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Can I add a deadlock to the front door of my unit? I have recently bought a unit in a rough area. The front door to the apartment complex does not click shut properly so anyone from the general public can walk in. The door to my unit has one of those cheap push button door handle locks. I have spoken to the body corporate and the building manager and there are currently no plans to fix the apartment complex door. I asked about adding some more security to the door of my unit, namely a good quality (fire rated) deadlock. But they replied back that deadlocks are not permitted for fire and aesthetic reasons, even locks that are fire rated. What is the legality of prohibiting deadlocks? Are fire rated deadlocks permitted legally on fire exits? They mentioned something about fire safety laws changing in 2019 but I didn't get a full understanding. Is this documented anywhere? | National Construction Code For Class 2 Buildings (apartments) the relevant volume is No 2. Door hardware on fire doors must comply with AS 1905.1 (Specification C3.4 Clause 2), that is, it has to be "fire-rated". There are plenty of fire-rated deadlocks available. Normally, a door in a path of travel to an exit cannot be key operated in the direction of travel, however, there are a number of exceptions. One is if it "serves only, or is within— (A) a sole-occupancy unit in a Class 2 building" - like yours. So there is no regulatory obstacle to this. Strata Law The door (and its hardware) is part of the common property - it belongs to the body corporate, not you. Technically, you own the paint on the inside, they own everything else. So, even if you paid for the lock, it would belong to the body-corporate and they would bear all the risk of loss and damage including if it wasn't installed properly. They may be unwilling to take this risk. They can legally prevent you from doing anything to their property. However, you can insist that the body-corporate repair the front door. Having "no plans" is not an excuse for failing in their legal duty to repair and maintain the common property. If they refuse, you can use the dispute resolution process. | Residents agree that the receipt of mail by any individual not listed as a Resident or Occupant in this Agreement at the Leased Premises shall be proof of occupancy of that individual and a violation of this Agreement. I assume that the lease states that only the listed individuals can reside in the unit. Maybe they think that this says that receipt of mail by an unlisted person is a further violation of the lease, I don't think that is clearly enough stated that the courts would agree that receiving mail is itself a violation of the lease. Instead, it seems to be intended to say something about an existing clause – you can't have other people living there. The courts would look at the requirements of the lease, and ask "did you comply"? The question of whether you did a certain thing is a question of fact that has to be resolved in court. However, the revised lease language does not state that all mail must be addressed to Johnny Johnson – it only addresses receipt by a person not on the lease. You are (apparently) on the lease, so you may receive mail there. Nothing in the lease controls how such mail can be addressed. If you receive mail addressed to Tommy Thompson, your defense is that you received the mail, and you are on the lease, so you will not have violated the new clause. | Oregon allows it, see ORS 30.813. One who enters a motor vehicle, by force or otherwise, to remove a child or domestic animal left unattended in the motor vehicle is not subject to criminal or civil liability You have to verify that the car is locked, you have to have a good faith and reasonable belief that breaking in is necessary because of imminent danger of suffering harm, you must notify the police and you must remain with the child / animal until police arrive. | There is case law recognizing an implied-in-fact license to enter though an unlocked gate to knock on the front door (although I haven't seen West Virginia law in particular). Some case law can be found here: In Florida v. Jardines, 133 S.Ct. 1409 (2013), the [United States] Supreme Court indicated that a police officer’s right to walk up to a front door of a person’s home is subject to an implied license based on existing social norms. . . . In United States v. Denim, 2013 WL 4591469 (E.D.Tenn. August 28, 2013), the district court (adopting the magistrate judge’s R&R) held that “no trespassing signs” do not revoke the implied license and that officers can approach the front door and knock on the door despite the signs[.] In the absence of a sign such as "no solicitors" (which would bar a door-to-door seller or political agent) or a more explicit sign right at the gate ("No neighbors or law enforcement officers, or anyone else I have not told in advance may have access, may cross this front gate even if it is unlocked"), the likelihood of a conviction beyond a reasonable doubt in those circumstances is bleak. One of the cases above doubts that even the specific no trespassing sign would be effective (suggesting that the implied license is to some extent conclusively implied in law, rather than implied in fact). Also, certain officials, public and private (surveyors, deputy sheriffs serving process or carrying out official duties, utility company workers, county assessor's employees), may have a statutory or common law privilege to enter onto private property that would otherwise be trespassing for a limited purpose. In other cases, the right may arise from recorded or statutory easement rights or from customer agreements. Such provisions are usually piecemeal. See, e.g., Colorado Revised Statutes § 18-4-515 (privilege for surveyors to trespass under certain circumstances). | There are limits to what you are allowed to modify on your car. Federal safety regulations require certain features to be installed by the manufacturer, and to be maintained by the owner in a state that they remain functional. Besides obvious things like brakes, you need working headlights, turn signals, bumpers, wipers, etc. Heated seats is an option. A luxury convenience feature. Most cars don't have heated seats. If you had heated seats, but left them off or the switch broke and they weren't working, there would be no reason for the State Patrol to care one bit that your rump was a bit chilly. So, the state doesn't care enough make it illegal to have heated seats or not. It is entirely your choice. The question then becomes, does the state have any reason to care whether you have a manual switch to turn them on or off, or use a special software code to enable the feature? Logic dictates that if they don't care whether or not you have the feature, and don't care if you are using it or not, they would have not reason to care about the particular method you use to turn it on or off... Therefore the only real question is does BMW care? They might, if you came up with a method of enabling heat without a subscription and it became known to them. Especially if you made money publishing a how-to guide that cost them potential revenue. But that would be a civil, rather than a criminal matter. To me this action would be equivalent to buying a burger at a place that charges $.25 for a packet of ketchup, and instead using your own ketchup. It's your burger, and your ketchup, do what you want! ADDENDUM: Based on discussion on the other answer, as well as a suggestion in comments, I would like to briefly address (my opinion) on the applicability of the Digital Millenium Copyright Act (DCMA) of 1998. I actually just looked up this act, and have only a layman's understanding of copyright law, but there is a basic element that needs to be met for a violation to occur: The copyrighted material must be reproduced, altered, repurposed, and distributed in some manner. Private avoidance or selective non-use of a digital feature would not seem to rise to that level. I touched on this above when I alluded to publishing a written hack. It would probably also apply if you offered code that would bypass a feature, or to a car tuner offering to enable the feature for a fee. If there is a commercial benefit, there is a potential "victim", and a copyright issue. However, even code is questionable... There are many examples of companies offering aftermarket Engine Control Module code to enhance performance or improve gas mileage. Of course a manufacturer could always challenge a commercial competitor, but lawsuits cause money and create publicity - positive and negative. About the only "free" enforcement tool a manufacturer has is to not honor the warranty on any owner altered parts. Of note is the fact that seat heating elements are not digital, copyrighted, or otherwise protected work. The digital intellectual property that MIGHT potentially be at the center of a copyright controversy is the function of the pay system and the processing of an access code that unlocks a relay. What that relay sends electrical current to is really immaterial. It could be your stereo, it could be the airbag... One person snipping and splicing wire to avoid the IP "brain" and install a simple on/off switch or rheostat for personal use of seat heat should not be violation of any digital copyright law. | One path would be to get compliance, by demonstrating that it is legally required. The best evidence that he is legally required to wear a mask is this recent mandate from the Department of Public Health. However, I cannot find a corresponding executive order, which may be in a generic form empowering CDPH to issue orders. Any imposition of penalties for violation must be publicly announced and rest on legislative authority. The mandate is not generally enforced, except in a few cases regarding bars and restaurants. There are various persuasive avenues that you could pursue, such as asking CDPH to come talk to him (unlikely, but you could try), complaining to the property owner, appealing to local social media to apply pressure (possibly putting yourself at legal risk for defamation, if you make a false statement). There are two more involved legal actions to contemplate. One is to terminate the lease and move elsewhere. This would likely result in an action to collect the remainder of the rent, but the strategy would be to argue that the manager has interfered with your private enjoyment of the premise. A second, highly improbable, is to sue the manager and get an enforceable court order requiring him to wear a mask. Courts have a prejudice against ordering people to take actions when other options exist (terminating the lease, monetary compensation). It could be an interesting but expensive test case to see if you could get a judge to order the manager to wear a mask. So yes they are obligated to wear masks, but legal enforcement is going to be difficult at best. | 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. | 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. |
Can a divorced man win a downward modification of alimony and/or child support if he were tricked into a marriage by a child that wasn't his? A man and a woman are dating, and the woman gets pregnant. The woman pushes the man into a marriage before the birth of the child, claiming that the child was his. A year or two later, he finds out through a DNA test that the statement is false. The couple then gets divorced and the wife sues for alimony and child support. Will the man likely be able to get reduced child support and/or alimony on the claim that he was tricked into a marriage he would not otherwise have undertaken? (Suppose the man had written evidence (e.g. a letter, diary or journal), and told some friends that he was entering the marriage only on his mistaken belief in his paternity of the child.) Your answer can be for any state in the United States, but I am particularly interested in New York and California,. | Can a divorced man win a downward modification of alimony and/or child support if he were tricked into a marriage by a child that wasn't his? The couple then gets divorced and the wife sues for alimony and child support. Will the man likely be able to get reduced child support and/or alimony on the claim that he was tricked into a marriage he would not otherwise have undertaken? Generally speaking, marriages induced by fraud about anything other than the extreme case of fraud involving who someone is marrying in the act of marriage itself (i.e. someone believed they were marrying John Smith from Denver but actually was married to John Smith from Los Angeles, whom they had never met before, because the marriage ceremony was conducted with disguises and they didn't look closely at the marriage certificate), has no impact on marital rights. Evidence regarding fraud to induce a marriage wouldn't even be admissible at trial because it wouldn't be legally relevant. This has no impact on alimony. Paternity can be contested by filing a paternity suit within the statute of limitations for doing so which varies from jurisdiction to jurisdiction (usually within two to five years of the child's birth). If the husband prevails in a timely paternity contest, child support will not be owed. Otherwise, actual genetic paternity would be irrelevant. In California, the statute of limitations to disavow paternity of a child born to one's wife is two years from the date of birth. N.B. I am making some interpretations of inexact language in the question. It says: The couple then gets divorced and the wife sues for alimony and child support. But I assume that what is really meant is that one or both of the members of the couple file for divorce and that in the course of the divorce proceeding the wife seeks alimony and child support. If the divorce proceeding is concluded without an adjudication of paternity that would usually preclude a later lawsuit to disavow paternity. | How to Best Help I suggest you ask around at the courthouse. You might need to get advanced permission from the judge. Every courthouse is setup a bit differently so it's hard to say exactly whom you will need to ask. But ultimately that will probably require the judge's advanced approval. Order of Child Support You used the term violation so I will assume the mother has in her possession a copy of the Order of Child Support (OCS) resulting from the divorce or paternity case that determined the amount and timing of support payments she is entitled to. Correct? Aside: If the mother doesn't already have an OCS it's pretty simple to get one. Most states just have a standard set of forms and a formula to apply. There is very little subjectivity involved. Unless one or more of the parties has unreported or variable income. And she can also collect back child support too. Back Child Support AFAIK you are not barred by statute for seeking back support as far back as when dad's obligation began. Which AFAIK is when mom became the primary caregiver. In practical terms, this would be the first day mom had the kids living with her and dad didn't live with them. Interest on Unpaid Child Support Most states allow mom to collect interest on (ordered but) unpaid child support at a rate set by statute. In some states the interest rate is in the 9 to 12% range. You need to compute it using a spreadsheet. You go back to each ordered monthly obligation, calculate the number of months from then until the current date, then multiply that number times the obligation amount times 1/12 of the interest rate. Then add all those months together to get the total. Like I said, a spreadsheet is the easiest way to do this calculation. Motion for Contempt of Court Assuming you have acquired an OCS, enforcement is also pretty straightforward. In some states, the mechanism to force the father to pay is called a Motion for Contempt of Court for violating the OCS. Again, it's so common, unfortunately, most courthouses support pro se litigants by having all the necessary forms on hand and volunteers to help people fill them out! When mom files the contempt motion with the court she will schedule a date for a Show Cause Hearing, at which time dad will need to appear and explain why he should not either pay up or be found in contempt of court. Courts enforce child support VERY strictly. So the paperwork alone should be enough for her to win her case. Unlicensed Practice of Law As for you "helping her" in court. Be very careful. That sounds dangerously like practicing law without a law license. There is a thing called a "bar" in the courtroom that only attorneys or clients are allowed to cross (by practice and tradition). That's where the term bar exam originated. Anyway, if you want to try that, be very careful and you might want to run that by the judge or clerk and get prior approval first because the unlicensed practice of law has the potential to be a sticky wicket. Use of an Interpreter I would be shocked if the court did not make allowances for non-native English speakers to use the services of an interpreter in the courtroom. That's something you definitely need to ask around at the courthouse for all the details. And whether the interpreter needs to be licensed, registered or otherwise approved by the court in advance. Process