttal case to disprove the new points of evidence in the defense case, and so on, back and forth until all evidence is taken.) Evaluating The Evidence In Light Of The Burden Of Proof Once both the party asking the court to do something and the defense have presented all of their evidence, the trier of fact (i.e. the jury in a jury trial, or a judge in a bench trial) decides if every element of the case of the party asking the court to do something has been established by the relevant burden of proof. In a civil case, the burden of proof is usually a "preponderance of the evidence" (i.e. that the evidence more strongly favors that the element was established than that it was not established); some elements on some claims in civil cases must be established by the higher standard of "clear and convincing evidence." In a criminal case, the burden of proof is "proof beyond a reasonable doubt". Affirmative Defenses In addition to elements of a case that must be established to make a prima facie case, there are also "affirmative defenses" to a request that a court do something. Examples of affirmative defenses include self-defense, statute of limitations, immunity from suit, a pardon in a criminal case, etc. A defendant can win ether by showing that the party asking the court to do something has failed to meet their burden of proof with respect to one or more elements of the case, or by showing that an affirmative defense bars the request. In both criminal cases and civil cases, the burden is on the defense to show that there is at least some evidence that justifies consideration of an affirmative defense. This is called a "burden of production." In a civil case (and in some criminal cases in some jurisdictions), the burden of proof is on the defendant to prove an affirmative defense by preponderance of the evidence. In some criminal cases in some jurisdictions, once the defense has met a burden of production with regard to an affirmative defense, the prosecution must rule out the affirmative defense beyond a reasonable doubt to prevail. Deciding Who Wins Once both the party asking the court to do something and the defense have presented all of their evidence, the trier of fact (i.e. the jury in a jury trial, or a judge in a bench trial) decides if an affirmative defenses prohibit the party asking the court to do something from prevailing. The party asking the court to do something wins unless the defense can show that this party did not meet the burden of proof as to any one element of a particular criminal charge or civil cause of action (for each charge or cause of action), or that an affirmative defense bars that particular charge or cause of action. Often cases have conflicting testimony regarding what happened. The jury (or judge in a bench trial) can choose to belief that one person is telling the truth and that the other statement is either a lie or is unintentionally inaccurate for some reason. If the jury (or judge in a bench trial) isn't at all sure whose statement is true and whose is not, this favors the defendant if one is not more credible than the other. Complex Cases In a simple case, there is just one charge or cause of action, and there is just one defendant. But, often, there are multiple charges or causes of action, and each one must be evaluated as to each defendant of the multiple defendants in a single trial. In a civil case, sometimes there are counterclaims that defendants are trying to prove against plaintiffs, or cross-claims that defendants or counterclaim defendants are trying to prove against each other that have to be evaluated. Also, in civil cases, sometimes one or more of the defendants is also prosecuting one or more separate causes of action against someone other than the original plaintiffs or co-defendants. In that case, that defendant is also a third-party plaintiff, and someone other than the original plaintiff and defendants is a third-party defendant (third-party defendants can also bring third-party counterclaims against the third-party plaintiff, third-party crossclaims against third-party codefendants, or their own claims against new parties or against the original plaintiffs). Other Rules Special Statutes Regarding Proof Of Facts Sometimes, there are particular kind of facts for which a statute says that a "prima facie case" is established automatically if a certain kind of evidence is presented. For example, it is common for the law to say that a prima facie case regarding ownership of real estate, or the status of a bus as a school bus, is established by presenting a copy of an official document that says so. Usually, when a statute says something like that, the prima facie case can still be overcome, for example, by presenting a subsequent document that shows that the real estate was then sold to someone else, or that the school bus status of the bus was later revoked. But, when a statute like that is present, the plaintiff or prosecutor doesn't have a duty to prove the negative that there was no subsequent sale of the real estate or that the school bus status certificate was still in force on the date of the incident. Rules of Evidence There are also "rules of evidence" that govern what kind of facts can be presented at a trial to prove a case. For example, in a U.S. criminal trial a fact cannot be established with evidence that is hearsay, such as an affidavit or a statement that a witness heard someone else say and is retelling to the court. A very important rule of evidence in U.S. criminal trials that flows from the United States Constitution, is the evidence obtained by law enforcement illegally may not be presented by the prosecution, even if it definitively shows that a defendant is guilty. This is called the "exclusionary rule." Application To Facts Is it up to the prosecution to present full and complete evidence that the system only takes pictures when the bus is stopped (presumably reviewing source code or conducting tests) or is there some kind of legal concept of "good enough at a glance" evidence where they've met some minimum burden of proof that the picture is taken when the system is turned on and it's only on when the bus is stopped, therefore it must be functioning as expected? The prosecution has to convince the jury (or the judge in a bench trial) that every element of the crime as define in the statute has been proved beyond a reasonable doubt and that any affirmative defense upon which the defense meets a burden of production has been overcome by the relevant burden of proof. Usually, this is a broad legal standard, and the jury (or judge in a bench trial) has to decide if the burden of proof has been met by the facts presented which were legally admissible as evidence. It wouldn't be uncommon for a defendant to present no new evidence in a defense case (other than having cross-examined the prosecution's witnesses) and merely argue at the completion of the prosecution's case that the evidence presented didn't establish a particular element of the prosecution's case beyond a reasonable doubt. For example, the defense might argue that the picture presented by the prosecution was not taken when the bus was at a complete stop, and if the prosecution didn't present some convincing evidence that the bus was at a complete stop when the picture was taken (e.g. the testimony of the bus driver and other witnesses), the defense should win. But, it is almost always up to the jury (or the judge in a bench trial) to decide if the prosecution's evidence is good enough to prove beyond a reasonable doubt that the prosecution proved the case. Often a defendant will not want to call any witnesses beyond the witnesses presented in the prosecution case, because a defendant's witness might cause the jury to overcome its doubt that a fact only weakly proved by the prosecution was actually true, for example, when only one not very credible prosecution witness had testified regarding the same fact. If the identical case were presented to two different juries, one jury could decide to believe the bus driver who said that the bus was at a stop when the picture was taken, and a different jury could decide not to belief the bus driver, and both decisions would be valid. Consequences Of A Verdict If the judge or jury acquits the defendant in a criminal case, the case is over and there is no appeal. If the jury is hung (there is no unanimous ruling to convict or acquit (but see endnote)), in a criminal case, there is a mistrial and the defendant can be tried again. If the jury convicts, one of the grounds for an appeal by the defendant is that the evidence was insufficient to prove some element of the charge beyond a reasonable doubt, and if the appellate court agrees than the conviction is overturned and there can be a retrial (or in some cases, the defendant is acquitted). Appellate Review Of The Sufficiency Of The Proof The law recognizes that different juries could interpret exactly the same facts in different ways and will reverse a conviction because the burden of proof was not met only if "no reasonable jury" could have interpreted the evidence in a manner consistent with a conviction. For example, on appeal, an appellate court will always assume that the jury thought that every pro-defendant witness, whose credibility was questioned in any way by the prosecution, was lying and that the jury believed that every pro-prosecution witness was telling the truth, even if the defense presented evidence that could have caused a reasonable juror to question the truthfulness of a prosecution witness. Appeals for failure to prove something beyond a reasonable doubt can be easier in a bench trial than in a jury trial because following a bench trial the judge will often publicly state the actual reasons in terms of findings of fact and law that the judge used to reach a conclusion. So, the defendant need only show that a key fact actually found by the judge was not supported by the requisite proof. END NOTE Oregon State, and prior to 2019, Louisiana, did not require juries in all criminal cases to be unanimous. | What does one do if, a party at trial denies having made a statement in a published article? A combination of a) and b). The plaintiff should gather other evidence with which to disprove the denials of authorship, or at least to question the reliability the publisher's testimony. The jury needs that evidence in order to discern who is credible. Whether decisive or not for credibility purposes, any material inconsistencies the plaintiff is able to point out from the witness's testimony(-ies) tend to guide the fact-finder (i.e., the jury) on matters of credibility. Whenever possible, the evidence should include admissible documents from when the events took place. For instance, records reflecting the submission & editing process of that article. Those documents typically are obtained by subpoenaing the publisher and/or relevant non-parties, accordingly. That will reduce the chances of testimony deficiencies, whether these stem from witnesses' perjury, lack of memory, inability to clearly articulate what they know, or inability to testify at all (due to witness's illness or death by the time the matter goes to trial). | The standard of proof is "on the balance of probabilities", or, "preponderance of evidence", meaning that your claim must be more probable than the other guy's claim. Rules of evidence may preclude using certain kinds of evidence such as rule 403 The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence A supernatural alternative can, in fact, defeat all forms of evidence, including forensics and "I saw it directly" testimony. The courts do not exclude evidence (all evidence) on the grounds that you can imagine a sci-fi scenario where "it didn't really happen". The rules of evidence more or less encode the cases where evidence is generally found to not be reliable. | In U.S. practice, double jeopardy protections attach once the jury is seated and this scenario contemplates the change in position arising at trial. A mistrial could be called, or a continuance obtained, if the defendant suddenly claimed an alibi defense, since that amounts of a defendant waiver of double jeopardy protections. But without proof that the witness was tampered with, obtained at the last moment, it can be difficult or impossible to get proof of tampering or to contradict the story with other evidence to undermine the credibility of the witness. The prosecution would probably request a recess in the trial to regroup and try to admit evidence that the testimony changing witness made a prior inconsistent statement to impeach the testimony of that witness, from whomever that witness told the first time (probably a law enforcement officer). But this is still far less convincing to a jury than an affirmative statement from a witnesses about a key fact. If the prosecution could find evidence of defense side tampering and present it to the judge in the hours or small number of days before the trial ends, it might be able to get a mistrial declared. But it is much harder to get a mistrial for witness tampering when the witness shows up and testifies contrary to prosecution expectations than it is when the witness is, for example, killed or kidnapped and doesn't appear to testify at trial at all. But if evidence of neither type could be obtained before the jury was sent to deliberate and evidence was closed, and the jury then acquitted the defendant, it would be very hard for the prosecution to change this result. Perhaps not completely impossible, but very nearly so. The witness could be (and in this circumstance, despite the extreme rarity of perjury prosecutions, probably would be) prosecuted for perjury, but that wouldn't change the acquittal. If a link to the defendant could be found, the defendant could also be prosecuted for witness tampering or obstruction of justice or something similar. But that is hard to prove (and the witness would probably have to be convicted or provided with use immunity for his testimony) to do so. In English criminal law practice, in contrast, the likelihood of having the verdict of acquittal set aside and getting a new trial would be much greater (and the likelihood of getting a recess mid-trial would be greater in far more common bench trials in lower level criminal cases), but it would still be a serious burden for the prosecution that it might not be able to overcome. Lawyers aren't entitled to expect that witnesses will testify exactly the way that they discussed things with the lawyers before trial, and this can be explained away with a variety of excuses that are usually true ("after thinking it over after meeting with you, I realized that I was confused and getting it wrong"), but are sometimes a cover for a change of story that is not sincere. I've had similar things happen a few times in civil litigation and there is only so much you can do about it. | 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. | 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. |
Is there presumption of lack of witness' credibility? Can a party in a case ever argue that their opponents' lay witness lacks credibility just because there is no evidence of their credibility? Where the judge is the trier of fact (judge-alone/bench trials), can they assert that a witness is not to be trusted simply as there is no evidence of their character? To avoid doubt, there is no evidence discrediting the witness. (Any common law jurisdiction). Background to the question Unlike the police, private prosecutors cannot access criminal history of their witnesses to disclose to the defence. The defence, having been used to be given criminal histories of prosecution witnesses, questions credibility of the private prosecutor's witnesses and challenges the prosecutor to ask the witnesses to disclose their criminal histories voluntarily. The judge says that refusal to do so may be seen as a doubt of credibility of the witnesses. I say that is arguable, to which the judge agrees. It is unclear how this would be ultimately resolved. | A lawyer for either party can claim, during argument, that an adverse witness is not credible, for any reason or none. Often the lawyer will point to matters disclosed during cross-examination, claiming that they are contradictions, show bias, or otherwise indicate lack of credibility. Or the lawyer could point to elements of the primary testimony which the lawyer claims are implausible. If there has be evidence of a prior conviction, the lawyer could refer to this. A lawyer may in general ask a witness about prior convictions. Criminal convictions are generally matters of public record, and can be researched. It is not usual to present reputation or credibility witnesses for any person except the defendant, and failure to do so, even for the defendant, does not lead to any automatic assumption of lack of credibility. Not does the appearance of such a witness grant an automatic assumption of credibility. But a lawyer may point out reasons for thinking a witness not credible. Ultimately it is up to the finder of fact, often a jury, to decide what weight to give the testimony of each and every witness, based on the impression that testimony made, as well as any argument from the lawyer. This is one reason why courts are reluctant to overturn factual assessments by a jury: the reviewing court does not see and hear the manner of a witness and what it may indicate about credibility. | The parties are generally entitled to present their case as they see fit, as long as they stay within the rules of evidence. If they want a straight yes or no, the court will often require the witness to provide one, which keeps lawyers happy, makes the answers clear for the jury, and limits the parties' grounds for appeal. If a yes or no answer is not as accurate as a more qualified answer, the other lawyer would typically have an opportunity to invite the witness to provide a fuller answer on redirect. If a yes or no answer is inappropriate because of assumption embedded in the question -- as in your "beating his wife and kids" example -- the question should quickly elicit an objection from the defense attorney, who would note that the question lacks foundation or assumes facts not in evidence. Assuming there isn't any evidence of domestic violence, the court should sustain the objection, in which case the witness would not need to answer at all. | Is it possible for a witness to backtrack and claim that their previous statements were wrong because they misremembered? ... Is the witness now allowed to say something along the lines: "Huh. That's odd. I clearly remember it differently. But it's such a small detail and it was so long ago..."? Yes. Or is it now considered a deliberate lie? A judge's assessment of a witness's credibility and reliability is much more nuanced. See "How is a judge to evaluate a witness's credibility?" | The main rules in a civil case are the rules of evidence, the rules of civil procedure, and a set of largely unwritten rules governing issues such as the order in which matters are presented in a trial and courtroom conduct. Basically, the rules of evidence are really a subset of a larger set of written and unwritten rules about courtroom conduct the unwritten parts of which are assumed to be known by people using them. Robert's Rules of Order do not apply to courtroom proceedings. The judge also has the "direct contempt" power to summarily punish disrespectful conduct in the courtroom without a trial, with fines or incarceration, even if it wouldn't be a crime outside the courtroom. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. If you are a party asking a question (or more likely an attorney for a party asking a question on behalf of a party) it is not improper to say, "I'm sorry, I couldn't hear you." It is also not generally improper for a non-questioning party to interject and state that they can't hear a witness to a judge. Obtain clarification of a statement. This can be done by a party only when it is the party's turn to cross-examine or redirect as the case may be. A judge can ask for clarification, but a party cannot do so when it is not their turn. Determine or clarify the purpose of an ongoing statement or line of questioning Generally the party not asking a question objects and the court asks the party asking the question to clarify the reason. Sometimes, in a jury trial, the party asked to clarify will say "may we approach the bench" and a private discussion will be held between counsel for both sides and the judge regarding an ongoing issue. Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") Lawyers are expected to know this for the most part without having to ask. Also, usually before the court starts to take evidence, and at breaks, the judge will ask "are there any preliminary matters that need to be addressed?" or "are there any procedural matters that need to be addressed?" and questions such as this can be raised at that time. | Alternate explanation: Richard is saying that the witness has no "testimony that would assist in making a determination of guilt or innocence", and therefore should not be allowed to testify. | A lawyer is obligated to accurately state the law as stated in the jury instructions in closing argument (and also not to make a clear and deliberate misstatement of the facts presented at trials, and also not to express personal knowledge of the facts based upon anything other than what the jury has seen). But a certain amount of poetic license is allowed so long as the closing argument is not so misleading, as a whole, that it is likely to lead the jury astray. In this case, the prosecutor is alluding, with poetic license, to the idea that an aggressor or interloper can't assert self-defense. You can't "look for trouble" and then be shielded by that doctrine. A more full quote from that prosecutor makes that more clear: you lose the right to self-defence when you’re the one who brought the gun, when you’re the one creating the danger, when you’re the one provoking other people I have no opinion concerning whether his statement does or does not cross the line. I'm not sufficiently immersed in the case, and don't have enough context from having heard the closing arguments as a whole, to have a confident opinion on that point. If there is an acquittal we'll never know. If there is a conviction and appeal and this is an issue raised on appeal, we might find out. Opposing counsel has a right to object in closing argument if it goes too far, and appealing an argument that a closing argument is objectionable is challenging unless it is preserved with a timely objection at the time. Particularly if the prosecution makes a misstatement in their initial closing, rebutting it in the defense closing may be more effective than objecting. But, if the prosecutor makes a misstatement in a rebuttal period to which the defense can't offer a corrective statement, an objection may be wise in order to preserve an issue for appeal. | What prevents someone from pleading the Fifth Amendment, even if they don't necessarily have something that would incriminate themselves if they answered? Immunity. Sometimes prosecutors offer immunity to a witness in exchange for testimony against another defendant. In such cases, the witness cannot claim protection under the fifth amendment because the witness's testimony can no longer incriminate the witness. Does the opposition have to prove that nothing they say could incriminate themselves to remove the protection? No. Proving a negative proposition is generally impossible. Does the witness have to reveal something to the judge to enforce the protection? No, because such a revelation would also tend to incriminate the witness. Additionally, who knows what random law they might have broken, and might admit to if they testify? Can someone plead the fifth on those grounds? Yes. It is not in fact necessary to cite specific grounds for invoking the fifth amendment, because forcing a witness to cite a reason would itself be tantamount to forcing the witness to incriminate him- or herself. Quoting Wikipedia: Truthful statements by an innocent person An incriminating statement includes any statement that tends to increase the danger that the person making the statement will be accused, charged or prosecuted – even if the statement is true, and even if the person is innocent of any crime. Thus, even a person who is innocent of any crime who testifies truthfully can be incriminated by that testimony. The United States Supreme Court has stated that the Fifth Amendment privilege: protects the innocent as well as the guilty.... one of the Fifth Amendment’s basic functions . . . is to protect innocent men . . . who otherwise might be ensnared by ambiguous circumstances..... truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth. (Ohio v. Reiner, 532 U.S. 17 (2001) (per curiam)) The U.S. Supreme Court has also stated: Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. (Ullmann v. United States, 350 U.S. 422, 426 (1956) (footnote omitted)) (Citations inlined) | There is no hard and fast rule to determine what constitutes proof beyond a reasonable doubt. In the first instance, the judge (or jury, when there is a jury trial) decides this on a case by case basis. If the officer testifies that the matters recorded in the ticket are true because it was the officer's practice to always record accurately what happened in a ticket, this would ordinarily not be grounds for reversal of a conviction on the ground of insufficient evidence, unless other evidence somehow put the officer's testimony in serious doubt (e.g. a social media post clearly putting the officer in another location at the time that the ticket was allegedly issued). Normally, the only kind of evidence that would not result in a ticket being upheld on appeal would be the failure of the officer to testify at all. |
How to get approval to give my book to a friend? I live in the Netherlands and I received a book I ordered from a company in the US. The package I received today had an invoice included. The invoice had the following text printed on it: These items are controlled by the U.S. government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations. It is obvious that I need approval from US authorities to give my book to a friend in living in Belgium and probably also to give my book to a friend in the Netherlands. How do I get approval? | There is something wrong-sounding about that claim. Owning a thing (such as a book) means that you can dispose of it however you want. If it is a physical book, then unless this is a book of top secret classified information, the US government has no control over the item, nor does the copyright holder have any right to prevent you from giving away your copy. Electronic books, however, are another matter, since often you don't buy such books, you buy a license to use the book (like a software license). The license terms of an electronic book could be subject to various controls, and the license might be non-transferable. The underlying logic of this is that under the doctrine of first sale, you are allowed to do whatever you want with intellectual property that you buy, and therefore to restrict re-distribution of electronic IP, software especially is typically not itself sold, and just the permission to use it is. If this is an electronic book, the copyright holder would be able (though not necessarily willing) to permit you to transfer your copy to someone else. Of course you can't give a copy to two people unless you have two licenses. | My understanding is that this isn't a contractual term, but rather a warning that the items don't satisfy legal requirements for individual sale. The seller and manufacturer likely don't care whether you resell the items, but the government does. In the US, at least, regulations of the Food and Drug Administration require that (with certain exceptions) food items sold at retail must be marked with a Nutrition Facts label, showing calorie counts, fat and sugar content, and so on. The FDA has information on this requirement, including citations to the relevant sections of the Code of Federal Regulations (CFR). For example, if you buy a big multipack of tiny ("fun size") candy bars, the manufacturer usually won't have printed Nutrition Facts on each candy bar's wrapper (because it's too small). There will instead be a label on the outer bag. As such, you can't legally resell the candy bars individually, because they don't meet labeling requirements. In fact, in the FDA page I linked above, you can see that manufacturers are required to print "This unit not labeled for retail sale" on individual items if they don't have Nutrition Facts labels. See the 12th item in the table of exemptions. | 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. | Import laws apply to the one who imports. In your scenario that is the person in country A only. The server owner does not cause the digital content to be transmitted to A. The one who downloads does. | Yes, if the book was published in 1913, the copyright has expired. You can freely scan it in and publish it. But note you have NO copyright to the material. You didn't write it. Copyright law gives rights to the AUTHOR of a work. It doesn't matter how much effort you went to scanning it in and formatting it. Nothing in copyright law says that that gives you any rights. If you add anything creative of your own, you would own the copyright to the new material. Like if you drew new illustrations and added them to the book. Or if you included your own commentary. Or you added explanatory footnotes. That still wouldn't give you rights to the original text, but you would own the new material. But in the same vein, if the book was originally published in 1913, but the copy you have includes material added by a later editor, that later material might still be protected by copyright. Just a side thought, it occurs to me that if I was going to republish a public domain book, a good idea would be to add footnotes. If my footnotes appear on almost every page, then no one else could just take my electronic files and sell them himself. He'd have to go through page by page and purge out all the footnotes. Make it hard for someone to "borrow" your work and you might scare them off. | According to the information I was able to find, every zone, country, or even states, have their own taxation rules for sales made there. Correct. Well, in no way it's possible that small companies or individuals that sell products internationally deal with tax rules for each buyer, that would be a non-sense, and paying such taxes worldwide would be a nightmare not worth having a small business at all. You are required to comply with the law. If it is complicated, or difficult or expensive to do so then, it's complicated, difficult and expensive and you still have to do it. The answer is obvious: if it's not worth having a small business, don't have a small business. The main question, if someone buys a license from my web-site, is it considered a sale in the buyer's country/state which requires me to collect and pay some remote tax, or it's a purchase in my country/state which requires me to collect HST from that buyer? It depends on the law in both Canada and the destination country. In most cases, the sale will be an export sale from Canada (GST/HST exempt) and an import sale in the destination country - requiring you to comply with GST/HST obligations there. Another question is regarding invoices, I know that Canada requires certain information to be included into an invoice for sales in Canada. If my sales will be considered sales in a buyer's Country with some other rules, does it mean I have to manage tons of invoice templates? Yes. Let's say if my sales in UE exceed 30K EUR it looks like I need to register and pay VAT there. But what if I have less? Then you don't need to register and remit tax. Nor are you allowed to collect it from your customers. By the way, I have no idea what country in the Eurozone goes by the initials UE. In most jurisdictions, you need to register either when you reach the threshold in fact or reasonably expect to reach the threshold. Also in most, you can usually register even if you are below the threshold. For example, these are the rules for Australia. Anyone, please advice. Hire an accountant versed in international digital services. They will be able to give you the advice you need. They will also be able to recommend sales/payment platforms that can handle most of this for you (for a fee, of course). | Bob is not authorized, but he may legally do so (in the US, you don't need specific authorization to perform a non-forbidden act). In creating the manual, Bob would need to avoid reproducing the questions (which are protected by copyright), and just give the answers. Copyright protection for the textbook includes not just the actual words, but also organizational structure, so Bob would need to avoid copying the structure of the exercises. As for "structure of the exercises", textbooks often have exercises for each chapter, with a clear logic to the order and content of chapters. Within the chapter exercises, there is often some rationale to the order of presentation of the dozen exercises, like starting for with simplest concepts presented in the text and moving up the ladder. In a given exercise, there my be subparts, where understanding part 1 leads you to understanding part 2, and so on. In a well-structure textbook, maybe 20% of the creative nature of the book is that artful ordering. Imposing an entirely different order on your solutions avoids copying the author's protected expression. | See https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/who-can-and-cant-contribute/, the section on "Foreign Nationals". The Commission stated, in AO 1998-14, that the use of any surname on a contribution check (or similar instrument) would not, by itself, give any reason to inquire as to the person’s nationality. Nonetheless, the Commission advised the committee to take the following minimally intrusive steps to ensure that the contributions it received did not come from foreign nationals: Ensure that public political ads and solicitations directed to audiences outside the U.S. contain a summary of the foreign national prohibition of 52 U.S.C. § 30121. Make further inquiry into the nationality of the contributor if the committee receives a contribution postmarked from any non U.S. territory. Make further inquiry into the nationality of the contributor if the committee receives a contribution indicating that either the bank or the account owner has a foreign address. In all of the these instances, if the contribution is submitted along with credible evidence (for example, a copy of a valid U.S. passport) that the contributor is a U.S. citizen, a U.S. national or a permanent resident alien, no further inquiry need be made. However, if the committee has actual knowledge that the contributor is in fact a foreign national, it may not rely on these documents as a defense. So, if the donor has been informed of the rules and gives a US address, the campaign can assume that they are eligible to donate, unless the campaign has actual knowledge that they aren't. If they give a non-US address, the campaign is supposed to get some other proof of nationality. By the way, that page also explains that the first part of your question is slightly wrong. It isn't only US citizens who are allowed to donate - US nationals (a rather rare category consisting mostly of people from certain US territories) and permanent residents are also eligible. |
How long must one wait before re-parking in the same time-limited parking spot in Seattle? Many parking spots in Seattle are time-limited, e.g. 2 hours: How long must one wait before re-parking in the such time-limited parking spots in Seattle (Washington state, United States)? | According to 11.72.240 of the Seattle Municipal Code, entitled Moving vehicle to avoid time limit: No person shall move and repark a vehicle on either side of a street within the same block in order to avoid a parking time limit regulation specified for either side of the street in that particular block. | You're wrong. RCW 46.61.415 empowers local authorities to establish and change speed limits in Washington, and ORC 4511.21 delegates the same power in Ohio. Whether or not a locality has the power to pass such laws depends on the laws of that state. | 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. | If they have no legal grounds then it would be trespass to chattels However, they do have legal grounds. Following the procedure laid out in the relevant Act makes the car refuse under the Act notwithstanding your opinion. Move it or lose it. Or seek an injunction preventing the council removing the vehicle- this will likely fail. | RCW 46.61.419 gives government police the right to enforce speeding violations as defined in RCW 46.61.400 in certain communities (condominiums and gated communities), per RCM 64.34, 64.32, or 64.38, if: (1) A majority of the homeowner's association's, association of apartment owners', or condominium association's board of directors votes to authorize the issuance of speeding infractions on its private roads, and declares a speed limit not lower than twenty miles per hour; (2) A written agreement regarding the speeding enforcement is signed by the homeowner's association, association of apartment owners, or condominium association president and the chief law enforcement official of the city or county within whose jurisdiction the private road is located; (3) The homeowner's association, association of apartment owners, or condominium association has provided written notice to all of the homeowners, apartment owners, or unit owners describing the new authority to issue speeding infractions; and (4) Signs have been posted declaring the speed limit at all vehicle entrances to the community. Thus there can be a speeding ticket. However, if you speed on my uncle's farm, that's just trespassing because that isn't one of the specified community types. The law only allows speeding enforcement by government law enforcement officers (not private security), and limits how low the maximum speed can be set. This raises an interesting question regarding speed enforcement on the Boeing bridge off S 104th in Seattle, which is private property and not part of a "community", yet quite urban and frequently used. | The club renting space from the shopping center makes no difference; the difference is public vs. private land. The legal controller of the land you are on - whether the shopping center, the club or private land around the shopping center - can ask you to leave at any time for any reason. There is no wiggle room. A controller is not necessarily the owner - a tenant is a controller as is an emergency service executing legitimate control. The police are law enforcement; if you don't leave private land by request, their duty is to remove you at the request of the land owner. Private security also has the same function, though their jurisdiction is more limited off their property, as they are private hired by the shopping center or club. Either would ask you to leave, and if you refuse, you could be arrested for trespassing. If arrested, the local district or county attorney would have some discretion on prosecuting you for trespassing. | According to the Washington State Department of Licensing website, you have 30 days to get your Washington State drivers license from the time you establish residency in Washington. You are considered to have established residency if you do any of the following: Register to vote Receive state benefits Get any WA state license at resident rates Receive in-state tuition fees | Washington state dedicated a section of their code to explicitly make this illegal (to install it, not just use it). RCW 46.37.685(1)(b) says It is unlawful for a person to have an installed license plate flipping device on a vehicle, use technology to flip a license plate on a vehicle, or use technology to change the appearance of a license plate on a vehicle. and it is illegal to sell them. Georgia does not seem to have a specific law on the topic, but the same effect holds under GA Code §40-2-41, which says: Unless otherwise permitted under this chapter, every vehicle required to be registered under this chapter, which is in use upon the highways, shall at all times display the license plate issued to the owner for such vehicle, and the plate shall be fastened to the rear of the vehicle in a position so as not to swing and shall be at all times plainly visible... It shall be the duty of the operator of any vehicle to keep the license plate legible at all times. No license plate shall be covered with any material unless the material is colorless and transparent. No apparatus that obstructs or hinders the clear display and legibility of a license plate shall be attached to the rear of any motor vehicle required to be registered in the state. We can start with the question of whether the vehicle must be registered: yes, it does. Then we can ask if "which is in use upon the highways" is true. This is not obvious, because that clause could be interpreted as meaning "which is at some time or other in use upon the highway", or else as "at those times when it is in use upon the highway". I strongly suspect that the courts would find in favor of the first interpretation, not the second, especially since the law also says that you must "keep the license plate legible at all times" (not "at all times when you are on the highway"). Finally, a plate flipper clearly "hinders the clear display and legibility of a license plate", and the law prohibits the attachment of such device, not just its use. So obscuring your license plate is just not legal. |
So you can't file a discount to a charity as a tax-deductible donation. But can you charge the charity your full rate, donate money, and claim that? If I offer a discount to a charity for services rendered, I can't claim the discount as a donation for tax purposes, right? But, can I charge them my full rate, and then donate the money I didn't want back to them? So, if my normal rate is $100/hr, but I wanted to offer the charity a 25% off discount, can I instead charge the charity $100/hr and then write them a check for $25/hr, and claim that check as a tax-deductible donation? | Doesn't help, does hurt. Say you charge a discounted rate of $75. That adds $75 to your taxable income. Say you charge a full rate of $100 and take a $25 charity tax deduction. That nets out to adding $75 to your taxable income, same outcome, except the $25 is in peril, due to the complexities of the tax law. For instance: Charity deductions give no tax benefit at all until you achieve $12,000 of itemized deductions (from donations and mortgage interest, certain state taxes, certain medical expenses etc.) Deem that unfair (we at charities certainly do!) but the fact is, it's because you already get a $12,000 standard deduction as a 'gimme'.* If you're a huge donor (I am on certain years, thanks DAF), you can only deduct 50% of income (with carryforwards, yay). Your donation-back reduces that. Doing it direct adds $75 to AGI ($37.50 to deduction limit), so you can deduct donations of $37.50 to other charities. The donation-back adds $100 to AGI (adding $50 to donation limit) except $25 of that is spoken for by the donation-back, leaving only $25 left. So I consider the maneuver to be a "lose lose" unless you have some bizarre tax reason for wanting to do that. Further, such an arrangement is likely to draw scrutiny from the IRS. By the way, here's an origin concept. IRS waives taxes on value which you create by your own DIY labor*. Say you mow your own lawn at an annualized cost of $100/year (lawnmower depreciaton and fuel) instead of $1100/year to hire it done. You created $1000 of value "from the sweat of your brow". IRS's policy is not to treat that as income, and thus, not to tax that. Thus, when you are a craftsman, IRS views the sale of service as the taxable event, not the crafting itself. Similarly, when you do volunteer work for a charity, "the sweat of your brow" does not create a cash value of interest to the IRS in either direction. Really, when you are a craftsman offering services, and you do services for a charity, that is considered volunteer labor. * This used to only be about $5000, but Trump was keen on a postcard-sized tax form, so they folded the adult "personal exemption" into the standard deduction, removing 2 lines on the 1040 form. Meaning most Americans who itemized before, no longer itemized - they didn't have $12,000 of deductions! Schedule A goes away for them (so mission accomplished there)... but so does the tax deductibility of charitable contributions, which was a knife in the heart of charities. | The U.S. FTC gave extensive guidance on this subject in March 2013. (You may have noticed shortly thereafter that conspicuous disclosures of free samples and compensation started popping up in reviews and posts around the web.) The FTC's FAQ covers this question in such detail I would just encourage people to visit it directly. However, as is the custom on Stack Exchange, I will reproduce the most salient content here: If an endorser is acting on behalf of an advertiser, what she or he is saying is usually going to be commercial speech – and commercial speech violates the FTC Act if it’s deceptive. The FTC (ironically?) refers to 16 CFR §255 as "the Guides." The Guides, at their core, reflect the basic truth-in-advertising principle that endorsements must be honest and not misleading. An endorsement must reflect the honest opinion of the endorser and can’t be used to make a claim that the product’s marketer couldn’t legally make. In addition, the Guides say if there’s a connection between an endorser and the marketer that consumers would not expect and it would affect how consumers evaluate the endorsement, that connection should be disclosed. For example, if an ad features an endorser who’s a relative or employee of the marketer, the ad is misleading unless the connection is made clear. The same is usually true if the endorser has been paid or given something of value to tout the product. The reason is obvious: Knowing about the connection is important information for anyone evaluating the endorsement. | Yes this is possible, no this is not simple. You are eligible to work as a Freelancer in Germany if you're from an EU/EEA member state. Your nationality is not relevant beyond that. When you start your freelancing, you must inform your employer/university. This is important for two reasons: you may not compete with your employer, and your effective tax rate depends on your predicted total income for the year, which they need in order to withhold the correct amount. (Don't worry, any discrepancies will be resolved with the tax declaration.) In Germany, self-employed work is either gewerblich or freiberuflich which has numerous consequences. This depends on the type of activity. Consulting and activities that require a completed 5-year diploma are generally freiberuflich. But e.g. software development has unclear status. This is ultimately the decision of the tax authority. You might have activities of both kind, but this complicates your accounting. When you start a gewerbliche activity you must register with the Gewerbeamt, and list your fields of activity. Make sure to register as a part-time freelancer, not full-time. In any case you must notify the tax authority through the Fragebogen zur steuerlichen Erfassung, which you should fill through the online Elster system. This will include your income projections and offers some important choices. If your income from freelancing is below a certain threshold, or if you are purely freiberuflich, your (now mandatory) tax declaration is simplified (EÜR). You will not have to do professional accounting. If your activities are gewerblich and your income is below a certain threshold, you do not have to pay business tax. Kleinunternehmer-Regelung: If your income is below a certain threshold, you can opt-out from collecting VAT within Germany. You can always give up Kleinunternehmer-status, but you can't easily return to it. Otherwise, you may request a VAT-ID (UstId). You will then have to regularly pay advance VAT, typically monthly. You can offset any VAT from business expenses that you paid. Tax rules are complex, and depend on the country where the service is rendered – generally, the location of your client. For your services in other countries, you may have to register in that country, or you may fall below their thresholds. The following cases can be discussed more specifically: You can only list VAT on your invoices if you have a VAT-ID. If you have a VAT-ID, you must collect VAT within Germany and for B2C sales within EU. For sales of digital items to consumers in other member states, you may have to use the MOSS system. For sales within the EU where both parties have a VAT-ID, the reverse-charge mechanism is used and the recipient is responsible for paying VAT. For sales in non-EU countries no VAT applies, but you have to follow the local rules. For sales in the US, the tax agreement between the US and Germany exempts professional services from US income tax as long as you perform the services remotely. You will have to send your client's accountants IRS form W8-BEN to document this. However, state-level taxes can still apply. For any income that you get, you should have issued an invoice. The exact details are documented elsewhere, but important aspects are: Your and your client's identity Your VAT number if you have one, your tax number otherwise (but not your personal tax-ID!) A sequential invoice number that will stay unique during your business, e.g. just count from 1 or restart yearly like 2019-1 A date VAT payment if you have a VAT ID, otherwise a notice why no VAT is due. In your tax declaration, you will list income from self-employed work separately from income from employed work, even though it is taxed together. You will have to prove your freelance income, generally through form EÜR. The tax authority may request your invoices and your bank statements and receipts for any expenses. It is therefore recommended but not necessary to open a separate account for your business activities. If you are freiberuflich then most banks welcome you, for gewerbliche activities only one or two banks offer free accounts. Besides tax issues, you must also consider health insurance and retirement plans. As long as your freelancing is only a side job (Nebenerwerb) this is fairly simple. You will have to inform your health insurance about your freelancing. They will need an income projection to calculate your premiums. If your total income fluctuates a lot, you should try to get your premiums calculated individually for each month. This generally doesn't matter if you have private health insurance as they use a flat rate. At this point it should be clear that freelancing is not necessarily trivial, mostly because VAT is a concern. You should therefore look for help: a tax advisor can help you navigate the German tax system, at least for your first tax declaration. dealing with tax issues might require professional help from an accountant, e.g. how to manage VAT and how to correctly apply a tax treaty. most universities have things like founder-workshops. While geared towards first-time full-time self-employed people or startups, there's still a lot of valuable information there. | Can my accountant bill me for previous work he agreed to perform for free? No. The difficult part will be for you to prove that he agreed to do the job for free. Hence the importance of having this kind of "gentlemen's" agreements in writing. You have the burden of outweighing --even by means of circumstantial evidence-- the common presumption that professional work is done for compensation, not for free. However, just like it might be hard for you to prove the aforementioned "gentlemen's agreement", it would also be hard for him to prove that you agreed to (or knew, or should have known, you would have to) pay the amount he is billing now. In the event that you are unable to prove he agreed to work for free, you might want to dispute the reasonableness of the amounts he is pursuing so belatedly. It is noteworthy that the work at issue being "really simple" would not be the only factor for assessing how much he may recover. Other factors such as the accountant's qualifications or the market rate for similar services would be weighed in awarding recovery (if any). Can I legally ignore these invoices? It does not make any sense that he sends me invoices for work done 4 years ago. You may ignore the invoices regarding older work, that is, those for which the period of limitations has elapsed. For most cases, section 4 of the Ontario Limitations Act provides a two-year period to bring a claim. Since the accountant himself did the job, and most likely he was --or should have been-- aware of the payments due for his services, he would be unable to prove that his "discovery" of claims (see section 5 of Limitations Act) regarding older tax filings meets the period of limitations. Equivalently, see here the paragraph starting with "For example, if the courts determine that [...]". | (This is not meant as personalized tax advice - consult a tax lawyer or accountant for advice on your own tax situation.) As background, it's helpful to remember why the gift tax exists - it's to close a loophole in the estate tax. If a wealthy parent dies and leaves all their assets to their child, the government collects estate tax on the amount of the estate. So the parent might think to circumvent this by gifting most of their assets to the child before they die. That would deprive the government of a lot of revenue, so the gift tax ensures that such gifts are taxed in a roughly similar way to inheritances. So yes, if a parent gives their children birthday presents whose value exceeds the annual exclusion, then the parent must report the gift to the IRS (Form 709), and pay gift tax if necessary. Note that they only have to actually pay tax once the total amount of the gifts over their lifetime exceeds a lifetime exclusion amount, currently about $12 million. This tax is really only meant to hit the "1%". It doesn't matter whether the gifts are of money or other items of value. "The gift tax applies to the transfer by gift of any type of property." If it only applied to money, there'd be another loophole: the parent could dodge the tax by spending all their assets on a $20 million dollar gold bar (or painting, jewelry, rare postage stamp, etc) and give that to the child instead, which the child could then turn around and sell. The "kiddie tax" is an income tax on children. Gifts are generally not taxable income to the recipient, so the child would not be liable for any income tax, no matter how large the gift or how it is given. (The gift tax is not an income tax and is imposed on the giver, not the recipient.) | No, nor can I request a copy of your tax return. See 5 USC 552a. Record maintained on an individual are not subject to disclosure. | See https://www.fec.gov/help-candidates-and-committees/candidate-taking-receipts/who-can-and-cant-contribute/, the section on "Foreign Nationals". The Commission stated, in AO 1998-14, that the use of any surname on a contribution check (or similar instrument) would not, by itself, give any reason to inquire as to the person’s nationality. Nonetheless, the Commission advised the committee to take the following minimally intrusive steps to ensure that the contributions it received did not come from foreign nationals: Ensure that public political ads and solicitations directed to audiences outside the U.S. contain a summary of the foreign national prohibition of 52 U.S.C. § 30121. Make further inquiry into the nationality of the contributor if the committee receives a contribution postmarked from any non U.S. territory. Make further inquiry into the nationality of the contributor if the committee receives a contribution indicating that either the bank or the account owner has a foreign address. In all of the these instances, if the contribution is submitted along with credible evidence (for example, a copy of a valid U.S. passport) that the contributor is a U.S. citizen, a U.S. national or a permanent resident alien, no further inquiry need be made. However, if the committee has actual knowledge that the contributor is in fact a foreign national, it may not rely on these documents as a defense. So, if the donor has been informed of the rules and gives a US address, the campaign can assume that they are eligible to donate, unless the campaign has actual knowledge that they aren't. If they give a non-US address, the campaign is supposed to get some other proof of nationality. By the way, that page also explains that the first part of your question is slightly wrong. It isn't only US citizens who are allowed to donate - US nationals (a rather rare category consisting mostly of people from certain US territories) and permanent residents are also eligible. | It says it's an "MP4 player" but it doesn't play MP4s. This seems rather straightforward to me---assuming it really doesn't play any kind of MP4 at all. I would agree you could go back to the shop armed with the appropriate wording from the SoG Act and state your case to the manager. If the front desk staff are unhelpful don't argue with them but rather ask to speak to the duty manager. No doubt the staff will talk about their thirty day return policy, but you are not interested in this; since you are relying on your statutory rights. If that is not successful, write directly to the head office. Keep your letter short, neutral and with no emotion whatsoever. Describe the facts, include proof of purchase, and request your money back. Argos is a large shop, they will pay you off ("as a gesture of good will") rather than fight a pointless claim in the SCC. However taking an action to the SCC is not necessarily free so you might yourselves not feel it worth it. |
Was the EncroChat Hack Legal? If not, is there a legal mechanism which could allow the evidence to be used? Disclaimer: I am aware there are a lot nuances within law, particularly within each country, as such this question only concerns the wider EU law and UK law as these are the courts I am interested in specifically. However, if you have a generic answer around illegally or potentially legally obtained evidence, please feel free to answer. Summary: If you're unaware of the backstory, here's a quick summary. EncroChat was a crypto-phone provider. Their service was created in 2016 and sold via their website. Their "unique" selling point was guaranteed anonymity & security via their own hardware units & mobile network. While the platform was not designed for criminals or even exclusively used by criminals, it was thought to be used somewhat heavily by criminals. This led to the platform being hacked in a joint effort by: Dutch, Belgian, French and British police & intelligence operators The ultimate result of this hack was a lot of data & evidence of criminal activity. Was the Hack Legal? My first instinct is no, it was not legal to infiltrate this platform. There's a lot of misinformation & confusion online about whether or not the hack itself was legal in the first place. The intelligence community claims that the hack was legal because the platform was riddled with criminal activity. But is that an accurate & legal justification for such an action? Again, my first instinct is no. As an example, Signal is a secure messaging service, it was founded in 2014 and it was designed entirely with privacy & security in mind. This means that Signal is used both by ordinary every day citizens as well as criminals. It is also used by journalists, politicians, dissidents and many more groups of people which may or may not need such levels of privacy & security. Whether or not these people need privacy is neither here nor there they are entitled to it and Signal provides that platform. This leads me into my next point. Signal itself is a privacy platform, and like EncroChat, it is also used by criminals however, as far as we know, no hacking attempts have been made by intelligence agencies. I am unable to come up with a valid reasoning as to why this might be the case. It could be the case that intelligence agencies have tried to hack it & failed and so, nothing has been published. But there is one key difference between Signal & EncroChat, Signal is open-source. This leads me to believe that intelligence agencies have shied away from hacking attempts not because they don't want to destroy the privacy of its users but because they know more eyes are on it. EncroChat however was a closed source platform, perhaps this might be a reason why intelligence agencies targeted it, who knows? Irrespective of all of that, it still begs the question whether hacking a platform is legal at all? Everyone has a right to privacy, over 150 national constitutions recognise a right to privacy. So I have to wonder how it could possibly be legal for an intelligence agency to hack any platform which is perpetuating that right either via hardware, software, etc. If so many countries recognise a right to privacy, how is it that leading intelligence agencies can pick a target (in this case EncroChat) and perform border-line cyber terrorism against it all because some users are using it for malicious or criminal activity. It would be as if SSL/TLS was banned, outlawed, back-doored or hacked because some terrorists used it on their systems. What are the legal specifics within the EU around governments performing hacking against companies? What evidence do governments need in order to prove that these type of activities are in-fact necessary and legal? If the Hack was Not Legal Can the Evidence be Used? If so, how? If the attack on the platform was not legal (which I don't think it was) then how could the evidence still be used? Or could it be used at all? The reason I ask is because on the news today, I saw the first UK criminal to be convicted and all of the evidence used against him was cited from the evidence gathered during the EncroChat attack. This lead me to believing A. he has a terrible lawyer. B. perhaps the attack was ruled legal? C. the evidence isn't admissible and this is corruption at the highest degree. This also led me to wondering, say the evidence is ruled as being legally obtained, what would the legal process be for this gentleman? Would this go to the appeals court or would it have to go much higher than that? Finally, has either the EU or the UK made an official ruling on the data collected from the hack or is that still under investigation? | It's just been answered by the Court of Appeal: BBC News, Encrochat: Secret network messages can be used in court, judges rule (5 February 2021) A, B, D & C v Regina [2021] EWCA Crim 128 (5 February 2021) The rationale for the decision is: Interception of messages renders them unable to be used as evidence. But the Encrochat system used end to end encryption, and the captured messages were in plain text and not decrypted by authorities. Therefore the captured evidence data could not have arisen from "interception" of messages. They were not intercepted messages, but on-device captures of the phones memory/RAM prior to encryption and sending. Corroborating this, the court observed that the captures also apparently included device data that was not part of any transmitted message,showing again, they were not "intercepted" data. It appears it was captured by some kind of software introduced onto the phones by French authorities, perhaps with UK involvement its not clear to me. | This question, along with a number of articles on the Internet, misconstrues what the rule change is about. The rule change does not say that you can get a search warrant, that is to enter premises with/without machineguns etc, solely on the basis that someone is running Tor on that premises. The rule changes actually has nothing to do with search warrants. The rule change is about "remote access" warrants and, specifically, the question of which magistrate you need to get the warrant from. The background is that statute grants the FBI the power to hack into a computer (that is, obtain "remote access") to search for and retrieve evidence in a criminal investigation. One of the preconditions for doing so is that they identify which district the computer is in, and apply to a magistrate in that district. (By way of further background, under the American way of distributing power, it is seen as a bad thing for (for example) a magistrate in California to be able to issue a warrant to an FBI agent to conduct a search in North Carolina.) When the target computer is desired to be hacked because it is running a hidden Tor service, then how does anyone know what district it is in? Where does the poor FBI agent apply for his or her warrant? This rule change resolves this practical problem by saying that, where the use of Tor or a similar system precludes any knowledge of the physical location of the target computer, then the FBI can apply for a warrant with any magistrate. See further http://www.fed-soc.org/blog/detail/amendments-to-federal-criminal-rule-41-address-venue-not-hacking-powers | 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. | Maybe, but probably not The geographic location of the organisation is immaterial: under Article 3.2: This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: ... (b) the monitoring of their behaviour as far as their behaviour takes place within the Union. Posts anyone (not just EU citizens) make to Reddit (or anywhere else) while they are physically located in the EU or UK engage the GDPR. Pushift.io is therefore captured by the GDPR and any denial of that is just plain wrong. Given the denial, it is likely right out of the gate that they are non-complient. For example, they are unlikely to provided the required information under Article 14. More importantly, it seems that they have not determined the lawful basis for processing the data under Article 6 - they can possibly rely on the public interest basis (preserving deleted publication is arguably a public interest) or a legitimate interest but that requires a balancing of their interest against the data subject's. That said, the right to be forgotten is not absolute, the reasons that might be applicable here are: The data is being used to exercise the right of freedom of expression and information. The data is being used to perform a task that is being carried out in the public interest or when exercising an organization’s official authority. The data represents important information that serves the public interest, scientific research, historical research, or statistical purposes and where erasure of the data would likely to impair or halt progress towards the achievement that was the goal of the processing. | 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. | I have not read the news report so cannot comment on the alleged offences and police conduct, but what I can say is that the information to given on arrest may be found at section 28 Police and Criminal Evidence Act 1984 (PACE): (1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest. (2) Where a person is arrested by a constable, subsection (1) above applies regardless of whether the fact of the arrest is obvious. (3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest. (4) Where a person is arrested by a constable, subsection (3) above applies regardless of whether the ground for the arrest is obvious. (5) Nothing in this section is to be taken to require a person to be informed— (a) that he is under arrest; or (b) of the ground for the arrest,if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given. Note the provisions at subsection (3) do not require anyone else to be told the grounds (reasons) at the time of arrest - including members of the public, protesters, bloggers or the press. Kerb-side debates can seriously or significantly distract the officer from ensuring e.g. public safety or preventing e.g. an escape from custody. Also, depending on what else is going on e.g. say in a dynamic and volatile crowd control or public order situation, the person under arrest does not need to told immediately if it would be impractical to do so. The operative phrase being as soon as is practicable, which is not defined by statute as each case needs to be considered individually according to its own set of circumstances. The relevant case law is DPP v Hawkins [1988] 1 WLR 1166, but the only detailed commentary I can find online is behind the PNLD paywall1. Succinctly, the magistrates initially dismissed the case against Hawkins for assaulting four police officers who kept him under arrest without giving the grounds as required by s.28(3) PACE. The DPP appealed, and the Court of Appeal sent the case back to the magistrates saying, inter alia, although there is an obligation under s.28(3) to tell a prisoner of the reason for his arrest as soon as possible (sic) after his arrest, a constable was also under an obligation to maintain that arrest until it was practicable to do so. 1Or free to law enforcement officers | Since you don't say which country you're in, it's likely that you're interested in United States law. You are probably in the clear here, though you're getting close enough to the edge of breaking the law that I wouldn't be confident about not being prosecuted and/or convicted. The relevant laws in this case appear to be 18 USC 471, 18 USC 472, and perhaps 18 USC 514. All three of them begin "Whoever, with the intent to defraud...". It's questionable whether creating counterfeit money as a burglar decoy counts as defrauding the burglar. | I am just a foreign patent attorney who is studying common law to pass the California Bar Exam, but I will present my personal view. (I cannot guarantee the validity of my theory) There is an equitable theory called Constructive Trust. If it is established, the victim is entitled to benefit of any increase in value of defendant's (thief) property, meaning in this example victim (plaintiff) can recover $100 million. In order to assert CT, the following must be met: Wrongful appropriation; Here, D stole lottery ticket. Met. D has title; Here, D has title to $100 million. Met. P can trace his property to D's property; P can trace from P's $1 lottery ticket to its possession by D and collection by D of $100 million. Met. Unjust enrichment by D; D was enriched by stealing P's property (the lottery ticket). Met. Thus, it is highly possible that a court will order D to hold the property ($100 million) in constructive trust for P. This means, in plain language, that P will recover $100 million. |
Carrying a knife in public in the UK Is carrying a certain knife in the UK, more specifically England, allowed? And what type of knives do these have to be? e.g. blade length. Would carrying such knife be allowed if you do not have a valid reason to carry it such as needing it for work? | Short answer: It depends. It is lawful if one has a lawful reason, such as it's needed for work, or it's a folding pocketknife (e.g. a Swiss Army Knife) with a blade less than 3 inches. Long answer: The primary legislation is s.139 of the Criminal Justice Act 1988 which makes it unlawful to have in a public place: (2) ... any article which has a blade or is sharply pointed except a folding pocketknife. (3) .... [this includes] a folding pocketknife if the cutting edge of its blade exceeds 3 inches. Subsection (4) gives the "good reason or lawful authority" general defence for possessing such an article which is complemented and supplemented by: (5) Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him— (a)for use at work; (b)for religious reasons; or (c)as part of any national costume. This site gives some more information and identifies certain knives that are banned, and this site, under "legislation", lists semi-related offences. . | Not all weapons are protected by the Second Amendment. There is a "dangerous and unusual weapons" exclusionary clause established by the Supreme Court in District of Columbia v. Heller, which excludes pretty much anything that's incredibly dangerous (obviously we wouldn't want our people to have the right to keep bombs in their house) or not considered a normal weapon (encryption/cryptography would probably fall under this). One case currently being considered under this exclusion is the stun gun, which is going to the Supreme Court to determine whether it qualifies as an unusual weapon and whether it is protected by the Second Amendment. | This article surveys the law, as of 2014. The answer is "yes or no, depending on which circuit". In US v. Chafin 423 F. App’x 342, the court decided that although the Second Amendment protects an individual's right to bear arms, it does not necessarily give rise to a corresponding right to sell a firearm drawing an analogy to US v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123 "the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others". Likewise the 9th weighs in, in Montana Shooting Sports Association v. Holder, 727 F.3d 975: Heller said nothing about extending Second Amendment protection to firearm manufacturers or dealers. If anything, Heller recognized that firearms manufacturers and dealers are properly subject to regulation Contrarily, in the Northern Illinois district in Illinois Association of Firearms Retailers v. City of Chicago, the court finds in response to a ban on the sale of firearms in the city that. the right to keep and bear arms for self-defense under the Second Amendment. This right must also include the right to acquire a firearm...the ordinances are declared unconstitutional The same court in Kole v. Village of Norridge determined that the would-be operator of a gun store, thus has derivative standing to assert the subsidiary right to acquire arms on behalf of his customers both decisions relying on Ezell v. City of Chicago, 651 F.3d 684, where the city sought indirect means to encumber the exercise 2nd of Amendment rights (banning shooting ranges). The final answer will have to be made by SCOTUS, and so far there is nothing on the docket that could decide the matter. Instead, the question will be answered based on level of scrutiny for firearms regulations and whether " the government can establish that the challenged law regulates activity falling outside the scope of the right as originally understood"; and if it is not outside the scope of the 2nd Amendment, "then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights". | Generally, the Second Amendment, so the argument goes, guarantees American citizens the right to bear arms, aka carry firearms. State laws vary by state. California, Iowa, Maryland, Minnesota, New Jersey, and New York are the only states that do not have a provision in their state constitutions mirroring or significantly reflecting the provisions of the Second Amendment (although New York has a civil rights law containing something almost the same as the Second Amendment). Campus carry laws are also decided at the state level. There are three types: Mandatory: requires publicly funded schools to, in general, allow on-campus carrying (even though certain locations, such as a basketball game, may nonetheless bar weapons). Institutional: each school determines whether or not to allow firearms. These policies are subordinate to state law according to, for example, court holdings in Colorado and Oregon, and as stated by the University of Texas. Non-permissive: the law, with some exceptions, bans firearms on any institution's property. SCOTUS has held in McDonald v. City of Chicago that the Second Amendment applies to state and local laws and, thus, state and local laws are limited in the same way that federal laws are limited with respect to an individual's right to keep and bear arms. It had previously already held that the Second Amendment protects an individual's right to own guns in District of Columbia v. Heller. | Although the USA don't like it, there's a department called INTERPOL which is composed by about 150 countries. When a crime is committed and you need to involve another country to solve it, the sovereignty of each County prevents a police officer from one country acting upon another country. That's when the INTERPOL comes in. They usually requests the police from that country to act up. A judge from that country will grant their local police access to the data to be delivered to the country that requested it. Can the police get a search warrant for data 'in the cloud'? Yes. If the servers are located within the boundaries of your own country, it's a normal procedure. But like the above answer states, it's easier to subpoena the records than to execute a search warrant. In a subpoena, the company itself is bound to provide everything the police asks. Can the police get a search warrant for such third party systems? Yes. If there's enough probable cause, the investigation can lead to allow the police to try and discover files that are held by servers that store the cloud data. But if the servers are located outside the country and the company does not have any office opened in the country, a search warrant won't have validity in another jurisdiction and the police can't act without breaking the sovereignty principle. That's where the INTERPOL services are handy. The department is built in the principle of polices from different countries helping each other. The downside is that it's too bureaucratic and it takes a lot of time. For instance if he has a virtual machine hosted by Amazon, would they serve the warrant on Amazon, or on the suspect? Like mentioned by @Viktor, if the company has an office within the bounds of your country, it's easier to subpoena the records because that way the company will filter and provide only the data linked to the suspect being investigated. That is, the subpoena will have both the name of the company (Amazon) and the name of the Suspect, so the company can provide only the necessary files. Update If the police lack sufficient evidence for a search warrant, but an interpol country was, for some reason, willing to work with the police to collect and provide that information would they be able to use it even if they wouldn't have been able to subpoena a US country? Hypothetically speaking, I see your follow-up as a company that do have a local office and the Federal Police was turned down by a judge on a warrant/subpoena. In that case, there's no reason for another's country police to act on their own country. The suspect is a foreign suspect, the crime is a foreign crime and the police has no reason to work on it. But for the sake of argument, let's say that the local police was turned down by a judge for lack of evidence or something and the suspect has been investigated by a foreign country or whatever. If the information that the local police desires to obtain is available through the INTERPOL, it's most likely to be accepted since it's a data stored by an international police department. In your scenario, the foreign police was granted a legal right to search and collected the data for legal purpose. Maybe they can't use it in their own country, but since they followed a safe chain of custody and provided the information to the INTERPOL, that information has legal validity and it is not fruit of the poisonous tree if the chain of custody was maintained. | It depends on the particular law in the particular jurisdiction in which you are charged. Most statute laws enumerate the defences that are available. In common law countries there is a general defence that (except in strict liability offences) the perpetrator must well ... perpetrate the criminal act; what you describe does not appear to meet that requirement. Other jurisdictions would not be so forgiving. | It is definitely illegal in Russia as well, but the police will do nothing. Previous activity of this group included forcefully attacking people who tried to speak to a girl who disliked it and handling over such people to police to get fined "for hooliganism". Usual practice in Russia is to beat the people whom the random girls around dislike. This group stepped a bit further, involving police. They use illegal or questionable methods, definitely. But they use them in a manner that people would be unlikely to complain to police because they themselves either did something illegal or public opinion is not on their side. The police usually will do nothing even with much more serious violations, like beating somebody. | You have asked about "United Kingdom", but I can only answer about England and Wales; the law in Scotland is very different (rather more different in some respects than the difference between E&W and the State of New York). There is no time limit per se on manslaughter charges; if the police find evidence for a manslaughter charge after 80 years, there is no difficulty (in principle) in bringing a charge against the now-centenarian (provided they are competent to stand trial, and they can get a fair trial, and so on). However, in the case you mentioned I would have thought the major problem would be a defence of autrefois convict - in other words, the defendant can (usually) only be charged once with charges arising from a particular set of facts. It is just possible that the subsequent death constitutes a new fact which allows a new prosecution. On the other hand, the rule for murder used to be that if the victim survived a year and a day then it wasn't murder (even if they then died of their injuries). Finally, the case certainly would not be reopened with a charge of manslaughter. It would be "causing death by dangerous driving", which is a very different offence. Edit My thanks to ohwilleke whose comment about the "year and a day" rule prompted me to do a little research, and discover the Law Reform (Year and a Day Rule) Act 1996. Section 2(2) clearly covers the present case (in both legs), and says that the perpetrator can be re-prosecuted, but only with the permission of the Attorney General. The act is very brief, and I encourage you to read it all. (And incidentally, does not apply to Scotland.) |
Failing to renounce Indian citizenship Indians are required to renounce their Indian citizenship after obtaining another citizenship. What happens if someone doesn't do so? I mean if my Indian passport has anyhow expired, and I never ever plan to travel to India again, or use my Indian citizenship in any way, does it make any sense to pay 185 euros for this procedure? Can I just simply claim on official forms that I'm not an Indian citizen after my Indian passport expired, even if I don't officially renounce it? | The Indian Citizenship Act, 1955 §8 requires it, so from a legal perspective, you must do it. That law does not specify the consequences, and there isn't a clear limit on the possible punishment. The government does invite you to inquire about your penalty, saying The Indian Citizenship Act, 1955, does not allow dual citizenship. Holding Indian passport/acquiring Indian passport/travelling on Indian passport after acquisition of foreign citizenship constitutes an offence under the Indian Passport Act, 1967, and attracts penalties. The Government of India has prescribed imposition of penalty on a graded scale, depending on number of trips made on Indian passport after acquiring foreign nationality, for the violation of Passport Rules and retention of Indian Passport for more than 3 years after acquiring of foreign nationality. §12 of the Passport Act spells out the penalties (up to 5 years in prison and ₹50,000. If you can avoid being in illegal possession of an Indian passport, you might avoid prosecution under the act (though they probably cannot get you extradited to enforce the penalty). They certainly have the power to revoke your passport, but no provision of the law obligates you to formally apply for a passport revocation when you believe that your passport should be revoked. Unless you officially renounce your citizenship, do the paperwork, and officially surrender your passport, the government can reasonably suspect that you are illegally in possession of an illegal passport, so they are empowered to investigate, including searching and seizing. However, if you have zero interest in India, that may not matter. | Note that, criminals are not allowed to apply for a German citizenship, so I don't know whether the German government would consider being a deserter as a being criminal. First of all, they would deny a criminal German citizenry, but that goes only for crimes, that are also illegal in Germany (Sec. 12a § 2 Nationality Act, § 12a Abs. 2 StAG). Were you - for instance - convicted for muder you couldn't become a German citizen. Desertion in that sense however is not a criminal offence in Germany, so you're good. Regarding double citizenship, Sec. 12 § 1 2nd sentence no. 2 Nationality Act (§ 12 Abs. 1 S. 2 Nr. 2 StAG) allows you to keep your original citizenship, if the country of origin "regularly refuses to grant release from citizenship", which should be the case here. Therefore, you could become a German citizen according to Sec. 10 Nationality Act (§ 10 StAG). | Isn’t this discrimination since nationals do not have to apply? Yes it is discrimination. But that does not make it illegal. In fact discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race). And in general, all of the countries in the world allow and enforce discrimination based on nationality; for example non-nationals will not be able to run for Head of State (and additional restrictions may apply). The EU members allowing similar rights to the citizens of other EU countries is the exception, not the rule, and once the UK stops being bound by EU treaties it can impose its own legal system on non-nationals. And while EU treaties give lots of rights to EU member-countries citizens, they still allow for discrimination based on nationality (for example you cannot run for Prime Minister or MP of Spain as a foreign EU resident). Isn’t the UK Government breaking the law? This could go against EU treaties, but the point is that the UK will no longer need to comply with them. is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing? No, the UK Government is not responsible if you do not like its laws to the point that it affects your health. Is there any ground for challenging this scheme legality in court? Unlikely. In any case it will not be because you are frightened by it, any challenge would be in the grounds that the government actions act against some other UK law. For example, if the decision to make such a list was made by the Executive but it contradicts some law approved by the Parliament. If this list does not contradict any law, then there are no grounds for challenging it. Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)? If you do not apply you will not have any evidence that you were settled, and the government could legitimately believe that you are irregularly in the country and try to expel you; you probably would have an opportunity to prove that you were settled even if you were not in the list but that could be way slower, more expensive, riskier and stressful than just registering now. Get this clear: that settled person list is to help you to show that you were a UK resident before Brexit and to give you the protections that are being negotiated between the UK and the EU for expatriates. Probably you could choose not to enlist, but it would work against you. | Legally you face no problem. The section 66A of the Indian IT Act, which used to be previously misused for penalizing anyone who dared insult a politician, has been struck down as unconstitutional by the Supreme Court of India. But the police could still detain you for 48 hours (legally) without giving any grounds; they are required to do that, but the police are seldom held accountable. The supporters of the said politician can vandalize your home and office without fear of legal action. I am not a lawyer. Whatever is posted above is my opinion and data that I believe to be true to the best of my knowledge and resources available to me. Please contact a lawyer for professional advice. | Yes. A multi-nation citizen who has US citizenship has equal US citizenship with every other citizen; therefore the answer to this binary question is "Yes". The citizenship(s) of anyone who does not have US citizenship is irrelevant to this question; thus, the answer to this binary question is "No". Yes. The main point here is to determine if you have the relevant documents and permissions to be legally present in the US. If you are a US citizen, a) this makes the process easier for you and b) avoids any possible issues if evidence is found of citizenship from another country, which will make immigration think that A) you are not a US citizen and b) you lied to them. Most people have only a single citizenship. That is the default mindset of immigration. There's no downside for you to inform them; there may be additional difficulties, delays, and scrutiny if you do not. If you are not a US citizen, most of the same applies. Additionally, lying (even by omission) can be grounds to have your legal status revoked. In summary, if you have the legal right to be in the US (e.g. US citizen, legal resident) being fully honest cannot hurt you, and can make the process smoother. If you have legal permission to be in the US, being fully honest will help prevent that permission from being revoked. | This FAQ from the US embassy in Korea explains all of the concerns that a Korean-American might have. If you have a Korean lational parent, you are automatically Korean. Before March 31 of the year you turn 18, you must renounce your Korean citizenship, lest you be then subject to the military service law. If you were a Korean citizen and then gained another citizenship, you automatically lose your Korean citizenship, and if you did not complete your military obligation and did not obtain an overseas travel permit, you may be punished if you ever return to Korea. The travel permit lets you postpone military service until age 37, so if you are living overseas, by January 15 of the year you turn 25 you must apply for a travel permit. The laws are set up so that you must enlist by age 28, but must have obtained a travel permit by age 25. That means if you are abiding by the law, there is no risk of sudden conscription if you're there for a short period (e.g. as a tourist). The risk seems to come from not obtaining a travel permit. | Citizens likely have an absolute right to enter the US. This hasn't been addressed directly by the Supreme Court, but here are some cases that come close. The Fifth Circuit, in William Worthy, Jr. v. US, 328 F.2d 386 (5th Cir. 1964): We think it is inherent in the concept of citizenship that the citizen, when absent from the country to which he owes allegiance, has a right to return, again to set foot on its soil. The Supreme Court, in Tuan Anh Nguyen v. INS 533 U.S. 53 (2001) said that conferring citizenship on a person would give "the absolute right to enter [the US]". This wasn't necessary for the holding in this case, which was about whether the person was a citizen, so this could be considered dicta. Fikre v. FBI, 23 F. Supp. 3d 1268 (D. Or. 2014). (not an appellate case) said: U.S. citizen’s right to reenter the United States entails more than simply the right to step over the border after having arrived there. At some point, governmental actions taken to prevent or impede a citizen from reaching the [border] infringe upon the citizen’s right to reenter the United States. Even if we assume that citizens do not have an absolute right to re-entry, the Equal Protection Clause likely bars a religion-based criteria for citizen re-entry. Citizens are protected by the Equal Protection Clause of the 14th Amendment. This prohibits the government discriminating based on a suspect classification (race, religion, national origin) unless such law passes strict scrutiny. Without making a prediction about whether such a hypothetical statute could pass strict scrutiny, I'll go as far as I can and strongly guess that the government could not prohibit citizen re-entry to the United States based solely on their declared religion. | A Probably. Exceptions include: A didn’t own the materials from which the flute was made; the flute belongs to the material’s owner. A made the flute under a contract of employment; the flute belongs to A’s employer. A has sold the flute before making it; the flute belongs to the buyer. This is not only the law in india but pretty much everywhere in the world. If you want to ask about redistributive justice or taxation/welfare; please post the question on our sister sites philosophy or politics. |
Is it legal to alter and resell a product under its original name? I recently picked up a little business on the side, and I am thinking of bringing it a step further by approaching a store that can sell the product for me, which got me thinking about the legality of what I am doing. I am buying large reels of 35mm motion picture film, and respool them by hand into single film canisters which I then sell to photographers. If you are familiar with them, this is what Cinestill does too, albeit at a much larger scale. I don't sell the product under another brand, but I explicitly name to original product name on the canisters: "Hand rolled Kodak 5222 motion picture film" All other text is descriptive of the product. I have attached the sticker that goes on each roll. In short, I simply cut up long rolls into smaller rolls and resell under the original product name, but not as Kodak. Is this legal? I am based in the Netherlands. | This sounds like legal nominative use to me. The issue is trademark. Trademark law isn't a monopoly on using the trademark, it is a prohibition on using the trademark in a way that misleads a customer about who is selling something or what is being sold. You cannot sell goods in a manner that implies inaccurately an affiliation or endorsement of a trademark owner, causing confusion in the mind of a reasonable consumer. But, it sounds like your disclosure makes a factually accurate statement without implying or stating that the goods are sold with the affiliation or endorsement of Kodak, only that you used their goods as parts in your product. To be safe, in order to be completely clear and avoid all doubt, you might want to say, in addition, "This produce is not licensed or authorized by Kodak." The First Sale rule expressly protects your right to resell physical good protected by trademark or copyright to someone else, so the sale itself is not illegal, it is just a question of whether you have abridged its trademark. Conceptually, what you are doing isn't that different from stating that the used car you are selling had all replacement parts obtained to maintain and repair it done with dealer approved parts, rather than third-party knock offs, which would likewise be legal. Similarly, you could sell a house with a listing that identifies the brand of every building material used. For example, "this house was constructed using Pella Windows." | In your example is the spare part the subject of a design patent? I assume it is not. When you combine the spare part to create a “different product” does the finished product resemble the drawings in the design patent? If, in its intended use, the final thing is close enough to the design patent to fall within its scope then you might by indirectly infringing by inducing people to infringe. The scope of a design patent is very difficult to determine reliably. This has nothing to do with how you got the components of your product, just how the completed thing looks. Copyright does not cover products (unless it is a model of a building or a statue or mold for a statue). | The answer by Dale M. is correct, but a bit brief. "Selling" is not an exact phrase. What you do not want to do is to transfer ("sell") the copyright to the source code. If you did that, you would put yourself in legal danger because they now own the copyright to code that you use in other products, and can sue you for copyright infringement. However, you selling a copy of source code does not imply transfer of copyright in any shape of form. When you buy a copy of a book in a book store, the author's copyright is not transferred to you. Accepting this deal would put the other party in legal danger. Even if they have bought the source code, they still don't have a license to make further copies of it and sell those. This is why you need to license the software to them. In brief: Copyright grants the copyright owner a lot of rights. These rights are always licensed, not sold. The right that is relevant here is the right to create derivative works. A license is simply a contract between the two parties, describing a particular business arrangement in legally binding terms. If I were in your position, I would hire an IP lawyer to help drafting the license. But, basically, the license should say that you, as owner of the copyright to ABC software, grants XYZ company access to its source in its present form, and also grants XYZ company the right to create derivative works, but only for hardware platform DEF, and to create and distribute copies of their derivative work. | Monopoly is a trademark of Parker Brothers. You would need to get permission to use that trademark. The artwork of the game is copyrighted and cannot be duplicated without violating that copyright. In general, the labels meaning phrases like "Go to Jail" and "New York Avenue" are probably copyrighted and some court decisions have decided that labels are a copyrightable element. However, there is some gray area. The game mechanics are not copyrightable and can be duplicated. What this means is that if you clone the game and use new labels (like new property names and card titles) then you are probably fine. You would have to make a novel board design. If you clone the game, but use the game's labels, then you could potentially lose in court. Of course, remember that corporations will sometimes sue just to intimidate people, even if they have a losing case. Just because your clone is non-infringing doesn't mean they won't sue you. It costs them money to sue people, so if your clone is obscure or not used by many people it could fly under the radar and be ignored by the company. If your clone was a success and became widely used, that would significantly increase the chance you could get sued. In most cases a company will threaten infringers before they sue them, because it is a lot cheaper to threaten somebody than sue them. Therefore, you could make your clone and just plan on discontinuing it if they threaten you. Of course, there is a small risk they would sue you anyway. If you made no money then you are probably safe because it would be a lot harder for them to argue that you commercially damaged them if you made no money. | The issue you identify isn't really a copyright issue. The same issue would arise if the product contained public domain images in the advertisements that aren't present in the work itself. Essentially, the question comes down to whether there was actionable deceptive advertising. Usually, these claims arise under specialized consumer protection statutes that offer remedies and means of enforcement different from an individualized fraud lawsuit, and usually a deceptive advertising claim is easier to prove than traditional fraud lawsuit. Traditional fraud lawsuits normally require a showing of damages caused by reasonable reliance upon the misrepresentation, which is uneconomic to prove in the case of an individual small consumer purchase. Usually, deceptive advertising of consumer products is established in a lawsuit by a government official in charge of regulating deceptive advertising or a class action lawsuit, and often statutory damages are assigned to each violation rather than requiring detailed proof of economic harm for compensatory damages from some but not other images being present. Often fine print in the advertisement or in a purchase form before buying the product discloses the disconnect. Also, the mere presence of an image in an advertisement doesn't necessary imply that it is included in the product. So prove of deceptive advertising liability in these cases is often difficult even with these relaxed standards. There are many gray area and close cases, and often, businesses settle these lawsuits rather than litigating them. A more specific answer would require knowledge of which jurisdiction's laws apply, which is often a non-trivial question in Internet based advertising lawsuits. | It is likely that the law applying will be both that of the USA and your country. If you went to court this would be one of the things you argued over. For example, Australian Consumer Law applies to any goods or services sold to a customer in Australia irrespective of where the vendor is located. Your jurisdiction may have similar laws. At first blush you must comply with the term of the contract preventing reverse engineering. They would be within their rights to terminate the licence if you don't. However, they probably have an obligation under your equivalent to the ACL to supply a product that: is merchantable is fit for purpose does what it says it will do If it doesn't then you have a right to terminate and get your money back, sue for damages and your country's government may prosecute. | There will be single frames from let's say "The Exorcist" that are highly recognisable. You say it's not the heart of the work, but it may be representative for a substantial part. If I wrote a book about the movie, then say 25 frames out of the movie would illustrate the book very nicely, so this is substantial. And there is a market for selling pictures, t-shirts, posters etc. all using a single frame, or selling single frames to book authors wanting to use it for illustrative purposes. You deprive them of income for this activity. So what you said is something similar to what I would expect your lawyer to say in court, but I would expect the opposing lawyer to come up with some very different wording. All in all, I find the argument for "fair use" not convincing. | 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. |
Dealing with a fundraiser con-artist / fraudster A group of us are aware of someone with a history of fraud/deception. We're seeing ongoing acts of fraud that we want to stop. Key facts about the person: Currently running a fundraiser for Louisiana (following the hurricane) Only $3,000 out of $24,000 raised has been given to the cause The fundraising site (GiveSendGo) seem uninterested in stopping the campaign Arrest warrants (hit and run, check fraud) in Orange County, from several years ago but still active Convictions for bribery, check fraud, vandalism Filed for bankruptcy in 2018 Falsely claimed on social media to have law qualifications Ran a fundraiser in 2020 that had fraud complaints Claims to have been abused by many people, including many members of the clergy When asked questions on social media, she almost always blocks people Her family state that she is a pathological liar Many other deceptive acts to gain followers Orange County said her charges are not exdraditable Colorado fugitive task force said they couldn't extradite her She changes address often. I believe she's in a hidden address identity program after claiming her ex-husband abused her, though the state she's in must know where she is from her PO box (I think I know which state, but won't specify it here). I don't have time or money to invest into pursuing her, so I'm hoping there might be organisations or government departments etc. who might take on something like this. How to proceed? | The FBI provides guidance on how to Report Fraud: If you're a victim of charity or disaster fraud or have information about these types of schemes, you can: Contact your state consumer protection office Report fraud to the FBI at tips.fbi.gov Report online fraud to the FBI's Internet Crime Complaint Center (IC3) File a complaint with the Federal Trade Commission (FTC) Report suspected disaster-related fraud to the National Center for Disaster Fraud | All of this is illegal. You do not give a jurisdiction so I will use NSW, Australia as an example but many countries' laws have similar effect. Australian Consumer Law prohibits misleading and deceptive conduct: It is illegal for a business to engage in conduct that misleads or deceives or is likely to mislead or deceive consumers or other businesses. It doesn't matter that what you have said is strictly speaking factual - the way it has been said is likely to mislead or deceive. However, what you are proposing goes further and IMO crosses the line into fraud (s192E of the Crimes Act): 192E Fraud (1) A person who, by any deception, dishonestly: (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years. (2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. In addition to the illegality, stealing other people's money is morally wrong by any reasonable standards of morality. | Hacking into a computer owned by someone else and accessing the data stored on it without permission is a misdemeanor according to StGB 202a (de|en). But only if it's successful. So a failed attempt isn't a misdemeanor yet. When you notice that someone might have committed a criminal offence (regardless of whether you are a victim or just a witness), then the usual procedure is to report it to the police. If they consider the crime serious enough to investigate, then they will request the identity from the ISP. But the copyright lawsuits which are filed in bulk by law firms working with media companies are not crime reports. They are civil lawsuits. A civil lawsuit is when someone had a tangible damage because of something someone else did, and now they want money in compensation. When there is no damage, then there is nothing to sue for. So when you want a judge to file an injunction to force an ISP to give them the identity of one of their users, then you would first have to explain to them how much financial damage you had because of that person and that this is enough damage to make it worth everyone's time. That might be quite challenging for nothing but a failed SSH login attempt. But it might be possible if a single person made so many login attempts that it incurred you non-negligible bandwidth cost or even caused a denial-of-service. | This is going to vary based on jurisdiction. In Wisconsin, the attempt statute covers all felonies, but it doesn't cover all misdemeanors. The statute says: Whoever attempts to commit a felony or a crime specified in s. 940.19, 940.195, 943.20, or 943.74 may be fined or imprisoned or both as provided under sub. (1g), 943.20 is in that list, and it just so happens to be the theft statute, which includes theft via fraud. So Eve is out of luck - her attempted theft is a crime, even if she doesn't try to steal the $2500.01 needed to trigger a felony. The penalty listed for attempts is half the sentence you'd get for the completed crime. But even if this wasn't covered by the attempt statute, once the police start investigating Eve, they'll likely find a victim, or some other crime to charge her with. People who do this sort of thing tend to have a pattern of doing this sort of thing. And I notice she's using the Internet to commit the crime; that means she's involved in systems affecting interstate commerce, and she may be breaking all manner of federal laws in addition to state laws. | This would probably be legally considered "gambling' Gam,bling is prohibited in many US states and a good many non-US jurisdictions. It is significantly regulated in most US jurisdictions where it is legal, often requiring a specific license. Analyzing laws on this subject in all 50 US states would be beyond the scope of an answer here. This is definitional the sort of thing where consulting a local lawyer, experienced in this area of law, would be wise. Maryland law As an example I will cite the specific laws which I think woulds apply to the situation described n the question in teh US state oof Maryland. The Maryland criminal code Section 12-201 provides that: In this subtitle, "lottery device" means a policy, certificate, or other thing by which a person promises or guarantees that a number, character, ticket, or certificate will, when an event or contingency occurs, entitle the purchaser or holder to receive money, property, or evidence of debt. Thus an entry or ticket issues by such an app, would be "lottery device" if winners were paid in money or things exchangeable for money or property, which would include gift cards. Section 12-203 provides that: (a) Prohibited.- A person may not: (a) (1) hold a lottery in this State; or (a) (2) sell a lottery device in the State for a lottery drawn in this State or elsewhere. Section 12-205 provides that: (b) Prohibited.- A person may not: (b)(1) bring a lottery device into the State; or (b)(2) possess a book, list, slip, or record of: (b)(2)(i) the numbers drawn in a lottery in this State or another state or country; (b)(2)(ii) a lottery device; or (b)(2)(iii) money received or to be received from the sale of a lottery device. Section 12-206 provides that: b) Prohibited.- A person may not print, write, or publish an account of a lottery that describes: (b)(1) when or where the lottery is to be drawn; (b)(2) any prize available in the lottery; (b)(3) the price of a lottery ticket or share of a lottery ticket; or (b)(4) where a lottery ticket may be obtained. Most plausible ways to advertise an app as described in the question would seem to violate this section. Section 12-208 provides that: A court shall interpret §§ 12-201 through 12-207 of this subtitle liberally to treat as a lottery ticket any ticket, part of a ticket, or lottery device by which money is paid or another item is delivered when, in the nature of a lottery, an event or contingency occurs. So if it is arguably a lottery, the court will treat it as one. Section 12-209 provides that: A grant, bargain, or transfer of real estate, goods, a right of action, or personal property is void if it occurs while engaging in, or aiding or assisting in a lottery. So winners cannot lawfully collect prizes. In short any such app would seem to viol;ate several sections of Maryland law if it is used of promoted in Maryland | Accused of what? Clearly stating under which conditions you (the accuser) would earn money by doing nothing more than staying online for 7 days? You agreed to these conditions, but did not fulfill them, so the scammer (the accused) was the one that earned money for doing nothing. The scammer had the same motive as you had, earning money for doing nothing. In the end a Judge will make a decision based on the presented situation and motive of the participants. In this case the motives were the same, but you did not fulfill the conditions you agreed to, so the other - as agreed to - earned the money for doing nothing. The Judge will probably come to the conclusion that had you, in the unlikely event of actually earning money for doing nothing, would not make a claim that the scammer was trying to commit a fraud. So the Judge's final conclusion may be, that both parties had agreed to attempt fraud against each other and that only one would be successful. Since the agreed result (as desired by both parties, whom we assume are not minors) came about, the Judge would probably dismiss this case to avoid further waste of the taxpayers money. Based on the Jurisdiction, this will be worded differently - but in the final result will mean the same. | My best guess would be that they're recommending that you get a lawyer if you're trying to get your money back from the thief. A criminal prosecution may not be able to do that. | The first step of a non-governmental debt collector would be to sue you and obtain a money judgment (if this debt collector is legitimate, something the comments touch upon). A tax debt is different, if this is a legitimate tax debt. There is usually an internal tax collection agency process that must be exhausted, resulting in an assessment of taxes which then results in a non-judicial imposition of a tax lien, upon which what is sometimes call a distaint warrant authorizing execution against assets pursuant to the tax lien is issued by a court in Oregon. Outside Oregon, the Oregon money judgment or the distaint warrant would have to be domesticated into California as a foreign judgment, which is a basically administrative process that might be possible to do without notice to you (I'm not a California law expert on these fine matters of procedure). Once there was a money judgment domesticated into California, your wages and bank accounts could be garnished, your property could be seized pursuant to writs, and liens in your personal and real property could be perfected and foreclosed upon. Of course, if this outfit is a sham, with a fake debt, this is unlikely to happen, and they might give up, or you might sue them for violating debt collection laws or engaging in fraud, or a law enforcement agency might do that based upon your complaint. It might take a civil action of some sort to set aside in invalid judgment, if it was invalid, but the process of setting aside an invalid foreign tax debt is very complicated even for an average small firm lawyer. Lack of notice of a lawsuit is generally a strong defense to a private sector debt, but is not always such a strong defense to certain kinds of tax debts (and the process for different kinds of tax debts is quite different). |
How does the court distinguish between plagiarism and inspiration in songs? https://www.youtube.com/watch?v=8JL4JXEv-RY https://www.youtube.com/watch?v=zqqq8uqSDnk How does the court distinguish between plagiarism and inspiration in songs? I heard these two and I found they sounded very similar, but weren't completely the same. Is there a set of criteria we can use to judge if a song was plagiarizing another rather than taking inspiration from another song? Does the law allow a composer to heavily borrow from another song without being subject to a lawsuit in the United States? | First of all, "plagiarism" is more of an academic than a legal term. It means using another's work without proper credit, and particularly in a way that falsely makes it appear to be ones own work. This is severely criticized in academic and journalistic circles, and may result i a person losing a job or being expelled from a degree program, but it is not in and of itself a legal issue. What a court is concerned with is copyright infringement. Some things are plagiarism but not copyright infringement. For example, copying without acknowledgement from a work written two hundred years ago might well be plagiarism , but would not be infringement because the soruce is not protected by copyright. i can, for example copy from the music of Bach all that I want, because it is long out of copyright. On the other hand, if I copy a recent work without permission but properly attribute my source, it is not plagiarism, but may well be copyright infringement. When faced with a claim of copyright infringement, a US Federal court will look at several things. First of all, it will check if the copyright has been registered within eh copyright office. Under US law, one must registered before bringing a copyright suit. If there has been no registration, the suit will be dismissed. The court will also consider evidence of similarity, unless the defendant admits copying. Usually if this is disputed there will be expert testimony that the similarity is so great that simple coincidence cannot explain it. Thsi will consider the notes, the duration of each tone, rhythm, chords, keys, and other musical elements. To establish copying there should normally be a significant similarity over an extended passage at least. I have read of cases where similarity of a passage 35 notes long was enough to m establish copying. But there is not clear cut rule on this. A passage just a few notes long could be identical by accidental recreation, and will not generally prove copying. The court will also consider evidence of access. The plaintiff will often introduce evidence showing that the alleged infringer had access to a copy of the source work. This is not absolutely essential, but is very helpful to the plaintiff's case. The court can also consider claims of common source. If the defendant says that the allegedly infringing work was in fact based on an older work now out of copyright, which the plaintiff's work was also based on, that would tend to defeat a claim of infringement. The court might also consider claims that the alleged source work was not in fact original and should not have copyright protection. And if the defendant admits copying, but claims that this was a fair use of the source work, the court will analyze the statutory dour factors, and possibly other relevant factors to determent whether this is valid fair use or not. This is where claims of "influence" tend to be resolved. There is no clear cut set of criteria for how much copying is allowed. I have not followed the links, because I am not a musical expert and my judgement of the degree of similarity would not be meaningful, and even if it were, the degree of similarity alone would not prove whether there has been infringement. Note that it is also possible that one of these composers has actually gotten permission from the other, perhaps in return for a fee, to use part of the other's work. In that case there would be no infringement, as long as there was permission. The book My Life in Court by Louis Nizer has a detailed description of a successful suit for infringement of a copyrighted song, the so-called "rum and coca-cola" case (Baron v. Leo Feist). The book describes in detail the evidence presented by plaintiff and defendant. See also the Music Copyright Infringement Resource provided by The George Washington University Law School & Columbia Law School, which lists many cases of alleged copyright infringement of music, from 1844 to 2021, giving results and excerpts of court opinions as well as other information about each case. | This case did not find that Two Live Crew's version was fair use. Rather it held that it could be fair use, contrary to the lower court ruling that its commercial nature precluded a fair use defense based on parody. The court remanded the case to be considered in light of its holding. The two parties settled without getting a final decision on fair use. It was never really contested that this work was parody. The issue was whether the commercial nature rendered it unfair. The Supreme Court told the lower courts to assess the taking under the full four-factor fair use analysis and that commercial use doesn't automatically make a parody unfair. One source of confusion is that you seem to be conflating parody and fair use. Parody is just one purpose (along with criticism, education, and others) that has been generally held to swing the balance in favour of fair use. Last, the "five word plagiarism rule" is not a legal standard. | Ultimately whether one work is derivative of another is a question of fact, and there is no absolute rule beyond taking it to a court. Many cases are clear. A Full translation is obviously a derivative work, The definition in 17 USC 101 is: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. A mere description of a work, such as a one-paragraph summary, is probably not a derivative work, but as the summary gets longer and fuller, it starts to approach an "abridgment or condensation". One test is if the summery could reasonably replace the original, at least for some consumers. But there is no clear cut place to draw the line. By the way, If something is a derivative work, it is infringing provided only that the original is in copyright and the creator of the derivative did not have permission from, the copyright holder on the original. Fair use may prevent an adverse judgement, but is still an infringement. As the question referred to fair use, a strictly US legal concept, I am assuming US law here. | Distribution on YouTube implicates, at least, US copyright law. Shropshire v. Canning 809 F.Supp.2d 1139 (N.D. Cal. 2011), Subafilms v. MGM 24 F.3d 1088 (9th Cir. 1994) Are you infringing? Is the original work eligible for copyright? "It is undisputed that computer programs— defined in the Copyright Act as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result, can be subject to copyright protection as literary works." 17 USC 102, Oracle Am., Inc. v. Google, Inc., 750 F.3d 1339 (Fed. Cir. 2014) (internal citations omitted). Are you making a copy or displaying the work publicly? (17 USC 106) You concede that you are doing this in the hypothetical, so we can skip this step. Do you have permission to do this? Some work is licensed to allow your proposed use. If you have permission, then this entire answer is moot. Are you taking what amounts to a substantial taking of the original? Presumably, you will not need to show the entire source file to present the naming conventions and techniques that other developers have used. But, what you do show will be an exact reproduction of the original. In the case of computer programs, all US districts use the abstraction-filtration-comparison test. Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). The abstraction stage of this test is irrelevant in this hypothetical because the reproduction is exact. Filtration excludes any uncopyrightable elements of the original from consideration (due to scènes à faire, merger, lack of originality). The comparison stage compares what remains after the filtration stage, to determine if the new work takes substantially from the original. Fair use defense If your use is found to be infringing based on the above analysis, the affirmative defense of fair use is available. I can't tell you whether a fair use defense would be applicable or successful in your particular case. However, you can search the US Copyright Office's Fair Use Index for many examples successful fair use defenses when a literary work was reproduced in part or whole for educational purposes. There are also other affirmative defenses available (implied license, for example), or defenses that directly attack the elements of copyright infringement. Some confusion exists regarding "idea/expression merger" as a defense after a prima facie case of copyright infringement has been made. This isn't completely correct. Where idea/expression merger enters the analysis differs from circuit to circuit. In the 6th circuit, merger enters in the copyrightability analysis (paragraph 1. above). But, the 2nd and 9th circuits treat merger as part of the infringement analysis (paragraph 4. above) and in the 9th circuit, merger is an affirmative defense. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000) The idea/expression merger doctrine is not implicated just because "the idea one that is expressing is 'this is the code they used.'" When you need to cite/show the original work for purposes of "criticism, comment, news reporting, teaching", that is a direct implication of fair use. Using using this justification triggers the full four-factor fair use analysis. (17 USC 107). You don't get to reproduce a work just because you want to say "this is the work they created." | Summary: A transcription of a "faithful" to-the-letter recorded performance of a public domain work is not copyright infringement. However, once there exists original changes to the underlying composition, the transcribers are infringing copyright in all but the most trivial cases and are in for an uphill legal battle. Caveat 1: I'm mainly confining myself to US law due to the statement that this concerns a US-based company. However, there might be legal troubles in some jurisdictions for both the company and transcribers where a perpetual and inheritable moral right of first publication is recognized, like Germany (UrhG § 12). Caveat 2: Outside of copyright law, the company could theoretically gain some limited protection by selling the recording under a contract with a "no transcribing" clause. Since a similar scenario has already been discussed on this site, I am confining myself to the copyright law aspects. 1. What did the transcribers copy? In effect, I believe the transcribers are ultimately copying an underlying arrangement fixed by the recorded performance. That's a bit dense, so let me explain: As you already note, a performance is an artistic rendition of the underlying composition. This performance has separate copyright and may even include various changes to the underlying composition such as dynamic changes, instrumentation changes, tempo changes and various flourishes. I believe that a transcription would mainly reflect the underlying composition plus any such artistic changes to that composition made in the performance. Effectively, from a music theory perspective an underlying composition with artistic changes is the definition of an arrangement. From a legal perspective, an arrangement is copyrightable as a derivative work. Even though it's the performance itself that's being copied from and you haven't specified that there's a separate written arrangement, one can consider an implicit arrangement created by the performance. This implicit arrangement is then documented (i.e. fixed) by the recorded performance. Since a transcription is not capturing the sound itself, but rather the compositional elements of that performance, i.e. the arrangement, I think that it's a useful perspective to consider that the transcribers are copying an arrangement. Even if this way of viewing things turns out not to be 100% accurate, I think it's accurate enough and provides a clearer picture into the underlying legal concepts. I do however admit that some may take issue with this simplification, and it's entirely possible that my answer is completely invalid if this simplification turns out to have no merit. 2. Extent of possible copyright infringement The company which commissioned the orchestra and the recording undoubtedly has copyright on the performance. However, they do not have copyright on the underlying original composition, as that copyright will have long expired in US law. The company can't claim copyright on material which originates in the underlying public domain composition, but can claim copyright for any original contributions made by the arrangement (17 USC 103(b)). As such, I would expect an infringement lawsuit launched by the company will be limited to the portions of the arrangement that differ from the original composition and that are then copied into the transcription. In order to properly determine what those portions are, we would need to compare the transcription, performance, and manuscript together. Since it's the company that is initiating a lawsuit, I would expect that the judge would force them to disclose the manuscript for the proceedings (and instruct the parties that the information is not to leave the courtroom, which is ironic since an NDA is how this whole mess started). This is an exercise that will likely get bogged down in excruciating note-by-note comparisons, but luckily those are factual questions, and I'm just going to discuss the higher-level legal concepts. You also mention there might be "mistakes" included. In theory, copyright protection only applies to creative choices made, I don't believe that mistakes would count. In practice though, this may be difficult to prove and I think the company would argue it was an artistic choice, thus rolling it into the overall changes which constitute the arrangement. However, they might alternatively argue the mistakes are a purposeful copyright trap which can have mixed results. 3. Copyrightability of the arrangement In my opinion, the obvious argument to start with is that the company's arrangement does not qualify for copyright protection. This is a bit of a spectrum. While a full-fledged arrangement is undoubtedly protected as a derivative work, here we are dealing with just portions of an arrangement. Based on the premise of the performance being an accurate representation of a public domain song, I would expect these portions to be minimal. In fact, in the ideal case of the performance being a perfect faithful rendition of the composition, there is no separate underlying arrangement and therefore no copyright to infringe. This would be similar to the case of a photo of public domain art, which gains no copyright due to lack of originality. Copyright requires a "modicum of creativity" as determined in Feist Publications, Inc., v. Rural Telephone Service Co.. Feist also shows the reason copyright traps don't work for defending an originality argument: while you can use traps to prove that copying occurred, they provide no indication as to the actual originality/creativity of the work. The transcribers can thus try to argue that the given portions of the arrangement do not meet this standard for copyright protection. As applied to music, one can consider that the basic building blocks of musical composition are not copyrightable, though large enough combinations of these building blocks do qualify. An examination of this can be found in Marcus Gray v. Katy Perry, where a specific 8-note sequence was found not to be eligible for copyright protection (though do note the case is currently being appealed). The court additionally stated that even if the sequence was copyrightable, such a small sequence would only be found to be infringing if the copying was virtually identical. Since the transcribers are presumably attempting an accurate transcription, this latter point is important to us as it shows that it would not take much copying for copyright infringement to occur. On the other hand, I would expect the differences in the arrangement and original composition might be scattered around and perhaps not be a cohesive artistic unit, which would benefit the transcribers' argument. For further information, LegalEagle has a 25-minute YouTube video discussing this case and the involved legal principles. As the arrangement is a derivative work, the transcribers might be able to advance a separate "triviality" argument. The Seventh Circuit Court of Appeals (also citing the Second Circuit cases) states in Schrock v. Learning Curve International, Inc. [T]he key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way. However, this emphasis the court makes on having the derivative be nontrivially distinguishable from the original doesn't arise from statute, but from a practical concern of determining whether the derivative or original was copied from given a hypothetical subsequent derivative. Assuming the company can prove the original hasn't been "leaked" and is unpublished, I would expect this argument to be discarded. Additionally, here is where copyright traps might actually help the company. Interesting aside: the German law on derivatives diverges here based on an oddly specific clause for public domain music (UrhG § 3): Translations and other adaptations of a work which are the adapter’s own intellectual creations are protected as independent works without prejudice to the copyright in the adapted work. The insubstantial adaptation of an unprotected musical work is not protected as an independent work. 4. The asserted truths doctrine This is a bit of a novel argument, since the Ninth Circuit Court of Appeals only just articulated an "asserted truths" doctrine on 2020-09-08 in Corbello v. Valli: Adopting an “asserted truths” doctrine, the panel held that an author who holds their work out as nonfiction cannot later claim, in litigation, that aspects of the work were actually made up and thus entitled to full copyright protection. Basically, an author had claimed that the work was a factual biography, but then in the lawsuit claimed it was fiction in order to gain additional copyright protection since facts are not entitled to copyright protection. The court denied copyright protection for such an action. If the company is asserting that the performance is a 100% faithful rendition of the public domain work, the transcribers might be able to adapt this argument. They might argue that they relied on the asserted truth that they were copying public domain material. The company might counter that since this is a performance, one would expect that there will necessarily be at least some small differences and so the doctrine does not apply. Here, the transcribers may be able to counter that based on the company's representation, they had expected that any such small differences would not be under copyright due to not meeting the "modicum of creativity" standard. I think this argument is a stretch though. 5. Making the transcription public domain & final points Assuming the arguments above worked for the transcribers, they don't really need to specifically designate the transcription public domain – it already is by its nature of not being copyrightable by those very same arguments. The one exception though would be that they hold copyright in the layout of their transcription so would have to designate it public domain for that purpose. If the arguments above do not work for the transcribers and the arrangement is found to have copyright protection, I can't think of any other viable arguments for the transcribers. They might argue fair use, but given their intent to disseminate the transcription, I would expect that argument to fail quickly based on both the nature/quantity of the copying and the damage caused to the company's revenue. On the minimal chance that fair use or some other argument works, the transcribers still could not put the transcription in the public domain. They could say that, but it would be of no real effect, since in this scenario it's the company that holds copyright over the arrangement represented by the transcription. In all, I believe that if the performance is a rigorously faithful rendition with only the odd mistake or flourish here and there, then the transcription is not copyright infringement. Otherwise, it is. Wow, that took me a while to get to this relatively simple conclusion. | It's highly unlikely that A would even recognise this as similar. It's really bog standard. A coloured patterned background (in a different colour and with a different pattern). Two buttons. A picture and a testimonial. All things that have been done thousands of times. In the end, it is _copy_right. What exactly is B supposed to have copied? | Such works may be considered as copyright infringements under US law. The US does not apply the "rule of the shorter term", and so the PD status of the parent work in some other country,. including the source country, is not relevant. There are, however, other ways for a work to have lost copyright protection under US law, and one of them might apply in a particular case. Also, whether a work is legally a derivative work of another is a fact-based legal question, and the answer is not always as obvious as one might think. The copyright holder of the parent work could file a copyright infringement suit, seeking damages and other relief in a US Federal court. Note that one of the rights that make up copyright is the right to make or authorize the making of derivative works. This ism spelled out in 17 USC 106 item (2) "to prepare derivative works based upon the copyrighted work;" I am not sure of the rules for customs seizure of allegedly infringing works. I thin k that only works already adjudged to be infringing are seized, pursuant to a court order, but I am not sure of that. II do not see how the customs service would determine the disputable issues mentioned above. For the matter of that, any such work could be authorized by permission from the copyright holder, and I don't see how customs would know if there had been such permission granted. Added citations: 17 USC 503 says: (a)(1) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable (A) of all copies or phonorecords claimed to have been made or used in violation of the exclusive right of the copyright owner; ... (b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, ... 17 USC 602 provides that: (a) (2) Importation or exportation of infringing items.—Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under sections 501 and 506. ... (b) Import Prohibition.—In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited. In a case where the copies or phonorecords were lawfully made, the United States Customs and Border Protection Service has no authority to prevent their importation. In either case, the Secretary of the Treasury is authorized to prescribe, by regulation, a procedure under which any person claiming an interest in the copyright in a particular work may, upon payment of a specified fee, be entitled to notification by the United States Customs and Border Protection Service of the importation of articles that appear to be copies or phonorecords of the work. It appears that copies of an infringing work may be seized. but only by court order. It appears that import of an allegedly infringing work may be prohibited, but not when copies were lawfully made. But such imports may be reported to the claimant, who can then take appropriate legal action. | It would be copyright infringement. The script that you are planning to copy from is protected by law, so requires the copyright-owner's permission to create a derivative version (your own interpretation). If instead you write a completely different story inspired by the original book, you might not get sued. The problem is that there is a reasonable chance that you would accidentally duplicate part of one of the myriad adaptations, then the jury would have to decide whether it was just a coincidence, or copying. |
Is it "fair use" to summarize a movie? Could I take about, say, 15 minutes of clips from a movie to use as a visual (and perhaps using some audio) along with my originally written and voiced movie summary? Would the resulting work be considered transformative enough to be original? EDIT Here's a YouTube channel that does something similar to what I described: https://www.youtube.com/channel/UCyXD1jAZBdZ4u0K-GLYC77Q. Does this change anyone's opinion? | That depends very much on the specific details. But such a thing is more likely to be held to be fair use if it includes commentary on or criticism of the movie as well as a mere summary of it. Also, 15 minutes of clips seems like a lot, although there is no clear rule on how much can be reused under a claim of fair use. But if the point of the comment and summery could be well made with a shorter set of clips that might improve the claim of fair use. In general, a fair use will use no more of the source than is reasonable needed for the purpose, and will not serve as a substitute for the original work. Being "transformative" is very often cited in case law as strongly favoring fair use. It has nothing to do with making a derivative work original. Any derivative work gets a separate copyright if it has enough original content to satisfy the low requirements of copyright protection, which most such works do. Even an abridgement which adds nothing will generally get a separate copyright. | There seems, to my ear, to be a degree of similarity between the first two works. The third does not sound, to me, very similar to either of the first two. That is not a legal question, and I am no expert. However, all of these seem to be simple themes of only a few notes, repeated, in one case with some variations. The history of music is replete with examples of short themes or figures duplicated without intentional copying. Generally, to win a copyright suit over a claimed infringement of a musical copyright one must show either proven direct copying, or identity of melody over a long enough passage that independent invention is not plausible. Normally access of the alleged infringer to the claimed source is also shown. How much identity is needed is a judgement call for the court involved, often based on expert testimony, but I rather doubt if the short themes linked in the question would be found to infringe one another. In any case, even if identity is proved, it is possible that both are copying some earlier source, perhaps one in the public domain, or one properly licensed. It is also possible that one of thee has obtained a license from another and so is perfectly legal. There is no way to know without the records of those involved. | You may have issues if you take their content wholesale. Even if they freely distribute them, they still retain copyright. As such, they absolutely can claim copyright. Whether they will or not is another question. Your best bet around this is Fair Use doctrine. You can take a part of their work (e.g: a single question) and do your video based on how you work out your answer, with your video mainly focusing on the 'working out' part (thus satisfying the 'educational purposes' part) | If you are utilizing the name of the characters just so users can rate them (by rate - I mean rank, review, critique) you should be fine. Copyrights are subject to "fair use" by the public. For purposes such as review, criticism, and comment - this is generally considered to be fair use. Is the site commercial or for-profit? That could impact the analysis, but only if you are making money flowing from the use of the actual copyrighted material(s), rather than advertising (like Adsense) or something similar (this should not suggest that those type sites cannot violate copyright, but it's part of the analysis). If it is something you are investing money into creating, you may want to get a formal legal opinion. But if the site if for fun, or hobby, you are likely fine if what's described is the only use. http://www.socialmediaexaminer.com/copyright-fair-use-and-how-it-works-for-online-images/ This link is to a great, easy to read and understand article on fair use, what it is and what it allows. Keep in mind each case is fact intensive, however, from what you are describing this seems fine. | Unfortunately, the "but everyone does that" (BEDT) argument doesn't hold water as evidenced by prosecutions of looters. Would uploading this video be a copyright infringement? It would be hard to answer this part of the question without knowing where and from whom the clips had come from. If the clips came from a company like ESPN or a YouTuber that doesn't give you permission to be able to use their clips then yes this might be a copyright infringement. If you use video/clips that are labeled as creative commons then nt it wouldn't be an infringement. YouTube has a feature for this. Would my actions be fair use? First, we'll need to understand what fair-use is. Fair use is the ability to use copyright material under certain circumstances without permission. To best determine if using copyright-protected material in your work you should weigh it against the four factors of fair use. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; The effect of the use upon the potential market for or value of the copyrighted work. More information about fair-use here Youtube outlines their fair use guidelines here | 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. | Although you aren't interested in the TOS, you should be. You are not allowed to make any copy of other people's stuff without permission. The TOS is how you get permission. First, the author uploads his material to You Tube, because he has an account and the TOS associated with the account specifies the license that he grants to You Tube and the world – same thing with Stack Exchange. The TOS says (roughly) "when you upload stuff, you give permission for others to access your stuff using the You Tube interface". Content-consumers likewise are allowed to stream content using their interface, but not generally download. (The license terms changes over time – previously there were more license types). Specifically, You are not allowed to: access, reproduce, download, distribute, transmit, broadcast, display, sell, license, alter, modify or otherwise use any part of the Service or any Content except: (a) as expressly authorized by the Service; or (b) with prior written permission from YouTube and, if applicable, the respective rights holders; and they don't expressly authorize ordinary download, you have to use their interface. You might also directly contact the author of the work in question and negotiate a deal where you can directly acquire a license from the rights-owner. But if you want to access the material via You Tube, you have to do it in a way that is permitted, and You Tube says that you're not permitted to download. Any "copying without permission" is infringement. | A translation is a devivative work - the copyright owner has the exclusive right to these So, yes, translation is prima facie copyright infringement. Strictly speaking, if you translate it, it's a derivative work because you exercised creativity in making the translation; what Google translate does is not a derivative work, it's a copy because there is no creativity. Either way, only the copyright owner can do (or authorise) this. Whether it's legal or not depends on if what you are doing falls within one of the exceptions to the applicable copyright law such as fair use or fair dealing. Attributing the original author does not, of itself, allow translation. Additionally, I'm not able to find the copyright documentation for the site link I provided above. What is "copyright documentation"? Copyright exists the moment a work is created and no further documentation is required. Essentially, I could translate the whole documentation by myself to avoid this problem. No, you can't - see above. If copy-pasting the google translate is illegal, then exactly how much must I edit, move around sentences, change words, and such until the text is no longer plagiarized? All of it. If you were, based on your own knowledge of the software, to write a manual without any copying o the existing manual, that would not be copyright infringement. Is this plagiarism or copyright infringement? It's copyright infringement - plagiarism is an academic misconduct issue not a legal one. where can I check the copyright for the above link? The site you linked has "Copyright © 2020 Acquia, Inc. All Rights Reserved" in the bottom left corner which identifies the copyright holder, the date and prohibits all copying ("all rights reserved"). This isn't necessary but it is helpful. If you really want to do this, contact Acquia, Inc and ask for permission. |
Is copyright law international? For example, if I buy a pirated copy of a North American book from a local market in Bangladesh, can the publisher sue me and the seller? I can attempt to buy original copies of the book; however, they are extremely expensive and the book will take about 30-60 days to reach me. | Each country has its own copyright law, but the majority of countries have signed the Berne Copyright Convention, and most of those that have not, have joined the TRIPS agreement, which includes most of the same provisions. See Wikipedia for a list of those countries that do not adhere to Berne. Bangladesh is not on the list. The Berne Copyright Convention specifies the basics of copyright protection, requires a minimum term of protection, requires that copyright be granted without any formalities such as a copyright notice or registration, and requires that authors from other signatory countries be given at least as much protection as authors from the current country. It leaves many details to local law, however, including what exceptions to copyright are allowed. However, the Berne Convention does not require that buying a work that infringes copyright be treated as infringement, and I do not know of any country where it is, although I do not know the details of copyright law in Bangladesh In the united-states the copyright owner has the right to make or authorize the making of copies and to distribute or authorize the distribution of such copies. But once an authorized copy has been sold, the owner of the copy may re-sell it, lend it, or give it away to anyone, and no permission from the copyright owner is required. In the US this is called the "First Sale Doctrine". The laws of many other countries, including the EU countries and the UK, are similar in this regard. That means that it is perfectly legal to take lawfully created and purchased copies into another country and resell them there. Moreover, if someone makes a copy without permission, or knowingly distributes such a copy, that person commits copyright infringement, and could in theory be sued, but the buyer does not. It should be noted that under US law the First Sale Doctrine does not apply to unauthorized (pirated) copies. It is copyright infringement to knowingly sell (but not to buy) unauthorized copies under US law, and it is an infringement to re-sell such copies if the seller knows that they are unauthorized, although at a private sale this is not likely to be enforced. The Copyright law of Bangladesh is somewhat different. Section 71 (in chapter 13) provides that infringement occurs: (a) when any person, without a license ... or in contravention of the conditions of a license ... (a)(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright; ... (b) When any person- (b)(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (b)(iv) imports into Bangladesh, any infringing copies of the work. The "exclusive rights" are given in section 14(1) of the same act (part of chapter 3) The relevant ones are: (a) to reproduce the work in any material form including the storing of it in any medium by electronic means; (b) to issue copies of the work to the public except copies already in circulation; At the end of section 14, it is noted that: For the purposes of this section, the copy which has been sold once shall be deemed to be a copy already in circulation. This seems to be the Bangladesh version of the First Sale Doctrine, and it does not, at least not explicitly, contain the same rule as US law does, that to see or rent an unauthorized copy is infringement, even if there was a previous sale. But such a rule may have been imposed by caselaw. So a copy of a book (or any other protected work) purchased in Bangladesh might or might not have been properly authorized, but the purchaser is not committing infringement in either case. Section 74 of the Bangladesh copyright act does provide that ⎯(1) The Registrar, [may] ... order that copies made out of Bangladesh of the work which if made in Bangladesh would infringe copyright shall not be imported. (2) ... the Registrar or any person authorized by him in this behalf may enter into any air-craft, ship, vehicle, dock or premises where any such copies ... may be found and may examine such copies. (3) All copies to which any order made under sub-section (1) applies shall be deemed to be goods of which the bringing into Bangladesh has been prohibited or restricted under section 16 of the Customs Act, 1969, (Act IV of 1969) and all the provisions of said Act shall have effect accordingly This appears to permit the seizure of improperly imported copies, but not prosecution of a purchaser of such copies. Whether it would be likely to be enforced in the case of copies sold in a street market I could not guess. Moreover, it is unlikely that a publisher will find it worth its while to sue a street market seller, even if that person sells a clearly pirated copy of a book, particularly in a foreign country (foreign to the publisher, that is). The publisher or copyright owner probably could sue, depending on the details of the law in the country where the sale occurs. But the suit would have to be brought in the courts of that country, and might well cost more to bring than any plausible damage award would yield. Still some copyright owners might sue if they learn of such a sale. But the buyer is not at risk unless the law in the country where the sale takes place is different from that of most countries in this matter. | Please note that I'm not a lawyer. If you need specific legal advice, please consult a qualified attorney. Every time someone buys an item from someone else, there's at least an implied contract of sale where the seller of the item agrees to give the buyer the item to be purchased in exchange for a sum of money or other object of value which the buyer agrees to pay as consideration. Generally, in an online purchase, a contract of sale is completed when payment is made and the product has shipped. If the seller fails to provide the item you intended to buy after you make your payment, that's a breach of this contract of sale as the seller has failed to execute their end of the contract. I seriously doubt a "no refunds" policy would excuse the vendor for breaching the contract of sale. If you cannot resolve the issue with the vendor, then your best bet is to initiate a dispute through your credit/debit card issuer. | There are three questions relevant to this issue: Who owned the copyright in the first place? Was the copyright transferred? If not, was a license given to the site to use the content? In general, under most countries' laws, the person who creates an original work owns the copyright. The person with the copyright has the right to copy and distribute the work, and the right to prevent others from doing so. In some cases, such as where a work is created as a "work for hire" by certain employees under certain circumstances, the initial copyright is held by a third party. You will need a lawyer familiar with your jurisdiction and your circumstances to determine if this is the case. Finally, even if you own the copyright, you can license others to use your content. This may be in an express written document, or it may be an implied license--implied, for instance, by the act of posting it on their blog. The existence and scope of such a license is, again, something that will have to be determined based on your country's specific laws and your specific situation. The bottom line is: if you submitted articles to that blog, you can't complain that they posted them. Depending on the license in effect, you might be able to get them taken down, or you might not. You need a lawyer, not the internet, to tell you what your rights are in this very specific case. | It should not surprise you that copyright protects the right to (among other things) make copies. There are limited exceptions that are considered "fair use", like if you reproduce a limited amount of text for educational, reporting, or review purposes. Giving your friend a copy of a large portion of the text just because they want it would almost certainly violate copyright. Whether the book is available or out-of-print has absolutely no bearing whatsoever on who holds the copyright or whether your actions violate it. This is very different from giving your friend the book itself. The book itself is covered under the "first sale doctrine", meaning that by buying a copy of the book, you buy the right to sell, transfer, or dispose of that particular copy, but it doesn't give you the right to make more copies. I will note that in practice, it is vanishingly unlikely that the copyright holder would ever learn of your isolated instance of limited infringement in the first place (especially since it's out of print), much less bring legal action against you for making a single copy that did not affect their bottom line. | Assuming USA law: https://www.law.cornell.edu/uscode/text/18/2315 If you accept or buy goods that are knowingly stolen you may be fined or imprisoned. If you buy goods and later find out they were stolen you can sue for a refund. However, I'd say the likelihood of getting your money back is incredibly low. | As long as you own the copyright to the works, you can even publish the source code itself under two different licenses, which can be radically different. For example, MySQL is licensed under both a commercial and an open-source license. Given that you can publish a single piece of work as multiple licenses, it is your choice which one you wish to grant to the book or the code, as long as you own the copyright. | It would be copyright infringement. The script that you are planning to copy from is protected by law, so requires the copyright-owner's permission to create a derivative version (your own interpretation). If instead you write a completely different story inspired by the original book, you might not get sued. The problem is that there is a reasonable chance that you would accidentally duplicate part of one of the myriad adaptations, then the jury would have to decide whether it was just a coincidence, or copying. | The GPL does not explicitly specify a time within which the source code must be provided, which probably means a "reasonable time" is allowed. What is "reasonable" would eventually be evaluated by a court, if the matter ever got that far. But please note that only the copyright holder (or the holder's authorized agent) can sue for infringement. The license does not give other people a right to sue for infringement, and I doubt that any license could grant such a right. One could inform the copyright holder who could sue, but the holder need not sue, and undertaking such a suit would involve expense, time, and effort. Whether the offer to provide the source constitutes a binding agreement is not clear, and may well vary in different jurisdictions. The question does not state any particular jurisdiction. |
In Los Angeles can I defend my own property against looters? Currently, there is looting being done in Los Angeles by many people who are pretending to protest against the killing of George Floyd (some others are actually protesting and a few people are helping to stop looters). If someone were to loot my property (business) would I be within my rights to deter them by shooting at them with a paintball gun and / or using a long-leashed German Shepard near the door? Also to potentially citizen arrest with zip-ties? (if feasible) | If you are arrested for assault, you have available to you the defense of the right to defend real or personal property: you "may use reasonable force to protect that property from imminent harm. Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm". The level of force proposed is clearly within the boundaries of the reasonable. | @Putvi has the better answer, but I just wanted to add a few things. First, while it is not an antique, it's very collectable in the WWII Memorabilia Market, from my understanding, and a working gun always sells better than a broken gun. So if you're uneasy with firearms, you could sell it and make some money. Alternatively, you can keep it and have it on display. It'll be a great conversation piece, though again, that's your call. Either way, you'll probably want to talk to an FFL holder (you need one to work in a gun shop, so go to one of those). It's their job to know the ins and outs of the law and should be able to answer any questions you might have. Finally, if the thought of parting with Grandfather's trophy for money and the thought of keeping it is too scary, you can always split the difference and donate the piece to a museum (a WWII or California History museum, or even the museum in your grandfather's town) where it can be enjoyed by everyone. As already discussed, the documents clearly show its the real deal and it's worth a pretty penny. It will probably be an amazing piece in a more locally dedicated museum and could be a great way to celebrate the sacrifices your grandfather made. | This web site has collected up a number of state anti-mask laws. It is useful to know that the purpose of the tactical balaclava is face protection. The anti-mask law of California prohibits mask for escaping identification in the commission of a public offense; Florida likewise limits it to criminal-like conduct and some sketchy "equal protection" situations (presumably anti-Klan legislation). Georgia generally prohibits masks but takes the tack of listing exceptions, including "traditional holiday costumes" and "for safety reasons". In Louisiana it is prohibited to wear a mask to conceal identity, but there are enumerated exceptions, including Halloween and Mardi Gras (no surprise), or for religious reasons; we can assume that if Lousiana SWAT teams wear tactical balaclavas, the legal basis is face-protection. It would appear that in Minnesota, SWAT team members cannot wear a mask until winter: A person whose identity is concealed by the person in a public place by means of a robe, mask, or other disguise, unless based on religious beliefs, or incidental to amusement, entertainment, protection from weather, or medical treatment, is guilty of a misdemeanor In New York, the anti-mask law seems to be subsumed under loitering, which includes Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities; which could be narrowly construed to outlaw wearing of balaclavas by SWAT teams (they are masked, they congregate and remain in public with others masked men, it is not in connection with entertainment. | You have a third option: Sue the district for violating state or local law. There are lots of recent news stories about people doing just this and winning. The US Constitution Can't Help You: The school district is not violating your constitutional rights by installing lights at the stadium. The only constitutional protection remotely connected to your situation is the "takings clause" of the 5th Amendment. It says, "nor shall private property be taken for public use, without just compensation." Unfortunately, the "takings clause" only applies if there is a "taking." A "taking" is generally understood to be exactly that -- you lose your property. The loss can be literal -- the government takes title to your house and turns it into a football field or freeway on-ramp -- or figurative -- the disturbance from the football field or on-ramp is so pervasive that your property becomes worthless. Since having the lights on will not destroy the value of your property, the takings clause does not apply to you. As one Justice said in a related case, the lesson here is simple: "the federal Constitution does not prohibit everything that is intensely undesirable." State or Local Law Might Help You: Even though you don't have a constitutional claim, depending on what state and city you live in, you may have a claim under state or local law. (These might be statutes, regulations, ordinances, or even your state constitution.) For example, in 2010 a group of home owners in Atherton, California who lived near the local high school sued when the school announced plans to install stadium lights. The suit claimed the lights violated local height limits, and that the night games would violate noise ordinances. The suit, plus a savvy pr campaign, got the school to agree to limits on night games. Atherton is not alone. All the way across the country, in Greenwich, Connecticut, neighbors upset about stadium lights sued and got an agreement about the use of lights. A search using high+school+lights+neighbors+sue turns up plenty of other examples. You will have to talk to a local attorney to find out what state or local laws you can use. | It is unlikely that the US, or any government, would condone any kind of crime. The reason for this is that the law must be seen to be impartial and applied fairly to all those subject to it. What happens if tomorrow, the government decides they don't like you? It is possible that this type of activity, or activity amounting to it, would be sanctioned in specific, authorised cases. But the government throwing a lynch mob at anyone is a bad idea for order and a peaceful society. | I'd take the city council's advice and realize that you could be charged with a crime. Their job is to know the local laws and put them into place, as well as know how those laws relate to state law. As for state law, the Revised Statutes of Missouri, RSMo Section 574.115 Making a terrorist threat says: 574.115. Making a terrorist threat, first degree — penalty. — 1. A person commits the offense of making a terrorist threat in the first degree if such person, with the purpose of frightening ten or more people or causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation, knowingly: (1) Communicates an express or implied threat to cause an incident or condition involving danger to life; or (2) Communicates a false report of an incident or condition involving danger to life; or (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. 2. The offense of making a terrorist threat in the first degree is a class D felony. 3. No offense is committed under this section by a person acting in good faith with the purpose to prevent harm. A fake gun turret on a porch in the public view that tracks people who walk by could be interpreted as making a terrorist threat because it (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. And, it's probably safe to assume your turret has the "the purpose of frightening ten or more people." The fact that the gun turret is on private property doesn't mean much; it is in view of the public and your intent is for it to be seen by the public and you want to invoke fear in the public members who walk by. And it's not going to be seen by the council as some sort of security; threats are not security. If you did put up such a turret, and the state didn't take action under 574.115, and there is no local law on the books that applies, the council can easy put one in place at their regular council meeting with a simple motion and vote. Since you already asked the council, they may already be considering such a law. And, depending on the county, the council could invoke a law addressing threats to the public that has more severe penalties that the state law, because Missouri is a home rule (Wikipedia) state. | If you wrote for example "I had thoughts about taking the axe from my garage and decapitating my neighbour", and your neighbour read that, he would reasonably be worried and contact the police. I would take that as a death threat, and the death threat is by itself illegal. There would be some range where I could claim that you were making a death threat and making excuses to avoid legal responsibility. You can have all the thoughs you like, you can write them into your private diary where nobody can read them, but as soon as you publish it, it becomes "speech" and some speech is illegal. | Stealing money is theft, see RCW Chapter 9a.56 in Washington, and analogous laws in other jurisdictions. What you describe is theft, as defined under RCW 9A.56.020, and that is a crime. Defenses are available only in case of an open taking made under a good faith claim to title to the property ("it's my money"), or an irrelevant defense related to pallet theft from a pallet recycler. There is no exception arising for goods "in the possession of a criminal organization". There is also no applicable attainder process for declaring an organization to be a "criminal organization" to which such an exception could be referred, in Washington or any other state that I am familiar with. At the federal level, 18 USC Ch. 96 does not have a provision for declaring some organization to be a "criminal organization", but it does prohibit using proceeds from "a pattern of racketeering activity" that a person or organization participated in, to support a business engaged in interstate or foreign commerce. There is an extensive but specific list of trigger crimes, which are all federal crimes. Supposing that a state wanted to make it legal to steal from criminals, there would have to be a suitable definition of "criminal". Compare the various sex offender laws, where under dell-defined circumstances, a person is legally declared to be a sex offender required to register. If the property is in fact the proceeds of a criminal activity (not merely "in the possession of a criminal") or is used to support criminal activities, it might be seized under civil forfeiture statutes. However, those statutes only allow the government to seize the property – vigilante civil forfeiture is still theft, a crime for which you can be prosecuted. The state might seize such assets and, when challenged in court, may have to prove that the assets a seizable (this is highly jurisdiction-dependent). The prospects that a prosecutor will turn a blind eye to a theft on the grounds that the victims are criminals is pretty small. More likely, everything gets seized and everybody gets prosecuted. |
Are hot drinks legally classed as a picnic in the UK? Recently, two women going for a walk in the UK were told by the police that the hot drinks they brought with them were classed as a picnic (note that going for a picnic is illegal in the current lockdown). Is this true? (Was wondering about asking this on Skeptics.SE, but I would like an answer per law, so asking here.) (For completeness: the fines have been withdrawn and the police apologised but my question still stands.) | There is, as far as I can see, no legal definition of picnic in England and Wales. In the absence of such, the convention applied by the UK courts is to use the normal meaning of the word; usually by reference to the Oxford English Dictionary (which is behind a paywall so I've used its free online version here)... An occasion when a packed meal is eaten outdoors, especially during an outing to the countryside. (My emphasis) | "Does the needlessly obnoxious and antisocial manner in which they're behaving and clearly drugged intoxication create any kind of charge like disturbing the peace or something like that?" Probably. But you don't want to take the law into your own hands. Call the police and have them make the judgement. There is a lot of discretion involved; some police officers may simply tell the preacher to move on; others may detain him on public intoxication or being a nuisance, according to local and UK laws, as well as check for permits and licenses for street/public performances. Many people gathered around the busker to express support and appreciation for him as well as disgust toward the preachers unnecessary disrespect. That's well within rights, as long as the behavior doesn't degrade into the same type(s) that the preacher is exhibiting and possibly be a nuisance or worse (i.s., assault) as per the law. | 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 | In New South Wales it is entirely legal to film police (or anyone else). However, as discussed (What is considered "public" in the context of taking videos or audio recordings?) audio recording is more restricted: you must either have the permission of all the participants in a conversation or be a party to the conversation. I do not imagine the law is any different in Victoria. | When is a drink classed as alcohol in the UK? In england-and-wales alcohol, which requires a license to sell etc, is defined by s.191 of the Licensing Act 2003: 191 Meaning of “alcohol" (1) In this Act, “alcohol” means spirits, wine, beer, cider or any other fermented, distilled or spirituous liquor (in any state), but does not include— (a) alcohol which is of a strength not exceeding 0.5% at the time of the sale or supply in question, (b) perfume, (c) flavouring essences recognised by the Commissioners of Customs and Excise as not being intended for consumption as or with dutiable alcoholic liquor, (d) the aromatic flavouring essence commonly known as Angostura bitters, (e) alcohol which is, or is included in, a medicinal product or a veterinary medicinal product, (f) denatured alcohol, (g) methyl alcohol, (h) naphtha, or (i) alcohol contained in liqueur confectionery. ... In scotland, s.2 of the Licensing (Scotland) Act 2005 mirrors the 2003 Act: (1) In this Act, “alcohol”— (a) means spirits, wine, beer, cider or any other fermented, distilled or spirituous liquor, but (b) does not include— (i) alcohol which is of a strength of 0.5% or less at the time of its sale ... In northern-ireland, Art.2 of the Licensing (Northern Ireland) Order 1996* states: “intoxicating liquor” means spirits, wine, beer, cider and any other fermented, distilled or spirituous liquor, but does not include— (e) any liquor which is of a strength not exceeding 0.5 per cent at the time of the sale or other conduct in question ... Therefore, alcohol free (0.05%) and de-alcoholised (0.5%) drinks are not considered alcohol for licencing, sale etc and so are not restricted in law across the United Kingdom. (*The Order is secondary legislation made under the Licensing Act (Northern Ireland) 2016) | While it is not illegal to own, it may still be illegal to ride on public property. Private property owners can ban them even if they were legal and need to be consulted individually. I have been unable to find out if new laws spoken about have been passed in New York since the beginning of the year. Based on what I have found (as of the end of 2015), it would be best to consider that they are illegal to use on public areas just as any other unlicensed motor vehicle. As of November 2015 Some property owners have banned them for liability reasons, as it is easy to see how a rider could trip on a bump or unexpected curb. And although they have taken the Upper East Side and other parts of New York City by storm, the state classifies them as motorized vehicles that cannot be registered, so riding them in public can incur a steep fine. Earlier this week, the NYPD's 26th Precinct tweeted: "Be advised that the electric hoverboard is illegal as per NYC Admin. Code 19-176.2*." and December 2015 some lawmakers were talking about making them legal. Truth or Fiction Collected on: 12/28/2015 gives the following summary A spokesperson for the New York City Department of Transportation has explained that the law’s definition of “electronic personal assist mobility device” was broad enough to include hoverboards, and that they would be regulated as such. In NYC, because the population is above 1 million people, electronic personal assist device riders must be licensed, and the devices must be registered with the New York State Department of Motor Vehicles. Hoverboards are illegal, the spokesperson said, because the NYSDMV would refuse to register them for legal use: NYSDMV’s position is that these vehicles are likely “Electric personal assist mobility devices.” NYS Vehicle and Traffic Law 114-d defines “Electric personal assist mobility device” as “Every self-balancing, two non-tandem wheeled device designed to transport one person by means of an electric propulsion system with an average output of not more than seven hundred fifty watts (one horsepower), and the maximum speed of which on a paved level surface, when propelled solely by its electric propulsion system while ridden by an operator weighing one hundred seventy pounds, is less than twelve and one-half miles per hour.” NYS VTL 125 generally defines “motor vehicles” as “Every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power.” However, VTL 125 specifically excludes some classes of vehicles from the definition of “motor vehicles.” Under VTL 126(a-1), “electrical personal assistive mobility devices operated outside a city with a population of one million or more” are not considered motor vehicles. However, in NYC, because the city population is greater than one million, NYSDMV considers “hoverboards” that meet the definition of “electric personal assist mobility devices” the same as motor vehicles. Based on that interpretation, it would be illegal to operate a hoverboard in NYC without a valid license to drive a motor vehicle. Beyond that, the motor vehicle would need to be registered by NYSDMV (which NYSDMV will not do), inspected, insured, and otherwise treated as, and subject to regulation like, any other motor vehicle. A person who operates a hoverboard in NYC (or any other NYS city with a population greater than a million) would be subject to arrest and prosecution for myriad NYS VTL violations, including, but not limited to, driving a motor vehicle without valid registration or insurance. | You should file a complaint with the police. If you complain to the police then they might do something. If you don't complain then they certainly won't. Are food trucks licensed? You might try complaining to the license authority. However go to the police first because the licence authority are unlikely to do anything without a police complaint. Even being just another statistic helps increase the pressure for action on the wider issue of racism in society. If all else fails you can just post the incident on YouTube and see what happens. Its an unreliable method of enforcement and can backfire, but it has been known for international embarrassment to kick reluctant authorities into action. | It's called police and prosecutorial discretion to discern when to arrest and prosecute; and that situation in particular is also the result of a decision of the jury of the court of public opinion. Permits are required to sell on the street in Oakland. But not everyone who sells has a permit, and not everyone who is confronted about not having a permit is arrested and prosecuted. There are simply too many potential cases to prosecute. And, the police officer has the discretion to ticket or not. When you get pulled over while driving or riding a bike, you don't always get a ticket, since the officer has the option of discretion. When the officer responded and found an eight year-old selling water, he obviously was aware of the fact that it was a violation. But he was also aware of the court of public opinion. What is it going to look like if he arrests an eight year old and their parent? Allison Ettel was right, in a purely legal sense, to make the report. And technically, the child (and adult) needed a permit. And could have been ticketed and prosecuted. But it was Ettel was tried and convicted in the court of public opinion, and she lost her case. Happens a lot. |
What motivated the Indian supreme court to legalize homosexuality? According to the Pew Research Center article Key findings about religion in India, 97% of the Indian population is religious. Now, in all of the popular religions like Hinduism, Christianity and Islam, homosexuality is seen as a sin/unnatural, yet in 2018 homosexuality was legalized in the whole of the country. I simply can not understand how this happened, because in my experience, people who are religious hold very tight to their beliefs, so how was such a liberal ruling instilled unilaterally on the whole country? Some commenters found it controversial that I said Islam, Christianity and Hinduism prohibit homosexuality. Here are the relevant Stack Exchange posts: Christianity on homosexuality Hinduism on homosexuality Islam on homosexuality Some people try to write this matter away by arguing that India is secular according to the constitution, for them I bring up the following facts: India has laws restricting funding from abroad for certain religions, including Christianity. See here for instance. India has laws restricting dietary traditions on religious lines. Eg: Beef ban India has blasphemy laws, 'hurt sentiments' laws. See section in Wikipedia specifically under laws restricting freedom of expression India has laws making it harder for inter-faith couples to marry/cohabit. See love Jihad laws Indian governments sometimes build temples, fund temples, and manage temples [places of religious worship, not institutions like schools/hospitals]. See funding of Ram Mandir temple, many other examples exist. On paper it is said to be secular, where the law is independent of religion, but the facts suggest to me otherwise. | Because the 1860 law that criminalised “unnatural” sex is unconstitutional In essence, Navtej Singh Johar v. Union of India decided that criminalising sex between consenting adults violated the Constitutional right to equality. You have a Law in the Constitution that says people have to be treated equally. You have another law that says people in same-sex relationships are to be treated differently. The law in the Constitution wins. According to the BBC: Thursday's decision was delivered by a five-judge bench headed by India's outgoing chief justice Dipak Misra and was unanimous. Reading out the judgement, he said: "Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional." Another judge, Indu Malhotra, said she believed "history owes an apology" to LGBT people for ostracising them. Justice DY Chandrachud said the state had no right to control the private lives of LGBT community members and that the denial of the right to sexual orientation was the same as denying the right to privacy. The courts in India, like they are in most common law/civil law jurisdictions are interested it questions of law. Questions of sin and morality they are happy to leave to religion. | Regarding the question of whether republicanism or opposition to monarchy is a protected belief under the Equality Act 2010, there is still uncertainty about the scope of the law, but it is quite likely it would be protected. A tribunal in 2019 found that belief in Scottish independence was a protected belief, assuming it's a deeply held belief about political sovereignty, which makes it somewhat similar to republicanism. The law doesn't cover political affiliation/party membership and it doesn't necessarily cover all political beliefs, but the judge in that case found that the law protected a belief about "weighty and substantial aspects of human life" and agreed that "how a country should be governed is sufficiently serious to amount to a protected philosophical belief". So a serious belief in republicanism certainly could be protected; the issue would be whether it was sufficiently serious and important and deeply held, not just an opinion which is subject to change. There has been speculation on whether support or opposition to Brexit would likewise be protected, but this doesn't seem to have been tested in court yet. For the armed forces it's likewise a little unclear. Exemptions to the Equality Act apply to situations where they affect the operational capacity or combat readiness of the armed forces. It's hard to see this as directly relevant. However as the answer you cite about conscientious objectors says, their treatment is a result of customs and practices in the army, not primary legislation. Further research may identify how the army has treated individual republicans in particular circumstances. It's not grounds for being refused permission to meet the Queen or other royalty. Here's a photo of Australian republican politician Malcolm Turnbull (who campaigned for the Queen to cease being Australia's head of state) shaking hands with the Queen. She has also met Martin McGuinness who has long campaigned for Northern Ireland to escape the Queen's reign. British writer and gay rights activist Simon Fanshawe didn't let republicanism stop him accepting an OBE. Jeremy Corbyn, former leader of the Opposition met royalty on several occasions, despite earlier republican activism (while later he stated he had no plans to abolish the monarchy but did not deny his republicanism). There are many more examples, e.g. Russell Brand (who Wikipedia says is a republican). Although advocating a republic is theoretically treasonous, peaceful advocacy is allowed by the Human Rights Act: see R. (Rusbridger) v. Attorney General [2003] UKHL 38; [2004] AC 357; [2003] 3 All ER 784. (Source: Wikipedia page on Republic (political organisation)) | Let's look at the Ur-example of a free-speech law, and the most wide-ranging, the First Amendment to the Constitution of the United States of America. It says (my emphasis): 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. This limitation applies only to the government. Indeed, it has been argued that this limitation only applies to the legislative branch of government and not to the executive (except when exercising legislatively delegated power) or judicial branches. Certainly, the courts have held that it is within their power to issue "gag" restraining orders. Notwithstanding, it imposes no restrictions on how non-government actors can limit your free speech. The owner of a shopping centre can require you not to evangelise, the owner of a stadium can require you not to use offensive language and the owner of a social media platform can restrict your speech in any way they wish. You have a right to talk - they have a right not to give you a platform. | "Discrimination" is in some way treating people differently from other people. Much discrimination is a sound idea. Not letting someone fly a plane who does not have pilot training is discrimination, but not a bad kind. So is not allowing someone to do surgery who has not trained as a doctor. Unlawful discrimination is discrimination that a particular law in a particular country declares to be forbidden. Different countries have different laws for what kinds of discrimination is unlawful under what circumstances. Discrimination on a basis not forbidden by law is legal, even if immoral. For example, a restaurant could, in most if not all countries, ban left-handed people from being served there. This might be immoral, but would not be illegal, because no law has made it illegal. Commonly, discrimination on the basis of religion, ethnicity, national origin, sex, or political opinion is unlawful. In some jurisdictions discrimination on the basis of disability is unlawful. Other bases may be unlawful in some places. There may be exceptions. Employment discrimination may not have the same standards as housing discrimination, and admission to public places or ability to run for public office may be different yet. All this will vary based on the particular laws of particular places. Note that some of these protected classes are things about which people have no choice, such as sex and national origin, others are matters of choice such as religion and political opinion. Laws may create a protected class on any basis. Note also that many things about which people have little or no choice, such as height, handedness, or intelligence, are not protected categories in most places. To the best of my understanding being vaccinated or not is not a protected class in most if not all of Europe, so legal distinctions may be made based on vaccination status. In such jurisdictions, discrimination in favor of those who are vaccinated is legal, although some may think it wrong. A few US states have made it unlawful to restrict various public or private services or access to places on the basis of vaccination status. I am not aware of any country in Europe that has such a law. | The Muslim Personal Law (Shariat) Application Act of 1937 apparently sets no lower limit on marriage for Muslims. The Prohibition of Child Marriage Act 2006 then defined a child as a female under 18 and a male under 21, and a child marriage is one where at least one party is a child. The law then says that "Every child marriage is voidable at the option of the contracting party who was child at the time of solemnization of marriage". The punishment (not at the discretion of the child) for a male offender is rigorous "imprisonment which may extend to two years" or a fine of 100,000 rupees (or both). While the political question of modifying the law to allow Sharia and Nikah to prevail for Muslims, the current law does not allow this. The crime is a cognizable offense (section 15), meaning that no court order is required for police to arrest without warrant, and bail is not available. | One can find contradictory claims out there. Here is an English version of the marriage law. There is a surprising amount of legal rigamarole (in Norway, as well) pertaining to clearing "impediments". Assuming that the parties have done their part, then we move to Chapter 4. Article 16: Marriage may take place before a minister of the church, a representative of a registered religious organization empowered to perform such ceremonies, cf. Article 17, or before a civil official so empowered So turning to Article 17: Religious solemnization of marriage shall be performed by the ministers of the National Church, and priests or other representatives of registered religious organizations in Iceland who have been empowered to perform such ceremonies by the Ministry of Justice and Ecclesiastical Affairs and that is now part of the Ministry of the Interior. I can't find any indication that ULC has been approved. There are 49 religions officially listed by Statistics Iceland, including Siðmennt, a secular humanist organization which gained official status on May 3rd, 2013 when the organization was officially registered as a secular life stance organization under a law passed in the Icelandic Parliament on January 30th of that year. A formal ceremony was held by the Interior Minister Ögmundur Jónasson who had strongly supported our cause, to mark this historical event. As a result, Siðmennt gained the same legal and funding status as religious life stance organizations in Iceland. Weddings conducted by Siðmennt celebrants since then are legal and couples no longer have to go to government offices for that purpose. In light of the fact that Siðmennt is officially listed and ULC is not listed, I would conclude that you did not accidentally marry anyone, even if they had dealt with the impediments. | Yes, certainly. A prominent example was Lawrence v. Texas. The defendants were charged in state court with "deviate sexual intercourse". They moved to dismiss on the grounds that the statute was unconstitutional. Their motion was denied and they were convicted and fined; the denial was upheld by the state's court of appeals. They then appealed to the US Supreme Court, which eventually ruled that the statute was indeed unconstitutional. A defendant likely wouldn't have standing to sue the state for enforcing the law in general, only for enforcing it on the defendant himself. | Caveat about the "Grainger test" as applied to veganism Grainger plc v Nicholson is a 2010 employment discrimination case. It established a five-point test for whether a philosophical belief triggers the protection of the Equality Act 2010. See the judgment here, §24. A 2020 preliminary hearing in Casamitjana v The League Against Cruel Sports found that the claimant (= plaintiff, for US readers) held a belief in ethical veganism that did meet the five-point test. I would note that Casamitjana’s beliefs are much stronger than "simple" veganism. The judgment at §17-§22 enumerates a list of Casamitjana’s behaviour, much of which goes well beyond what the average vegan undertakes, such as avoiding the use of bank notes (manufactured from animal products) or public transportation (buses kill insects). I would assume that "simple" vegan beliefs could still meet the "philosophical belief" test, but I can see obvious differences with the Casamitjana case and would not advise anyone to rely solely on it. The restaurant case I refer to this excellent answer regarding a different hypothetical. The key question is whether the restaurant’s choice of menu is "a proportionate means of achieving a legitimate aim". In that case, the restaurant might argue that they chose what dishes to offer based on the cook’s ability, on a commercial strategy of selling only high-end dishes, or other similar considerations. (Note that I have not practiced law in E&W, and any real-world respondent would do well to consult a qualified sollicitor before relying on that argument.) As a non-legal answer, I would also argue that such an application of the Equality Act 2010 would be extremely burdening. For instance, ethical vegans could sue any restaurant offering any non-vegan options at all (regardless of whether there are vegan options on the menu, they would not want to patronize such a restaurant), or transportation company using leather seats in their vehicles; Orthodox Jews might sue any business open on Saturdays; and so on. However, I do not know how that objection could be worked into a legal argument. |
Is it perjury to break a promise made under oath? Is it possible for a statement to retroactively become perjurious based on future actions? Suppose: I'm sworn in under oath (testifying in court, before congress, etc.) I make a specific promise, e.g.: "I will go there at the end of the month" "I will direct my company to stop this practice immediately" "I will pay $1,000 within two weeks" When the time comes, I do not do it. Is that perjury? How about with one or both of these additional factors (assume sufficient evidence): I am fully capable of fulfilling my pledge but choose not to. I did not intend to fulfill my pledge at the time I made it. | maryland I think not In Maryland (a typical state on such issues) the relevant law is Section 9-101 - Perjury, which reads in pertinent part: a) Prohibited.- A person may not willfully and falsely make an oath or affirmation as to a material fact: (1) if the false swearing is perjury at common law; (2) in an affidavit required by any state, federal, or local law; (3) in an affidavit made to induce a court or officer to pass an account or claim; (4) in an affidavit required by any state, federal, or local government or governmental official with legal authority to require the issuance of an affidavit; or (5) in an affidavit or affirmation made under the Maryland Rules. A statement of intended future conduct is probably not a "fact" as required by this section. Classic perjury, that is making a false statement during testimony in an actual court session is covered by subsection (a)(1), which makes it relevant what was considered perjury at common law. In Volume 2 of A Treatise on the Criminal Law of the United States By Francis Wharton (Kay and brother, 1874) section 2226 says: At Common law perjury cannot be committed in an official oath, as far as such oath touches future conduct. On page 321 of The Law and Higher Education: a Casebook by John Seiler Brubacher (Fairleigh Dickinson University Press, 1971) appears the phrase: ... a promise of future conduct, the breach of which would not support a conviction for perjury This was in reference to the 1931 US law mandating a loyalty oath, and why such a law violates due process. Also relevant is the article "When Is a False Statement Perjury?" by the MoloLamken law firm. This discusses the federal perjury lws: 18 U.S.C. §1621 and 18 U.S.C. §1623. There is no mention of false sttements about future conduct. | The fact that it is possible to engage in fraud, doesn't mean that it is impossible to prove something. Usually, in a civil action, testimony that a business record says something and that it was not falsified is sufficient to meet a preponderance of the evidence standard (i.e. to establish to the satisfaction of a judge or jury that it is more likely that something is true than it is that it isn't true). It is easy to forge checks too (and hard to prove that a signature is fake), but that doesn't mean that you can't prove payment by check or that negotiable instruments are useless. | It is like an affidavit of sort, sworn out without the jurat and not before a notary. The swearing out of a complaint or rebutting evidence in all Federal civil matters (some states allow for the same) must contain an affidavit or an "unsworn declaration" that swears out the facts to be true and accurate, even though not notarized, and is based on fact and not supposition. It is subject to the same penalties of perjury if one lies as if you swear on a bible and testify in court or on a "sworn" affidavit. Affidavits need not be sworn before God, or on a bible. You have a right to just "affirm" that you will tell the truth, the whole truth, and nothing but the truth....and not "so help me God". Many courts don't use a bible at all anymore. 28 U.S.C. 1746 relates to these "Unsworn Declarations Under Penalty Of Perjury" It is not b/c you don't believe in God that you'd use this...you always have the option of swearing out even a declared affidavit or testifying without swearing on a bible if you're an atheist. They just leave out the "before God" part. Affidavits are the norm, however, in Federal Courts that have an expedited docket this is typically used when it could take a while to get a notary and the evidence is due. (In some states lawyers are automatically notaries but in others they aren't). The ability to swear out a complaint or contest a deposition without having to wait on a notary can be the difference between making your deadline or not. It's commonly used when records custodians are called to certify the authenticity of documents produced pursuant to subpoena or other formal request. Under F.R.Civ.P 56 declarations usually are not within the type of evidentiary categories that can be used at the summary judgment phase. If it's a small misstatement you would probably be faced with a fine. If it's a total lie, outright, you'd be looking at jail time (say a records custodian removed evidence and swore out it was the complete business record in a fraud case). 18 U.S. Code § 1621 discusses perjury generally (in federal actions). | Would a U.S court honor his request, based on his prior commitment? You are not specifying the purpose of the court hearing, or whether Adam is pro se litigant (which sounds unlikely if this plaintiff is a movie star). If plaintiff Adam is represented by an attorney, Adam's presence is unnecessary in most or all court hearings. In fact, typically neither parties nor their lawyers have to show up in court, whence their absence does not constitute contempt of court. Absence merely implies that they miss the opportunity to [orally] argue their position before the court, and thus would depend on whether the judge bothers to actually read their brief. If you mean a hearing in which Adam needs to be present, his request to reschedule the hearing is most likely to be granted. His contract is strong evidence that his request is not a vexatious attempt to delay proceedings. Since the hearing would be in month 4, the particularity that his contract goes up to month 4 implies that rescheduling would not significantly delay proceedings. Regarding your comment, rescheduling can (and does) happen multiple times even in criminal cases. This post includes an excerpt of the Register of Actions of criminal case 16-870-FH in Michigan state court (Washtenaw county), highlighting several instances of rescheduling as requested by the defense counsel and despite prosecutor's objection. I believe the case got rescheduled a few more times beyond what the snapshots reflect. | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. | A confession is (usually) taken after the court finishes its pre-trialing stage. There is a weightage and importance of such confession determined before the calculation of the gravity score of such crime. If the attorney somehow (fakely) proves Fred as the killer, Mark is declared innocent, and later on its discovered that Fred is innocent; the court can take some action against Fred. It would be first checked whether was Fred in a logical state of mind or not. If being manipulated by Mark, it would not be their fault of Fred. The court will also most likely see the age of the confessor to determine the importance of this. Here is a source from the National Registry of Exonerations which states the age of crime, and the percentage of groups with false crime declarations: One reason is that minors can be easily psychologically manipulated, and so by chance Fred if under 18 would not be considered to give any worth of confession unless proven to go against him. In some cases, the individual who made the false confession may be charged with perjury or obstruction of justice, particularly if their false confession led to an innocent person being convicted or if their false testimony impeded an ongoing investigation when the individual is not a minor. This is covered by perjury, a crime of expressing fake statements. In United States Code, Chapter 79 of Section 1632, it states: (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States. The following law only applies to a sensible adult, who has intentionally, without a psychological circumstance, made a false statement to defend someone. It is hard later, for the prosecutor to prove the claimant innocent if the confession has solid ground and worth. Note that though false confession can come under perjury crime, an exemption exists for minors or those psychologically unwell or influenced. It reminds us of Miranda v Arizona, where Miranda, an inmate in prison cased over by Phoenix Police (Credits:@TannerSwett) who would torture an innocent inmate to confess a crime. In collective terms, it was called Miranda Warnings, where the inmate was warned, using torture to confess fakely. It would be clear from torture. In the 1936 case Brown v. Mississippi, which was the first time the Supreme Court excluded a confession from a state court prosecution, this was the issue. For days, three suspects had been tortured. The deputy in charge testified when asked how hard one of the defendants had been whipped: Not too much for a Black person; not nearly as much as I would have done if I had been in charge. An image of courtesy, The Crisis Magazine 1935: The Supreme Court passed American reforms where Miranda was passed, and torturing was banned with evidence for both interrogation and confession. At the time Miranda was written, more "modern" methods of questioning were being used: rather than beating, isolation, deception, and exhaustion. It seems unlikely that an innocent suspect would confess to a serious crime if they were not subjected to torture or other forms of violence or death threats. Confessions are extremely potent forms of proof of guilt for precisely this reason. To sum up, we conclude: If Fred was a stable adult, he is punished under the perjury crime If Fred is a minor or not stable psychologically, he is dismissed with no legal action taken against him | No (in almost all U.S. jurisdictions). Truth or falsity is evaluated when a statement is originally made and doesn't have to remain true forever. Also, generally the law treats an ad like that as an invitation for you to make any offer to them, not a binding offer to form a contract that is held open indefinitely. So you can't force them into a contract simply by accepting their offer. The default rule is that an ad is an invitation to make an offer rather than an offer that can be accepted. And, even if it really is an offer, when it does not state any termination date, the default rule is that it can be withdrawn at any time. | could they make a realistic claim that I had voluntarily terminated my contract before the year was over? The employer's act would forfeit its entitlement to reimbursement of bonus. The clause clearly indicates that the triggering event is termination, not the anticipatory notification thereof. Furthermore, the employer's act would be a breach of the [contract law] covenant of good faith and fair dealing. That would be in stark contrast with your compliance with, and/or kindness in, giving a two-week notice. The employer's termination of your employment seems improper in equity insofar as it was aware of your notice and thus took advantage thereof. |
Is a distilled spirit mixed with a scheduled substance excluded from the definition of a controlled substance? The Controlled Substances Act provides the following definition: (6) The term "controlled substance" means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter. The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986. In particular this definition excludes "distilled spirits" for which subtitle E provides the following definition: (8) The terms “distilled spirits”, “alcoholic spirits”, and “spirits” mean that substance known as ethyl alcohol, ethanol, or spirits of wine in any form (including all dilutions and mixtures thereof from whatever source or by whatever process produced). The definition of "distilled spirits" is expansive and includes all mixtures from any source or process. Additionally, LSD is listed in schedule I of the Controlled Substances Act. Then, Is a mixture of LSD and vodka a "distilled spirit" as defined in subtitle E of the Internal Revenue Code of 1986? If so, as a distilled spirit, is a mixture of LSD and vodka exempt from the meaning of a "controlled substance" as defined in the Controlled Substances Act? | For IRS purposes, "distilled spirit" mean that substance known as ethyl alcohol, ethanol, or spirits of wine in any form (including all dilutions and mixtures thereof from whatever source or by whatever process produced) So it is a distilled spirit, with or without LSD, for those tax purposes. LSD is a controlled substance, see 21 USC 812 (c) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation...(9) Lysergic acid diethylamide. Presence of ethanol does not exempt LSD from being on the list. Nor does presence of blotter paper, see Chapman v. US, 500 U.S. 453 (weight of the carrier medium is included in computing the sentence for trafficking). | You are referring to 32 CFR 47.4. The only reasonable interpretation of that list is that one must meet all of the 5 requirements. The alternative interpretation would make any group that "[has not] already received benefits from the Federal Government for the service in question" eligible to apply. Since this is a regulation, the interpretation of the agency that wrote the regulations is given great deference. An agency's interpretation of the regulations it writes itself is controlling unless "plainly erroneous or inconsistent with the regulation". (Auer v. Robbins 1997) Regarding whether there is ambiguity at all, read King v. Burwell for several restatements of the principle that one must read words in context before deciding they are ambiguous: A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law. They refer to the "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme". | In the united-kingdom it is a breach of the 2021 UK Anti-Doping Rules for an athlete to have a "Prohibited Substance or its Metabolites or Markers" in their sample. No mention is made, as far as I can see, that the intent to use a placebo as described by the OP would fall foul of these Rules. The only relevant mention of intent seems to be when the substances etc are present: It is each Athlete’s personal duty to ensure that no Prohibited Substance enters their body. An Athlete is responsible for any Prohibited Substance or any of its Metabolites or Markers found to be present in their Sample. Accordingly, it is not necessary to demonstrate intent, Fault, negligence or knowing Use on the Athlete’s part in order to establish an Article 2.1 Anti-Doping Rule Violation; nor is the Athlete's lack of intent, Fault, negligence or knowledge a valid defence to an assertion that an Article 2.1 Anti-Doping Rule Violation has been committed. | 39 USC 3009(b) says that Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. and (a) prohibits "the mailing of unordered merchandise". (d) then says For the purposes of this section, “unordered merchandise” means merchandise mailed without the prior expressed request or consent of the recipient. If you previously expressly request a jar of herring and they deliver a jar of herring, you have to pay for it. If instead they send you a jar of honey, then since you did not expressly order a jar of honey, they have violated the law. It doesn't matter whether they deep-down intended to send a jar of herring and accidentally sent honey, or they deep-down deceptively, deliberately and maliciously sent you honey – you still didn't order honey. So it isn't necessary for the law to say anything about error, since the effect of the law is clear enough without saying "whether deliberately or by error". TOS wording cannot override federal law. | Short Answer if you use medical marijuana prescribed by a doctor. Are you automatically an unlawful user of a controlled substance and cannot possess, use, buy, sell, gift, or transfer firearms? Basically yes. If you use medical marijuana prescribed by a doctor on a regular basis you are a prohibited person pursuant to 18 U.S.C. 922(g)(3), and you are therefore subject to severe federal penalties for possessing, using, buying, selling, giving and transferring firearms (although case law has held that if, for example, you inherit a firearm, you can promptly negotiate its sale to a third party to divest yourself of ownership of it through a third party broker if you do not use the firearm or possess it; the statute is not intended to operate as a property forfeiture law). Long Answer Not many cases address this question. One of the leading cases is U.S. v. Bennett (10th Cir. 2003). It held that is someone is a regular user of illegal drugs at the time of the offense then that person is a prohibited person, even if he was not under the influence at the moment of offense. In an analysis that really needs to be quoted at length (some case law citations omitted) to capture exactly what was held: The sentencing guidelines define a “prohibited person” in relevant part as a person “who is an unlawful user of or addicted to any controlled substance” under 18 U.S.C. § 922(g)(3). See U.S.S.G. § 2K2.1, cmt. n. 6. The statute does not define the phrases “unlawful user of ... any controlled substance” or “addicted to any controlled substance.” It does, however, define “addict” as an “individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.” 21 U.S.C. § 802(1). Mr. Bennett believes the district court erred in not defining the language “unlawful user of ... any controlled substance” the same as “addicted to any controlled substance.” He argues he is not an “addict,” as defined under 21 U.S.C. § 802(1), because he used methamphetamine and marijuana rather than narcotic drugs. Mr. Bennett's argument presupposes the definition of the word “addict” under 21 U.S.C. § 802(1) is synonymous with the phrase “addicted to any controlled substance” under 18 U.S.C. § 922(g)(3). We need not consider whether this presumption is correct because we conclude, whatever the precise meaning of the phrase “addicted to any controlled substance,” its meaning is distinct from the meaning of the phrase “unlawful user of ... any controlled substance.” The words “unlawful user of or addicted to any controlled substance” are written in the disjunctive, implying each has a separate meaning. See Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979) (“Cannons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, unless the context dictates otherwise; here it does not.”). Even Mr. Bennett agrees the statute “breaks down a prohibited person into two groups: a. User, or b. Addicted.” We therefore conclude the district court did not err in defining the phrase “unlawful user of ... any controlled substance” differently from the phrase “addicted to any controlled substance.” In a related argument, Mr. Bennett argues he is not a “prohibited person” because he passed all drug tests while on bond. He claims this evidence demonstrates he was not an “addict” because “he definitely didn't lose the power of self-control.” We have already concluded the phrase “addicted to any controlled substance” is distinct in meaning from the phrase “unlawful user of ... any controlled substance.” The government only argues that Mr. Bennett was an unlawful user of a controlled substance. In any event, although Mr. Bennett did not fail any drug tests while on bond, we conclude the district court properly held him to be a “prohibited person.” The guidelines do not require a person to be an unlawful user of a controlled substance while on bond in order to qualify as a prohibited person. An individual's status as a prohibited person is measured “at the time the defendant committed the instant offense.” U.S.S.G. § 2K2.1(a)(4)(B). While a court may use evidence of a defendant's unlawful use of drugs while on bond to infer he was a user at the time he possessed a firearm, see Solomon, 95 F.3d at 35, such evidence is not necessary. The government need only show the defendant was an unlawful user of drugs or addicted to drugs at the time he committed the offense. See U.S.S.G. § 2K2.1(a)(4)(B); 18 U.S.C. § 922(g)(3). In other words, the government must show a defendant's drug use was contemporaneous with his firearm possession. After reviewing the evidence, discussed in detail below, we are convinced the government met its burden in this case. As mentioned previously, the government believes Mr. Bennett's extensive drug history qualifies him as an “unlawful user” of a controlled substance. Mr. Bennett does not dispute he used controlled substances. Instead, he argues the sentencing guidelines are unconstitutionally vague because the phrase “unlawful user” in 18 U.S.C. § 922(g)(3), adopted by the guidelines in U.S.S.G. § 2K2.1, cmt. n. 6, “is capable of being understood by reasonably well-informed persons in two or more different ways.” A criminal provision “must explicitly convey what it outlaws.” A provision that “either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' ”. Where, as here, a vagueness challenge does not involve First Amendment freedoms, we examine whether the provision is impermissibly vague “in the light of the facts of the case at hand.” We conclude the sentencing guidelines are not unconstitutionally vague as applied to Mr. Bennett's conduct. A confidential informant told police Mr. Bennett was distributing methamphetamine. Upon searching Mr. Bennett's residence, the police found “a digital scale with white powder residue, [a] small baggie of suspected marijuana, numerous marijuana pipes and bongs, possible drug ledgers, assorted small containers containing white powder residue, small plastic bindles, and suspected marijuana seeds.” The police also found a small amount of marijuana on Mr. Bennett's person. Mr. Bennett admitted during an interview with police he used, purchased, and sold methamphetamine. Mr. Bennett also admitted to a probation officer he used marijuana and methamphetamine on a daily basis up until his arrest. As a result of the police investigation, Mr. Bennett pled guilty to two misdemeanor charges of possession of a controlled substance, i.e., marijuana and methamphetamine. Based on this evidence, we conclude the district court correctly found Mr. Bennett was a “prohibited person” under the guidelines. His regular and ongoing use of marijuana and methamphetamine during the same time period as his firearm possession qualifies him as a “unlawful user of ... a [ ] controlled substance” and therefore a “prohibited person.” The guidelines are not vague under the facts of this case. U.S. v. Bennett, 329 F.3d 769, 776–78 (10th Cir. 2003). A subsequent trial court decision from the District of Utah further elaborated on the standard set forth in Bennett considering rulings from the 5th and 9th Circuits as well: Mr. Grover refers this court to a decision by a three-judge panel of the Fifth Circuit in United States v. Herrera, which was subsequently vacated by an en banc panel of the court. The decision of the original panel is the only federal decision to expressly reach a definition of “unlawful user.” After analyzing the text, structure, and legislative history of § 922(g)(3), as well as the relevant case law, the court held: an ‘unlawful user’ is one who uses narcotics so frequently and in such quantities as to lose the power of self control and thereby pose a danger to the public morals, health, safety, or welfare. In other words, an ‘unlawful user’ is someone whose use of narcotics falls just short of addiction, as that term is defined by the Controlled Substances Act. Although the original Herrera court did not arrive at its conclusion by interpreting the phrase “unlawful user of” to be synonymous with “addicted to” (this was the argument of the dissenting judges on the en banc panel that subsequently vacated the decision of the three-judge panel), the end result is essentially the same. The panel did not define the meaning of use that “falls just short of addiction.” Thus, in asking this court to adopt the definition announced by the original Herrera panel, Mr. Grover is asking this court to equate the definition of “unlawful user,” as used in 18 U.S.C. § 922(g)(3), with the definition of “addict” in 21 U.S.C. § 802(1). For the reasons stated above, this court declines to equate the definition of “unlawful user,” as used in § 922(g)(3), with the definition of “addict” in 21 U.S.C. § 802(1). Furthermore, this court expresses serious doubt that any precedential weight may be accorded to the original panel decision in Herrera. Although the en banc majority did not expressly reverse the original panel's holding, it decided whether the defendant was an “unlawful user” only by asking whether “drug use [occurred] with regularity and over an extended period of time.” The majority never discussed the definition reached by the original panel, which roughly equated the definition of an “unlawful user” with that of an “addict,” requiring the additional element of loss of self-control. In sum, the phrase “unlawful user of or addicted to any controlled substance,” as used in 18 U.S.C. § 922(g)(3), may be interpreted as either joining separately definable or synonymous terms. The Tenth Circuit in Bennett clearly ruled that the phrase is written disjunctively, meaning that the phrases “unlawful user of” and “addicted to” have separate meanings, and are therefore not synonymous. This conclusion is consistent with the common, everyday meaning of the terms—a person may be a user of controlled substances without being addicted to them, and conversely, a person may be addicted to controlled substances even when no longer a user of them. Although Bennett did not expressly define the phrase “unlawful user of,” it did explain that the defendant's “regular and ongoing use of marijuana and methamphetamine during the same time period as his firearm possession qualifies him as an ‘unlawful user of ... a[ ] controlled substance’ ....” Consistent with the Ninth Circuit's decision in United States v. Purdy, Bennett impliedly defined three elements for qualification as an unlawful user of a controlled substance: (1) regular use of any controlled substance (or, in the words of Purdy, “[use of] drugs with regularity”); (2) on an ongoing basis (or, in the words of Purdy, “over an extended period of time”23); and (3) during the same time period as (or, in the words of Purdy, “contemporaneously with”) the possession of a firearm. Combining language from both Bennett and Purdy, this court holds that an unlawful user of any controlled substance, for purposes of 18 U.S.C. § 922(g)(3), is an individual who regularly and unlawfully uses any controlled substance over an extended period of time that is contemporaneous with the possession of a firearm. U.S. v. Grover, 364 F. Supp. 2d 1298, 1302–03 (D. Utah 2005). On the other hand, evidence of a single use of marijuana six hours before the arrest with a firearm was not sufficient to show that someone was a controlled substance user, as this could have been "an isolated occurrence." U.S. v. Augustin, 376 F.3d 135 (3rd Cir. 2004). In general, evidence that one has a medical prescription for marijuana would tend to show that one is a "controlled substance user" and hence a prohibited person with respect to firearms. The only real out in this case would be the Congressional appropriations bill prohibiting the expenditure of federal funds to prosecute people who are using marijuana in a manner that is legal under state law and related U.S. Attorney statements to that effect. But, it is not at all obvious that these protections extent to prosecutions under 18 U.S.C. § 922(g)(3). The case closest to addressing the question of whether someone was prosecuted under 18 U.S.C. § 922(g)(3) for possessing a firearm while regularly using marijuana on a basis that was legal under state law, considering among other things, a Second Amendment challenge, is Wilson v. Lynch, 835 F.3d 1083 (9th Cir. 2016), certiorari denied 137 S.Ct. 1396, 197 L.Ed.2d 555. The 9th Circuit in Wilson v. Lynch held that the provision of federal Gun Control Act prohibiting sales of firearms to individuals whom sellers had reasonable cause to believe were drug users, and the accompanying regulation and administrative policy effectively criminalizing the possession of a firearm by the holder of a state marijuana registry card (in Nevada) did not violate the Second Amendment. The 9th Circuit reached this conclusion because the government had a substantial interest in preventing gun violence, and because empirical data and other evidence supported strong link between drug use and the risk of irrational or unpredictable behavior, including gun violence. Therefore, the 9th Circuit held that it was reasonable for federal regulators to assume that registry cardholder was more likely to use marijuana that an individual who did not hold such a card. In sum, it is safe to assume that someone with a medical marijuana prescription that is legal under state law is still a "prohibited person" pursuant to 18 U.S.C. § 922(g)(3) and is subject to severe penalties for possessing a firearm. | 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. | There are exceptions to the Title VII prohibition, which "does not apply to discrimination by a religious organization on the basis of religion in hiring and discharge. The exemption applies to an organization whose 'purpose and character are primarily religious.'" In all other respects, a religious organization is bound by the law that everyone else must follow. The EEOC defines "religion" as "includ[ing] moral or ethical beliefs as to right and wrong that are sincerely held with the strength of traditional religious views", but that does not seem to encompass metaphysical beliefs (e.g. about reincarnation, who created the universe...). They also state that "Religious discrimination also includes discrimination against someone because s/he is an atheist". The wording there is of some significance, since it does not say that an atheist organization is a "religious organization" which would be entitled to discriminate in favor of atheists in hiring practices. The statutory definitions section of the law tells us that "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business which doesn't actually support the commission's decision to extend coverage to atheist employees. That interpretation comes from post-statutory case law, such as Shapolia v. Los Alamos Nat'l Lab., 773 F. Supp. 304, 305. What is unclear is what a "religious organization" is. The exemption comes from 42 USC 2000e–1(a): This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities but the definitions do not clearly state that an organization dedicates to denying religious beliefs is legally subsumed under the exemption. Billy Graham would be, dunno about an atheist organization. | Your argument is: The 21st amendment repealed the prohibition of alcohol. Alcoholic drinks deliver one type of drug (alcohol) Therefore, the 21st amendment repealed the prohibition of all drugs. That is an logically invalid argument. It is equivalent to: If A then B If A then C Therefore, if C then B. Further, the court has never held that the government lacks the power to regulate and prohibit drugs. It is hard to prove a negative, but see Gonzales v. Raich 545 U.S. 1 (2005): Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. As this was a constitutional question, had the 21st amendment prevented Congress's prohibition, that would have likely come up in this case. |