Service One last point. Make sure to properly process serve dad with the motion and paperwork. Process service is what will bind him to appear at the show cause hearing. You should be able to find forms, instructions and a professional process server by asking around down at the courthouse. Dad will have a chance to respond in writing to the motion prior to the hearing. And mom will have a chance to respond to his response. Ask around at the courthouse how all this works. Especially the deadlines involved. These are also strictly enforced. State Registry Enforcement Assistance One last, last point. In the future, it might help if the OCS made a provision for the father to pay directly to the state registry for child support enforcement. The will keep track of all the payments and can provide enforcement assistance like levying bank accounts and garnishing wages, etc. So that could help with future enforcement. Disclaimer I am not a lawyer. I am not your lawyer and you nor the mom are my client. This is not legal advice. So please don't do anything based on what I write here; if you do, please be aware you do so at your own risk. So seek the advice of a real lawyer if you are going to actually do anything that might create an issue. | united-states The treatment of how paternity is handled in cases of rape, from which child support and child custody determinations flow, varies by U.S. state in the United States as a result of an ongoing and recent wave of legislative innovation, prompted by cases in which convicted male rapists sought child custody in connection with children conceived in acts of rape for which they were convicted. A state by state summary of the applicable laws as of January 2020 (which oversimplifies the situation in which there are additional distinctions not noted, some of which are differences in wording that could be relevant to how these statutes apply in the OP case) can be found here. All of these laws are targeted at the case of a woman raped by a man who becomes pregnant, which is factually predominant, something that happens many thousands of times each year in the United States as a whole, and not at the case of a man who, in the course of being raped by a female, causes the female to become pregnant as a result. Cases of men being raped that are handled by the legal system, and do not involve statutory rape, predominantly involve sexual interaction that is not reproductive, i.e. something other than a man involuntarily having vaginal sex with a woman, often prison rape by a same sex inmate or rape with an object, and also, as in other cases of rape, often doesn't result in a conception of a child due to random chance. Likewise, many women convicted of rape are convicted as co-participants in a crime that involves physical penetration of a victim by a man or an object, rather than sexual intercourse with the woman convicted of the crime. So, the number of cases that could potentially be litigated with respect to this issue is much smaller. It is also worth noting that under U.S. criminal law, sexual intercourse procured by deception (other than deception regarding the person with whom one is having sex, for example, because of a blindfold or darkness, or deception regarding one's status as a medical practitioner making a medical examination, or as a law enforcement officer making a legally authorized cavity search) is not a crime and does not constitute rape. Also, generally speaking, having sex consensually in a manner not intended to lead to conception, which, in fact, does result in conception with consent to the sex giving rise to conception (e.g. where there is an agreement to "pull out" that isn't performed due to the acts of one or both parties involved), will almost never be prosecuted criminally as rape, whether or not a jury with perfect knowledge of the facts of the interaction could convict under the law of the minority of U.S. states where this might be possible. As @user6726 notes, the primary fact pattern related to the OP historically has involved instances of intercourse that are consensual in fact, but constitute statutory rape due to the age of the father which makes it impossible for him to legally consent, and in those cases, the default rule that the biological father of a child is recognized as the father for custody and child support purposes has been the predominant rule. But much of that case law predates modern rapist-paternity statutes and there is an equal protection argument that those statutes should have a parallel construction, although to the best of my knowledge, there are no reported appellate cases that have tested that issue. It remains an open issue of first impression in most, if not all, jurisdictions that have adopted rape-paternity statutes. In Minnesota, which had not adopted such a statute as of January 2020, being raped would not be a defense to a paternity, child custody, or child support claim. | Informal common-law marriages are recognised in a number of common-law jurisdiction, though not in Ireland, and not in Alabama (which recently un-recognized them), or Washington. In Montana, you would be married (which still doesn't resolve the bigamy question). In Texas, you might be. There are three relevant elements to legal marriages at least in the US: a solemnization (ceremony), a license (or document like the Declaration of Informal Marriage document signed in Texas), and filing the license. You claim that the marriage is not legal in the place you got married or where you are now, but that conclusion might be wrong (I assume that opinion is based on your understanding of local laws, but that understanding might be in error. If your lawyer told you so, then I don't know why you're asking here, so I assume you didn't ask a lawyer). The main issue of concern would be over whether that country requires a license of registration for a marriage to be valid, or does a church ceremony along suffice. Unregistered marriages are not legally recognized in Kenya, so it could matter what country this happened in. Assuming that you did not cross the threshold for "common law marriage" wherever you were when you "got married", then you are not married now. As pointed out by ohwilleke, an issue could arise if you visited one of the 10 US states that recognizes common law marriage, and accidentally satisfied the requirements for a common law marriage (without ceremony). Texas would not be a problem even if you were there and introduced yourselves as man and wife, because there is also a cohabitation requirement (FAM § 2.401: "the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married"), but such a requirement might not exist in all states. Assuming also that you are currently in the US (hence subject to jurisdiction of some state), it is pretty much guaranteed that you have not committed bigamy. Bigamy laws can differ somewhat from state to state, but picking the Washington law as an example, one would have committed bigamy if one "intentionally marries or purports to marry another person when either person has a living spouse". However one can defend oneself against that charge if "the actor reasonably believed that he or she was legally eligible to marry". I cannot find a statutory definition of "spouse" in the relevant chapter of RCW, in which case the term takes its ordinary meaning (which means there considerable wiggle room if the matter hasn't been decided by some court). At any rate, bigamy charges in Washington are extremely unlikely. If your "ex" lived in a country which has a very expansive definition of bigamy (presumably by having a very expansive definition of marriage), then you might be subject to charges if you were ever in that country. But you could not be extradited from the US to that country for prosecution. | Of course The prosecution just needs to prove that the crime happened (or the defendant believed it to have happened) and you helped (in brief, there will be specific elements of the crime that each need to be proved). This would be easier if the primary crime had a convicted perpetrator but it’s not impossible without. Allow me to illustrate with an example. I will set out facts which are somewhat contrived and would not be so clear cut in a real case but for the purposes of the example please take them as undisputed and fully supported by evidence. John and Jill are in a relationship. This relationship is well known to be argumentative with frequent shouting matches and one or the other storming out. This does not amount to domestic violence by either party. John's friend Alan believes (wrongly) that there is domestic violence. During