Can you report a judge for not appointing guardian ad litem for child abuse Can you report a judge for not appointing a guardian ad litem for child abuse in the state of Mississippi when one is requested and, where it is mandatory to automatically appoint a guardian ad litem when dealing with child abuse in MS. What might be the repercussions be of said judge if there is a way to report them through the state? | Judicial Immunity The decision could be appealed to a higher court, but judges normally have absolute immunity from civil lawsuits for official actions, even when these are blatantly malicious and clearly wrong. Only when actual bribery is proved are there likely to be consequences to the judge. Judicial Code According to the Mississippi CODE OF JUDICIAL CONDUCT Cannon 2 Section A reads: A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary Cannob 3 Section D (1) reads: A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the appropriate authority So if one reports improper conduct by any judge to another judge, the 2nd judge is required to forward the report to the appropriate supervisory authority, which may act on it. Child abuse According to Findlaw's page on "Mississippi Child Abuse Laws" Child abuse in Mississippi is defined as causing or allowing a child to be sexually abused or exploited, emotionally abused, mentally injured, non-accidentally physically injured, or otherwise maltreated. ... Felony child abuse is intentionally, knowingly or recklessly doing any of the following to a child, whether or not harm results: Burn Physically torture Strangle, choke, or smother Poison Starve Use a deadly weapon on It’s also felony child abuse to cause serious bodily harm to a child (for example, breaking bones or causing permanent disfigurement, scarring, internal bleeding, brain damage, eye or ear injuries) by intentionally, knowingly or recklessly: Striking on the face or head Disfiguring or scarring Whipping, striking, or otherwise abusing Finally, felony child abuse is causing a child bodily harm (such as bruising, bleeding, or soft tissue or internal organ swelling) by intentionally, knowingly, or recklessly: Throwing, kicking, biting, or cutting Striking a child under 14 on the face or head with a closed fist Striking a child under 5 on the face or head Kicking, biting, cutting, or striking a child’s genitals (except for male circumcision) Failing to appoint a guardian ad litem does not seem to fit any of those, nor even to come close. | If there is a divorce case and through the process of declaring a parties financial position it comes out that one of the parties has dodged a bit of tax can that evidence be held against them? Generally speaking yes, unless the relevant prosecutor's office provides a grant of immunity from prosecution for the matters disclosed, which basically never happens in a divorce case or ordinary civil case. This is why it is sometimes necessary to invoke the 5th Amendment in the context of a civil case. Does a judge have the duty to report any law-breaking that arises in civil cases No. It isn't improper for a judge to report law-breaking that is observed in the course of litigation before that judge, but the judge has no duty to do so (absent some very specialized exceptions like treason), and, in practice, rarely does report law-breaking not directly before the judge to evaluate. In contrast, in criminal cases, during the pre-trial phase of a case (and especially in the pre-arrest phase of a case), a judge often has a duty to keep knowledge of crimes obtained in that way secret until it is disclosed by the prosecution (unless the prosecution improperly fails to disclose something that it is required to disclose). This is so that criminals aren't "tipped off" by a judge of an impending arrest. A judge in Colorado was recently prosecuted and removed from the bench for a disclosure of that kind. or is a civil case confidential between the two parties? A judge can seal a civil case, or limit public access to certain documents, but that is the exception and not the norm and has to overcome constitutional protections of the public's right to public trials that media organizations frequently enforce successfully. Confidentiality between the parties can only be imposed for "good cause." Hiding the fact that you cheated on your taxes from tax collection agencies does not constitute good cause. Footnote Most U.S. jurisdictions have an ethical rule for lawyers that prohibits them from threatening to take administrative or criminal actions to gain advantage in a civil case, although the exact details vary quite a bit from jurisdiction to jurisdiction. This does not apply to clients of lawyers acting unilaterally and without guidance from their lawyers. | In Germany, the noise of playing children is defined as not noise according to §22 BImSchG. Normal industrial/commercial limits do not apply. This aims mostly at playgrounds, kindergartens, etc. The noise of cars, stereos, etc. is not unlimited even before 22:00, but it is considerably harder to get the police to intervene during daytime. You might consult with a lawyer to find out if they are unreasonably noisy, you are unreasonably thin-skinned, or both. Similarly, the driving you describe may be violating traffic regulations, but proving that will be difficult. As to actual damages to your premises, what happens depends on the age of the children and if they had proper supervision by their guardians. Proper supervision does not require the guardians to stand next to the children around the clock. If you have a specific case, and if the "perpetrator" was over 7 years old, you can ask for repayment and then sue if they refuse. This is most likely more hassle than the damage is worth, even if you do get a judgement against a minor, but it could change the tone of the relationship with your neighbours. They would have to explain in court what they did to supervise their children ... | If this judge is truly biased, won't the litigants be all the more glad to have a jury of their peers? You are proposing to abandon your duty to others. At trial you serve the community, not the judge. Back on scope for Law SE: If you refuse to serve on a jury, that could be a separate offense or general criminal contempt, for which you (this all depends on your jurisdiction) could get 30-90 days in jail. Edit: like several others have pointed out, I would not expect much trouble if you politely told the court that you felt you would be biased b/c of past connections. Even if the judge doesn't dismiss you, one of the litigants is likely to strike you. P.S. In most states, no one except a prosecutor (sometimes another state employee) can "take someone" to a criminal court. Individuals can only take someone to civil trial, where one cannot be sentenced, only ordered to pay a judgement. | A district attorney has discretion to decide whether to prosecute. A district attorney may be appointed by e.g. a county board of commissioners, or they may be elected. The electorate has the exclusive power to chastise DA, but voting him out of office, so there is little to be done other than write letters to the editor. An appointed DA has some superior, so you can complain to that superior. There is no way to legally force a DA to prosecute if they do not believe that there is enough evidence to get a conviction. | It seems like callous behavior which leads to a foreseeable death deserves a bigger punishment than just firing of the administrator. The starting point of the analysis is that no one is legally responsible, civilly or criminally, for a suicide unless that person intended that the person who committed suicide do so, which is almost certainly not true in this case. As a matter of law, a suicide caused by merely callous behavior not intended to cause someone to commit suicide is not foreseeable. And if the only actions brought are civil, then the University would be the defendant and the actual individuals who were involved would not themselves even face any trial. This is not accurate. It would be routine to bring suit against anyone personal involved (probably both the administrator and the gay student who allegedly colluded), as well as the University, and indeed, the likelihood of a recovery against one or both of the individuals would be greater than the chance of recovery against the University. To recover against the University it would be necessary to show that the Title IX violation occurred pursuant to an officially approved policy or practice of the University, but this case seems to have at its heart, a failure to an administrator to follow a policy of the University. It might be possible to sue the University or someone involved in the process for a violation of his civil rights, but generally speaking, his death would not constitute recoverable damages in a such a suit. Also, generally speaking, a Title IX claim requires that any party held liable to have had an intent to violate someone's civil rights, rather than that the person was merely mere inept or negligent in implementation or non-implementation of a bureaucratic policy or dispute resolution procedure. This is alleged by the Plaintiff, probably in part because it has to be to prevent the case from being dismissed on the pleadings, but is quite implausible that this really happened that way, and this is difficult to prove unless there is some really hard evidence backing up the alleged collusion. Generally speaking, the fact that a hearing board comes up with a wrong conclusion after allegedly not following proper procedure, is not actionable for damages and certainly wouldn't constitute fraud. UPDATED RESPONSE TO EDIT 2: there maybe other victims, in similar situations, who are not protected by the criminal justice system if nothing of what is alleged to have transpired is deemed illegal It is a common fallacy that if something is not a crime, that it is not illegal or that there are no remedies. A civil lawsuit is a common and often appropriate remedy for all manner of wrongs, and the compensatory and injunctive remedies for civil wrongs such as a breach of contract and torts such as the intentional infliction of emotional distress are often significant. This said, as a government entity, the University of Texas and its employees are probably immune to many tort causes of action that would be available against a private party engaged in the same conduct. In this case, probably the only viable causes of action against the University of Texas itself, as opposed to the responsible individuals in a particular case, would be for breach of contract for not actually carrying out its policies as impliedly promised, and for injunctive relief under Title IX insisting on new policies that would prevent misconduct in disciplinary proceedings. Generally speaking, a criminal law remedy is less victim oriented than a civil remedy and is outside the control of the victim, which can be traumatic for a victim who would prefer not to be involuntarily dragged into the criminal justice process. The notion that settlement is not possible in the criminal justice system is likewise mostly incorrect. There is a reason why we don't handle rapes (for example) in civil courts. Criminal justice system exists to make sure that, at least in theory, those who commit heinous acts cannot buy their way out of consequences of those actions. In fact, one can bring a cause of action for a rape in a civil court. I've done it. And, the lower threshold of proof, the lack of a right to remain silent without legal consequences under the 5th Amendment, the greater focus on compensation for the victim, and the greater level of control of the victim are all good reasons to pursue this route. Many cases of rape by people able to afford to pay compensation are also cases of actionable sexual harassment. In general, criminal law is the solution that is usually resorted to not so much because the acts committed are heinous, but because the typical person who violates a law that is criminally prosecuted is judgment proof and unable to pay compensation that is even remotely proportionate to the harm done, so a civil remedy does not discourage that behavior. Your typical rapist who is prosecuted in the criminal justice system isn't capable of paying meaningful compensation to a victim, although there are always exceptions. Preventing people from buying their way out of their wrongdoing is almost never advanced by criminal justice scholars as a reason for a criminal justice remedy. And, when I have clients who have been harmed, for example, by fraud, most would far prefer to receive compensation from the wrongdoer, than to see the perpetrator punished without receiving any meaningful compensation for their own injuries, which is the usual result in the criminal justice process. Most people think of the criminal justice system as more of a last resort when all other options fail than as a good first choice which it rarely is even when it is the least bad option. So back to the main question, what, if any, criminal charges can be leveled against the administrator and the false accuser if the alleged facts of the case can be confirmed to be true? In the fact pattern presented, where a public official at the University of Texas conspires with a student with whom the official has a pre-existing personal relationship to produce an intentionally inaccurate result in a University disciplinary hearing harming a defendant in that process, there are several university statutes that might form a basis for criminal action against either the public administrator or the conspiring student on the offense identified or conspiracy to commit the offense identified. In no case are any criminal charges against the University of Texas a plausible option in this fact pattern. Each of the offenses is a misdemeanor under Texas law. The best fit is "improper influence". Texas Penal Code § 36.04. This involves reaching an outcome in an adjudication for a reason other than one legally allowed due to someone's application of influence other than a bribe or kickback. The section states: (a) A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law. (b) For purposes of this section, “adjudicatory proceeding” means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined. (c) An offense under this section is a Class A misdemeanor. Two other possibilities are "abuse of official capacity", Texas Penal Code §39.02, or "official oppression" Texas Penal Code § 39.03. These sections and a related one, read as follows in the pertinent or potentially pertinent parts: Sec. 39.01. DEFINITIONS. In this chapter: (1) "Law relating to a public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly: (A) imposes a duty on the public servant; or (B) governs the conduct of the public servant. . . . Sec. 39.02. ABUSE OF OFFICIAL CAPACITY. (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly: (1) violates a law relating to the public servant's office or employment . . . (b) An offense under Subsection (a)(1) is a Class A misdemeanor. . . . 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he: . . . (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or (3) intentionally subjects another to sexual harassment. (b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity. (c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly. (d) An offense under this section is a Class A misdemeanor . . . Also, in all three of these cases, the fact that someone committed suicide afterwards is basically irrelevant legally. | @Dale M is basically correct, but fudges a bit on the process. The court issuing the order would issue an order to show cause to a government official who is alleged by the person who sought the order to have violated the order after having received legal notice (i.e. service) of the order. If that individual fails to appear at the appointed time and place in the order to show cause, a warrant issues for that individual's arrest. If that individual does appear, the allegedly contemptuous individual is read their rights and a hearing date is set. At the hearing, if the person appears, the person seeking the contempt finding (or some other attorney appointed by the court) prosecutes the case and if the person is found in contempt, then contempt sanctions issue. If they do not appear, a warrant issues for their arrest and a hearing is held on the merits promptly following that arrest. An individual can also be ordered to show cause in an official capacity in which case the contempt sanctions would be imposed against the organization rather than the individual. Usually, in federal court, the U.S. Marshal's office has primary responsibility for arresting people on contempt warrants. The U.S. Marshal's office primarily reports to the judicial branch, although strictly speaking, it is part of the Justice Department, and ultimately reports to the Attorney-General. There are actually two kinds of contempt - remedial and punitive. Remedial contempt sanction can include indefinite incarceration or a fine (often a per day fine) until the violation of the order of the court ceases and is allowed only when it is possible to comply with the order going forward. Punitive contempt has a sanction comparable to a misdemeanor conviction and applies in cases where the goal is to punish someone for a past violation of a court order whether or not it is possible to comply going forward. (Both of these are examples of "indirect contempt", i.e. violations of court orders that take place outside the courtroom. A different summary process called "direct contempt" applies when someone misbehaves in the presence of the court - this is summary incarceration or fine without a trial on the spot for disrespecting the dignity of the court in the courtroom.) Established practice is to direct a contempt order at the lowest level official necessary to remedy the violation of the order. There are a few examples in living memory of cabinet members being held in contempt, however (e.g. the Secretary of Interior, with regard to Indian Trust fund litigation), and keep in mind that in the case of remedial contempt an official can purge the contempt and be released from any sanction by resigning from office, after which the official no longer has the ability to comply. I am not aware of any instance in which the President of the United States has personally been held in contempt of court, but I am also not aware of any authority that specifically prohibits a court from holding the President in contempt of court. While contempt is the only "hard" remedy for a violation of a court order, the bureaucratic structure of the federal government is also set up in a manner that once a court order definitively resolves a legal issue, the higher ups in a federal agency are supposed to take all reasonable actions to insure that their subordinates follow that order (and they are themselves subject to contempt sanctions if they fail to do so). And, keep in mind that most of the people in the chain of command are civil servants with legal protections from unlawful employment actions hired on a merit basis, not political appointees, and that lots of the people in the chain of command are also members of unions that provide individual employees with the ability to fight wrongful employment action from a superior for violating a court order. In particular, the top lawyers in the executive branch would in ordinary times direct government employees to follow a clear court order and to cease and desist from explicitly disobeying one. Among other things, the courts could probably deny lawyers who refused to do so the right to practice law in federal court. But, usually things never reach this point. Then again, we are living in interesting times. There are about 670 political appointee positions in the executive branch, many of which are currently vacant and less than a dozen of which would be relevant to any given dispute in any case. There are about a million, civilian, non-defense department, non-postal service employees in the United States government, of which perhaps 100,000 or so are in the Department of Homeland Security and fewer are in the CBP. As far as I know, the CBP political appointees from the Obama administration have resigned and a replacement has not been confirmed by the U.S. Senate yet (there has been a Department of Homeland Security appointee confirmed if I recall correctly), and there are only a few people in the agency that political appointees can hire without either receiving Senate confirmation or using the merit based hiring process for civil servants (which takes a while, especially given an executive order imposing a hiring freeze). So, realistically, we have a case where the acting head of the CBP is probably a GS-15 or Senior Executive Service grade civil servant, rather than a political appointee, at the moment, who was hired as a civil servant many years ago, who is doing his (or her) best to follow the less than clear guidance he is receiving from his superiors and government lawyers (perhaps errantly). There could also be remedies in the form of declaratory judgment. The Court could declare as a matter of law on a case by case basis that, for example, Fatima Jones is not deportable and is lawfully within the United States and is entitled to be released from custody. This specific finding as to an individual would be very hard for the administration to escape sanction for. And, the Court could also declare that the entire executive order, at least as applied, is invalid (e.g. for failure to comply with the administrative procedures act, or for failing to include an exception for contrary court orders) or is unconstitutional. | The question to be answered is "did the state prove guilt beyond reasonable doubt", the answer to which should have no reasonable doubt. The interests of the defendant are sufficiently protected by the basic burden of proof requirement. The alternative that a single vote of not guilty exonerates the defendant would seriously hobble the interests of the people, and the alternative of automatic mistrial would make trials prohibitively expensive. The unanimity requirement does mean that in case of initial disagreement, parties have to re-think their positions, which is not a bad thing. The question of whethar a supermajority of guilty votes suffices for conviction was decided in a recent case, Ramos v. Louisiana, allowing conviction with a 10-2 vote. The court takes unanimity to be a basic common law right from the 14th century. Louisiana and Oregon had unconventional schemes allowing less than unanimous decisions: the reasoning behind the unanimity requirement is discussed extensively in that opinion. Since Alito, Roberts and Kagan dissented in part, the rationale for the other view is also spelled out. |
What constitutes a "religious belief" Reading this article I have to wonder what "religion" all these SF police employees belong to that denies them access to the vaccine. Do they have to declare which religion they're a part of and then open up the Bible to the page that says "thou shalt not inject thyself with mRNA vaccines"? | The First Amendment essentially prohibits the establishment of a list of approved vs. not-approved religions. There is a large body of First Amendment case law that relates to claimed religious beliefs, and the restriction that the government cannot prohibit a person from exercising their religious beliefs. The courts therefore avoid bright-line answers to the question. You can look at Friedman v. Southern Cal. Permanente for an example where a court found that a belief is not a religious belief, finding that veganism is not a "religious creed" within the meaning of the California Fair Employment and Housing Act. Plaintiff was told to get a mumps vaccination (which involves chicken embryo) as a condition of employment, refused, and the offer of employment was refused. The law, §12940a makes it unlawful "because of the religious creed of any person, to refuse to hire or employ the person...". Subdivision (l) says that Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. §12296(q) further contributes a definition of religious terms: “Religious creed,” “religion,” “religious observance,” “religious belief,” and “creed” include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. “Religious dress practice” shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. “Religious grooming practice” shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed. The Fair Employment and Housing Commission then created a regulation California Code of Regulations, title 2, section 7293.1 that defines "religious creed" ‘Religious creed’ includes any traditionally recognized religion as well as beliefs, observations, or practices which an individual sincerely holds and which occupy in his or her life a place of importance parallel to that of traditionally recognized religions. The court notes that religious creed extends beyond traditionally recognized religions to encompass beliefs, observations, or practices occupying a parallel place of importance “to that of traditionally recognized religions” in an individual's life. The court then points to the leading cases from the Supreme Court related to deciding what a religion is: US v. Seeger, 380 U.S. 163 and Welsh v. US, 398 U.S. 333. And the court points out that government agencies are granted wide latitude in interpreting enabling legislation (under which the government might allow or disallow an action). It us noted that as of 2002, there were no California cases deciding what constitutes a religious creed w.r.t. FEHA and that regulation. The court then recited various statements from other California cases regarding the characterization of a religion – the main relevant point is that a religion does not have to be theistic to be a "religion". The court also reviews federal employment discrimination laws, and again considers the difference between traditional and non-traditional religions. There are many snippets in the review of the law section saying things such as that the court should find beliefs to be a religion if they ‘occupy the same place in the life of the [individual] as an orthodox belief in God holds in the life of one clearly qualified.’ We can now move to the question in §6, Is Veganism a Religious Creed For Purposes of the FEHA. This court states that The test we apply is that set forth in Judge Adams's concurring opinion in Malnak which has been adopted by the Third, Eighth, Ninth, and Tenth Circuits which they say presents the best objective method for answering the question whether a belief plays the role of a religion and functions as such in an individual's life At this point, we can't reasonably guess how some individual would object on religious grounds to the vaccination mandate, but we do at least know what aspects of the law would be relevant and where the "rules" are laid down. Until someone actually alleges that they have a religious belief that prohibits vaccination, we can't analyze those arguments. The gist of the "veganism is not a religion" is it is too narrow a belief to constitute a religious belief. The court found that did not find that it is a "belief system (which) addresses fundamental or ultimate questions", and that it does not a address fundamental questions such as "the meaning of human existence; the purpose of life; theories of humankind's nature or its place in the universe; matters of human life and death; or the exercise of faith". | It probably depends on whether the employer is covered by a relevant non-discrimination statute. Most employers in the United States are covered, but some are small enough to be exempt. Federal law exempts employers with under 15 employees and religious organizations. There might also be a relevant state law. It also would depend upon whether the EEOC or a court found that "be blessed" was a compelled religious statement in violation of a worker's beliefs, and whether allowing the worker not to say it would be a "reasonable accommodation." This is a strong case, and I suspect that the worker would win on both counts but it isn't a completely open and shut case. There is arguably a secular meaning to the word "blessed" and a court could conceivably find that there is a legitimate and indispensible business purpose for insisting that every single person in the worker's position need to make this statement, although I doubt that a court would do so. | If that person becomes incapacitated or is deemed unfit to make their own decisions, will I be required to be physically present (for example, to sign something) to make those decisions if called upon? While it is customary for someone making decisions as weighty as removal of life support, to come to the hospital or care facility in person and discuss the issues with treating physicians, it isn't required. When you are physically there it is easier for you to personally assess the patient's condition rather than just taking someone else's word for it, and you have more informal access to everything that is going on in terms of people coming in and out of the patient's room, providers you wouldn't have known to speak to initiating conversations with you (e.g. there is typically an ER nurse for each shift, several residents doing rounds checking on a patient, and often also an outside specialist doctor involved in the treatment team). It is also usually easy when you are physically in a hospital to locate someone knowledgable and familiar with the kinds of issues you are facing at the moment to provide spiritual and religious guidance if you feel this would help you make your decision, while your neighborhood clergy person may not have a good understanding of these issues since they don't come up as often for someone is doesn't frequently spend time around people being treated in hospitals or hospices. And, this kind of pastoral counseling requires not just religious knowledge but an understanding of the options that are being presented through the lens of what is religiously and morally important about the differences between the different options. When I was an attorney for a hospital handling these issues for the hospital, we would have been willing to work with an out of state medical power of attorney agent without their physical presence. But, the fact that this was deep in the Rocky Mountains far from other urban areas (i.e. Grand Junction, Colorado) may have influenced a willingness to be flexible since it would often take a lot of time and money for someone to arrive in person. Also, while the medical power of attorney gives a specific person authority to act, an advanced medical directive is simply a document that goes into a patient's medical record that advises treating providers of the patient's intent and doesn't actually need next of kin approval or a medical power of attorney agent's say so to implement, although better practice is to seek that consent first in case there are any reasons why that advanced medical directive might have been procured improperly from someone lacking capacity or subsequently revoked. There usually will be forms for a medical power of attorney agent to sign, not authorizing a particular medical procedure, but authorizing treatment in general and providing personal and financial information about the patient in connection with admitting that person. But, these days, hospitals are relatively comfortable with handling that paperwork via fax or scanned copies sent via email, and some of the more flexible hospitals will even accept photos of signed documents sent via text message. | To what legal extent can parents prevent children from masturbating and are religious reasons legal justifications for such actions? One of the main restrictions on parental authority is a prohibition on engaging in child abuse or neglect. But, in most cases, this either isn't defined at all, or is defined only in the most general terms (in the same way culpability for an accident depends upon "negligence" which is also only vaguely defined). So, somebody would have to decide if that conduct constitutes abuse or neglect of a child (realistically, this fact pattern would involve the issue of abuse, rather than neglect), and while religious reasons can justify some conduct that might otherwise be considered abusive because it caused harm for no justifiable reason, ultimately, the interest of the state in preventing the abuse of children outweighs freedom of religion and could give rise to criminal child abuse charges and/or termination of parental rights. Whether or not a chastity belt would constitute abuse would depend upon the judgment of the relevant CPS official, a prosecuting attorney and a trial judge (possibly subject to appellate judge review), in light of common sense and community standards. There is no hard and fast rule, and the question might be resolved in different ways in different times and in different places. | Police can lie However, in the United States they have to read you your Miranda warning (most other democratic countries have similar warnings): You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time. They have told you everything they are required to tell you - effectively “we are not on your side.” After that, they can lie their asses off. Of course, they wouldn’t ask you for a DNA sample - they’d ask you if you’d like a glass of water. Then they’ll take the DNA from that. | 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. | Your analysis is correct. Hobby Lobby would be irrelevant insofar as health benefits are concerned (although the general religious objection doctrine would still have relevance in other contexts, e.g. pharmacy operators), in a Medicare for all single payer system where health insurance did not involve an employer. And you are likewise correct that a government could not assert a religious objection, although the Medicare for All program could decide what it would and would not cover and would not have to cover reproductive health services at all. | No, absent a state law to the contrary (and I am aware of no such law in this case) it is not illegal. Universities, as institutions, are permitted to express opinions on political issues, especially political issues that are pertinent to their operations. Indeed, they often do so. (Political candidates are arguably a different matter and certainly involve a more complex analysis to determine if the Johnson Amendment applies to a public university, but that isn't at issue in this case.) Governmental entities may not take religious positions, but may take political ones. Generally, even public colleges like Rutgers have this autonomy. Indeed, lobbying is frequently necessary for the survival of a public university - it has no choice but to lobby and a free hand regarding the issues upon which it does lobby. |
Locating summoned witnesses to serve the summons Suppose a party to a proceeding has obtained summons to a witness from the court. The witness lives in the town (as per their digital footprint) but is not responsive. The party has no idea where to find them physically. Does the party have any legal leverage to engage the police (or other competent authorities apart from private investigators) to help locate the witness and serve the summons on them? Or is it just the party's bad luck that the witness cannot be located and served on? (Any common law jurisdiction). | Does the party have any legal leverage to engage the police (or other competent authorities apart from private investigators) to help locate the witness and serve the summons on them? Not really. Legal process is not infrequently served by a sheriff's deputy. But the deputy will not generally take any initiative to locate a person to be served beyond what it provided by the litigant. The main reasons to have a sheriff's deputy serve someone with process is the fear that the person served might react violently. Or is it just the party's bad luck that the witness cannot be located and served on? Pretty much. | @Dale M is basically correct, but fudges a bit on the process. The court issuing the order would issue an order to show cause to a government official who is alleged by the person who sought the order to have violated the order after having received legal notice (i.e. service) of the order. If that individual fails to appear at the appointed time and place in the order to show cause, a warrant issues for that individual's arrest. If that individual does appear, the allegedly contemptuous individual is read their rights and a hearing date is set. At the hearing, if the person appears, the person seeking the contempt finding (or some other attorney appointed by the court) prosecutes the case and if the person is found in contempt, then contempt sanctions issue. If they do not appear, a warrant issues for their arrest and a hearing is held on the merits promptly following that arrest. An individual can also be ordered to show cause in an official capacity in which case the contempt sanctions would be imposed against the organization rather than the individual. Usually, in federal court, the U.S. Marshal's office has primary responsibility for arresting people on contempt warrants. The U.S. Marshal's office primarily reports to the judicial branch, although strictly speaking, it is part of the Justice Department, and ultimately reports to the Attorney-General. There are actually two kinds of contempt - remedial and punitive. Remedial contempt sanction can include indefinite incarceration or a fine (often a per day fine) until the violation of the order of the court ceases and is allowed only when it is possible to comply with the order going forward. Punitive contempt has a sanction comparable to a misdemeanor conviction and applies in cases where the goal is to punish someone for a past violation of a court order whether or not it is possible to comply going forward. (Both of these are examples of "indirect contempt", i.e. violations of court orders that take place outside the courtroom. A different summary process called "direct contempt" applies when someone misbehaves in the presence of the court - this is summary incarceration or fine without a trial on the spot for disrespecting the dignity of the court in the courtroom.) Established practice is to direct a contempt order at the lowest level official necessary to remedy the violation of the order. There are a few examples in living memory of cabinet members being held in contempt, however (e.g. the Secretary of Interior, with regard to Indian Trust fund litigation), and keep in mind that in the case of remedial contempt an official can purge the contempt and be released from any sanction by resigning from office, after which the official no longer has the ability to comply. I am not aware of any instance in which the President of the United States has personally been held in contempt of court, but I am also not aware of any authority that specifically prohibits a court from holding the President in contempt of court. While contempt is the only "hard" remedy for a violation of a court order, the bureaucratic structure of the federal government is also set up in a manner that once a court order definitively resolves a legal issue, the higher ups in a federal agency are supposed to take all reasonable actions to insure that their subordinates follow that order (and they are themselves subject to contempt sanctions if they fail to do so). And, keep in mind that most of the people in the chain of command are civil servants with legal protections from unlawful employment actions hired on a merit basis, not political appointees, and that lots of the people in the chain of command are also members of unions that provide individual employees with the ability to fight wrongful employment action from a superior for violating a court order. In particular, the top lawyers in the executive branch would in ordinary times direct government employees to follow a clear court order and to cease and desist from explicitly disobeying one. Among other things, the courts could probably deny lawyers who refused to do so the right to practice law in federal court. But, usually things never reach this point. Then again, we are living in interesting times. There are about 670 political appointee positions in the executive branch, many of which are currently vacant and less than a dozen of which would be relevant to any given dispute in any case. There are about a million, civilian, non-defense department, non-postal service employees in the United States government, of which perhaps 100,000 or so are in the Department of Homeland Security and fewer are in the CBP. As far as I know, the CBP political appointees from the Obama administration have resigned and a replacement has not been confirmed by the U.S. Senate yet (there has been a Department of Homeland Security appointee confirmed if I recall correctly), and there are only a few people in the agency that political appointees can hire without either receiving Senate confirmation or using the merit based hiring process for civil servants (which takes a while, especially given an executive order imposing a hiring freeze). So, realistically, we have a case where the acting head of the CBP is probably a GS-15 or Senior Executive Service grade civil servant, rather than a political appointee, at the moment, who was hired as a civil servant many years ago, who is doing his (or her) best to follow the less than clear guidance he is receiving from his superiors and government lawyers (perhaps errantly). There could also be remedies in the form of declaratory judgment. The Court could declare as a matter of law on a case by case basis that, for example, Fatima Jones is not deportable and is lawfully within the United States and is entitled to be released from custody. This specific finding as to an individual would be very hard for the administration to escape sanction for. And, the Court could also declare that the entire executive order, at least as applied, is invalid (e.g. for failure to comply with the administrative procedures act, or for failing to include an exception for contrary court orders) or is unconstitutional. | A lawyer for either party can claim, during argument, that an adverse witness is not credible, for any reason or none. Often the lawyer will point to matters disclosed during cross-examination, claiming that they are contradictions, show bias, or otherwise indicate lack of credibility. Or the lawyer could point to elements of the primary testimony which the lawyer claims are implausible. If there has be evidence of a prior conviction, the lawyer could refer to this. A lawyer may in general ask a witness about prior convictions. Criminal convictions are generally matters of public record, and can be researched. It is not usual to present reputation or credibility witnesses for any person except the defendant, and failure to do so, even for the defendant, does not lead to any automatic assumption of lack of credibility. Not does the appearance of such a witness grant an automatic assumption of credibility. But a lawyer may point out reasons for thinking a witness not credible. Ultimately it is up to the finder of fact, often a jury, to decide what weight to give the testimony of each and every witness, based on the impression that testimony made, as well as any argument from the lawyer. This is one reason why courts are reluctant to overturn factual assessments by a jury: the reviewing court does not see and hear the manner of a witness and what it may indicate about credibility. | Although the question is different, the answer to the other question actually contains the answer to your question. As ruled by the Supreme Court in Georgia v. Randolph, 547 U.S. 103, "a physically present co-occupant’s stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him". One occupier's clear objection based on Fourth Amendment interests cannot be overridden by the consent of another in this case. A disputed consent should not be resolved by the police, but by a judge. | If there is a divorce case and through the process of declaring a parties financial position it comes out that one of the parties has dodged a bit of tax can that evidence be held against them? Generally speaking yes, unless the relevant prosecutor's office provides a grant of immunity from prosecution for the matters disclosed, which basically never happens in a divorce case or ordinary civil case. This is why it is sometimes necessary to invoke the 5th Amendment in the context of a civil case. Does a judge have the duty to report any law-breaking that arises in civil cases No. It isn't improper for a judge to report law-breaking that is observed in the course of litigation before that judge, but the judge has no duty to do so (absent some very specialized exceptions like treason), and, in practice, rarely does report law-breaking not directly before the judge to evaluate. In contrast, in criminal cases, during the pre-trial phase of a case (and especially in the pre-arrest phase of a case), a judge often has a duty to keep knowledge of crimes obtained in that way secret until it is disclosed by the prosecution (unless the prosecution improperly fails to disclose something that it is required to disclose). This is so that criminals aren't "tipped off" by a judge of an impending arrest. A judge in Colorado was recently prosecuted and removed from the bench for a disclosure of that kind. or is a civil case confidential between the two parties? A judge can seal a civil case, or limit public access to certain documents, but that is the exception and not the norm and has to overcome constitutional protections of the public's right to public trials that media organizations frequently enforce successfully. Confidentiality between the parties can only be imposed for "good cause." Hiding the fact that you cheated on your taxes from tax collection agencies does not constitute good cause. Footnote Most U.S. jurisdictions have an ethical rule for lawyers that prohibits them from threatening to take administrative or criminal actions to gain advantage in a civil case, although the exact details vary quite a bit from jurisdiction to jurisdiction. This does not apply to clients of lawyers acting unilaterally and without guidance from their lawyers. | The IRS Criminal Investigation division is typically going to be the arresting agency, assuming that (1) the offense is treated as a criminal matter; (2) a warrant is actually issued; and (3) anyone actually sets out specifically to serve the warrant. It is usually the case, though, that the violation is handled as a civil matter. When it is treated as a criminal violation, the defendant and the Service often reach an agreement that eliminates the need for an arrest. If there is a warrant, though, any police agency could theoretically make the arrest if they happened across the defendant. But if it's a time-sensitive investigation -- if the defendant is expected to flee or destroy evidence, for example -- it's a safer bet that you'll see an actual warrant execution. In that case, you would have CI taking the lead, perhaps with assistance from other agencies. | The main rules in a civil case are the rules of evidence, the rules of civil procedure, and a set of largely unwritten rules governing issues such as the order in which matters are presented in a trial and courtroom conduct. Basically, the rules of evidence are really a subset of a larger set of written and unwritten rules about courtroom conduct the unwritten parts of which are assumed to be known by people using them. Robert's Rules of Order do not apply to courtroom proceedings. The judge also has the "direct contempt" power to summarily punish disrespectful conduct in the courtroom without a trial, with fines or incarceration, even if it wouldn't be a crime outside the courtroom. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. If you are a party asking a question (or more likely an attorney for a party asking a question on behalf of a party) it is not improper to say, "I'm sorry, I couldn't hear you." It is also not generally improper for a non-questioning party to interject and state that they can't hear a witness to a judge. Obtain clarification of a statement. This can be done by a party only when it is the party's turn to cross-examine or redirect as the case may be. A judge can ask for clarification, but a party cannot do so when it is not their turn. Determine or clarify the purpose of an ongoing statement or line of questioning Generally the party not asking a question objects and the court asks the party asking the question to clarify the reason. Sometimes, in a jury trial, the party asked to clarify will say "may we approach the bench" and a private discussion will be held between counsel for both sides and the judge regarding an ongoing issue. Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") Lawyers are expected to know this for the most part without having to ask. Also, usually before the court starts to take evidence, and at breaks, the judge will ask "are there any preliminary matters that need to be addressed?" or "are there any procedural matters that need to be addressed?" and questions such as this can be raised at that time. | 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. |
Outside of regular self defence, when is fighting legal? I know this is a weird question. I'm curious as to what counts as assault, in the sense a person would be likely found guilty of it in court. Generally assault is considered fighting someone who did not want to fight you. So does this mean if two people agree to a fight, it's legal? This seems to be the case with MMA where they wear virtually no safety equipment. What if an aggressor gets up in another persons face, then would the person be able to hit first? I saw this in a YouTube video: a police officer responded to a 911 call. The person who he called was a army drill sergeant and started yelling at the police officer and getting up in his face (like in movies like Full Metal Jacket). Though the drill sergeant technically didn't touch the police officer, the officer hit him in the face, pinned him and arrested him. Though there were other factors like the drill instructor seemed to be on drugs. If a person does something minor like throws water at a person or shoves a person would that count as assault? For example in sports games you occasionally see a player or coach shove someone. If there was a prank like shoot someone with a water gun, could this be assault if they didn't agree to it? | An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. There is no need for physical contact in an assault, all that is needed is the threat and the apparent, present ability. The drill sergeant was behaving in a threatening manner and had an apparent, present ability to cause harm; he was guilty of assault. Consensually engaging in a legal contact sport lacks the threat of bodily harm; that is to say that the bodily harm is a risk of the sport but it is not the object of it. Of course, an illegal sport where death or maiming is an inherent part would leave the participants open to assault (and battery) charges - you cannot agree to do illegal things. What is necessary to constitute the threat and the apparent means depends on the whole of the circumstances. A person throwing water when they had threatened the victim with acid is most certainly assault. Pointing a replica pistol at someone who doesn't know it is a replica constituted the threat and apparent means in one action. | 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. | 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. | Assuming these are common law crimes (Kenya is a common law country - sort of) or statutory crimes that have codified common law crimes without substantially changing them. It is not attempted murder - this requires an intent to kill. Pulling the trigger would have that intent, pointing it doesn't. It is assault if it puts the victim in fear of immediate harm (pretty sure it would). There are probably some statutory firearms offences too. | Unfortunately, the police are correct The limit on filing a civil claim (a lawsuit where you seek monetary compensation) is before you turn 40. If you were 11 in 1985 then it is too late to sue your assaulter. For criminal prosecution, the law was changed in 2016. Prior to the change, the limitation was the same as for civil cases. After the change, there is no limit but only if the offence was committed on or after 1 January 2017. Assuming that your reference to Kelly is to this guy - the alleged offences were committed in the 1990s and the prosecutions are under Illinois, Minnesota and Federal law (the Federal crimes alleged are not the sexual assault of a minor). Each state has it's own rules. | No. I can't give a more detailed answer without reference to a specific statute. But just about every state anti-bullying statute in the U.S. restricts the definition to...well, bullying. There is a good summary of state bullying and cyberbullying statutes here. The laws are varied, but they invariable contain words like "harassment", "abuse", "threatening," "fear," and "hostile environment." Would it be possible to "cyberbully" someone on Stack Exchange under some of these statutes? Sure. You could do it in comments; in answers; even in questions. "Question: Is Bill in my algebra class a dork, or a tool?" Comment: "This is a terrible question, and I'm going to burn your house down. Downvoting." You could probably fit something like that under some of the broader statutes--although they still for the most part haven't been tested for First Amendment issues. But I don't know of any statute broad enough to include downvoting a question or answer, on a site people post on knowing that the whole purpose of posting is to allow their posts to be upvoted and downvoted. If there was such a statute--and again, I don't know of any--it would almost certainly be unconstitutional. There is no law against hurting people's feelings, at least in the United States, and a law that allows people to seek legal redress for someone saying "I disagree with you" is pretty much the poster child for a First Amendment violation. | If I did punch him , would that be okay? No, that would be Assault and Battery. If you did him serious injury you could face a charge of Grievous Bodily Harm. If you killed him, that would be murder. If you are in the UK, Canada or Australia and you were charged with murder you could claim provocation in an attempt to have the charge reduced to Voluntary Manslaughter. If you were in the US you could attempt to argue "extreme emotional or mental distress" if you are in a state that has adopted the Model Penal Code for any of the charges; if successful your sentence would be reduced. I saw people punch one another over this in movies. And I saw aliens invading the Earth in the movies - what happens in the movies if not necessarily true. Kissing my wife is adultery right? No, extramarital sex is adultery. Notwithstanding, adultery is not illegal in common-law countries. I'm pissed and don't know what to do? I sympathise with you but this is not a legal question. Whatever is going on between you, your wife and your neighbour is a social situation; not a legal one. | JeffUK has quoted the relevant law. However the question then becomes "what is an 'offensive weapon'", and "what is a lawful excuse?". Almost anything can be classified as an offensive weapon if you can use it as a weapon. See https://www.askthe.police.uk/content/Q338.htm A lawful excuse is something like "I am going to play baseball, which is why I have a baseball bat". It is emphatically not "I want it for self defence". Specifically, https://www.cps.gov.uk/legal-guidance/offensive-weapons-knives-bladed-and-pointed-articles cites Patterson v Block [1984] 81 LSG 2458 – carrying a weapon for defence can still amount to intent to cause injury So the answer to the OP's original question: Is it legal for a private citizen to carry any kind of weapon for self defence purposes in the UK? is "No". |
What are the laws regulating practical polygamy in US? I can understand that polygamy is illegal. However, some people think that it's simply illegal in a sense that government doesn't recognize it. It's like Sarah can marry anyone she wish but she can't force Bob to celebrate her marriage with Charlie kind of thing. So perhaps Sarah, Janette, Cindy, can all marry Donny but they can't force government to recognize it. So what about if a few guys live together with one girl or the other way around? What about if they call each other husband and wife but do not get government recognition. What laws would get them in trouble? | None. Who you live with & how you live with them are (generally) your business. All laws against polygamy do is impose sanctions if you legally register more than one marriage; legally the first registered is a marriage, all the others are a nullity. This may influence the legal resolution of criminal and civil disputes about the cohabitants as the law treats married people differently from unmarried. If you want to have a relationship between 3+ consenting adults you can call it whatever you like. All the law does is restrict legal marriage to non-overlapping pairs. Polygamy is illegal, polyamory isn’t. | Every state requires at least two witnesses to a will unless it is entirely written in your own handwriting. A lawyer as a witness is fine. A spouse as a witness is not ideal as she would be an interested party if there was a dispute over whether it was executed. It may not be prohibited, but I would never do that in my practice ever. I discontinued a will signing just last week because we only had a lawyer and a spouse and not other witnesses. I would be somewhat concerned. | Actually, there is not a government kill list, that is just a meme. The First Amendment says (starts) "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...". That means a number of different concrete things: there shall be no laws prohibiting any religion, or preferring a religion, not may there be laws impeding or promoting the practice of a religion. The government therefore cannot reward or punish a person for believing in skin walkers, nor for turning themselves into a coyote (if they can do it). The old practice of burning witches at the stake is illegal, similarly at least under current understandings of the law it would be illegal to punish those without a religion with a fine or death. The aforementioned person can thus practice witchcraft – up to a point. One cannot get away with murder by claiming that they are just practicing the Ásatru ritual of blót. Church of the Lukumi Babalu Aye v. City of Hialeah is an example of how the government can not restrict a religious practice (banning animal sacrifices of a particular religion), Employment Division v. Smith is an example of a neutral prohibition which happens to impinge on a religion (outlawing certain drugs limits a religious practice). | The specific venue requirement is ORC 3101.05 which says that Each of the persons seeking a marriage license shall personally appear in the probate court within the county where either resides, or, if neither is a resident of this state, where the marriage is expected to be solemnized. If neither party is a resident of this state, the marriage may be solemnized only in the county where the license is obtained. To possibly make things worse, An applicant for a marriage license who knowingly makes a false statement in an application or affidavit prescribed by this section is guilty of falsification under section 2921.13 of the Revised Code. If they lied on the application regarding the venue, that's a large problem. Otherwise, violating 3101.05 is a minor misdemeanor, which could be a fine up to $150. There is no provision that would invalidate the marriage, other than specified prohibited marriages (not nearer of kin than second cousin, already married). | There are only a few areas of law of which I am aware that U.S. law treats people who are engaged to be married differently (although perhaps with more thought I could expand the list). Fiance(e)s come under a special immigration status when applying for a visa. There is a body of law related to whether an engagement ring is an absolute gift or is conditional upon being married (this is not uniform from state to state and I don't recall what the majority rule in those cases is under the common law). In South Carolina, ownership disputes over engagement rings are litigated as breach of promise to marry actions. Pre-marital agreements governing a future marriage can be made by people who are engaged (although a post-nuptial agreement is also equal in effect in most cases). People who are engaged, like spouses, are generally considered to be in a "confidential relationship" with each other which imposes higher duties with respect to fairness in their dealings with each other than strangers, but generally less high duties than fiduciaries. While not strictly arising from the status of being engaged, adult cohabitants are generally agents for service of process of each other at their shared home, and are often considered to have a legally significant relationship for purposes of domestic violence statutes (usually related to either domestic violence crimes or temporary restraining orders). I am not familiar enough with the law of France to fully answer the balance of the question, which someone more familiar with that law can expand upon. But, there is similarly a special immigration status in French law for a fiance(e). And, French law, in a flourish so romantic it could scarcely be any other country's law, also allows people who are engaged a right to marry after one of them has died in certain circumstances: "The legislation that allows posthumous marriages stems back to when a dam burst in 1959 and killed 420 people in southern France." It was most recently invoked in 2014 when a grieving French woman was granted permission by the French President to marry her former fiancé, who tragically died in 2012, just a month before they were due to wed. To be eligible the bride to be had "to convince the President of France that her’s was a special case and that her love for Michael went beyond the grave. It took four letters to the president and 20 months of waiting, desperately hoping for a positive response." The President's discretion in this matter is somewhat similar to the pardon power in U.S. law. This French law was also invoked in 2009. The law in question is set forth at Articles 171 of the French Civil Code. In English translation this states: Article 171 The President of the Republic may, for serious reasons, authorize the celebration of the marriage if one of the future spouses is dead providing a sufficient gathering of facts establishes unequivocally his consent. In this case, the effects of the marriage date back to the day preceding that of the death of the spouse. However, this marriage does not carry with it any right of intestate succession to the benefit of the surviving spouse and no matrimonial regime is considered to have existed between the spouses. I am aware of one documented case where a court entered a post-humous marriage in the United States between people who were engaged, but I am not familiar with any legal authority actually authorizing that action. | The details depend on the state, of course. The common law thing you are looking for is a writ of mandamus -- a court order to a public official to do something (or not do something) that they are required to do under the law. Writs of mandamus were traditionally only applicable to ministerial tasks (i.e. things that are basically paper-shuffling where there is little to no discretion); marriage licenses are typically considered ministerial. With discretionary actions, things are much more complicated because the government official is supposed to have significant ability to decide what should and shouldn't be allowed; mandamus doesn't apply unless there's a right to the action requested. In some cases, mandamus has been replaced with other forms of judicial review, but in Alabama it is definitely still mandamus that's involved (source: mandamus is what's previously been used to stop issuance of licenses). For federal review, which is more likely to get somewhere, the approach to use is the exact same thing that led to DeBoer (the case bundled into Obergefell that was about granting licenses), and Perry, and many of the other gay marriage cases: a lawsuit seeking an injunction or declaratory relief under 42 USC 1983, which allows actions in law and equity whenever anyone denies civil rights to a US citizen (or someone in the jurisdiction of the US) under color of law. The ultimate result of this kind of suit is a federal court order to issue a marriage license, or a declaration that it's illegal to not issue the license (and so anyone who doesn't will be subject to a court order). Violating this order, like any court order, is contempt of court. | 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.) | That depends entirely on the laws of the country involved. Some countries do make having homosexual relations a crime, indeed a very serious one. I haven't heard of one which prosecutes for being in a same-sex marriage or relationship entered into in another country, but such a country could hold such a trial if it chose to. Perhaps more likely, if a same-sex couple visited such a country, evidence of a continuing same-sex relationship might be treated as evidence of same-sex sexual acts, and thus of a crime under that country's laws. |
Castle Doctrine as it applies to unruly Guests If you have a guest at your house in Texas, United States that has started acting in an unpredictable and threatening way that will not leave, does the castle doctrine apply in getting them to leave? This particular situation pertains to my 15 year old son and a 24 year old guest that was yelling, cussing, and acting very unpredictable towards him. I'm sure he felt threatened, but I am not sure as to what extent. | Does the castle doctrine apply in getting them to leave? No Short Answer: Reasonable force may be used to remove the guest as they have become a trespasser - killing them in the circumstances described would be unreasonable and excessive force. Long Answer: The Texas Castle Doctrine, referred to as Deadly Force In Defence Of Person at section 9.32 of the State Penal Code, can only be used in response to another's use (or attempted use) of deadly force or to prevent certain violent crimes: (a) A person is justified in using deadly force against another: (1) if the actor would be justified in using force against the other under Section 9.31 [Self Defence - see below]; and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery [...] Deadly Force is defined by section 9.01(3) to mean: ... force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. Note that justification for the Self Defence provisions at section 9.31 expressly exclude such things as mere "yelling and cussing" but (if the circumstances are such) "acting very unpredictable" may be applicable if it meets the criterion for attempted unlawful force: (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. [...] (b) The use of force against another is not justified: (1) in response to verbal provocation alone; [...] However As the guest "will not leave" it can be safely assumed that their conditions of entry in to the house have been withdrawn making them a trespasser which is covered by the Protection Of One's Own Property provisions at section 9.41: (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property. [...] My links to the Penal Code may not go directly to the section described, so a word search using the section numbers may be required. | It is illegal to sell alcohol to a minor in Washington (RCW 66.44.270). The seller can get into various kinds of trouble, including losing their license, under liquor board regulations. However, as long as the establishment follows the rules for acceptable ID, they escape liability if in fact they sell alcohol to a minor: the license holder is legally allowed to accept an identification of the specific type. That is the sense in which this is required by law: the customer must have actually presented the identification, in order for the establishment to escape liability (RCW 66.20.210). Looking old enough is not the issue. It is legal to sell alcohol to a person who is over 21, and the law does not require presentation of identification as a condition for a sale. However, under RCW 66.20.180 a person is require to produce ID "upon request of any licensee, peace officer, or enforcement officer of the board". The legal risk attached to sales in an age-marginal situation is very high, and actual presentation of ID is required to escape liability by the establishment, so in that sense, it is "required by law". All requests to produce ID for liquor sales (at least in Washington, and leaving out deliveries which are governed by other laws) are driven by company policy. Typical policies are quite rational, being designed to protect the company's interest in not getting into a heap of trouble for an under-age sale. There is no law saying when you must ask, or when you are protected if you don't ask. Usually, store policy is to use "common sense" so that 90 year olds are not required to produce ID (they may be asked, jokingly). Non-compliance with RCW 66.20.180 carries no legal penalty, that is, there is nothing in the statute that says "if the customer doesn't...". The most obvious would be that the seller would refuse to sell, which the seller can arbitrarily do anyhow. There is no statutory penalty imposed on a licensee if they request ID of a person over 21 and the person fails / refuses to produce the ID. Obviously, the licensee cannot be punished if a customer fails to provide ID (and leaves), especially if they lost it. But the law "requires" them to provide an ID, with ne except "unless you leave / put the bottle back". Somewhat less obviously, if the legislature wants to, it can enact a provision that once a licensee requests ID, they are forbidden to sell alcohol to that customer until ID is provided. But there currently is no such law. "The law" also included regulations, such as WAC 314-17-105. This regulation is a chart, and the relevant entry is PERMIT: Failure to produce permit or identification upon request. See RCW 66.20.310 and 66.20.180. for which the 1st offense consequence is "5-day permit suspension OR $100 monetary option". This is a problematic regulation (potential lawsuit fodder), since it can be interpreted in a number of ways. The question is, of whom is the permit or identification predicated? Only the licensee has a permit, but customers and employees can both have identification. If we interpret this regulation as meaning "Failure by licensee or customer", then we arrive at the absurd conclusion that if a customer fails to produce ID on request, the establishment is fined. It is important to note that this regulation is under a chapter about server training, thus the regulation can only reasonably be interpreted as being about licensee providing identification. | In Germany, the noise of playing children is defined as not noise according to §22 BImSchG. Normal industrial/commercial limits do not apply. This aims mostly at playgrounds, kindergartens, etc. The noise of cars, stereos, etc. is not unlimited even before 22:00, but it is considerably harder to get the police to intervene during daytime. You might consult with a lawyer to find out if they are unreasonably noisy, you are unreasonably thin-skinned, or both. Similarly, the driving you describe may be violating traffic regulations, but proving that will be difficult. As to actual damages to your premises, what happens depends on the age of the children and if they had proper supervision by their guardians. Proper supervision does not require the guardians to stand next to the children around the clock. If you have a specific case, and if the "perpetrator" was over 7 years old, you can ask for repayment and then sue if they refuse. This is most likely more hassle than the damage is worth, even if you do get a judgement against a minor, but it could change the tone of the relationship with your neighbours. They would have to explain in court what they did to supervise their children ... | 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. | No one can tell you how the facts are going to line up if you get sued. The attractive nuisance doctrine is alive and you can be found liable if you have, on your property, a dangerous condition which is attractive to children, especially if the danger is not appreciable to the child. Now, I'm a bit skeptical that a child would climb a fence to kick snow, especially if there is other snow outside the fence for them to kick, but stranger things have happened. What can you do? These are ideas, I don't think they are legal advice. Start with the premise that dangerous stuff happens everyday, and kids aren't getting hurt by most of it. Use a fence with barbed wire. In other words, injured the the child with a lesser injury to reduce your liability. Use an opaque fence. Granted, curiosity might be too great and a child will trespass to discover what you are hiding. Use a shed, just one of those thin aluminum structures. Include proximity sensors to set off alarms and lights and whatever. Get your project away from kids; find space in a commercial area. | An obvious example would be a contract that gives possession of something to someone else. It's normally legal to use some reasonable amount of force to protect or prevent trespasses against property you own, but if you give possession of that property to someone else you can lose that right. For example, you can use force remove a guest who refuses to leave real property you own, but can't use force to remove a tenant even if they broke the terms of your contract. In most jurisdictions you'd need to get a court order and have the police use force if necessary remove the tenant. | An example of where this is not allowed is Seattle, WA. Municipal code SMC 12A.06.025 states It is unlawful for any person to intentionally fight with another person in a public place and thereby create a substantial risk of: Injury to a person who is not actively participating in the fight; or Damage to the property of a person who is not actively participating in the fight. B. In any prosecution under subsection A of this Section 12A.06.025, it is an affirmative defense that: The fight was duly licensed or authorized by law; or The person was acting in self-defense. You can see from adjacent sections that "mutual combat" is not legal. I recognize that there is this meme about Seattle, but this is a distortion of an incident when the police turned a blind eye to a fight. We have police issues, no doubt: there is nothing legal about such fights. Of course, for a licensed event, you can "fight". Of course the potential legality depends on how mutual combat is defined. Illinois v. Austin 133 Ill.2d 118 and citations therein, subsequently Illinois v. Thompson, 821 NE 2d 664 define it thus: Mutual combat is a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat. Similar death-definitions are found in Donaldson v. State, 289 SE 2d 242, Iowa v. Spates, 779 NW 2d 770. The law looks askance of such behavior. For the sake of clarity, a term other than "mutual combat" would be preferable. | An act in self defense is legal (StGB §32): "(1) Whoever commits an act in self-defence does not act unlawfully". However, "(2)'Self-defence' means any defensive action which is necessary to avert a present unlawful attack on oneself or another" – removing a trespasser is not necessary to avert an unlawful attack. This does not apply to removing an annoying person. Under §223, physically assaulting a person is a punishable offense. Pushing a person is one form of assault (so is punching them or pummeling them, perhaps a more severe form depending on the physical damage done). However, the response is also criminal because it goes past that which is necessary to avert the assault (a push is not a license to commit mayhem). Under §§33-35 there are defenses for excessive self-defense ("Whoever exceeds the limits of self-defence due to confusion, fear or fright incurs no penalty"), which don't seem applicable in this situation (rage is not the same as fright). |
Does grabbing someone by the jacket constitute assault? What is considered assault in England ? An example Person A swore at Person B and was grabbed by the jacket by person B in a casino. Has Person B committed assault even though person A may have verbally offended person B? | Has Person B committed assault even though person A may have verbally offended person B? Yes An assault is any act (and not mere omission to act) by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence. The term assault is often used to include a battery, which is committed by the intentional or reckless application of unlawful force to another person. source Under common law, the use of force against another must be proportionate and justified, but not excessive in the particular circumstances - Person B's retaliatory assault (and battery) does not appear, according to the details in the OP, to meet this criteria. See palmer v R (19711) AC 814: It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. | england-and-wales Q: Is it an offence if the target of racism only appears to be of/from a different race, colour or national or ethnic origin? Yes Q: If someone carries out an alleged act of racial discrimination / intimidation / abuse (verbal or physical) against someone they believe to be a target person, would it be a defence (or would it not be an offence), if it turns out that the other party was not actually a target person, but just gave the appearance of being a target person? No Short answer: The victim's actual, or perceived, race is not important in this context - it's the actions and intent of the offender that creates the various offences which carry a higher sentence due to the racist element being an "Aggravating Factor" Long answer: (Just in the context of race-related "hate crimes") DISCRIMINATION falls within the Equality Act 2010 which primarily relates to unlawful discrimination within employment, or the provision of goods or services on the grounds of a person's protected characteristics defined by s.4: The following characteristics are protected characteristics — ... race ... s.13 creates the offence: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. ... (5) If the protected characteristic is race, less favourable treatment includes segregating B from others ... s.26 of the 2010 Act also creates an offence of harrassment (although it is primarily concerned with unwanted and unwarranted sexual advances it is not exclusively so): (1) A person (A) harasses another (B) if — (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. ... (5) The relevant protected characteristics are — ... race RACIALLY AGGRAVATED OFFENCES are created by s.28 of the Crime and Disorder Act 1998 and carry are greater maximum sentence than the equivalent non-aggravated offences: An offence is racially ... aggravated for the purposes of sections 29 to 32 below if — (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial ... group ... s.29 relates to certain assaults under the Offences Against the Person Act 1861 s.30 relates to certain offences under the Criminal Damage Act 1971 s.31 relates certain to offences under the Public Order Act 1986 s.32 relates to certain offences under the Protection from Harassment Act 1997 OTHER OFFENCES fall within s.145 of the Criminal Justice Act 2003 which captures those not dealt with by the 1998 Act and requires the court to, for example, impose a sentence greater than it would for a comparable offence that lacks a racist element: (1) This section applies where a court is considering the seriousness of an offence other than one under sections 29 to 32 of the Crime and Disorder Act 1998 ... (2) If the offence was racially or religiously aggravated, the court— (a) must treat that fact as an aggravating factor ... | Yes. This is clearly kidnapping. It is probably not a terribly aggravated sub-type of kidnapping, but it is kidnapping nonetheless. It is probably a felony. The fact that the victim does not press charges, or ratifies the conduct after the fact, does not change the fact that a crime was committed. The police decision to arrest the ex-boyfriend was entirely proper. It was not a false arrest. They had probable cause to believe that a crime was committed by the ex-boyfriend, and, in fact, a crime actually was committed by the ex-boyfriend. In the United States, the prosecutor has full authority to prosecute the ex-boyfriend to the full extent of the law for felony kidnapping for his conduct, over the objections of the victim. The decision to prosecute or not is entirely in the discretion of the prosecutor who brings criminal charges on behalf of the state and not the victim. Often the police and prosecutors will honor a victim's wishes, and this appears to be what happened in this case, but they are not required to do so, and could change their minds and bring charges in the future against the ex-boyfriend within the statute of limitations, if they wanted to do so. (This analysis does not apply in countries with Islamic law, but the facts of the question suggest that Islamic law does not apply in this jurisdiction.) | Would any offence be committed for: Having this on your person? Buying or selling this? Leaving it around for people to plug in to a computer? In the abstract, I don't think that this conduct would violate either Section 36 of the U.K. law or U.S. law, although, obviously, purposefully destroying a computer itself (i.e. actually using the device without the consent of the owner of the computer) would violate many U.K. laws and would also violate many U.S. laws at both the state and federal level. I also don't think that possession or buying or selling this product would be a crime absent some intent that it be used illegally, in which case there might be an "attempt" to commit a crime offense, or an offense that would make one part of a conspiracy to commit a crime. In the "leaving it around" example, there is arguably an intent to use it to harm another improperly, although the phrasing is ambivalent. While many statutes in the U.S. criminalize possession of burglary tools, or drug paraphernalia, sometimes with an associated intent element (although even these crimes often have an express or judicially implied intent to use element), I'm not aware of any statute that criminalize possession of tools for malicious destruction of property. So, if the tools aren't possessed or used in a manner intended as a step in the facilitation of a crime, I don't think that any law is violated. So far as I know, the U.S. does not have a counterpart to Section 37 of the British statute cited above (it isn't a terribly easy thing to search for to definitively rule out the existence of such a law because federal law has many uncodified crimes in unexpected statutes and there are many sets of state criminal statutes, not all of which are codified either). The example giving in the comments by @gnasher729 of possession of a hammer which could be used to do the same things that this object could be used to do is instructive. Arguably, this USB-like tool is more specifically targeted at malicious conduct. But, for example, when I used to work as a radio news reporter, we had a machine that was basically a high powered magnet that was specifically designed to destroy all information on magnetic media. This was, in part, so that it could be reused, but it was also so that confidential interviews wouldn't fall into the wrong hands once they were no longer needed, in much the way that one might shred paper documents. It isn't so implausible to think that a device like this one might be necessary for individuals or firms with national defense secrets embedded in their hardware and software to have on hand in order to destroy a sensitive computer in order to prevent a security breach, if necessary. In a case like that, leaving one of these devices around the office unlabeled might be negligent, but wouldn't have the intent necessary to be an intended crime. And, it is hard to imagine that the device itself, which seems pretty simple, would itself involve any technology that is a national security secret, so it probably wouldn't violate export control laws. Of course, possession, purchase or sale of such a specialized device, or leaving it around unlabeled would certainly be powerful evidence of an intent to use the device in a wrongful manner, and hence, of an attempt to commit a crime. Indeed, possession of such a device or purchase of one might very well be sufficient to establish probable cause to seize the device and arrest the person holding it on charges of an attempt to destroy a computer. But, this device would be merely powerful evidence of an intent to commit a crime, rather than something that is a crime to commit in and of itself. There are no international laws that govern this kind of thing. The only international laws applicable to individuals pertain to war crimes and nuclear and chemical weapons. Even then, most international laws direct member nations to adopt domestic laws on the subject rather than being self-executing. | The landlord is not free of liability risks. In California, everybody is responsible for injury brought about by lack of ordinary care or skill in management of his or her property or person. This applies to landlords, falling under Business Proprietor’s Liability for the Criminal Conduct of Others. Therefore the landlord must use reasonable care to protect tenants and guests from another person's harmful conduct on the property if the conduct can be can reasonably anticipated. The duty is towards anyone on tenants and guests alike. To figure out whether the landlord has breached his duty of care, the courts will "balance" the probability of harm to the tenant with the burden of the duty imposed on the landlord to prevent or mitigate the risk of harm, see Vasquez v. Residential Investments, Inc., 118 Cal. App. 4th 269. In that instance, the landlord failed to replace a missing pane of glass on the front door, contributing to the tenant's murder, for which the landlord was held liable (wrongful death). This ruling has extensive discussion of that balancing act. The crucial question is, how did the assault happen, and how do the landlords actions relate to the assault? The answer may be different in other jurisdictions. In the modified scenario, liability would hinge on scenario details (I'll continue to assume California). The factual question is whether in light of the background check, the assault was foreseeable, and to what extent it was preventable – what did the landlord do wrong? For instance, if the criminal history check revealed a number of arrests for assault in the state and the check was limited to CA (the new tenant moved to CA just a year ago), and if the assault was in old-tenant's room which had no lock due to landlord indifference, then the landlord is more likely to be held liable (he could have fixed the lock for a few dollars, or paid for a better criminal check). On the other hand, if a thorough criminal check reveals no arrests or complaints for anything, anywhere, and the assault happened in the common area while talking politics, there is no reasonable course of action that the landlord could have undertaken to prevent the assault (hiring 24 hour guards would not be reasonable, in this scenario). In Vasquez, the issue came down to the landlord's failure to implement a cheap fix on the front door. In a third version of your scenario, suppose that there was some evidence of past violent behavior, but the only fault that could be assigned to the landlord is the fact of renting to the new tenant. Does a landlord have a duty to deny housing to a person with a past record of violent behavior? It is legal in California to do background checks and deny a prospective tenant a lease based on existing criminal history, as long as the criteria are applied consistently (not discriminatorily), and not in a jurisdiction where criminal checks are illegal (Oakland). There is a non-fantasy scenario where that includes "the US", given a guidance from HUD, based on a disparate impact analysis. HUD says that a housing provider excluding applicants with arrest but no conviction "cannot satisfy its burden of showing that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest". If there are convictions and there is a blanket no-convict policy, the provider must still be able to prove that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. A housing provider that imposes a blanket prohibition on any personw ith any conviction record –no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden If it is illegal to discriminate on the basis of past convictions, a landlord cannot be held liable for obeying the law. In short, "it depends (on minute details and whether the plaintiff's lawyer makes the necessary arguments): ask your attorney". | Probably not new-south-wales s91Q of the Crimes Act 1900 NSW makes intentionally distributing intimate images a) without consent and b) knowing they did not consent or being reckless as to consent. The person in question has been told that intimate images sent to this destination will be shared. Their sending them after this is probably consent. | Illegal weapons Weapons are defined and are made illegal by statute. In many states, it is illegal to possess brass knuckles. For example, California penal code 12020(a)(1) makes it illegal to possess "any metal knuckles", "writing pen knife", "any leaded cane", among other things. I don't know of any state where it is illegal to pick up a stick, or keys, etc. So, yes, there is a legal distinction between your four scenarios. The mechanic is committing a crime by merely possessing the brass knuckles. The others are not committing a crime by the mere possession of the things you mention (unless there are states where they've been made illegal). Effect on a self-defense analysis Courts would have the jury go through the same self-defense analysis in each of these cases, regardless of the legality of the weapon used. We've described that analysis here. A pure self-defense analysis does not factor in the legality of the weapon that is used. But, if the weapon has been made illegal because of its disproportionate ability to injure, etc. that might weigh against the reasonableness of the force that was used when choosing to use that weapon in self-defense. Possession of an illegal weapon might also weigh against the credibility of the owner of that illegal weapon. | The first thing it depends on is where you live. The US has no law requiring niceness, but perhaps niceness-enforcement exists somewhere in the world. The second thing it depends on is exactly what he does, where and how. If he comes into people's houses uninvited and starts harassing them, that is generally a crime. If he makes nasty remarks to people walking down the street, you can't even sue him. If the person commits in a crime, you can report him anonymously. However, for there to be any prosecution, someone will have to testify in court: anonymous criminal testimony is inadmissible in the US. If there is no crime, just a potential civil action, the part would hire an attorney to file a complaint, etc. and that party would be named (not anonymous), would have to testify, and would also have to have been harmed. The police will not get involved in a civil dispute. Based just on what you have said here, your attorney would very likely say that there is no case to be pursued, and your only solution is to ignore him. |
Can one claim copyright over a compilation of (public) data? Let's say I build some sort of index, like my own selection of websites for a particular niche of the internet. I publish this as "Almosnow's Best Selection of Nature Websites" (for instance). Obviously this compilation took me some time to create and I would like to limit access to it and profit from it, if possible. Can I claim rights over my particular selection of such things as an original work? | If there is judgement and creativity used in the selection of the list, that selection is protectable by copyright under US law, and under the laws of many other countries. The standards vary, but in most cases the degree of creativity required is low. In the US the "time and effort" put into the list is not relevant, it is the degree of originality and creativity that matters. This is not true in all countries. If the list includes comments on individual list items written by the list creator, those comments would normally be protected by copyright, even when the list as a whole is not. If the list is ordered in some creative way, the ordering would also be protected, such as dividing the list into categories. an "obvious" ordering such as alphabetical is not subject to copyright protection. However, that these various web sites exist at particular addresses is a fact (or a set of facts) and facts are never protected by copyright. If someone produces a different list, that includes many but not all of the same sites, and some other sites, it is probably not infringement even if your list was used as one source for the newer list. If your list makes a serious attempt to include every nature website, and no selection is done, there is actually less creativity in the selection than if some judgement is used on what to include and what to omit. In that case, another list that also includes every nature website may not be considered an infringement. See Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991) in which one company copied a telephone book published by another company. Because there was no selection (everyone in the designated area was included) and the order was obvious (alphabetical), the US Supreme Court rules that there was no originality, and there fore no copyright protection in the book, and copying it was not copyright infringement. Feist is now a key case on copyright law in the US, and is followed in some other countries. | 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. | If you do, can you build/run it without being bound by said license? No, you cannot. Because there is no way to "build/run" it without making a copy. You copy the sourcecode, before you can run your compiler. That is the copy you are making, not copying the file that results from this process. A valid question might be, are you bound by the license? Well, that is up for lawyers and a court to decide, but in all countries I know, copyright is automatic for anything worth copying. And the copyright holder can grant licenses to people to allow things. So arguing you are not bound by a specific license would mean you would argue that you are bound by the legal default, which in most countries is "You cannot copy that. At all. Unless you have explicit permission". That argument would sound like "I stole all 10, because the offer of buy-one-get-one-free was not legally binding". Maybe it wasn't. But that doesn't mean you get to do something unrelated illegal instead. Now, there are many exceptions for "personal use". You can sing any song in the shower. I would assume you can compile any program there, too. You just cannot use that program for anything worthwhile, the same way you cannot record your song in the shower and sell it. | From your question(s), as well as your various comments, I understand you to have two general inquiries: 1. Is there any infringement of copyright laws if you use things like the titles of books, games, apps, names, address (and any other number of things) which you will then put into datasets that will be licensed for proprietary commercial purposes? You may freely put titles, names of people, places or things into datasets without fear that you are infringing on copyright or any other laws. That is clear. Copyright law does not protect names, titles, short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive it cannot be protected by copyright. So, there is no point in discussing the doctrine of fair use in this context, because Fair Use is a defense, or a legal safe harbor that is merely an exception to copyright infringement allowing people to use a copyrighted works under specific circumstances. As I understand your intended endeavor, you will not be infringing on any copyrights to the extent that you are merely using factual data, like names of copyrighted things for the purpose of creating a dataset or an application to help access it. This is why I say you need not concern yourself with the test for Fair Use with regard to this issue. The Copyright Office states clearly, despite what people may think, that there are no exclusive rights in brief combinations of words such as: • Names of products or services • Names of businesses, organizations, or groups (including the names of performing groups) • Pseudonyms of individuals (including pen or stage names) • Titles of works • Catchwords, catchphrases, mottoes, slogans, or short advertising expressions • Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable. Hence, these things are not registrable under a copyright. While something may be potentially attached to or included in copyrighted material, is not in and of itself subject to the protections of these laws. If it (whatever it is) cannot be registered for a copyright, it is not copyrightable. Because copyright registration/notices have been optional since 1989, when the U.S. attached itself to the Berne Convention, whereby copyright protection is automatic as soon as a work is “fixed in a tangible medium of expression” (written down, recorded, painted, etc.) it’s protected. No notice is required. Registration only becomes required for litigation or enforcement purposes. But this is really extraneous to your inquiry anyway, as far as it applies to the actual data. When you get into copying whole databases for your purpose, that analysis is different. 2. You want to "scrub" the internet for information that you intend to put into your proprietary datasets and use for commercial purposes, some or most of which is already in a database or some organized form, and you want to know if there is some sort of copyright or duty owned to the person who originally databased the materials? Since ideas, procedures, principles, discoveries, and devices are all specifically excluded from copyright protection, if you want to compile this type of information from the internet for the purpose of creating datasets, or searchable databases, this is permissible. That said, there are protections for existing databases under copyright law, provided under the concept of a "compilation copyright". A compilation copyright protects the collection and creative assembling of data or other materials. Compilation copyrights protect the collection and assembling of data or other materials, such that databases are generally protected by copyright law as compilations. Under the Copyright Act, a compilation is defined as a "collection and assembling of preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship." 17. U.S.C. § 101. The preexisting materials or data may be protected by copyright since the selections of materials and the form they take in an existing database may be original enough to be subject to a copyright. However, the data itself is merely information and is not protectable. The Copyright Act specifically states that the copyright in a compilation extends only to the compilation itself, and not to the underlying materials or data. 17 U.S.C. § 103(b). As a result, "compilation copyrights" can't be used to place protection upon those things that are otherwise not protectable. In the case of Feist Publications, Inc. v. Rural Telephone Service Company, Inc., the U.S. Supreme Court ruled that a compilation work such as a database must contain a minimum level of creativity in order to be protectable under the Copyright Act. Feist makes clear that even a copyright protected database does not hold the right to prevent an individual from extracting factual data from the database (so long as you're not copying the entire database as a whole). If you take an already compiled and copyrighted dataset in its entirety, you must obtain a license for its use. However, if you are merely amassing great amounts of data to then put into your own dataset, that you are free to do. The big issue will be (and you seem to realize this) where you will amass this data from. Some websites have specific licenses in place that say you cannot use or rework their content. However, many times these websites simply throw these license requirements out there for users to see, despite the fact that they may not be (and some would argue) are not enforceable. The courts have heard arguments that "contracts" (the end-user licenses) that protect databases and information on websites is beyond the protection available through copyright law should be "preempted" by the Copyright Act itself. The preemption argument goes like this: Federal law controlling something that is subject to interstate commerce or use, should be controlled by the federal laws. So,since the federal government has enacted the Copyright Act to govern any protections to any original works, states should be (arguably are) prohibited from having contradictory laws. Because of the ability of a federal statute to preempt state law, and the fact that the Copyright Act at 17 U.S.C. § 301 sets forth specific preemptions, no state may create rights that are equivalent to any of the exclusive rights provided under the Act. It is this concept of preemption that prevents copyright protection from varying depending upon the state where a work of authorship is created. Arguably, the same is true for the internet, and supposed contractual relationship created through licenses that dictates how non-copyrightable material may be used. In the case of ProCD, Incorporated v. Matthew Zeidenberg and Silken Mountain Web Services, Inc. the court examined whether an end-user of a CD ROM phone database was subject to the license, when they extracted a large portion of the database and made it available over the Internet. The database was almost the same as the type of data in the Feist case-The lower court rejected all copyright claims and found that the shrinkwrap license that controlled the end user's right to use the data was both unenforceable (as a shrink wrap license) and preempted by the Copyright Act. As a result, there was no relief available to the creator of the phone database and the end-user was free to extract the data and use it as he saw fit. However, on appeal this decision was reversed (7th circuit). The appellate court did acknowledge that the database (on the CD) was not original enough to be protected by copyright (finding no copyright infringement by the end-user); However, they did find the end-user was breach of contract, since the shrink-wrap license prohibited the end-user's conduct. What this tells us is that these licenses (on websites) may or may not be enforceable. While the 7th Circuit found a contract right pursuant to the license, despite the preemption argument, another appellate court that is more liberal may find otherwise. Also, this was a disk, not the internet, which is the "wild west" of information, largely unregulated and unlitigated as it pertains to the legality and enforceability of (some) regulations that do exist. License agreements for site use on the internet are everywhere. If you take a database from some site that has a license saying you cannot take their work and add to it, or whatever, and you do add it to other databases that are not licensed and then make your own dataset - chances are you are NOT going to be infringing on anyone's copyright. That said, you may be in breach of contract (the license) if they find out about it, and sue you (using it doesn't put you in breach; only getting sued and having a court determine you're in breach puts you in breach. It may be a distinction worth contemplation, but that is up to you). The safest, bet would be to get a license from them to rework the materials. If the material is generic enough, and will be changed enough, that you are creating your own new (copyrightable) work - I'm not sure how they would know you "scrubbed the data in contravention of their license agreement ( I have NO CLUE if there is coding or metadata attached to it such that it's identifiable in that way. I have not tech background and do not endorse taking what's not yours). But if they can and do know, they could cause problems for you. Lastly, I will just say that the internet is littered with sites that claim copyrights, or impose unenforceable licenses on material that is ripe for public use. Just because it says it's theirs does not make it so. The inverse is also true. Just because a site does not claim copyright to something, does not mean it is in the public domain. I would recommend either sticking to public domain/use sites for your scrubbing endeavors, or seeking permissions from the sites who impose licensing requirements. Short of that, I would recommend (as I already have) seeking an formal legal opinion to say that you are not imposing on anyone's copyrights (this could only be done once you showed an attorney every place you took material from, as well as what the material is), and that the licenses from sites with generalized information that may try to limit use, are unenforceable. I would do this before you invest a lot of time or money into something that is largely based on the accumulation of other peoples work product. I wish there was an answer certain, but there just isn't without seeing everything in the end. | It depends. Wikipedia is quite strict on its policies, and it only allows uploading images (and other media) that either are in the public domain or with a licence that allows to be reproduced (often, Creative Commons, CC). If you go to the details of the image it claims that the picture is licenced under CC, with attribution to Saffron Blaze. So most probably Saffron Blaze got permision to take the picture, and he distributed it with the CC-Attribution licence. When scrapping a web site for data, Google and other engines usually search for metadata (the robots.txt file) that tells them what to index and what to not. If a user gives them permission to index a picture by not stating restrictions in the robots.txt, they can do index it. Of course, in both cases it might be that someone uploads a picture that he does not have permission to share. In this case the situation will, of course, depend on jurisdiction, but many laws have provisions that ensure that, if the content provider is dilligent in addressing copyright issues caused by the users, they are protected. For example in the USA the Digital Millenium Copyright Act establishes "safe harbor" provisions that protects content providers if they give a way to denounce copyright infringiments and address those in a given timeframe. | Well, actually, fair use is maximally relevant. Copyright means, put simply, DO NOT COPY. Citing or not is irrelevant (plagiarism is a whole other non-legal kettle of fish). Technically, what you describe is violation of copyright. However, under section 107 of Title 17 (the copyright law), you could attempt to defend yourself against an infringement suit on the basis that your action was "fair use". See this LSE q&a for the essentials of fair use. | It would seem that your song is a derived work. You took the original work and found words that sound the same. If the original work had used different words, your work would have ended up differently. So you have a derived work. Same as making a translation; if the original was different, then the translation would be different, so the translation is a derived work. I was asked "How is this not straight up infringement". But it is. Not only copying is an exclusive right of the copyright holder, but also the creation of derivative works. | You can report it to the publisher(s) Protection of copyright is a matter for the individual rights holder: some (I’m looking at you Disney) are vigilant, thorough and draconian in protecting their rights, others don’t care at all. Unless you are the rights holder it’s none of your business. In much the same way that the guy charging your neighbour for 4 hours gardening but being long gone in 2 isn’t. If you like your neighbour or feel duty bound to do something, you tell them and then leave it to them what they do with it. This is not a matter for the authorities as it doesn’t rise to the level of criminal copyright infringement. Just like the gardener above, this isn’t a crime. |
Is police report inadmissible when the cop who wrote it is not available to testify? Say a cop conducted a crime investigation, interviewed the person of interest (later charged with the crime) and wrote it all down in a report. When the trial comes, the cop is no longer available (resigned and can't be located, dead etc.). Will the report be inadmissible? My understanding is yes, because it will be hearsay: a statement by a person other than a witness, offered to prove the truth of it contents (the contents being that the defendant indeed said the words that the report says he did when interviewed). But maybe there is some sort of exception to the hearsay rule which allows such reports in? Guess the scenario in question will not be uncommon. | Police reports are treated as "Business Records" and are therefore not excluded by the hearsay rule, regardless of the availability of the declarant. Federal Rules of Evidence, Rule 803: Exceptions to the Rule Against Hearsay Business Records Exception The following are not excluded by the hearsay rule, even though the declarant is available as a witness: Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. I suppose a valid defense in this case would be to bring into question the "trustworthiness of the preparation" (via 803(8)(B)), but it is still admissible. Admissibility of Police Reports A number of courts have held that a police report otherwise excluded by Rule 803(8) is admissible under the hearsay exception for recorded recollection in Rule 803(5). On the other hand... At least one court has held that the recorded recollection exception does not allow the admission of a police report that is excluded by Rule 803(8). Offering another reason for the exclusion, the court observed that such reports, particularly when they concern on-the-scene investigations, are considered less reliable than records prepared by other public officials because of the adversarial nature of the confrontation between the police and the defendant in criminal cases and the likelihood of the report’s use in litigation. See United States v. Pena-Gutierrez, 222 F.3d 1080, 1086–87 (9th Cir. 2000); see also State v. Harper, 96 N.C. App. 36, 40–41(1989) (recognizing this rationale in finding police report inadmissible under Rule 803(8); court did not address admissibility under other rules). Recognizes the conflict of interest police have when recording evidence against a defendant, so it may be possible to argue admissibility in that way, but it seems most courts do not follow this line of thinking. | The Evidence Would be Admissible. Under the so-called "good faith exception" to the exclusionary rule the evidence would probably be admitted over Bob's objections in both cases mentioned in the question. Recent US court decisions have limited the exclusionary rule when police officers reasonably but mistakenly believe that a valid warrant exists, and find evidence acting under such an apparent warrant. However, if there is good evidence of intentional falsification by the police, the exception will probably not apply. As to the second case, where Bob is home and protests that an error is being made, police are not required to, and often do not, accept much that suspects or subjects of warrants say in their own defense. If anyone could simply claim there was an error and delay a warrant, perhaps giving time to dispose of evidence, many problems would result. However, the "good faith" exception only applies where the police reasonably and honestly believe that the warrant is valid, or that probable cause exists. If Bob says something such as: This warrant is for 1020 Anne street, where Alice Crook lives. But I live at 1050 Albert street. See the house number is 1050 right here. There must be a mistake. then a reasonable officer would probably double check the warrant, and if the officer unreasonably fails to do so, the search might later be suppressed. But this is going to be a very fact-sensitive inquiry, and none of the cases that I know of on the "good faith exception" rule are exactly on point for this situation. I cannot be sure how a court might rule in such a case. Leon and Evans Cases In United States v. Leon 468 U. S. 897, the US Supreme Court created a "good faith exception" to the exclusionary rule. In that case the Court held that when officers make an objectively reasonable, good faith decision to rely on a warrant later held to be invalid, the exclusionary rule does not apply, and evidence found during a search under such a warrant, or in the course of an arrest under such a warren, is admissible. The basic logic is that when the invalid warrant was the result of an honest mistake, suppressing the evidence would have no deterrent effect on future similar mistakes, as no one intended to make them in any case. In Arizona v. Evans 514 U. S. 1 (1995), this rule was extended to officer who rely in good faith on information mistakenly provided by Court employees. The underlying logic is much the same. Herring v. United States In Herring v. United States, 555 U.S. 135 (2009) this exception was further extended to officers who acted in good faith on the mistaken information of other officers. Evidence found in a search incident to an arrest, although there was no valid arrest warrant or other probable cause, was not suppressed. In this case a warrant had been issued but later recalled. however this recall was somehow not properly entered into the database of warrants maintained by a sheriff's office. When a nearby jurisdiction called to ask if there was an outstanding warrant on Herring, they were told that there was one. Herring was arrested, and drugs and an unlawful firearm found. Minutes later the officers were told that the arrest warrant was not valid. Herring was convicted based on the evidence from the search, and the US Supreme court upheld the conviction. The court wrote in Herring: When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation. The very phrase “probable cause” confirms that the Fourth Amendment does not demand all possible precision. And whether the error can be traced to a mistake by a state actor or some other source may bear on the analysis. For purposes of deciding this case, however, we accept the parties’ assumption that there was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied. The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213, 223 (1983). Indeed, exclusion “has always been our last resort, not our first impulse,” Hudson v. Michigan, 547 U. S. 586, 591 (2006), and our precedents establish important principles that constrain application of the exclusionary rule. ... the exclusionary rule is not an individual right and applies only where it “ ‘result[s] in appreciable deterrence.’ ... When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted “in objectively reasonable reliance” on the subsequently invalidated search warrant. 468 U. S., at 922 (Leon). We (perhaps confusingly) called this objectively reasonable reliance “good faith.” In a companion case, Massachusetts v. Sheppard, 468 U. S. 981 (1984), we held that the exclusionary rule did not apply when a warrant was invalid because a judge forgot to make “clerical corrections” to it. ... in Evans, 514 U. S. 1, we applied this good-faith rule to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding. We held that a mistake made by a judicial employee could not give rise to exclusion for three reasons: The exclusionary rule was crafted to curb police rather than judicial misconduct; court employees were unlikely to try to subvert the Fourth Amendment; and “most important, there [was] no basis for believing that application of the exclusionary rule in [those] circumstances” would have any significant effect in deterring the errors ... the abuses that gave rise to the exclusionary rule featured intentional conduct that was patently unconstitutional ... ... To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. ... In Franks v. Delaware, 438 U. S. 154 (1978), ... we held that police negligence in obtaining a warrant did not even rise to the level of a Fourth Amendment violation, let alone meet the more stringent test for triggering the exclusionary rule. ... We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion. In Leon we held that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” 468 U. S., at 922. The same is true when evidence is obtained in objectively reasonable reliance on a subsequently recalled warrant. If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation. See the Wikipedia article on Herring and this Leagal Information Institute article on the case | 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. | The main rules in a civil case are the rules of evidence, the rules of civil procedure, and a set of largely unwritten rules governing issues such as the order in which matters are presented in a trial and courtroom conduct. Basically, the rules of evidence are really a subset of a larger set of written and unwritten rules about courtroom conduct the unwritten parts of which are assumed to be known by people using them. Robert's Rules of Order do not apply to courtroom proceedings. The judge also has the "direct contempt" power to summarily punish disrespectful conduct in the courtroom without a trial, with fines or incarceration, even if it wouldn't be a crime outside the courtroom. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. If you are a party asking a question (or more likely an attorney for a party asking a question on behalf of a party) it is not improper to say, "I'm sorry, I couldn't hear you." It is also not generally improper for a non-questioning party to interject and state that they can't hear a witness to a judge. Obtain clarification of a statement. This can be done by a party only when it is the party's turn to cross-examine or redirect as the case may be. A judge can ask for clarification, but a party cannot do so when it is not their turn. Determine or clarify the purpose of an ongoing statement or line of questioning Generally the party not asking a question objects and the court asks the party asking the question to clarify the reason. Sometimes, in a jury trial, the party asked to clarify will say "may we approach the bench" and a private discussion will be held between counsel for both sides and the judge regarding an ongoing issue. Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") Lawyers are expected to know this for the most part without having to ask. Also, usually before the court starts to take evidence, and at breaks, the judge will ask "are there any preliminary matters that need to be addressed?" or "are there any procedural matters that need to be addressed?" and questions such as this can be raised at that time. | It is possible that someone is convicted. Destruction of evidence an constitute circumstantial evidence that a crime was committed, and other evidence, such as testimony, could pin the crime to one of the four possible suspects. A jury has broad discretion to assess the weight of the evidence. | See the answer to this question. It is remotely possible that it will show up, but the new S.C. law also says that an employer cannot use that information. On the other hand, that law is not yet effective (it becomes effective Dec. 27 2018), so for the rest of the year, the information could be used, if an employer obtains is. There is a law-enforcement exception that arrests can always be used against you if you apply for a law-enforcement related job. Under the current law (has been in effect for a while), the record is "under seal", so revealing the record in the course of a background check would be a violation of the relevant court order. The law specifies a punishment for illegal disclosure: A person who intentionally violates this subsection is guilty of a misdemeanor, and, upon conviction, must be fined not more than one hundred dollars or imprisoned not more than thirty days, or both. however, accidental disclosure is not a crime. You might think that you could at least sue them for accidental disclosure, but the law also says Unless there is an act of gross negligence or intentional misconduct, nothing in this section gives rise to a claim for damages against the State, a state employee, a political subdivision of the State, an employee of a political subdivision of the State, a public officer, or other persons. If the government person who releases the information intentionally does so, you can sue. Perhaps an accidental release could be found to be grossly negligent: that would depend on the circumstances. | The misunderstanding The only person who can chose to prosecute or not to prosecute a criminal case is the state: in the US this is through the office of the relevant District Attorney advised by the police. When a person makes a complaint to police (or other authorities), the police/DA commence an investigation. In an ideal world all complaints would be investigated rigorously and thoroughly, however, we live in this world. The police/DA will assess the complaint and decide if it warrants the dedication of scarce resources to investigate. One of the factors they will consider is how vigorously the complainant prods them in the ass. Ultimately, the police/DA will decide if there is enough evidence to place the matter before the courts. The complainant has no say in when or if this will happen. A complainant cannot "drop the charges"! The misconduct For a police officer to disclose to another police officer that they were the subject of a felony (or any) complaint is gross misconduct and a huge betrayal of trust. At best it shows poor judgement, at worst it is corrupt. Your friend needs professional legal advice right now! | Are police required to contact a real lawyer if you ask? give opinions from a number of lawyers and police in different jurisdictions. The basic consensus is that in most jurisdictions, such behavior will get the case thrown out of court and often get the police officer who tried this fired. HOWEVER there was a case where this was tried and while the case was thrown out on appeal, it was not as simple as the postings in the above article may have made it appear. This story shows a case where the Tennessee police actually did this. While the lower court allowed it because the defendant was "gullible", the appeals court rejected this argument. [T]he conduct of the law enforcement officers in this case, and in particular Detective Henry, is so egregious that it simply cannot go unchecked. That Detective Henry would illegally pose as an attorney and arrange the circumstances of the defendant’s case to make it appear as though he had successfully undertaken legal representation of the defendant is abhorrent. That the detective would specifically instruct the defendant not to communicate the relationship to his appointed counsel, in what we can only assume was an effort to enlarge the time for the detective to gain incriminating information from the defendant, renders completely reprehensible the state action in this case. Given the unconscionable behavior of the state actors in this case and the fact that the defendant was essentially prevented from proving prejudice through no fault of his own, we have no trouble concluding that the only appropriate remedy in this case is the dismissal of all the indictments. |
Can I be arrested in US consulate for a warrant in the states? A few years ago I came to Mexico to stay for a while. While I was here I was summoned for court in Arizona, but never appeared (because I'm in Mexico). A warrant was issued for my arrest a few months later. 2 years ago my passport expired so I went to the US consulate to renew it. Instead of getting my passport in the mail i received an email stating that I need to show up for an interview. My question is, can I be arrested at the consulate and be taken to Arizona? I'd like to be informed before I go so I know what to do with my family. | Legally, they cannot just nab you. The usual (?) option is that authorities in the US request extradition pursuant to the US-Mexico extradition treaty via the Department of Justice, and if the paperwork is in order, this can result in a Provisional Arrest Warrant (and arrest) in Mexico, which will be carried out by the Mexican federal police. This is true whether or not you go to the US consulate. After a hearing in the Mexican courts you might be extradited (or not, but DoJ presumably doesn't proceed with cases that they will lose). Extradition is not possible for every offense, so you would have to look at the offenses listed in the treaty, and whatever the Arizona warrant is about. You can't be extradited for parking tickets, you can be extradited for murder: whatever it is, it has to be a crime in both places, and has to be subject to a minimum one year imprisonment. Also, if you are a Mexican citizen as well, you cannot be extradited unless the Mexican authorities agree to (whereas there is no choice if you are only a US citizen). An alternative is deportation, which would overcome limitations related to extradition, but it's not clear what the requirements for deportation from Mexico are (typically illegal presence, unclear whether Mexican authorities can or would try an end-run around official extradition procedure). Although consulates enjoy a degree of immunity from local law, a consulate in Mexico is still Mexican territory, subject to Mexican law. If you are in the consulate, Mexican authorities cannot enter without permission to arrest you. They also cannot arrest you without a warrant (see Art. 16 of the Mexican constitution). Consular staff also cannot arrest you (if you are not caught flagrante delicto). Nor are they authorized to execute a US warrant in Mexico (thus they have to go through the process of judicial review to send you back to the US, and why a Mexican warrant is required). See this Q&A, relevant to the status of embassies: what is relevant to us is that both the US and Mexico operate under the rule of law, so the issues surrounding Syrian refugees in the Syrian embassy do not arise here. | First, let's be clear about who "they" is. Neither Congress nor the Department of Justice has the power to issue search warrants by themselves. Search warrants are issued by judges, upon a showing of probable cause by the prosecution. In particular, search warrants can only be issued in criminal investigations. Federal Rules of Criminal Procedure, Rule 41c: (c) Persons or Property Subject to Search or Seizure. A warrant may be issued for any of the following: (1) evidence of a crime; (2) contraband, fruits of crime, or other items illegally possessed; (3) property designed for use, intended for use, or used in committing a crime; or (4) a person to be arrested or a person who is unlawfully restrained. I don't think Bannon's documents fit any of those criteria at this time. The Congressional investigation is not a criminal investigation, and I'm not aware that it's currently being alleged that the documents contain evidence of a crime. Bannon himself is charged with a crime - contempt of Congress - but the actual content of the documents isn't relevant evidence in that case. As I understand it, the prosecution only has to prove that the subpoena was properly issued, and that Bannon failed to respond to it, which latter I don't think is disputed. What is actually in those documents, or indeed whether they even exist, is immaterial to his guilt or innocence on that charge. | In the US, there are a number of non-government organizations which take on such cases, such as the ACLU or the Institute for Justice; individual law firms may also take such cases pro bono. There is no automatic right to free representation in case a constitutional issue is alleged, so if IJ doesn't like your case they won't take it. These are private organizations: there is no general government agency that one can call on, other than the Public Defender's office in case you are charged with a crime and can't afford legal defense. (A constitutional issue may arise in a case that a PD might handle, but you can't e.g. call on the public defender to sue the government for infringing your 2nd Amendment rights.) A state attorney general could file suit against the US government over a constitutional issue, as Washington's AG did in the case of the Trump travel executive order, where the underlying issues were constitutional. An individual might inspire a state AG to take on an issue, but the AG would be representing the interests of the state, broadly, and not individual interests. | You cannot legally force police to wait to carry out the search. They can search even if you are not present. In fact, they are required to execute the warrant within a certain time frame, which precludes delaying the execution of the warrant. You can inspect the warrant to see if it is "proper" (has the judges name, correct address, is a search warrant and not a warrant of removal/deportation...). Calling a lawyer is always wise, but that does not stop the search. | In general in the US, anyone may photograph anyone else if they are all in a public place, although in some states such a photo may not be used commercially without permission, which must often be paid for and may be refused. It is unusual for police to photograph people on the street, but they might want to document who was present at a particular place and time. They can do so, but I am not at all sure that they can prevent a person from covering his or her face, or turning his or her back, or charge a person who does so with obstruction. I don't think so. Under some circumstances in the US police may ask a person for identification, and may charge a person who refuses to provide it. This varied from one state to another, and usually depends on the specific circumstances. (If a person is driving an automobile, police may demand to see a driver's license, for example.) Unless a police officer puts a person under arrest, the officer has no general right to control that person's actions, beyond instructing the person not to interfere with ongoing police work. I do not think an obstruction charge would hold up for covering one's face or turning away in the absence of an arrest. | In the United States . . . Scope of Search Warrant: To what extent can they search you and your belongings? The scope of a search is limited by what is stated in the warrant. Not only must a warrant be supported by probably cause, it must also describe with particularity, "the place to be searched, and the persons or things to be seized." See U.S. Const. Amend. 4. For example, they cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, that doesn't mean that officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can often seize it. When it comes to containers, the police are allowed to search anything that items could be inside. So, if they're looking for stolen TV's, they can't search a jewelry box or under the floor boards. However if they looking for something small, like bomb parts, just about everything is fair game. To search you, the warrant would need to authorize the search of your person, or the police would need an independent justification to search you. For example, if they found explosives that were illegal to posses, they could conduct a search incident to arrest. Can they search your entire computer? Yes, assuming computers are within the scope of the warrant. Compelling people to produce passwords of encryption keys: If they find encrypted files can they detain you until you decrypt them? This depends on your jurisdiction as it is a developing area of law and deal with 5th amendment. This is something that would not be done through a search warrant and would involve a separate proceeding. In this situation, constitutional privilege against self-incrimination under the Fifth Amendment, U.S. Const. Amend. V, may be implicated. Case where Court held producing passwords violated the 5th Amendment: The government's postindictment grand jury subpoena ordering the defendant to provide all passwords associated with his computer in order to secure evidence of child pornography allegedly contained in the computer, which spawned the three counts contained in the indictment, required the defendant to make a "testimonial communication," and thus the subpoena violated the defendant's Fifth Amendment privilege against compelled self-incrimination, where the government was not seeking documents or objects but instead was requiring the defendant to divulge through his mental processes his password that would be used to incriminate him, the district court in U.S. v. Kirschner, 823 F. Supp. 2d 665 (E.D. Mich. 2010), held. The court explained, an act is "testimonial," and thus protected by the Fifth Amendment privilege against self-incrimination when the accused is forced to reveal his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the government. It is the extortion of information from the accused, the attempt to force him to disclose the contents of his own mind, that implicates the Fifth Amendment's Self-Incrimination Clause, the court said. Case where Court held producing passwords did not violate the 5th Amendment: The district court in U.S. v. Fricosu, 841 F. Supp. 2d 1232 (D. Colo. 2012), recognizing that production of a document may fall within the Fifth Amendment's privilege against self-incrimination since it acknowledges that the document exists, that it is in the possession or control of the producer, and that it is authentic, held that the defendant's Fifth Amendment privilege against self-incrimination was not implicated by requiring her to produce the unencrypted contents of a computer where the government knew of the existence and location of the computer's files; a preponderance of the evidence established either that the computer belonged to the defendant or that she was its sole or primary user, such that she had the ability to access its encrypted contents; and the government had offered her immunity, precluding it from using her act of producing those unencrypted contents against her. The court determined, also, that a preponderance of the evidence, in a motion to compel production of the unencrypted contents of the computer, found during a search of the defendant's residence, showed that either the computer belonged to her or that she was its sole or primary user, such that she could access its encrypted contents, supporting the decision to compel her to produce those unencrypted contents, where the defendant acknowledged, during a telephone conversation with her ex-husband, that she owned or had such a computer, the contents of which were accessible only by entry of a password, and the computer, which was found in her bedroom, was identified with her name. This issues probably will not be decided one way or the other until the supreme court rules on it. If they find a password safe can they force you to give them a password and >then can they log into all accounts you have stored in it? When you say password safe, I am assuming you mean password management software. If so, see above. If you don't give them the password but they find it written down somewhere, can they still use it? Yes, assuming their warrant allows them to search papers or it is in plain view. Out of curiosity, do police ever actually do this? Find a password protected file on a computer and go through all the papers in the desk and try all possible passwords until they find one? I'm not sure, but it wouldn't surprise me. Even if they don't have a warrant that covers papers, police have been known to bend the rules. I think someone with police experience could have a better answer for this. | In the US it is not a crime to be in the country illegally. As a general rule, it is not a crime for a removable alien to remain in the United States. Arizona v US So it's illegal, you get a state induced consequence (deportation) but it doesn't make you a criminal e.g. you don't go to jail for it. I have no idea if that's what's going on over there but it's a plausible explanation. | I believe that you have misinterpreted the case, not least because the Hudgins v I.R.S case involves this only peripherally. The original case Diviaio v Kelly was dealing with a request for the number of photographs taken of the plaintiff and if these had been disseminated outside the CIA. This is in no way shape or form a request for records (the records were found to be legitimately exempt). I see no problem in your FOI request. In fact, I can foresee the response: These, http://www.maine.gov/legis/ros/meconlaw.htm, are the laws we use to justify these actions. In a common law jurisdiction, a person (including the government) does not have to prove they are abiding by the law. The onus is on you to prove they aren't; they do not have to help you make your case. |
Texas Abortion Law - Are Utilities, Licensing Bodies and Local Government subject to liability under the law Under the new Texas Abortion Law would the following be liable for a $10,000 fine Utility Companies such as Power, Phone Broadband providing power to the clinics Local Government for providing infrastructure to the clinics Suppliers of medical equipment The law states that civil action may be brought against anyone who (2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of privacy this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter; Can providing supplies, infrastructure or power be considered "aiding or abetting"? | No Those things do not constitute "aiding or abetting", nor does the Texas law define them as such. The Actual law Sec. 171.208 of the law known as Texas SB 8 reads in relevant part: (a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who: (a) (1) performs or induces an abortion in violation of this chapter; (a) (2) knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this chapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this chapter; or (a) (3) intends to engage in the conduct described by Subdivision (1) or (2). Interpretation If the actions described in the question are covered by this law, it could only be if the fall under the category of: conduct that aids or abets the performance or inducement of an abortion which means that the definition of "aids or abets" is crucial. There is no definition given of this phrase in SB 8 except what is provided in 171.208(a)(2). Therefore "aids or abets" must be taken to have its ordinary legal or general meaning, modified only by the provision that "whether the person knew or should have known" is not relevant to this law. The LII page on "Aid and Abet"" reads: To assist someone in committing or encourage someone to commit a crime. Generally, an aider and abettor is criminally liable to the same extent as the principal. Also called "aid or abet" and "counsel and procure." The entry on "Aid and Abet" in the Legal Dictionary section of The Free Dictionary reads: To assist another in the commission of a crime by words or conduct. The person who aids and abets participates in the commission of a crime by performing some Overt Act or by giving advice or encouragement. He or she must share the criminal intent of the person who actually commits the crime, but it is not necessary for the aider and abettor to be physically present at the scene of the crime. An aider and abettor is a party to a crime and may be criminally liable as a principal, an Accessory before the fact, or an accessory after the fact. The definition from the Macmillan Dictionary reads: to help someone to commit a crime The definition given by USLegal reads: To aid and abet means to assist another person in the commission of a crime by words or conduct actively, knowingly, and intentionally. In a criminal offense, a person who aids and abets in a crime, participates in the commission of the crime by performing some overt act or by giving advice or encouragement. The person should be sharing the criminal intent of the person who actually commits the crime. However, it is not necessary for the aider and abettor to be physically present at the scene of the crime, or take part in the actual criminal offense ... The definition given by The Phrase Finder reads: To help and encourage, usually in the commission of a crime or anti-social act. All of these definitions include the idea of one who helps, encourages, or assists in the commission of a criminal or wrongful act. Most of them include that this help must be given knowing that the act is criminal. I do not think that one could rationally or legally say that the provision of utility services, general infrastructure, or medical equipment constitutes "aiding or abetting" the conduct prohibited by Sec. 171.208. Such services or support are not provided specifically to help with the acts prohibited. If providing utility services constitute "aiding or abetting" then utility companies could be charged as accessories to any and every crime that does not take place in a dark, unheated, unplumbed building, or in the outdoors. Insider trading, for example often takes place in the criminal's own office, but no one charges the utility company that provides power to such an office as accomplice to the crime. I think this question shows a misunderstanding of what "aid or abet" means. it does not refer to any service or equipment that a criminal may find helpful, but only to acts specifically designed to help in the criminal act, and usually to acts committed knowing that they are aiding a crime. Nothing in SB 8 changes this. There may be problems with SB 8, but the possibility of charging utility companies, or providers of medical equipment as accessories is not one of them. | Although abortion is legal in the US, not everyone is allowed to perform an abortion. In Washington, the law allows a physician to terminate a pregnancy, and recognizes a woman's right to choose to have an abortion. An abortion performed by anyone else is not legal, and performing an illegal abortion is a class C felony. There are "plan B" pills which are legal in the US and levonorgestrel is available without a prescription, but the mifepristone and misoprostol regime is not available without a doctor's orders. In this scenario, the partner will have performed an illegal abortion, and is guilty of a controlled substances crime. In some states, there is a separate crime of fetal homicide. In Washington, this is covered under 1st degree manslaughter, a class A felony, if one "intentionally and unlawfully kills an unborn quick child by inflicting any injury upon the mother of such child". "Any injury" does not require "great violence" or "striking". It is also the class B felony of poisoning which includes slipping in a harmful substance with intent to harm another person, as well as assault. | From a legal perspective, I think the ruling is reductio ad absurdum correct. California voters passed Proposition 65. Consequently, CA Health and Safety Code 25249.6 says "No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10". Section 25249.8 mandates a list, and defines "known to the state" A chemical is known to the state to cause cancer or reproductive toxicity within the meaning of this chapter if in the opinion of the state’s qualified experts it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity, or if a body considered to be authoritative by such experts has formally identified it as causing cancer or reproductive toxicity, or if an agency of the state or federal government has formally required it to be labeled or identified as causing cancer or reproductive toxicity. Acrylamide is so listed, and has been for 18 years, reason code listed as "AB-IARC, AB-US EPA". The law does not say that "the benefits may outweigh the risks", nor does the law say anything about usual doses. There is an "escape clause", if one (the defendant) can prove that there is no effect (25249.8(b)): An exposure for which the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question for substances known to the state to cause reproductive toxicity, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical pursuant to subdivision (a) of Section 25249.8. In any action brought to enforce Section 25249.6, the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant. The answer on Skeptics does not address the EPA finding (and the science underlying it). At this point we can only conjecture about the defense's scientific argument (the ruling is still in the works, pending feedback from parties), but the judge said "While plaintiff offered evidence that consumption of coffee increases the risk of harm to the fetus, to infants, to children and to adults, defendants' medical and epidemiology experts testified that they had no opinion on causation" and that the coffee makers hadn't presented the proper grounds at trial to prevail. Insofar as human subjects testing of suspected carcinogens is illegal, any argument that "but this only shows that it causes cancer in rats" is legally empty: rats are a suitable proxy for humans. This is a state report addressing a potential carcinogen, 4-Methylimidazole. The report notes that to have a No Significant Risk Level finding, the substance must have less than a "daily intake level posing a 10^-5 lifetime risk of cancer". A further requirement is that "risk analysis shall be based on the most sensitive study deemed to be of sufficient quality" (whatever that is). This study mentions a previous study which was rejected because "these studies do not meet the criteria specified in Section 25703(a) because the experiments were not designed to adequately control for and examine the potential carcinogenicity of 4-MEI". Basically, Spiegelhalter's argument is too meta, and doesn't constitute a proof that acrylamide poses no risk of cancer. If the defendants commissioned an independent scientific study to overcome earlier carcinogen findings, perhaps the study failed on technical grounds. The bar that has to be cleared is very high. The EPA regulation says that the maximum contaminant level goal for acrylamide is zero. That is the carcinogen-science basis for specific allowable levels in water supplies. | To the extent Constitutionally permitted or as further limited by the state’s own law Constitutionality, a suit may be brought (or a prosecution launched) when the state has personal jurisdiction over the defendant. … a state court may only exert personal jurisdiction over an individual or entity with "sufficient minimal contacts" with the forum state such that the particular suit "does not offend 'traditional notions of fair play and justice.'" What constitutes sufficient "minimum contacts" has been delineated in numerous cases which followed the International Shoe decision. For example, in Hanson v. Denckla, the Court proclaimed the "unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the nature and quality of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws." For the abortion bill, an organisation that provides funding to Texas residents probably has “minimum contacts”, an out-of-state doctor who treats all-comers probably doesn’t. For employment laws: if the employee is based and work takes place in the state, yes. There is a separate question of which state's law applies which is independent of which state's courts can hear the case. A California court can decide that it can hear a case according to Texas law for example although, in practice, if the California court felt that all of the issues were Texan, they would probably decide they lacked jurisdiction. | They both can be found liable, but not by using the but-for test. Suppose that person A and person B each independently negligently discharge firearms and that each on its own would be sufficient to kill person C. Is it true that, "but for the actions of A, C would still be alive?" No. Is it true that, "but for the actions of B, C would still be alive?" No. Using the but-for test would not be able to assign liability to either A or B. "But for" is not an obvious phrasing for non-native English speakers. It's the same as asking, "If it were not for the actions of A, would C still be alive?". However, courts and juries are not limited to using the but-for test for causation. See Corey v Havener, 182 Mass. 250 (1902): It makes no difference that [...] it is impossible to determine what portion of the injury was caused by each. If each contributed to the injury, that is enough to bind both. | Is this realistic? Yes. The dramatic performance plays out in the same way that it would in the U.S. Court system. The actual killing of the wife would be 'legal', so can he be charged for murder for something that has been done legally, only because they can prove is intent to kill her before that? Especially since he has already been acquitted of that fact. Mostly, this is an issue of causation and not double jeopardy. From a double jeopardy perspective, the crime of murder is not complete until the person dies, and they have not be tried for murder, so this is a different crime that had not occurred until after the attempted murder trial was over. Causation Issues Even if the immediate cause of the wife's death is withdrawal of life support, the shooting could still be a legally sufficient cause of the wife's death. For example, suppose that you shoot someone and the hospital can't give the victim a blood transfusion because the victim has blood type O- (universal donor) which can only receive blood from other people with blood type O-, and the hospital, due to negligence on the part of a hospital administrator, has run out out of type O- blood. The fact that the victim would not have died if the hospital has not negligently failed to have type O- blood on hand does not provide a defense to murder on the part of the person who shot her. While terminating life support is "legal" it also constitutes a non-judicial finding with legal effect on the part of the person authorizing it and the physicians signing off on the decision, the further medical care would have been futile and that the person whose life support was terminated was already dead in key material respects, even though they would not be dead for purposes of a murder charge until life support is terminated. When death is a natural and foreseeable result of action that causes physical harm, the death is caused by the act that causes the physical harm. Something else that causes death would have to be a "superseding cause" and not just an additional cause of death. Thus, the fact that life support was terminated legally does not mean that she cannot be a murder victim. Indeed, many murder victims are people who are on life support for some period of time and then have that life support terminated because it is futile to continue medical care and the person is already "brain dead" or something equivalent to that. Collateral Estoppel Issues Double jeopardy does carry with it a related concept of "collateral estoppel" which provides that facts necessarily decided in one criminal case cannot be decided differently in a subsequent, related criminal case in some circumstances. But, collateral estoppel applies only when the facts in the prior criminal case were necessarily decided on the merits in the prior criminal case. Acquittal of criminal charged does not necessarily include a determination that someone was innocent of the charges. The fact that he was acquitted of attempted murder does not mean that the jury found that he didn't attempt or intend to murder her. In particular, a dismissal of criminal charges as a result of a technicality that excluded evidence related to an element of the crime for which there was an acquittal, is not a determination on the merits that a particular element of a crime was actually absent, so it would not be binding in the subsequent criminal case for murder. An acquittal does not mean that every element of the prior criminal charges was found not to be present. Collateral estoppel arising from the double jeopardy right, in contrast, might be a ground for dismissal of the murder case, if the man's primary (and perhaps only) defense to the attempted murder case had been that he had established the affirmative defense that someone else committed the murder, or that he had an alibi that made it impossible for him to have committed the murder. Then, the jury would have found on the merits that this defense, equally applicable to the murder case, had already been established. | Intent matters here, but yes. Alice could be considered guilty of either Second-Degree Murder or Manslaughter, though the latter is far more likely. Texas has no laws condoning assisted suicide that could absolve Alice. Second-degree murder requires the following: The defendant intentionally and knowingly caused the death of another person The defendant intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and this act caused the death of an individual This is tenuous, but it could be argued this way if Alice intended to cause Bob's death. It certainly meets the second criteria: shooting oneself constitutes serious harm and giving a firearm to someone who has stated an intent to kill themself is reckless. It's more likely that Alice would be charged with manslaughter. The only definition is: A person commits an offense if he recklessly causes the death of an individual. As discussed above, giving someone who has announced an intent to kill themself a loaded gun is reckless. Alice's actions resulted in Bob's death. | Your understanding of the bill is correct. Legislation takes effect 90 days after sine die adjournment unless there is an emergency or enactment clause. If a relevant provision of the law is struck down as unconstitutional, any suit dependent on the provision would be dismissed. Residency is not relevant, what is relevant is being subject to Arkansas jurisdiction, meaning "being in Arkansas". A non-resident traveling to Arkansas could not have a forbidden procedure in Arkansas, and an Arkansas resident can have a procedure allowed elsewhere if they are elsewhere. A spouse would not be able to get an injunction if, for instance, the wife traveled to Washington state for the procedure, because Arkansas courts have no jurisdiction over Washington state. The law imposes a restriction on what physicians in Arkansas can do, and the woman receiving the abortion is not subject to liability. |
Which religions oppose vaccination, and on what grounds? There has obviously been much discussion about (covid) vaccine mandates in the US. From my limited reading on the matter, it sounds like the federal government has empowered employers to require employees to be vaccinated. What is unclear to me is how religious exemptions would be handled. I'd guess that there must be state laws (Vermont, New Hampshire are the jurisdictions in question) that govern how exemptions are applied for, but I don't know where to look to learn the rules. In specific, which religions oppose vaccination, and on what grounds? I'm curious to learn in detail which biblical passages might be construed as opposing shots for certain Christian denominations, for example, but the answers need not be limited to Christianity. | Both Title VII of Title VII of the Civil Rights Act of 1964 (as amended), and the Americans with Disabilities Act(ADA) as amended, provide that employer mandates are subject to "reasonable accommodations" for "sincere religious beliefs". If any mandate was based on or subject to either of those laws, requests for accommodation would need to be addressed on a case-by-case basis. The belief does not have to be a tenant of any church or organized religious group, but may be purely individual. State laws granting religious exemptions might also apply. However, in Prince v. Massachusetts, 321 U.S. 158 (1944) the US Supreme court wrote: Thus, he [a parent] 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. Prince was a case of a child labor law (selling religious pamphlets in the streets) not an actual vaccination case, so the above statement was not strictly binding precedent. Whether it would now be considered good law I cannot say unless it coems up oin a current case. To the best of my knowledge, no major religion or denomination objects to vaccines as such, although some do object to vaccines developed using fetal stem cells. I believe that at one time the Jehovah's Witnesses did so object (one of them was the appellant in Prince) but they no longer hold that view. At least some individuals have expressed such objections, but most expressed objections to vaccines or vaccine mandates have not been on religious grounds. | Any legal question that begins with the word "suppose" becomes an academic exercise. Acceptance of religious principle can be incorporated in law, but it can also be reversed by later legislatures. In the case of witchcraft, I would recommend reading the results of a search on "Matthew Hopkins", "Pendle" and "Salem". In the US, Russia and Israel at time of writing, witchcraft is not considered to have a direct effect on criminal outcomes, though there may be aspects of the performance of religious activities and ceremonies that could be covered by incitement or conspiracy laws. Taking the position that "application to God is application to a higher court" is unlikely to lead to acquittal unless considered indicative of insanity, but may mitigate sentencing as part of a diminished responsibility defence. | It depends on whether Alice is a "minister." This case plays on the tension between employment-discrimination laws that prohibit discrimination on the basis of religion, and the First Amendment, “which protects a religious group's right to shape its own faith and mission through its appointments.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp't Opportunity Comm'n, 565 U.S. 171, 188 (2012). We resolve the question by asking whether Alice is a "minister," i.e., whether the religion has entrusted her “with the responsibility of educating and forming students in the faith” Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049, 2069 (2020). If so, she falls within the First Amendment's "ministerial exception" to employment-discrimination laws. But the precise definition of that term remains rather squishy, so we don't really have a test that can give us a reliable answer. In Hosanna-Tabor, for instance, a teacher at a religious school brought an ADA claim after the school fired her after she missed a semester on disability leave. The court rejected her claims based on the religious character of her work, and the Supreme Court affirmed, concluding that she was a minister based on the job title she received (Minister of Religion, Commissioned), her own use of the minister title, the religious character of many of her job responsibilities, her religious training, and other factors. Although she was a minister who was replaced by another minister, the Court suggested that the outcome might be the same if she were not a minister. Noting that the school in that case – just like in your hypothetical – hired lay teachers only when ministers were not available, it rejected the argument that an employee falls outside the ministerial exception simply because there are non-ministers with the same job functions: Though relevant, it cannot be dispositive that others not formally recognized as ministers by the church perform the same functions—particularly when, as here, they did so only because commissioned ministers were unavailable.” Hosanna-Tabor at 193. And a few years later, the Court indicated that perhaps none of those factors from Hosanna-Tabor are actually required. Instead, it directed courts to ask whether the school “entrusts a teacher with the responsibility of educating and forming students in the faith.” Our Lady of Guadalupe School at 2069. So in your hypothetical, the courts would probably look to see whether BYU treats its professorships as ministerial positions. Although the answer could vary from one religious school to the next, it seems quite likely that the courts would treat BYU professors as ministers, given their Personnel Conduct Policy: It is a condition of employment that all personnel (including student employees) act in accordance with university policies and the Church Educational System Honor Code, including the Dress and Grooming Standards, and refrain from behavior or expression that seriously and adversely affects the university mission or The Church of Jesus Christ of Latter-day Saints. Examples include behavior or expression that Contradicts or opposes, rather than analyzes or discusses, fundamental Church doctrine or policy; Deliberately attacks or derides the Church or its general leaders; or Violates the Church Educational System Honor Code. All personnel are expected to be role models of a life that combines the quest for intellectual rigor with spiritual values and personal integrity, and to conduct their work in a professional manner consistent with the values espoused by the university and the Church. Members of the Church in nonstudent positions also accept as a condition of employment the standards of conduct consistent with qualifying for temple privileges. The university regularly contacts ecclesiastical leaders concerning the temple eligibility of all nonstudent personnel who are members of the Church. I couldn't find any cases applying the ministerial exception to Brigham Young, but given its expectation that employees act as "role models" for the church's "spiritual values" and conduct their work in a manner consistent with "values espoused by ... the church," I would be surprised to see a court get in the middle of the school's decisions to fire Alice and replace her with a member of the church, even if she had not run afoul of those policies herself. The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way. Hosanna-Tabor at 196. Still, Alice could have other bases for suing the school. Based on your tags, I'm assuming you're most interested in employment-discrimination claims. While those might be barred by the First Amendment, Hosanna-Tabor explicitly held open the possibility that a contract claim might still be viable. Hosanna-Tabor at 196 (“We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.”). So if the school signed a contract agreeing to employ Alice for three years, she would have a strong argument that it had waived its right to discriminate on the basis of religion for that period. | There's nothing that makes it illegal to ask others to give you money to donate to a third party. But if you want to say you're fundraising on behalf of another organization, obviously you need its permission. And if you want contributions to be considered charitable for tax purposes, and you want to make sure you don't wind up paying taxes on contributions "sent to" you but then passed on, then you may need to start worrying about a separate entity. It would be more straightforward to offer to create, host and administer the website for the church, with it receiving the contributions directly. | What most of your quotes are based on is this general consensus reached by the federal and state governments on how to proceed. The actually legal implementation happens on the state level in form of decrees. Therefore, the quoted texts are not to be taken as legal text, but human-readable¹. In particular they are not to be taken painstakingly literal, but context and common sense may be applied². The actual decrees are much more specific and clear. For example, let’s take the decree for Northrhine-Westphalia (translation mine): § 11 Veranstaltungen, Versammlungen, Gottesdienste, Beerdigungen (1) Veranstaltungen und Versammlungen sind untersagt. Ausgenommen sind […] § 12 Ansammlungen, Aufenthalt im öffentlichen Raum (1) Zusammenkünfte und Ansammlungen in der Öffentlichkeit von mehr als 2 Personen sind untersagt. Ausgenommen sind […] § 11 Events, gatherings, religious services, funerals (1) Events and gatherings are forbidden. Exempt are […] § 12 Gatherings and presence in public space (1) Congregations and gatherings of more than two persons in public are forbidden. Exempt from this are […] Most of this is clearly about in-person meetings. The only exception is the term “Veranstaltung” (event), which could be construed to cover online events. However, in other laws using this term, it clearly refers to in-person events. For example parts of this law governing the number of toilets available at an event do not make any sense for online events. I see nothing in the decree that would forbid online celebrations. In fact celebrations are not mentioned at all (and are covered by more general terms in the degree, as far as they are in-person). ¹ To be fair, the actual legal texts are not that bad in terms in human readability either. ² Mind that I do not wish to accuse you of lacking common sense here. After all the consensus dissonating with your common sense made you ask this question. | Reynolds v. United States 98 U.S. 145 held that "A party's religious belief cannot be accepted as a justification for his committing an overt act, made criminal by the law of the land". Employment v. Smith 494 US 872 applies this to criminal acts, holding that "The Free Exercise Clause permits the State to prohibit sacramental peyote use" and "the [Free Exercise] Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons". Likewise Church of the Lukumi Babalu Aye v. City of Hialeah 508 US 520 "a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability" (the ordinances were not narrowly taylored, unlike murder statutes). Thus laws against murder do not become unconstitutional when one proclaims a religious basis for violating the law, since they are religiously neutral and are there for good reason. | There's nothing to cancel. Your employer has made an exception for you, because of the ADA: you are not required to be vaccinated. That doesn't mean you can't be vaccinated. Once your doctor advises you that it's safe to be vaccinated, and once you are vaccinated, you no longer need the exception, but there's no need to cancel it. As far as the weekly tests, they are required as an alternative measure because you aren't vaccinated. Once you are vaccinated, there should be no more need for weekly testing. You may of course inform your employer that your doctor's advice changed that you were vaccinated, and that you therefore no longer require the accommodation that they offered. That should allow you to stop the weekly testing regime, but otherwise it should be the end of it, since at that point everyone should be satisfied. | Although an academy is state-funded, it is not the government, so limitations on what a government is allowed to do are not applicable, and anyway there is no First Amendment separation of church and state in the UK. I presume your school has a formal faith designation, which means that it is not subject to Section 85 of the Equality Act 2010, which might maybe be a path for escaping the requirement. The "collective worship" requirement is mandated by the government under Section 70 of the School Standards and Framework Act 1998, which is extended to academy schools by the funding agreements. The requirement is that "each pupil in attendance at a community, foundation or voluntary school shall on each school day take part in an act of collective worship". Section 71 provides an exception: If the parent of a pupil at a community, foundation or voluntary school requests that he may be wholly or partly excused from receiving religious education given in the school in accordance with the school’s basic curriculum, from attendance at religious worship in the school, or both from receiving such education and from such attendance, the pupil shall be so excused until the request is withdrawn. Since a religious academy is not subject to the national curriculum, deviation from whatever the religious requirements are stated in that curriculum is allowed. |
YouTube Upload Copyright On YouTube, there are two licenses to choose from, Creative Commons license and Standard YouTube license. Suppose that a composer A wants to post A's music videos on YouTube, but wants to license my music under a different term. Can A just directly state the license in the description, or A would still lose my copyright no matter what? I know copyright can be lost if one licenses their work under CC. Would A lose rights because A posts work on YouTube. | The YouTube Standard License is described in the terms of service. It means that you retain your copyright: you retain all of your ownership rights in your Content. But you also grant YouTube very broad permissions to your content: by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube's (and its successors' and affiliates') business Yes, that means YouTube could allow others to use your content by "sublicensing" or "transferring" their license. I never heard of YouTube doing that, but the license terms would allow it if they would decide that they want to. But without an explicit permission from you or from YouTube, people are not allowed to reproduce your content. Agreeing to those terms (or alternatively to the Creative Commons CC-BY terms which do allow others to use your content as long as they give attribution) is a condition for using the platform. You can also put different license terms into the video description. This is called "dual licensing". But that means that people get to choose under which license terms they want to use the content. They can either use YouTube's terms, or your own. | 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. | Can anybody create their own license? That is to say, can I for example create my own license under which I can license software? Yep. It's just a contract granting rights to use a copyrighted work. You can write your own contracts, so you can write your own software license. It's just often recommended that you don't, because common licenses are more well-understood, and inexperienced drafters may make errors that could result in problems, such as unintended restrictions, failing to restrict things that were intended to be restricted, or creating provisions that aren't enforceable in some/all jurisdictions. Can you mandate how a software will be released? Yes. Many software licenses, including GPL, do. The restrictions you describe in your example sound similar to CC BY-NC-SA. Also, would the following clause even be legal? Using this software you agree that any work and intellectual property based on or created with this software will be under the [INSERT_NAME_LICENSE] license, even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up I'm not entirely certain, but "even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up" seems, in my opinion, unlikely to be enforceable—especially "even if the work is rebuilt from the ground up." How would you differentiate a complete rebuild from a totally new piece of software? More broadly, once your copyrighted code is no longer in the product, there's nothing for them to license from you. It's hard to imagine how you'd be able to claim that you're harmed by someone releasing a new version of a product that used to contain your code under a different license. Without harm to you, there's nothing for a court to redress. | No. There are certain provisions of section 230 that carve out what liability these companies have for third party (i.e. User) speech on their web pages in 230(e). 230(e)(2) says that nothing in Section 230 may be construed to limit or expand laws reguarding intellectual property. These services are still on the hook if users post trademark or copyright infringing material to the site. Other such matters similarly not permitted include obscenities laws, exploitation of children laws, state laws, communications privacy laws, and sex trafficing laws. As a special note that section 230 was created to allow for emerging internet technologies and buisness to not have to worry about third party speech on their platform from holding them liable as a publisher. Thus, if I was to sue youtube for defamation of character based on a video you uploaded, calling me a Sith Lord, I could not sue Youtube (who has lots of money) but would rather have to sue you (who I presume does not have lots of money... at least not youtube/Google levels of money). Thus youtube cannot be civilily liable. It can still be criminally liable and liable for copyright infringement. | Yes. The introduction to the license says "You may adapt — ... build upon the material for any purpose, even commercially". (My emphasis). Note that there is an attribution requirement so you need to find a way to attribute each image to its individual author. For the fine details, you certainly need to read the actual license (rather than the introduction) and you probably need to consult your own, paid-for, IP lawyer - but if you are just scoping the project out at the moment, you should be fine. For contrast, here is a Creative Commons licence that does prohibit commercial use. | general things on copyright Copyright law is very similar globally, due to the Berne convention on copyright. Ány country's copyright law grants the copyright to an author. Copyright is the exclusive right of an author to authorize ("license") copies, performance, and derivative works. In case multiple authors jointly create a work, they own the right in their respective parts, or jointly. The copyright holder can deny making derivatives. If a derivative is made without authorization, it is copyright infringement. If the author was asked, denied the authorization and it is made anyway, it is wilful copyright infringement. Relinquishing your rights in the altered work does not make it not copyright infringement. The only way to not commit copyright infringement is to get a license. Naming the original author of a work you adapted is not just politeness, it is mandatory in all copyrights that follow the Berne convention on copyright. Licensing Fees The Verve's agreement to get the license was specifically to pay all the proceeds to the Rolling Stones, but that was an extraordinary case. License fees for recording a cover version (with the unaltered lyrics!) are usually mandatory to be available. for example in the united-states, it is mandatory to grant a mechanical license to create cover recordings for a licensing fee, for which for example the Harry Fox Agency is collecting and distributing the required payments and royalties. Those Royalties are about 9.1 cents per copy for a sub-5-minute song's recording. This license does not allow to alter lyrics. However, synchronization (tone and video) is not mandatory to be granted, and those start at a flat 4-digit and are rather open-ended. Without a sync license, you may not make video recordings of a work being performed. A public performance of a work requires a different license. A performance license is required for any public performance, and those are not regulated either, but typically not too expensive - yet alteration again is not within the scope of such a license. Granting a performance license is typically handled by Performing Rights Organisations such as ASCAP, BMI, and SESAC, taking the required fees and distributing the royalties. Making an adaptation or alteration is a derivative work. Making a derivative work requires a license that is different again. Those can only be granted by the copyright holders, and if they say no... Close the folder. The price of copyright infringement Wilful copyright infringement, especially after you were told no, can be super expensive: In the US, the rightsholder can get 150 000 USD and the lawyer fees for willful infringement. The rightsholder can sue in the US if they are there. Recoverable costs plus damages are also available in the UK, capped at 60 000 GBP for costs and 500 000 GBP in damages. | That's copyright infringement, and is illegal under various copyright laws. To take down the content, you'll have to make a claim under the Digital Millennium Copyright Act. The online form for making a takedown notice to YouTube under the DMCA can be found here: https://support.google.com/youtube/answer/2807622?hl=en Remember, that by submitting a takedown notice, that you are initiating a legal process. Take extra care not to abuse it, and to make sure that all information you submit is accurate. | If you used some creative work of mine without my permission (I'm the copyright holder, and you have no license giving you permission) then I can sue you to make you stop using my work, to get payment for damages, and to get payment for statutory damages. If you used my work because someone else told you wrongly that you had a license, that's very unfortunate for you, but is no reason why I wouldn't or shouldn't sue you. Obviously in this situation that third party did something badly wrong. I can sue both of you together to make sure that I get payment from whoever has deeper pockets. You can also sue that third party if you think that their lying, or being mistaken, about a non-existing license caused you damages, or if there is a contract or something that makes them responsible. |
Is CBS Radio Mystery Theater in the Public Domain in the US? The Internet Archive says it is but that's just something a user wrote. I can't find any information on this elsewhere. | 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. | I'm not sure it makes sense to talk about having "jurisdiction" over an IP address, for the purposes you're discussing. If you wanted to sue the IP address itself--something that is possible under limited circumstances--then you might need to locate it for jurisdictional purposes. But I don't think that's what you're talking about. You're talking about taking civil or criminal action against the people who are using the IP address to commit crimes. What matters, in that case, is not a theoretical legal question about the location of an IP address. It's questions like: where do these people live? Where do the people downloading the illegal content live? Where are the physical servers located? ("In the cloud" is not an answer--there are physical servers somewhere making up that cloud). For jurisdictional purposes, the chair they're sitting in when they upload the illegal data, and the location of the AC power outlet the physical server is plugged into, are as important as, if not more important than, the metaphysical "location" of the IP address of the server. | 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. | 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. | Because of the nature of online distribution, "watching" a show involves copying, so you need permission from the copyright holder to make those copies. You get permission indirectly, when you access a show via a legal licensee who has permission to distribute. A pirate site has no permission, therefore you cannot legally sub-license the show, and in so doing, you infringe copyright. The issue is not whether you "paid for it", it is whether you have obtained proper permission. Under copyright law, a rights holder can simply arbitrarily deny you permission to copy the work. | It would be copyright infringement. The script that you are planning to copy from is protected by law, so requires the copyright-owner's permission to create a derivative version (your own interpretation). If instead you write a completely different story inspired by the original book, you might not get sued. The problem is that there is a reasonable chance that you would accidentally duplicate part of one of the myriad adaptations, then the jury would have to decide whether it was just a coincidence, or copying. | If you are utilizing the name of the characters just so users can rate them (by rate - I mean rank, review, critique) you should be fine. Copyrights are subject to "fair use" by the public. For purposes such as review, criticism, and comment - this is generally considered to be fair use. Is the site commercial or for-profit? That could impact the analysis, but only if you are making money flowing from the use of the actual copyrighted material(s), rather than advertising (like Adsense) or something similar (this should not suggest that those type sites cannot violate copyright, but it's part of the analysis). If it is something you are investing money into creating, you may want to get a formal legal opinion. But if the site if for fun, or hobby, you are likely fine if what's described is the only use. http://www.socialmediaexaminer.com/copyright-fair-use-and-how-it-works-for-online-images/ This link is to a great, easy to read and understand article on fair use, what it is and what it allows. Keep in mind each case is fact intensive, however, from what you are describing this seems fine. | I know that some of this may be covered by either the Creative Commons license or the OGL it was published under, but it's not clear to me how far those freedoms extend. It was all published as materials under copyright to the original authors, TSR, WotC, &c. and if things had been left like that hszmv's answer would've been completely correct: stay vague and allow users to enter those names and descriptions, talk to WotC's lawyers and sales department about license fees, or just keep it to yourself and your friends. You're right, though: WotC went whole-hog, dumped their partial OGL idea, and relicensed some things as Creative Commons. There are different Creative Commons licenses, though, some restricting commercial use that would still keep your app to yourself and friends without a specific licensing agreement. Go find out exactly what WotC put under CC. If it's only the Player's Handbook, then you can only use names and descriptions that are from the Player's Handbook and you're still facing a cease-&-desist if you start adding in Monster Manual info.If it's everything, it's everything they have but still won't include any older modules that they don't have the right to change the copyright status of. It'll still be under copyright, usually until 70 years after the death of the original creator. For Gary Gygax, that'll be 2078. Expect that length to extend during your lifetime though. US copyright usually extends every time Mickey & friends come close to entering the public domain. [Edit: The comments below suggest it might only have been the Systems Reference Document (I assume for 5e). It's 403 pages of not nothing but it's not much given the universe we're talking about. The spell and monster lists are generic. Bigby is nowhere to be found and the only mention of a beholder is a reminder not to use the name beholder without their written approval.] Go find out exactly which CC WotC used. The article above says "all use" but you need to find out the exact number of the Creative Commons license for each thing you're using and make sure all of your uses fall within its terms. Some are basically free use but still insist you mention the copyright holder prominently or in every use. Go ahead and do that if you have to. [Edit: The comments below say it is probably CC 4.0. The SRD download page says you can use CC 4.0 or their own OGL. In both cases, yes, you must acknowledge WotC by name in a way prominent enough to satisfy the license you choose.] And of course, Don't trust legal advice from internet randos or ChatGPT. If this is a serious thing you're going to be spending a good chunk of your life working on or expect to make significant money from, go talk to an actual lawyer. Bonus points for one specialized in IP with a knowledge of roleplaying and the way it's been (partially) opening up lately.If you start off just by talking to WotC's lawyers, just do that somewhere where you get their explanations and permissions in writing. Then keep that somewhere safe in electronic and hard copy. Then still take that with you when you go talk to your own lawyer. |
Can I steal a car back that’s registered to me? So I made the mistake of co-signing for someone that isn’t making payments or even attempting to make payments. The car is registered to both of us, so I was thinking, what if I get them to pick me up and then when they get out, I jump in the driver seat and leave? Would that be illegal? I don’t know what else to do. They won’t give me the car back so I can make the payments myself, and I’m sure not going to pay it while they keep it. | You certainly can't legally steal anything, ever. If it is legal, it is not stealing. In particular, if it is your property, it isn't stealing. The question is really, "is it your property"? This will be jurisdiction dependant. I am familiar with England and Wales, and other common law jurisdictions may be similar. The fact you co-signed for the car definitely does not make it your property. It just means that out of the goodness of your heart, you agreed to reduce the finance company's risk by promising to pay if your ex-friend didn't. In E&W, I don't think it is possible to register a car jointly, but there is a long page explaining that the registered keeper is not necessarily the owner of the car. My guess is that the car probably does not belong to you, so if you take it you will probably end up with a conviction for theft. | You have been told that the other person's insurance may not be valid. Why it may not doesn't really matter, perhaps the other person didn't pay premiums or lied on an application. So the situation is much the same as if the other person is uninsured or under insured. Your p[olicy must cover things. And your policy has a deductible. So you have to pay the deductable amount. That is what a deductible is, the amount that you must pay before your policy coverage kicks in. The lower it is, the higher your premium is. You don't have any choice about that. Depending on your jurisdiction, you may be able to sue the other person involved in the accident, and get that person to pay. Your insurance company might do this for you, but if they won't you would have to hire a lawyer yourself to do that. Such a lawyer could get all the details of your case, and advise you of your options. | is there any legal action I can take against the dealership to enforce their compliance with our contractual agreement? Yes, you can sue for breach of contract. You would probably seek an order for specific performance. You could also claim damages but it is difficult to see exactly what damage you have suffered. Is there a reasonable timeline that they must deliver within if a date is not specified in the contract? Yes, where a contract is silent on a date for performance of an obligation they must be carried out in a reasonable time. From the circumstances 4 months is starting to seem unreasonable but they will no doubt argue that it is reasonable- this is something the court would decide. | I was told that when you sign something in the UK, then it is your signature, no matter what name you are using. So if you sign a contract with my name, then it's your signature and you are bound by the contract. Things might be invalid because you signed and not me. For example, if you sign a contract selling my car in my name, then that contract is not valid. If some document needs signatures of two witnesses, and you sign with your name, then with my name, then there are no two signatures. As far as I know, signing under a false name is not in itself criminal, but might very well be supporting fraud, for example, and might therefore be illegal. The contract for the sale of my car, signed by you using my name, would very likely be part of fraud and therefore criminal. | In California (where lost+found laws have been discussed quite a lot), this would be either "lost property" or "abandoned property". With abandoned property, you can do what you want. With lost property, it is legal to ignore it. If you take it, you have the obligation to try to return it to the owner. If you don't do that, it's theft. If you don't take it, you have no obligation whatsoever. Put it somewhere where the loser (the person who lost it) is more likely to find it, for example on the street. Don't take anything. Clarification for comments: There is a box. And the owner of the box is nowhere to be seen. That box is by definition lost or abandoned - it is abandoned if the owner got rid of it intentionally, it is lost if the owner is looking for it. We don't know. We can make guesses depending on the situation. No matter whether lost or abandoned, you are legally absolutely fine if you just ignore it. You have no reason to try to return it to its owner. If you don't make it your business, it's not your business. But if you decide you want the box, or bits of it, and it isn't abandoned (which is hard to know for sure), then you have to try to find the owner first, and if you don't find them, then you can keep it. | In general, people have less expectation of privacy in cars than in their homes. To challenge a search and/or seizure under the Fourth Amendment, a person must have standing - the right to sue (that is, you must have had a reasonable expectation of privacy in the place where the search happened; if you didn't, no standing - can't claim your privacy was violated if you had no privacy). The US Circuit Courts are split on the issue of unauthorized rental drivers and whether they have the same reasonable expectation of privacy as the authorized driver of a rental car would have. Some Circuits allow the unauthorized driver to challenge a car search if the authorized driver gave them permission. Some Circuits look only at the agreement and if the driver isn't authorized on that, they're out of luck. The 6th Circuit is more case-by-case, with a presumption that driver can't challenge the search that can be overcome based on the facts. (All this info from US v. Haywood, 324 F.3d 514) There's a current case before the Supreme Court (argued January 9, 2018), Byrd v. US, on this very issue. This SCOTUSblog page has a lot of information on the case. Edited to add: Texas is in the Fifth Circuit, which follows the rule that unauthorized drivers don't have standing to challenge a search/seizure even with the authorized driver's permission to drive the car; unauthorized drivers of rental cars don't have a reasonable expectation of privacy because they lack a possessory interest in the car and/or they're violating the rental agreement. Basically, even though it seems the cops' stop of the car would've violated the Fourth Amendment if he were the authorized driver, since this happened in Texas, he's not going to be able to challenge the stop. IMO, this is incredibly unjust especially when the cops admitted there was no probable cause, so hopefully the Supreme Court makes this rule obsolete and allows unauthorized drivers to exercise their Fourth Amendment rights. Some law review articles on the topic of unauthorized rental drivers: "Hertz and the Fourth Amendment" "Resolving a Three-Way Circuit Split" | https://en.wikipedia.org/wiki/Lien A lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. So the garage might have held a lien on Wilson's car as a way to secure a debt that he owed them, such as payment owed for repairs. If so, it would have prevented Wilson from selling the car until the debt was paid. It would also have made it a little less clear who was truly in possession of the car if the garage had a security interest in the car. However, in this particular case, Wilson had a monthly credit account with the garage. I would assume that means he had come to some arrangement with the garage where they would do the work without demanding payment on the spot, and that he would pay what he owed at the end of the month, or something like that; perhaps on terms like net 30 days. They evidently trusted him enough to grant him unsecured credit, instead of demanding a lien on the car as security. So the issue of a lien did not come up in determining possession. This sort of arrangement would have been a lot more common in 1963, before credit cards were common, so I'm not surprised that your garage today doesn't offer it. Nowadays the garage is more likely to demand payment as soon as the work is done, but you can get much the same effect by paying them with a credit card; then you will have about a month before you have to pay your credit card bill (or begin paying interest on it). | The person who is changing lanes has the responsibility to make sure that they have space to move into. Suppose there was a person in front of you in the destination lane who hit the brakes suddenly - if you change lanes and rear-end them, that's your fault, because you failed to leave enough distance. I don't see how it's any different in this case, where the person is behind you and accelerates suddenly. A turn signal doesn't give you the right to change lanes at will, you are responsible for making the maneuver safely. It's poor driving etiquette for the other guy to cut you off like that, but it's up to you to ensure there's space as you move over. From your description of the incident, it sounds like your actions initiated the sequence of events, and it was also your actions that prevented the accident. From that, it seems highly likely you'd be found at fault if the accident had happened - in that scenario, your actions would have created the situation, and you also would have failed to take action to avoid the accident. |
What are the legal implications of a common-law marriage followed by a formal marriage? A and B have been in a common law marriage for many years. A and C then apply for and receive a marriage license. When A and C marry, what is the legal status of each marriage? | A and B have been in a common law marriage for many years. A and C then apply for and receive a marriage license. When A and C marry, what is the legal status of each marriage? I assume in answering all of these questions that C did not know that A was in a valid common law marriage to B at the time of C's marriage to A, although the answers below may implicitly shed some light on how the questions would be resolved if C was aware of this fact. The Marriage Of A and C Is Invalid, The Marriage Of A and B Is In Force The only way to end a common law marriage that is valid in the recognizing state (i.e. either the same one where it is entered into or another way as the case may be; see below for when a common law marriage or foreign marriage must be recognized as valid) apart from a Utah common law marriage, is by the same death or divorce that would terminate a valid marriage entered into with a marriage license. A valid marriage is not established between A and C. No marriage is established between A and C, even if A and C are married in a state that does not recognize common law marriage, and even if both A and C were not aware that a common law marriage was formed between A and B because A and C did not know that the state where A and B were living at the time that the common law marriage was formed recognized common law marriage. This rule is subject to an important burden of proof rule. If there is a facially valid marriage certificate in evidence, the burden of proof is on the person seeking to show that this marriage is void to show that any prior marriage did not terminate by death or divorce prior to the new marriage certificate being issued. This rule flows from the fact that there is no comprehensive index of divorces entered in the United States and the fact that a valid divorce can be entered by consent of the parties in a jurisdiction other than the place where the parties were domiciled at the time of the purported divorce. In practice, this can be used to circumvent the general rule even when the general rule actually applies, especially when a putative marriage existed for many years and the common law marriage was long ago and the couple was separated shortly after it formed (often with the former common law spouse or both spouses being dead at the time of the litigation). But, this is only a burden of proof rule and can be overcome with affirmative proof of a lack of divorce (e.g. by the testimony of A and/or B in this question). The question of when a foreign divorce is recognized by a U.S. state as valid is a complicated one and beyond the scope of this question. It is particularly complicated in countries with non-Western legal systems such as Islamic law, in which some divorces are effected non-judicially. Where Are Common Law Marriages Valid Most states recognized common law marriage at some point in their history, or prior to becoming states when they were territories or parts of other countries. The states that currently recognize common law marriage or recently did so, if the marriage was formed in the first place in that state are as follows: Alabama (if created before January 1, 2017) Colorado (subject to restrictions for minors but allowing same sex marriages even if common law marriage between them was not legally recognized at the time of the common law marriage) District of Columbia Georgia (if created before January 1, 1997) Idaho (if created before January 1, 1996) Iowa Kansas Montana New Hampshire recognizes domestic common law marriage for purposes of probate only (there is a three year cohabitation requirement) although it recognizes valid common law marriages entered into outside the state. Ohio (if created before October 10, 1991) Oklahoma Pennsylvania (if created before January 1, 2005) Rhode Island South Carolina Texas Utah recognizes only common law marriages that have been validated in a judicial proceeding. A common law marriage may be validated by a court of law up to one year after the alleged marriage has been terminated (effectively allowing for "common law divorce" in Utah only). Prior to statehood, Utah allowed polygamous marriage (at least de facto) and this issue greatly delayed its admission as a U.S. state, but it does not now recognize such marriages as valid and all people who entered into those marriages are now dead. The exact test for a common law marriage formation varies by state. The most common test for formation of a common law marriage is an understanding of the couple between each other that they are married, the couple holding themselves out to the public that they are married (especially in joint tax returns and in health insurance applications), and in some states, either cohabitation or consummation of the marriage. There is a body of law governing what connect a couple must have to a state in order for their relationship to be subject to that state's common law marriage rules. If the couple has a shared domicile in the state that is generally sufficient, but this is not always the bare minimum level of connection necessary to establish that a state's common law marriage laws will apply to a couple that is physically present in that state. For example, it is customary in many U.S. subcultures, for example, to hold a wedding in the state of the bride's parents' domicile even if neither the bride nor the groom are domiciled in that state. But, a ceremonial wedding held in a state that recognizes common law marriage without the benefit of a marriage license would almost always be valid in all U.S. states (if otherwise valid), even if neither member of the couple resided there. I am not aware of any U.S. state except New Hampshire where mere cohabitation and/or coparenting for a certain number of years establishes a common law marriage, even though law enforcement and journalists often describe couples in those circumstances as being common law married couples. Functionally, common law marriage usually comes up in one of two fact patterns. First, it validates ceremonial marriages conducted with most formalities of a fully valid legal marriage license marriage with a formal wedding that have some technical defect in formalities; these are easy cases. Second, it establishes marital rights between cohabiting couples (often with shared children) who live together and act more or less like marriage couples who never have a decisive moment that is a wedding or marriage ceremony but end up considering themselves to be a married couple and deal with the administrative state and in their social lives accordingly. In both cases, common law marriage is usually a doctrine invoked generally avoid harsh consequences for wives who have sacrificed economically in reliance on a domestic couple relationship who lack meaningful legal rights do to a lack of marriage formalities. N.B. Australia has a concept called de facto relationships that provide certain legal rights after more than two years of cohabitation for a limited period of time after the relationship ceases to exist in fact. These are not common law marriages in the senes of American law. When Must A State Recognize A Marriage Valid Where Entered Into At The Time Entered Into There is really only one exception to the rule that a common law marriage (or any other form of marriage) which was valid where entered into (even outside the United States) at the time it was entered into (even if that state no longer recognizes common law marriage) is valid in every state. The exception is that a state does not have to recognize marriages which are barred by public policy in the state where the second marriage takes place (for reasons other than a lack of a marriage license), but not in the original state. Basically, the marriages which a state does not have to recognize are: (1) marriages valid where entered into that were polygamous when entered into (generally outside the U.S.), (2) marriages where a spouse was a minor too young to marry at the time of the marriage by the recognizing state's standards if the common law marriage was not reaffirmed by conduct after both spouses were of age (Colorado recognizes common law marriages only when both spouses were at least eighteen years old at the time of the marriage or at some time afterwards in the continued common law marriage, and the validity of this unique limitation has not been legally tested), (3) a marriage entered into without the voluntary consent of both spouses that was valid where entered into (generally outside the U.S.), or (4) a marriage where the spouses were too closely related (although many states will recognize first cousin marriage that was valid where entered into even when first cousin marriage is not recognized in that state). This public policy exception also previously applied to (5) same sex marriages valid where entered into but not in the recognizing state, and (6) to interracial marriages valid where entered into but void in the recognizing state. But, these two public policy reasons to deny recognition of a marriage entered into elsewhere have now been held to be unconstitutional in the United States. Paternity Implications The father of a child born while A and B were married, prior to the purported marriage of A and C would be presumed to be the father among A and B, even if this paternity was not noted on the birth certificate of the child because vital statistics bureau officials were not alerted to the existence of the common law marriage. But, the rule in a majority of jurisdictions is that contrary to the general rule, the presumption that the father of a child born while A and C were purportedly married and at least one of them believed themselves to be married, was the person among A and C who did not give birth to the child, without other proof of paternity, would remain effective even after C learns that A and C are not married. Thus, a child of A and C would be legitimate, even though the marriage between A and C was void. Tenancy By Entirety Implications States with tenancy by the entirety are: Alaska, Arkansas, Delaware, Florida, Hawaii, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and Wyoming. In those states, title to a residency owned by a husband and wife that would otherwise be a joint tenancy with right of survivorship would instead be a tenancy by entirety. A tenancy by entirety property is only subject to being used to satisfy judgments against both a husband and wife, rather than only against one of them individually and functions a bit like an unlimited homestead exemption as to money judgments against one spouse only. Any property purported held in tenancy by entirety between A and C would actually be held in joint tenancy with right of survivorship by operation of law and the claims of a creditor against A or C but not both of them could be enforced against that residence in the one half interest of the person against whom the creditor had a claim. Criminal Law Implications A would guilty of the crimes of bigamy in most states (or under the Uniform Code of Military Justice if A is in the U.S. armed services which might also prosecute A for adultery), although a minority of them might recognize an intent requirement that would absolve A of criminal liability if A didn't realize that A and B were living in a common law marriage state. A may or may not be guilty of the crime of perjury in connection with the marriage application depending upon whether A was aware that A and B were in a common law marriage. Restitution might be awarded in a criminal proceeding resulting in A's conviction, in favor of B or C but probably limited to the legal fees incurred to establish the invalidity of the marriage to C. The odds of a prosecutor pursuing a criminal case under these facts if B complained are probably about 50-50, given that the facts are quite blatant. Often both B and C would ask the prosecutor not to bring charges because both of them have an economic interest in A being able to make money while not in prison so their economic rights can be respected, and often, but not always, a prosecutor would respect those requests. Of course, depending upon the state where the marriage license was issued and the time that the common law marriage of A and B was discovered by a complaining witness to the police or prosecutor's office, the statute of limitations for one or more of these criminal offenses may have run by the time the prosecutor is considering bringing criminal charges. Statutes of limitation for state criminal charges vary greatly from state to state. Rights Of B Against A As A Spouse B has the full rights of a spouse to support during the marriage, and, if either A or B seeks a divorce, to a property division and alimony and if there are joint children to child support and parental rights, with respect to A. While every state has no fault divorce, in some states, fault is considered in property division and alimony and spousal support other than support for children during marriage, and this would work to the disadvantage of A. Rights Of C In States Without A Putative Spouse Doctrine Against A In states without a putative spouse doctrine, C has only the rights of an unmarried person with respect to A (e.g. rights arising from co-ownership and rights to child support and parental rights with respect to their joint children). This said, it is conceivable in these circumstances that C might have a right to recover prejudice in C's economic position as a result of a purported marriage to A under a restitution doctrine, or under a common law fraud theory. Rights Of B In States With An Alienation Of Affections Tort Against C In a few states (including South Dakota, Mississippi, and North Carolina) B would have a right to sue C if C continued to carry on the purported marriage after C learned of the common law marriage of A to B, in an alienation of affections tort. The alienation of affections tort also exists in Hawaii, Illinois and Utah, but subject to greater limitations: Illinois only permits actual economic damages to be recovered in alienation of affection actions. Thus, it prohibits non-economic damages like pain and suffering, and punitive damages, in these suits. Hawaii would only allow B to sue C if C persistently overcame A's free will to establish the relationship with A (e.g. in a relationship that would constitute illegal sexual harassment in employment or an abuse of a fiduciary relationship by C) and B was without marital fault at the time. In Utah, B could sue C only if "full responsibility for the breakdown of a marriage can be attributed solely to the conduct" of C (with the typical case being one where C was a priest or psychotherapist for A). No states have both an alienation of affections tort and a formally recognized putative spouse doctrine. Rights Of C Against A In States With A Putative Spouse Doctrine And For Social Security Benefit Purposes In Colorado, Montana, Nebraska, Nevada, Texas, and Washington state and for purposes of Social Security benefits, C has the legal rights of a putative spouse from A for the period from the date of the putative marriage to C until C learns that A was in a common law marriage to B. The rights of a putative spouse are essentially the rights that a legal spouse would have had for a marriage of that duration reduced, to the extent necessary to respect the rights of B as a true spouse. The relative rights of B and C would be balanced by the Court in an equitable manner in the Court's discretion, likely, in part, by imposing greater burdens on A than a single spouse alone would be entitled to in a divorce. Note also that Colorado, Montana and Texas are the only U.S. states to have both common law marriage and to formally recognize putative spouse status. Bankruptcy Priority Consideration If the claims from B and C against A render A insolvent, and A files for bankruptcy, the marital claims of B will generally have priority as bankruptcy claims over the tort and putative spouse and contractual claims (if any) of C. But, child support claims of both B and C will have equal priority to the marital claims for alimony of B and will be superior to the property division claims of B. Probate Considerations If the common law marriage of A to B is discovered by C only after the death of A, then B has all of the rights of a surviving spouse (some of which are higher priority than creditors claims and some of which are lower priority than creditors claims) while C will have no spousal rights in the probate estate. Any putative spouse rights or tort or contract claim or property ownership claim that C has against A at that time can be asserted in the probate case as a creditor or co-owner of probate property. If A left a Will leaving A's estate in whole or in part to C, C will have rights an unrelated will devisee in the estate to the extent that there is anything left over after B's minimum marital rights and the claims of all creditors have been paid. The rights of a surviving spouse at death differ considerable from state to state. If A left assets by virtue of non-probate transfers to C (e.g. joint tenancy and/or beneficiary designations attached to particular assets), generally C will be entitled to those assets, but the assets that C receives at A's death from A may be invaded by B to the extent that the probate estate assets of A's estate are insufficient to meet A's obligations to B at death as A's surviving spouse. Joint Tax Return Considerations If A and C filed as married filing jointly on their taxes, their tax returns would have to be amended for all such tax years for which the statute of limitations had not yet run (usually three year from the due date of that return) as single or head of household taxpayers with separate returns for each of them. Usually, this would result in additional income tax being due from A and C combined. The application of prior tax payments made and prior tax refunds received would be allocated equitably by an appropriate court if necessary because the parties could not agree. Gift and Estate Tax Considerations For estate tax purposes, B will receive any unused gift and estate exemption of A at A's death. B will receive any assets received from A free of gift, estate and income taxes. Transfers at death to C from A will potentially be subject to estate taxation, and gifts made during life to C from A will potentially be subject to gift taxation. But, unless the sum of A's gifts and inheritances given to all people other than B during A's lifetime exceeded about $11.5 million, no gift or estate tax will actually be due at A's death. Retirement Account Taxation If A died with C as a beneficiary of a retirement account of A, or if C died with A as a beneficiary of a retirement account of C, the surviving person of A and C would not be able to roll over the proceeds tax free into a retirement account of the survivor. Instead, the survivor of A or C who was the beneficiary of the retirement account of the decedent among A or C would have to take taxable distributions either over the life expectancy of the surviving person, or over five years, as the survivor elected. Note On Authority I am writing from memory and my summary notes from when I was a professor of estate planning and later a continuing education teacher for lawyers. I could find all of the statutory or case law authority to back it up, but it would take another two or three hours that I don't have to devote to this answer. | Very few terms have a single "legal" definition or meaning that applies to all laws, and can be looked up as if in a dictionary. Rather, when a specific meaning is needed in connection with a particular law, that law will include a definition. But that definition will often not apply to the use of the same term in other laws or other contexts. Here I suspect that the OP has found the definition section of a US Federal law regulating commercial transport in interstate commerce. Obviously in such a law, those terms would be defined in the context of commercial transport. That does not mean that the same meanings will be applied in other laws. Driver's licenses and other traffic and motor vehicle regulations are largely matters of state law in the US. Definitions from a federal law, or indeed any law but that state's Motor Vehicle Code (or whatever a given state calls such a body of law) will simply not be relevant. The argument sketched in the question simply does not follow. | This would establish a new precedent (I assume) You assume correctly. However, a precedent is only binding on lower courts and persuasive on courts at the same level so a trial judge precedent is not very far-reaching. Does this statute takes precedence over (overrules) the previous court precedent? Not exactly. The precedent was good for the old (common) law. Now the law has changed and the old precedent is irrelevant. Courts only interpret the law and legislatures are free to change the law within the limits of their constitutional power. Indeed, a fair number of laws are enacted because the legislature does not agree with how courts are ruling. | Yes. It is fairly common for there to be one owner at law, but another person who has a beneficial interest - such as a long-term cohabiting partner. This may arise because the parties set it up that way, or perhaps more often when courts find that there is a "constructive trust" or a "resulting trust". See for example the concurring opinion of Lord Hope of Craighead in Stack v Dowden [2007] UKHL 17, Parties are, of course, free to enter into whatever bargain they wish and, so long as it is clearly expressed and can be proved, the court will give effect to it. But for the rest the state of the legal title will determine the right starting point. The onus is then on the party who contends that the beneficial interests are divided between them otherwise than as the title shows to demonstrate this on the facts. The resulting court process may find that the beneficial interest exists, or not, and what fraction of the property it represents. It's common to find situations where one party put up most or all of the whole purchase price of a house, which was then registered in both names, and they then disagree about whether it should be split 50-50 or otherwise - that's an example of the beneficial ownership differing in proportion from the (equal) legal ownership. (See Jones v Kernott [2011] UKSC 53 at paragraph 51 for an explanation of this particular pattern.) The same sort of case arises when a cohabiting partner does not own the house, but still contributes to the mortgage and other bills - then, depending on the facts at hand, there may be a "constructive trust", and the partner is entitled to a share of the sale price of the house even though they are not its legal owner. A "resulting trust" might arise when someone contributed money for the purchase of the property, even though they didn't end up as a registered owner, but the parties acted in other respects as if they were joint owners. | It depends. An agreement of the type you describe is called a post-nuptial agreement or marital agreement. These agreements are not prohibited, but are subject to heightened scrutiny. In determining if it is valid, courts consider financial disclosure, an opportunity to consult a lawyer, and a voluntary non-coerced agreement in writing, as well as a requirement that it not be unconscionable when signed or when enforced. Strictly speaking, while alimony can be eliminated in this manner and divorce attorneys' fees and property settlements can be managed in this manner, child support cannot be eliminated in this manner, although some agreement as to what constitutes payment in kind of a child support obligation that is currently existing can be reached. Modification of child support requires court approval since the child's rights are implicated and the child is not competent to agree. In the circumstances you describe, I do not think that any of the agreement would be upheld as it would likely be found to be flawed both substantively and in the process by which it was agreed. This is particularly true because New Jersey is quite hostile to post-nuptial agreements relative to most states and generally only permits them when there is evidence that the marriage was nearly moribund or the agreement was entered into in connection with a reconciliation. In general, some of the considerations that apply in New Jersey are that: If the agreement was oral and enforcement is sought of a promise to convey real estate, there must also be compliance with the statute of frauds. The court may have to resolve disputes over the terms of the agreement. The court must consider whether the circumstances under which the agreement was entered into were fair to the party charged. The terms of the agreement must have been conscionable when the agreement was made. The party seeking enforcement must have acted in good faith. Changed circumstances must not have rendered literal enforcement inequitable. This approach remains good law in New Jersey and has been enforced in a manner that is quite skeptical of these agreements. See, e.g., Kriss v. Kriss, A-3255-15T3, 2018 WL 1145753 (N.J. Super. App. Div. Mar. 5, 2018). Many others states are more inclined to uphold such agreements. | When traveling abroad, how does a nation state know that a couple is married? Usually by accepting the couple's verbal statement. Some countries include a remark in a married person's passport with the name of the person's spouse, which is obviously more likely to be accepted in case of doubt, but not all countries do this. The usual formal proof of a foreign marriage is a certified copy of the foreign marriage certificate with an apostille or similar legalization whereby the foreign ministry of the country where the document was issued (or, in some federal contexts, of a constituent entity) attests to the legitimacy of the official who certified the copy and to the authenticity of the certification. This is a fairly burdensome process that is normally associated with proving family relationships in connection with establishing residence in a foreign country. Nobody is going to expect visitors to have such documents. For a casual or temporary purpose such as hospital visitation rights, the certified copy might be helpful even if it is not legalized. On the other hand, in a country where homosexuality is criminalized, the certificate could be used as evidence against the couple. What laws are in place regarding hospitalization and next of kin? This will be governed by national law. Human rights treaties probably have something to say about it, at least indirectly, but if your spouse is in the hospital that's not going to be of much use. Local law and the hospital's policy will control. What happens to a same-sex couple traveling to a nation that is not amicable to same-sex unions, say India? This is rather too broad, especially as it will depend on the sympathy of the people involved as well as on local law. The outcome could be anywhere from according full spousal visitation rights to the arrest of both spouses followed by conviction, imprisonment or possibly worse, deportation, and a ban on reentering the country. | No. Separate documentation of change of name, taken together with the original marriage certificate, should suffice. | The law does not criminalize "having more than 1 legal spouse", it criminalizes specific behavior. The polygamy statute is here. It says Every one who (a) practises or enters into or in any manner agrees or consents to practise or enter into (i) any form of polygamy, or (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii), is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. That is, if you behave like you're married to multiple women, you've committed a crime. |
Dentist changed charge after the fact My son needed dental work from our regular dentist(been with for about a year and a half), they had told they wanted to do several things that would cost over $1000 after my insurance. I told them to wait till January when insurance would refill. They called me back and said they could fix worse tooth with a crown and cavity next to it for $120 out of pocket. I accepted this. On my sons appointment to put in permanent crown they said they had miscalculated and I owed them $925 more. I know it's unethical, but is this legal? By the way there is no way in hell I will pay it. | You have to look at the contract, which is that thing they made you sign before the treatment. The primary rule is that the written contract rules (look for a clause saying that "this is the whole agreement" – there is a legal principle, the 4 corners rule, that precludes verbal statements from determining what the agreement is), and the contract probably has a specific statement about your financial responsibility. They may be contractually limited to certain amounts if you are an "in network" patient (because of their contract with the insurance company), but there is always language saying that if the insurance company doesn't pay (not in-network, or some deductible or other coverage-related issue), their friendly cost estimates are not price commitments. You can refuse to pay and they can take you to court; you can make your argument that they promised to do the work for $120. They will counter-argue that they gave you an estimate of the actual cost based on information that they had available, but you agreed to pay the full amount, insurance-based estimates notwithstanding. You can argue that at no time did they ever tell you what the worst-case scenario price would be, and they can argue that a reasonable person would know that $120 is not the full price for a crown and filling. They can argue on grounds of unjust enrichment that you owe them more money. It is not uncommon for people to misinterpret dental estimates as concrete prices. | Don't trivialize this because it appears to be minor and inexpensive. If something goes wrong, you could be liable for damage. You should have an idea of what a reasonable cost should be based on the rent and condition of the property. Discuss it with the landlord. If the landlord chooses to fix it, you should have something in writing, signed by both you and the landlord, acknowledging that you aren't responsible for reimbursing the landlord for the cost or acknowledging receipt by the landlord of any contribution from you and a statement that the contribution fulfills your lease requirement. If you're going to fix it, you should have something in writing, signed by both you and the landlord, agreeing to the choice of replacement parts and the choice of anyone you hire to do the work. It might be nice to think you can save money by doing it yourself. But if anything happens and there's damage, you could be liable. You should have renter's insurance. You should check your renter's insurance policy to see what, if anything, it says about tenant responsibility for repairs. Your insurance might pay for it. More importantly, will your insurance protect you if something goes wrong and there's damage? I recommend you copy this and modify it as you see fit or, if you don't this is correct, make up something that you think is correct. Keep an electronic copy on your computer. But also have a notebook in which you keep how-to papers, so you don't have to figure it out all over again at some time in the future and to use the how-tos you accumulate to help you make new how-tos as necessary. Also keep documentation, especially warranties. Scan receipts (receipt ink is notorious for fading over time) and warranties, keep them the electronic copies on your computer and print the receipts and put the printed receipts and original receipts with the warranty papers in the notebook. Keep a manilla envelope with receipts, warranties, instructions, and any papers you receive from anyone you hire to do the work. When you move out, you should give the envelope to the landlord so the landlord will be able to maintain what was installed and obtain warranty service if necessary. | Prove my work is not a trade secret violation Please don't. It's not your job to prove your innocence. The burden is on them to be specific, explain fully, and prove specific claims about your actions. In other words, don't justify, don't explain, and don't defend yourself to them. It's actually best you do not say anything to them, and just forward the letter to your legal counsel (Since you're selling software to be used in the medical field, I assume you already have some kind of legal counsel). For instance, even saying something as innocuous as "Managing patients, Exams, Bills etc are all public knowledge." could be used against you. Because it establishes the fact that you've been working on those features with them and that you've been working on those features with your new company (which doesn't necessarily follow, for all they know, you could have purchased a library module from someone else with those exact features). In other words, even if you were to reply with such an innocuous-sounding statement, you could be saving them months of cross-border discovery and litigation about some of their claims (even if you believed you were being entirely reasonable by defending yourself). But at the same time, don't take what I'm saying to mean that you should lie to them about which features you recently worked on. When I say that you shouldn't be talking to them. I mean that you should not be talking to them. You shouldn't be engaging with them and you shouldn't be giving them any shred of information whatsoever (implied or otherwise). It's not your job to make their job any easier. Do not reply to them. Don't even acknowledge the receipt of the letter (unless you already did by signing for it, which can't be helped). Use a legal intermediary. Give the letter to your own legal counsel (whether you signed for the letter, or not) and leave any reply to him or her (assuming he/she thinks this warning letter even warrants a response). And if this former employer gives you a phone call, kindly refer them to your legal counsel without saying another word. | As a lawsuit, it doesn't make sense in U.S. law unless you have suffered significant injuries. Your damages are likely to be, at most, nominal ($1) if you discovered it before you were hurt, so you'd only lose the money spent replacing the jar of peanut butter with a non-defective one and the nominal $1 damages. You would not generally have a right to any of your attorneys' fees and personal time spent on a lawsuit like that which would likely cost tens or hundreds of thousands of dollars on an hourly basis (no attorney would take a case like that on a contingency basis), and would take hundreds of hours of your own personal time. | 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". | Yes, this is illegal. If by "across the state" you mean some distance away but in the same state then the exact law will depend on which state you are in, but as a rule any "conversion" of property to the use of another counts as theft. In this case your aunt has "converted" the property to the use of your Nan (funny legal phrase). The fact that the people doing this are your relatives makes no difference. (When asking about the law here you should always say which state you are in.) Although theft is a crime, you could also start a civil case to get your property back without involving the police. The details depend on where you are, but try googling "(your state) small claims court". Many states have a process for collecting low-value debts or other property without needing lawyers. You need to have a firm conversation with your aunt about this. Tell her that you want your property back, and don't back down. Also call your Nan and explain this to her as well; she may not have realised that she is in possession of stolen property, which is usually a separate crime. If you want more advice on how to get your property back without starting a family row then you might ask on the Interpersonal Skills SE, but it might be better to start with "When are you planning to return my property?" and leave "You are a thief" as a last resort. Edit: As Eric Nolan points out in the comments, you may be a minor. If you are under 18 then your aunt has authority over you that she wouldn't have if you were older. For instance, if she is concerned about your use of video games impacting school-work then confiscating your console and putting it out of your reach would be perfectly legal. | There is, as far as I can see, no Crown exemption from the sale of goods acts (including the International Sale of Goods Conventions), but unfortunately for this patient the NHS has no liability either in logic or in law. The doctor provided a written prescription, for which there is no charge, and which allows patients to buy certain drugs. The patient took the prescription to a chemist's, which (for money) provided the drug specified in it. Even if the patient had noticed that the prescription was for the wrong form of medicine, the pharmacist has no discretion to alter it; if the prescription specifies tablets, the patient can either buy the tablets or not buy them and take the prescription back to the doctor. In neither case has either the doctor or the chemist committed any conceivable offence regarding sale of goods. (There might theoretically be a case for negligence, but it would never be worth either suing a doctor for an £8 prescription fee or reporting him to the authorities for writing a prescription for the right drug in the wrong form). | A text message is just as legally binding as a letter, and the lion's share of the cases have held that a text message from a known sending phone number is equivalent to a signed letter. One would have to carefully parse the exchange of communications to see if they amounted to a binding offer and acceptance, but the fact that it was in a text message, rather than on a piece of paper is irrelevant. Indeed, generally speaking, such an offer and acceptance, if the words exchange show that, could be binding even if made orally, if it could be proved by a preponderance of the evidence. Procedurally, however, once a judgment has been entered, as is the case here, the process of proving that you have complied with a stipulation regarding what is to constitute payment in full may be challenging. I'll leave the question of civil procedure in Connecticut small claims court to someone more knowledgable about it than I am as that could vary a lot from state to state, or even from court to court based upon local practice within the state. |