an argument Jill drops dead of a heart attack. John rings Alan distraught and says "I've killed her." Alan assumes (wrongly) that John has murdered Jill. Alan says "i'll take care of it. You go to your dad's". Alan (alone) disposes of the body. John is not guilty of murder (or indeed, anything). Alan is guilty of accessory to murder even though the actual crime never happened. The fact that Alan believed it happened is enough. | She can't force him, but the court can. This would be a court ordered paternity test. If one parent can't give blood for some reason they could do something else like a cheek swab. | Short Answer Is there a comprehensive list of rights that partners with children gain when they get married (or lose when they get divorced)? No. There are lots, and lot, and lots of things in the law that depend upon marital status or involve rights gained in connection with marriage. These are scattered across the law and no one primary source or official government source compiles them all in one place. It isn't possible to comprehensively list them all in one answer in this forum, due to restrictions of answer writer time and length. You could easily write an 80 page law review article on the subject if you wanted to be really thorough and you also wanted to cover all U.K. jurisdictions. Many, but not all, of the rights and legal consequences associated with marriage can be created with agreements and legal instruments outside of marriage. But for an unmarried couple, this has to be done piecemeal in order to deviate from the default rules in the absence of marriage one by one. In contrast, marriage has many legal consequences for spouses that arise by default without additional documentation, and there are a few rights and legal consequences of marriage that can not be conferred upon someone in any other way than marriage. Nonetheless, this answer highlights the more notable and important distinctions below. Caveats Regarding The Scope Of the Answer Rights v. Consequences It is more helpful to think in terms of "legal consequences incident to marriage" rather than "marital rights" as some of the legal consequences of marriage are less natural to explain in terms of rights. U.K. Law Is Mostly Not Uniform On This Subject Unless otherwise clearly indicated, I am referring solely to the law of England and Wales. Most laws related to rights incident to marriage are not uniform in the U.K. Instead, Northern Ireland, Scotland, and England and Wales, each have their own separate laws on these subjects, although the differences between them are more differences of detail than of broad conceptual structure at a "forest" level. All references to England below are to England and Wales whether this is expressly stated or not. Who Is Compared? The comparison I am making is generally between married people and unmarried cohabitants, as the law that applies between total strangers isn't really analogous in most cases. (Even though it is theoretically possible to have a married couple that never significantly cohabitates.) While the question is specific to a couple with children, formal rights in relation to the children of a couple are only slightly different in theory. But, as discussed below, the limited size of child support payments make the differences between married couples with and without children in divorce cases, significant anyway because there is a right to property division and spousal maintenance in addition to child support for married couples but not for unmarried couples. Marriage v. Civil Partnerships In England In most, if not all, circumstances, couples in a "civil partnership" receive the same legal treatment as married couples in English law, and you may assume that they are mostly equivalent for the purposes described below. England also has same sex marriage, but a significant number of civil partnerships, most entered into between 2004 when they become available and 2013 when same sex marriage was allowed, remain in existence and have not been converted into marriages. Getting Married And Ending A Marriage Common Law Marriage v. Formal Marriage Despite being the source of the doctrine historically, England no longer has "common law marriage". Common law marriage was abolished in England in the Marriage Act (1753), although it wasn't as clearly established as it is now in common law marriage jurisdictions even before then. An unmarried couple can now become a legally married couple in England and Wales only by filling out the proper government forms and presenting them to the proper government officials. According to the same source, Scotland began formal marriage registration in 1855 (which was previously documents only by the church) and once had four forms of "irregular marriage", three of which were abolished prospectively (i.e. new marriages could not be formed in this way) in 1940, and the last of which was abolished prospectively in 2006. Common law marriage outside of England and Wales, when it did exist elsewhere in the British Commonwealth, was or became closer to the Scots law practice than the historical English practice. Other parts of the British Commonwealth and United Kingdom mostly also abolished common law marriage, but did so later than England did. India, however, has a legal doctrine quite similar to common law marriage today as a legacy of British law, for members of some religions, and Australia, Canada, and Ireland have recognized somewhat similar concepts by statute or local case law innovations. Notably, common law marriage had not been abolished in the American colonies at the time that the United States gained independence in 1776 (although it took a while for the British to diplomatically recognize this political reality). In the time period from 1753 to 2006, the formalities required to get married were more lax in Scotland than in England, so it was common in that time period for couples for whom the formalities of the English marriage system were inconvenient to travel to Scotland to marry. In addition to the reality of this situation, this is a prominent feature in many fictional novels set in this time period. As a result, there is an ample case law in English and Scottish courts over choice of law issues related to this reality. This case law was referred to regularly in the late 19th century and early 20th century by U.S. courts addressing choice of law issues related to marriage and divorce, particularly in cases involving marriages and divorces entered into in Mexico and the Caribbean in an effort to evade legal restrictions present in the home states of the couples involved. In most circumstances, however, the law of England and Wales will recognize the validity of a marriage which was legally entered into under the law of the place where the marriage where it was entered into, even if that marriage didn't comply with English law regarding what is necessary to get married. Terminating A Marriage In England Then And Now Also, like all other common law jurisdictions (and so far as I know, all other civil law jurisdictions), but unlike the situations in Islamic law, it is impossible in England and Wales to end a validly existing marriage by any means other than the death of a spouse or a court order decreeing that the marriage has been dissolved. Also, if a couple was not validly married, even though there could reasons someone might think that they were validly married, a court can clarify the situation by annulling a putative marriage. Historically, since England Christianized for the last time (after becoming almost entirely pagan after Anglo-Saxon invasions by the end of the 6th century that had been preceded by partial Christianization). The restoration of Christianity in England began about 600 CE, and had run its course well before the Norman invasion of 1066 CE, which is at the root of the modern English legal system. Divorce was then prohibited in England until the Anglican Church broke away from the Roman Catholic Church in 1532 in the English Reformation. The first Christian era marriage in England terminated by divorce since long before the Norman invasion in England was in the case of King Henry VIII's marriage to Anne which was terminated in 1552. The next divorce in England took place no earlier than 1670 (although there were a handful of aristocratic annulments in that time period), and divorce was only available by parliamentary decree until 1857 when the Matrimonial Causes Act (1857) was enacted, with just 324 divorces granted by parliament from 1670 to 1857. The same source notes that: Only four of the 324 cases were brought by women. A husband needed to prove adultery to obtain a divorce. By contrast, a wife was required to prove adultery and some other especially aggravating circumstance to have the same grounds. Over the years, women learned that brutality, rape, desertion and financial chicanery did not count. Under the 1857 Act divorce could be granted on the grounds of marital fault, for which adultery by itself sufficed for a man seeking a divorce and adultery by a husband together with cruelty, or rape and/or incest of someone else was required for a wife seeking a judicial divorce. Then according to the same source: A private members’ bill in 1923 made it easier for women to petition for divorce for adultery – but it still had to be proved. In 1937, the law was changed and divorce was allowed on other grounds, including drunkenness, insanity and desertion, although there was a bar on petitions for the first three years of the marriage. Divorce remained particularly rare even after judicial divorce was authorized, especially prior to the 1923 reforms in English divorce law. In the first decade of the 20th century, there was just one divorce for every 450 marriages. . . . it was not until the Divorce Reform Act 1969 that they reached the level we are familiar with today. This legislation marked an important shift not merely because it added further grounds for divorce, on the basis of two years' separation with the other party's consent, or five years' without, but because it removed the concept of ‘matrimonial offences' and hence the idea of divorce as a remedy for the innocent against the guilty. Today, there are just two marriages for every divorce each year. Finally, starting in April 2022 the divorce regime there became an almost fully no-fault divorce regime. So, basically, either member of a married couple can unilaterally divorce at will, without that five year waiting period required from 1969 to 2021, but with still having the economic consequences discussed below. Ummarried Couples Compared Unmarried couples can break up at will, and court intervention is only available to resolve specific disputes over title to specific property, child custody type issues, and child support type issues, which married couples if they broke up would address in a divorce case. If unmarried couples resolve all issues of property division, child custody, and child support by mutual agreement without ever having resorted to court intervention, court involvement in their break up is not required at all. As noted here: In response to the increase in cohabitation, several legal changes were made in the UK in recent years. In Scotland, the Family Law (Scotland) Act 2006 provides cohabitants with some limited rights. [ed. England does not currently have similar legislation in force.] In addition, since 2003 in England and Wales, 2002 in Northern Ireland, and 2006 in Scotland, an unmarried father has parental responsibility if he is listed on the birth certificate. . . . While 49% of cohabiting couples that aren't married or in a civil partnership believe they have rights under a 'common law marriage', common law marriage has no legal standing in England and Wales. Cohabiting couples aren't automatic beneficiaries or have protections regarding non-joint bank accounts, mortgages, tenancies or pensions, unless the other person is explicitly mentioned as a joint account holder or in the terms as a beneficiary, for example in the event of death. Notable Legal Implications Of Marriage In England and Wales I'll list only a sampling of the legal incidents of marriage which are now, or have historically been, among the most important (some of which have been repealed but are mentioned because many people are not aware that the historic legal situation is no longer the case): Paternity Marriage creates a strong legal presumption (which is in some cases rebuttable) that children born to a married woman are children of her husband. Until officially declared otherwise, a man is deemed to be a child’s legal father if he is married to the mother at the time of the child’s birth[.] Rape England no longer recognizes an immunity between spouses for rape. Spousal rape is a crime in England just as it would be for non-married cohabitants. Duty of Support A spouse has a duty to economically support a current spouse (beyond child support), while unmarried cohabitants do not have a duty of support to each other. If your partner won't support you, you can ask a court to order them to support you. When it was nearly impossible or at least very difficult to get legally divorced, this right was used in about a dozen cases a year almost always by women, often in the form of a lawsuit seeking divortium a mensa et thoro ("separation from bed and board") in the canon law courts of the Anglican Church, usually on the basis of adultery or life threatening cruelty and usually with the woman receiving regular spousal maintenance but losing all custody of her children as a result unless there were extenuating circumstances. These days, most spouses who are not being supported simply get divorced and receive spousal maintenance and a share of marital property (and possibly child support as well), instead, so the right to bring a lawsuit to enforce this right has largely fallen into dessitude and is rarely utilized in practice. The doctrine is mostly used to justify policies in other areas of the law that assume spouses provide economic support for each other (which they usually do even though this right is rarely enforced with lawsuits). Property Rights During Marriage During a marriage, the property rights of spouses are essentially identical to those of non-spouse cohabitants. This is as a result of the Married Women's Property Act (1870) which abolished the doctrine of coverture (which treated a husband and wife as a single economic unit managed by the husband) in England and Wales. During the marriage title to property controls who owns and controls property in England and Wales for the vast majority of purposes for members of the married couple, just as it does for unmarried cohabiting couples, even though title may be disregarded for married couples in a divorce, and in some cases in connection with inheritance rights. As discussed in Part 9 below, England and Wales does not have a "community property" regime that is effective during the course of a marriage (although it might recognize the "community property" character of property acquired during a marriage while the couple lived in a community property jurisdiction for some purposes. Income Taxation Marriage has income tax implications in he U.K. If you’re married or in a civil partnership You may be able to claim Marriage Allowance to reduce your partner’s tax if your income is less than the standard Personal Allowance. Government Benefits, Pensions, And Employee Benefits Marriage is relevant to rights under some government benefit including "welfare", programs, but the details are too numerous to set forth here. Likewise, marital status is frequently relevant to the rules for public and private pension plans, and sometimes for other public and private sector employee benefit plans as well. One isolated area where cohabitation can confer rights similar to marriage, however, is in English Social Security laws: Social security law Living together has been part of the law since the beginning of the modern welfare state in 1948. The term "Living together as husband and wife" was introduced from 4 April 1977 to mean the same as "cohabiting with a man as his wife" which was used before that date. The term is now "living together as a married couple". To be regarded as "living together as a married couple" or cohabitating, there are various questions to consider. The question of cohabitation should take into consideration all the six questions, and looking at the relationship as a whole. Additional details on the six factor test for recognition of an unmarried couple for English Social Security benefits purposes can be found here. Court Testimony Historically, England had a privilege that excluded from evidence in court cases certain testimony from spouses against each other and certain testimony about confidential communications between spouses. This has now been abolished. The form of privilege, restricting the admissibility into evidence of communications between spouses during a marriage, existed in English law from 1853 until it was abolished in 1968 (for civil cases) and in 1984 (for criminal cases). The testimonial part of the spousal privilege was mostly abolished in the late 1800s with further clarification through 1984 in certain domestic violence settings. Immigration