Where to look for copyrighted names? We (me and my team) are working on a (software) project and are trying to pick a name for the group/team. We have settled on "Watchdogs" (due to the project's nature). However, there is some concern that the name might be copyrighted and might get us in trouble. I'm aware of the game, however that's called "Watch Dogs" (two separate words). Where should i start looking for this kind of thing? Like if a name is copyrighted and may get us in trouble or if it's fine to use? | Names cannot be copyrighted at all, in any country. They can, however, be protected as trademarks. The general idea is that if one uses a name to identify a product or service, or a creator of products or services, others cannot use the same or a similar name to identify their products or services in such a way that a reasonable person might be confused into thinking that the two came from the same source, or one was endorsed or approved by the other. Trademarks are limited in scope to a particular country, A name that is protected in Canada, say, will not be protected in the US unless steps have been taken to protect it there. In some countries a trademark must be officially registered to get any protection, In others, such as the United States, merely using the mark can give a degree of protection, although registration give more protection. Each country maintains a trademark registry which can be searched for existing marks. There are search firms that will do such searches for a client, and also search for marks in use but not registered, for a fee. Trademark protection is generally restricted by the type of product or service involved. An anti-virus program, say, called "Guard dog" would probably not interfere with a fantasy game called "Guardog". A private security service of the same name would pretty surely not interfere. The range of protection depends on how widely known the product is, but "software related" is a very wide area, and except for famous marks, a mark protected in connection with one area of software will not be protected in a very different area of software. Names that a purely invented, such as Kodak, are more strongly protected than descriptive marks such as "Best Pizza" Particularly famous names such as "Microsoft" get additional protection even outside their usual areas, so "Microsoft Pizza" might be a problem. Logos and other graphic marks can also be protected as trademarks, but that is not what the question asked about. The styling of a trademark, such as a particular font, choice of colors, and so on, can also be protected. This is called "trade dress". A disclaimer making it clear that a somewhat similar name is not related, and the is no affiliation can help avoid avoid an infringement suit. For example: Pear brand kites are in no way associated with, sponsored or approved by the makers of Pear smartphones. On this site we cannot give specific legal advise, so we cannot evaluate whether a specific proposed trademark would or would not infringe an existing mark. It might be well to consult an attorney with trademark experiences before finally choosing a name and doing marketing under it. | Each episode of the show as a whole, and all the individual images in it, are protected by copyright, but the idea of a holophonor, or indeed any idea, is not. The more closely anyone else's drawing of a gadget resembles one from the show, the more likely it would be to be found to infringe copyright. The same is true of a character image. The more distinctive and original the image, and the more closely someone copies it, the more likely a finding of infringement would be. | This is known as "film novelization"(For example, the novelizations of the Star Wars movies are film novelizations, created under license), and is copyright infringement unless made under a license from the copyright holder. Specifically, you would be making a derivative work of the original, by changing the medium. One of the rights provided by copyright is the right to control the transference from one medium into another. This, in my (non-lawyer) opinion, is unlikely to be found as fair use. There are four test factors for determining fair use(source), decided on a case by case basis: Transformative Character of the Derivative Work: Unlikely to be found in your favor, as nothing is transformed ("I don't change anything, the name are the same, everything is the same, it's just a conversion to textual form"). Nature of the Original Work: A narrative entertainment film, thus unlikely to be found in your favor. Amount and Substantiality of the Portion Taken: You've taken all of it; not in your favor. Effect on the Potential Market: You are essentially providing a free version of what copyright holders can often charge for; negative effect on their potential market. Not in your favor. | 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. | Say I wrote a spy novel, in which some character refers to my protagonist as "Mr Bond" suggesting that he thinks of himself as a "master spy" like the movie character. Would that infringe a trademark on "James Bond" (assuming, for the moment that that name is trademarked)? No it would not. Or suppose my main character mentions having met Bond years ago during training, or on a previous mission. Would that infringe? Again, No. Or suppose I write a brief, one-paragraph walk-on scene in which the James Bond character appears? Infringement? Again, no. Or suppose my spy character is waiting for a meeting, and stops for a meal, and i mention that he has a Coke. Would that infringe the trademark on Cocacola? No it would not. All of these are forms of nominative use, and none of them are "uses in commerce", so there is no trademark liability. (Interestingly, there was a series of stories set in an alternate world, written by Randall Garrett in the 1960s-90s. Some of these are spy stories, and his major spy character is "Sir James le Lien" Now a "lien" is a French-derived legal term for a secured debt. The most common English-derived term for a (slightly differently) secured debt is "bond". No one ever tried to sue Garrett for trademark infringement.) The game "Cards Against Humanity" includes, as I understand, many brief references to real-world and fictional things and characters, some of which are trademarked. But none of these uses are "in commerce" and no reasonable person would be confused into thinking that the game was sponsored or endorsed by any of the trademark holders, nor are these trademarks being used to promote or advertise anything. So, No infringement. Now if the game were advertised as "The only card game to feature super-spy James Bond", that might well be infringement. at least a case could be made for infringement then. But as it stands? I don't think so. Also, use of the R-in-a-circle symbol is totally optional when one makes nominative use of someone else's trademark. It can help, along with a disclaimer, to make the point that the user is not claiming ownership. Something like: {X}® and {Y}TM are trademarks of {Z-corp}. They are used here to refer to {Z-corp}'s products. The use here is in no way approved of by Z-corp, nor does Z-corp endorse, sponsor, or recommend this product. No ownership of these trademarks is claimed. However such a disclaimer is not in any way required, any more than the ® symbol is. One exception, if a trademark is used with permission, the owner may make use of the ® symbol a condition of the permission. | No, it does not fall under fair use: It is commercial use in nature It is a copyrighted work It is hard to say what portion of the copyrighted work you'd be using based on your description, so test three is inconclusive It could be argued in your favor that the infringement would not have an impact on their potential market, but it could potentially impact the value If discovered the owner of the copyright could pursue action against the company you work for. | Names of people, institutions, and events are not protected by copyright. Things that have occurred at events like math tournaments are facts, and may be recounted, in your own words, with no fear of infringing any copyright. Facts are never protected by copyright, although a particular description of facts could be, and so could a particular selection and arrangement of facts. Specific math techniques and their names are not protected either, and may be described without infringing copyright. The items you mention in the question are: video game / movie references and names No copyright issue here. common integration bee problems No copyright issue here. names of a university / math competition organizers No copyright issue here. integration techniques and formulas No copyright issue here, unless you copy an extensive description of a technique without rewriting it in your mown words.. using someone's Overleaf Latex package to format the book This depends on the license for the package, but there is not likely to be an issue. In short I think you are worrying over issues that are in fact non-issues. | The words "proprietary format" are important. Are you sure the format is proprietary? If it is, then it's likely protected in which case they might have grounds to sue (but that does not mean they would definetly win). If the format is not proprietary, and so long as you don't share data which is proprietary then I believe you fine. I'm not a lawyer - but I cite GIF files as an example. They were still protected by the US and some other countries until at least the late 90s and there were various threats to open source linux companies who shared code that used the file format. I'm not aware of anything other than threats and never heard of any company being sued, let alone winning or losing. Another example that comes to mind is the RedHat ISO format. My understanding is RedHat could not stop anyone from sharing open source, but they could prevent folks from sharing the format they assembled and shared the open source. Again, I am not sure if it was ever tested in any court of law anywhere. |
Paying back money from purchase in an agreement that does not mention a timeline for the condition of the money given My sister bought her home a little over a year ago. During the home inspection she found that the roof only had 2-3 years left of life. The seller agreed to cover half the cost of the roof and left her money in escrow for the roof repair. Fast forward a little over a year and the seller's lawyer sent a a notice requesting the money back since the repair was not done in a timely manor. Her contract had no reference to a timeline. From my perspective the money is hers to apply toward the roof whenever she need to. Even if she move before fixing the roof, she can use this money to go towards roof repairs for the future owners. It's in the United States, the state is California. It only has been 1 year. | Contracts contain an implicit term that obligations will be carried out in a reasonable time While the situation is unusual and we obviously don't have the specific terms of the agreement, it would appear that the vendor agreed to contribute to half the cost of the roof repair and your sister was obliged to contribute the other half and arrange for the roof to be repaired. Implicit in this is that she would do this within a reasonable time. Your sister does not have the right to keep the money in limbo indefinitely. It's open to argument whether a year is a reasonable time or not. Similarly, if your sister is in breach of the agreement, the vendor would probably only be entitled to damages for what they have lost; they would not normally be entitled to terminate the contract. Their damages might be assessed as the difference between what their share costs now compared to what it would have cost a year ago - this may be nothing or a lot depending on how prices have changed - and interest lost on the balance that should have been returned to them. | You will need to sue them for the money. You may decide that the cost and stress of doing so is not worth it, and just write off the cost. In future you should require a deposit (if you don't already), and not return it until you have checked that the final utility bills have been paid. (I am assuming there was no deposit, or that you have returned it already; if not, you can pay the electricity company out of that deposit.) | Is this true? Yes. can someone explain how this might work? You can form an LLC, and then fund it with money that would be used to purchase the home, and buy the home in the name of the LLC. One minor exception is that a handful of rural U.S. states prohibit limited liability entities from owning farm land, so if the home is part of a farm or ranch, this could be prohibited in those states. If there is a mortgage, this is more difficult, but not impossibly so. The primary debtor on the mortgage would be the LLC. Ordinarily the owner of the LLC would be required by the bank to guarantee the mortgage, but loan guarantees do not necessarily have to be made a matter of public record. If the LLC has only one member, it is disregarded for income tax purposes, so that isn't a problem. There may be issues in this case of a house not qualifying for residential property tax treatment in some cases (which is often a lower rate than commercial real estate). There is also sometimes an issue that property owned by an LLC isn't eligible for a "homestead exemption" of equity in the home from creditor's claims. It may also be treated differently in terms of eligibility for means-tested benefits like Medicaid nursing home coverage. But, it is allowed. I ask the question, for it seems to me that it should not be difficult to find out who the owner of any given LLC is. In the U.S., the owners of a manager managed LLC are rarely disclosed in the public record (although about half of U.S. states require one or all of the members of a member managed LLC to be disclosed). But all U.S. states allow LLCs to be manager managed. Also, all U.S. states are required as a matter of constitutional law to all LLCs organized in a state other than the state where the LLC owns real property or operates to do business in that state. States can imposed regulations on out of state LLCs to some extent, however. The main exception to these general rules is California. Although the California Articles of Organization do not list the members of the LLC in the Artiles, California requires the LLC to file a Statement of Information within 90 days of the approval of the LLC. The Statement of Information does require a list of the LLC's members, and it does become public record. Records of LLC ownership are maintained in the private internal records of the LLC. A contact person, called a registered agent and sometimes the managers of the LLC with authority to act on its behalf must be publicly disclosed, but neither of these posts has anything to do with ownership. Many states also require the "organizer" of the LLC to be disclosed, but that doesn't have to be an owner of the LLC either. Often it is a lawyer or accountant for the LLC. It will be necessary to disclose the ownership to federal tax officials, and often also to state tax officials. Also, soon, under a newly enacted federal law that has not yet taken effect because regulations have not been written, to federal money laundering officials. But, both of these pieces of information are confidential and not available to the general public. This information can be obtained by subpoena in pertinent litigation, however, must often be disclosed when filing federal lawsuits, and is often required to be disclosed by counter-parties in business transactions. Footnote The U.S. practice is not the global norm. In most civil law countries, for example, ownership interests in entities need to be reflected in a notarized document kept in the custody of the notary involved. In recent times, interests in transparency and avoiding tax evasion and money laundering for terrorism and crime have promoted additional, less decentralized records of entity ownership. | He gets exactly what you give him. If you think the home is worth $225,000 then you should offer him to buy the house for $225,000, and that's it. There is no reason why would accept a lower purchase price of $150,000, there is absolutely no reason to deduct $50,000 rent from the purchase price, because that $50,000 is rent for living there, and there is no reason for anyone other than him to pay the $10,000 for changes that he wanted. Alternatively, you can put the house on the market for $225,000, and if it is sold, your daughter and boyfriend can find somewhere else to live. On further thought, and reading the comment: This boyfriend seems to be quite the sleaze bag. So if you gave in to his demand, and sold him the house for less than half what it's worth, you shouldn't be surprised if he sold it for $225,000, moved away with his new girlfriend who is not your daughter, and left your daughter homeless. | This is not a place for specific legal advice, but you shouldn't be afraid of the small claims court; I'm doing that myself and it really is a low-risk and straightforward way to get money that is owed to you. Step 1: Get the boiler repaired or replaced as necessary. Keep the receipts. Don't be tempted to get an upgrade or anything else to push expenses that are legitimately yours on to the other party; find out what the cheapest thing is that you can reasonably do to fix the problem and then do that. Step 2: Write a letter to the seller in which you set out the facts of the case and demand the cost of the repairs. Also include any other expenses you have had to incur, like money for your time off work while the repair is done. End it with "If you do not agree to pay this money within one month then I will take action in the county court to recover the money". Send it by recorded delivery and include a copy of the repair receipt (NOT the original). Step 3: If you do not get your money then go here and follow the instructions. You have to pay an up-front fee to the court which gets added on to the amount you are claiming. That is the only money you are putting at risk if you lose. The whole thing is as informal and straightforward as possible, and is purposely designed so that you don't need a lawyer, nor can you or the other side claim for the cost of a lawyer if you win. This is why your lawyer is pushing you to do this by yourself: he knows that his fees would be out of proportion to the amount in question, and you wouldn't be able to get that money back even if you won. The only other wrinkle is if the other party has moved far away: in general if a hearing is needed then it will be held near them rather than near you, so you might have to travel. | This is not theft, this is a contract dispute. You gave them money, they promised to do certain things, the contract says what that is. I surmise that they wanted a deposit to cover their costs in further dealing with you (moving is more complicated and costly than buying a loaf of bread), so in walking away from the deal, you've economically damaged them to some amount. The deposit is "liquidated damages". Your recourse is to sue them for that amount, because... Perhaps you didn't understand why you were giving them this deposit (an act that constitute some level of agreement), but any time you hand over a deposit, there is a circumstance under which you will not get that money back, and you have to understand what that circumstance is. | What you're talking about is a liquidated-damages clause, where the contract explicitly spells out the damages to be awarded in the event of a breach. The law will vary some from state to state, but these clauses are generally enforceable. Some courts limit their use to cases where calculating the damages resulting from the breach would be impossible or impractical. But in the United States, along with all other common law jurisdictions, courts generally agree that if the liquidated-damages clause appears to penalize the breach instead of simply compensating for it, it is not enforceable. See, e.g., Ridgley v. Topa Thrift & Loan Ass'n, 17 Cal.4th 970, 977 (Cal. 1998) (“A liquidated damages clause will generally be considered unreasonable, and hence unenforceable under section 1671(b), if it bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach.”) The trillion-dollar damages clause "bears no reasonable relationship" to the damages that would actually result from a breach of a software license, so you can safely expect a court to refuse to enforce it, and limit you to whatever damages you could actually prove in court. Even if you were to drastically reduce it to "all the money you have, and then some," "all the money you have," "half the money you have," or even " "1 percent of all the money you have," the language still makes clear that the contract is not aimed at compensating for the breach, but rather penalizing the breaching party. In the end, what you're talking about isn't going to work, because contract law is generally less concerned with penalizing people than with making them whole. | 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. |
Is "cheating" in offline, single-player games illegal? I understand there are laws like the Circumvention of Technological Measure (CTM), Computer Fraud and Abuse Act (CFAA), Digital Millennium Copyright Act (DMCA). According to these laws it's considered 'copyright infringement' to modify software one does not have the copyright to, which basically stops people from 'hacking' any games or software, but nobody is trying to hack the Digital rights management (DRM). That DRM stuff relates to making keygens and cracking software I have searched Google and not found any cases anywhere regarding someone being sued for 'cheating' in a Singleplayer (offline) game, but due to the way the copyright laws are worded, there seems to be a grey area surrounding this subject. Here is something I found in my research: Lewis Galoob Toys, Inc. v. Nintendo of America, Inc. - Source: Wikipedia. In her ruling, Smith compared usage of the Game Genie to "skipping portions of a book" or fast-forwarding through a purchased movie; thus the altered game content did not constitute the creation of a derivative work as Nintendo had argued. This court case established the legality of using the device "Game Genie" to modify the way a console game is played. But does this legal argument also extend to modifying (or "hacking") the game binary of a single-player game itself? | united-states There is no one-size-fits-all answer to this question. It depends on the game. The difference between modding and cheating is largely a matter of semantics. In some cases, cheaters can use facilities which are deliberately built into the game, without modifying it (e.g. cheat codes, console commands, etc.). However, it is difficult to see how making use of such facilities could possibly violate any law, regulation, or agreement, and so the rest of this answer will focus on modding. I think it would help to walk through two specific examples, to illustrate the broad range of possible answers to this question. Here are the examples I chose: The Elder Scrolls V: Skyrim for PC ("Skyrim" for short) Super Mario Odyssey for the Nintendo Switch ("SMO" for short) Both of these games are single player (although SMO has a minor, optional multiplayer component), and both have been extensively modded by their respective communities. Skyrim Skyrim's Creation Kit EULA expressly authorizes modding, and the wording implies that mods are the intellectual property of the modder (because it states that the modder automatically grants a license to Bethesda). Bethesda even permits modders to sell Skyrim mods for real money, which is practically unheard of in the video game industry (even under the very restrictive terms which Bethesda sets for such paid mods). Bethesda's open authorization of and acceptance towards modding, and the fact that they deliberately provide modding tools in the first place, makes it very difficult to characterize Skyrim mods as anything other than legal. However, if you try to circumvent Steam's DRM, or sell mods for money without going through Bethesda's paid mods program, then you are certainly violating one or both of the EULA linked above and the Steam EULA. Such violation could subject you to civil liability under a variety of legal theories, but in practice, the most likely outcome is that Valve terminates your Steam account (as the Steam Subscriber Agreement says they can) and you lose all the games you previously purchased. But they're not going to waste their time suing you, unless you somehow make a nuisance of yourself. Paid mods, outside of Bethesda's system, might even be criminal copyright infringement, although I would be rather surprised if it were actually prosecuted as such (the DOJ generally has more important things to worry about, and copyright infringement can't be prosecuted at the state level). If you're willing to call civil liability and unlikely-to-be-prosecuted criminal liability "illegal," then Skyrim modding can be illegal if you violate the terms and conditions. One other thing: The terms linked above also say that mods ("New Materials") can only be distributed "to other authorized users who have purchased the Product, solely for use with such users’ own authorized copies of such Product and in accordance with and subject to the terms and conditions of this Agreement and all applicable laws." In other words, you are not supposed to distribute mods to users of pirated copies, which is probably impractical to enforce in any meaningful way (modding sites generally make no effort to verify that individual users have actually purchased the game, although in theory it might be technically possible to do so). In my experience, modders are often quite hostile to users of pirated copies of Skyrim, because such copies are nonstandard and more difficult to support. Bethesda evidently views this in-practice hostility as "good enough." SMO SMO is a completely different ballgame. Nintendo does not provide modding tools for either the game or the console on which it runs. Furthermore, Nintendo has repeatedly updated the console to prevent people from modding it, and to break or render ineffective existing techniques for such modding. Their stated rationale for this activity is to prevent users from running pirated games on their consoles. Therefore, this brings the whole thing into the scope of the DMCA's infamous anti-circumvention provisions. 17 USC 1201 provides that: (a) (1) (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter. [...] (3) As used in this subsection— (A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and (B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. It doesn't matter whether you are trying to commit piracy or not. It only matters that: You "avoid, bypass, remove, deactivate, or impair a technological measure," and The technological measure "effectively controls access to a work" as defined above, and You did it without Nintendo's permission, and Your action doesn't fall under one of the permanent exceptions listed in 17 USC 1201, nor under any of the 3-year exceptions which the Librarian of Congress is authorized to temporarily grant. So by breaking the DRM on the Nintendo Switch, which is a prerequisite for modifying SMO, you necessarily violate 17 USC 1201, unless you fall into one of the exceptions. Of those, the only one which is even colorably relevant is subsection (f): (f) (1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title. ("This title" means Title 17, which is the entire copyright law of the United States.) This is basically saying that you can bypass DRM for the limited purpose of making "an independently created computer program" interoperate with "other programs." The problem here is that most mods are going to be derivative works of some kind, and just creating a derivative work, even if you never distribute it, is generally copyright infringement under 17 USC 106. And the exception-to-the-exception is that it doesn't apply whenever you infringe any copyright, regardless of whether the DRM was intended to prevent you from committing that specific act of infringement or not. There is some room for debate over whether mods can or should be considered fair use, which is beyond the scope of this discussion. Suffice it to say, it's a complicated, fact-specific inquiry, which is not compatible with sweeping "modding is legal/illegal" statements. We also don't have much good case law for it. Regardless, the Switch's EULA expressly prohibits modding, and so you would still be liable for a contractual violation anyway. | There is something called the exhaustion doctrine that says that once the holder of a patent sells a patented device, they have relinquished control over that particular instance of the patent implementation. Anyone who legally purchases this hardware has the right to run whatever software they want on it, as long the software is otherwise legal (software designed to defeat DRM would be an example of software that is is not legal). | 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. | Ideas are not protected by copyright, only arrangements of words are protected. If you "rephrase" by only a minor change of wording, leaving much of the wording intact, that is still a copyright infringement unless an exception such as fair use or fair dealing applies (and that seems a bit doubtful in this case). If you "rephrase" so that the wording is quite different, even though the idea is the same, there is probably no infringement. Copying elements of computer code or other IT commands that are essential to making an example work is not infringement. Where there is only one or a very small number of ways to naturally express a fact, copying such expression is not infringement, as facts are not protected by copyright. Adding examples but keeping significant wording unchanged is still likely to be infringement. | This topic came up as a sub-point to another question a few weeks ago, I ended up doing a fair bit of research with not much in terms of concrete results. I'll start with the USA since they're basically the only major copyright jurisdiction for which I could find a straightforward answer, then discuss internationally. USA In the USA, Bob would generally not hold copyright in modifications thus there is no copyright for Alice to violate, assuming no copyright exceptions like fair use apply. This is due to 17 U.S.C 103(a) (see also Anderson v. Stallone): The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. While I couldn't find any commentary on this point, the wording does seem to imply that portions of a derivative with additions far enough removed from the original work might qualify for copyright protection. International copyright law The main provisions governing derivative works in international copyright law come from Berne Convention Article 2(3): Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work. and Article 12 (with a similar provision specifically for translation in Article 8): Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works. There's the argument that since unauthorized derivatives aren't explicitly excluded from protection that they should be protected, however, there's also the argument that granting unauthorized derivatives their own copyright is in itself prejudicial to the original copyright holder. Note I don't think it's debated that non-infringing derivatives gain their own copyright, including unauthorized derivatives that nevertheless fall into a copyright exception such as fair use. Dr. Daniel Gervais points out in The Derivative Right, or Why Copyright Law Protects Foxes Better than Hedgehogs section III.B that there's a bit of history here. The original Berne Convention 1886 text stated that "Lawful translations shall be protected as original works." However, the word "lawful" was struck out in the 1908 Berlin Convention coming up with wording similar to today's Article 2(3). Gervais's article cites Étude sur la Convention de Berlin de 1908 pour la Protection des Œuvres Littéraires et artistiques by André Petit implying disagreement between the countries about whether or not to protect unlawful derivatives, thus leaving it unsaid. Unfortunately, I'm unable to locate any copies of this source. Additionally, thanks to a fortunate snippet Google Books displayed, I know that La conférence de Berlin (14 octobre-13 novembre 1908) by Georges-François-Joseph Martin also discusses this exact point on page 187, quoting someone who thought unlawful derivatives would be protected now, though I couldn't get enough context to really determine anything. While I could find available copies of this book, for now it's a little on the expensive side for me. Overview of various jurisdictions In the EU, the derivative right is not harmonized and so the question is punted to the Member States. There is no implementation of either Berne Convention Article 2(3) or Article 12 in the Information Society (Copyright) Directive, Article 12 being specifically acknowledged by the Court of Justice in the Allposters case. In the UK, infringing derivatives are probably protected, see Redwood Music Ltd. v. Chappell & Co. Ltd., [1982] R.P.C. 109 (Q.B. Div.) at 120. I can't find the judgement text outside a paywall, but an article by William J. Braithwaite (PDF) quotes the relevant part on page 209 (the square brackets are his): [T]he idea that [the owner of the underlying copyright] should be entitled to reap the benefit of another's original work, by exploiting it, however extensive such work might be, however innocently it might have been made, offends against justice and common sense. Additionally, the justice noted the argument that unlawful derivatives are not explicitly excluded from copyright protection and that parliament has declined to make this explicit. If I understand the English court system correctly, this decision was two appeals away from the Supreme Court (House of Lords back then), but there doesn't appear to have been any appeal. For what it's worth though, the justice who issued the decision ultimately became Senior Law Lord. In Italy, the Supreme Court has determined that derivative works can be simultaneously infringing and protected. | 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. | First off, the work is almost certainly not in the public domain in the US. Works are generally copyrighted upon creation or publication, but in this case the work was probably explicitly copyrighted. The fact that a work is out of print generally has no bearing on its copyright status. US copyright law changed several times in the last century. The 1985 copyright year means the board game was probably published then, and it's since it's a Disney copyright it's a corporate work, which would give it a copyright term of 95 years, meaning that it should be covered under copyright until 2080. See this factsheet on copyright from the US Copyright office. Works Created on or after January 1, 1978 For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter International laws will vary, but many countries adhere to the Berne Convention, which means that international laws will probably be at least similar. Either way, the work isn't very old from an intellectual property perspective. Fair use is an exception to copyright law that allows portions of copyrighted works to be used without permission or compensation in certain circumstances; academic or scholarly use is one of them. Generally, your use of the work has to be the minimum necessary amount to serve your purposes, and cannot harm the commercial value of the work. (The fact that the work is out of print may help with the latter.) The problem with fair use is that it's always determined on a case by case basis. The only way to know for sure if a particular use is fair use is to wait for the copyright holder to sue you and then make a fair use defense in court. I was going to suggest that you discuss this with the editor of your journal, but re-reading your question it looks like you're planning to publish to a personal blog rather than an academic journal. In the end, it's up to you (or your attorney, if you choose to hire one) to analyze the relevant legal concepts and rules and decide if and how much of the work to use. | Forget about copyright or EULAs. In the UK this would be illegal under the Computer Misuse Act (1998) and you could be jailed for up to a year - specifically Unauthorised access to computer material. (1)A person is guilty of an offence if— (a)he causes a computer to perform any function with intent to secure access to any program or data held in any computer, or to enable any such access to be secured; (b)the access he intends to secure, or to enable to be secured, is unauthorised; and (c)he knows at the time when he causes the computer to perform the function that that is the case. This law has been applied even to simply altering parameters in a GET request to a website, so it is incredibly broad. Other jurisdictions have similar wording, so be aware! |
What rights does a private citizen have to aid in law enforcement? Suppose you witnessed a robbery or theft from a store in the United States and saw someone running with the stolen goods, and you yell, "Stop, thief." Are you within your rights? Suppose you see someone running, and the police chasing him. If you were brave or foolhardy enough to do this, are you allowed to try to trip or grab or push this person to slow him down so that the police can catch up, or would this be assault? Do the above actions fall under citizens' arrest? | So for your first question, yelling "Stop Thief" loudly at the thief is perfectly legal (Like Yelling "Fire" in a crowded theater, it's legal if the theater is infact, on fire... the quote implied that it was a prankster who drew amusement from the reaction of the people who took him seriously). This may alert store employees, who have a specific kind of Citizens Arrest Power known as "Shopkeeper's Privilege" and is a reduced liability compared to Citizens Arrest. This is also pretty basic self defense agains people who are not engaged in any physical action against you but are starting to scare you. Suddenly shouting draws attention to you and discourages them from their behavior "I SAID DON'T TOUCH ME" being suddenly shouted in a Wal Mart is going to get notices from the immediate crowd drawn to you, and by poximate location, the person who is making you uneasy. For your second question, maybe, it depends... since the cop is clearly chasing the guy, you meet the qualification to use non-deadly force in stopping the criminal (i.e. you are witnessing a person committing a crime, in this case, resisting arrest or persuit) and it would certainly be reasonably non-deadly force if you were to trip, grab, or push the fleeing suspect. Citizens Arrest doesn't specify a minimum time to qualify, so if the officer is seconds behind, and you detain the criminal in this action until the gap is closed, it still counts. | england-and-wales Initially, one should comply with the officer's instructions as he has the power under statutory Stop & Search powers to detain someone for the purpose of the search (discussed here). Failure to do so may be an offence. If, subsequently, one considers the search and detention was unlawful, the first port of call is to lodge a complaint with the relevant police force who - depending on the circumstances - may escalate the complaint to the Independent Office for Police Conduct IOPC. You can complain directly to the police/other organisation (see ‘Who can I complain about?’ below for a list of the other organisations) or via the IOPC. If you complain via the IOPC, your complaint will be sent direct to the organisation involved. They will assess your complaint and contact you about how it will be handled. The IOPC will not be involved with this initial assessment of your complaint. If the complaint is found to be valid, then any offence committed by not complying with the office would (in all probability) be overturned on appeal. As well as any compensation awarded by the court, the Chief Constable may consider making an ex gratia payment (mentioned here). Note that there is no obligation to do anything if the interaction falls within the Stop & Account provisions. | Foreign citizens are just as entitled to Fourth Amendment protections against search and seizure as American citizens are. The case you cited was, in fact, a South Korean citizen who successfully had evidence suppressed from an unjustified border search. | Any society that makes rules will make rules that generally favor the people in power. Police are an essential component of a system that is built to maintain power for the people who are powerful, and there are few incentives for politicians, prosecutors or judges to punish them for maintaining order, even when they do so in ways that most people would think are not civil. Anyone involved in creating the law therefore builds systems to protect themselves -- and each other -- from accountability. The police fail to meaningfully investigate themselves, the legislature erects barriers to accountability (Sec. 614.022, for instance), and the courts routinely provide them immunity for their wrongdoing. So yes, there is a difference in how our legal system treats law enforcement and how it treats everyone else. I don't know anyone with any experience in the law who would even try to pretend otherwise. | 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. | Police officers can lie to you He asked to search your car. He’s allowed to do this. You said no. You’re allowed to do this. He lied to you when he said he would get the K9 to search the car - this would not be legal. But he’s allowed to tell you lies. You made an admission of criminal activity. He now has probable cause to search. He legally searched, confirmed your admission and booked you. Seems legit to me. | There is a state law that requires you to obey the police: ORC 2917.13, which says you may not Fail to obey the lawful order of any law enforcement officer engaged in the law enforcement officer's duties at the scene of or in connection with a fire, accident, disaster, riot, or emergency of any kind. If you do, misconduct at an emergency is a misdemeanor of the fourth degree. If a violation of this section creates a risk of physical harm to persons or property, misconduct at an emergency is a misdemeanor of the first degree. You also cannot Hamper the lawful operations of any law enforcement officer, firefighter, rescuer, medical person, emergency medical services person, or other authorized person, engaged in the person's duties at the scene of a fire, accident, disaster, riot, or emergency of any kind "Hamper" is not defined statutorily, but the plain meaning of "hamper" is not the same as "fail to assist". We have not established that the order is lawful, however, which is crucial. The police cannot just freely search a residence without permission. If they have permission from the occupant, they can search and seize. If they have probable cause to believe that a crime exists and the circumstances make a warrant impractical, they can search and seize. I don't know what you mean by "wellness check", but that seems plainly to be unlawful entry. However, if the resident calls 911 and reports that he is having an issue, that is sufficient consent for entry. In the case of a fire alarm, the fire code authorizes a fire department official in charge of an actual emergency response incident to order the evacuation of a building, and occupants are required to comply. If we suppose that the smoke detector in a room has gone off, the fire department is authorized to inspect for fire, and there is a provision under the law about failure to obey a lawful command (to open the door so that they can look for fire). Problem: you cannot know whether the order is lawful. The officer doesn't decide what is lawful, the courts do (after the fact), and typically a command is found to be lawful unless it is clearly unlawful. The order from your supervisor is not "enforceable" in the sense that you cannot be arrested, imprisoned, or fined for disobeying your boss. However, there is a potential club they can use against you, namely firing you for disobeying the order. Normally, you can be fired for wearing the wrong shirt. But there are laws about employers doing illegal things, such as ORC 4113.52, which provides recourse when the employee reasonably believes that the violation is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety etc. In which case you report this to the supervisor, they have 24 hours after getting the report to correct the situation, and after that you would report the situation to the county prosecutor. (Read all of the details in the linked law, don't just skip steps: this is an executive summary). Having done this, you are protected from being fired, demoted. reassigned etc. The employer will be strongly motivated to not incur the penalties for violating the whistle blower statute. Additionally, you can sue the employer if they fire you for refusing to violate the law (termination in violation of public policy). | What do you mean by "a public building"? Just because a place is owned by the public, doesn't mean anyone can go there any time they wish. Military bases, firehouses, and jails are owned by the public, but many of these have limited access to the public. It may be open to the general public, but that does not mean restrictions cannot be put into place, either on times, or activities, or individuals. For example, public parks often have time and activity restrictions; schools have the power to restrict individuals from their premises, either specifically or by general category. As a general point of law, the owner of any property, or their agent, can order anyone without the right to stay (e.g. not a co-owner or tenant), and that person must depart, otherwise that person is tresspassing. Assuming that the Senior Center is owned by the town, it is probable that the Administrator is empowered to act as the town's agent in this matter. Now, since this "No Trespass order" is specifically directed at you, there is a reason behind it. It may be something you've done. It may be that complaints have been received about your behavior. It may be an actual abuse by someone who doesn't like you. We have no way of knowing. It the order itself doesn't give you a hint as to why, you can ask the town administrator for the reason. As for being against your rights, there is nothing inherently illegal about this situation(that is, an agent of a property owner exercising the latter's right to prohibit an individual from said property), but some of the details, especially why it was specifically applied to you as an individual might be a civil rights violation. |
Immigration status of airline crew members on layover Say an airline is flying internationally into the United States, with flight crew or cabin crew with citizenship in one of the countries designated in President Trump's Executive Order(s). Would these crew members be allowed entry into the United States for lay-over? (Please migrate as deemed suitable.) | As far as I know, airline crew members have to pass through US immigration on arrival, just like everyone else. So they'd need a visa. Airline crews are eligible for a D visa which is specifically for crew members on layovers. Under the current version of the travel ban, citizens of the designated countries are allowed to enter if they already have a valid visa, which current crew members presumably would. However, if they don't, or if it expires, they might be refused a new visa. This would effectively prevent them from working on flights to the US. | The Vatican City State did this between 1929 and 1984, indeed for all aircraft. The Lateran Treaty of 1929, between the Holy See and the Kingdom of Italy, said (Article 7, paragraph 3): In conformità alle norme del diritto internazionale, è vietato agli aeromobili di qualsiasi specie di trasvolare sul territorio del Vaticano. In accordance with the provisions of International Law, it is forbidden for aircraft of any kind whatsoever to fly over the territory of the Vatican. The revision of 1984 did not preserve this provision (see its Article 13(1)). The present situation is that Vatican airspace, managed by the Italian national authorities, is subject to flight restrictions preventing low-flying aircraft and drones. So you cannot legally buzz St Peter's Basilica in your helicopter, but you could fly at a higher altitude in the normal way. (The restrictions are for anything below 3500 feet, and for comparison St Peter's is about 450 feet tall.) There are obvious exceptions for papal or other official travel, and Popes have used their own helicopters to travel in and out of the Vatican since 1976. Since 2015, the helipad has also been made available for emergency use by medical helicopters from a nearby children's hospital. That demonstrates the extent to which it is not available for routine travel. Therefore, I think that "flying there for business purposes, flying domestically, or leaving the country by helicopter" are all forbidden, unless you are the Pope or have his permission. You also cannot land or take off in a fixed-wing aircraft, but that's largely a matter of geography, not law: there is no runway. | Do flight attendants have an unlimited leeway of forcing the passengers to listen to their gibberish that are completely unrelated to their duties? Pretty much, I'd say. It may not be a good customer experience, but the flight attendant certainly isn't doing anything illegal. You don't have a legal right not to hear speeches that offend your IP sensibilities. I don't think it's legally any different than if they were showing an in-flight movie that you didn't like. If you try to forcibly stop him, you are likely to be found in violation of 49 USC 46504, which prohibits "assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties". Even if making speeches about Mickey Mouse is not part of his duties, anything physical you did to try to stop him would likely tend to also lessen his ability to perform his actual duties. Violation of 49 USC 46504 is a felony and carries a prison term of up to 20 years. If you try to shout him down, you might be charged with disorderly conduct under state or local law, like this guy. You could probably push your call button to summon another flight attendant, and politely state that you object to the loquacious crew member's behavior, and could they please ask him to stop. Alternatively, you can put on your noise-cancelling headphones and turn up the volume on your music. Anything beyond that and you're in a bad legal position. Of course, you can certainly file a complaint with the airline after the fact. There's a fair chance you'll get an apology, maybe some extra air miles, and the flight attendant might be disciplined or fired. But that's an internal customer service or personnel matter; nothing to do with law. | Yes From the American perspective: U.S. law does not mention dual nationality1 or require a person to choose one nationality or another. A U.S. citizen may naturalize in a foreign state without any risk to his or her U.S. citizenship. Source: U.S. Department of State — Bureau of Consular Affairs And from the British: Dual citizenship (also known as dual nationality) is allowed in the UK. This means you can be a British citizen and also a citizen of other countries. Source: Gov.Uk 1Section 101(a)(22) of the Immigration and Nationality Act (INA) states that “the term ‘national of the United States’ means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” Therefore, U.S. citizens are also U.S. nationals. Non-citizen nationality status refers only individuals who were born either in American Samoa or on Swains Island to parents who are not citizens of the United States [Source: Dept of State, as above] | Passports were required in ancient, medieval, and early modern ages, either for immigration or for emigration or both. However, what was called passport back then might be better characterized as entry and exit visa. As time went on and travel became more common, those mutated into multi-use identity documents. There was a brief period before 1914 when passport requirements lapsed. Immigration control was done by other means, some emigration controls weakened. Read up to the history of Ellis Island for a well-documented example what immigration controls looked like. | Here is everything that I learnt throughout this process: I was not born a U.S. citizen, and I did not naturalise. Instead, I inherited U.S. citizenship at the moment I became an LPR (Legal Permanent Resident), because I both had a parent with citizenship and I was under the age of 18. There is no paperwork to file to inherit citizenship this way, it is completely automatic and as a result there are people in the U.S. that do not know they are citizens. In order to assert that I was now a U.S. citizen, I just had to apply for either a U.S. passport, or a Certificate of Citizenship. There is no deadline to do this, because I was a fully-fledged citizen from the day of approval of my Permanent Residence application. When I applied for my U.S. passport, I simply had to prove that I was a child at the time of receiving my Green Card, and that one parent was a U.S. citizen. This is exactly what I had to provide the German consulate. I provided my own birth certificate, my I-485 form (with approval date) and my father's naturalisation certificate. Those were accepted without question. To obtain a copy of my Form I-485, I had to file a FOIA request--I used a Form G-639 to make it easier--and I emailed it to [email protected]. I did attempt to get a copy of my passport application, as I filed that while under 18, but I was told by the State Department that they did not have a copy of it (curiously, several months later a full copy of my original passport application arrived by post from the State Department...). The response was not a surprise as when I applied for a passport at the age of 17, I was told by the official that they do not keep a record of my application, so I should also have a Passport Card in case my passport goes missing and I must prove citizenship. Under German citizenship law, one loses citizenship when "voluntarily" obtaining another citizenship. The reason that I did not lose my citizenship when I became a U.S. citizen was because: I was a child, and it happened automatically. Therefore, it is not considered voluntary. Luckily, I did not have to explain this, since it was a consulate in the U.S. (Houston, TX) that I visited, they were well aware of the way in which I inherited U.S. citizenship. However, I had some trouble when dealing with the London embassy as they did not understand all of the U.S. citizenship qualifiers. I hope this helps anyone else that finds themselves in a similar situation! I was completely lost when I started this process, but three months later I have my German passport in my hand. | 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. | Citizens likely have an absolute right to enter the US. This hasn't been addressed directly by the Supreme Court, but here are some cases that come close. The Fifth Circuit, in William Worthy, Jr. v. US, 328 F.2d 386 (5th Cir. 1964): We think it is inherent in the concept of citizenship that the citizen, when absent from the country to which he owes allegiance, has a right to return, again to set foot on its soil. The Supreme Court, in Tuan Anh Nguyen v. INS 533 U.S. 53 (2001) said that conferring citizenship on a person would give "the absolute right to enter [the US]". This wasn't necessary for the holding in this case, which was about whether the person was a citizen, so this could be considered dicta. Fikre v. FBI, 23 F. Supp. 3d 1268 (D. Or. 2014). (not an appellate case) said: U.S. citizen’s right to reenter the United States entails more than simply the right to step over the border after having arrived there. At some point, governmental actions taken to prevent or impede a citizen from reaching the [border] infringe upon the citizen’s right to reenter the United States. Even if we assume that citizens do not have an absolute right to re-entry, the Equal Protection Clause likely bars a religion-based criteria for citizen re-entry. Citizens are protected by the Equal Protection Clause of the 14th Amendment. This prohibits the government discriminating based on a suspect classification (race, religion, national origin) unless such law passes strict scrutiny. Without making a prediction about whether such a hypothetical statute could pass strict scrutiny, I'll go as far as I can and strongly guess that the government could not prohibit citizen re-entry to the United States based solely on their declared religion. |
Recourse to resistance in citizen's arrest I am curious about citizen's arrest, at least in how it applies in the U.S., particularly the recourse the arresting party has in case of resistance/evasion. Let's say you see an assault/battery take place, after which the perpetrator attempts to flee. Can a civilian apprehend them and detain them until law enforcement arrives? Also interested in what constitutes a legitimate justification for such an action. Do you have a right to detain any individual until police arrives and what are repercussions for "false imprisonment". Yesterday, I witnessed something that could be considered an assault in a major thoroughfare in a major U.S. city. A seeming minor but fully grown (probably 16-17) was riding around on a scooter in a square intimidating and harassing passerbys. At some point, he rides by an older guy and does something that looks like a punch in the shoulder. The old guy was okay but that still qualifies as an assault, no? Since there was no police officers around, could any citizen have arrested the kid? | If A reasonably suspects that B committed a felony, A may arrest B, which means that A may also use reasonable force to detain B. They can also arrest for a misdemeanor committed in their presence, if it constituted a breach of peace. It is, of course, up to A to be correct that the act is a felony or a breach of peace, and to know what is reasonable force. If your arrest is in fact not lawful, you may be sued (battery or false imprisonment) or prosecuted (battery or unlawful imprisonment). Punching a person in the shoulder is the felony of battery, and direct observation creates highly reasonable suspicion. In such circumstances, anyone could have arrested the child. Unlike a police arrest, a citizen is not required to Mirandize an arrested suspect. This memo summarizes citizens arrest law including case law for Washington state. The right to perform citizen's arrest is statutorily recognized as a defense under RCW 9A.16.020 The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases: ...(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody | It seems you found out what happened. The police are wrong all the time and usually absolutely nothing happens from it. The police are not required to tell you why you are being arrested. See supreme court case Devenpeck v. Alford. The court merely considers that to be good police practice. They do have to justify probable cause for the arrest to the court. | The police will order you to stop and then you have to obey. The moment you annoy the police in a way that is hindering their work (such as blinding them with a flashlight), they can demand you to stop. if you don't comply, then you are committing a misdemeanor. For example, Virginia calls this "refusal to aid [an] officer in execution of his office" and it is worded so widely, that the officer asking you to shut up and you don't, then you are guilty. If the order is in any way justifiable, then you not following the order is... well, criminal. Plus, if you did not comply and they pulled out their handcuffs and you still don't comply with their demand, you are now resisting arrest, which at least in Virginia is again, a misdemeanor. | If you are arrested for assault, you have available to you the defense of the right to defend real or personal property: you "may use reasonable force to protect that property from imminent harm. Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from imminent harm". The level of force proposed is clearly within the boundaries of the reasonable. | No Besides this being clearly unworkable, the requirements for the state providing public defense attorneys include being in need (you will need to provide an affadavit or similar to the effect) and when the defendant is at risk of significant time of confinement. The 5 to 15 minutes of the traffic or Terry stop are not considered significant. Nor are the processing times of arresting you and taking you in. Trying to make the officer provide you with an attorney (or declaring you aren't doing anything without one) before complying with their orders may well result in your incarceration and subsequent assignment of a public defender. | If you were moving "with the flow of traffic" but over the limit, you were still breaking the law, and the cop can choose which car or cars to stop on any basis or none (except ones forbidden, such as racial in the US). This is almost surely not a valid defense, not in any jurisdiction that I know of at least. If you can show that to slow to the speed limit would have actually been unsafe, you might have a defense, but that is going to be hard to get a court to accept. | Given there was no answer here, I will state what I know about child abuse response, but note I am not a lawyer nor am I in Illinois, so my statements are likely generalized for most US states (individual laws vary by state, and I reside in Pennsylvania). In most US states, the police and child/youth services (that's what it's called in Pennsylvania but all states have similar services) work side by side and a complaint by the child to a police officer will have an emergency action taken to protect the child. The child is identified as a victim and the police and child/youth services have the obligation to protect the child and to keep them from harm. This is the main goal of police and children/youth services - to keep the child safe and act in the best interest of the child. Usually, a complaint to a child abuse center can take time to process. When a police complaint comes in it is more immediate, with police having more 'influence' with CYS (child/youth services). Especially when the child is in deadly danger (they were just stabbed, after all), the police may arrest the mother or abusive sibling or intervene therein to remove the child from the parents care with CYS-equivalent services working to find suitable alternative living situations for the child as a result of a order of removal/protection authorized by a judge. (PA at least had emergency situation response plans for these situations where a judge is just a phone call away). As well, the child will likely be made a ward of the state if the courts determine the mother cannot care for the child or is a threat as such (not caring enough to stop the brother may count), insomuch that the child may be removed from the dangerous situation and placed in the care of a willing relative or if none can be found will be placed in temporary foster care in a safer environment. Note that nothing happens rapidly without the initial complaint to the police. At age 16 the child is likely going to be taken more seriously (compared to a 12 year old, for example), and has the right to be allowed to reach out to hospital staff to ask to speak to a police officer - otherwise it takes a child abuse complaint from someone who knows the child and situation and that can sometimes take longer to process (though, the distance factor in the original question may make a complaint from overseas given a lower priority due to not knowing the person on a more personal in-person level) | There isn't a general answer to this question. It needs to be evaluated incident and sub-incident act by sub-incident act. The use of force is legally permitted to prevent harm to others and to the property of others under some circumstances. Citizens arrests are permitted under some circumstances, but generally, the person making the arrest must have personal knowledge of the crime while it is in the process of being committed. Some laws prohibit wearing masks under some circumstances, but usually not in all circumstances. Your client's "business model" is not consistent with being able to testify in court, so the criminal justice system will only be able to convict someone whom your client delivers to police if they can do so without your testimony. As a general rule, the 4th Amendment exclusionary rule does not apply to evidence collected by private parties or to statements obtained by private parties that are not made under duress that are not Mirandized. But, if your client is effectively "deputized" or becomes a "de facto" agent of the state who is called up to be a member of a posse for the police, for example, by using an agreed symbol such as shining a light with a symbol on it on some clouds, at that point, with respect to that matter, the 4th Amendment exclusionary rule and Miranda probably do apply to evidence that your client obtains, and exclusion of that kind of evidence could make prosecution much more difficult, unless the prosecution can successfully make an argument that the other evidence that the illegally obtained evidence leads them to is not "fruit of the poisonous tree" because it would have inevitably been discovered in due course using only the legally obtained evidence. Even if your client does violate the law, law enforcement is not obligated to investigate his alleged crimes even if the victims complain, and prosecutors are not obligated to prosecute those crimes, even if they have overwhelming evidence of guilt which they could use to secure a conviction. Prosecutorial discretion is basically absolute. Your client might be sued civilly for operating a corrupt enterprise under RICO, for various intentional torts, and for negligence, by people who think that they have been harmed by his conduct, but someone can only sue your client if they can figure out who he is and serve him with civil process. If you are helping your client conduct on ongoing criminal enterprise, whether or not the crimes are prosecuted by the criminal justice system, the attorney-client privilege you have with your client is probably forfeit should you be placed under a subpoena and your may be violating other ethical rules. But, of course, somebody has to figure out that you are part of this criminal enterprise before you suffer any consequences for being involved. |
When can a citizens arrest be made and how much force can be used? My understanding of a citizen’s arrest that it's when is a person detains another person who is caught committing a crime until police arrive. If the person tries to leave how much force can the arrester use? How certain must they be that the person did in fact commit a crime? Recently there have been a number of sting operations by the Creep Catcher group, where they pretend to be young girls on dating websites and meet with an older male. They confront the person, film it, and make a citizen’s arrest. These stings have been increasingly violent. One thing I don't get is: technically no crime has been committed yet, as there never was a young girl, so how can an arrest be made? Also, in many situations, they change the age after they agree to meet, so would this be entrapment? In this question it says consent must be given for any physical contact. Is an exception made for citizens arrest? Make no mistake, I'm against pedophiles etc. but I do think the tactics Creep Catchers use are unjust. I mean, what would people think if they saw police officers doing the same thing as Creep Catchers. | The power of arrest is a common law power that predates police forces, that is, every citizen had an obligation to maintain the king's peace by arresting criminals. With the rise of modern police forces, the police inherited this general right to make arrest but it still remained a power of every citizen. How much of this right remains depends on your jurisdiction and how the common law of "arrest" has been transformed by statute and case law. The common law right only extends to arresting someone in the commission of a crime. In the example you cite, the arrests are probably unlawful and amount to the crime of kidnapping/deprivation of liberty/whatever its called where you are because the person is not at that moment committing a crime. To arrest someone who you believe committed a crime in the past, you need a warrant or a power granted to you by some other statute (e.g. powers granted to police officers). In either case, a person making an arrest is allowed to use reasonable force to do so. | I think you're being confused by two separate definitions of "police power." The police power under the 10th Amendment has nothing to do with "the police," i.e. people with guns and badges and uniforms who make arrests. It refers to the authority of a government to make rules for the general welfare. Police power is almost always exercised by the legislature, and when the executive exercises it (e.g. by issuing regulations) it's typically operating under conditions set by the legislature. The United States has police power in a few situations: DC, federal property and territories, US-flagged ships on the high seas, etc. Outside of those situations, the United States instead has enumerated powers. Congress has a power to tax and spend to promote the general welfare, but otherwise it can only legislate to achieve one of the enumerated powers in the Constitution. Now, courts have read Congress's power to regulate interstate commerce very broadly, but there does need to be some relation to enumerated powers. You're asking about the Capitol Police, but they don't have "police power" in the 10th Amendment sense. They have the power to carry guns and to arrest people for crimes committed against the United States. This power is limited based on geography and/or the nature of their task; for instance, they have nationwide arrest powers "[i]n the performance of their protective duties," but not when they're traveling outside DC on other official duties (e.g. to attend training). While there's no litigation I can dig up that's directly on point, courts have repeatedly ruled that Congress has the power to do some not-entirely-legislative tasks in order to protect its own functions. For instance, in Anderson v. Dunn (1821), the Supreme Court upheld an inherent power of the House to hold private citizens in contempt of Congress for disobeying its subpoenas and for the Sergeant at Arms to arrest them and bring them before the House. It seems likely Congress would also have the authority to protect its own members from physical violence. The GAO did an analysis when it was analyzing whether there was a constitutional problem with making Capitol Police IG personnel into special deputy US marshals, and it concluded that there was no issue with congressional employees exercising arrest powers in order to physically protect the legislative branch. | You give no jurisdiction but in general: First, police have no obligation to be honest. So, yes they can collect this without consent by e.g. taking hair from your hairbrush (with a warrant) or giving you a glass of water while interviewing you and getting it from your fingerprint oils (which may not actually be technically possible but never mind that). No, they can't take it by "force" by sticking a swab in your mouth. Yes, it will almost certainly go into a database. Of course, there are some jurisdictions where police are entitled to decide you are guilty based on the fact that you didn't pay them a bribe. | 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. | Police have discretion whether to arrest and prosecute or not. In exercising this discretion they may take into account whether victim is identified and what he/she says, but there are no legally enforceable rules around it. Discretion is discretionary after all. Other factors that may influence the police's decision whether to arrest notwithstanding whether the victim cares may include but are not limited to: Level of potential threat that the offender poses; Strength of evidence that the crime was committed (and hence prospects of conviction). Say the owner of the store may not care or have seen anything, but there are witnesses; Likelihood that the offender may get away; Personality of the offender; Mood of the police officer. | 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. | You can be under arrest before you are handcuffed and the police officially read you your rights. The problem from the citizen perspective is that there is no bright line test that tells you whether you are under arrest, and the courts can find that there was no arrest at a point where the suspect was handcuffed and confined to the back of a police car (United States v. Bullock, 632 F.3d 1004) – you can be merely "detained" for an investigatory stop while in cuffs. One test that might be used is asking if you are free to go about your business. A reasonable person could decide whether they were under arrest by the nature of what the officer says. For example, if he says "It would help us if you could stand over there" or "...if you could sit down", it is reasonable to conclude that this is an urging but not a command. On the other hand, if he says "Sit down, now!", it is unreasonable to think that that is a mere suggestion or plea, it is an order. There is no specific Arizona law that says when police can order you to do something, nor is there a specific law saying that force may only be used in such-and-such circumstance. There generally are guidelines for police conduct, and the guidelines tend to grant much leeway to officers (until it gets to be a recurring problem and the guidelines are changed). An example is Seattle, whose police manual reduces the question to the statement that "An officer shall use only the force reasonable, necessary, and proportionate to effectively bring an incident or person under control, while protecting the lives of the officer or others". But this does not say whether one must obey police orders. In Oregon v. Ruggles the court sympathetically notes that Whether a particular police order is “lawful” is frequently a complex question involving some of the most vexing and intractable issues in constitutional law. For example, a police order such as “Stop!” can be an unlawful seizure of a person under Article I, section 9, of the Oregon Constitution, depending on whether the order is accompanied by a sufficient show of authority and the officer who issues the order is subsequently found to have lacked reasonable suspicion to believe that criminal activity was afoot. But Oregon has a statute, ORS 162.247(1)(b), requiring you to obey a lawful order by police. The court found that you don't have to know whether the order is lawful. Arizona has a related statute, ARS 13-2508 where resisting is defined as intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer's official authority, from effecting an arrest including the means of "Engaging in passive resistance" (which is "a nonviolent physical act or failure to act that is intended to impede, hinder or delay the effecting of an arrest"). Arizona law frames the resisting crime in terms of "effecting arrest", which is different from what Oregon law says: (a) Intentionally acts in a manner that prevents, or attempts to prevent, a peace officer or parole and probation officer from performing the lawful duties of the officer with regards to another person; or (b) Refuses to obey a lawful order by the peace officer or parole and probation officer. But even if an individual in Arizona is not chargeable with resisting arrest for failing to sit (because the officers were not effecting an arrest), that does not mean that police cannot order you to sit – it just means that it's not a separate crime to fail to comply. | In all common law countries, this would be the tort of battery (thus, illegal). The police might lawfully lay hands on the person, under certain conditions. First, the police would have to be legally arresting the person; second, the person would have to be (unlawfully) resisting that arrest. If the person acts in a way that a police officer "has reason to believe to be so mentally ill as to be incapable of taking care of himself", he may arrest the person (Mental Health Act 1987 art. 23). Part III (art. 20 ff) provides the legal background for the second path for arrest, via involuntary commitment. Under the circumstances you describe, a court would have to first order the person taken into custody (leading to an arrest, and possibly being subdued). The police would not be authorized to administer a sedative, so they would have to use physical restraint (handcuffs, hammer-lock and so on). The process is either initiated by a psychiatric professional, or by a relative (art. 20), then the court determines whether the person is to be so detained. |
Can a non-citizen make a citizen's arrest in the US? In the United States, can a non citizen make a citizen's arrest? Does this vary by state? | Yes. The meaning of "citizen" in "citizen's arrest" has nothing to do with citizenship. It just means "ordinary person" or "member of the public" — as opposed to "a law enforcement officer". | No, there is no recourse. An yes, the potential "costs", both personal, financial, social, can be high and are not compensable under an investigatory hold scenario; however, it doesn't usually happen like that. There is no investigatory hold that long without arrest. If the police want to talk to you but don't have enough to arrest you, you can leave any time. If you call your lawyer, he/she will come to the police station and tell the cops to release or arrest you. If the police really want you to stay, likely there is probable cause and they can keep you anyway. The police can arrest you and keep you, without a warrant so long as there is "probable cause" to believe that a crime has been committed (by you). Once arrested without a warrant, this is what is usually referred to as an investigatory hold, where the law says you must be arraigned within 72 hours (some states it must be 48 hours, 1 day less than supreme court says is reasonable). During this time they can investigate their case against you and decide what, if any, charges they will bring. There is no recourse for this, (in the event they bring no charges) unless you can establish that you were held for no reason (including not being falsely identified) and that it was only to intentionally deprive you of your right to liberty. This is nearly impossible to prove, unless you really did nothing and the cop was just messing with you (for instance in a personal vendetta) and you can show that. | I have not read the news report so cannot comment on the alleged offences and police conduct, but what I can say is that the information to given on arrest may be found at section 28 Police and Criminal Evidence Act 1984 (PACE): (1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest. (2) Where a person is arrested by a constable, subsection (1) above applies regardless of whether the fact of the arrest is obvious. (3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest. (4) Where a person is arrested by a constable, subsection (3) above applies regardless of whether the ground for the arrest is obvious. (5) Nothing in this section is to be taken to require a person to be informed— (a) that he is under arrest; or (b) of the ground for the arrest,if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given. Note the provisions at subsection (3) do not require anyone else to be told the grounds (reasons) at the time of arrest - including members of the public, protesters, bloggers or the press. Kerb-side debates can seriously or significantly distract the officer from ensuring e.g. public safety or preventing e.g. an escape from custody. Also, depending on what else is going on e.g. say in a dynamic and volatile crowd control or public order situation, the person under arrest does not need to told immediately if it would be impractical to do so. The operative phrase being as soon as is practicable, which is not defined by statute as each case needs to be considered individually according to its own set of circumstances. The relevant case law is DPP v Hawkins [1988] 1 WLR 1166, but the only detailed commentary I can find online is behind the PNLD paywall1. Succinctly, the magistrates initially dismissed the case against Hawkins for assaulting four police officers who kept him under arrest without giving the grounds as required by s.28(3) PACE. The DPP appealed, and the Court of Appeal sent the case back to the magistrates saying, inter alia, although there is an obligation under s.28(3) to tell a prisoner of the reason for his arrest as soon as possible (sic) after his arrest, a constable was also under an obligation to maintain that arrest until it was practicable to do so. 1Or free to law enforcement officers | No. Refusing to tell the address alone is not a reason to detain somebody. But there are situations where the authorities can demand that a person identifies himself or herself, including such details as the address (or lack of a permanent residency). In such a situation, failure to identify yourself can get you locked up. Also, the tone of your posting seems to question the legitimacy of the UK government and legal system as a whole. That is a box you're putting yourself into, and the company you find there is not very pleasant. | They can't take his citizenship... Since he claims to be a born citizen, he has citizenship by birthright and nothing CBP can do can possibly revoke it. He can voluntarily renounce his citizenship, but he has to do that through the State Dept. (which CBP is not part of). And that is an elaborate and expensive process that can't even be done inside the United States. If someone could do it merely by entering without papers and asking for a self-deport, lots of expats would save a lot of money - and that's not gonna happen :) ...but they could put him to serious inconvenience In this particular case, CBP found his documents suspect. Probably because (if it's the case we've seen documented elsewhere) he was with two other people whose entry was illegal, and they had forged documents. So most likely, if he agreed to self-deport, CBP would use that as prima-facie evidence that he is not a bona-fide citizen, and therefore, that his papers are faked. They certainly will not give fake papers back to someone who has tried to pass them. So the victim would be obliged to go back to SSA, the state, etc. and re-acquire his identity documents. From outside the country. It's a pretty big chore. | Since the incident was on private property (inside a building), a person does not have the same right to be there that you would have on the street outside the building. Yale police therefore can legally make a determination whether a person is trespassing (for example, by asking for identification), especially when there is an allegation that a person is trespassing. A law holding a person criminally or civilly liable for reporting their "suspicions" to the government without e.g. "reasonable suspicion" could easily run afoul of the First Amendment. | At the federal level, per 18 USC 751, escaping is a crime. In United States v. Allen, 432 F.2d 939 it was held that an arrest need not be lawful in order for an escape to be illegal; Laws v. US states that "This court has said that a sentence imposed for a violation of 18 U.S.C. § 751 is 'not affected by the validity of the sentences being served at the time of the escape'", giving numerous citations. I don't find cases where the escapee was exonerated; prosecutors have the discretion to not prosecute for committing a crime, so it would be hard to find a case where the legality of such a conviction was upheld (also, hard to find a jury willing to convict in such circumstances). | When you are in another country, you are subject to their laws - you may be arrested and go through the due process as defined by that countries laws. This potentially means anything from a fine, to incarceration or deportation or even execution, depending on the local countries laws. A good example is the caning of American citizen Michael Fay in 1994 by the Singapore authorities, as a judicial punishment for vandalism, or the case of Swiss citizen Oliver Fricker, who was also caned in 2010 for vandalism. |
Placing a Police Officer Under Citizen's Arrest If you place a police officer under citizen's arrest, does that officer still hold the authority to arrest you? | While it is from a different jurisdiction, the following goes to the heart of the matter: Arrest, when used in its ordinary and natural sense, means the apprehension of a person or the deprivation of a person's liberty. The question whether the person is under arrest or not depends not on the legality of the arrest, but on whether the person has been deprived of personal liberty of movement. Directorate of Enforcement v Deepak Mahajan, (1994) 3 SCC 440 at ¶46 (SC of India) In your example, the police officer has been deprived of "personal liberty of movement"; if they can still speak there would be no legal impediment to them placing the person who arrested them also under arrest. It would then be incumbent on both parties to deliver each other into lawful custody. The citizen would need to seek out a law enforcement officer to do this; the police officer has already done so, being their own law enforcement officer. After this, comes the paperwork. | The IRS Criminal Investigation division is typically going to be the arresting agency, assuming that (1) the offense is treated as a criminal matter; (2) a warrant is actually issued; and (3) anyone actually sets out specifically to serve the warrant. It is usually the case, though, that the violation is handled as a civil matter. When it is treated as a criminal violation, the defendant and the Service often reach an agreement that eliminates the need for an arrest. If there is a warrant, though, any police agency could theoretically make the arrest if they happened across the defendant. But if it's a time-sensitive investigation -- if the defendant is expected to flee or destroy evidence, for example -- it's a safer bet that you'll see an actual warrant execution. In that case, you would have CI taking the lead, perhaps with assistance from other agencies. | If the police order you to sit in an interrogation room and you are not permitted to leave, by definition, you have been arrested. Detaining someone against their will for longer than necessary to answer a few questions on the spot (which is a lesser imposition on your freedom called a "Terry stop") is what it means to be arrested. Legally, the police are only allowed to arrest you if they have probable cause to believe that you have committed a crime. I believe that you are confusing arrested (being detained by law enforcement against your will for more than a Terry stop), with being booked, or being charged with a crime. Generally speaking people are arrested first, and then booked next, and then charged with a crime after that, although this isn't always the order in which this happens. In much the same way, if the police observe someone committing a crime, they will first handcuff them which places them under arrest, and then book them sometime not too long later when they arrive at the police station, and then formally charge them sometime after that after a conversation with the prosecuting attorney to see if the prosecuting attorney is willing to pursue the case. Booking generally involves bringing someone to a police station, getting identifying information, taking a mug shot, taking finger prints, and depending upon what the police want to do, searching your person and inventorying your possessions prior to putting you in a jail cell in jail garb. Usually, however, the grand jury or the prosecuting attorney (it varies by jurisdiction) does have subpoena power to compel you to provide information under oath prior to trial as a witness, following the service of a subpoena upon you a reasonable time in advance as set forth in the relevant court rules, unless you invoke your 5th Amendment right against self-incrimination and are not granted immunity from prosecution based upon your testimony in exchange, or you invoke some other legal privilege against having to testify. They can, of course, simply ask you to come to an interrogation room and answer questions, and merely imply that it is mandatory without actually saying that you must and without clarifying the situation. In that case, which is extremely common, their legal right to interrogate you flows from your own consent. If you answer their questions, your answers could provide the police with probable cause to arrest you that they didn't have when they started asking questions. Indeed, often, when police interrogate you before booking you, they are doing so because they need your statements to establish the probable cause needed to legally arrest you. This is why criminal defense attorneys counsel people to immediate ask for a lawyer and refuse to answer any questions other than those needed to establish your identity. You can also ask if you are under arrest and if you are free to leave (which are mutually exclusive). If they say you are not under arrest, you are free to leave, unless you are appearing pursuant to a subpoena. | According to Matthew Bohrer (Assistant State's Attorney, licensed in three jurisdictions) and others, the offense of resisting arrest can stand alone. Expert attorney Dwayne B. says the same thing here. | It can go either way. If detectives have been working to build a big conspiracy case against you, they might get charges filed before they roll up to arrest you. If a cop catches you mugging someone, they'll arrest you on the spot and charge you later. | a gutter cleaner drops a leaflet with phone number, and as my gutters needed to be cleaned I called him, we met and I gave him a deposit for the work in cash. The gutter cleaner put everything in writing at the back of the leaflet and signed it. In other words, you have a written contract which you fulfilled but the other party did not fulfill, so they now either owe you a service or your money back. This is a civil law matter which you can bring to a county court. You have a telephone number, so it should be possible to identify the other party. lure him into a trap. But then- how do I turn him into the police and keep everything legal? Was thinking of using pepper spray, but I live in Newcastle, and it's illegal to use it in the UK. Any ideas? This is a very bad idea! Apprehending suspects is the job of the police, not yours. Well, there is the concept of a citizen's arrest, but this is only an option in a very limited number of cases, specifically when you catch a criminal in the act and need to prevent the suspect from getting away before the police arrives. And even then you are on very shaky legal ground if the suspect claims you used more force than necessary or if the court doubts that a citizen's arrest was necessary in this particular case. And in this case a court probably won't believe that a citizen's arrest is justified, because the gutter cleaner probably didn't even commit a crime. They just violated a contract. That's a civil matter, not a criminal matter. It might be a criminal matter if they never intended to fulfill the contract (fraud), but you don't know that. If you use violence on a person just because they owe you money, you are very likely committing a crime yourself. | Even if you had grounds for a lawsuit, you could not make it come out of the officer’s pocket. Under Chapter 4.64 of the Seattle Code, the City of Seattle is generally required to defend and indemnify city employees who are sued for doing their job. If you sue a police officer, the city pays his lawyer; if you win or if the city decides your claim is legitimate, the city pays whatever damages there were. The provision does not cover “claims and/or litigation arising from any dishonest, fraudulent, criminal or malicious acts or omissions of officers or employees of the City,” but that requires a lot more than “I wasn’t parked illegally,” and in any event you cannot force that issue -— only the city can. That’s between the officer and the city, and has nothing to do with you. This provision is pretty common in employment, including government employment. If I’m working for you and am acting in good faith, doing things for your benefit under your instructions, it’s only fair for you to shoulder the costs if I mess up. When it comes to government employees (whose job often makes people very angry at them), indemnification is extremely common. If police officers faced the risk of financial ruin for innocent mistakes, it’d be very hard to find anyone willing to do the job. | "I don't know" is a better answer than most, but you should only say that if it's the truth. The three most important rules to follow when being questioned by a police officer are as follows: Do not lie. Do not incriminate yourself. Be cooperative (to the extent that you're not lying or incriminating yourself). "Do you know why I pulled you over?" or "Why do you think I stopped you?" are perfect opening questions for law enforcement to ask because there is no good answer. Any answer you give puts you at a disadvantage for the rest of the stop because you've tacitly accepted the officer's assumption that you did something wrong. The best response would be to simply reply back with their own question. "Why did you pull me over, officer?" If you say it right, it's rational, polite, and cooperative without actually answering anything. Your position from the very beginning should be that you did nothing wrong (even if you know that you did). It's the officer's job to make the case. It's not your job to help them. |
Count visitor per day with GDPR & Cookies in EU My question is: how is it possible calculate visitors per day without gathering some information about the users in order to be able to identify them as revisits? We have a cookie consent banner in our site, if a user clicks to choose to accept analytics cookie then we are good, but how about the people that don't give consent? I heard something like this before: "Since IP addresses are considered personal data under GDPR, we anonymize them using a one-way cryptographic hash function." But by hashing a IP address you process the personal information and that you can't do without the user's permission! Is it possible to do this legally? If so, how? | The question says: But by hashing a IP address you process the personal information and that you can't do without the user's permission! But processing personal data (PI) is covered not by the e-Privacy Directive (ePD) but by the GDPR. Under the GDPR processing may be lawful if it is done under any of the six lawful bases specified by Article 6. Consent is one of these. But paragraph (f) permits processing when: processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject ... This is generally known as the "legitimate interest" basis for processing. It normally requires a balancing against the privacy interests of the data subject. Where, as here, the processing is specifically to remove any traceability of the subject, and hence to protect the privacy of the subject, there doesn't seem to be much conflict, so I suspect such processing would be lawful. I have not found, after a brief search, an actual case where this has been tested, so my conclusion might be mistaken. Personal Data under the GDPR and hashing GDPR Quotes Article 4 of the GDPR defines "Personal data" (in paragraph (1) as follows: personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; The term "pseudonymisation" is defined in paragraph 5 of article 4 as follows: ‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person; GDPR recital 26 reads: The principles of data protection should apply to any information concerning an identified or identifiable natural person. Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes. Hashing If a cryptographically secure hash function is used to convert an identifier, such as an IP address, into a replacement hash, there is no practical way from the hash value alone to recover the identifier. However, if a particular identifier value is compared with a stored hash value, it is easy to tell if there is a match. Finding a match does not prove that the identifier is the same -- depending on the length of the hash value being used and of the identifier, there may be many values that would give the same hash. But the chance of two random IDs having matching hashes is very small. Thus, if a controller were to store hashed versions of the IP addresses, no one could convert that back to a list of visiting IP addresses. But if soemoen had the IP address of a suspected visitor, and access to the hash function, it would be easy to check if that IP was on the list. If a keyed hash function were used, only someone with access to the key could perform this check. It is not feasible to hash all possible IP addresses as there are over 4 billion possible IPv4 addresses, and over 10^38 IPv6 addresses (over one thousand decillion). Thus creating a table to reverse the hashing in general is not feasible. Whether the possibility of checking for a match makes a hashed IP "reasonably identifiable" as representing a specific natural person under the GDPR and related laws has not, as far as I know, been authoritatively decided. Note that at most it would reveal that a person using a certain internet connection had (probably) visited a particular site. | You must get opt-in affirmative consent to process personal data, including tracking people's use of your site or providing targeted advertising. The banner on StackExchange is likely in violation of the GDPR. Do not copy it. It does not have an explicit opt-in, only an opt out which is onerous (leave the site, then manually go in and delete any cookies they set, which may be hard to identify if they are from 3rd parties). The sites you mention that have a gateway are a more correct implementation. Consent must be acquired before processing of data begins, and it must be explicit. | I'm pretty sure that under GDPR, you can indeed request them to send all data they have on you. If it's a complex request, they may charge you something like £10. If they have a lot of data on you, they may list the categories of data they have and ask you to pick one, rather than them having to collect and send everything. They should respond within one month, but iirc in the UK implementation, they can inform you (within that month) that they will respond within three months instead. For the rest, I only know current Dutch law. GDPR is not that different from what we already had (in general terms) and in many cases it even extends it. Under our law (WBP), you can also request a correction of the data in case it is incorrect, or deletion if they no longer need it for the purpose for which it was collected and stored. I don't really know how that works out in practice though, as Facebook can of course claim that "being able to connect you to your friends when you sign up for WhatsApp or Facebook with that number" is a legitimate purpose (in their eyes). They might also not have your full name and therefore not be able to connect your data to your request. Or, perhaps, they have only your full name (and there are probably more people with your name), so they'll have a hard time verifying that it's really your data which they would be handing over or deleting. The company is required to verify your identity before acting on your request. How they implement that is up to them. Under Dutch law, if I remember correctly, any data that can be connected to your person by any party is personally identifiable information (PII). While Facebook might not be able to find who's behind a phone number, your carrier most certainly can. Therefore, the data falls under PII protection laws and they will have to implement a way to verify you and get you your data. Finally, whether your local laws apply to Facebook, I don't know exactly. There's lots of information on this though, so you should be able to find it. Generally, countries say that if something happened within their territory (e.g. you signed up for WhatsApp while in the UK), their law applies. Companies, I've read, will instead try to claim that their main office is in SomeCountry and therefore SomeCountry's laws apply. But I'm pretty sure you'll be able to find a Facebook office somewhere where GDPR applies, so that's probably fine. While not an exact answer and while I am not sure about everything, I hope this gave you some pointers to go on! | It may be legal or it may not For example, if any of the users are in the European Union, then the GDPR applies and the person storing the information is a data controller and has legal obligations. These include, having a legitimate reason for storing them, storing them only for as long as necessary for that reason, notifying the individuals that the data is being stored and why, deleting it upon a users request etc. | The GDPR applies regardless of where and how data is processed. But it is necessary to look at what the processing activities in question are, and who is the controller for these activities by determining their purposes and means. This argument is supported: by the absence of relevant exemptions in the GDPR by the GDPR's broad definition of the data controller by the ECJ's analysis in the Fashion ID case GDPR Exemptions For certain constellations (e.g. controller = natural person, purposes = purely personal or household activities) that processing is exempt from GDPR compliance (see GDPR Art 2(2)). However per GDPR Recital 18, the GDPR would still apply “to controllers or processors which provide the means for processing data for such personal or household activities.” For example, this means that I am able to use WhatsApp to process my friends' contact information for purely personal purposes because I'm exempt from the GDPR with respect to that processing, but Facebook is still subject to the GDPR regarding how they process personal data collected via WhatsApp. Already on the basis of the GDPR providing no exception for processing on someone else's computer, I disagree strongly with the answer you cited (and have already written a competing answer). It seems entirely counterfactual. How to figure out who the controller is. Per GDPR Art 4(7), controller is whoever “alone or jointly with others, determines the purposes and means of the processing of personal data”, although other laws might provide more specific criteria for individual purposes or means. We will return to that definition in the next section. The ICO has provided a checklist to figure out if you're a data controller or perhaps a joint controller. Some of the questions are aligned with the above definition, like “We decided what the purpose or outcome of the processing was to be”. Other questions are there as a contrast to the data processor role, e.g. “We have complete autonomy as to how the personal data is processed”. Analysis of the Fashion ID case (ECJ C-40/17) This judgement provides a detailed analysis of who the data controller is, and is therefore relevant to the question. Fashion ID had embedded a Facebook “Like” button on their website, thus causing the visitor's browser to transmit personal data to Facebook. Fashion ID asserted that they were not the data controller, since they had no control over what data was collected by the Like button and how it was subsequently used by Facebook. Fashion ID relied in part of the argument that they weren't the controller because processing happened on the visitor's computer. This ruling was made on the basis of the Data Protection Directive 95/46 which was repealed by the GDPR. However, since the DPD and GDPR have effectively identical definitions of “controller” and “processing”, the court's analysis remains highly relevant. In the following I'll “translate” all DPD references to the GDPR, in analogy to GDPR Art 94(2). The court found that Fashion ID was a data controller for the processing by the Like button, and that it was a joint controller with Facebook for this processing. However, Fashion ID was only a controller for those processing activities in which they played a part, not for subsequent processing of the data that was controlled by Facebook alone. Relevant details from the Judgment (ECLI:EU:C:2019:629): Paragraphs 65–66: The GDPR tries to achieve a high level of data protection through a broad definition of “controller”. Thus, an overly narrow interpretation that counteracts this goal is incompatible with the law. Paragraph 68: An entity is a controller when it exerts influence over the processing for its own purposes, thereby participating in determining the purposes and means of processing. Compare the GDPR Art 4(7) definition of “controller”. case law: C-25/17 Jehovan todistajat, ECLI:EU:C:2018:551, paragraph 68: “However, a natural or legal person who exerts influence over the processing of personal data, for his own purposes, and who participates, as a result, in the determination of the purposes and means of that processing, may be regarded as a controller”. Paragraphs 67, 69–70, 82: It is not necessary to have a single controller, there can be multiple joint controllers. The joint controllers can be involved to different degrees. You can be a joint controller without having access to the personal data. case law: C-25/17 Jehovan todistajat, ECLI:EU:C:2018:551, paragraph 69: “Furthermore, the joint responsibility of several actors for the same processing, under that provision, does not require each of them to have access to the personal data concerned”. case law: C-210/16 Wirtschaftsakademie Schleswig-Holstein, ECLI:EU:C:2018:388, paragraph: 38: “In any event, [GDPR] does not, where several operators are jointly responsible for the same processing, require each of them to have access to the personal data concerned.” Paragraphs 71–74: Processing can consist of many different individual activities. A controller might only be involved in some of them, and can only be a controller for those activities for which they (jointly) determine purposes and means of processing. Paragraphs 76–79: Fashion ID was able to determine the purposes and means of processing regarding data collection and transmission by the Like button. The act of embedding the button showed that they had decisive influence over the processing: without the embedding, the data processing would not have occurred. To summarize the relevant conclusions: someone is a data controller when they participate in determining the purposes and means of processing for some processing activity for joint controllers, this holds regardless of whether they have access to the data or participate in the processing itself one cannot be a controller for a processing activity for which they cannot determine purposes and means. Conclusion and application to the question This analysis reaffirms my competing answer to the cited answer that it is important to determine who the data controller is. The Fashion ID case shows that is important to perform this analysis on a fairly granular manner, on the level of individual processing activities. For processing on a data subject's computer by a program written by another provider, this means: some processing activities might be solely under the user's control, then they are the sole data controller (or might be exempt from GDPR) for some processing activities, the software developer might decide alone for which purposes and through which means the processing is carried out for other activities, the user and data controller might be joint controllers. This does not require explicit agreement but can result implicitly. This does not require that the software developer has access to the personal data undergoing processing. For example, a spreadsheet application might be used by an end user to process personal data on their own computer (or via a cloud application, with the same conclusions). We can consider different processing activities performed by the software: sorting, transforming, and other processing of the data in the spreadsheet is solely under the end users control, so they are the data controller (if they aren't exempt) collecting usage analytics (where those analytics signals are personal data for which the end user is the data subject) is solely under the software developers control uploading crash reports (where those reports contain personal data from the end user and contain contents from the currently opened spreadsheet) is more complicated. The software developer is definitely a controller. The end user has a dual role here as a data subject and a joint controller (if they aren't exempt) because the crash report processes personal data for which they are the controller. | Whether GDPR applies does not depend on the country of residence. Instead, GDPR applies to a non-EU site or service if the data controller offers products or services to people in the EU (see Art 3(2) GDPR). This depends solely on the behaviour and intent of the data controller / the provider of the website – compare also the discussion of the “targeting criterion” in EDPB guidelines 3/2018 on the territorial scope of the GDPR. While your proposed measures might not be entirely ineffective (in that they document an intent to not serve people in the EU), they are both unnecessarily restrictive and overly lax. For example, they would unnecessarily prevent EU tourists in the US from registering but would nevertheless allow US tourists in the EU. For the targeting criterion, it matters whether the data subject is in the EU at the time of the offer, not at all what their residency is. Even if a person who is currently in the EU registers with your service, that doesn't necessarily mean that you are targeting people in the EU. Instead of implementing signup restrictions, a better strategy might be to clarify in the copy on your website that you are only targeting the domestic US market, not the European market with your services. I have discussed this in more detail in an answer to “How can you block GDPR users from US based sites?” If you have a site where GDPR doesn't apply, and you receive a GDPR data subject request, you shouldn't deny it on the basis that the user must have lied – instead you can deny it on the basis that GDPR just doesn't apply to you. | You are processing the users IP address in order to carry out the translation to a physical location (see my comment for the technical issues with that) and an IP address is most certainly considered personal information, so yes under the GDPR you are going to need a published policy because you are both data controller and data processor. You need to inform the user of what you are doing, and you need to tell them of the legal basis for the processing (there are several under the GDPR, of which consent is only one - but in your case its going to be the easiest to justify). If you use a third party service for the location translation, you also need to inform the user of that and make available the third party services data processing policy. | I think that one cannot answer a question such as "Will the personal use exception in the GDPR apply to personal blogs?", because it is unclear if you refer to: personal information published on the blog pages personal information collected from the Website, by way of forms, cookies, server logs, strictly collected and processed for the purpose of operating the Website for your own personal purposes as a blogger (by yourself of through a subcontractor in the sense of GDPR) and not personal information collected from the Website's operation, transferred or provided to third parties for their own purposes (this would include cookies used to identify and track users across multiple domains) Regarding 1., a personal blog wanting to benefit from the exemption should not publish third party's personal information without their consent or another legal basis, and C-101/01 certainly applies here. About 2., if the information is strictly collected and used for the own personal purpose of the operation of the blog, I would tend to agree that it should benefit from the exemption. I feel that C-212/13 would not necessarily be an indication that because the blog is publicly accessible it is then "directed outwards from the private setting" in the sense of this ruling, and should not be considered as "purely ‘personal or household’ activity". C-212/13 case was relating to a camera installed by an individual on his family home for its own security purposes which was also monitoring a public space. The persons filmed on this public space had absolutely no direct connexion with the person collecting their images. In case of a blog, the visitors of the blog interact with the blog for fulfilling the own personal purpose of the operation of the blog of the publisher of the blog. Another argument is given by the Recital 18 which you quote: a personal blog can be viewed as a type of social networking or related online activity. Finally, about 3., there is no doubt for me that, in this case, the publisher of the blog is engaged in an activity which is not personal, since it willingly provides personal information to third parties which they use for their own purposes (and not as subcontractors in the sense of GDPR). There may be other approaches apart from these 3, but that's a start for your considerations. |
Can a corporation or other entity that is not a natural person be the legal "author" of a work for copyright pourposes Copyright term is now determined in most cases by who is the "author" of a work, even if the copyright is promptly sold or transferred to another. So-called "moral rights" (or non-economic rights) are also determined by authorship. So is it possible for a corporation, business, or other legal entity to be the legal author of a work for purposes of copyright law? | In the US, Yes 17 USC 201 (b) provides that: (b) Works Made for Hire.—In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. "Work Made for Hire" is defined in 17 USC 101, which reads: A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. In Germany, No According to the Wikipedia article The author is the creator of their work, which enjoys copyright protection in accordance with the UrhG, §§ 7, 1, 2 UrhG. Accordingly, all work resulting from a personal intellectual activity is copyright protected.(Gruber: Gewerblicher Rechtsschutz und Urheberrecht, 2nd Ed., Altenberge 2008, p.73) The „principle of non-transferability“ of full or divided authorship according to § 29 I UrhG is valid. Therefore, the creator of an original work can neither transfer their personal right as a creator,[(Cf. Götting: Gewerblicher Rechtsschutz und Urheberrecht, 1st Ed., München 2005, p.250) nor the complete rights for the exploitation of their work to others. (Cf. Rehbinder: Urheberrecht, 15th Ed., München 2008, p.113 f.) Thus in German law, a corporation not only cannot be an author, it can never own a copyright, but only a license - though that might be exclusive, barring the author from using the work. In the UK, in some cases Section 9 of the UK Copyright, Designs and Patents Act 1988 reads: (1)In this Part “author”, in relation to a work, means the person who creates it. (2)That person shall be taken to be— ( aa ) in the case of a sound recording, the producer; ( ab )in the case of a film, the producer and the principal director;] ( b)in the case of a broadcast, the person making the broadcast (see section 6(3)) or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast; (d)in the case of the typographical arrangement of a published edition, the publisher. The publisher will often be a corporation, and the produccer I belive could be. | I know of no cause of action related to "misrepresentation of intellectual property" (I believe it may be a phrase used colloquially in the context of academic integrity). If such a cause of action exists, I'll leave it to another answer to discuss. This answer approaches your question through the lens of copyright infringement and moral rights. A reproduction is an infringement if it substantially reproduces the original. Short quotes, properly attributed, will often be fair use, even if exactly reproduced. If an exact reproduction is not an infringement (e.g. because it copied too short a phrase) or if it is fair use, then a slightly altered reproduction a fortiori would also not be an infringement or would be fair use. In jurisdictions that recognize moral rights, there may be circumstances where an alteration, even to spelling, would be a violation of an author's moral rights. But to make out a violation of an author's moral rights based only on a spelling alteration, the spelling would have to be critical to the integrity of the work (e.g. perhaps the choice of dialect) and the alteration would have to be prejudicial to the author's honour or reputation. | Absolutely. Copyright exists when the work is created, publication is immaterial. | Yes. Content not created by a user is not protected by Section 230, and if the platform agents or employees begin to substantively edit content, the platform becomes a co-author rather than merely a platform for that content. | 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. | This seems to be a mix of question about law and a meta-question about this site, but I'll treat it as an on-topic question about law. The author of a question, or answer, owns the copyright to their contributions, and they can re-publish to their heart's content. Any user who posts here grants a license to SE and other users to use content posted here, so I don't have to ask you permission to quote you. As part of the permission granted by SE to use this website, you have agreed to "follow the rules" set by SE. There are many rules, some spelled out more clearly that others. For example, if you post a question, you indirectly agreed that your content can be upvoted or down-voted. Certain content can be "closed" and deleted, when the content is deemed to violate the rules in particular ways (is spam, porn, abuse, or judged to be poor-quality). Judgment (on different matters) can be rendered by community managers, moderators, or other users. The agreement is here, see especially here. If we take the post that you linked to, it is quite possible that it was deleted because it is not a general legal question, in violation of the acceptable use policy. If you want a historical analysis of your particular case, it should be asked on Law Meta. | This is a case of nominative use. In general, it is fine to use trademarks to refer to the products trademarked, provided that a reasonable person would not be confused about who creates or provides the product, and would not think that the trademark holder has endorsed, authorized, or sponsored the book or other product that refers to the trademark. It is common to include a disclaimer stating that trademarks are owned by specific parities, and the author or publisher is not claiming them, nor claiming any endorsement or affiliation. Such a disclaimer makes the nominative function of the trade mark use clearer, and would make it harder for the trademark owner to prevail in an infringement suit. See This law.se question and answer for more info. | Yes, except for the part where you say "thus". Copyright protection isn't limited to published works, though in the past this was the case with US law. Current US law defines publication as the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. Web distribution is one way to distribute a protected work. The distinction between published and unpublished works matters in terms of registration requirements, it figures into the question of the nationality of the author, the duration of protection for a work for hire and (pseudo)anonymous works, as well as the duration of protection for works created before January 1, 1978 but first published between then and January 1, 2003, and so on. The US Copyright office provides guidance that derives from court cases, and they have this to say about published vs. unpublished. They give as an example of publication ("Offering to Distribute Copies or Phonorecords to a Group of Persons") Publication occurs when copies of a photograph are offered to clients, including but not limited to newspapers, magazines, agencies, wire services, and websites with a license permitting further distribution or display of the photograph. also An offer by the copyright owner on a public website to purchase and download an app that they developed and made accessible on that website constitutes publication of that app. German copyright law makes mention of "publication" as well, for instance The right of publication and of exploitation of the work accrues jointly to the joint authors; alterations to the work shall be permissible only with the consent of the joint authors. However, a joint author may not refuse his consent to publication, exploitation or alteration contrary to the principles of good faith. Each joint author shall be entitled to assert claims arising from violations of the joint copyright; he may, however, demand performance only to all of the joint authors. §6 says that (1) A work shall be deemed to have been published when it has been made available to the public with the consent of the rightholder. (2) A work shall be deemed to have been released when copies of the work have been offered, with the rightholder’s consent, to the public or brought to the market after their production in sufficient quantity. An artistic work shall also be deemed to have been released when the original or a copy of the work has been made permanently available to the public with the consent of the rightholder. One would have to inquire into the specifics of German law to know if "putting one copy on a website" constitutes being brought to the market after production in sufficient quantity. |
Can a restaurant deny service to patrons for wearing masks? I understand that restaurants need not follow the government mandated mask policy for their private place. But here a patron is willing or has opted to wear a mask. Can a restaurant deny service for wearing masks? Here is the link to the story, which quotes an employee at the bar: “Our manager sent me over because I’m nicer than he is. And yes, this is political.” This can be extended for wearing religious garbs to not allow some patrons. | Yes as wearing (or not wearing) a mask is not a protected trait so there is nothing protecting a patron from being removed. While you make reference to religious garb a mask is not religious garb and should not be compared to that. https://www.legalmatch.com/law-library/article/restaurants-right-to-refuse-service.html While there are a few exceptions under some state laws, the answer is usually no. The Civil Rights Act of 1964 explicitly prohibits restaurants from refusing service to patrons based on race, color, religion, or national origin. In other words, restaurants do not have a constitutional right to refuse service. However, this law does not protect those from discrimination based on sexual orientation. This means restaurants can prevent gay people from entering their restaurant and it is not against federal law. There are up to about 20 states, including New York and California, that have enacted that prohibit discrimination in public accommodations based on sexual orientation. However, it gets even more complicated when factoring in local city ordinances within states that allow certain discrimination laws. Listed below there several legal reasons for a restaurant to refuse service, some of which include: Patrons that act in a certain way that is rude or disrupting other guests Patrons that overfill the capacity of the restaurant can lead to safety hazards Patrons that enter the restaurant after the restaurant is closed and no longer serving food to customers Patrons accompanied by large groups of non-customers looking to create rowdy behavior after hours For patrons lacking adequate hygiene or cleanliness, discrimination for this purpose is acceptable because it puts the health and safety of others in the restaurant or establishment at risk Patrons who bring their dog to your restaurant, which is a violation of local health ordinances. When this happens it is okay to tell the patron to leave because of their dog. One exception would be if the dog is a service dog and protected by the American Disabilities Act. Patrons looking to enter a private establishment that requires a certain dress code for etiquette purposes | A company can mandate getting a flu shot as a condition of employment. The government can do the same (for its employees) – Washington state has done so at least for covid. Some individuals qualify for a disability accommodation, so they would be exceptions (e.g. they could be moved to working away from the public). A sincere religious conviction also gives rise to a religious-accommodation exemption. This guidance addresses the question of what constitutes a sincerely held religious belief. | The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? No. It will be true only if they make that clarification in the clause or a properly added amendment. The clause currently has no indication that it is limited to "current client and any past clients that [you] have work[ed] on". The CEO's & lawyer's refusal to amend the clause so as to make it consistent with their attempts [to persuade you] would be a red flag. Their inconsistent representations to you suggest that they are not planning to honor the covenant of good faith on which all contracts are premised. Should I expect the CEO to offer a fair contract or is this something you read and negotiate? You should require a contract that seems fair to you. And by "to you" I mean that it has to be in line with your expectations regardless of the average conditions in the labor market. Negotiations are not binding. They are merely a preamble to a contract, and that contract is binding. This is why you should reject a contract that falls short of your requirements. Some clauses are unlawful and/or void and unenforceable as unconscionable or for contravening legislation (unlawful clauses can and do arise even if drafted by attorneys). Thus, although you might not have to worry about those clauses in particular, the company's mere attempt to include them in a contract should alert you of the high risk of ending up with other abusive terms & conditions which are binding and enforceable nonetheless. | You don’t have to swear Witnesses are given the option to swear (technically take an oath) or to affirm, which has no religious connotations. You also don’t actually swear on a Bible if you do swear. For example california. The US is a very religious state france is a secular state - it prohibits religious clothing (hijabs, crucifixes etc.) in schools. The united-kingdom (specifically England) has an official state religion (Anglican) but religion is far less prevalent in politics or society than it is in the US. For example, outside of a place of worship, who your mother is sleeping with is a far more acceptable topic of conversation than what her religious beliefs are. Which is not to say it actually is an acceptable topic of conversation, just that it’s more acceptable than religion. australia elected its first openly atheist Prime Minister in 1983. The US was not founded on the idea that there shouldn’t be established religion, just that there shouldn’t be a state religion - that is, a church backed by the power of the government. Many of the early settlers were fleeing religious prosecution from state religions. Nevertheless, it was never the intention to exclude religion from politics. Indeed, religion in the US influences politics to a much greater degree than it does in most European or Anglophone countries. | 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. | So I can block children under 13, but I can't tell them that? You can tell them after they fail, you cannot tell them on the asking screen. Then what is the correct way to block children under 13 to access my website and still comply with COPPA? I agree with you that it is odd that they recommend using a cookie but they do!* So you have a entry page with a simple question, "Please indicate your age" and then block based on the response. That's it. Note that the rule is neutral. This means that you do not need to disguise your purpose or try to trick people into entering their correct age. *I think that what is happening here is that any parent who wants to complain to their legislator can be met with the response, "If your kid is so sneaky that they are using different computers to lie about their age what do you want us to do about it?" The fact is, this scheme keeps innocent kids from seeing stuff they shouldn't; the sneaky ones are going to find a way. | The Equality Act (2010) lists the following protected classes (emphasis mine): age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation. It is unlawful for businesses to discriminate against anyone, in the goods or services (or physical access) that they offer, based on any of those characteristics. Some disabilities may prevent people from wearing masks, and those people cannot be discriminated against. I couldn't find a source in the law that says this explicitly, but according to the Equality and Human Rights Commission there is no legal requirement for people who have disabilities to be able to prove that they are disabled in order to receive accommodations for their disabilities. While you could, theoretically, ask people to prove that they have a disability if you don't believe them, you'd basically just be setting yourself up to have to pay a bunch of money in compensation when you eventually run in to somebody who actually does have such a disability, and doesn't have proof with them, who then takes you to court for discrimination and wins. | A business has the right to refuse service, except in the case of unlawful discrimination. "Sued us" is not a protected characteristic. Unless part of the settlement was that the business must serve that customer in future, there is no way this could be considered contempt. |
Is there any law that states how far you can dig underground in the United States? Is there any law that states how far you can dig underground in the United States? Are you allowed to dig as far as you can or is there some kind of limit defined by the law? I am wondering because there must be a lot of resources available to mine as long as you have the technology to dig deeper, so certainly there must be some kind of limit. | There is no law on how deep you can dig expressed in those terms. There are rather rigorously enforced regulations of worker safety in mining activities enforced by the Mining Health and Safety Administration (MHSA) which is the mining industry counterpart of OSHA (the Occupational Safety and Health Administration) but with far more resources and a far more aggressive institutional culture. When mining on land for which the mineral rights are owned by the U.S. government (which probably accounts for a majority of land in the American West), mineral leases may limit the purposes for which mining is authorized, which in turn limits the depth to which it mining is authorized and sensible. Similarly, a mine may not impair legally established ground water rights which could exist when someone else owns an underground aquifer. There are two main legal rules in the U.S. regarding the relationship between surface rights holders and mineral rights owners. In some states, like Wyoming, the land must be restored after mining is over, but there is no duty for the mineral owner to protect or support the surface estate and strip mining is permitted. In other states, like Colorado, the mineral owner must minimize the intrusion on, and structurally support the surface estate (basically by mining in well supported underground tunnels), which requires more expensive mining methods that aren't viable for low value per mass mineral resources like gravel and coal. For the most part, the practical limits flow from mining technology and from a lack of economic incentives to do so. As you get deeper, the temperatures go up and the pressure on the rock you are mining into gets stronger, which makes it harder to mine. Also, beyond a certain depth, your mining equipment must be custom made from expensive materials, since commercial off the shelf mining equipment isn't designed for those conditions. This becomes economically prohibitive if there is no proven deposit of extractible minerals to take at the greater depth that can't be obtained more cheaply from a more easily accessible deposit. Further, the law imposes strict liability for damages caused to others by firms engaged in ultra-hazardous activities, which digging an ultra-deep hole in the ground would be. The deepest mine in the world that is current operating is the Mponeng Gold Mine in South Africa, with a depth that ranges from 3.16km to 3.84km, while the future mining is expected to further deepen the shaft bottom to 4.22km below the surface. The deepest manmade hole in the ground in the world prior to 2008 was the Kola Superdeep Borehole in Russia, which reached 12.262km in 1989, which was the deepest artificial point on Earth in the time and was drilled simply for the purpose of penetrating as deeply into the Earth's crust as possible. It was surpassed in length, but not depth, in 2008 by the 12.289km deep Al Shaheen oil well in Qatar, but that well isn't straight down, so it isn't the deepest penetration in the Earth. As a point of reference, the Earth's crust ranges from 5–70 kilometres in depth and is the outermost layer of the Earth. The thin parts are the oceanic crust, which underlie the ocean basins (5–10 km) and are composed of dense (mafic) iron magnesium silicate igneous rocks, like basalt. The thicker crust is continental crust, which is less dense and composed of (felsic) sodium potassium aluminium silicate rocks, like granite. Below the Earth's crust is its mantle which extends to a depth of 2,890 km. The pressure at the bottom of the mantle is ≈140 GPa. | Volokh commented on this. There is no 2nd Amendment issue, nor does federal law. It may be illegal in some states, depending on whether age is included in public accommodation anti-discrimination laws. For instance, Conn. Gen. Stat. §§46a-64 says (a) It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability or physical disability, including, but not limited to, blindness or deafness of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons; §46a-63 defines "public accommodation" (1) “Place of public accommodation, resort or amusement” means any establishment which caters or offers its services or facilities or goods to the general public, including, but not limited to, any commercial property or building lot, on which it is intended that a commercial building will be constructed or offered for sale or rent Public accomodation laws are how states deal with discrimination in sales, such as selling wedding cakes Illinois 775 ILCS 5/1-103 likewise prohibits age discrimination in public accomodations, but defines "age" as "the chronological age of a person who is at least 40 years old". Connecticut used to define "age" as "any age between forty and sixty-five, inclusive", but that clause was deleted. Lousiana also prohibits age discrimination (La. Rev. Stat. §51:2247). Their statement about age likewise limits anti-discrimination protection to "individuals who are at least forty years of age". Maryland in MD State Govt Code § 20-304 also bans age discrimination, and does not redefine "age" or limit the scope of those ages that are protected. So while it is generally legal to refuse to sell goods to the young (and sometimes mandatory, e.g. alcohol, firearms, tobacco), there are a few states where such a policy would violate state anti-discrimination laws. There can also be city laws (Seattle has very broad anti-discrimination laws), but they exclude age from the Public Accommodation subset of discrimination. | All laws (federal, state and local) apply to everybody, unless you have diplomatic immunity. That is, unless e.g. the federal government decides as a matter of policy to ignore certain federal laws. California does not have a law generally prohibiting the use of marijuana, though public consumption is illegal, minor consumption is illegal, and possession over 28.5 grams is illegal. So that is one less law to be concerned with violating. The federal law still exists, and has not been repealed for anyone. However, the federal government by policy is not pursuing marijuana cases in legal contexts in those states that have legalized marijuana. The complication for foreign students is that there are also immigration laws whereby you may be deported for a drug offense (that link is full of technical details on immigration and drug laws, worth reading). The immigration laws basically make it easy to penalize a foreigner (for example you might be deemed "inadmissible" so you cannot be re-admitted to the US if you leave; it just depends on what their grounds are for action). For example, "a noncitizen is inadmissible as of the moment that immigration authorities gain substantial and probative 'reason to believe' the noncitizen has ever participated in drug trafficking," which does not mean a conviction. It is reported that in California, DHS officers have treated minor infractions as "convictions," which means to be safe you have to avoid even infractions. It appears (and hire an immigration attorney if you want to test this) that trouble only arises if there is reason to believe you are trafficking, if you are a drug addict or abuser, if you are "convicted" (not necessarily "tried and found guilty," it also includes certain legal maneuverings), or if you admit to drug use (even in the case of home use under doctor's orders, i.e. a California-legal context). This incidentally includes non-use but working for the marijuana industry. It is possible that you could get stopped on the street by a random immigration search, and if you are in possession, then... it is not guaranteed that possession of a small amount of marijuana, when caught by federal authorities, cannot lead to immigration problems. | There is currently no direct limit. First, under the Space Liability Convention, a nation bears responsibility for an object launched from its territory. Accordingly, the Soviet Union was billed for $3M because of the crash of Kosmos 954 in Canada. A thing is not "space junk" initially, so "space junk" is not a thing that is produced in the normal sense (cars and computers are produced). Any restrictions on space debris would therefore have to be either in terms of the number of items a country could launch (there is no provision for such a limit), or requirements regarding what must be done when something becomes "space junk". The existing liability law is a country-to-country liability law, and if a Virgin Moon ship lands on your house or on Russia, neither you nor Russia can sue Virgin Moon. Russia might sue the US, if it was launched from the US. In the case of such a suit, the respondent nation has to have been negligent, and there are no standards for determining negligence. Also, actually proving the origin of a bolt is not trivial, plus, the recourse is via damage caused by the bolt, not the simple fact of there being a bolt. There is some law in the US (SPACE Act of 2015) which addresses private launches (the bill is here). | My general belief is that in the United States entering structures like the ones you've pictured would be considered trespassing regardless of if there is a sign in place or not. This is based on the fact that I'm almost certain that if you become injured while on the premises you could sue the land owner. I believe the trespassing signs are just there to give legal cover to the land owner in case someone does try to sue them. Here are two sources that essentially support my beliefs: General definition: Trespass is defined by the act of knowingly entering another person’s property without permission. More detailed legal definition: § 11.411 Criminal trespass. (a) A person commits an offense if, knowing that he or she is not licensed or privileged to do so, he or she enters or surreptitiously remains in any building or occupied structure. An offense under this subsection is a misdemeanor if it is committed in a dwelling at night. Otherwise it is a petty misdemeanor. As you can see these buildings are clearly owned by someone, and you clearly haven't gotten permission to enter the building. Ergo, you're trespassing. Now if you were talking about ancient Mayan ruins, or an Old West ghost town then this would be more of a gray area, I believe, since those structures have been abandoned for 150+ years. The same goes for structures in National Parks, since a National Park is public land you could make a case that you thought you were allowed to go since you weren't specifically told you can't go (assuming you didn't cross a fence line/no trespassing sign). You should definitely contact a real lawyer though. Now if you do enter then I think the probability that you will be caught and prosecuted would be fairly low. It is your decision if that risk is worth the reward of entering/exploring the structure. | 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. | No. The laws specify what you can and what you cannot do. If the intent of the authority was that you were allowed to drive at 45 mph, you would have a speed limit of 45 mph, not a speed limit of 40 mph. If you go at 41 mph, you are breaking a law and can be punished. That said, law enforcement officers usually have some leeway on how to enforce the law, and they could very well let it pass with just a warning (or even ignore it if they have more pressing issues); the circunstances of it are specific to every situation and officer. The only point that could be made would be if the difference was so small that it could be argued that it can invalidate the evidence on the basis of margin of errors. If the radar catches you driving at 41 mph but the error margin of the radar is 5%, you could argue that you were driving at 39 mph and that the reading is due to the error in the radar1. That would enable you to challenge the evidence (but here the point is not that you are allowed to drive at 41 mph but that there is no proof that you were driving at 41 mph). From what I know, most police forces will be aware of that and avoid issuing fines unless you are well above that margin of error2. 1In fact, in Spain word of the street is that radars are set to account to possible margin of error of the radar, plus possible margin of error of the vehicle speedometer -even if it is the vehicle owner's responsibility to ensure that it works correctly- and some leeway. 2Some people post on the internet the "magic formula" of how many % of speed you can go over the posted speed limit based on those calculations. Of course those magic formulas rely in the radar and the speedometer being 100% accurate and the driver never getting distracted a few seconds and passing it. So, even assuming that those magic formulas are correct, if either the radar or the speedometer are not accurate or the driver gets distracted for a few seconds, you are at risk of getting a ticket. | A law has to be "broad" to include a lot of possible crimes and intent of criminals and account for the good faith of non-criminals. "Intentionally access without authorization/exceed" is actually fairly specific; "intent" is the keyword. Someone making a mistake may have intent to login, but no intent to commit a crime. Someone confused by "different pages of demo and live accounts" can easily defend their actions by pointing out that they were confused. It's up to the reasonableness of the pertinent law enforcement and prosecutors to take into account the evidence that reasonable mistakes were made by little old ladies and not charge them with a crime. And for the most part, 98% of the time, law enforcement and prosecutors are reasonable. |
How to protect your idea/application to be stolen by investors? Think person A has a great software business idea. He also knows software programming and converts his idea to a mobile application. Then he needs to raise some money to launch the application, do advertisement, hiring staffs and buying stuffs. Then he searches through the internet and finds some venture capitals, angel investors, etc. and sending a pitch and demo from his application to encourage them making a deal and investment on his idea/application/business. But person B who is one of these investors who received this email says "Why should I invest a lot of money and just get 10-20% equity? I can call Bob who is a computer software engineer and ask him to write a similar application for me, or even better than that! So I will have 100% of this company not only 10%!". Is it possible to prevent such a thing to happen? | The inventor or would-be developer can require potential investors to sign a non-disclosure agreement (NDA) before revealing the details of the idea. In an initial letter a statement such as "This idea is being disclosed in confidence to enable4 you to consider if you wish to invest in the project." That would put the investor on notice, and if the investor discloses it to another or makes use of the idea in a competitive project, there may be grounds for a suit for breach of confidence. If reasonable precautions are taken to disclose the information only to those under a duty of confidence, and to protected it from unauthorized disclosure, it may be protected as a trade secret, and any evasion of those precautions or breach of confidence may give grounds for a lawsuit. In the US the Uniform Trade Secret Act has been adopted by almost every state. In other jurisdictions there are other similar laws. As stated in the Wikipedia article A trade secret is information that is not generally known to the public; confers economic benefit on its holder because the information is not publicly known; and where the holder makes reasonable efforts to maintain its secrecy. | What should I do? Don't get intimidated, don't sign/accept/submit to his "agreement" now that you are securing employment elsewhere, and make sure that henceforth all your communications with the CEO & his startup be --or continue to be-- in writing. The CEO's attempt to be reimbursed is pure non-sense because hitherto there is no mutually agreed clause between you two to that effect. Generally speaking, compensation is for the professional's work, not for his employment spanning "n" pay periods. Having there been no employment/founders agreement of any type, he will be unable to prove that this was agreed any differently in your case. Furthermore, the CEO's threat to seek reimbursement of your earned compensation unless you submit to his "mutual" agreement not only amounts to extortion, but it also reflects his cluelessness about contract law. For instance, that contracts which are signed under hardship or duress are voidable. By contrast, submitting to his conditions will needlessly impose on you the burden of proving duress once you decide the situation is unsustainable. This is in addition to the legal weight with which your acceptance and subsequent conduct would support the CEO's allegation(s) that you two have "at all times" been in a cognizable contractual relation. Being realistic, it is highly doubtful that a startup which pays you weeks late is able --or even willing-- to spend money on a lawyer for nonsense like this. | If I understand your question correctly, you have some clients who have paid you for services that you have not yet provided and, indeed, they have not yet requested. Is this correct? The accounting term for this is a "prepayment". The correct accounting treatment is to increase an asset account (your bank account) and create a liability account (Prepayments or something similar). You need to talk to your accountant about how to treat these for consumption and income taxes. Legally, these people are now creditors of your business - just like all of your suppliers and employees. There is no legal requirement to escrow or otherwise treat this as trust money. Basically, if your business goes bust they will lose their money. This is something that you should have dealt with in your contract with your customers - if you are running an online business then you should get a lawyer to revise your terms of service to cover things like how they can ask for a refund (and how long you have to get it to them) and how long (or if) they forfeit the funds. As it stands the money effectively becomes yours after whatever time under a statute of limitation applies to transactions of this type and size (under whatever law applies to the contract) since after that time they cannot sue to get it back. | They don't actually claim to have a patent. Lots of people license a patent, and then they are using "patented technology". The only effect of this statement is: If you want to copy their product, you better find out what patent they are licensing, otherwise you might be in legal trouble. And their statement means you should have known that your copy of their product is covered by some patent, so you lose some defenses if you are accused of using a patent without license. And of course many customers think if something is patented then it must be good. Which is not true obviously. But logically who owns the patent doesn't make a difference to that, so their statement isn't misleading IMHO. | 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. | With respect to the first question, discussing an idea in a non-encrypted email is not a publication that forfeits the right to patent an idea, even though it is not 100% secure. In the same way, talking about an idea for a patent with your patent lawyer in a secluded booth of a coffee shop in person does not constitute publication of the idea for this purpose, even if someone is secretly spying on you at the time. Since I am at the moment employed by a company, even though the idea originates from myself, it seems that I should quit my job first not to have my current company have any claim over my idea. It is possible that the contract makes even ideas that you come up with yourself while employed by the company the property of the company. If so, you are legally in the wrong and the idea belongs to the company. But, proving the reality that you are stealing the idea from the company is harder if there is nothing in writing. An email discussing an idea while you are employed would have to be disclosed in litigation with your employer over whether the patent applied for belongs to you or to your employer under an employment agreement. If you didn't put it in an email, it wouldn't exist to turn over in litigation. | That's an old idea that has been tried several times before (such as the first, being Unvarnished: Website Lets You Review People (And Trash Them) | HuffPost, which no longer exists); and one of the latest incarnations is Peeple (mobile application - Wikipedia). There are lots of legal liabilities, including defamation and harassment/stalking, even with the Section 230 of the Communications Decency Act | Electronic Frontier Foundation which (mostly) protects the website owner from others' speech posted on the site (your mileage may vary due to jurisdiction). The only way such a site would survive is to do what Peeple and other sites have done: greatly limit the speech allowed, such as limiting to only positive reviews, giving the subject complete control over what does appear on their profile, only allowing "opt-in" profiles, verify identities, etc. You would have to implement full GDPR compliance; but various lawsuits will either shut you down before you get far enough to launch or soon after and force you to greatly limit the scope of the site. Most lawyers would advise you to find something else to do with your time and money. | A creative prosecutor could probably come up with a raft of charges. But you could start with the federal wiretapping statute, 18 USC 2511, and the anti-hacking statute, 18 USC 1030. Here is an indictment brought in 2012 under the anti-hacking statute against someone who distributed and used this kind of software. Depending on the facts and the jurisdiction, this may also constitute the tort of intrusion on privacy or seclusion, a tort recognized by the Restatement (Second) and actionable in many jurisdictions. The most common test is whether the invasion would be "offensive to a reasonable person." And no, contrary to the commenter's view, a "click to accept" license is not a get out of (literal) jail free card here. Courts interpret adhesion contracts liberally to favor the signer, and outrageous terms hidden in small print are not guaranteed to be enforceable, especially if the software is clearly designed to trick people into installing it. The license terms might even hurt you, by providing evidence of your intent to use the software for perving rather than its ostensible use. This is not an exhaustive list, and there may be additional state-level statutes that apply. Bottom line: yes, this is clearly illegal, and the courts will be reluctant to let you trick people into getting away with it. |
What's considered a reasonable time for leasing agreements in the U.S.? So I live in an corporate owned apartment complex in New York. For three months now my air conditioning has gone out on multiple occasions. I have made attempts to contact the leasing office and I typically I get either voicemail, or promises without a time frame or urgency. I called the office and was told "someone is coming out" and then never hears back from them. Typically, this can go for days, requiring me to do follow ups to get anything. I would like to know how easily I can get out of my lease agreement. I reviewed my lease agreement and it's, of course, vague saying I have to allow a "reasonable time for them to repair" it doesn't specify what a reasonable time may be. So under U.S. laws, what's considered a reasonable time for leasing agreements? | "Reasonableness" is a deliberately vague and flexible term. It does not -- and is not meant to -- have any precise definition. Instead, it is meant to be highly case specific. A "reasonable" time to repair will therefore be longer or shorter, depending on the circumstances. If you want a scratch in your countertop repaired, a "reasonable" time is probably a lot longer than if you want the plumbing repaired. And a reasonable time to repair the plumbing may itself vary with the availability of vendors, supplies, etc. Likewise with the air conditioning. It's probably a lot more reasonable to wait three months to fix the AC if it breaks down in December than in if it breaks down in the summer, which it sounds like is what's happened to you. Based on the timing, I'd feel very comfortable arguing that the leasing company has breached the agreement. The "reasonableness" standard is meant to give the landlord adequate time to respond and get the job done properly, but it can't be stretched indefinitely as seems to be happening here, to the point where you have essentially lost the entire benefit of air conditioning by sitting in a hot apartment for the entirety of the summer. New York City has pretty strong tenant-protection laws, so I suspect that you would have the option of hiring someone to handle the repairs yourself and then deducting your costs from the rent you owe. | If the landlord gave you a key, and you can not give it back to him he has every right to charge you for correcting the oversight. I put to you that if you can't provide it back to him, he can't be certain that it has not fallen into the wrong hands, and he would be prudent to change the lock - and indeed, he may not even have another copy of the key in which case he really does not have a lot of alternatives. If you look at the section on "Claims for Damages or Loss" pdf there is a section B - Damage which confirms that Loss includes less tangible impacts including "loss of a service or facility provided under the tenancy agreement" Section C of the same document goes on to assert that "The purpose of compensation is to put the person who suffered the damage or loss in the same position as if the damage or loss had not occurred". There is arguably a question of the amount of loss suffered, and they can't sting you for punitive damages, but they can charge you a reasonable amount to get a new key cut (or possibly to replace the lock) - but that was not your question, and would probably arise if the amount he charges was unreasonable in the circumstance. Depending on if he has already taken action - and if not, how much the bill would be - promptly remedying the breach by finding and returning the key or equivalent action might save you some money. | If you began the lease with no mention of additional payment specifically for parking, and were of the understanding that you could use the property to park cars, and have been using the property to park cars with the knowledge of the landlord, and the landlord has not previously mentioned parking as a distinct part of your lease that carries a fee, you have a very strong argument that parking cars on the property was part of your leasing the property. People park cars on their property regularly; it is a reasonable default assumption that unless told otherwise, you could do this at will. The landlord presumably knew you had been doing this and had not notified you that e.g. it was against an explicit part of the lease or was against a legal regulation to park cars on that property without a fee paid. This is a request for additional payment for something you are currently able to do for free, and doing as part of an existing contract. Therefore, your landlord is offering a change to your lease: the rent will go up by thirty dollars or you will be barred from parking cars on the property. In neither case do you receive additional consideration, so it may not be a legitimate change at all. Regardless though, you do not have to accept the false dichotomy: you can choose to continue parking your car on the property and not pay the money for doing this. Do not agree to the change. Do not pay any additional money. See a lawyer that specialises in tenancy law for your jurisdiction and obtain their opinion before replying to the demand for a change in the terms of your lease; you may have access to free legal advice depending on where you live. | In general, a properly signed lease is binding. But there are exceptions, and they vary depending on the jurisdiction: country, state/province, and even city or county in many places. You mention a claim that the property should not be leased "because the owner needs it". In some jurisdictions, there is a special exception if the owner personally, or a member of the owner's immediate family, intended to live in the property. It is not clear form the question if such an exception would apply. it might well be that a person in the position described in the question has a valid and enforceable lease, and could simply remain in the property, paying rent, and the owner would have no valid grounds for eviction. But this kind of case will depend on the exact wording of the rental agreement, and on the exact provisions of the applicable laws, which vary widely depending on the location of the property. A person in this kind of situation would b wise to consult a local lawyer who will know local property law, and how the provisions of the agreement and other claims will be treated by local courts. There may also be local tenant assistance organizations, run by the government or by non-profit groups, who will know local law and can assist in such cases. A general answer cannot be gotten from a forum such as this which an individual should rely upon in such a case, particularly when the question does not even state what country, let alone what specific locality, is involved. | This is actually pretty standard. You have a contract with a business to provide some service, and you get a bargain on the price of the service as long as you stay with them for some period, such as 2 years. You could get the 'pay as you go' option which doesn't have a termination fee, but that costs more if you are sure you can commit to what you signed up for, for that period. So it's not that you can't terminate the contract, it's that you can't just walk away from your obligation (what they call a "minimum term agreement"), cost-free. The early-termination fee is part of the cost of moving. You have to look in the Legal Agreements & Contract part of Account Details on your account to get the specific agreement that you are bound by. Generally, you are subject to that fee, unless the subscriber dies, or is in the military and is shipped out. You can also transfer your service from area to area – I assume you either are moving to an area without Xfinity service, or you elected to not use Xfinity in that location. It is legal for a business to put their business interest above that of a customer, even in the case of regulated "utilities". | You signed the lease In general, this is definitive of your intention to have a month-to-month lease. Any correspondence that you have prior to you signing that you wanted or even agreed on a yearly lease is only evidence that such things formed part of the negotiations but, for whatever reasons, what was ultimately agreed was a month-to-month lease. If you can prove misrepresentation you might be able to get what you want but the usual remedy is recission (ending) of the contract, not a change to the contract. However, given that the type of lease is such a fundamental feature and is usually prominent on the document, proving you were misled rather than agreeing to a month-by-month lease will be difficult. | Financially, the landlord can take you to court and get a judgment against you where you have to pay that rent, so you won't save any money. If you hire an attorney to defend you in the lawsuit, that will cost you extra money, so you could be worse off than just paying rent and staying there. The lease might have late payment fees, and if you that would be additional money that you would owe. In addition, there could be some reputational damage to you that could affect your ability to secure a lease in the future (a black mark on your credit history). Also note that in Georgia, a landlord has no obligation to seek an alternative tenant, so he can let the unit sit empty for 4 months (though he cannot collect twice on the same unite). | If the lease has expired and the tenant does not have an option then the landlord is under no obligation to offer a new lease; they do not have to give any reason. They would still need to comply with the notice periods in the lease or it will revert to a month-by-month contract; in that case, the notice period is 1 month. |
Is it legal to allow users to store pdfs of books in my website where they only can see them I'm thinking of creating a website where the user can create an account and upload his ebooks (pdf format) and read it from the site from wherever device his logged in to and I'm wondering is it legal to give the ability to the user to upload a copyrighted book that he purchased considering that he's the only one who can see he's ebooks plus should these files be encrypted in the database in case of a data breach. | 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. | Whoever "derived" the illegal derivative work most likely has copyright in his derivations, unless they are not worth copyright protections. Say I take the Harry Potter books and add a few chapters and try to sell it - that's copyright infringement of course, but I have the copyright on these additional chapters. However, I don't have the right to allow you to copy the derived work. And even if you have the right to copy the original work, you don't have the right to copy the derived work because it is a different work. I could extract my changes, and allow you to take them and do with them what you like. You could then create an illegally derived work yourself. I couldn't sue you, but the original copyright holder could. To the comments: One, a work and a derivative of the work are not the same, so even if you have the right to make a copy of a work, that doesn’t give you any right whatsoever to copy a derivative work - they are not the same work. Two, the copyright holder has the exclusive right to control copying and the creation of derivative works. If the copyright holder doesn’t want derivatives to exist, then creating them, copying them etc. is always copyright infringement. | This is relatively uncharted legal territory, so until multiple cases establish some sort of precedent, we can only guess. I know of no legal requirement that a Browser or User has to submit cookies or referrer data or other meta-information accurately. In that regard, a user is unlikely to be prosecuted just for submitting HTTP headers. It is likely closely related to Free Speech issues. The DMCA spells out that it is illegal to circumvent copyright protection measures. While this law is typically used to make it illegal to copy DVDs, video-games or streaming movies, it is possible that the "3-free articles" policy could be interpreted as a copyright protection mechanism, and defeating it by changing HTTP headers is a circumvention. A good summary is here. A specific site's TOS (Terms of Service) probably contains language that spells out it is a violation to use the site in a manner other than as it is intended. This is a typical anti-hacking, anti-screen-scraping provision. Altering a browser session to circumvent their services is probably a violation of the license to access the site, and may open a user to a civil lawsuit for damages or even criminal hacking charges (the details of which are different state-to-state) | GDPR & EPD require user consent before storing a users personal information. Wrong. User consent is one of the ways that justify storing personal information, but there are others. You may check art.6 to see the several reasons that allow to store personal information. In this case, it seems reasonable to justify it under the paragraph f (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Of course, that means that the data has to be used for this purpose. Avoiding spammers and other banned users would be such a purpose, but you should ensure that you do not send those e-mail address commercial information or even a Christmas greeting. In any case, be careful with anything you store. If along with the e-mail you stored more info, this could be interpreted as excessive and beyond the scope of paragraph f. For example, imagine storing "User wrote nazi statements" explaining why the e-mail is banned; EU laws are very restrictive about storing information about political or religious beliefs. | Forget about copyright or EULAs. In the UK this would be illegal under the Computer Misuse Act (1998) and you could be jailed for up to a year - specifically Unauthorised access to computer material. (1)A person is guilty of an offence if— (a)he causes a computer to perform any function with intent to secure access to any program or data held in any computer, or to enable any such access to be secured; (b)the access he intends to secure, or to enable to be secured, is unauthorised; and (c)he knows at the time when he causes the computer to perform the function that that is the case. This law has been applied even to simply altering parameters in a GET request to a website, so it is incredibly broad. Other jurisdictions have similar wording, so be aware! | 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 Right to Access is pretty absolute. However, there are some limitations: Is the service even the Data Controller for the data in question? Here, you're talking about notes of one user about another. Is the platform the controller for the notes, or would the note-taker be the controller? Or both, jointly? If the platform weren't a controller but merely a data processor for these notes, it would be illegal for them to disclose the information. Trish also correctly points out that the GDPR does not apply to processing for purely personal or household purposes, e.g. personal social media use. So GDPR would not provide a basis to compel a user to disclose their notes to the data subject, assuming that the note-taker is covered by this exception. Of course, this exception wouldn't apply if the notes are taken for other purposes, e.g. professional networking. Also, this exception doesn't affect the platform. There is an explicit limitation to the right of access in Art 15(4): The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others. Disclosing user A's notes about user B to user B would likely violate the privacy rights of A. The notes are both A's and B's personal data. However, the correct balance depends on context. E.g. an employer probably can't refuse to provide access to a performance assessment merely because it was written by an identifiable manager. The UK ICO has provided detailed guidance on this aspect to the right of access. They propose a three-step test: Step one – Does the request require disclosing information that identifies another individual? For example, it might be possible to redact other people's information (but not in your Mastodon notes example). Step two – Has the other individual provided consent? Step three – Is it reasonable to disclose without consent? What is reasonable is highly context-dependent, but UK data protection law gives some concrete criteria to consider. The EU EDPB has draft guidance on the Right to Access. They note that the Art 15(4) can cover a wide range of rights, not just other people's privacy rights. But as in all things, the data controller is required to strike an appropriate balance between user A and B's conflicting rights. In the Mastodon user notes scenario, I think that the note author's rights to privacy should be considered more important than the data subject's right to access those notes, thus making it possible to reject that part of a DSAR under Art 15(4) GDPR. If we assume that the note-taker A is a (joint) controller for these notes, then it would also be necessary to consult them before making a decision about the access request. | A document can be distributed under more than one license. Just because it has been made available under a CC license for free, doesn't mean that IEEE can't negotiate a different license with different terms that allow them to sell the content. (This is similar to the way that a software library can be available for free under a license that permits non-commercial use, but also be made available for a fee for commercial use.) If you want to know whether IEEE is legally selling Aaron Swartz's manuscript, you can contact Morgan & Claypool, the publisher that owns the copyright, and ask them whether this use by IEEE has been authorized by them. For the other documents you mention, contact MIT Press. Etc. |
in washington state can a divorce case last 32 months , i purchased divorce packet and met with someone from legal aid 2 weekends in a row where she asked the questions and i answered..she filled my answers in the blanks..she filed paperwork after i saw judge to waive cost of filing fee..i asked if i had to attend any court peoceedings and she told me no and that in 90 days id be divorced..i went out to celebrate being divoced and she babysat my kid..turns out from my research many years later i wasnt divorced for 32 months after initial filing!!..this person whod helped me to fill out the paperwork made herself a joinder to the case and i received no notices to appear for court and she went instead..my husband attended court via telephone cuz he lived in another state..he also wrote the court a letter and paid a filing fee on the same case..not once was i ever told by the woman whod helped me with my paperwork or by my exhusband both of whod i seen during the 32 month period at least 2 times ever said anything regarding me havoing to go to court or that i was not legally divorced after 90 days..was this legal | in washington state can a divorce case last 32 months Yes. There is no limit to the possible duration of a divorce case, especially where at least one represented party has any money. This report showcases various instances of divorce proceedings that have lasted longer than the marriage itself because lawyers dragged the case for as long as they want. Being in Washington or New Jersey makes no difference. Your description, including the mention that your "helper" from the divorce packet babysat your kid, suggests that you have been scammed. If you want to get divorced, it is in your best interest to learn about divorce & procedural laws of your state and then take the helm of your proceedings. You did not specify the conditions of the divorce packet you purchased. It is therefore unclear whether the packet provider has any duty toward you in the direction of an attorney-client relation. That being said, your husband as the adversary in the proceedings has no obligation to inform you about proceedings if he already notified the person representing you in court. | If the DA decides to press charges (we don't know) and if he is convicted (looks like a solid case), the problems are not just the sentence itself. There might be a probation period with conditions like drug tests and counseling, with penalties if he misses them. It is legal to discriminate against people based on prior convictions. While California has some restrictions on when employers may ask, they can make it one part of their assessment. | Unless you received an order from the court prohibiting contact, it might be legal; but it's probably not the best idea. Let the lawyers handle it Attorneys have far better, more effective means of dealing with this situation than the course of action you describe. Lawyers have productive tools to accomplish the job and they know how to use them. For example, assume the best-case-scenario results from your idea and you get the other side to admit their affidavit is fallacious in some way. "Aha!" you shout. "Success! Daylight!" But then what? It's not on record. You can't testify to the admission because that's hearsay. Now imagine they next share this information about your little conversation with the counterparty that had them sign the affidavit in the first place. After first being alerted of your concerns, they both now act in concert to shore up their stories and you never see that "daylight" again. Contrast that outcome with one where your guy or gal's attorney deposes the witness under oath, gets them to concede to your version of the facts then introduces the deposition as favorable evidence at trial. That's a much better outcome for "your side." Wouldn't you agree? Be wary of unintended consequences Generally speaking, such direct contact between the parties is often problematic and rarely helpful. (Except, in some cases, when direct contact between the parties leads to a negotiated settlement. Which happens far less often than the direct contact going sideways making the situation even more intractable.) Before you launch off on your own and do something that might be counterproductive. First, identify the areas of the affidavit that you think are inaccurate. Give that information to the party you support, then have them run it by their attorney to figure out the best way to handle the situation. | Dale M is correct. Lawyers get calls all day long from people who want free advice and have no intention of entering into a paid representation. That is what your letter sounds like. I write separately just to add that you may have better results if you make explicit that you are aware of their rates and prepared to pay them. Even then, though, it may be that whatever you'd pay for the two hours to walk you through this is not as valuable as time they'd spend on other matters. If I have to prioritize between a repeat client and someone who will probably not pay for anything more than having one question answered, that's an easy choice. | Was/is it permissible for judges in the US to talk ex-parte like that? No. Ex parte interactions of that sort are not allowed. See, for instance, Disciplinary Counsel v. Bachman, 2020-Ohio-732 (Dec. 18, 2020) and Maze v. Judicial Conduct Commission, 2019-SC-0691-RR (Dec. 17, 2020). An example of less recent decision but with a reporter citation number is Comm'n on Judicial Performance v. Bozeman, 302 So.3d 1217 (2020). For situations of imminent risk of irreparable harm, procedural law provides for ex parte motions and ex parte petitions, such as this granted petition for Personal Protection Order. See M[ichigan]CR 3.7003(G). But the scenarios you depict fall short of the necessity for which ex parte provisions are intended. do the above scenes in the movies essentially portray judicial misconduct? Yes. A judge's house is inappropriate for communicating, let alone ex parte, his ruling (I am not knowledgeable of the films but my understanding of your description is that that judge made the ruling on the application). As for The Untouchables, any evidence of jurors' & judges' conflict of interest and likely bias has to be filed in court and comply with procedural law so that all parties have an opportunity to litigate the matter. | You may file a motion for a continuance (here is a sample help page). You have to provide as much information as is required to persuade the judge to grant the continuance. Nobody knows exactly how much information that is, and probably only your lawyer (I assume you are doing this yourself) would have a reasonable idea. Simply saying "I can't cope" is insufficient, and something that implies an open-ended delay ("Can we put this on hold until they discover a cure?") will not suffice. | Married (or married at the time of birth) fathers have equal rights to custody as mothers in AZ. There are no (active) laws establishing that a mother is to be given more rights to a child in a custody arrangement than a father. This is a little different for unmarried fathers because paternity is not assumed, it must be established. Married fathers are presumed to be the father of the child automatically. AZ used to follow the tender years doctrine where preference was given to mothers during the child's younger years. There is an entire somewhat interesting history there on the linked page. This has mostly been phased out in the United States in favor of the "best interest of the child" doctrine. So provided that you are financially stable, have a stable living environment, and can provide for your child, you as the father should have equal standing in a court with regards to custody. I say "should" because many judges still lean towards the mother. For your specific case I'd immediately talk to a family court advocate. They can get you in front of a judge with your estranged wife either being "in absentia" (not present) or ordered to be in court and produce an order to return the child to the home state. It will also help a custody case later on to establish that you are actively seeking a relationship with the child and you are being denied that (keep records of everything, phone calls, texts, letters, emails, etc). | Prove my work is not a trade secret violation Please don't. It's not your job to prove your innocence. The burden is on them to be specific, explain fully, and prove specific claims about your actions. In other words, don't justify, don't explain, and don't defend yourself to them. It's actually best you do not say anything to them, and just forward the letter to your legal counsel (Since you're selling software to be used in the medical field, I assume you already have some kind of legal counsel). For instance, even saying something as innocuous as "Managing patients, Exams, Bills etc are all public knowledge." could be used against you. Because it establishes the fact that you've been working on those features with them and that you've been working on those features with your new company (which doesn't necessarily follow, for all they know, you could have purchased a library module from someone else with those exact features). In other words, even if you were to reply with such an innocuous-sounding statement, you could be saving them months of cross-border discovery and litigation about some of their claims (even if you believed you were being entirely reasonable by defending yourself). But at the same time, don't take what I'm saying to mean that you should lie to them about which features you recently worked on. When I say that you shouldn't be talking to them. I mean that you should not be talking to them. You shouldn't be engaging with them and you shouldn't be giving them any shred of information whatsoever (implied or otherwise). It's not your job to make their job any easier. Do not reply to them. Don't even acknowledge the receipt of the letter (unless you already did by signing for it, which can't be helped). Use a legal intermediary. Give the letter to your own legal counsel (whether you signed for the letter, or not) and leave any reply to him or her (assuming he/she thinks this warning letter even warrants a response). And if this former employer gives you a phone call, kindly refer them to your legal counsel without saying another word. |
Can parents force their teenage children to get vaccinated? The Los Angeles school district recently made the Covid vaccine mandatory for attendance. What’s special about the Covid vaccine is that it’s supposed to be given out not just to first graders (who are fairly easy to be forced into medical procedures) but also to kids aged 12-17 who are usually not compelled to undergo injections against their will. Legally speaking, what can a parent of a 12-17 year old child do if their kid refuses to get vaccinated? Presume zero physical cooperation from the child in question. This question is inspired by a friend of mine who’s child flat out refuses to get vaccinated for Covid despite the parents pleas and who’s very stressed about a possible vaccine mandate in local schools. If exact location matters, I’m interested in the legal situation in Washington. I’ve found a lot of articles about small kids getting medical procedures against their will and a lot of articles about parents refusing to consent to their child getting vaccinated, but nothing about teenage children refusing to cooperate. How does the law envision this to be resolved? | 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. | You're under 18, so you're viewed as a minor under the law, and as such, you can't agree to and sign legally binding contracts. The TOS for the applications are agreed to by your parents by default, because your parents are responsible for you and have no choice in parental guardian-type duties, such as education. Agreeing to the software TOSs may also be done for all student users by the school with their software site license(s) and under an agreement with your parents; ask for and read any written policies the school has. And, you don't have a say in data handling at your school; that will be another school policy for data and network security, and hopefully a policy exists. If a policy exists, it will set by the school board and it will respect a variety of local, state and federal laws. That said, you can approach the school board and outline your concerns and ask to take tests and assignments with pencil and paper. But they are not obligated to change policies for you or make accommodations, other than established accommodations required by law, such as under the ADA act. Once you're 18, you can fight the power. Until then, you're a minor. | In the US, the most wide-spread proscription against a medical treatment (broadly construed) is that only 10 of 50 states allow physician-assisted suicide. In Washington v. Glucksberg (one of the states that subsequently made such suicides legal), SCOTUS affirms that such a law does not violate the Due Process Clause. Given a historical analysis, the court concludes that an "asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause". O'Connor in her concurring opinion further states that "There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths", but this falls short of a ruling that a person has a protected liberty interest in seeking medical care. Cruzan v. Director affirms that "[a] competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment" (also noting that "informed consent" may derive from common law or specific state constitutions). Reciting prior reasoning on Due Process and medical treatment and referring to Jacobson v. Massachusetts (smallpox case), they note that "the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease". There seems to be a dearth of cases affirming a protected liberty interest in seeking a particular medical procedure. Were the court to announce a fundamental right to seek some medical treatment, that right could still be subordinated to the states compelling interest in preventing some harm associated with a medical procedure, with legal review being carried out under a strict scrutiny standard. It should be borne in mind that Congress does limit access to drugs and devices, hence there is no constitutionally-protected right to take LSD as a treatment for mental problems. To the extent that a procedure relies on a (not-yet approved) device, that device must be approved by the FDA. | Yes, maybe The legislation varies by state but s494 of the Victorian Children, Young Persons and Families Act is typical. A person who has the control or charge of a child must not leave the child without making reasonable provision for the child's supervision and care for a time which is unreasonable having regard to all the circumstances of the case. If the child is 17 years old then the circumstances are such that it is not unreasonable to leave them, even for a period of days. If the child is 17 days old, even 30 seconds may be unreasonable. | Summary: there's no minimum age; rather, you must use the seat in accordance with the manufacturer's instructions. Instructions for reversible seats typically do not depend on age but on the child's weight and height. Arkansas law (AR Code § 27-34-104 (2020)): (a) While operating a motor vehicle on a public road, street, or highway of this state, a driver who transports a child under fifteen (15) years of age in a passenger automobile, van, or pickup truck, other than one operated for hire, shall provide for the protection of the child by properly placing, maintaining, and securing the child in a child passenger restraint system properly secured to the vehicle and meeting applicable federal motor vehicle safety standards in effect on January 1, 1995. (b) A child who is less than six (6) years of age and who weighs less than sixty pounds (60 lbs.) shall be restrained in a child passenger safety seat properly secured to the vehicle. (c) If a child is at least six (6) years of age or at least sixty pounds (60 lbs.) in weight, a safety belt properly secured to the vehicle shall be sufficient to meet the requirements of this section. The key passage is "properly placing, maintaining, and securing the child in a child passenger restraint system properly secured to the vehicle." This implies that you can put the seat in the forward-facing position only if it is designed to be used that way and then only when the manufacturer's instructions say that it's acceptable. In my experience this typically depends on the child's height and weight rather than on the age. For example, one manufacturer says of its seats [Convertible seats] in the rear-facing mode should be used for children weighing 5-40 lbs, with a height of less than 49 in. and whose head is 1 in. or more below the top of the car seat. [Convertible seats] in the forward-facing mode should be used for children weighing 22-65 lbs. and height less than 49 in. and can walk unassisted and whose top of the ears are below the top of the car seat. So if the instructions for your seat have the same criteria then you can turn it around when the child reaches 22 lbs. CDC weight data for boys shows that virtually every 21-month-old boy is heavier than this (note that the data are in kilograms and that 22 lbs is 9.979 kg). Therefore, the legal answer is that there is no minimum age; the requirement is to use the device "properly." Follow the manufacturer's instructions. (Aside: the incorrect belief about the 2-year threshold could be a widespread misconception among Arkansas police. If this is so, and if they are therefore in the habit of ticketing people for having children under 2 in a forward-facing seat, then you could get a ticket. You might be able to convince the officer of the reasoning in this answer, but you might not, in which case you would have to take it to court to show that you were following the manufacturer's instructions and therefore the law. You will have to weigh the potential hassle of having to do this, including the likelihood of its happening or not, against the benefit of letting your child see the back of your head while you're driving. My guess is that you're unlikely to get a ticket for several reasons, and that your child is likely to be significantly happier facing forward, but I don't know Arkansas police and I don't know your child.) If you do not have the instructions for your seat, you should be able to find them online. Some seats are not designed to be used facing forward. If yours is such a seat, you will need to get one that is. Remember that complying with the law may seem more important because you're more likely to get pulled over by a police officer than to be in a collision. But in fact the most important consideration is safety. If you are in a collision you will want your child to have the greatest protection possible. | I think that is not a "reasonable" interpretation of the order, but that's separate from the question of what will be enforced. Focusing on the word of the order, No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer What does it mean to "compel" a person to do something? A court can compel a person to stay in jail for some period of time, and can order the police to use force to enforce that requirement – that's the classical example of compulsion. Nobody except the police can compel a consumer to do anything. All of the words of the order have to be given meaning, and it is not reasonable to say that "compel" is limited to "actions backed up by police action". The government does not separately compel "consumers" and "employees" to do things. In order to sensibly interpret "compel" and "consumer", this has to interpreted as including things other than "pointing a gun at a person". The only sensible interpretation is one that includes denying service to those who do not comply. In addition, the series of "Whereas's" clearly indicate a ban on "no shots, no service" conditions. It remains to be seen in court whether this is found to be enforceable (via the "failure to comply" clause, exactly analogous to other emergency powers allowing restrictions on gatherings etc. previously). | Facebook can continue to gather and exploit data, modulo the requirements of COPPA, because it does not depend on obligating a minor to do something, such as pay money or dig a ditch. In general and because of copyright law, nobody has the right to use anything that Facebook provides unless Facebook grants the user permission. The user has no obligation to provide anything to Facebook – if it did, the minor would arguably be exempt from that obligation. | Could the new mRNA vaccines have come to market without any testing? No. The FDA still has to approve emergency limited approvals of new vaccines. At least as a practical matter, the FDA requires some testing to grant this approval, although not the full testing regime of a non-emergency application for a new vaccine or drug approval. FDA approval is the limiting principle that prevents emergency drug approval from being used recklessly despite a lack of civil liability. I know this from news reports about the COVID vaccine approval process and can't cite chapter and verse of the relevant statutes. If there are no legal consequences, what reason would pharmaceutical companies have to conduct clinical trials before going to market? Drug companies have to get FDA approval for every single product they make. If they act in bad faith to get emergency approval, the FDA will not treat them well in the future and could even revoke their authority to manufacture any drugs going forward. Also, keep in mind that vaccines are not particularly high profit margin products for drug companies. |
Could attempting to codify case law that was decided many years ago open up the legal question again? As of right now, gay marriage is legal based off of the case law resulting from the decisions of United States v. Windsor and Obergefell v. Hodges. These cases struck down Sections 2 and 3, respectively, of the Defense of Marriage Act (Section 1 was merely the short title). DOMA itself though was never repealed. Now, more than five years later, if Congress were to pass a law officially repealing DOMA, could they be sued by right-wing groups attempting to bring the legal question back? We've already seen the tactics of completely ignoring Supreme Court precedent being used by those on the right with the legal crisis surrounding the Texas abortion ban. Would right-wing groups have any sort of luck suing a repeal of DOMA, or would a lower court make quick work of their complaint and rule against them, citing the above cases? I guess, in short: if Congress repeals DOMA (in line with case law), could right-wing groups sue over that with any success? Edit: I see my original question was not worded well, and it actually was not what I was attempting to ask. So, to rephrase: if Congress passes a law that explicitly allows gay marriage, could there be a lawsuit with any amount of success over that law? | Congress cannot be sued for enacting a law. Period. The courts do not have the power to punish Congress for passing a law, they cannot forbid Congress from passing a law, they have no say over what the wording of a law can be. Only Congress has the power to determine what laws they pass. The courts do, of course, have the power to interpret and even strike down a law that they deem to be unconstitutional. This is the essence of constitutional separation of powers. | I will only address this part of the question: Who would be able to authoritatively decide the constitutionality of such a question, with all Supreme Court justices having clear conflict of interest on the matter? The Supreme Court could still hear such a case, as the justices make their own decisions about when to recuse themselves. In particular, they might decide to hear the case based on the "Rule of Necessity", which says roughly that a biased judge is better than none at all: a judge can hear a case, even in the presence of a conflict of interest, if there is no other way for it to be heard. See United States v. Will, 449 U.S. 200 (1980), in which the Supreme Court ruled 8-0 that federal courts could try a case related to the salaries of federal judges. Another possibility is that the case could be brought in a lower federal court, say District Court. There is a question here: the Supreme Court has original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls" (US Constitution, Article III, Section 2), and I do not know whether Supreme Court justices are "public Ministers". However, if a lower court did have jurisdiction, it could rule on the constitutionality of the question, since a District Court judge would not have a significant conflict of interest. The relevant Circuit Court of Appeals could presumably hear an appeal. If the Circuit Court's ruling was appealed to the Supreme Court, and the Supreme Court felt that they all had conflicts of interest (and decided not to invoke the Rule of Necessity), then they could simply not vote to grant certiorari, in which case the Circuit Court's ruling would stand. | You have asked two quite different questions there. I’ll address the second part first (where Rob argues for the decision in Bob’s favour to be overturned in his response to Bob's appeal), because it’s easier. For both parties to partially succeed at trial, and both parties to contend on appeal that they should have been wholly successful, is not that unusual. It is usually called a cross-appeal in Commonwealth jurisdictions, or in the Supreme Court of the United States, a cross-petition. An example from the United Kingdom: in R (on the application of Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58, the court dealt with four appeals arising out of challenges to the so-called bedroom tax. In one case, the claimant succeeded on one of two grounds, the government appealed, and the claimant cross-appealed on her failed ground: The Rutherfords succeeded in their claim on the ground of disability discrimination. [Ms A’s] claim succeeded on the grounds of sex discrimination. Both A’ and the Rutherfords’ Equality Act claims were rejected. The Secretary of State appeals the Court of Appeal’s decision to allow the Rutherfords’ and A’s discrimination claims. A cross-appeals the rejection of her Equality Act claim … The Secretary of State’s appeal in respect of A is allowed, and A’s cross appeal is dismissed, by a majority of 5 to 2. The first part of your question is more difficult, which is why you have received two conflicting answers. Usually appellate courts have the formal power to go beyond the issues raised by the parties, as pointed out by @Dale M. In any event, if an apex court exceeds its powers, there is no further court of appeal to say so. However, as @ohwilleke points out, to decide the case on a ground not argued violates due process. When an appellate court does this, it is said to act “on its own motion” or sua sponte. As @ohwilleke says, in the United States, appellate courts may be able to affirm the trial court’s decision for any reason supported by the record, even if not raised by any party. This is the “right for any reason” or tipsy coachman doctrine. However, your question asks whether a court can overturn part of decision not appealed against. That is, by appealing his partial win, does Bob run the risk of the court ruling sua sponte that he ought to have suffered a complete loss? This is discussed in Miller, ‘Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard,’ 39 San Diego Law Review 1253 (2002). In the introduction, Miller observes: In fact, some of the Supreme Court's most famous opinions decided issues not presented by the briefs or addressed below. In Erie Railroad v. Tompkins, the Court overturned sua sponte an ancient precedent on applying the common law in diversity cases. Mapp v. Ohio overrules a prior case and applied the Fourth Amendment exclusionary rule to the states, without briefing or argument on the issue. In Washington v. Davis, the Court decided that Title VII standards did not apply to constitutional discrimination, even though the parties had agreed that they did. Younger v. Harris prohibits injunctions against pending state court criminal cases, even though the issue was not argued on appeal. Indeed, in Stanley v. Illinois, the Court held that due process requires hearings and an opportunity to make submissions before a state can terminate the parental rights of unwed fathers. But the Court decided this without briefing or argument – without a hearing on the issue or an opportunity for the parties to make submissions. Most of those cases involve a petition for certiorari in which the petitioner got more than they asked for. However, Younger v. Harris is closer to the Bob/Rob scenario. Younger, the District Attorney of Los Angeles County, prosecuted Harris under the California Criminal Syndicalism Act. Before the criminal trial, Harris sued Younger in the Federal District Court, which held the Act void for vagueness and overbreadth, and enjoined the prosecution. Younger appealed to the Supreme Court, but rather than determining whether the Act was constitutional, the Supreme Court reversed the district court’s decision on the ground that federal courts should only enjoin state criminal prosecutions in extraordinary circumstances. So, Younger “won,” but Harris’s constitutional argument remained open and supported by the district court’s opinion, which Younger could not challenge again without first securing a conviction at trial. To summarise, appellate courts sometimes do overturn decisions based on arguments not raised by the parties. However, this is exceptional and is generally considered procedurally unfair. If an appellate court thinks the parties have missed an important legal argument, it is more common and appropriate for the court to raise it at the hearing, and invite the parties to consider and make submissions about it. | This depends on how far along you're waiting for court rulings to set in, and if you count laws of Congress passed under the 13th amendment's enforcement clause. There were quite a lot of things that got ruled as violations of the 13th and 14th amendments (mostly the 14th), but many were not ruled or legislated that way for decades. Some were even ruled to have an essentially opposite effect of what the current (overturning) precedents do. "Separate but equal" was challenged on 13th amendment grounds, but was upheld in Plessy v. Ferguson (1896), and wasn't overturned, on 14th amendment grounds, until 58 years later in Brown v. Board of Education (1954). Your particular situation sounds like peonage, which was outlawed by Congress in 1867 via the enforcement clause. This law specifically banned "the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise." However, peonage cases continued to make their way into the courts for more than 40 years thereafter, such as Clyatt v. United States (1905)— which ruled that peonage was involuntary servitude— and Bailey v. Alabama (1911). These cases affirmed that the 13th amendment abolished not just chattel slavery but essentially all forms of involuntary or indentured servitude (except as punishment for a crime). Though exactly what qualifies as "involuntary servitude" is still something courts decide on a case-by-case basis; the draft doesn't, nor does mandatory community service to graduate high school. | The answer isn't clear, but Justice Kavanaugh's concurrence in Dobbs suggests that such a prosecution would be unconstitutional: May a State retroactively impose liability or punishment for an abortion that occurred before today’s decision takes effect? In my view, the answer is no based on the Due Process Clause or the Ex Post Facto Clause. Dobbs. v. Jackson Women's Health Org., 597 U. S. ____ (2022). Kavanaguh relied largely on the Supreme Court's decision in Bouie v. City of Columbia, 378 U. S. 347 (1964). There, black protesters were charged for trespass because they staged a sit-in at a diner and refused to leave when police told them to. They argued they couldn't be convicted because the state's trespass statute only prohibited entering land after being told not to, but the courts convicted them anyway, holding that the statute also outlawed remaining on land after being asked to leave, even though the statute said nothing like that. The Supreme Court reversed the convictions, holding that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids." By applying such a construction of the statute to affirm their convictions in this case, the State has punished them for conduct that was not criminal at the time they committed it, and hence has violated the requirement of the Due Process Clause that a criminal statute give fair warning of the conduct which it prohibits. Bouie v. City of Columbia, 378 U.S. 347, 350 (1964). But Kavanaugh's opinion isn't controlling, and Bouie isn't exactly on point, so the question remains open. The defendant probably has the more straightforward argument -- the abortion was legal up until Dobbs was decided -- but there's a pretty good argument for the state, as well: When Roe was still good law, abortion law was quite fuzzy, so it was never entirely clear whether new restrictions on abortion were or were not unconstitutional. Given those conditions, the state laws outlawing abortions were clear enough to provide fair warining, even if there were legitimate questions as to the constitutionality of those laws; if a woman wanted to do something contrary to the law, she should have petitioned the courts to invalidate it, rather than simply breaking it. So there's no real way to say what the answer is at this point, but I suspect we'll get a real answer before too long. | You've basically described two of the ends of the pole in theories of jurisprudence (there are dozens of ends). There is no theory of law that relies purely on "spirit" (also no theory that actually relies on the letters uses=d in writing law), instead, everybody interprets the text (the words enacted by the government) and some people supplement their interpretation with consideration of "other factors", such as assumed legislative purpose. Certain scholars and judges are inclined to put most weight on the actual wording of the law, while others are inclined to let purposive considerations dictate the interpretation of a law. Interpreting law by W.N. Eskridge is an informative guide to supplementing a reading of the statute with anciliary considerations. Antonin Scalia is the best-known proponent of the textualist approach. | Prior to that act, civil procedure in federal courts was non-uniform (historical overview). The main problem seems to be that courts were supposed to conform to the procedure of the state in which the court is located (as mandated by the Conformity Act of 1872). The "has to" reason is that SCOTUS at the time did not feel that it was authorized by the Constitution to write its own rules when Congress could have done so, see Wright & Miller Federal Practice and Procedure. The root problems seems to be the Process Acts of 1789 and 1792, which in the latter case did not allow courts to set rules for actions at law, and in the former case required courts to apply rules in effect when the state joined the Union (regardless of how the rules changed subsequently). | The Answer Depends Upon The Facts Of The Case Related To The Forum Where The Suit Is Commenced The analysis depends upon some key facts that a person asking a question might not know, because they are not intuitively obvious and have actually changed in the last few years, without knowing the relevant law. When The Forum State Has General Jurisdiction Over All Defendants The most important question to consider is this one: Is the state in which the class action suit is brought is home to the headquarters of the US manufacturer (or a state where the manufacturer has a substantial equivalent to a headquarters)? This question matters because, if and only if the answer to this question is "yes" then, "general jurisdiction" would be present under a U.S. Supreme Court precedent established in 2014. If a forum state's courts have "general jurisdiction" over a defendant, this means that the defendant can be sued in that forum on any cause of action against that defendant arising anywhere in the world, regardless of any other relationship that the claim has to the forum state (except for claims in the exclusive jurisdiction of the federal courts which can be brought in a U.S. District Court located in the same state, or in an arbitration forum pursuant to a valid arbitration clause that binds the parties, an issue beyond the scope of this question and answer). Until recently general jurisdiction over a defendant (i.e. jurisdiction over any lawsuit against a defendant without regard to the particular facts of the case) was present in any state where a company has a permanent office for the conduct of business, under half a century of precedent on the issue that traced back to a U.S. Supreme Court case known as International Shoe v. State of Washington, 326 U.S. 310 (1945). In the case of large corporations doing business nationwide, this usually meant that a plaintiff had a large number of states to choose from in which a defendant could be sued on any matter whatsoever which also facilitated the filing of class action lawsuits with plaintiffs from all over the world covered by a single lawsuit. But, in the U.S. Supreme Court case of Daimler AG v. Bauman, 571 U. S. ___ (January 14, 2014), general jurisdiction was limited to the state where the headquarters of the business is located, or another state the defendant is otherwise equally "at home." (For example, the state where Amazon.com chooses to locate its proposed "HQ2" in the case of a lawsuit against Amazon.) If so, the foreign plaintiff member of the class can probably join the lawsuit, since general jurisdiction is present. When The Forum State Does Not Have General Jurisdiction Over All Defendants But, if the forum of the class action lawsuit is not one of the typically one or two states where the defendant is "at home", then a U.S. Supreme Court ruling from June of 2017 that significantly changes the law of "specific jurisdiction" probably bars the joinder of the foreign plaintiff as a member of the class. This case holds that specific jurisdiction over a defendant arising solely from the fact that it sold a defective product in a particular state or country which it caused an injury to be limited to plaintiffs who actually purchased the product or suffered an injury in that state. So, if there is more than one defendant, the forum state must have general jurisdiction over all of the defendants, or must have specific jurisdiction over all defendants over whom it does not have general jurisdiction for a reason that applies to all members of the class bringing the lawsuit. For example, if the defective product was an airplane that crashed in California as a result of a defective product, everyone hurt in the crash could sue in a single action in California because that is where the injury occurred to all of them, even if the people on the plane who were injured or died came from different states and countries. Similarly, if the product was defective as a result of design work conducted by multiple large corporate defendants with different home states outside Colorado that took place entirely at a design collaboration workshop at the University of Colorado at Boulder, a class action including all persons injured globally by the defective products could be brought in Colorado, even if the injuries were dispersed all over the world at places where the defective products were delivered. The case adopting this radical change in the law of specific personal jurisdiction is Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. (U.S. June 19, 2017) in which the court finds that "specific personal jurisdiction" (as opposed to "general jurisdiction") is lacking with regard to the claims of members of the class of plaintiffs who are not California residents in this case brought in a California state trial court (in an 8-1 decision with Justice Sotomayor dissenting). According to the official syllabus of that case: A group of plaintiffs, most of whom are not California residents, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in business activities in California and sells Plavix there, BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in the State. And the nonresident plaintiffs did not allege that they obtained Plavix from a California source, that they were injured by Plavix in California, or that they were treated for their injuries in California. The California Superior Court denied BMS’s motion to quash service of summons on the nonresidents’ claims for lack of personal jurisdiction, concluding that BMS’s extensive activities in the State gave the California courts general jurisdiction. Following this Court’s decision in Daimler AG v. Bauman, 571 U. S. ___, the State Court of Appeal found that the California courts lacked general jurisdiction. But the Court of Appeal went on to find that the California courts had specific jurisdiction over the claims brought by the nonresident plaintiffs. Affirming, the State Supreme Court applied a “sliding scale approach” to specific jurisdiction, concluding that BMS’s “wide ranging” contacts with the State were enough to support a finding of specific jurisdiction over the claims brought by the nonresident plaintiffs. That attenuated connection was met, the court held, in part because the nonresidents’ claims were similar in many ways to the California residents’ claims and because BMS engaged in other activities in the State. The high court finds that the absence of an in-state injury or injury to a resident plaintiff is controlling. It is not sufficient in the high court's analysis that the corporation is already subject to suit in California as a result of its conduct in California to most of the people in the suit. Instead of analyzing whether California has jurisdiction over the product liability situation, in general, the high court decides that the determination regarding whether California has jurisdiction over a suit against a particular defendant must be made on a plaintiff by plaintiff basis when "specific jurisdiction" rather than "general jurisdiction" is involved. Sotomayor's dissent in this case emphasizes implications of this ruling in the kind of situation posed by this question at Law.SE: Three years ago, the Court imposed substantial curbs on the exercise of general jurisdiction in its decision in Daimler AG v. Bauman, 571 U. S. ___ (2014). Today, the Court takes its first step toward a similar contraction of specific jurisdiction by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State. I fear the consequences of the Court’s decision today will be substantial. The majority’s rule will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone. It will make it impossible to bring a nationwide mass action in state court against defendants who are “at home” in different States. And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary. A core concern in this Court’s personal jurisdiction cases is fairness. And there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike. . . . It “does not offend ‘traditional notions of fair play and substantial justice,’” International Shoe, 326 U. S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured. But that is exactly what the Court holds today is barred by the Due Process Clause. This is not a rule the Constitution has required before. I respectfully dissent. The most serious issues arise in one of the situations that Justice Sotomayor addresses which the majority does not adequately consider in the rebuttal in its own opinion, which is the situation where there are multiple possible defendants with different home states, whose relative liability is unknown or independent or mutually dependent. For example, suppose that the product has two kinds of defectively manufactured components manufactured by companies with two different home states in the U.S. (e.g. an electronic device charging bay and a battery) that are assembled by the customer after they are delivered independently, which, when acting together, cause the assembled product to be dangerous and cause injury even though the design itself is not defective. Under Bristol-Myers, there is no U.S. forum with jurisdiction over all injuries caused by these compound manufacturing defects that can allocate responsibility between the responsible manufacturers on a consistent basis. Why Didn't It Matter That The Drugs Were Distributed By A California Distributor? The high court is also unimpressed with the fact that the drug giving rise to the product liability was distributed by a California company, presumably because the cause of action in question in the case was brought against the manufacturer as a strict liability defective product claim, rather than as a claim against a seller of the product arising from a warranty that the product was free of defects arising under the Uniform Commercial Code or an express warranty. This makes sense if the California distributor was a wholesale company not in direct privity with the retail buyers of the products from retail pharmacies who were injured by the products. The wholesaler could be sued under the Uniform Commercial Code on its warranty to the buyers of the drugs, only by the intermediate wholesalers or retail pharmacies that bought the drugs. The wholesaler could also be sued on its warranty only if those direct buyers themselves suffered injuries as a result of the defective product. For example, a retailer might have injuries in the nature of breach of warranty liability in suits brought against retail sellers by injured consumers under the Uniform Commercial Code that the retail sellers would be seeking indemnification of from the California based wholesale distributor. But, Bristol-Meyers does mean that it is basically impossible for injured consumers who were not injured in the forum state to sue both the manufacturer of the defective drugs (where jurisdiction would be present in New York and New Jersey) on a tort theory, and the distributor of the defective drugs (where jurisdiction would be present in California) in the same action. So, it is effectively impossible in this case for all people injured by the defective drugs to sue all of the potential Bristol-Meyers case defendants in a single lawsuit. Statutory Considerations Existing statutory limits on federal court jurisdiction limit the jurisdiction of the U.S. District Courts in most cases of cases to cases in which a state court in the state where the U.S. District Court is located would have either general jurisdiction or specific jurisdiction of the defendant (without regard to the fact that the case might be within the exclusive jurisdiction of the federal courts as a matter of subject matter jurisdiction which pertains to the nature of the cause of action asserted rather than the ties of the defendant to the forum state). But, the decision leaves Congress with the option of potentially changing that statute which currently limits the personal jurisdiction of federal trial courts to that of a state court of general jurisdiction in the same state, as it already does in cases that are predominantly "in rem" (e.g. interpleader cases and interstate boundary and real property title disputes), in bankruptcy cases, and with respect to the subpoena power of U.S. District Courts. The official syllabus also notes that: The Court’s decision will not result in the parade of horribles that respondents conjure up. It does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. Alternatively, the nonresident plaintiffs could probably sue together in their respective home States. In addition, since this decision concerns the due process limits on the exercise of specific jurisdiction by a State, the question remains open whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court. Constitutionally, Congress still has the authority to vest all U.S. District Courts with jurisdiction over any case in which the United States treated as a single state for purposes of general jurisdiction and specific jurisdiction analysis. This would leave the question of which particular U.S. District Court was the proper one to file in as a question of venue (which does not have a constitutional dimension) rather than a question of jurisdiction (which is subject to constitutional considerations), and many legal scholars have urged Congress to do just that. But, so far, Congress has not altered a status quo that does not give U.S. District Courts the maximal jurisdiction allowed under the United States Constitution. But, so far, Congress has instead taken an intermediate position on the geographic scope of federal court jurisdiction in the jurisdictional portion of the Class Action Fairness Act of 2005 (which also limits the extent to which "coupon settlements" of class action cases are permitted). In particular (per the link in this paragraph): The Act permits federal courts to preside over certain class actions in diversity jurisdiction where the aggregate amount in controversy exceeds $5 million; where the class comprises at least 100 plaintiffs; and where there is at least "minimal diversity" between the parties (i.e., at least one plaintiff class member is diverse from at least one defendant). The court, however, may decline jurisdiction under certain circumstances, and is required to decline jurisdiction in certain others. But, while the Class Action Fairness Act of 2005 allows many class action lawsuits which would otherwise be brought on exclusively state law claims in state court to be brought in federal court, or removed from state court to federal court, it does not authorize class action lawsuits that could not be brought in a state court which a U.S. District Court is located due to lack of either general jurisdiction or specific jurisdiction from being brought in that federal court either. The Class Action Fairness Act of 2005 was favored by businesses likely to be defendants in future class action lawsuits (such as manufacturers), because state civil procedure law in some U.S. states such as California, is more favorable to class action plaintiffs than federal civil procedure laws related to class actions. |
How can a defendant in a criminal prosecution move a court in a way that no oral statements of the defendant be considered in its adjudication? 1.a Can you "plead the Fifth" (“Silence”) at the end of the sole written brief of a motion and stipulate that no waiver, express or implied, to Silence can be deemed valid or legal unless made by the movant in writing and duly signed so as to prevent any oral hearing of the defendant to be misconstructed, and to compel the court to deny, approve or otherwise adjudicate the motion on the merits of its written brief without being able to consider any communication (or the lack thereof) other than the movant’s written brief? 1.b Is there any standard language for such an averment or declaration? Any examples? Alternatively, can the movant move the court in the brief that no motion hearing be held? To only receive a written response by the court? UPDATE As an example relating to the matter from the Wikipedia: "Customs vary widely as to whether oral argument is optional or mandatory once briefing in writing is complete." Primarily interested in the context of California criminal law, but other jurisdictions are welcome! | 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. | Anywhere in the world, do parties to court hearings have no absolute right to access those transcripts (or recordings)? I have not checked every common law jurisdiction but I suspect that as all (?) such courts have their own inherent powers to make directions the answer is probably: NO. That said, a close-but-no-cigar example may be found at Rule 79.30 of the Civil Procedure Rules concerning terrorist financing proceedings in england-and-wales: Unless the court directs otherwise, rule 5.4 (Register of Claims), rule 5.4B (Supply of documents from court records – a party) and rule 5.4C (Supply of documents from court records –a non-party) do not apply to any proceedings to which Section 2 or 3 of this Part applies or to any document relating to such proceedings. "Sections 2 and 3 of this Part" refers to applications to set aside financial restrictions and appeals against being designated as being linked to terrorism. The relevant cited Rules are: 5.4 (1) A court or court office may keep a publicly accessible register of claims which have been issued out of that court or court office. (2) Any person who pays the prescribed fee may, during office hours, search any available register of claims. And 5.4B (1) A party to proceedings may, unless the court orders otherwise, obtain from the records of the court a copy of any document listed in paragraph 4.2A of Practice Direction 5A. (2) A party to proceedings may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party or communication between the court and a party or another person. | Voluntary Dismissal of a case in Maryland follows the Maryland Revise Civil Procedure District Court Rule 3-506 - Voluntary Dismissal: (a) By Notice of Dismissal or Stipulation. Except as otherwise provided in these rules or by statute, a party who has filed a complaint, counterclaim, cross-claim, or third party claim may dismiss all or part of the claim without leave of court by filing (1) a notice of dismissal at any time before the adverse party files a notice of intention to defend, or if the notice of dismissal specifies that it is with prejudice, at any time before judgment, or (2) a stipulation of dismissal signed by all parties to the claim being dismissed. (b) Dismissal Upon Stipulated Terms. If an action is settled upon written stipulated terms and dismissed, the action may be reopened at any time upon request of any party to the settlement to enforce the stipulated terms through the entry of judgment or other appropriate relief. (c) By Order of Court. Except as provided in section (a) of this Rule, a party who has filed a complaint, counterclaim, cross-claim, or third party claim may dismiss the claim only by order of court and upon such terms and conditions as the court deems proper. (d) Effect on Claim. Unless otherwise specified in the notice of dismissal, stipulation, or order of court, a dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed in any court of any state or in any court of the United States an action based on or including the same claim. (e) Effect on Counterclaim. If a counterclaim has been pleaded before the filing of a notice of dismissal or motion for voluntary dismissal, the dismissal of the action shall not affect the continued pendency of the counterclaim. (f) Costs. Unless otherwise provided by stipulation or order of court, the dismissing party is responsible for all costs of the action or the part dismissed. There is a form that explicitly refers to the 3-506 rule | Misstating the truth is not perjury Perjury is deliberately lying under oath to gain a material advantage. For the situation you describe: You might be wrong and they actually do live where they say they do they might be wring and they genuinely think they live where they say they do, being wrong is not perjury it’s unlikely to administrate info in the form actually carries the penalty of perjury, it probably isn’t testimony unless it will positively and substantially affect the outcome of the case in their favour, it isn’t material You lack standing to interfere in the case in any event If this were brought to the attention of the court the most likely outcome would that it would just be corrected. | It depends on what the jury said, and if it's criminal or civil. In criminal cases, the judge may almost never set aside a verdict of acquittal. There is a single case in the US in which this happened, and it was a bench trial (no jury). That case featured the defendant bribing his trial judge; the Seventh Circuit held that he was never in jeopardy due to the bribe. As far as I can tell, that's the only one. There have been no cases that I can find of a jury's verdict of acquittal being overturnable. Judges can poll the jury to make sure they're unanimous (at least in federal court), and if they aren't then it's a mistrial, but that's because the jury was never in agreement in the first place. On the other hand, a judge has several ways to enforce an acquittal. In federal court, for instance, the defense can move for a motion of acquittal either before or after the case goes to the jury. If the motion is granted before the verdict, double jeopardy applies to retrial. If it's granted after a conviction, then the judicial acquittal can be reversed on appeal, possibly requiring a new trial. Before the verdict is returned, the judge can declare a mistrial. After the verdict is returned, it's too late for that. In civil cases, things are more complicated: double jeopardy does not exist there. There, there is a notion of a judgment as a matter of law: the judge determines that, based on evidence presented, no reasonable jury could possibly find the other way. This can happen before or after the verdict, and is appealable. | 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. | Information about a defendant’s character or past misdeeds are not generally admissible during a court proceeding. It can be brought in to rebut testimony. If the defendant takes the stand and asserts that they never discriminated against anyone due to their nation of origin, then evidence they they have done so becomes relevant. | In a landmark document-production case, Fisher v. United States, 425 U.S. 391, it was held that The Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence, but applies only when the accused is compelled to make a testimonial communication that is incriminating ... A subpoena served on a taxpayer requiring him to produce an accountant's workpapers in his possession without doubt involves substantial compulsion. But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers, on their face, might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications...The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else. By way of background (and as cited by the Fisher court), Schmerber v. California, 384 U.S. 757 where the accused was intoxicated and blood was drawn involuntarily, the court held that The privilege against self-incrimination is not available to an accused in a case such as this, where there is not even a shadow of compulsion to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. In other words, the self-incrimination clause is about actual testimony, and not other physical acts (such as fingerprints, DNA, records) which are used as evidence of guilt. |