Spousal status is relevant to an immigration application when one spouse is a British subject and the other is not. Also known as a UK marriage visa, a spouse visa allows married partners of UK citizens to immigrate to the UK because they are married to someone who is 'settled in the UK' - i.e. a person who is ordinarily resident in the UK and has no immigration restrictions on how long they can stay in the UK. Rights Upon A Divorce Or Breakup As a practical matter, differing rights if the couple breaks up are the single most important difference between being a cohabiting unmarried couple with kids and a married couple with kids. The difference matters because the less affluent member of the couple gets a much better deal upon a break up if the couple is married than if they couple is not married. The strong rights of a less affluent member of a couple primarily matter because this makes it economically safer for a woman in married couple who has kids to sacrifice her own economic prospects to focus on those kids than for a woman who is an unmarried cohabitant. This also matters because the economic incentive for a husband not to divorce a wife who is economically dependent upon him is much stronger than the economic incentive for an unmarried cohabitant boyfriend/father to not break up with an unmarried cohabitant girlfriend/mother. Upon divorce, a divorced spouse is entitled to share of the couple's property and/or spousal maintenance (a.k.a. alimony) in excess of child support, which are far in excess of the rights of a non-spouse cohabitant, especially in the case of a long marriage in which the couple's wealth has grown during the marriage. Non-spousal cohabitants who split up divide their property based upon title to property and have no spousal maintenance obligations to each other so only child support (if applicable) is at issue. Child support and custody are still present between unmarried cohabitants or co-parents who have children together. In the arena of property division, England does not have what in the U.S. is called "community property". There is, instead, a distinction between marital property acquired during the marriage and separate property, and England and Wales has an "equitable division" regime rather than one in which there is a fixed percentage right of each spouse, and marital property rights remain inchoate (rather than vested and presenting existing) until death or divorce. If a property settlement is not reached by mutual agreement a court considers factors including: Each partner’s individual assets Contributions to the marriage or civil partnership, both financially and emotionally Time out of the workplace Earning capacity Standard of living before the break-up Requirements such as catering for disabilities Length of marriage How old you both are In practice, the fact that a couple has children together also tends to influence what is equitable in a property division. The presence or absence of spousal maintenance greatly impacts the practical effect of a split up for a couple with children who are married v. a couple with children who are not married. A marital property settlement and spousal maintenance in addition to child support makes life a lot easier for a less affluent ex-spouse than child support alone. Inheritance Upon death, a surviving spouse has inheritance rights different from and greater than a non-spouse cohabitant, in the estate of the deceased spouse. Generally speaking, if there is no will, a spouse has significant inheritance rights, while a non-spouse cohabitant does not. There are also legal limitations on the extent to which a spouse can be denied an inheritance even if there is a will. While in general, a spouse has testamentary freedom to disinherit a spouse in English law (unlike the vqst majority of U.S. and civil law jurisdictions), in England, the Inheritance (Provision for Family and Dependents) Act (1975) "sets out categories of people that have the legal standing to challenge another person's Will on the basis that they have not been left reasonable financial provision." Spouses also have greater rights at death than unmarried cohabitants with regard to management of a probate estate of a decedent partner and disposition of a partner's body, at least in the absence of estate planning documents to the contrary. Transfers to a spouse at death are also exempt from inheritance taxation. Marital status is also highly relevant in England to the rules for succession to aristocratic titles and for the titles of someone who is married to someone with an aristocratic title. While English law normally makes little or no distinction between legitimate and illegitimate children (which is a function of whether their parents were married), in the area of succession to aristocratic titles and eligibility for titles that imply marriage to someone with an aristocratic title (like the former Queen's Consort), the distinction between married couples and their children, and unmarried couples and their children is very important. Incapacity Unlike most U.S. jurisdictions, marriage does not, in and of itself, grant strong rights relative to a cohabitating partner, to a role in medical decision making or guardianship proceedings in England. An adult's "next of kin" is generally their spouse or civil partnership partner, which is not automatic in the case of a cohabitating partner. But, the rights associated with next of kin status are generally limited to notice or information until another basis to be involved in decision-making is established: As far as the law is concerned next of kin means nothing with the exception of children aged under 18. The next of kin of a child under 18 may be legally entitled to make decisions for or on behalf of the child. The term usually means your nearest blood relative. In the case of a married couple or a civil partnership it usually means their husband or wife. Next of kin is a title that can be given, by you, to anyone from your partner to blood relatives and even friends. It is also possible to name more than one person as your next of kin. This is a title that is primarily used in order for emergency services to know who to keep informed about an individual’s condition and treatment. This means that you have no legal rights as a result of this title. This can create difficulties if you haven’t put additional measures in place to manage your relative or loved one’s affairs. If you do not have any legal rights, you cannot make decisions on their behalf. Similarly, pretty much anyone can be appointed to be an adult's guardian in England, with no absolute priority for a spouse or a blood family member over a cohabitating partner or any other person expressing interest in the care of an incapacitated person. Marriage is just one factor among many considered in a fairly wholistic manner when deciding between competing applications to serve as someone's guardian. Cohabitation Post-Divorce By A Formerly Married Couple A married couple with children that gets divorced and then cohabits post-divorce are not on quite the same footing as a cohabiting couple with children who have never married. The starting point in such a couple for the rights of the former spouses vis-a-vis each other begins with the divorce decree and any incorporated settlement between the spouses in connection with the divorce. Provisions related to child custody and child support may be modified over time as the children grow and circumstances change. In some unusual but not unheard of circumstances, spousal support duties arising from the prior marriage can be imposed long after the divorce even if spousal support was not immediately imposed at the time of the divorce or was only nominal at that time. Provisions related to court ordered child custody arrangements, child support, and spousal support normally continue in force until they are spent by the their own terms (e.g. when the children become adults or spousal support established for a fixed time period ends), are modified by a later court order, or the couple remarries. It is uncommon, but not completely unheard of, for the children of a couple for whom child custody arrangements have been imposed between unmarried coparents or in a divorce at one point, to ever cease to be subject to some sort of court order related to child custody. Court orders related to children or spousal maintenance cannot normally be adjusted by mutual agreement after a divorce without court intervention. Remarriage will generally abrogate and cause to become void all provisions in a divorce decree, settlement, or post-divorce court order related to the