Can you require a contract writer to make another official document that vulgarize the content of the contract in the United States? Can you require a contract writer to make another official document that vulgarize the content of the contract in the United States? Or is it your responsibility to hire a lawyer and verify the content of the contract? I heard there's a law called fraudulent misrepresentation. But that law doesn't say that a party needs to represent the content of a contract, it only states he can't misrepresent it though. Under contract law, a plaintiff can recover compensatory damages against a defendant when a court finds that the defendant has committed fraudulent misrepresentation. Courts will typically find that a defendant has committed fraudulent misrepresentation when six factors have been met: a representation was made the representation was false that when made, the defendant knew that the representation was false or that the defendant made the statement recklessly without knowledge of its truth that the fraudulent misrepresentation was made with the intention that the plaintiff rely on it that the plaintiff did rely on the fraudulent misrepresentation that the plaintiff suffered harm as a result of the fraudulent misrepresentation https://www.law.cornell.edu/wex/fraudulent_misrepresentation | Nah, you can't. First of all, you can't require the other party anything until you have a contract. They owe nothing to you. Once you've got an offer from them (i.e. a written contract they offer you to sign), you can ask them to clarify the terms as much as you wish — until they get bored and withdraw the offer. You also can make counteroffers: draft your own contract instead and offer them to sign. (Note that by doing this you kill their initial offer i.e. you can't accept it anymore unless they offer it again). Misrepresentation (let alone fraudulent) is not relevant until proven. Lack of clarity or complex legalese language is no misrepresentation. | 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. | You have a contract - they have fulfilled their obligation (they paid you), if you do not fulfil their obligation (not to post it online) then you are in breach of the contract. Your obligation continues even if you gift the money back to them. If you breach the contract then they can sue you for the damage that they suffer. Presumably this would be damage to their reputation and for a public figure this could run into millions of dollars. In demanding additional money from them beyond what you are legally entitled to you are, at least, flirting with the crime of extortion/blackmail. This would not be a matter for them to sue you for, it would be a matter for the DA to prosecute if they chose to make a complaint. There doesn't seem to be a defamation issue here because you are not stating anything that isn't true. Now, the extent of the agreement appears to prohibit you posting it on the internet, however, the spirit of the agreement is that you will keep the information secret in all respects - that is likely how a court would look at it. Of course, if someone does steal the information from you then you haven't broken the agreement but you would probably have to prove that it was stolen when they sue you. | Yes, that would be fraud. From the Fraud Act 2006: 2: Fraud by false representation 1) A person is in breach of this section if he— (a) dishonestly makes a false representation, and (b) intends, by making the representation— (i) to make a gain for himself [...] By saying that you had got a position with a competitor you would be dishonestly (i.e. you knew it was a lie) making a false representation. Your purpose was to obtain gardening leave, which is a gain for yourself. | You don’t need to hire an attorney If you like, you can represent yourself. Just like you can build your own house, repair your own car or amputate your own limb. You only need to be a lawyer if you are representing someone else. However, there is a saying that goes: A person representing themselves has a fool for a client. Your lawyer is a professional, you aren’t. They know what to do when the other side says “Objection, facts not in evidence” or how to correctly fill out, file and serve a pleading; do you? | Does the HOA's lawyer have a duty or is it standard practice to label documents (including) as privileged if it contains privileged information? While it is sometimes labeled, this is done by attorneys when it is done, mostly to prevent stupid clients from sharing the information and waiving the privilege. Usually, however, documents are not marked as privileged in advance and when documents are requested from a third-party this analysis is usually done by junior attorneys and paralegals working as a team for the first time. Formal designation is not required because the definition of what is protected is defined by statute and common law rules on a uniform basis. The duty to share information with HOA members does not generally extend to privileged information. If a document that would otherwise be required to be disclosed (like attorney invoices) contains privileged information, the usual course of action is to redact the invoice so that it contains only non-privileged information (e.g. a bottom line amount owed and the date of the invoice and the matter). In an HOA context, the privilege of the HOA as a client belongs functionally to the board and its officers, not to all of the members of the HOA. Does the Association's contractor who maintains the records have a duty to act as a gatekeeper to said invoices if they are not labeled? This depends upon the contract between the Association and the contractor. A well written contract would include this duty, and spell out the mechanics of how it is implemented, but not all contracts live up to best practices. A related issue is whether a release of privileged information by an independent contractor constitutes a waiver of the privilege by the client if the contractor is not in an agent-principal relationship with the Association, which is often a determination made only after the fact by a court. Some jurisdictions' rules of civil procedure provide a waiting period between the issuance of a third-party subpoena for documents and the earliest time that those documents can be delivered to a third-party, to allow objections on grounds of privilege or another basis to be raised prior to the disclosure of the documents. Colorado Rule of Civil Procedure 45, for example, has such a provision. I don't know what the rule is in Florida on that issue. | Is it worth it to contact a lawyer? No. The amount at issue indicates that the matter would have to be litigated in Small Claims court, where typically parties are not allowed to be represented by a lawyer. Furthermore, litigating in Small Claims court will give you some exposure to judicial proceedings. Being able to advance your legal arguments in court is useful, and this seems to be a great occasion to gain experience of that sort. The rental company's uncooperative behavior is unreasonable and can forfeit its entitlement to at least a sizeable portion of its actual expense. In many jurisdictions, the legislation provides treble damages in claims of fraud. Although claims of fraud and breach of contract oftentimes overlap, your entitlement to treble damages is not something to rule out. At the outset, the company's initial promise to give you the final statement most likely supports a finding of reasonable reliance, one of the prima facie elements of fraud. It is unclear whether the rental company made the aforementioned promise in writing. For evidentiary purposes, make sure that all your subsequent interactions with the rental company are in writing. That will make it harder for the company to disavow its verbal representations. | Yes. This type of contract is called a license. Lawyers write them. |
How can I tell a judge that I want to live in the opposite house of the parent who has custody? My parents divorced when I was 5 years old. I am now 16 years old and every time I turn a year older I get told I have to be one year older than I currently am before I can tell the judge which parent I want to live with. Thank you @bdb484 for the following question "Who is telling you this?" Just incase if anyone else is wondering that same question, it's both my mom and dad. And dad has custody but wants me to live with my mother and I don't want to live with her. | Iowa law that is relevant to custody is here. At no point is a child prohibited from expressing his wishes to a judge. §598.41 prescribes how the court determine custody. Para 3(f) specifically includes Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity. This would have been the case at the initial custody hearing, and any petition to modify custody. There is no rule setting a lowest age for considering a child's wishes, but there may be a tendency to consider "teenager" as potentially old enough. A custody arrangement can be modified, but the petitioning parent has to show that there has been a “substantial and material change in circumstances” since the initial decree. But let's assume that the parents have joint custody, then none of that applies and you live where your parents agree you should live. You don;t have legal standing to petition for a change of custody, but you might (if there is a good enough reason) succeed on a petition for emancipation when you are 16. | As a preface, while the best course of action isn't always clear and the reality of implementing some solution is often rocky, the bipolar diagnosis situation you describe is probably the single most common situation in which legal arrangements must be made for an adult child, and is almost as common as the need for children to make legal arrangements for the care of their declining parents. You aren't the only one going through situations like these. Probably 0.5%-2% of people in any given area experience bipolar, usually starting in adolescence or young adulthood, and difficulties managing it of the kind that you describe are the rule and not the exception. Also, just ignoring the problems you describe is a very bad idea. Premature death either from suicide or bad judgment related to the bipolar diagnosis is all too common in these situations. It is serious business, not something that should be thought of as bad character, or futile to do anything about, or blameworthy. It just is, and if someone doesn't do something when the plan gets off course, serious consequences often follow. There are really several intertwined issues present here. Realistically, given the nature of the concerns expressed, a limited guardianship may be necessary to accomplish the goals expressed. What Are Medical Powers Of Attorney? A healthcare or medical power of attorney gives the person who holds it (who is called an "agent" or "proxy") the authority to make medical decisions for someone called the principal (i.e. John Smith) when the principal lacks the capacity to give informed consent at that very moment to do so. This is because a power of attorney is an inherently revocable document expressing the wishes of the person writing it. You generally can't bind yourself in the future without court approval or a contractual relationship with a third party which a power of attorney is not. It isn't uncommon for medical personnel to decide on the spot when to and not to listen to someone with a medical power of attorney based upon how mentally competent the patient seems at the time on a decision-by-decision basis. For example, they might defer to the medical power of attorney agent when the patient is unconscious or heavily drugged, and listen to the patient when the patient is conscious, not drugged, and not acting erratically. Parents, incidentally, do not automatically have this authority, nor do spouses. A medical POA is a document that allows the agent to say "yes" when the patient (i.e. John Smith) cannot. Another name for a document that is very similar and sometimes used is a "health care proxy." It would typically cost a few hundred dollars to $1,000 to have a medical power of attorney drawn up after discussing the situation and the principal's needs in a meeting with a lawyer and might take an initial meeting and then a second one at which the document is signed after it is prepared following the initial meeting. Other lawyers might manage this in a single meeting and draft it while you wait. If all you need is a power of attorney, don't be penny wise and pound foolish by doing it yourself, unless the form is provided to you by the health care provider you will spend most of your time dealing with and they prefer their own form. Otherwise, the likelihood that you will have to pay more to a lawyer later cleaning up your own mistakes probably exceeds any money that you will save. Other Kinds Of Authorizations Many medical providers will allow someone to act on behalf of a patient in matters other than matters that call for the kind of medical decision that would normally require the informed consent of the patient, even when the patient is not manifestly incapable of making medical decisions at that very moment. This could simply be a note in the file that the patient has given that person authority to do so, it could be a written authorization to access HIPAA protected personal health information of the patient, and it could be a variety of other things (e.g., authority to make financial arrangements). Some of this is often incorporated in the same document as a medical POA. Picking Up Controlled Substances A Medical POA may, or may not, necessarily be sufficient to authorize someone to pick up a controlled substance on behalf of a patient if the patient is physically able to do so, without the presence of the patient. I don't know what the true rule of law under the controlled substances acts and pharmacy regulation is, but I do know that practice in real life varies quite a bit. The best practical solution to the issue of picking up controlled substances would be to ask the usual pharmacist what they require and to comply. (A legal guardian would generally have the power to pick up controlled substances for a ward.) Guardianships and Limited Guardianships What Is a Guardianship? A guardian of the person is someone appointed by a court who has the authority to make medical decisions and other personal life decisions for their ward (i.e. John Smith), even contrary to their apparent stated wishes. A guardian has the authority to say "yes" and also to say "no" to the expressed wishes of the ward, overruling the ward. A guardianship of an adult can be general, or can be limited on a customized basis. A guardian must be appointed by a court with jurisdiction over these cases, usually in the county where the ward resides. But, a guardianship can be requested by the ward as opposed to contested. Realistically, a court would be unlikely to grant a full guardianship or a contested guardianship in these circumstances, but might grant a limited guardianship with the consent of the ward in these circumstances. The parents and possibly any siblings, would have a right to notice of the proceedings and to object or to seek to be appointed instead. What Process Is Involved In Having a Guardian Appointed? This would realistically be a proceeding that should ideally involve a specialist lawyer (with experience in mental health or elder law and guardianships) and at least one medical professional's statement (probably a treating psychiatrist or psychologist). There would also probably be a court investigator or guardian ad litem appointed at the ward's expense, to confirm that the facts represented in the petition to have a guardian appointed really reflect the ward's intent. Usually, a proposed guardian selected by the adult ward during a lucid interval would have priority for appointment. The medical professional and lawyer should be able to provide good suggestions regarding what the scope of the limited guardianship needs to be, although don't ignore or fail to give full credit to your own layperson's practical understanding of the situation either. The guardian would have to provide information to the court in connection with the petition showing eligibility to serve (e.g. criminal record check, credit check, CV, nomination by ward). Often the guardian would have to demonstrate good intentions towards the ward in some way, especially if the guardian is a third party and not someone who serves as a guardian as a livelihood. Some courts would require the guardian to have insurance for liability in connection with the task or a surety bond up to some dollar amount. The final decision would usually be made in an in-person hearing at which the ward, the proposed guardian, the proposed guardian's lawyer, the medical professional, the guardian ad litem or investigator, the judge, a court clerk, a court reporter, and any family members who chose to appear (with their lawyers, if any), were present. If the guardianship was granted, perhaps with modifications requested by the judge to the terms of the guardianship, then the Court would issue what are called "Letters" that formally appoint the guardian to the post. Once appointed, the guardian would have to file periodic status reports with the court and would also be subject to the court's jurisdiction in the event of any future dispute regarding the guardianship, or any allegations of misconduct by the guardian, or any circumstance that requires court approval such as a change in the terms of the guardianship or in the person serving as guardian. The procedural details I am describing are approximate and aren't necessarily up-to-the minute correct, and might vary somewhat even from court to court within California under local rules and customs of practice; but they give you a gist of what the process would be like if it is working properly and with best practices. Typically, this might cost $3,000 to $10,000 all in for an uncontested proceeding, and many times that much in the event of a contested attempt to have a guardian appointed. Health Insurance Eligibility I'll defer to someone else's answer regarding health insurance eligibility, as I don't have time to look into that at the moment. My instinct is that this wouldn't be a problem in any case except a guardianship and probably wouldn't be a problem even in a case with a third party guardian, but I can't confirm that without doing research. | If you have something to say, you should have said it before now When a judge is about to hand down a decision the case is all but over. Just like figure skating at the Olympics, the points are scored even if nobody but the judges know what they are yet. The onus is on the parties to bring forward all the evidence and make all the submissions on the law that they want the judge to consider before and during the hearing. If they didn't then that's their fault and they can't introduce new stuff now. Now, it's not uncommon for a judge to share their thoughts during the hearing or in writing when considering written submissions. This is because their thinking on the law is at variance with what the parties are contending. The plaintiff says the law is X, the defendant says the law is Y, the judge thinks they're both idiots and the law is clearly Z. They will usually call for submissions on this because the judge's role is to decide the dispute between the parties on the evidence the contend -not to impose the judge's interpretation on them; by doing this the parties may relies the judge is right and a lot of the dispute disappears or they may convince the judge that they are wrong (it's not unknown) and move on from a clear agreed position. | in washington state can a divorce case last 32 months Yes. There is no limit to the possible duration of a divorce case, especially where at least one represented party has any money. This report showcases various instances of divorce proceedings that have lasted longer than the marriage itself because lawyers dragged the case for as long as they want. Being in Washington or New Jersey makes no difference. Your description, including the mention that your "helper" from the divorce packet babysat your kid, suggests that you have been scammed. If you want to get divorced, it is in your best interest to learn about divorce & procedural laws of your state and then take the helm of your proceedings. You did not specify the conditions of the divorce packet you purchased. It is therefore unclear whether the packet provider has any duty toward you in the direction of an attorney-client relation. That being said, your husband as the adversary in the proceedings has no obligation to inform you about proceedings if he already notified the person representing you in court. | 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? | 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. | Unless you received an order from the court prohibiting contact, it might be legal; but it's probably not the best idea. Let the lawyers handle it Attorneys have far better, more effective means of dealing with this situation than the course of action you describe. Lawyers have productive tools to accomplish the job and they know how to use them. For example, assume the best-case-scenario results from your idea and you get the other side to admit their affidavit is fallacious in some way. "Aha!" you shout. "Success! Daylight!" But then what? It's not on record. You can't testify to the admission because that's hearsay. Now imagine they next share this information about your little conversation with the counterparty that had them sign the affidavit in the first place. After first being alerted of your concerns, they both now act in concert to shore up their stories and you never see that "daylight" again. Contrast that outcome with one where your guy or gal's attorney deposes the witness under oath, gets them to concede to your version of the facts then introduces the deposition as favorable evidence at trial. That's a much better outcome for "your side." Wouldn't you agree? Be wary of unintended consequences Generally speaking, such direct contact between the parties is often problematic and rarely helpful. (Except, in some cases, when direct contact between the parties leads to a negotiated settlement. Which happens far less often than the direct contact going sideways making the situation even more intractable.) Before you launch off on your own and do something that might be counterproductive. First, identify the areas of the affidavit that you think are inaccurate. Give that information to the party you support, then have them run it by their attorney to figure out the best way to handle the situation. | In general, no, if you make a will then you can revoke that will while ever you are still legally competent. Also, in general, this is a good thing. For your first example, you are ruling out all possibility of redemption - people change: a person who is a selfish a*$%^#@e in their 20s may be a kind, caring, dutiful and loving person in their 40s. For your second example, what if XXX gets demolished? Or you move cities? If you are truly serious, you can transfer all your assets to a trust, put your instructions in the trust deed and then nominate someone you really, really, really trust to be the trustee. This would prevent you modifying the instructions but you are then relying on the trustee interpreting them. |
If signing a contract with a contractee outside of the U.S., should you tell the contractee to write it using the standards of the U.S.? If signing a contract with a contractee outside of the U.S., should you tell the contractee to write it using the standards of the U.S.? I am wondering if all contracts, especially business contracts, have the same formats and standard wording or they have different standards and formats and you need to hire a lawyer from the country where the third party resides because the formats and standards can only be understood in the context of their own laws, which is different from that of the U.S.. | should you tell the third party to sign it using the standards of the U.S.? In most cases signing a contract is not subject to country-specific standards. All that matters is that it can be ascertained from the contract who the parties are as well as and their willful, informed formation of that contract. It is more typical for a contract to specify that it is governed by the laws of country X and/or jurisdiction Y. That places on the counterparty(-ies) the burden of ensuring that they know the legal framework that underlies the contract at issue. Lastly, note that a party entering a contract is "by definition" not a third party. At most, a third party might sign a contract in a witness capacity, not than in the capacity that implicates rights and duties pursuant to that contract. | None The contractual chain is you <-> warranty company <-> (potentially others you don’t know about) <-> service provider. Should something go wrong, you would sue your warranty company who might (it is up to them) then sue the service provider. Notwithstanding, it’s likely the service company owes you a duty of care and would be directly liable to you for a negligence claim. | The following answer is based on general common law jurisdictions; many jurisdictions have statutes that will change some of these. In particular, consumer contracts, real estate contracts and employment contracts are typically heavily regulated and may have additional requirements. What is a contract? A simple definition of a contract [Guest, AG (ed), Chitty on Contracts, Sweet and Maxwell, 27th ed, 1994, p 1] is: A contract is a promise or set of promises that the law will enforce. Such promises must be between different people; you can't contract with yourself. Note, however, that you and a company you own are different people; so you can form a contract with your company. So at least two people must be parties to a contract but there can be more, in fact, as many as you like. So long as the requirements are met by each of the parties they will be legally bound by their promises. Contracts are ubiquitous Most of us engage in contracting many, many times a day. Almost every transaction where something of value passes from one person to another in return for something of value going the other way is part of a contract. Buy a coffee. Use some electricity. Get a haircut. Sell something on Ebay. What elements are required for validity? To form a contract, all parties must have: Intention to create legal relations Agreement Consideration Legal Capacity Genuine Consent Legality of Objects Intention to create legal relations The mere fact of mutual promises does not create a contract. The law requires some evidence (express or implied) by the parties that they intend to make their promises legally binding. Two presumptions, both of which may be overcome by the evidence, have developed to help determine this: an agreement in commerce or business is presumed to be a contract, an agreement of a family, domestic, social or voluntary nature is presumed not to be contract. In addition, a transaction with a public authority carrying out a statutory function is not normally contractual, even if a fee is paid. In contrast, government commercial activities such as buying or selling goods or services (that are not statutory obligations) are contractual. Agreement The parties, having decided they wish to be legally bound, have to agree on what they will be bound to. The most common way this is determined is by the concept of offer and acceptance, however, a global approach can be taken by looking at the acts and conduct of the parties to determine if they have reached an agreement. Offer An offer is a definite undertaking with the intention that it shall become legally binding when the person to whom it is made accepts it. In working out if a communication is an offer or not, the following are considered: An invitation to treat is not an offer. An invitation to treat can include putting goods on display in a shop (but putting them on display in a vending machine is an offer), publishing a catalogue or price list, advertising an auction or putting a "For Sale" sign on your house or car. An offer can be made to a specific person or persons, a class of persons or the whole world. The offer can only be accepted by someone to whom it was made. For example, if I offer to sell my car for $5,000 to Jim then only Jim can accept it, if Tony "accepts" it there is no contract. An offer must be communicated to the person(s) for whom it is intended. Duh. An offer can be revoked before it is accepted. Acceptance Once an offer is made there are rules used to determine when (and if) it has been accepted: Acceptance must be in reliance of the offer; that is, the person "accepting" the offer must know that it exists. For example, if B find's A's lost wallet and returns it out of kindness, not knowing that A has offered a reward, B cannot claim the reward when he learns of it. Acceptance must be complete and unqualified. If there is anything further to be negotiated then a contract has not been formed. Conditional assent is not acceptance. An agreement to buy "subject to bank finance" for example is not a contract. Acceptance must be clear and certain. The exact terms of the contract must be agreed with sufficient certainty, if the terms are indefinite there can be no contract. Note, however, that common usage or past dealings can provide sufficient certainty. Acceptance may be express or implied. That is, you can accept an offer by word or action. Acceptance may be retrospective. Where parties have acted on the basis that a contract will be formed in the future then if and when that contract comes into existence, those acts form part of it. A counter-offer is a rejection of an offer. If you make a counter offer then that kills the original offer; you cannot subsequently accept that offer unless it is re-made. Acceptance must be communicated (unless it is communicated by conduct). Again, duh! The offeror may prescribe the manner of acceptance. If the offer says it can only be accepted by post for example, then an email is not an acceptance. Example 1 B walks into A's convenience store. A has on display a chocolate bar with a price tag of $1; this is an offer to treat. B can now make an offer on said chocolate bar by: Saying, "I will give you $1 for this chocolate bar", Saying, "I will give you 50 cents for this chocolate bar", Saying, "I will give you $2 for this chocolate bar; but you must accept my offer in writing", Saying, "I will massage your left foot for 1 minute for this chocolate bar", Saying, "please give me this chocolate bar for free" (Note: this is not an offer that can lead to acceptance due to absence of consideration, see below), Picking it up and putting it on the counter (this is implicitly saying what No 1. said explicitly). Needless to say this is the most common method. Now that B has made the offer (by whatever method) it is open to A to accept it. Ignoring the silly offers and focusing on 1./6., this is typically done by A saying "$1, please" (explicit) or holding out his hand (implicit and slightly rude). At that point (but not before) B is legally committed, the offer has been accepted; he can't put the chocolate bar back, however, A is unlikely to sue for breach if he does. Consideration A contract must be an exchange of promises. If A says to B "I will give you $100" and B says "Thank you" there is an agreement but no contract; quite possibly there is no intention to create legal relations but B has given no consideration to support A's promise. Consideration is the price and a price must be paid for every promise to form a contract. Some examples of consideration are: A promise for a promise: A promises to work for B in return for B's promise to pay A. C promises to fix D's leaking tap in return for D's promise to fix C's car. A promise for an Act: E promises to give F a car if F gets a certain grade at university. G promises to pay H's debts in return for I withdrawing a suit against H. J promises to shop in K's supermarket in return for K supplying a trolley. The following rules apply to consideration: Consideration is required for a contract to exist Consideration can be "executed" (a promise for an act) or "executory" (a promise for a promise) but cannot be "past". If the act or promise has already happened, it cannot be consideration for a contract. For example, if A promises to pay B for work already done, there is no contract. Consideration need not be adequate; that is, the deal does not have to be "fair". Consideration must be sufficient - this is different from adequacy. Insufficient consideration falls under: performance of a duty imposed by law, performance of a duty imposed by an existing contract, acceptance by a creditor of part payment by a third party, composition with creditors, moral obligation (i.e. you can't do it for love), illusionary or uncertain promises. Consideration must move from the promissee but need not move to the promisor. For example, if A promises to pay B if C will fix A's car, B cannot enforce A's promise because B has offered no consideration for A's promise. Alternatively, if B had promised to organise C to fix the car then that would be good consideration. Legal capacity A contract may not be valid if one or both of the parties is legally incapacitated. At least six classes of persons are (or were) subject to degrees of incapacity (I won't go into details): Minors the mentally ill the intoxicated married women (archaic) corporations capital felons. Genuine consent Consent may not have been given due to: Mistake, however, remedies are restricted, narrow and technical, Misrepresentation Undue influence Duress an Unconscionable contract Legality of Objects You can't make a contract where the law says you can't. Is there anything else? A great deal, however, these are the basics. As previously mentioned, the common law may have been changed in your jurisdiction by statute; either to contracts as a whole or to certain types of contract. In addition, statutes may require some contracts to be in writing and/or witnessed; contracts to do with real estate and employment are a favourite for this. Other than this there is no need for a contract to be in writing, be signed, be witnessed or have any other special mumbo-jumbo. Indeed the vast majority of contracts are verbal with implied terms (or terms read in by statute) and are formed and completed without the parties even realising there was a contract. | Is that legal given that the original deal was as a contract-to-hire basis? No, unless the contractor agrees to an amendment/contract that incorporates a non-compete clause. A party is not allowed to unilaterally modify against a counterparty's will an existing, binding contract. What you describe seemingly falls short of being a cognizable amendment to the contract. What would someone do if they were offered employment and then the contracting agency threatened to sue the person? The person might want to educate the intermediary/agency about the invalidity of unilateral amendments that are not agreed upon. The intermediary's awareness of this tenet of contract law --or its awareness that the threatened person is knowledgeable of that principle-- might dissuade the intermediary from litigating its unviable claim. Regardless, given the prospect of litigation, the person needs to make sure that henceforth all his communications with the intermediary are in writing. The person might also want to inquire of the employer whether its contract with the intermediary contains a clause entitling the employer to hire the intermediary's contractors. If it does, the intermediary's threats to the person sound in intermediary's breach of that contract. A claim of tortious interference with relation is unavailable unless the intermediary's misconduct actually disrupts the relation or prospect between the employer and the person, but it is clear that the intermediary's acts are in the direction of frustrating that relation. Even if there is no such clause between the employer and the intermediary, the person might want to update the employer on how the intermediary is trying to disrupt their tacitly agreed contract-to-hire basis. | Bonded labor is illegal in India, but enforcement is lax. Read Right against exploitation in Fundamental rights in India. The right against exploitation, given in Articles 23 and 24, provides for two provisions, namely the abolition of trafficking in human beings and Begar (forced labour)... As per law, they cannot make the contract binding if it relates to bonding of the laborer. But a general contract may stand in court if they have made you sign the contract and paid the duty to government for the contract. This contract will be mild form of Bonds/begar-contracts. As per the requirements of the contract, usually they will ask you to give them your original documents and degree certificate. Do not do that. That will give them control, and it's illegal. From personal experience, such companies are phonies and they want to exploit you. Visa thing is a scare. As per they wont give me Experience letter and Releasing letter; they might do that, and so you will not be able to show experience. You can file a lawsuit against them. (But you know it's a waste of time in Indian courts) As per first three things you mentioned: It is written on my company's letter head. It doesn't contain any stamp paper. It doesn't contain any company seal. It's not a contract. Do not provide them your actual signatures. Make a strange signature so that you can later argue that it's not your signature. But think about the consequences: You are going to that (probably shady) company, do you think they will hold any of their promises later, at all. Think: Will the company stay in business until your bond is over? Then how will you get an Experience certificate? That ends the answer. A few suggestions I'd suggest finding a different job. I'd suggest talking to a lawyer. It's cheaper than your life being screwed up. I'd suggest talking to your family about it. Nothing written here constitutes legal advice. Talk to a lawyer to get a legal opinion on the matter. | None because the principle is Freedom to contract There is a general right of any being (natural like a person or even a company) to contract with anyone. Buying someone's service is a contract. A contract forms when: They offer something You offer something Both sides agree on it. (meeting of the minds) It is totally legal for a company to make wears a mask in our place of business a part of either being admitted onto the property or agreeing to contract with you. Noncompliance means as a result that they don't agree to serve you and don't offer to you. In fact, they explicitly reject to contract with you unless you wear a mask, which is their right unless there is a law that would specifically make that reason illegal. There are laws that reduce the freedom of contract, such as the civil right act (protected classes, such as religion, race, sex and more), the Americans with disabilities act (demanding reasonable accommodation), and labor laws (outlawing labor practices or limiting the amount of work or minimum payment) as well as anti-discrimination laws (establishing further classes). However note, that laws need to be written in such a way that they don't discriminate against the company either! One case where freedom to contract was attacked using an anti-discrimination law was Masterpiece Cakeshop - which was decided on first amendment grounds based on the rights of the owner: the law can't force someone to make a product he would not support the message of. Currently, there might only be some ordinance that bans mask policies in Texas, but it is dubious if that might be even an enforceable order from the Texas governor - Especially since OSHA just made adjustments to standards and mandates on the federal level - which include adjustments to respiratory protection fields. | You signed the contract It does not have to be “shown” to you, it just has to be available. You say it was “on the back side”; providing you had the opportunity to turn the paper over, it was available to you and it doesn’t matter that you didn’t see it or read it - that’s your problem. If they deliberately disguised the fact that the contract had two sides or actively prevented you from looking at the back, there might be a way out. But, as stated, it seems you just didn’t look. | The Facebook forum doesn't prevent a contract from being formed. But, for a contract to be formed there must be an affirmative agreement, not silence (at least in cases that aren't between merchants). If they later decide to work together without reaching an agreement on the details, the draft contact could be considered, but the Facebook forum for its delivery and that fact that it wasn't expressly assented to might reduce its weight as part of the evidence in an attempt to determine what the terms of their oral or implied agreement to work together involved. It would be very unusual for a broker not to get a signed agreement in writing to pay his fees, although an oral or unsigned agreement to pay a broker is not necessarily barred by a statute of frauds. A finder of fact would be quite skeptical of a broker's claim to have an agreement in those circumstances and often the professional regulatory provisions related to brokerages would require that fee agreement must be signed and in writing even if contract law does not require that this be done. |
Is the estate of a deceased person a legal entity? This question is inspired by the discussion in the comments of this answer to another question. In those comments I claimed that the estate of a deceased person is not a legal entity and that it is the personal representatives (executors if testate, administrators if intestate) who hold legal title to the assets of the estate and can sue and be sued in relation to those assets. That assertion was challenged by several people, which leads me to wonder if this is something which varies by jurisdiction. To avoid any confusion, I'm taking "legal entity" to mean an entity which can hold legal title to an asset and be named as a party to a lawsuit in relation to that asset. There was some talk in the discussion about entities being represented in court by a natural person, but I do not consider that the same as being the person named as the party. So e.g. an assertion that "to sue for the assets in an estate, you sue the executor" would suggest that an estate is not a legal entity, while "to sue for the assets in an estate, you sue the estate itself which is then represented in court by the executor" would suggest that it is a legal entity. Is the estate of a deceased person a legal entity? Given the level of disagreement, I'd prefer if possible to see jurisdiction tags and citations of which at least one is an authoritative legal source (ideally primary sources such as legislation or precedents, but secondary sources such as legal textbooks, journal articles, or practice notes aimed at practitioners would suffice). It was pointed out that the IRS refers to an estate as a legal entity but my research indicates that carries a different meaning to the legal one and is relevant only in the context of federal tax filings. If intending to cite the IRS I'd be grateful if this could be backed up with a legal source to show that their use of "legal entity" carries the same meaning as the one defined above. I will self-answer to provide some citations which I believe support my proposition. | Good news: it behaves like a legal entity. An estate is a collection of assets and liabilities that belonged to the deceased. The collection behaves a great deal like an LLC or other legal entity, although states don't call it that. The collection is isolated from anyone else's collection of assets and liabilities. For instance, it's not part of the executor's personal assets, nor liabilities. That's very important because... If the collection is sued e.g. by a creditor, the suit can only make claims against assets in the "collection". That is to say, the executor's own assets are not at risk. That's very important if you're thinking about volunteering to become an executor or manager of a trust. You can do so without fear of personal liability. Asterisk here *, but don't panic, it's a harmless asterisk. The collection can buy and sell goods and services (more the latter generally). A typical service purchased by an estate is storage unit rental. The collection can hire, fire and generally do business. Consider an estate which owns an apartment building. Life goes on: rent must be collected, utilities paid, leaky toilets fixed, contractors and managers hired and fired. In this case, the estate is a going-concern business behaving a lot like an LLC. The collection/estate could potentially do business indefinitely, if the will of the heirs is to continue doing so. This might happen if splitting the assets equitably amongst the heirs wasn't possible (e.g. the estate of Leonard Cohen collects a lot of royalties)... or too complex to easily back out of (say: the deceased owned 5 McDonalds franchises and had bet the farm on opening two more; backing out now would bankrupt the estate, so the estate might oddly open two McDonalds.) The collection can also sue, and proceeds from the suit or settlement go into the collection. Asterisk again. * The collection has its own Taxpayer Identification Number (aka SSN or EIN). The collection files its own 1040 tax form, and may do so for years or even decades. The point of all these practical examples is that an estate looks, walks and quacks like a "legal entity". To the point where the IRS even calls it one. And to a boots-on-ground executor, manager or trustee, the reality is it handles like a legal entity, and the experience you have managing legal entities will largely apply, almost in full. Almost. * Now, that asterisk. Due to state court rules in many states, if you attempt to sue an estate, you have to use the right name. And that's what this question is all about. It's a naming convention, and that is all. And courts treat it as such. Take Roe v. Wade. "Roe" is an adaption of "Doe" as in "John Doe". Wade, however, was the district attorney of Dallas County at the time of filing. Wade wasn't being sued personally. It's just the quirky naming convention the court uses. What you have identified is a similar quirk in court rules, where instead of suing Estate of John Q. Example, the syntactically correct thing is to sue Jane Doe, in the capacity of, Executor of John Q Example's estate. And the italic parts are optional, because the court knows that. Why is this important? It's not important, and that's what the Florida Court of Appeals said in florida Spradley v Spradley 213 So. 3d 1042 (Fla. Dist. Ct. App. 2017. The plaintiff had made exactly the above error: suing "the estate of" instead of suing "Derreck Spradley et.al. (implied: in their capacity as executor)". The judge threw out the case, saying in essence "You forgot to "dot an i". The appeals court said no, the distinction is trivial and the court should have simply let the brother "dot their i" and continue with an entirely valid case. In other words, it was a distinction without a difference. So if sued, the executor should not panic about being "named personally" in the suit - you're not personally liable. And it is a waste of time to pick nits over how the name of the defendant is spelled, so says the Florida court at least... and in my humble opinion that precedent would be well received in other state courts, as it avoids wasting docket time and citizen filing fees on an action that will simply be re-filed correctly the next day. Not a license to cheat, however. One way an executor can manage to create personal liability is to abuse or mishandle the role with extreme negligence. In that case, yes, the executor's personal assets could come under fire, basically as punishment for misdeeds. An executor who is careful, honest and gets help when needed won't have any trouble at all. | An LLC is a legally distinct entity from your person. Basically, if your LLC is sued, and you lose, you can lose only what you put into your LLC. Your personal assets are untouched. A very sophisticated plaintiff may try to get around this suing both your LLC and you personally. (I've done this myself.) Even so, if you are careful to keep the business of your LLC separate from your personal business (no commingling of assets, no use of your LLC to pay your bills, but only a salary), then the law will often absolve you of personal liability for the "actions" of your LLC. The reason I warn against "commingling" is because if you do this, you can lose the protection of the LLC as a separate entity, and become personally liable for what the LLC does. This is known as "piercing the corporate veil." If you have home rental operations in more than one state, you may want to establish LLC's for each state. That's because some states are more tenant- and other states are more landlord- friendly than others, meaning that you may want to defend yourself differently in one state versus another. | My boyfriends daughter died. He is her legal father and by blood, he is on the birth certificate. As well as paternity established. Her mother did the obituary and listed her boyfriend the father/parent. Is this legal? Realistically, yes. It is probably legal. The majority rule is that one can't bring claims of defamation or intentional infliction of emotional distress/outrageous conduct, on behalf of the dead. In particular, in Ohio, the Ohio Revised Code § 2311.21 states that actions for libel and slander will end upon the death of the plaintiff. So, no legal relief may be sought on behalf of the deceased daughter. The mom's current boyfriend presumably consented. There is a fair reading of "father" that includes psychological or god-father figure as opposed to legal parent, under which the statement would not be false. Nothing is said about the true father so it isn't really an outright defamatory statement about him that harms his reputation. If the obituary were used as a basis for receiving some sort of economic death benefit, like a social security survivor's benefit or insurance proceeds, it might be a case of common law fraud or something similar, and would also probably constitute criminal fraud or theft. A false statement in a probate court filing would likewise be sanctionable, either by the presiding probate court judge, or in a criminal proceeding (although probably not in a separate civil lawsuit). Arguably, it might meet the standard of "outrageous conduct/intentional infliction of emotional distress" (whether something meets that threshold if all facts alleged are true is a question of law, rather than a jury question), but generally that would require a calculated intent to harm the true father as opposed to, for example, an intent to make that daughter's funeral go smoothly if she had many friends who assumed that the mother's boyfriend was the father, so probably not. Public policy generally favors not having the courts intervene in obituary omissions or inaccuracies. It is certainly not a crime. Not all untruths have legal remedies. I have read its illegal to post a false public document, is an obituary considered a public document? No. An obituary is just a private publication, it has no official status. I would agree with the following source that states that: There are no legal requirements tied to obituaries. They’re a way to tell the story of a deceased family member, and they only carry sentimental value. Obituaries are not a legal or financial obligation under any circumstances. (Source: Do You Legally Have to Have an Obituary or Death Notice?) How can we have it changed and his name put on it. You can't. The funeral home knows she is lying. The director of said funeral home is dodging my boyfriend calls. What can he do? Take out his own obituary in a newspaper or some other medium of his choosing setting forth the true facts. If the original was published in a newspaper, ask the newspaper for a correction or write a letter to the editor commenting upon it. Generally speaking, the First Amendment is designed to encourage responses by counter-speech, rather than by legal action. For example, in one notable case, the Texas Supreme Court's ruled upon whether the authors of an obituary about their son could sue for defamation when someone else accused them of including false statements of fact in the obituary. It held that the authors of the obituary could not successfully sue the people making the counter-statement to their obituary. The Dallas Morning News v. Tatum, Case No. 16-00984 (Tex. May 11, 2018) (affirming a summary judgment order dismissing the defamation lawsuit brought by the authors of the obituary). Footnote Most of the litigation and notable cases involving false obituaries relate to obituaries for people who aren't actually dead. | There is longstanding and well-established legal non-uniformity in defining ‘person’, and in stating laws in terms of ‘persons’. The RICO statutes (18 USC 1961 (3)) states that a person ‘includes any individual or entity capable of holding a legal or beneficial interest in property’. A corporation is a person for the purposes of access to the federal courts, for purposes of forming contracts, and enjoyment of First and Fourth Amendment rights, but not for purposes of voting or 5th Amendment immunity. 1 USC 8(a) states that the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development which states a sufficient condition, but not a necessary one. In Washington state, RCW 1.16.080 says that The term “person” may be construed to include the United States, this state, or any state or territory, or any public or private corporation or limited liability company, as well as an individual. Washington does not define ‘individual’, but we can call on Black’s Law Dictionary to learn that this term denotes a single person as distinguished from a group or class, and also, very commonly, a private or natural person as distinguished from a partnership, corporation, or association; but it is said that this restrictive signification is not necessarily inherent in the word, and that it may, in proper cases, include artificial persons. And finally, Roe v. Wade 410 U.S. 113, 157 holds that an unborn instance of homo sapiens is not a person for purposes of the Fourteenth Amendment. In short, there is no clear and settled answer to the question. Courts do not always refuse to hear ground-breaking cases, and in case this issue is ever realized, I am confident that cert. will be granted. The point of law is, after all, to state general principles regarding what is forbidden or allowed in a society, thus it must be capable of addressing novel situations. We will have to await that case, but the prospects for your client are good. It is obvious that “persons” have a special position under the law, it is recognised that they have both rights and responsibilities that other things do not have. Summarizing over millenia of jurisprudential thinking, we can see that the special status of persons (when not reduced to divine gift: not applicable under current US law) derives from the fact that persons have a capacity to reason, and to choose actions based on their reasoning. In the context of our current knowledge, this is mostly coextensive with being an instance of homo sapiens, though in case of severe or complete limitation of those faculties, an instance of homo sapiens may not be legally accorded the full set of rights and responsibilities of homo sapiens. In fact, the law does not have a definition of homo sapiens. Before objecting that science teaches us that only earthlings can be homo sapiens, we should be remember that courts do not always hold that terms as defined in a scientific discipline are to be interpreted that way under the law, which is how SCOTUS in Nix v. Hedden 149 U.S. 304 was able to hold that a tomato is not a legal fruit. The plain meaning of homo sapiens is completely consistent with extending legal coverage to Kryptonians. Thus it will be the finding of the court that petitioner, not a member of the species homo sapiens but endowed with the faculty of reason and free will, has all of the rights and responsibilities of a ‘person’ under Kansas law, and has the right to be adopted. | There is ample reason to conclude that "non-commercial" would include a church, as well as advocating a political cause or candidate. The hard part of "personal". In the context of (Canadian) bankruptcy law, it can mean "non-business use"; in the context of "personal use property", it can be "A type of property that an individual does not use for business purposes or hold as an investment. In other words, property that an individual owns for personal enjoyment". US tax law takes "personal purposes" to refer to non-business purposes. But in the context of copyright (especially music downloading / copying), it is taken to refer to the use of or by an individual. Distributing free copies of a protected work does not get legally sanctioned due to the copying being non-commercial. The alternative term "private" is much clearer, in identifying "just you", but is probably avoided in this kind of context so as to avoid the wrong inference that you can only play Pokemon in the privacy of your own home. So the slightly less clear term "personal" is used instead of "private" especially in copyright-related contexts. "Personal" and "private" are not exactly the same, but when it's about use, I don't see any difference, and I think there is no question that use to attract to a church or political candidate is not "private", it is public. Since the license does not define "your own personal purposes" and there is not an existing crystal-clear definition of "personal purposes", the phrase could be given its "ordinary (plain) meaning". Of course, plain meaning has to give way to contractual intent, so we have to figure out what the parties intended. Except, you don't have a contract with Niantic, but still, plain meaning surely has some place in the law of licenses. At this point, in a lawsuit, both sides would hire an expert witness like a linguist or English teacher to make the case that a church or other non-commercial non-private use is / is not included in the meaning of "personal purpose". A silly argument could be made to the effect that if you personally have an interest in doing something then it is a personal purpose (if specifically commercial, it would be precluded by the term "noncommercial"). What makes this silly is that everybody does things for personal purposes (even acting in a way that benefits others, since you do so for the personal reason that you should do so), and thus "personal" would not mean anything. That is, "personal purposes" does not mean "whatever motivation or interest you personally have". You can also gain a certain understanding of what "personal purposes" means by looking at similar licenses. In the context of academic publishing, authors are typically granted license to copy "for personal, professional, or teaching purposes". Professional purposes and teaching purposes are things that the person has an interest in, so by mentioning these things separately, we must conclude that "teaching" is not a "personal purpose". And so: I would conclude that a court could find that using a product to support a political campaign, philosophy, or religion, is a "public" purpose, not a "personal" purpose. At the same time, at least as I understand it, a lure module is a thing that others besides yourself personally can see (I admit, I don't go), which implies that the purpose of the thing is not entirely private. In addition, there is a fair amount of buzz out there about how a lure could be good for business, which is (1) clearly in contradiction of the license terms and (2) clearly a golden opportunity for Niantic, perhaps in a few weeks after everybody gets hooked and then they will offer non-personal licenses. Their license terms also say that you will not "use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in a manner not permitted by these Terms". I would say that that definitively says "No don't do it", and it also means that you can't be nice to a neighbor. So what they literally say and what they really intend are probably completely different things. | This is very, very weird. I've never heard of a case like this one. Is there some context that could explain why anyone would refile a divorce someplace new twelve years after getting divorced the first time around? The logical thing to do if Canadian civil procedure is at all analogous to U.S. civil procedure on this point, would be to have a Canadian lawyer file a motion in the Canadian divorce case to set aside the judgment on the extraordinary grounds that you were not married any longer at the time that the 2015 divorce was filed, seeking to set aside the 2015 case ruling. In most U.S. jurisdictions with civil procedural rules modeled on the federal rules of civil procedure (California's are not), this would be a motion under Rule of Civil Procedure 60, but obviously, the Canadian rule numbering would probably be different. Alternatively, if the home is in California, you could bring an action for declaratory judgment declaring that the Canadian judgment is invalid because it was brought in a divorce action between people who were already divorced and probably also lacked jurisdiction over you and the property. I'm not sure what you mean by CPL in this context. Normally, in a real estate context, a CPL would mean a "closing protection letter", but in the context you are using it, it sounds like you are referring to something akin to a lis pendens or a lien. Perhaps you mean a "certificate of pending litigation" which is another name of a lis pendens in at least some Canadian jurisdictions (but is terminology rarely used in the U.S.). This sounds like slander of title, or "abuse of process" or the filing of what is known as a spurious lien, any of which are actionable, but without knowing what a CPL actually is, it is hard to know. | Yes. You go into the court of relevant jurisdiction, and file a lawsuit to "quiet the question". Usually there is a counterparty who has something to say on the subject; sometimes not. If there is an apparent counterparty, they must be served notice of all aspects of the case. Let's say I manage a pipeline property management company; we are wholly owned by a pipeline company and we buy the land and lease it to said pipeline company. I need a parcel of land to complete a pipeline connection, and as part of my offer I gently remind the landowner, Beth, that we do have the legal right to take the property by eminent domain, with the hopes this will inspire them to a sensible price. Beth says "Bunk! Your LLC doesn't run any pipelines! You don't have eminent domain rights! 500% market price, or go away." Well. So, for the sake of moving the negotiation along, I go to court and ask the judge to quiet the question of whether we have eminent domain rights. Mind you, I don't go any further than that; I don't want to actually take it by eminent domain if I can talk Beth out of a consensual sale. The judge will, of course, suspect this applies to an imminent case, and will ask... so I might as well disclose the Beth situation. As such, I will have to serve Beth and keep Beth fully in the loop, so that Beth has full right to make the other side of the argument. Since it could affect others as well, the judge will probably also require publication in whichever newspaper handles legal notices. (Many newspapers are propped up financially by being official legal-notice organs for their county. They have six pages of editorial content, and 18 pages of legal notices and other ads.) Most likely, the judge will cowardly refuse to rule on whether a pipeline's land holding company has eminent domain, and simply rule that the pipeline company itself does, and could simply buy the land itself then transfer it to my company as a trivial, taxless transaction. So the judge would grant eminent domain conditional on that transaction being done. Beth then offers 133% of market which we haggle to 120% of market + legal fees. Good enough! Or, Beth refuses, in which case we file an eminent domain action in the same court and before the same judge; being already aware of the facts of the situation, there is nothing left to litigate, and the gavel drops quickly and predictably. This is how "quieting a question" works. It is somewhat less confrontational with the counterparty, since you are going to court, sort-of together, to resolve a hypothetical question; once we know whether we are on solid legal footing, we then are able to continue negotiating. Courts love this, because they really want people to negotiate and make consensual settlements. And if a party insists on filing a suit to on the quieted matter, they can pay their filing fees and lawyer fees to get a lecture: "we already resolved this." (Or alternately, to present new facts which mean the past ruling is no longer on-point; e.g., Beth discovers we don't want the land for a pipeline at all, but for an access road.) You can also do this with the IRS. This is called a Private Letter Ruling, and it will set you back a $750 filing fee (and legal costs, of course). You'll still get audited, but then you wave the Ruling in front of them and done. Doing this preemptively in a criminal matter would be adventuresome. Your biggest problem would be the press: it would be impossible to do this discreetly, as the case would be fascinating; and it would put every cop and prosecutor on notice that you have a mind to do the potentially illegal thing. | What happens when a person dies intestate is that the court appoints someone to be the executor. That person is supposed to settle the decedent's debts, and divide the remainder equally among the siblings. It is virtually guaranteed that the mortgage-holder will get their share – you can't just sell a house with a mortgage and run. In the meantime, the estate has to keep paying the mortgage and property taxes. The executor has wide latitude to dispose of the estate, and clearing out personal possessions is a necessary part of liquidating the estate. Those possessions being part of the estate, they "count", therefore that mink coat worth $10,000 can't just be "taken" by the executor in order to tidy things up. But that broken weed-eater worth $1 can just be thrown away and not stored for some months, waiting for the final reckoning. The executor is entitled to compensation for his work and reimbursement for his expenses, so nickle and diming the small possessions is probably economically counterproductive. The executor has the legal power to determine how the legally required distribution is carried out, that is, the law doesn't require a majority vote of the heirs in order to dispose of each and every item of property. If there is an actual legal dispute, if you believe that the executor is improperly carrying out the job, you can hire a lawyer to have him removed, or otherwise put pressure on him to get a change in how things are. This will probably cost you more than you might get from the estate. It is possible that the real estate market will not support the current sale price and therefore a lower asking price is necessary (i.e. the executor needs a reality check). A combination real estate agent + lawyer could help you figure out what to do with the house to make it sell. |
Are McKenzie Friends Allowed in The United States? McKenzie friends are people who assist others in court while not themselves being attorneys. They are allowed in England and Wales. | In Canadian practice (and U.K. practice is similar): A McKenzie friend is a support person who sits alongside someone appearing in court without a lawyer – a ‘self-represented litigant’. Their role is to provide practical and emotional support during the court process by helping to keep the self-represented litigant organized, calm and focused. Anyone can act as a McKenzie Friend but generally it is a trusted family member or friend, and ultimately their presence in the courtroom is allowed only at a judge’s discretion. What can a McKenzie friend do? If a judge does give permission, a McKenzie Friend can sit at the front of the courtroom and: take notes; organize documents; make quiet suggestions to the litigant; provide emotional support; pay attention to the courtroom discussion; do any other task approved of by the judge. Normally in U.S. practice, non-lawyer companions of a party who are not staff to lawyers are not allowed to sit at the front (inside "the bar"), but may take notes, organize documents, provide emotional support and pay attention to the courtroom discussion, as these activities are not considered the practice of law. It isn't uncommon to see self-represented litigants with this kind of assistance in U.S. courts, although these persons are almost never formally recognized as having a role in the litigation process. This role is not formally recognized in most U.S. courts as it is in Canada and the U.K. So, normally there would not be other tasks approved of by a judge, although judges can approve interpreters (including interpreters for the deaf and readers for the blind) and someone whose presence is necessary to accommodate a disability of a party (e.g. someone operating the party's oxygen tank or IV bag or helping the party to sit upright). It is conceivable that a judge might allow a McKenzie friend-type person to sit at the same table as the a self-represented party in the U.S., on an ad hoc basis, as an accommodation of a person with a disability of the mental health variety in much the same way that a service dog for such a person might be permitted under the Americans with Disabilities Act. The role of making suggestions to the litigant quietly would normally be considered the practice of law and would be prohibited in U.S. courts, although some judges would be more strict in enforcing this requirement than others would be, and the definition of the "practice of law" varies from state to state. Many judges would allow a McKenzie friend type person to quietly alert a self-represented party to the need to stand up when the judge walks in, but not to talk about what questions the litigant should ask a witness, for example. Some states have pilot programs to explore more significant non-lawyer assistance for a party. Colorado, for example, as a "Sherlock" program where court employees help self-represented parties navigate the court system without crossing the line into legal advice, and Washington State has a "legal technician" program that allows non-lawyers who have pursued a paraprofessional training program to practice in certain narrow topic areas as independent professionals without being lawyers. Some states also allow managers or officers of companies to represent their companies in small claims courts and administrative proceedings (e.g. unemployment hearings and zoning hearings), although this is not generally allowed in other court proceedings. Neither McKenzie Friends (in Canadian and U.K. practice), nor non-lawyers in the U.S. in general, are permitted to speak on behalf of or negotiate on behalf of a party in a law suit. | Law SE is not for direct legal advice. You're in the middle of a contract dispute that has turned acrimonious and need to find legal help. Google for free or low cost legal aid in your area. If this "point person" has mentioned a lawyer or made legal threats, you do need legal help. | Some people seem to believe that just because something happens 'in the internet' it is somehow outside normal jurisdictions. Wrong. In may be harder to investigate and prosecute crimes in the internet, but the laws apply all the same. There are some problems when it is unclear 'where in the world' something did happen -- in the jurisdiction of the perpetrator, the victim, or the service provider? But problems of jurisdiction apply e.g. to international fraud cases in the non-web-world as well. In many jurisdictions, the informed and voluntary consent makes some things legal which would otherwise be illegal. For instance, if two boxers get into the ring, it is understood that each of them did consent to be hit by the other. But usually two fighters could not legally agree to a fight to the death, because even if there are laws on assisted suicide, they do not apply to a fight. Insults, libel, and slander are not on the same level as homicide. There are jurisdictions where they are not prosecuted without the request of the victim. But an insult might also violate other laws, e.g. disturbing the peace. So don't bet on such an app unless you know for sure which jurisdictions are involved. | It depends on the law in country B Some countries allow extradition of their citizens and some don’t. | Is it possible that a court of one jurisdiction would apply the laws of another jurisdiction? For example could a case heard in France (by a French court) apply the laws of the US? If no, then what is the point of such clauses? Yes. This can be done and the example you provide could happen. This is done in civil cases, but not in criminal cases. The other main exception is that a court will not apply another jurisdiction's tax laws, although this is less absolute and the other jurisdiction's tax laws may still be considered as relevant to a civil dispute, so long as they are not enforced. For example, I have litigated a case where the events took place in France in a U.S. Court where the court had jurisdiction over the parties and the relevant choice of law rules pointed to French law. The overarching principle of that the law of the place with the most significant connection to the legal issue decided applies. But there are many subsidiary rules that provide clarity in some areas (although the clarity was reduced with the effect of making forum law apply more often, in the 1960s-1980s after a previous regime of more black and white rules). A clause like this is generally effective if it the parties have any connection to the forum chosen. It is a close cousin, although not nearly so strongly preferred in the law, of an arbitration clause. Also do such clauses go by other names than "attornment" clauses? This article points out such a name is specific to Canada. Yes. In the U.S. an "attornment" clause is a provision that requires a party to a contract to affirmatively declare upon notice from the other party if the attorning party claims that the other party is in breach of the contract or has unfulfilled obligations (with the attorning party waiving any claims for breach of contract not identified at that time). An "attornment" clause is normally found in a lease or secured promissory note and facilitates the transfer of the leased property or secured debt in a way that the new owner can know that there is no risk that it is already in default apart from the transferor's representation. Otherwise, the aggrieved party wouldn't have to mention anything until the statute of limitations arrived. All of the meanings, including the Canadian one, go back to the notion of affirming the existence of certain rights in advance of a dispute arising between the parties. This Agreement shall be construed, interpreted and enforced in accordance with, and the rights of the Parties shall be governed by, the laws of the Province of Québec and the federal laws of Canada applicable therein (excluding any conflict of law rule or principle of such laws that might refer such interpretation or enforcement to the laws of another jurisdiction). The language above is a choice of law clause. The Parties hereby irrevocably attorn to the exclusive jurisdiction of the courts of the Province of Québec, judicial District of Montreal, with respect to any matters arising pursuant hereto. The language above is a choice of forum clause, a.k.a. choice of jurisdiction clause, a.k.a. choice of venue clause. | It may be discrimination; not all discrimination is illegal. Details vary by jurisdiction, for example discrimination on the following bases is illegal in Australia: race colour sex sexual preference age physical or mental disability marital status family or carer’s responsibilities pregnancy religion political opinion national extraction social origin Tobacco use or non-use doesn't make the list. That's the legal position; if you want advice on how to handle the workplace stuff post your question on the Workplace Stack Exchange. | See Attorney at law, is there any other kind? As expatiated on English Stack Exchange, Attorney-At-Law can be distinguished from Attorney-In-Fact. I quote from the University of New Mexico's Judicial Education Center Attorney-at-Law – A licensed advocate or counsel authorized by the courts to prepare, manage and try cases in court, to prepare legal documents, or otherwise represent the interests of citizens. Attorney-in-Fact - A private person (who is not necessarily a lawyer) authorized by another to act in his/her place, either for some particular purpose, as to do a specified act; or for the transaction of business in general, not of legal character. This authority is conferred by an instrument in writing, called a letter of attorney, or more commonly a power of attorney. Grammarphobia dated August 23 2012 answers your question. Q: Why is a lawyer called an “attorney at law” and not an “attorney of law”? Doesn’t “at” refer to a place? An MD is a “doctor of medicine” not a “doctor at medicine.” A: In American English, the terms “lawyer,” “attorney,” and “attorney at law” are pretty much interchangeable, according to Garner’s Dictionary of Legal Usage (3rd ed.). All three refer to “a licensed lawyer.” The legal dictionary, written by Bryan A. Garner, says “lawyer” and “attorney,” the most common of these terms in the US, “are not generally distinguished even by members of the profession.” However, these three terms have had different meanings in different places and times. In England, for example, an attorney used to practice in common-law courts and a solicitor in equity courts. But the term “attorney” developed “an unpleasant smell about it,” Garner writes, and “in the nineteenth century it was supplanted in England by solicitor.” (As the Oxford English Dictionary explains, the word “attorney” was often used reproachfully to mean something like “knave or swindler.”) In the US, on the other hand, the term “attorney” has become a somewhat tony (or, as Garner puts it, more formal and less disparaging) version of “lawyer,” while “solicitor” has taken on an offensive whiff, as in signs like “No Peddlers or Solicitors.” Why, you ask, is an attorney “at” law rather than “of” or “in” law? Doesn’t “at” refer to a place? Well, all three prepositions were used in the past, according to published references in the OED, but they referred to the place where the attorney practiced, not to the practice of law itself. The Oxford editors say “attorney-at-law” (they hyphenate the term) originally referred to a “professional and properly-qualified legal agent practising in the courts of Common Law (as a solicitor practised in the courts of Equity).” Interestingly, the earliest OED citation for “attorney at law,” from William Blackstone’s Commentaries on the Laws of England (1768), refers to lawyers at admiralty and ecclesiastical courts, not courts of common law: “An attorney at law answers to the procurator, or proctor, of the civilians and canonists.” (A procurator, or proctor, used to be a legal representative in English admiralty or ecclesiastical courts.) Why, you might wonder, has the term “attorney at law” survived when “attorney” and “lawyer” can do the job just as well with two fewer words? Well, we could be cynical and say that the kind of lawyer who feels it’s classy to be called an “attorney” would probably feel it’s even classier to be called an “attorney at law.” But there’s a more respectable reason for the survival of the longer term. It distinguishes an “attorney at law” (a licensed lawyer) from an “attorney in fact” (someone with a power of attorney to act for another). In fact, when the word “attorney” entered English in the 1300s (borrowed from Old French), it referred to someone “appointed or ordained to act for another; an agent, deputy, commissioner,” according to the OED. Here’s an example from Shakespeare’s The Comedy of Errors (circa 1594): I will attend my husband, be his nurse, Diet his sickness, for it is my office, And will have no attorney but myself; And therefore let me have him home with me. By the 1400s, the word “attorney” was being used to mean a lawyer practicing in the common-law courts in England. But around the same time it took on its negative sense. Here’s a later example from Alexander Pope’s essay Of the Use of Riches (1733): “Vile Attornies, now an useless race.” And here’s one from The Life of Samuel Johnson (1791), by James Boswell: “Johnson observed, that ‘he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney.’ ” The word “lawyer,” which entered English around the same time as “attorney,” has roots in the Old English word for law, lagu. From the beginning, according to the OED, it meant what it does now: “One versed in the law; a member of the legal profession.” We’ll end with this proverb from The Arte of Rhetorique (1553), by Thomas Wilson: “The lawyer never dieth a begger. The lawyer can never want a livyng till the yearth want men.” | I am not a lawyer and I have never even been to the UK. You will not go to prison if your neighbor's dog attacks you and it dies as a result of you defending yourself. You might go to prison and/or owe the owner damages if: You are somewhere you do not technically have a right to be. It can be shown you could have retreated from harm but chose instead to stand your ground. The force you used was deemed excessive - it showed intent to harm the dog more than necessary to protect yourself You contributed to the confrontation in a way that a reasonable person would think might cause trouble You might be able to protect yourself from problems by: taking pictures or videos of the dog behaving badly or aggressively note dates and times when you observe the dog behaving badly or aggressively formally contact the dog's owner with your concerns and/or evidence in which you assert your rights to access the areas you walk through and your right to defend yourself in the event that you are attacked by the dog if possible, change your route or schedule to avoid the problem entirely Good luck |
Is it legal to publish free offline cheats and at the same time have a Patreon for donations? I am a person who like to do a lot of things for living. I was wondering of releasing offline cheats for free with a Patreon for donations ONLY. Is it illegal to do that or legal? I really need a professional lawyer to help me answer those 2 things. Is it legal to release free offline cheats? (My intent is to make people have fun with them offline only) Patreon is only if people want to really help me out and is not required to download my cheats. It is like donation as I said. I live in Sweden by the way. Thanks if anyone can answer these two questions. | First of all, the definition of hacking and cheating is murky: There is no such thing as a legal definition of cheating. But there is one for hacking. Hacking is usually defined in the law as unauthorized access to a computer or files, be it directly (then often coupled with some sort of trespass) or via the internet. Cheat codes generally allow modifying the game on the fly. Those were expected input that then resulted in widely unbalanced effects. For example, Age of Empires had E=mc2 trooper that could be sent via the normal text chat. That resulting unit was entirely expected bahavior and in no way unauthorized access to the computer. Related to them are console commands such as opening the developer menu and then typing TGM in any Bethesda game since Morrowind. These are likewise expected behavior and not unauthorized access. Because these two are generally already expected by the very design of the game, providing a manual on how to use these functions is nothing else but to provide a documentation of the software. Now, it gets more tricky with modifying the game with external means that are not provided by the publisher or maker of the game. For example, one might have agreed to not use external software to modify the game in the End User Licensing Agreement, and so far no court has ruled anywhere that a prohibition to modify the game or of the RAM would be an unconscionable clause and void. Few courts have tested these, but under the theory of tortious interference and with a proper EULA clause, cases like the Fortnight Lawsuit from 2017 (settled in 2021) have been brought. In that case, in a wave of trying to get a particular multiplayer cheat software go away, among others a minor was sued for violating the EULA and advertizing this software, which was claimed to violate copyright law. However, the case settled and was mostly hinging on DMCA issues. Conclusion It's murky, you need to hash out your business idea better. Also, you have really strong competition: sites like dlh.net have accrued literally millions of cheat codes over more than 3 decades. I even remember when DirtyLittleHelper was provided as software on a GameStar CD that then would update the database of cheats for games I never even heard of in the late 1990s and early 2000s - there were already hundreds of thousands of entries there then. | Unless they have permission or pay the required royalty: yes. If they are playing it for personal entertainment or at a private function then they can make a fair use/dealing defence. | A document can be distributed under more than one license. Just because it has been made available under a CC license for free, doesn't mean that IEEE can't negotiate a different license with different terms that allow them to sell the content. (This is similar to the way that a software library can be available for free under a license that permits non-commercial use, but also be made available for a fee for commercial use.) If you want to know whether IEEE is legally selling Aaron Swartz's manuscript, you can contact Morgan & Claypool, the publisher that owns the copyright, and ask them whether this use by IEEE has been authorized by them. For the other documents you mention, contact MIT Press. Etc. | 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. | Check your license! By operating the original client, you might have agreed to a license, the EULA. Check that license for what it says about you being allowed to do with the product. In a recent case of Bungie vs. Elite Boss Tech, a US court found in a default judgment that a certain cheat software that would interact with both the game's client and the company's servers among other things did... constitute copyright infringement [as a derivative work] was a breach of contract [formed by the EULA and agreeing to the Terms of Service for the game] was interference with Contractual allegations [of other users that obtained the software] However, not all internet games or experiences are locked down like that. Other companies do offer an open API set or terms under which a client's software may be modified. As a very generous example, LindenLabs does for its SecondLife Virtual World, for which they provide not just the framework, but also the terms under which you are allowed to make a third party Viewer Sometimes, the Terms of service are rather hidden. For example, the Chinese Go platform Fox Weiqi operates in china. To get to the terms of service, you need to download the free client, go to Settings (via the cog), then choose 野狐围棋用户协议, which is Chinese for Wild Fox Go User Agreement. This links to https://edu.foxwq.com/complex/useragreement.html. The user agreement is of course in Chinese, but Google Translate manages to get that to English. It contains the following clause: 7.2 Unless permitted by law or with the written permission of Yehu, you shall not engage in the following acts during the use of this software: ( 1 ) Delete the copyright information on the software and its copies; ( 2 ) Reverse engineer, reverse assemble, reverse compile the software, or try to find the source code of the software in other ways; ( 6 ) Log in or use Yehu Go and its services through third-party software, plug-ins, plug-ins, systems not authorized by Yehu, or make, publish, and disseminate the above tools; ( 7 ) Interfering with the software and its components, modules, and data by itself or authorizing others or third-party software While it takes a court to see if the terms hold water and are actually enforceable because of how the EULA is offered, the face value of those clauses is, that it is forbidden unless you have a specific law that allows such or you obtain written permission. With that kind of possible liability that might cost millions, there might be serious legal problems. Read your license agreement and terms of service and consult a lawyer. | Written down computer code is subject to copyright. If you do not have the permission of the owner to copy it you are breaching their copyright unless your use constitutes fair use/dealing. | In general, a gameplay video would be either a partial copy or a derivative work, and in either case an infringement if created without permission. Such a video might be covered under fair use in US copyright law, particularly if made for the purpose of commentary on a game or instruction in how to play or design a game. In general, a fair use defense is more likely to succeed if only the minimum amount of the work required for the purpose is used, and sound tracks might not be required for such a purpose. Thus a maker of such a video might choose to omit the sound to improve the fair-use case. Moreover, when the sound track contains licensed popular music it would be subject to a separate copyright, and many music publishers are notoriously litigious, so prudence would advise omitting the sound. All that said, fair-use is a case-by-case determination, and if the makers of such videos have not been sued, they (and we) can only guess how a case would turn out. As to why game makers refrain from having such videos taken down (if they in fact do refrain) one can only speculate. Game publishers may consider the videos good advertising. Questions based on the absence of legal proceedings are inherently speculative, unless a copyright holder has announced a policy of not taking action and the reasons for it. | You automatically have copyright protection for what you create. A collection of numeric answers to math equations probably would not qualify (lack of requisite creativity), but certainly anything that counts as a "paper" is protected. |
Do UK government ministers have any redress under employment law when they are 'reshuffled' out of a job? There has recently been a 'cabinet reshuffle' in the UK. A number of ministers have been removed from their posts and have seen a change in their status and salaries. Are these changes covered by the fair dismissal criteria of UK empoyment law, or would they (in theory) have a case for unfair dismissal? | No The reason is very simple: MPs are not employees. | The earliest mention of the principle that I can find is in Rolston v Secretary of State for Northern Ireland [1975] NI 195, where the matter of compensation for the widow of a police officer murdered in Northern Ireland arose. I am sure there are earlier cases that express the same principle in different terms, however. It is a broad principle that applies to most areas of civil law, and I cannot find an original source for it. I imagine that it is simply "received wisdom" that has been repeated long enough to become a cornerstone of the law of restitution in England and Wales. There is currently no statutory basis for the principle so I cannot cite any relevant Acts of Parliament either. | You can be fired in Canada for criticizing the employer, or even complaining about the weather. There is a distinction between Termination Without Cause and Termination With Cause. In the latter case, which requires a serious reason related to the employee's conduct, you can be fired without advance notice and with no severance pay. If the employees actions are fundamentally inconsistent with their obligation to the employer or are substantially prejudicial to the business in a way that damages employer's business or reputation, they may be terminated with cause. Examples of cause would include insubordination, theft, or abusing customers. If you want to fire a person without cause (and assuming that this is an indefinite employment contract as opposed to a fixed-term contract), you have to give "reasonable notice". There is a statutory minimum, but the courts usually apply a higher common law standard which means that you need to hire a labor lawyer to know what that period is, though 24 months is apparently a relatively safe figure (not always safe). The factors entering into that decision are described here (kind of job, length of service, age, availability of similar jobs; plus, how the termination was handled). You may also owe severance or termination pay, related to length of service and wages. Here is a calculator for Ontario. This article covers some instances in Québec where social media criticism did result in successful suspension, indicating that the employee's duty of loyalty is not entirely null when it comes to social media. In the BC case of Kim v. ITU, the court found that the dismissal over social media posts critical of the company was not for cause. However, part of the company's failure in this case was that they failed to respond immediately to what they saw as inappropriate behavior (boorish Twitter behavior). Assuming that the statements made are accurate and expressed respectfully, the prospects for Termination With Cause are significantly diminished. The prospects for some disciplinary action (suspension for a period of time) remains high -- multiple terminations were modified to long suspensions. | Regulations - Yes, Acts of Parliament - very rarely In in the united-kingdom diagrams are found in regulations, for example legislation dealing with roadside symbols. There are two kinds of legislation in the UK: Acts of Parliament and Statutory Instruments (normally called Regulations). The procedure by which an Act of Parliament is passed is that it has to be approved by both Houses of the legislature and then receive Royal Assent (Royal Assent is a formality). The procedure in each House is that the main debates occur at the Committee Stage when amendments are proposed and voted on. At the next stage (Third Reading) the House votes again on whether to approve the Bill in its amended form. Statutory Instruments (Regulations) are issued by the government (executive) and are known as delegated legislation because the government only has power to issue a regulation if an Act (called the parent Act) gives it power to do so. As you would expect there are safeguards. First of all the courts can declare invalid (ultra vires) any regulation whose terms go outside the limits of the power delegated by the Parent Act. Sometime the parent Act will provide that Regulations issued by the government under delegated powers become law without further involvement of Parliament but sometimes an Act will provide for some limited further Parliamentary scrutiny. This can be either by the Positive Resolution (the regulation will not become law until Parliament approve it) or by the Negative Resolution procedure (the regulation will become law unless Parliament passes a resolution annulling it). A key point, in the context of the question, is that neither the Positive nor the Negative Resolution procedure allows Parliament to amend the regulation - Parliament only has a binary choice to approve or disapprove. Of course if they disapprove then the government can issue a new amended regulation which then goes through the same process but the Positive/Negative resolution procedure does not allow Parliament itself to amend any regulation. I think this explains why diagrams which are sometimes found in regulations are rarely found in Acts. Constitutional proprieties require any Bill to be amendable and any member of the legislature can propose a amendment. If the Bill included diagrams then there would be huge practical problems because any member who wanted to amend a diagram would have to produce his own amended diagram which he might not be able to do/might not have time to do before parliamentary deadlines. So constitutional proprieties would normally mean that in practice Bills must be solely words. Regulations however cannot be amended by Parliament (see above) so such considerations do not prevent regulations from containing diagrams. Having said that normally Bills will only contain words, there is this example of an Act which includes a diagram of a symbol. That symbol, however, is defined in an international convention so in practice no parliamentarian would want to amend it. I know of no examples in the UK where a Bill (as distinct from regulations) contains an image which a member of the legislature might want to propose an amendment to. | 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. | These offer letters typically state explicitly that the offer is contingent on approval by the relevant governing board. This is sufficient to thwart promissory estoppel. Such highest-level overturning are frequent enough in the US that a reasonable person would know that the principal (for instance) does not have final authority to make a contract. There is no requirement that the board justify their decision to you. If you file a lawsuit alleging racial or religious discrimination, and if you can make a prima facie case for discrimination,you might survive the motion for dismissal, and the board might be required to say why they didn't hire you. | Do anti discrimination provisions apply to online as well as brick and mortar retail vendors? Yes There is nothing in the Equality Act 2010 in general - nor in the definitions of Prohibited Conduct found within Part 2, Chapter 2 in particular - that excludes, exempts or otherwise makes allowances for unlawful discrimination according to what business model is being used. This view is supported by Citizens Advice who say that... The Equality Act says you mustn’t be discriminated against when you buy or receive goods, in many different places including: shops, supermarkets, market stalls or charity shops at an auction by telephone or online by catalogue or through doorstep sales. | Yes, there is a reasonableness limit, and this is especially true in consumer transactions. If you were given an estimate and the final bill is a lot more than what you were expecting, you can dispute it. The final price should be ‘reasonable’. The law doesn’t say what counts as reasonable, so you’ll have to agree it between you. You should consider: the estimate you agreed to [if there was one] any changes, and why they happened anything that happened that was beyond the control of the trader, like bad weather or the cost of materials going up https://www.citizensadvice.org.uk/consumer/getting-home-improvements-done/problem-with-home-improvements/ When it comes to work itself, the act states that a tradesman or professional has a 'duty of care' towards you and your property. Any standard or price you agree must be honoured. But if it isn't agreed in advance the work must be done to a reasonable standard, at a reasonable cost, and within a reasonable time. So if you haven't fixed a price, you don't have to pay a ridiculously high bill. All you have to pay is what you consider 'reasonable' and invite them to sue you for the rest. Be careful though, in some circumstances when you are withholding payment you may have a claim made against you by a supplier if you are in breach of contract. What's a reasonable amount would be what similar tradesmen would have charged for the job. So get a few quotations. https://www.bbc.co.uk/programmes/articles/1fdlwC9xzyxjCpWMlsCGG3j/supply-of-services NB that article refers to The Supply of Goods & Services Act 1982, which was partially superseded by the Consumer Rights Act 2015. |
Is Price Discrimination in the Software Industry legal in the US? (Sneakers resale software case) There is a software manufacturer that advertises their product for $599 on their website. Conveniently, the software is always out of stock, while the manufacturer “backdoors” some licenses to a selective group of users, at a price of $6,500. Then, they raffle a few licenses at the advertised price among thousands of users. I feel like this is a clear and blatant violation to fair competition but I am by no means an expert. What strikes me immediately, though, is that the Robinson-Patman Act deems illegal the “price differences in the sell of identical goods that cannot be justified on the basis of cost savings or meeting a competitor’s price.” As software licenses are identical, I believe the act is violated. I have two questions: what other regulations this practice might be violating? is this something I can report to the FTC or other authority? do I need a lawyer to do it? Edit: It seems the post has been popular and there are additional questions as for why manufacturers do this. There is a whole secondary market for this type of software. Users buy and sell licenses at way-above-retail prices. For the software in turn, Nyte Software, retail is $599 and resell price has reached $7K at some point, in secondary markets. Manufacturers sell the copies at resale value to a select group of users, under strict rules imposed to the users on the prices they can resell the software at, all while the software is labeled as "out of stock" in their webpage (why keep the advertising of $599 in their webpage, right?). In this way, manufacturers control the market prices, while they cash through increasing the supply. Additional competition questions that arise are about price manipulation through social media (manufacturers often intensively advertise the success of the software in social media to drive prices up, before selling), unfair product sale (cherry-pick buyers) and price control (strict resale rules). In this blog post, there is an example that shows the different things these software manufacturers do, relating to their software distribution and market practices. In fact, even when they sell de-facto at a price of $6500, they might send different invoices with the same description. This part also seems against fair competition. | The US federal Robinson-Patman Act applies only to a sale of tangible goods to different retailers at different prices in interstate commerce. See "Robinson-Patman Act" at investopedia. What is described in the question is not a sale of tangible goods, nor is it a sale to different retailers at different prices. Bait-and-switch selling schemes are prohibited by laws in most US states, and by US FTC regulations. But the fact pattern described in the question does not seem to exactly fit the usual definition of a bait-and-switch selling scheme. Knowingly advertising a product with no intention of selling it at the advertised price might well constitute false advertising, at least in some jurisdictions. It is not clear, at least to me, from the question why the company acts as it does. What benefit does it hope to gain from advertising the lower price? Intention is often important in bait-and-switch and false advertising cases. | "There's no ... contract" - wrong! The emails are the contract, see What is a contract and what is required for them to be valid? If you didn't agree on which laws will apply then that is a matter for the court to determine. In general, they will tend to look at where the bulk of the work was done - since you are being charged I assume the work was done in the UK so probably UK law applies, noting that the UK is actually 3 different jurisdictions (England & Wales, Scotland and Northern Ireland). That said, many jurisdictions have non-excludable laws around contracts, particularly consumer contracts that apply irrespective of the substantial law applying to the contract. It is therefore possible that you apply English contract law subject to, for example, Australian Consumer Law. Usually any consumer protection law in the vendor's jurisdiction will also apply. General contract law dictates that where a price was not agreed a reasonable price must be paid. If its reasonable that the editing should have been included in the original price charged then you don't have to pay more but if it isn't then you have to pay a reasonable amount for it. There is generally no requirement for estimates or any other method of determining the price - you just have to do what's reasonable. However, consumer protection law generally imposes more obligations on a business than general contract law. It is likely that your contract is ambiguous - courts will endeavor to fill in any ambiguities to make the contract work. techniques include read in implied terms to give "business efficiency", from custom or business usage (e.g. if particular industries typically deal with particular issues in particular ways), from previous dealings (i.e. what the parties have done in the past), from statutes, whatever works to resolve uncertain, meaningless or ambiguous terms, from the express words used or from the nature of the contract or from the common intention of the parties (i.e. the court might ask you what you meant). "Breach of contract" is a very broad term - it simply means that one of the parties hasn't done what they were required to do and allows the other party to sue for damages. | The customer will own exactly what is stated in the contract. As the contractor, who wants to be able to reuse code (which is in everybody’s best interest) you want to keep the copyright, with the client having the license to use the code any way they want. If the customer wants the copyright with the contractor losing all rights, that will be in the contract, and it will cost. If the contractor produced an application that use lots of domain knowledge supplied by the client, that will often not give the client copyright, if the contractor is the one producing the actual expression of that knowledge by translating knowledge into code. If the client provides knowledge that is actually a trade secret, then an NDA should be signed. And again, it’s contracts. The client can put into the contract that their domain knowledge must not be reused. That is quite reasonable. The client might add to the contract that the contractor will not write software for any competitor. That is legal if it is in the contract, but it will cost. | You'll want to read the actual licenses yourself and understand what is required. If you don't understand, then you'll want to consult an attorney. But neither of these licenses are all that complex in my opinion. MIT: Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), 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, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. Apache 2.0: Redistribution. You may reproduce and distribute copies of the Work or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form, provided that You meet the following conditions: (a) You must give any other recipients of the Work or Derivative Works a copy of this License; and (b) You must cause any modified files to carry prominent notices stating that You changed the files; and (c) You must retain, in the Source form of any Derivative Works that You distribute, all copyright, patent, trademark, and attribution notices from the Source form of the Work, excluding those notices that do not pertain to any part of the Derivative Works; and (d) If the Work includes a "NOTICE" text file as part of its distribution, then any Derivative Works that You distribute must include a readable copy of the attribution notices contained within such NOTICE file, excluding those notices that do not pertain to any part of the Derivative Works, in at least one of the following places: within a NOTICE text file distributed as part of the Derivative Works; within the Source form or documentation, if provided along with the Derivative Works; or, within a display generated by the Derivative Works, if and wherever such third-party notices normally appear. The contents of the NOTICE file are for informational purposes only and do not modify the License. You may add Your own attribution notices within Derivative Works that You distribute, alongside or as an addendum to the NOTICE text from the Work, provided that such additional attribution notices cannot be construed as modifying the License. Nowhere does either license require you to publish your application's source code, even if your application is directly based on the original code. | The contract between you and the company is for the supply of the goods. How they get them to you is irrelevant; they may have them in stock, or they may order them and ship them on, or they may send an order to the factory to ship them directly to you. There is nothing saying that they have to be in stock anywhere. The law you refer to says that they must ship within 30 days unless they provide a specific date. In effect "shipped within 30 days" is an implicit term in the contract. If after 30 days they have not shipped the goods then you are entitled to rescind the contract (i.e. get your money back). Where things get interesting is if they took your money knowing that they would not be able to ship within 30 days, or at least being reckless (i.e. not caring) about it. It does rather sound like this may be the case. If so then it may rise to the level of fraud, and the FTC or state authorities may take action. Try writing to the FTC. A single event won't get any action, but if they get lots of complaints then they might. | In general, using content provided by another who incorrectly posted it under a permissive license, such as a CC license, does not grant a valid license from the real copyright holder. That is, if A writes some code (or a song, or creates an image, or whatever else), it is protected by copyright. If B then posts it to the web, with a statement that it is released under a particular license, without having obtained permission from A, then B's "release" is of no value, because B had no rights to grant. If C downloads and uses this content, relying on B's license, then A could take legal action against C. C would probably be considered (in the US) an "innocent infringer" which reduces the minimum statutory damage amount, but does not otherwise change C's legal position. A could, if it chose, bring suit and possibly obtain a judgement including some damages. But to return to the practical case of code posted on one of the SE sites. Given the comparatively short code sections usually posted, and that they do not usually form a complete working program, and given further the stated educational purpose of SE, it is likely that in US law such a posting would constitute fair use, and in the law of other countries fall under one or another exception to copyright. That is a general conclusion, the details would matter. I have not heard of a case similar to that suggested in the question. I find it unlikely that an SE poster would post copyright-protected code without permission, that is valuable enough to be worth an infringement suit, and substantial enough and having enough effect on th market for the original to be outside the protection of fair use. Such a situatiion is, of course, possible, even if unlikely. Note that a cease-and-desist letter is not a court order, and is really only a threat of court action. its only legal effect is to put the recipient on notice, so that continued infringement is not without awareness of the copyright claim. To have legal effect the claimant must actually bring an infringement suit, which is not without cost. | Fair use is always a fact-driven issue, and the details matter. That said, copying a single ad in order to criticism the ad, or comment on it, is very likely to be found to be fair use. If only a section of the ad were shown, to illuminate the point being made, that would make a fair use holding more likely. Or if the entire ad was shown in low resolution's for context, and a detail shown in higher resolution, that would also help. Such an ad is largely factual, not creative in the way that a work of fiction or fine art is, which leans toward fair use. Such a reproduction of the ad will not serve as a replacement, nor harm the market for the ad, which leans toward fair use. The use seems to be transformative, which leans significantly toward fair use. If the whole ad is shown that leans somewhat against fair use, but that does not prevent the use being held to be fair use. As for trademark protection, that is not likely to be an issue. Trademarks are protected against being used in trade (also known as "in commerce") without permission. This means using the mark to label, identify, or advertise a product or service of the same general type as the product the mark is properly associated with. Using the mark, or a similar mark, in such a way that people are likely to be confused into thinking that a product or service came from the same source as the mark, or approved, endorsed or sponsored by the mark owner, is usually infringement. Using the mark to discuss the product or service, and in particular using it as the name of the product or service, is nominative use. Nominative use is not infringement. Using an ad that includes trademarks to discuss the associated product is a form of nominative use. | Sources of Liability Liability can come from: Statute law Contract law Common law Statute Law There may be (almost certainly are) laws in the jurisdiction where Joes Cheap Carnival are operating relating to Work Health and Safety. In general, these laws will impose a non-delegable duty (i.e. one you cant get out of) to comply with certain minimum standards. If operating your software as instructed with reasonable assumptions gives results that lead to an unsafe design then you would be liable in both cases. Contract Law If you are selling this software then you can limit your liability in any way you like providing that the limitation is not unlawful. For example, under Australian Consumer Law (which covers B2B transactions up to AUD$40,000 - how much are you selling for?) you have a non-excludable warranty that the software is fit-for-purpose; so, again, if operating your software as instructed with reasonable assumptions gives results that lead to an unsafe design then you would be liable in both cases. Common Law Only parties to a contract can take action under a contract; anyone you owe a duty of care to can sue your for negligence. A person injured by a machine your software helped design need to demonstrate: You had a duty of care; it would be hard to argue you didn't, You breached that duty; the software was not "fit-for-purpose", There was a factual cause in a "cause and effect" sense; 'but for' your software there would have been no loss, There was a legal (proximate) cause; you may be able to raise something here, if your software was used incorrectly by an engineer, your breach may be too distant Harm; the person must suffer real loss. The only plausible advantage of making your software open source is that you are showing a greater amount of care by allowing your algorithms to be sort-of peer reviewed. This is not a legal shield I would really like to depend on. TL;DR Nothing can stop someone suing you - if they want to sue you they can sue you. Your best defence to a lawsuit is to demonstrate that you did everything a reasonable person could do without the benefit of hindsight Do you really think publishing your code is "everything a reasonable person could do"? You would be far better off: Taking out professional indemnity insurance Validating you algorithms thoroughly Engaging an independent third-party to validate your algorithms Developing proper and thorough testing procedure for your software Testing it in-house Engaging an independent third-party to test it Thoroughly documenting your software including all the assumptions along with the domains where they are valid and invalid. |