children, and all provisions with spousal maintenance, while the property ownership and debt obligations of the parties to the remarriage restart from scratch at whatever state they were in immediately prior to the remarriage. Sometimes a remarriage after a divorce legitimatizes the paternity of children born between the marriages. First Marriages Of A Cohabiting Couple With Children When a cohabiting couple with children marry, they have all of the incidents of a married couple. Sometimes, but not always, this will help establish the father's paternity of their children. Court orders related to the custody and child support of their shared children will usually be dissolved (I don't know if any formal legal action is required to do this or not). Property acquired by the couple prior to marrying while cohabiting will generally be separate property owned by the spouse who was in title to that property prior to getting married. In a subsequent divorce of that couple, the length of the marriage will not include the full time of their cohabitation, but their cohabitation prior to marriage is a factor which a divorce judge is not prohibited from considering entirely in making an equitable division of marital property and in awarding spousal maintenance. | In a typical divorce proceeding, both sides are required to provide a sworn statement of their finances, and to respond to written interrogatories, produce documents (e.g. financial statements made in loan applications, balance sheets, tax returns, bank statements, and copies of deeds and certificates of title and stock certificates) and be deposed in pre-trial discovery proceedings. Divorce lawyers have the authority to subpoena third-party records custodians and to take a small number of depositions of third-party witnesses prior to a permanent orders hearing and can usually get permission to take more if there is evidence suggesting that it would be fruitful to do so. There are a variety of sanctions that may be imposed for failure to cooperate, including adverse inferences regarding the facts that would have been disclosed if there had been disclosures in the discovery process. Still, it behooves a client to know as much as possible before commencing the process, since having lawyers gather this information during the course of divorce litigation is expensive and isn't always perfect. Where misconduct is suspected, a spouse's lawyer will typically retain forensic accountants and/or private investigators and will compare bank and accounting and tax records with other public records such as real property records, corporate records and tax filings. Unless an asset has produced no income or expenses flowing through a personal or business account, it will usually show up somewhere. Spouses will also often have familiarity with where to look based upon living with a spouse and often will have obtained copies of relevant correspondence or documents to provide a lead - perhaps a letter asking a spouse to fill out corporate paperwork or receipt from a foreign bank account. This investigation process (collectively called discovery) usually takes place between the filing for a divorce and the half year or more later when a permanent orders hearing is held. Often, in complex cases and cases where there is a likelihood that assets have been hidden, the final hearing will be set later after the original filing than it would otherwise be, and the planned hearing will be longer in light of the evidence that will need to be produced at that time. In my state, a spouse has up to five years after a divorce to reopen a proceeding is undisclosed assets are discovered. It isn't impossible to hide assets in a divorce, but it isn't easy either. |
Was Lolade Siyonbola legally required to provide ID to police another student called on her for sleeping in a Yale dorm common room? https://www.cnn.com/2018/05/09/us/yale-student-napping-black-trnd/index.html From what I've read, Connecticut is not a stop and identify state. However, I understand that people are required to identify if police have a reasonable suspicion that a crime has been committed, is being committed, or is about to be committed (but if there is no such suspicion, they are not required to identify even in stop and identify states) But does it qualify as reasonable suspicion that another student called police and said Siyonbola "appeared they weren’t … where they were supposed to be"? And if so, what laws might be put into place to protect individuals from situations like this where someone makes a prejudiced police complaint against them? | 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. | Does said police department have any obligation to ID, investigate and detain / arrest the false caller? No. See Castle Rock v. Gonzales, 545 US 748 (2005). Usually, police do investigate, but that is a matter of department policy and political expectations, not a legal obligation to do so. | 34 CFR Subpart D covers this topic ("Under what conditions is prior consent not required to disclose information?"). This includes The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests so that raises the question of whether there is a legitimate educational interest. Additionally, the question is raised as to the status of an SRO (they are not teachers). Disclosure is allowed to A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided... the conditions being that the person Performs an institutional service or function for which the agency or institution would otherwise use employees; Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and Is subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records I would take this model memorandum as the most likely agreement, though your district may have a totally different memo where SROs are purely security guards. An SRO is to advance the program objective which include "Education of children regarding the role of laws, courts, and Police in society", which is the hook into "legitimate educational interest". This nothwitstanding the part that says that they "are police officers and not school teachers, school administrators, nor school counselors. The officers will assist teachers with classroom presentations on relative topics when requested and able" (there is no principle that only teachers, administrators, or counselors can have a legitimate educational interest). This model memo does not say anything that indicates that the conditions "Is under the direct control" and "Is subject to the requirements of §99.33(a)" are true, but those conditions could be satisfied external to the MOU. There are some additional exceptions of the "if required by law" type, such as a state law "adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released"; or, after that date, is "subject to the requirements of §99.38" which refers you to §99.31(a)(5)(i)(B). If that is confusing, here are the two self-referring sections: §99.38(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose education records under §99.31(a)(5)(i)(B). §99.31(a)(5)(i)(B). The disclosure is to State and local officials or authorities to whom this information is specifically...Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974, subject to the requirements of §99.38. So state law is one possibility; "legitimate educational interest" is a remote possiblity. Massachussetts law does include governmental third party disclosures: 603 CMR 23.07(4)(c) A school may release information regarding a student upon receipt of a request from the Department of Social Services, a probation officer, a justice of any court, or the Department of Youth Services under the provisions of M.G.L. c. 119, sections 51B, 57, 69 and 69A respectively. That does not directly apply to local police, but it is possible that a police officer is operating as a probation officer or an agent of the Department of Youth Services. Under paragraph (e), A school may disclose information regarding a student to appropriate parties in connection with a health or safety emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. This includes, but is not limited to, disclosures to the local police department Mass. law allows the possibility of treating a police officer as "authorized school personnel" if they are "providing services to the student under an agreement between the school committee and a service provider, and who are working directly with the student in an administrative, teaching counseling, and/or diagnostic capacity" – which is not completely out of the question but is a bit of a stretch (especially in the context of a blanket statement "we share records", not "we may share