How does the issue of premeditation factor in when the death penalty is considered for felony murder? How does the fact that felony murder is at least in principle murder without premeditation, factor in when the issue of the death penalty is being considered as punishment for the crime? Surely the death penalty should only be used on the most heinous of murder cases and not on those who are in some ways an accidental death. | While felony murder was an offense originally invented to single out more culpable murders from less culpable murders, with only the former punishable by death, as opposed to imposing the death penalty on everyone convicted of murder, it has evolved into a means of convicting someone of first degree murder who otherwise would not have been guilty of the crime of murder (or even conspiracy to commit murder) at all. In a typical felony murder statute, everyone who participates in a felony designated in the felony murder statute that results in a death at the hands of any participate, without regard to premeditation or involvement in the murder itself, is guilty of felony murder, rather than merely the underlying felony crime. Typically, felony murder is one way to be guilty of first degree murder and typically the punishment for first degree murder is either life in prison without possibility of parole, or the death penalty (if the state has death penalty), as determined in a second phase of the jury trial after the guilt phase is completed. At the death penalty phase, following evidentiary presentation by the prosecution and the defense of aggravating and mitigating factors, in addition to the evidence presented in the guilty or innocence phase of the trial (at which the same death qualified jury convicted the defendant), the jury (except in Nebraska where a panel of three judges makes this decision, and in Montana where a sole judge makes this decision) must determine if the aggravating factors in the case outweigh the mitigating factors, if any. The fact that the defendant (now a convicted murderer) was a knowing participant in a felony is typically an aggravating factor. The possibility, if established, that the defendant (now a convicted murderer) was not expecting that violence would occur and did not participate in the killing would be a mitigating factor. The Supreme Court of the United States has held that the Eighth Amendment to the United States Constitution does not prohibit imposing the death penalty for felony murder. The Supreme Court has created a two-part test to determine when the death penalty is an appropriate punishment for felony murder. Under Enmund v. Florida, 458 U.S. 782 (1982), the death penalty may not be imposed on someone who did not kill, attempt to kill, or intend that a killing take place. However, under Tison v. Arizona, 481 U.S. 137 (1987), the death penalty may be imposed on someone who was a major participant in the underlying felony and acted with reckless indifference to human life. So, the constitutional standard for imposing the death penalty for felony murder is higher than the constitutional standard for imposing the default life without possibility of parole (LWOP) sentence for felony murder. Keep in mind also that following a jury imposition of the death penalty that this decision will be upheld if any reasonable jury could have found facts sufficient to impose the death penalty by finding some evidence to be credible and other evidence to be less credible, whether or not that was the most plausible interpretation of the facts and whether or not this was actually the reason for the jury's decision. Also keep in mind that the death qualification of the jury (i.e. striking for cause from the jury pool anyone who is categorically opposed to imposing the death penalty), means that juries in cases where the death penalty is an option are systemically biased in favor of the prosecution in the process of how the judge guilty or innocence, and also, in their evaluation of aggravating and mitigating factors in a case. | (Lots of digging) https://www.revisor.mn.gov/statutes/cite/609.341 The above is a series of definitions for the purposes of criminal statues. Way down (noting that the page notes that this section was amended in 2021, so almost certainly in response to this case, given the amount of attention it has received), as subdivision 22, we have the definition: Subd. 22.Predatory crime. "Predatory crime" means a felony violation of section 609.185 (first-degree murder), 609.19 (second-degree murder), 609.195 (third-degree murder), 609.20 (first-degree manslaughter), 609.205 (second-degree manslaughter), 609.221 (first-degree assault), 609.222 (second-degree assault), 609.223 (third-degree assault), 609.24 (simple robbery), 609.245 (aggravated robbery), 609.25 (kidnapping), 609.255 (false imprisonment), 609.498 (tampering with a witness), 609.561 (first-degree arson), or 609.582, subdivision 1 (first-degree burglary). Thus, it looks like your Minnesota government website is not complete. However, the above seem like the most likely crimes to warrant inclusion on the register. The prominent reason in this instance is the registration will hamper Chauvin from regaining employment as a police officer in Minnesota or any other state. Where I live, there are reports of "problematic officers" being "shuffled" between departments; this would explicitly prevent that. | 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. | 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. | Double jeopardy does not apply to different offences [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb... The Supreme Court has held that it means what it says - murder and rape are different offences and so the double jeopardy clause is not triggered. However, if an offence requires that the same elements (or a subset of them) be proved, then they are the same offence. So, for example, both murder and rape normally incorporate the elements of common assault - a person acquitted of either murder or rape cannot subsequently be charged with common assault. Further, the principle of res judicata applies to criminal cases as well as civil cases. Therefore any fact or issue of law that was decided in the first trial cannot be reagitated in the second. | They both can be found liable, but not by using the but-for test. Suppose that person A and person B each independently negligently discharge firearms and that each on its own would be sufficient to kill person C. Is it true that, "but for the actions of A, C would still be alive?" No. Is it true that, "but for the actions of B, C would still be alive?" No. Using the but-for test would not be able to assign liability to either A or B. "But for" is not an obvious phrasing for non-native English speakers. It's the same as asking, "If it were not for the actions of A, would C still be alive?". However, courts and juries are not limited to using the but-for test for causation. See Corey v Havener, 182 Mass. 250 (1902): It makes no difference that [...] it is impossible to determine what portion of the injury was caused by each. If each contributed to the injury, that is enough to bind both. | Just to expand on what others have answered: It's important that each crime is also given its own sentence as it's possible that prisoners can be cleared of crimes if new evidence is found. This could make a significant difference to the amount of time the prisoner is serving. For example if a person was convicted for kidnap, murder, and stealing a car, all adding up to a total of 120 years, but later was found to be a car thief who was in the wrong place at the wrong time, and proven innocent of the kidnap and murder charges, that person would then only face the sentence from the car theft. If one life sentence had been issued for the three crimes, a new sentence would have to be worked out. | I do not know what actually happened to anyone in the aftermath of this incident, but it is unlikely that there is a basis for civil or criminal liability in this case. Criminal liability does not generally attach to negligent conduct except in cases of homicide or criminally negligent motor vehicle operation. But, this case appears to have involved mere negligence. It appears that somebody made an honest mistake rather than acting recklessly or intentionally to cause harm. Governmental entities and officers of governmental agencies acting in their official capacity have immunity from liability for negligence except in some vary narrowly defined areas (e.g. failure to maintain government buildings, medical mistakes in government hospitals, and car accidents) which seem unlikely to be implicated here. But, it seems likely that the responsible parties were all governmental entities or officers of governmental agencies acting in their official capacities. So, it is unlikely that there would be civil liability either. Needless to say, however, this does not look good on the job performance record of any civil servant below the Governor (who doesn't get evaluated in that way) when being considered for promotion, demotion, unfavorable transfers or even termination of employment. Obviously, if new facts were uncovered and this was actually more nefarious than it seems, and this hidden truth was discovered, there could be a basis for civil or criminal liability. But, if this was the case, it would have made headlines. |
Why is it against the law to practice law without a license? I have heard that it is against the law. A message reads as follows describing this: Can we have an investigation of the attorney for practicing law without a license? I asked my mother and she said that it is against the law to practice law in a professional way without being a certified lawyer. I checked the internet and it turned out to be true. Why?* | Why is it against the law to practice law without a license? Most, if not all, jurisdictions have decided to implement a law that requires such a licence (or similar) to ensure that practitioners are properly authorised, regulated and competent in the best interests of the administration of justice and to maintain a high standard of professionalism. Any shortcomings can then be addressed either by law or the relevant regulating body. | Basically: what Flup said in his last paragraph (and so upvoted accordingly). Every one of the practitioners you named has an undergraduate degree from the UK, and an undergraduate degree from Canada. This, presumably, is because you're not permitted to practise law in most jurisdictions unless you have some kind of qualification in the law of that particular jurisdiction. The laws of each country, and moreover, the way in which cases are decided and in which each country's legal system works, varies so tremendously that you need to study the particulars for each jurisdiction before you can practice there. Regarding Canada: from this site: You must complete a Bachelor of Laws (L.L.B.) program or Juris Doctor (J.D.) program in order to qualify for bar membership in any Canadian province or territory. This generally takes three years to complete. In England and Wales, you can now take a law conversion course in place of an undergraduate law degree as a first stage towards being qualified. I suspect, however, looking at the dates of the judges you list, that the law conversion course wasn't an option at the time they got their qualifications, so their only option was a full undergraduate course. So the answer is: they each have two undergraduate qualifications, one from each jurisdiction, so that they could qualify to practise law in both jurisdictions. | There are three answers here. First, as is common on this site, you are using the term, "legal" and "illegal." Those are not legally meaningfully terms. A good lawyer won't use those terms to mean allowed or disallowed. We talk in terms of potential civil or criminal liability, or other sanctions and consequences. To say that something is "legal" does not communicate much. Second, all contracts are governed by a duty of good faith. That means that you cannot try to "trick" someone with the terms of the contract and expect to enforce that contract against them and you cannot try to skirt your obligations by finding a tricky form of compliance not within the mutual understanding of the agreement. As with all things, defining good faith is not easy, and depends on the specific context of a situation. It is worth distinguishing between the duty of good faith, and the duties one owes to a fiduciary; good faith is surely far less, but nevertheless still meaningful. Third, a defense to non-performance of a contract is that the agreement as written is unconscionable. A contract that is a grossly unfair deal where the contract was not actively negotiated (i.e. Blindly signing a bad form contract), may fall under this category. Note: I am not your lawyer; this is not legal advice; contact a licensed attorney in your area; do not rely on my statements; I merely am providing a general answer that is academic in nature. | Without a license, you have no right to copy or distribute someone else's work. Suppose you copy or distribute against the terms of the license. Either you didn't agree to the license, and therefore had no right to do as you did; or you did agree and still violated the terms of the license anyway. By the law of the excluded middle (accepted or not accepted), you infringed either way. | Was the case Sealed? Or is it considered to be Private? Those are two different cases. I was not able to find any laws regarding sealing, or expunging records of Name Changes, but was able to find the Utah Law for Criminal Records. I can only assume they draw from one another. All that being said, assuming your whatever case is sealed, then Some records are sealed. In these kinds of cases, even information about the existence of the case is not publicly available. A person seeking access to a sealed record must petition the court for permission to unseal the records. Rule 4-202.03 states that, ....no one may access a sealed court record except by order of the court. A judge may review a sealed record when the circumstances warrant. From that I can assume that, The records are not public. The records will not show up in a routine check The records will be known only if a there is a court order. Comparing it with the Expungement Act, Continued Use of Sealed Records After sealing, BCI continues to index and maintain all expunged records of arrests and convictions, but the records will not be released to the public. BCI will not divulge any information contained in the expunged records to any person or agency without a court order, unless authorized by statute to do so. Upon request, the following organizations may receive information contained in expunged records: the Board of Pardons and Parole Peace Officer Standards and Training federal authorities, unless prohibited by federal law the Division of Occupational and Professional Licensing and the State Office of Education Both cases above require a court order to get that seal record information. However, from what I gather only expunged criminal records can be access upon request by the Division of Occupational Licences. Bottom line, it sounds like you are safe to mark is no previous name, but you may lose your license in the future if something goes south. I will recommend you to get a professional look into the word of the law and provide you with a written statement of the actual law. Another thing you can try is write to the court who sealed your case, present them the situation and explain what you have found so far, and ask for guidance. | If you state, to a third person, that Joe has performed a criminal act then that is defamation and you can be sued. Unless it is true. However, if you are relying on the truth as a defence you will need to provide evidence that it is. At the moment you lack: a criminal conviction of Joe any physical evidence against Joe any personal knowledge that Joe has committed these acts. All you have, is second hand rumours that this has happened to 5 women, some of whom have reported it to you in person. This is called hearsay and it is not evidence. It may be true, it probably is true - you can't prove it's true and in court, that's all that matters. If you were sued your only possible defence is to call these women to give the evidence they are unwilling to give - are you willing to betray their confidence to that extent? | There are two senses in which this action might be "against the law". One is that it violates some specific (statutory) law, the other is that it violates some common-law principle especially pertaining to contracts. We can quickly dispose of the possibility that you have violated a statutory law: there is nowhere in the US where you are compelled by law to do anything about foreign language classes (take, avoid, pass, whatever). Your university has the right to establish and enforce whatever requirements it deems proper for awarding degrees and credits, and has the legal power to act broadly in providing an education. Let's say that they have stated a requirement that everybody must take 2 quarters of some foreign language, then if you don't do that, they are entitled to withhold the degree from you. Whereas, if you had satisfied all of the requirements for the degree, then they could not arbitrarily withhold the degree -- it is now a thing that you have a property right to. Just as the university has the right to impose requirements (with appropriate advance notice), they also have the right to suspend requirements, generally or according to circumstances (as long as it is not arbitrary). A typical actual example is "that class hasn't been taught for 3 years". In this case, the requirement was not suspended, but an agent of the university acting within the scope of their appointment judged that the requirement had already been satisfied in your case. The university administration might not actually approve of the professor's choice and might change their rules or sanction the professor (at my university this was common practice, albeit never officially sanctioned), but it is the sort of thing that is within the scope of the professor's job (to judge that you have satisfied the "bottom-line" requirements of the course). Since there was no wrong-doing on your part and you acted in a good faith belief that the professor's actions were "allowed", then the university would be buying itself a pile of legal trouble if it were to rescind your degree. | united-states "I know is it illegal for authorities to question a suspect when their lawyer isn’t present" This is not really true, at least in the US. The suspect must explicitly ask for a lawyer. Even saying "Maybe I should talk to a lawyer" (ie Davis v. U.S. (512 U.S. 453 (1994)) isn't enough, they have to say "I want a lawyer". Until they invoke the right, an officer can question all they want (provided they were informed of these rights, except for certain situations which are relatively complicated. See Miranda Rights). So no, an officer questioning you without a lawyer is neither a crime nor illegal. Once you invoke your Miranda right though, they have to respect that. With or without your lawyer, this is called interrogation. You can filter your responses through a lawyer, or waive your right to a lawyer and answer directly. |
Leak Damage: Can sue for damages covering only damaged floor or floor in the entire property? Apartment owner B, claims a leak from apartment owner A above, supposedly damaged a very small portion of B's hallway floor. Owner A offered to replace the hallway floor. Instead owner B insists that owner A must replace entire flooring in the entire apartment since B claims the new portion of the floor in the hallway, will not match 100% cosmetically with the rest of the undamaged apartment floor. Can owner B sue for damages to replace all of the flooring in the entire apartment even though only a very small isolated portion was damaged? And if so, what are the chances of B winning? Jurisdiction: US, Florida | Both outcomes are possible. A's insurance company would resist full replacement, so B would probably have to sue and prove that full replacement was necessary. Since the basic idea behind compensation is making the person whole after having been harmed, and what is the harm in a more limited repair job? The jury would contemplate all of the details regarding B's apartment. Then it matters just how crisp the floor was originally, and how aesthetically offensive a mere 99% match would be. It would not hinge solely on B's self-serving statement that he would not accept less than 100% match. But the award would not be limited to "the cheapest possible repair". | There's a lot of variables here, as many leases are built in different ways within the leeway allowed by law. You will want to contact a local lawyer to see how you can mitigate the damage to yourself, and contact your landlord and see if you can re-negotiate the lease. If the landlord doesn't want to re-negotiate, you're probably facing eviction if you can't come up with the full rent by yourself; many leases don't allow non-related adults to live on the premises if they're not on the lease (this can also result in eviction). However, your roommate will also get an eviction record and be responsible for any damages if the lease survives long enough to cause an eviction. Actually having a random person move in from Craigslist might also cause your roommate to suffer additional liability if they're not allowed to sublet their lease agreement, which many leases do not allow (landlords like knowing who's living on their properties). Having them move in might cause both you and your roommate to be evicted. You probably don't have any rights to sue your roommate until actual damages occur (in other words, after you've already been evicted). You should speak with your landlord as soon as possible to get a new lease. An eviction record will cause problems for your roommate as well, so you might urge them to consider staying long enough to get things sorted out legally. When you ask your landlord, simply ask something like, "My roommate wants to move out. What are my options?" They will tell you what they are willing to accept. | You would report unpermitted lock replacement to the home owner. The building code regulates new construction and renovations, and is not a requirement of any and all residences. This seems to correspond to a "secondary suite", which is supposed to be registered with the city (if it is allowed in your city). Here is a link for Vancouver, for instance. Such suites are supposed to be registered and inspected, the inspection being carried out by Development, Building and Licencing: By-Law Compliance & Administration (a division of the city government). This article discusses some of the legal problems that can arise from an illegal secondary suite, however the penalties would land on the property owner, and he may not have approved of this subletting or the basement suite. A less-nuclear first step would therefore be reporting it to the property owner. | There is no real answer to that question at this point. If on filed such a suit, it would probably be under a negligence theory. You would sue: Forbes, because they're the website the user visited? The ad network that provided a vector for infection and didn't properly check their content? The makers of the ad, because they made the ad with malicious intent? and anyone else who might have been negligent. You then have to prove they were negligent. Can the user sue the responsible party for damages? You can sue anyone for anything. The problem is winning. Does it make a difference whether the user has taken due diligence with software updates and patches? It might. Contributory negligence would be an obvious defense to such a suit. | This is a very difficult situation. Discrimination is not the right frame within which to view this as your roommate doesn't have authority over you the way that an employer or landlord would. The basic legal issue would be whether your roommate is constructively evicting you from you residence without valid justification for doing so. And, the answer might very well be yes. But, even if that is the case, since the roommate is not an agent of the landlord, your roommate's actions probably don't relieve you from your duties under the lease. So, your relief might be to vacate the premises and then to sue the roommate for the rent you have to pay without receiving anything in return. This is expensive relative to the likely returns, and there is no certainty that you would win or that you would get your attorneys' fees if you prevailed. This would also be a slow solution taking several months at a minimum. Or, in the alternative, you could leave and cease paying the rent, forcing the roommates who remain to pay it if they don't want to be evicted as they are probably jointly and severally liable for the rent. (If they sued you for your share of the rent, constructive eviction by one of them would probably be a good defense.) The landlord could sue all of the roommates if they don't pay, causing them to be evicted and you to be on the hook for any rent or other amounts that they owe, including the landlord's attorneys' fees (and hurting your credit). You could probably cross-claim for indemnification of any amounts you were required to pay in that lawsuit against your roommate. But, this too would be an expensive, complex and slow solution if the remaining roommates don't decide to simply keep paying the rent. It would be very hard for you to evict your problem roommate for breaching the lease by denying you your equal rights to the premises, since you are not the landlord, although it isn't impossible that a court would allow this relief and it would be relatively quick. It would also leave open the question of who was responsible for the evicted roommate's rent. The remaining roommates would be liable vis-a-vis the landlord, and would face eviction if they don't pay, and probably couldn't get a new roommate without the landlord's permission. And, the evicted tenant would probably remain on the hook vis-a-vis the landlord, but might not have a duty to indemnify the roommates who stayed. Also, in any lawsuit where you sue the roommate, the roommate would likely counterclaim against you for non-disclosure of HSV2, and while that would probably not prevail in the end, it would make the legal process hellish for you. The trouble is that there are really no good solutions that you could easily impose on them. A mutual agreement between the landlord and the other tenants to release you from the lease so you could find somewhere else, or to release the problem tenant from the lease so that you and your other roommate could replace that person, is probably the best solution, but that takes mutual agreement of multiple parties. | 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). | Michigan law say nothing about landlord entry, so whatever it says in the lease is what is allowed. Various sources like this comment on the lack of such statutory regulations. There does not appear to be any relevant case law for Michigan which impose restrictions on a landlord's right to access a rental. Since there is no statutory or case law restriction on landlord's right to access his property, landlord's agent would have the same right to access. That would mean that if the listing agent were authorized by the landlord to enter, then the agent could enter, and it would not be necessary for the landlord to accompany this agent whenever entry was needed. That does not mean that a "listing agent" that happens to work with a landlord has an independent right to enter the landlord's property. The same would go for repairmen. It is actually not clear to me whether there could be blanket permission for any and all with access to the lock box to enter, since pretty much any realtor can enter a house for sale, subject to whatever the stated limitations are, and they don't call the owner for each entry. I suspect that one would not have legal grounds for imposing a particular additional restriction on a landlord's right to access and permit access to the property, since there's no overriding statute, and restrictions on landlord access mainly derive from statutes. | australia A tenant must return the property in the state it was given subject to fair wear and tear Fair wear and tear represents the deterioration that occurs in normal use - so it includes wear on a carpet from walking on it but not wear from having a horse walk on it (unless you’re renting a stable but who puts carpet in a stable?) If the wall is in the condition that it was given to you but for the normal deterioration over time, then you are not liable to fix it. As for who has the onus of proof, since the landlord is the one claiming the entitlement, they have to prove it. However, the burden is only the balance of probabilities. So, if there is a fist shaped hole in the plaster wall and there is no evidence it was there when the tenant moved in, then, it’s more likely than not that it happened on the tenant’s watch and they have to fix it. Because putting fists through walls is something that residents are more likely to do than landlords. However, if there is a painted wall and the initial application of the paint is defective, then absent evidence that the tenant painted the wall, it’s more likely than not that the landlord did it. Because painting walls is something landlords are more likely to do than residents. |
Can a landowner charge a dead person for renting property in the U.S.? Can a landowner charge a dead person for renting property in the U.S.? Let's say my grandma died 4 months ago and the landowner only discovered that she was dead just now, can the landowner charge my grandma for 4 months of rental in the United States or is this illegal and can only force her to pay the rent of the month before she died? | A person's contractual rights and obligations remain valid past their death, so if the landlord dies, their heirs cannot then kick out the tenant, and likewise if the tenant dies, their estate still is liable for unpaid past and future rent. That means for example that the person cannot be evicted, the landlord cannot take their property or enter without permission save for the standard emergency conditions. The tenant (or their estate) remains liable for rent until the lease terminates. If the lease has a clause to the effect that the lease terminate at the end of the month when notice of death is given, that defines when the tenancy ends and therefore when rent isn't due – relevant to a yearly lease, and the question of whether the estate would be on the hook for a full year of rent (it also depends on whether subletting is allowed). | What kind of procedures would be necessary to undo the legal death? What happens to his property (note: the reanimated character is a young man with no written will)? If he's a renter, how long will it take for his landlord to push all his stuff out and welcome a new tenant? How much paperwork does he have to fill out? If the person is on the autopsy table, while he may have technically been legally dead, the person's death certificate has probably not even been issued yet, since normally an autopsy is done, in part, to determine a cause of death for purposes of preparing a death certificate. Normally, an autopsy is only prepared when the cause of death is uncertain or needs to be documented for legal reasons (e.g. an accidental or potentially criminal death or one that is just unexplained), and the need for one postpones the preparation of a death certificate. If the cause of death is self-evident and there is no indication of foul play, an autopsy isn't done and the preparation of a death certificate proceeds more quickly. In other words, while he may be "legally" dead (defined as discontinuation of the function of certain bodily processes like brain activity and heartbeat and breathing), he very likely isn't yet "bureaucratically" dead. You can be "legally" dead days before anyone even discovers that you have died, with the time of your death determined only retroactively, but that doesn't have any practical effect until someone discovers it and it makes its way through the bureaucratic and court process. It takes a few days after a death for a probate proceeding to establish death, heirship and the validity of any will (many states have a 120 hour minimum waiting period after a date of death and most autopsies are within 72 hours). Even if a probate proceeding had been commenced, a simple affidavit or notice that someone was not, in fact, dead would cause the case to be summarily dismissed and it is unlikely that much would have happened in the court process since then. With older people, one of the fastest agencies to act is the Social Security Administration discontinuing benefits. But a younger person wouldn't have gotten those to start with, so that wouldn't be a factor. Life insurance companies normally won't pay until a final post-autopsy death certificate with cause of death is in place (so they can look for fraud in the life insurance application relative to the cause of death stated). It would be very usual for a landlord to take action sooner than the month after learning of the death, and often the estate will keep in a lease in force much longer. Next of kin may have removed some valuables prior to any official declaration, and while most people would promptly return them upon learning of the "mistake", a few items might not be recovered. The final death certificate would probably never be prepared. A preliminary death certificate might be quashed as erroneous and not filed with the Vital Statistics Department of the State Department of Health, by the preparing party, through a simple, oral, in office instruction to the person in the coroner's office who handles those filings. Since there isn't a formal judicial declaration of death or a final death certificate, simply informing an agency or person that received a preliminary notice that it was in error, perhaps by letter or email, would suffice. Even if a final death certificate had just issued, the person who filed it could probably fill out a simple correction form so soon (probably just a matter of hours) after it was filed. It wouldn't be that disruptive. The messy cases are when there has been a legal declaration of death and then months of actions have been taken in reliance on the determination that someone is dead. | If a trespasser openly and notoriously, exclusively and continuously possesses your property by building a fence on your land for the right time period, they automatically own the land. It still takes a court proceeding to record the passing of title (the trespasser has to prove in court that it is legally theirs). The trespasser would also have to establish that the recent survey was correct (survey errors do exist): was there an earlier survey in connection with the fence that established different boundaries? If (as it turns out) this has become his property, he abstractly has title to it, but only you and he know about it. The trespasser may have an interest in officially changing the property description, because it will officially increase the size of his lot and thus the value of the house+land. This also will increase their tax burden (while decreasing yours). The county has no knowledge of the fence: they go off of the official record, which says that you own that wedge. You also may have an interest in changing the property description, primarily to reduce your tax bite. There could also be issues with your resale of the property, since a mortgage company may require a survey of the property. Whether or not that is bad is hard to say: the consequence could be that the buyer is alerted to the fact that the lot is smaller than advertised and so on; in the current market I doubt anyone would care. If the fence goes away and you start using the land, then it will officially revert to you after a while. If you catch the party and complain within 10 years, you may recover the property (RCW 7.28.010). The limitations statute says that The period prescribed for the commencement of actions shall be as follows: Within ten years: (1) For actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appears that the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action. That ship has (apparently) long since sailed. There is a different law pertaining to "Adverse possession under title deducible of record" which shortens the limit to 7 years, which is even less useful to the original owner. RCW 7.28.070 also shortens the time limit for an adverse possession case, to 7 years: Every person in actual, open and notorious possession of lands..who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be ... the legal owner of said lands There is another (more recent) tax-related provision, RCW 7.28.083. (1) A party who prevails against the holder of record title at the time an action asserting title to real property by adverse possession was filed, or against a subsequent purchaser from such holder, may be required to: (a) Reimburse such holder or purchaser for part or all of any taxes or assessments levied on the real property during the period the prevailing party was in possession of the real property in question and which are proven by competent evidence to have been paid by such holder or purchaser; This does not require them to have paid taxes, it say that the victor in the dispute may nevertheless be ordered to reimburse taxes paid by the other party (assuming the other party has paid the tax). So there is some chance of getting the taxes back. The reimbursement is at the court's discretion (continuing that section): (2) If the court orders reimbursement for taxes or assessments paid or payment of taxes or assessments due under subsection (1) of this section, the court shall determine how to allocate taxes or assessments between the property acquired by adverse possession and the property retained by the title holder. In making its determination, the court shall consider all the facts and shall order such reimbursement or payment as appears equitable and just. One should also pay attention to the last provision in that statute: (3) The prevailing party in an action asserting title to real property by adverse possession may request the court to award costs and reasonable attorneys' fees. The court may award all or a portion of costs and reasonable attorneys' fees to the prevailing party if, after considering all the facts, the court determines such an award is equitable and just. That means that the victor can request the loser to pay his attorney's fees. This is delicate math, balancing the chance of recovering some paid taxes vs. paying the other guy's costs. You could try calling the assessor to find out how much the decrease in lot size might net you (the land vs. improvement proportion of taxes is all over the map in KC, easily ranging from 60% to 250% depending on year). One additional feature of adverse possession is that it must be "hostile", i.e. without permission. If a neighbor builds on your land, you can explicitly give them revocable permission (to avoid "no you didn't" arguments, explicit and revocable written permission, signed by the neighbor, would bar an adverse possession claim). This raises an interesting question, to which I don't know the answer. Suppose the prior owner gave permission to the fence builder, and did not demand the removal of the fence when he sold the property or right after the neighbor sold his property (there was only on act of granting permission). Does the clock start from your acquisition of the property (whereupon the element of hostility is satisfied)? Or does it start from the point where they acquired the property and were in hostile possession of the land (I would bet a quarter that that's the answer). If (or, given that) the fence was moved further onto your property more recently, there is a chance to recover the newly-taken piece of land. If you grant them revocable permission to build a fence on your property, you would not be subject to an adverse possession taking for the newly-taken land. If at some point you tell them to tear down the fence and they refuse, you can sue them and the court will (almost certainly) order the removal of the fence. The neighbor might then initiate an action to quiet title on the originally-taken piece of land, so you'd be back to where you were 4 years ago. From a practical perspective, this is well-worth the small amount of money involved to consult with an attorney to get legal advice. The legal matter probably will not go away quickly, and they may be presently inclined to settle in a manner more in your favor. | Bizarrely, it depends on where you live in Kentucky. There is a law, the Uniform Residential Landlord and Tenant Act (KRS 383.500 to 383.705) which states limits on residential leases (otherwise, the matter would be governed by the terms of the contract and common law). The state didn't enact those laws as enforceable in the state, it "made them available" for cities, counties and urban-county governments to adopt unmodified (or not). So it depends in part on whether your locale adopted the law. Assuming it did, in the definitions, (13)"Security deposit" means an escrow payment made to the landlord under the rental agreement for the purpose of securing the landlord against financial loss due to damage to the premises occasioned by the tenant's occupancy other than ordinary wear and tear. (emphasis added) That would mean that they can't take the cost of carpet cleaning, painting etc. out of your security deposit. §383.595 (again, if applicable) states the obligations of the landlord, so he must Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by him So it depends on whether the URLTA was enacted in your jurisdiction. This page indicates where that is the law, and also urges you to read the lease. | It would be more common to leave a separate direction regarding the disposition of your body in a document other than your will, entrusted with your next of kin. This is because a dead person's body is usually disposed of in less than a week following death, but a determination that a will is valid and effective often has a minimum five day waiting period from death and can take months. Often, this direction regarding your own remains would not be phased in terms of a sale or gift. Instead, it would usually be a "direction" about their disposition. Someone else's remains would be property governed by a will. But, we don't normally think of body parts of a recently deceased person as becoming property, rather than a person, until they are processed in a way that makes them not a biohazard. This would not be the case, obviously, immediately upon your death when the direction regarding your remains is intended to take effect. Also, while selling already processed bones can be permissible, selling organs for transplantation is generally not permissible, although there can be reimbursement for any medical costs or similar out of pocket expenses incurred in connection with that process, again reflecting the distinction between an unprocessed dead body which is often not considered property, and a processed dead body part which often is considered property. | Transfer of title must eventually occur, otherwise the property was never willed to another because the willing of the property is perpetually incomplete. One can place conditions on the transfer of title, but those conditions cannot last forever. They can last quite long, but there is a rule against perpetuities, especially created due to clauses constraining the transfer of of title in wills. This rule applies to a person who is transferring title, with a conditional clause that bars the full use of the property. If such a clause is limited, then it does not exist in perpetuity. The rule specifically addressed the will's call to reassign title if the transfer's clauses were violated. The maximum limitation historically was the lifetime of some person alive when the will was executed, plus 21 years, to permit an unborn grandchild to inherit. The reason this rule came about was due to the will of Henry Frederick Howard, the Earl of Arundel and Surrey. It effectively left the dead Earl managing his estates after his death, shifting properties that were bequeathed, based on the possibility of a "more suitable" heir being born after the Earl's death. This will eventually created the most complicated bit of common law that exists to date. In my totally amatuer attempt to summarize it; it is a combination of at least two ideas: a "dead hand" (deceased person) cannot guide the activities of the living forever transfer of property (title) must eventually be fully transferred Exceptions to the rule exist for conditional transfer of title back to the person who originally owned the property, but these exceptions cannot apply when the transfer is to a third party. This clause in Evan's will, "If the state violates this clause, the property is to return to the heirs of the estate of Evan Carroll." would only be enforceable for a limited amount of time. First, the Estate of a dead Evan Carroll is not a lasting entity, eventually his estate would be closed. Finally, the transfer to the "heirs" of Evan Carroll would be a transfer to a third party, subject to the rule. Some states interpret their protections against the rule in different ways; but, nearly all states that have revoked the rule have done so by making a new rule (often with easier to manage time limits). A handful claim to have revoked the rule; but, they use other legal approaches to prevent this problem from occurring. Texas has extended the rule to 300 years while New South Wales, puts the limit at 80 years. Texas's extension seemed to be primarily to permit trust funds to operate legally long after the person establishing it had died. Consider what happens if such a rule doesn't exist. The title of the property could never be fully transferred, because the clause could never be proven to not have been violated. This would dramatically devalue the property, and clog the courts with suits claiming property held by one family for 100 years isn't theirs because of some evidence just uncovered about what happened 60 years ago. It also would massively complicate the selling of the property, because a clean title could never be proven. Note that this rule would have no bearing on a covenants not tied to the property's transfer of title. This rule even made it into a recent Disney case, which is explained far better than I can by the Legal Eagle, Devin James Stone | With testamentary succession, the matter is simple: do what the will says. Religion aside, the Indian Succession Act, 1925 says As to what property deceased considered to have died intestate.—A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. Illustrations (i) A has left no will. He has died intestate in respect of the whole of his property. (ii) A has left a will, whereby he has appointed B his executor; but the will contains no other provision. A has died intestate in respect of the distribution of his property. (iii) A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the distribution of his property. (iv) A has bequeathed 1,000 rupees to B and 1,000 rupees to the eldest son of C, and has made no other bequest; and has died leving the sum of 2,000 rupees and no other property. C died before A without having ever had a son. A has died intestate in respect of the distribution of 1,000 rupees. Then other acts address intestate succession, such as the Hindu Succession Act. If we suppose the will only identifies an executor, then w.r.t. distribution the Hindi Succession Act (etc.) govern the distribution. Those acts are ostensibly specific enough that there is no discretion: except, the law only addresses portions of the estate, and not very specific matters such as who gets the watch and who gets the computer. Indeed, there is a reasonable chance that property is not wholely transferred to a beneficiary, instead the beneficiary gain an interest in the property. There are also related provisions regarding an heir's transfer of his interest in property where other heirs have a "right of first refusal". So in general, the laws of intestate succession remove discretion from the equation. A will could, however, empower an executor to make a decision. The provisions of the will must be in writing. "Challenging" a will is a specific legal process, not the same as "asking about a will". If a legal petition has been filed, the will is challenged. If a person asks a lawyer "is that really legal; what does that mean", that is not a challenge. | We have no way of knowing when this happened, but it is probably a fact, recorded some time in the past. Utility companies very frequently obtain a right-of-way (easement) which gives them certain rights to your property. Typically, this happened a long time ago when a previous owner agreed. As for gas pipelines, that typically includes "don't plant trees" restrictions. The easement is usually recorded in the county office where deeds are filed. The legal basis is generally "because you agreed, or some previous owner agreed". You can get a copy of the easement to see if "no trees" is actually part of the agreement. If yes, no point in arguing, if not, you could hire a lawyer if they are demanding that they are threatening you. They are allowed to be concerned and to ask you to cut trees regardless, but if it's not required by the terms of the easement, you can say "No, I'd rather keep my tree". |
Does pointing a gun at someone constitute attempted murder? Is pointing a gun at someone tantamount to attempted murder in Kenya? If not, what would it most likely be? | Assuming these are common law crimes (Kenya is a common law country - sort of) or statutory crimes that have codified common law crimes without substantially changing them. It is not attempted murder - this requires an intent to kill. Pulling the trigger would have that intent, pointing it doesn't. It is assault if it puts the victim in fear of immediate harm (pretty sure it would). There are probably some statutory firearms offences too. | None, if the intention is merely trespassing, unlike burglary which requires intent to steal, commit criminal damage, or inflict grevious bodily harm or if the building is a protected site - neither of which isn't evident from the question. Note, for both offences, the actus reus is entry - there is no requirement for any form of "breaking" Further to ohwilleke's comment, unless the lock is damaged or destroyed etc, then there is no offence of criminal damage | Examples Detention: A person suspected of a felony can be detained at gunpoint (and, in many jurisdictions, subject to "citizen's arrest"). A more clear example is when you encounter someone committing a felonious assault. You can brandish your gun and order them to stop. If they do stop, then you cannot shoot them unless there is no alternative to preventing them from inflicting grievous bodily harm on another. Defense: If you reasonably feel that another person poses a real and grievous physical threat, you can brandish a gun in defense. A common example is the slight woman followed into a vacant alley by a large man. She can brandish a gun to keep him at bay, but she cannot shoot him if he is not making explicit threats and (supposing one accepts the "Tueller rule") makes no aggressive motion within 21 feet of the woman. Law One helpful explanation of the distinction, by a MO attorney citing the MO Supreme Court: While deadly force can only be used to meet the threat of deadly force, the threat implied by brandishing is justified by a low level threat. “When a person has reasonable cause to apprehend on the part of another a design to inflict a great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished he is justified, and has the right, ‘to avert such apprehended design,’ and in proper circumstances the right of attack may be essential to the right of self-defense.” More detailed analysis can be found of California Penal Code 417 (California's law against "Brandishing," which is similar to brandishing laws in most states): [I]f you were lawfully defending yourself or defending another person, California's self-defense laws will excuse your otherwise criminal act. You lawfully act in self-defense or in defense of others when you reasonably believe that you or another person is about to suffer imminent harm, and you fight back with no more force than is reasonably necessary to defend against that danger. I.e., sometimes it's enough to say, "Stop!" But sometimes it's necessary to present a gun for the bad guy to get the message. Additionally: Simply drawing or exhibiting a weapon isn't enough to justify a conviction for 417 PC. In order for prosecutors to convict you of brandishing a weapon or firearm, you must do so in a rude, angry, or threatening manner. The same law review provides illuminating comparisons with the related offense "Assault with a Deadly Weapon" (ADW — CA 245 PC). | It is almost certainly fine as long has you have a "good reason". The police website give a list of examples when carrying a knife would have a "good reason" (like a chef getting a set of knives out of her car, for example). Likewise, a plastic knife isn't considered a weapon as long as you don't start threatening people with it. As long as you don't start swinging it around, you should be fine. | 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 | I am assuming, for the purpose of this answer, that you are talking about actual (attempted) suicide - rather than (physician or associate) assisted suicide. With regard to the U.S., various states at one time or another did have the act of attempted-suicide listed as a crime; some even as a felony, although I cannot find a single case of actual prosecution (of attempted - obviously you cannot enforce a law against actual suicide since the actor would be deceased). With that said, currently there is no law against the act of committing suicide in any state in the United States. I did a full Lexis search. Suicide (attempted suicide) is considered a mental health issue rather than a criminal one; hence, a person who is thought to be suicidal is subject to well being checks by fire, police, social services, and other like entities/people and are also subject to civil commitment and mental health holds if they are thought/found to be a danger to themselves or others. To that end, the reason police can enter a dwelling without a warrant under these circumstances, is to do a well being check. If they have a reasonable suspicion that someone may be attempting to kill themselves (a family member, friend or a neighbor calls and says they believe you're are in eminent danger of harming yourself), the police may enter the premises and bring them to a hospital, even against there will. They can be held (at a hospital) to determine if they are of "sound mind". Every state has some form of civil commitment (statutes) and some limited amount of time a person can be held for observation (again, at a hospital or treatment facility). I do not believe this is a typical ruse used by the police to enter premises without a warrant. Why? Not because all police are above skirting the laws against warrantless searches; however, there are just much easier means to accomplishing that end, if that is what they are going to do. Yes, if evidence of a crime is in plain view while the police enter for a well being check (or any other legitimate reason), the individual can be charged with that crime. However, most police officers are not going to charge someone if they see (a usable amount of) drugs, paraphernalia, or evidence of some other low level crime. This is true since (1) they are already in crisis and (2) they are there for the very reason that they have information they may not be of sound mind, hence potentially not criminally responsible. If they walk into a meth lab or a murder scene or some other serious criminal scene, ...well that is different and all bets are off. The bottom line is while this may have happened somewhere sometime to someone....this is not a practice I would be worried about. | Self-Defense is an active Defense for Homicide (note, this is the legal term for taking a life. Criminal Homicide and Justified Homicide are two subsets of Homicide and are denoted by illegal actions and legal actions. Homicide as a result of Self-Defense is a Justified Homicide, regardless of the weapon, so long as it was applied with the minimal amount of force required to stop the criminal harm to oneself). Suppose you use a taser and the current causes the attacker to go into cardiac arrest and die. Your intention in using the taser was to stop the criminal from injuring yourself, your property, or another person or their property (defense of others). Even though the Taser is non-leathal, it's more like less lethal. Death by Taser is uncommon, but not impossible or rare. It would be handled as a defensive use of a weapon (same as if the attacker was killed by a gun) and processed as such. Pennsylvania is a Stand Your Ground State, meaning that in a public place, you do not have a duty to flee if your attacker approaches you in a public place, you do not have to prove that you could not flee in order to claim self-defense. However, if you pull a weapon and your attacker decides to flee, you can not give chase and kill him upon capture. You also need to have a reasonable expectation that the attacker is about to use deadly force (this normally means having sight of the weapon or what would reasonably look like a weapon i.e. a realistic toy gun without the orange safety cap would be reasonable). You also cannot claim self-defense if you were engaged in another crime when the attacker approached you (i.e. If you rob the Krusty Krab and the Hash Slinging Slasher approaches you with a knife, sucks to be you cause you don't have a right to be in the Krusty Krab after closing.). | 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...). |
What barriers are there for states to challenge the announced federal mandate for large employers to vaccinate their staff? In September 2021, an article reported the following. My job as president is to protect all Americans," Mr. Biden said Thursday. "So tonight, I'm announcing that the Department of Labor is developing an emergency rule to require all employers with 100 or more employees that together employ over 80 million workers to ensure their workforces are fully vaccinated or show a negative test at least once a week." reference link / source Governors intend to challenge said requirement. 24 states threaten legal action over Biden's vaccine mandate What is the 'hurdle' they would need to 'jump' in order to successfully challenge? Unconstitutional (which amendment?)? Would state law barriers be excluded from the challenge? | President Biden's most far-reaching mandates use four mechanisms: Federal employees must be vaccinated, contractors to the Federal government must impose mandates on their employees, businesses with more than 100 employees must impose mandates under an order (not yet written) from the Occupational Health and Safety Administration to insure workplace safety, and employers who accept Medicare and Medicaid payments (both from the Federal agency, CMS) must impose mandates on their employees. Note that none of the mandates apply to state governments/ There may be a possible exception of state agencies that have Federal contracts, eg, universities, health departments, transportation departments, and others. These mandates are not universal, they are limited in specific ways and appear to adhere to and fulfil Federal laws. Three of these mandates are imposed on Federal employees and contractors with the federal government. Not much there for a state to hang a lawsuit on. States can't interfere with Federal employment practices or contractor policies. Worker safety is a well-established Federal responsibility with laws tested in court. Not much opportunity for a state to interfere there, either. So no, there doesn't seem any way for a state governor or attorney general to do anything but bluster for their constituency. But still, give them a chance to show up in court and see if their claims pass the laugh test. Then we can all have a good laugh. Added Sept 15, 2021 There might be some room for some employers to dispute the mandate in court, based at least partly on the notion that spreading a virus is different from toxic chemicals. Any OSHA mandate is likely to allow the alternative of wearing a mask and getting regular, frequent testing, to maintain the safety of all workers. There is likely to be litigation but there is no logical reason for a state to be involved. | 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. | Welcome to LSE. Here are some answers to your question: No! It's not even close, but something like it is. The OSHA standard you cite is for mercury in the air in the workplace. You ask about "injections," which do not involve mercury in the air, so: this standard does not apply to injections. You ask about "injecting your employees with thiomersal." With only a few exceptions (for those helping diabetics, etc, and emergencies), all states require that licensed health care professionals administer injections, and then, only under a prescription. (For example, thiomersal is mostly used in vaccines. All states require licensed health professionals to administer vaccines.) So: Unless you are a licensed health professional with a prescription, you cannot inject your employees with thiomersal. However, OSHA has interpreted its rules and regulations to allow employees to require vaccines in some circumstances, such as a pandemic. To the extent these vaccines contain thiomersal, employers can require employees to get injected with thiomersal by a licensed health professional. | Taking California as an example, California Labor Code section 6314 (a) provides: To make an investigation or inspection, the chief of the division and all qualified divisional inspectors and investigators authorized by him or her shall, upon presenting appropriate credentials to the employer, have free access to any place of employment to investigate and inspect during regular working hours, and at other reasonable times when necessary for the protection of safety and health, and within reasonable limits and in a reasonable manner. So, the only requirement is that the inspector has been authorized by the chief of the Division of Occupational Safety and Health. In principle the chief could limit this authority to those periods when the instructor has been assigned to work, but I don't see any evidence that this is the case. In particular, you can find here the policy manual on inspection procedures that inspectors are assigned to follow, and it says nothing about "only perform an inspection when you are on duty". (You might also note the discussion on page 2 about unprogrammed inspections and the criteria for performing them. One indication is "Complaint about, or observance by anyone of, an imminent hazard", which could include a hazard observed by the inspector himself.) So to your specific questions: Do any states provide legal authority by statute for an OSHA compliance officer to inspect a site when they are in their own words "not working"? Yes, California provides authority for an inspector to inspect a site "during regular working hours, and at other reasonable times when necessary for the protection of safety and health". That is the only time-related restriction in the statute. I don't think that the inspector's comment that he's "not working" has any legal significance. What is the test to determine if an individual is acting in their official capacity or acting in their individual capacity? I do not know of any reason to think that any such legal distinction exists. If Joe Smith has been authorized as an inspector by the Chief of the Division, then Joe Smith can perform inspections and is to be given free access to do so. End of story. What is the legal "bright line" for state administrative agency employment as to acting in their official capacity as an agent of the state? Based on what I said above, I think this question is meaningless. | Since this apparently amends the law giving colleges and universities the power to adopt and enforced various regulations, what it really means is that if such an institution adopts a rule in violation of this law, it may not legally enforce that law. It might also give an affected student a right to sue if such a rule is adopted and enforced. As a comment by ohwilleke mentions, such a law might well authorize a court to issue an injunction forbidding the institution from enforcing the kind of rule prohibited by the law. Note that it is not at all uncommon to have "or else" provisions in different sections of the law. For example Section 123 of the (hypothetical) New France state code might prohibit having a faked driver's license, section 124 prohibit obtaining a license through false or misleading statements on nthe application, and section 458 say "anyone who violates sections 123, 124, 125, or 126 shall be fined up to $2,000, or imprisoned for up to 1 year, or both, as a court may think just". Thus it is not always easy to find what penalties, if any, apply to a code section. | In Texas, as in most of the US, the law is "Employment at Will". This means that an employer is free to fire people at any time, for any reason, or none, as long as it is not for one of the few reason forbidden by law, such as racial or age discrimination. Hourly employees are entitled to overtime pay in such cases, but "exempt" employees are not. Nor are they entitled to comp-time as a matter of law, that is at the option of the employer. (The question seems to imply that the employee in question was "exempt" but does not actually say so.) The only really effective recourse against that sort of "death march" is to quit and find a better job, or to threaten to do so while they still need you, unless the conditions return to acceptable ones. I have heard of people in such a situation who "get sick" every day at 5:30pm, because local law forbid requiring ill employees to work. But that is pretty much inviting an arduous and possibly expensive administrative and/or legal battle, and will depend on the specifics of the state/local law. In any case, it is too late for the person in question to try that. On the facts as stated, there might be a valid claim of age discrimination. But additional facts would be needed to establish this, and it would be in my view unwise to try it without consulting a good employment lawyer. Such a lawyer could advise exactly what must be proved and how, and what the probable chances of any recovery would be. | tldr It depends on: whether the employment agreement specifies which state's law governs contract disputes; and how your state of residence and work treats governing-law clauses. Background To know whether § 2870(a) applies in this instance, a good place to start would be the employment agreement itself—contracts often contain a section on "Governing Law." This is an example of a choice-of-law problem, which is just preliminary procedural hurdle for a court to clear. Clearing the hurdle is usually easier for the court when the parties agree in advance about which state's laws will govern contract disputes. So, if the agreement says that California law governs, then one would typically look to statutes like § 2870(a) to interpret the agreement's provisions. But that's not always the definitive answer. Some states have laws designed to protect their residents by allowing them to void governing-law clauses that seek to have contract disputes adjudicated in a state where the employee doesn't live or work. Without knowing where you live, and in the interest of generality, let's use California residents as an example. Section 925(a) of California's labor code allows California resident workers to void governing-law clauses in employment agreements that deprive them of the protection of California's laws. But § 925(b) implies that the governing-law clause still controls unless that California resident worker affirmatively chooses to void the clause. Non-California employees would look to see whether their states have protective jurisdictional statutes like this. united-stateschoice-of-law | This is known as the "ministerial exception". Because the Free Exercise and Estalishment clauses of the First Amendment prohibit the government from interfering with religion, the government cannot override a doctrine that contradicts the teachings of a religion (so women and gays cannot sue the Catholic church for not being hirable as priests). In Hosanna-Tabor v. EEOC, an individual taught classes and led prayer at a religous school, but was fired ultimately due to a disability (narcolepsy). The Lutheran church does not have any known doctrine condemning narcolepsy: but it was unanimously ruled that "the Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own". Thus the church was legally permitted to fire the individual due to her disability. |
How to search for lawsuits where I know the plaintiff's name and a brief outline of the facts? The Astronomy SE question Did a watch company really try to sue radio astronomers for using the word "pulsar"? If so, which astronomers? includes the following quote from Jocelyn Bell Burnell, the rebound radio astronomer who discovered pulsars: These days as you know the name has traveled. There's watches called pulsars, certainly in the UK there's models of Nissan cars, you can sometimes find geraniums called pulsars, same name. I'm told that in the United States the watch company tried suing the radio astronomers for use of the name! The question there in Astronomy asks if this lawsuit happened and if so, which astronomers were sued. Here however I would like to ask how to search for lawsuits where the Hamilton Watch Company may have sued astronomers or astronomical organizations for using the word "pulsar" in a way that infringes somehow on their (potentially trademarked) Pulsar watch. If a byproduct of that answer happens to be an answer to that question as well, please feel free to post an answer to that question there. Some information that might be used in constructing a search: Notes from the video Jocelyn Bell Burnell Special Public Lecture: The Discovery of Pulsars (video cued at 48:37) Jocelyn Bell Burnell, winner of the 2018 Special Breakthrough Prize in Fundamental Physics, delivered a special talk at Perimeter Institute about her 1967 discovery of pulsars and her remarkable career in physics. Note that Dr. Bell Burnell raises her hand (perhaps in victory?) when she mentions this, and in the same context mentions the suggesting party of the term Anthony R. Michaelis: Whilst at the Daily Telegraph, in 1968, Michaelis was the first person to coin and use the term "Pulsar" to describe the discovery of Jocelyn Bell Burnell and Antony Hewish of the "Pulsating Radio star" in 1967. From Wikipedia's Pulsar (watch): In 1970, Pulsar was a brand of the American Hamilton Watch Company which first announced that it was making and bringing the LED watch to market. It was developed jointly by American companies Hamilton and Electro/Data Inc. In spring 1972, the first Pulsar watch was marketed by Hamilton Watch (the parent company, not the Hamilton Watch Division). With an 18-carat gold case, the world's first all-electronic digital watch was also the first to use a digital display – created with light-emitting diodes (LEDs). A button was pressed to display the time. The first Pulsar initially sold for $2100 ($13,400 in 2020 dollars). | Given the following: We know the name of the plaintiff, The name is likely to be unique so that there won't be too many cases involving a different party with the same name, and The plaintiff is a company so it is not likely to have been involved in an overwhelming number of cases (as opposed to e.g. the IRS); The approach I would use would be to search a legal case database such as Westlaw for all cases where Hamilton Watch Company is a party, and review the abstract for each case that I find. In this case we also have a relatively rare keyword, "pulsar" so we can narrow down the results by putting that in the search as well. However there are several caveats: You will only find cases which went far enough that the court made a decision. Your quote says "I'm told that in the United States the watch company tried suing the radio astronomers for use of the name". That sounds like pretty unreliable third hand information. It's quite possible that they merely sent a cease and desist letter and that got reinterpreted as "tried suing" by the time it was said by Jocelyn Bell Burnell. Even if they did sue, the majority of cases are settled out of court without ever seeing trial, which means you are unlikely to find any formal record of it and your best hope may be media articles if it was high profile enough. Large companies often have complex corporate structures involving parents and subsidiaries so the suing party's name may not actually be what you think it is. That certainly seems to be the case here, so you may have to start searching for other company names within the group. Not all cases are reported in which case you are less likely to find them. My jurisdiction is england-and-wales but I surprised myself by discovering that my Westlaw access allows me to login to the US version as well. I found no relevant cases for any of the following searches (based on various companies that have been part of the same group as Hamilton Watch Co over the years): "hamilton" in the party name and "pulsar" in the text. "buren" in the party name and "pulsar" in the text. "swatch" in the party name and "pulsar" in the text. "SSIH" in the party name and "pulsar" in the text. "HMW" in the party name and "pulsar" in the text. The only vaguely related thing I found was when I searched for "watch" as the party name and found this case involving a "pulsar" trademark for watches owned by Seiko Kabushiki Kaisha. It has nothing to do with the purported facts in your question though. | I am answering primarily with regard to the U.S. Lanham Act (15 U.S.C. § 1501 et seq.) and state trademark laws in the U.S., but except as noted, these concepts are widely honored internationally in trademark law. As a general rule, generic names cannot be trademarked. Thus, you can't trademark "liquor store" for a liquor store, or "Calendar" for a calendar, but you might be able to trademark "liquor store' for a copying machine line, or "Calendar" for a perfume. Sometimes a trademark can be obtained for a stylized logo incorporating a generic name (e.g. "liquor store" in bold pink 48 point comic-sans), but to be valid, the trademark must disclaim any assertion of rights in the mere genetic words themselves. Also, sometimes a trademark that is descriptive but not truly generic, like "Palisade Red" for red wine made in Palisade, Colorado (as opposed to the truly generic name "red wine"), can acquire what is known as a "secondary meaning" through exclusive use over a period of time while registered with the Patent and Trademark Office, without contest from anyone else. If it meets these requirement it can win an entitlement to trademark protection. But, the nuances of this particular route to trademark protection are particular to U.S. Lanham Act (which is the name of the federal trademark law in the U.S.). Domain names and entity names in a particular jurisdiction are somewhat different. While it is possible for two competing products or firms to share a generic name, it is not possible for two owners to have precisely the same domain name or precisely the same entity name in the same jurisdiction, even if the firms seeking the same name sell completely dissimilar types of products. For example, there can only be one: "Calendar.com" domain name, even if one company uses the name "Calendar" to sell calendars and the other company uses the name "Calendar" to sell perfume. In those cases, however, it is relatively straightforward to determine what names are and are not taken. | We can't tell you if you can do that or not, because that would be specific legal advise. You should consult an attorney who specializes in trademark law to get an estimation of how risky it would be to use that name. So I am just giving you a couple general pointers. Names are not protected by copyright, but by trademarks. The purpose of trademarks is to prevent consumer confusion. They are supposed to prevent someone from selling a product under a name which consumers might mistake for official merchandise of someone else. Media companies in particular tend to be very protective of their trademarks, because merchandising is often one of their main sources of revenue. And they don't want to share that revenue with people creating knockoff products. Also, they must fight for their trademark in court, because when they only enforce it selectively, then they risk that a court will consider the mark so widely used already that it is no longer worth protecting. But the show is from the 1950s. Is the trademark still protected after all that time? Maybe. There are registered trademarks and unregistered trademarks. Registered trademarks, which usually but not always are followed by an "®" symbol, need to be renewed in regular intervals. So if someone still pays for the renewal, it might still be a protected trademark. Unregistered trademarks, which usually but not always are followed by a "™" symbol, are protected as long as they are "used in commerce". Which means that if the IP owner of that show still sells products branded as "Winky Dink and you", they can probably still claim unregistered trademark protection. In order to find out, you would need to do your own research or pay your attorney to do a trademark research for you. Are your proposed names even a trademark violation? Perhaps, perhaps not. That's for a court to decide. Personally I think that "Winky Dink and Me" is more infringing than "My Winky Dink Syndrome", because the first is a lot closer to the original name and brand image, giving it a higher likeliness of causing consumers to mistake it for an official "Winky Dink and You" product. But that's an argument you got to make in court. Estimating the chance that the judge will side with you and how much in legal costs it will take you to get to the point where you are even going to have the opportunity to make that argument is a job for your attorney. | What Big Tech is doing is spending a lot of money on lawyers and appeals – doesn't matter if it costs millions if you can make money in the meanwhile. Facebook stores a lot of user data in the US. Initially, this was allowed because the US was recognized as offering an adequate level of data protection under the Safe Harbor and later the Privacy Shield Framework. Then Schrems I and Schrems II happened and the adequacy recognition was ruled to be invalid. Does Facebook pull back their user data? No. The GDPR offers alternative reasons why you might process data in foreign countries, such as “standard contractual clauses” (SCCs) or “binding corporate rules” (BCRs). Now, Facebook claims that they are using SCCs. Is this valid? Almost certainly not due to the issues of US law analyzed in the Schrems II case, but it can take years for the next round of court cases to work its way through the system. And when Facebook's use of SCCs is ruled invalid they will probably try BCRs next, and once that is over a decade will have passed and the US might actually have achieved an adequate privacy level by then. You do not have Facebook-style money to spend on lawyers and endless rounds of appeals, so you should avoid legally risky things such as outsourcing data processing activities to companies in the US (this doesn't mean you can't be compliant if you are a US entity). I mentioned adequacy decision previously. There is a list of countries that the EU considers to be sufficiently safe. Currently, the more notable countries involve Canada, Israel, Japan, New Zealand, Republic of Korea, Switzerland, and the United Kingdom, in addition to EU/EEA countries of course. If you want to process data in a location that is OK for both the UK and the US, then looking at companies in one of these countries is a good idea. For example, if most of your users are in the US but you would like your servers to be in a country with an EU adequacy decision, then looking at Canada could make sense. Even outside of this list, you can process data if you implement additional safeguards via SCCs. However, this requires a case by case analysis of the legal environment in that country. One problem with the US is that it has national security laws that impose requirements on companies in a manner that is incompatible with SCCs. A company bound by these US laws cannot enter into such a contract where it guarantees the privacy of your user's data. Countries other than the EU have much more tedious data residency laws. The GDPR does not impose any data residency requirements in the sense that data must not leave a particular country – you just have to ensure that the data is properly protected. In contrast, Russia and China have real data residency requirements that are fundamentally incompatible with the GDPR. | tl;dr No, N.Y. Times v. Sullivan established the actual malice standard in the context of defamation. It is not illegal for a public figure to claim the sun revolves around the Earth unless some other law intervenes (maybe something fact-dependant like fraud or lying under oath). Background Here's an example of how N.Y. Times would work in California. Under California law, slander, along with libel, are the defamation torts. See Cal. Civ. Code. § 44. The First Amendment limits California’s slander law by requiring public figures prove actual malice when they want to sue someone for defaming them. Khawar v. Globe Int’l, 19 Cal. 4th 254, 262 (1998). (The Supreme Court got involved in N.Y. Times in the first place because of the First Amendment implications on the States' defamation laws.) In turn, "actual malice" means a statement was made "with knowledge that it was false or with reckless disregard of whether it was false." Khawar, 19 Cal. 4th at 275 (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)). As to knowledge, California courts consider only actual—not constructive—knowledge. Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 398 (2001). In turn, actual knowledge "consists in express information of fact." I.E. Assoc. v. Safeco Title Ins. Co., 39 Cal. 3d 281, 285 (1985). This is a bunch of lawyer-speak, but it basically sets up a pretty high bar for the public figure who is trying to prove defamation. Again, N.Y. Times doesn't have to do with barring public figures from making non-defamatory false statements. You'd have to look to other areas of law about false representations or lying under oath for a claim against the politician. california | This is the earliest dispute resolution clause I can find for Patreon. Some points to note: It calls up (as do all subsequent revisions) JAMS Streamlined Arbitration Rules & Procedures, These allow the consolidation of arbitration’s between different parties over the same issue, Patreon’s liability is limited to the amount collected from the particular user. Do Patreon's terms of service cause Patreon to lose a minimum sum of money to arbitration costs in all cases, even if the claim is immediately rejected? Not necessarily. As stated above, Patreon can ask that the arbitrations be consolidated. I see no reason why the request wouldn’t be granted. That way they only pay for one. Alternatively, they can simply pay out their maximum liability if that is less than the expected costs. For many users, it’s likely the commissions they have paid will be less than their $250 filing fee. If yes, is Patreon required to go through full arbitration for each individual claim made? Or is there some mechanism to avoid additional costs for subsequent claims that are essentially identical to one that was already decided? There are no precedents set in arbitration so each has to be decided individually. However, it’s likely there will be only one arbitration, see above. If yes, roughly what number of plaintiffs would be required for the combined claims to bankrupt (or seriously damage) a company like Patreon? Well, it depends if they are insured or not. If they are insured for legal costs then the question is how much to damage their insurer. And the answer is - a lot. Patreon has revenues in the tens of millions - insurance companies work in the billions. If they aren’t insured, there would need to be a significant number (far more than 72). Realistically, this is little more than a minor inconvenience. | In Egbert v. Boule, 596 U.S. ___ (2022), the Supreme Court held that "there is no Bivens action for First Amendment retaliation." The Court was unanimous on this point. This means that right now, there is no way to sue for a damages remedy for First Amendment retaliation by federal officials. The majority said that "Congress, not the courts, is better suited to authorize such a damages remedy." | 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. |
Why is it so hard to try Khalid Sheikh Muhammad? Trials of major terrorists happen quite often in Europe, but in America, it has taken 2 decades since 9/11 for the trial of the confessed mastermind to even start in military court. (This is longer than it took from the end of the Holocaust to capture and try Eichmann). Why is it so hard to put someone who has admitted his guilt and where there’s lots of evidence on trial? | An answer by @user6726 accurately points out some matters specific to this case, a "tree level" view, so to speak. At a "forest level", the military commissions system that was first used had to be established from scratch leaving myriad issues of first impression and constitutional validity issues unresolved, unlike ordinary civil courts where these matters are already settled law. Many of these issues were difficult ones because the system was intentionally stacked against the defendants. This was an unexpected result from the perspective of the people who enacted the statutes authorizing military commissions trials, who expected them to be more swift and to be less favorable forums for defendants. But they failed to recognize that all judicial and quasi-judicial proceedings conducted by the U.S. government, even military tribunals, are subject to judicial review under modern U.S. law. Failure to recognize this issue is one of the main reasons that the military commission system produced so few results, while terrorism prosecutions under criminal laws in the ordinary federal trial courts were conducted with minimal difficulty relative to ordinary criminal prosecutions. It also failed to recognize that unlike typical civilian criminal defendants, terrorism suspects are often happy to plea guilty and claim credit for actions that these defendants viewed as heroic and justified. A key substantive issue in this particular prosecution is that important evidence against him was either obtained through torture, or was "fruit of the poisonous tree" evidence obtainable only as a result of information obtained through torture, in a manner that would not be admissible in civilian criminal proceedings. Another key mixed procedural and substantive issue was a military commission policy that treated much of the relevant evidence as classified secrets for purposes of national security, which impacts which personnel could be involved and created procedural questions not presented in ordinary courts. The U.S. government could have declassified the relevant information, but chose as a matter of policy to conduct proceedings while the information was still kept as a national security secret (in part, because the U.S. involvement in torture and the low level authority of most of the other military commission defendants was embarrassing to the U.S. government). | He would be thanked and sent on his way. We don't generally punish people for preventing murders, even if they are rogue cops or soldiers. If you wanted him to plausibly land in legal peril, he'd probably need to do more than simply save someone's life. The most obvious possibility, I think, would be if he were to continue inflicting harm on the attacker after cuffing him. At that point, there's probably no justification for a continued use of force, so he could face assault charges there. Also possible would be that the way he handled the situation -- the amount of force he used, the failure to de-escalate, failing to call for assistance -- just violates some police or military policy. I don't know if that would jam him up in the way you're looking for, though. | There is no absolute rule in such cases. It is often a matter of negotiation between the state and federal authorities, and failing agreement, a matter of which authority has the prisoner in custody. Often the question of which crime is more serious or carries a longer sentence is an issue in such negotiations. | The decision will be made by whichever country arrests him first (although a minority of countries allow for the trial of people who break their criminal laws in absentia). Needless to say, if nobody manages to arrest him ever, he will not face any criminal consequences except the issuance of an arrest warrant possibly accompanied by a pre-existing conviction in absentia if arrested in countries that allow for such a proceeding. Normally, in these circumstances, either country would have jurisdiction under its own laws to prosecute and punish the criminal, and many extradition treaties would not require the extradition of someone who committed a crime punished domestically in the state in whose custody the criminal is as part of the same course of events. Many countries will not extradite someone if they could face the death penalty in the receiving country. But, sometimes law enforcement in a country with a less serious penalty will intentionally defer to law enforcement in a country with a more serious penalty that is simultaneously trying to arrest him. Ordinarily, law enforcement is not authorized to use deadly force to arrest someone who is simultaneously being arrested by law enforcement from another country against either the arrestee or the law enforcement from the other country. Indeed, using deadly force against another country's law enforcement officers who are carrying out a lawful arrest in their own country would ordinarily be considered an act of war. U.S. double jeopardy provisions of the constitution do not prohibit a second prosecution of an offender in these circumstances because of a first prosecution by another sovereign, but many prosecutors in many countries would decline to prosecute someone a second time for the offense that they have already been convicted of in exercise of their discretion, and many judges would consider time served in another country for the same offense as a factor in setting their own sentence. | Because the relevant law enforcement decided not to In the US (and indeed in all common law jurisdictions), law enforcement and prosecutors have discretion over when and if to lay charges by considering such things as the wishes of the victim, the prospects of success and whether charges would be just in the circumstances. At best, this allows a measured response to the particular situation. At worst, it enables discrimination and persecution. Either way it solves the problem of allocating limited resources to comparatively unlimited need. | Could DA Bragg have only charged Trump with 34 misdemeanor counts, without elevating the charges to felonies? Yes. if Trump's defense team argues that the law that elevates the misdemeanor charges to felony charges does not apply in this case, because the elevation option does not include federal laws, then since this is a matter of law and not a matter of fact, Judge Mercan (rather than the jury) will decide whether or not to dismiss the felony charges? Yes. Does Judge Mercan have the option of dismissing the felony enhancement but allowing the misdemeanor charges to proceed, or would Mercan have to dismiss all charges against Trump? Judge Mercan could probably choose either option if he found that the original charges were not supported by the law. There is law regarding how this decision is made but I personally don't know that area of law well. One of the reason that I am unfamiliar with it is that it is exceedingly rare for a judge to conclude that the prosecutor's charges are not supported by the law. I would be very surprised if that judge reached that conclusion in this case, in particular, because both federal election law violations and state and federal tax law violations are implicated by the indictment. The DA no doubt legally researched this issue exhaustively before presenting the charges to the grand jury and has made out a prima facie case for a felony under the applicable New York State law. If Trump is brought to trial, then would it be possible for a jury to return a verdict that Trump was guilty of the misdemeanor offenses of falsifying business records but innocent of doing so with an intent to commit another crime? If so, then could Trump still be found guilty of the misdemeanors, or would he be fully acquitted, since the jury ruled that he was not guilty of the exact charges that DA Bragg filed? Whether a jury is presented with a lesser included offense charge at the request of the defense, is partially a matter of the prosecution's election to make that option available or not, and partially a matter of the judge's decision on how to handle it. The body of law involved in how this decision is handled on a case by case basis is quite involved. Most of the case law involves homicide cases, assault cases, and property crime cases where there are charges with are identical except for aggravating factors for the most serious charges. But, lesser charges generally aren't presented if based upon the evidence presented at trial, either the more serious charge is established or no charge is proven. For example, if the defendant presents an alibi defense, and a witness whose credibility is disputed places the defendant at the scene intentionally committing a crime, a lesser included offense charge would not be appropriate. But, if the defendant admits hitting a pedestrian and causing the pedestrian's death, but claims that the pedestrian was at fault in the accident for jay walking, while the prosecution alleges that the pedestrian was intentionally struck as part of a mafia hit, multiple lesser included offenses would probably be charged involving different levels of intent of premeditated intent/aggravated circumstances killing (first degree murder), to a knowing killing (second degree murder), to a reckless killing (manslaughter), to a criminally negligent homicide or vehicular homicide charge. Typically, the decision on this point would not be made until all evidence was received and the judge in a hearing away from the jury but in the presence of the prosecutors and defense counsel crafted jury instructions based upon the evidence presented at trial and the arguments raised by counsel at trial. | It is reported that this is the result of new legal reasoning in German law. In the cases of Demjanjuk in 2011 and 2015 it was found that being a camp guard is enough to be found guilty of accessory to murder, even without specific evidence of a crime. In a more recent trial (Rehbogen) the prosecution used the same reasoning to charge and try a concentration camp guard. | Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality. |
Has there ever been a successful defense based on "self-defense" in a case of a person charged with killing an on-duty police officer? Title says it all. Is there any example of someone being found not guilty of killing an on-duty police officer? Obviously this must happen all the time when the facts cannot be proven. I'm wondering about the case where the defense acknowledges that the defendant did indeed commit the act. I've seen a question or two on here about hypothetical lines of defense in such a situation. But does anyone know of any actual examples? | There was a case like that in 2010 in germany tl;dr synopsis of the German article: The police raided the private home of an alleged member of a criminal gang. This was performed as a no-knock raid. The police officers did not announce themselves as such when they started to break open the door. The suspect had reason to believe that a rival gang was planning an attempt on his life. So the suspect believed that the people trying to break into his home were actually members of said gang trying to murder him. The suspect used a firearm to shoot at the intruders through the door, lethally injuring a police officer. When the police officers then identified themselves as such, the suspect surrendered immediately. A court later ruled that killing the police officer was self-defense, because they were reasonably convinced that the defendant was unaware that he was dealing with police officers, believed to be in a situation where his life was in danger and where lethal violence was the only way to save his life. Here is the verdict. [In German, of course] | In California (as in all states) there is a justifiable homicide defense which might be used in such a situation. For the force to be justified, you have to reasonably believe you are in danger of being harmed, that you need to use force to avoid the harm, and you may only use the minimum force necessary to eliminate the threat. It then is a matter for the jury to decide whether those principles were followed in your particular instance. The reason why it's hard to predict the outcome is that it depends on a subjective evaluation by the jury, as to whether the shooter had a reasonable fear and whether lesser force was a viable option. The jury's decision is guided by instructions to the jury (#506, #506) which focus on relevant distinctions. The jury will be told that "Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be", and that you have to reasonably believe there is "imminent danger of great bodily injury". My evaluation is that that does not describe the scenario in the question. There is some possibility of future harm... but not imminent harm. People v. Ceballos (1974) 12 Cal.3d 470" states that "the rule developed at common law that killing or use of deadly force to prevent a felony was justified only if the offense was a forcible and atrocious crime" and "Examples of forcible and atrocious crimes are murder, mayhem, rape and robbery", and that could support application of a justifiable homicide defense in a bank robbery. But in the present instance, the bank is being robbed and the shooter is a by-stander. Despite all of the bank robberies in California, there is no relevant case from which one could draw an analogy. | I think it would depend on how a jury viewed the "challenge" to her audience. The general rule for self-defense in Texas is that the person needs to reasonably believe that force is immediately necessary to protect herself from someone else's use of force. I think a jury would find it reasonable to believe that someone forcefully attempting to steal your gun was planning to use it against you. More importantly, the law generally presumes that that belief is reasonable if the person is being robbed, assuming that she isn't otherwise engaged in criminal activity. Since openly carrying an AR-15 is -- as far as I know -- legal in Texas, I think she'd probably be fine. But: The law also says that the use of force is not justified when a person consents to the other person's use of force, or if the person has provoked the other person. So now you have the question of whether the student's challenge constitutes a provocation or consent to the use of force. I think you can make a decent argument for provocation, which means that "the defendant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting injury." Neal v. State, No. 12-14-00158-CR, 2016 WL 1446138, at *11 (Tex. App. Apr. 13, 2016). You might also make out a decent argument for consent, which doesn't necessarily seem to require that the parties exactly spell out the rules of engagement, just that there is some kind of agreement between the two parties. In one case, for instance, a defendant tried to argue that a fight had gone beyond the rules because one party used a chokehold and knocked the other out. But the court said that the only actual rule agreed to was that there would be no weapons used. Padilla v. State, No. 03-07-00513-CR, 2008 WL 5423139, at *2 (Tex. App. Dec. 31, 2008). That makes me think that as long as there's consent to some kind of fight, you don't necessarily need rules, though you do need to abide by them if you agree to them. So what's the scope of consent in this case? If we say that she's agreed to the use of force by challenging people to take something from her, and she hasn't said how you can do it, can you do it by any means you choose? I don't think a court would let someone shoot her to get it, but maybe they would be allowed to pry it out of her hands. So all of that is a long way of saying that this is a tricky question, and that any decision would probably depend a lot on the specific facts of who she was talking to, what exactly she was saying, how she was carrying the gun, and so on. | If you consent, the evidence can almost certainly be used against you. Florida v. Bostick, 501 U.S. 429 (1991) ("Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, and request consent to search.") If you refuse consent, it is not clear whether the evidence can be used against you, as we don't know why the officer is asking to frisk you. A stop-and-frisk must be supported by a reasonable and articulable suspicion that you have just committed or are about to commit a crime, and that you are at that moment armed and dangerous. If they reasonably suspect you have just committed a crime but do not reasonably suspect you are armed and dangerous, the police may stop you, but they may not search you. That point is worth emphasizing because several other answers are incorrectly assuming otherwise. For one example, in Thomas v. Dillard, 818 F.3d 864 (9th Cir. 2016), the police responded to a report of domestic violence. Based on their reasonable and articulable suspicion that the suspect had committed that crime, the police stopped and frisked him. Because they had could reasonably explain why they thought he had committed a crime, but could not reasonably explain why they thought he was armed and dangerous, the court said the stop was legal, but the frisk was not: Whereas the purpose of a Terry stop is to further the interests of crime prevention and detection, a Terry frisk is justified by the concern for the safety of the officer and others in proximity. Accordingly, whereas a Terry stop is justified by reasonable suspicion that criminal activity may be afoot, a frisk of a person for weapons requires reasonable suspicion that a suspect is armed and presently dangerous to the officer or to others. A lawful frisk does not always flow from a justified stop. Rather, each element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined. Even then, the search is basically limited to a minimally intrusive patdown to ensure you don't have any weapons on you, and the officer is generally not permitted to actually search inside pockets or the like, though the search may escalate based on what the officer is able to feel during the patdown. Minnesota v. Dickerson, 508 U.S. 366, 375–76 (1993) ("If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, ... its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.") The refusal to respond generally operates as a refusal to consent. The police are therefore free to conduct whatever search they could have conducted without your consent. If they have a reasonable, articulable suspicion that you're carrying a gun, they can probably frisk you to see if that's the case. If they have a warrant to search your pockets, they can search your pockets. If they don't have any of that, they need to keep their hands to themselves. | england-and-wales No. Reconciliation between victim and attacker has no bearing on the guilt of the attacker. It may have a bearing on the decision to prosecute: A victim can be forced to testify, but they may well not make a very convincing witness if they are. Also, in past times (when the police were the prosecutors for most crimes), they often had a "least said, soonest mended" approach to domestic violence. It may also have a bearing on the sentence. Note: England and Wales is a jurisdiction where prosecutions can occur without a complaint (in general). | I think the officer is probably lying, not just mistaken, but they are not required to always be truthful. In addition to the law against possessing ID with intent to commit, or to aid or abet, any crime, it is also against the law to be knowingly in possession of a stolen credit card, or any other property. An example of a strict-liability possession crime, which the officer knows of, is that it is a crime to possess heroin, period. I am skeptical that the officer actually believes that there is a law making it a crime to be in possession of a credit card with permission, and suspect that he thinks it is stolen. | I'm no expert, but I had assumed this clause was present in case of the following situation. Joe is arrested for a robbery of a London bank. Joe says nothing under questioning. At trial, Joe's defense is that at the time of the robbery, he was in Sheffield drinking beer with his brother. On the basis of common sense, a jury could think: "Surely if Joe were really innocent, he would have told the police of his alibi at the time he was questioned, and saved himself a lot of trouble. Since he didn't do that, maybe a more likely explanation is that he wasn't actually in Sheffield, but that sometime between arrest and trial, he came up with the idea of faking an alibi in Sheffield, and convinced people to testify falsely to that effect. Yes, that does seem more plausible. So we are not going to give much credence to Joe's supposed alibi." So it really would be the case that not mentioning the alibi during questioning would harm Joe's defense at trial. The warning, then, is intended to keep Joe from doing this inadvertently. If Joe's alibi is genuine, but out of a misguided desire to exercise his right to remain silent, he doesn't mention it during questioning, he may accidentally increase his chances of being wrongly convicted. Everybody has an interest in avoiding this. | Assuming that the above can be established by admissible evidence, that sounds like a case for first degree murder, and probably various other crimes as well. In some jurisdictions there is a specific crime of "Murder for hire" which might also apply if available on the jurisdiction where this occurred. A comment mentions a possible insanity defense. That is going to depend on detailed facts not included in the question, but might be possible. |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.