yours, if you get special counseling"). Tne law also says "Any such personnel who are not employed directly by the school committee shall have access only to the student record information that is required for them to perform their duties", so sharing of all records would not be allowed. | I'll use Washington state as my source, but laws will be similar in other states. RCW 9A.76.020 outlaws obstructing a law enforcement officer, which this would be: it is a gross misdemeanor. In using lethal force, you would have committed first degree murder, under RCW 9A.32.030. There is a defense that can be used, per RCW 9A.16.050, that homicide is justified when: In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished. Law enforcement officers have access to justifiable homicide defenses as well under 9A.16.040, for example (b) When necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty or (c) When necessarily used by a peace officer or person acting under the officer's command and in the officer's aid: (i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony The outcome of the case would hinge in part on whether the officer's arrest and use of force was lawful. To take two extremes, if the guy on the ground had just killed a dozen people and was aiming to rack up another dozen kills, the officer's arrest would almost certainly be held to be legal and his degree of force justified. Your personal belief that the suspect was compliant and unarmed might be refuted by the facts. On the other hand, if the guy on the ground had slept with the officer's sister and the officer wanted to rid the world of this vermin, then the arrest and force would almost certainly be held to be not legal. It can be legal to use deadly force to resist unlawful arrest. See John Bad Elk v. United States, 177 U.S. 529, where the court held that if a party resisted arrest by an officer without warrant, and who had no right to arrest him, and if, in the course of that resistance, the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had had the right to arrest, to manslaughter The court also said where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest from what it does if the officer had no such right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed. This ruling has been somewhat eroded, in US v. Simon: We recognize that law enforcement officers are frequently called on to make arrests without warrants and should not be held, so far as their personal security is concerned, to a nicety of distinctions between probable cause and lack of probable cause in differing situations of warrantless arrests. It is for this reason we believe that the force of John Bad Elk has been diminished The upshot of this is that (assuming no warrant), leeway is granted to officers in assessing probable cause (I'm not sure anybody really knows at a general conceptual level what constitutes "probable cause". The court seems to imply that the remote hearsay used as the basis for the arrest would not have been sufficient for a warrant, but it was "reasonable grounds" for believing accused had committed a crime). Your premise that the officer is about to shoot would have to be substantiated by some fact, such as a declaration "I'm gonna kill you". Otherwise, your belief that the officer was about to commit unjustified murder would itself be unjustified. With better fleshing out of the circumstances, you could manufacture a justified-homicide scenario. | You are allowed to ask the police whatever questions you like. There is an upper limit that you can't refuse to obey a lawful order on the premise that you want to ask a bunch of questions, but they don't seem to have ordered you to do anything, so you can ask away. They have no obligation to tell you anything or to be truthful, except for certain questions like "am I free to go" when you want to leave and are testing whether you are under arrest. Even then they don't have to answer your questions right away. The police can therefore ignore you, especially if you are asking curiosity questions. It might be that they are restricted from giving information in certain circumstances (pertaining to the privacy of others). If there is an issue of legitimate concern (e.g. Little Billy has been beating up on cats again) and you feel that you need to know this, then you can request the police record on the matter. Certain information will probably be redacted under state law, but you could get a report that states that some [redacted] juvenile was beating up on animals. The Florida records law is one of the first in he nation, dating back to 1909. You can read this, to see if you think the circumstances match one of the exemptions, though all you have to do is make the request and be told that the record is exempt, then you will have some idea what was going on. | I overdosed on an illegal drug and called an ambulance. I was honest and told them what I took. [emphasis added] You stated that you had possession, and had recently used a notable amount, of an illegal substance. That is reasonable cause (or "probable cause" in some jurisdictions) for a search, regardless of a warrant, and they do not need permission. For example, as FindLaw.com explains, in the USA. [p]olice may use firsthand information, or tips from an informant to justify the need to search your property. If an informant's information is used, police must prove that the information is reliable under the circumstances. | 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. | ...in this case the officer has "definite cause." Why is probable used? "Probable cause" is a standard for when a property search can be conducted or a warrant issued. According to the Wikipedia article you linked to, Ballentine's Law Dictionary defines probable cause as a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true We do not talk about "definite cause" because there is no such legal standard. Having "definite cause" as you suggest here simply means you have a very strong case to satisfy the legal standard of probable cause. Referring to the above definition, the officer whose drug-sniffing dog alerts at a traffic stop certainly has a "reasonable amount of suspicion." The officer may actually have an incredibly high amount of suspicion, but that's irrelevant to the probable cause standard. It is merely sufficient that the officer's level of suspicion is "reasonable" and backed by suitable evidentiary circumstances. It just seems like any way you try to interpret the word "probable" it doesn't make sense, you either have cause to search/arrest/etc. or you don't where is the probability? The probable cause standard is "probable" because it does not impose exacting requirements on law enforcement. (Note that the U.S. Constitution uses "probable" slightly differently from its modern meaning; see another answer.) It need not be blatantly obvious that a crime is being committed but likely that a crime is being committed. Of course, the exact standard of how likely is likely enough to satisfy the standard of probable cause (and what evidence constitutes a particular threshold of likelihood) is a test for the court to determine. |
Publishing (non-commercially) a video-interview with a celebrity online, without written consent Suppose that several years ago a non-profit organization made a short video-interview with one of the most famous US performers, who very rarely gives interviews. Suppose that it was recorded in Switzerland after one of his performances. The organization did not collect any written consent. Now the organization (which is based in Switzerland) would like to publish this recording online to make it publicly available. The organization is strictly non-profit and for public benefit (in the US it would be a 501 (c)(3) ). Suppose that there is a delicate part in the interview where the performer mentions his religious beliefs. Since the performer lives in the US, US law is applicable. Given that the interview was made with implicit consent (he was in front of a camera), and will not be commercially exploited, does the organization have a right to publish it? What legal actions could the performer successfuylly take in response? | This is a surprisingly complex question, with several aspects. There is the question of what jurisdiction's law to apply, there is the question of copyright, and there is the question of personality rights, also known as a right of publicity. Whose Laws The question says: Since the performer lives in the US, US law is applicable. This is generally incorrect, or at least oversimplified. If there were an agreement between the performer and the organization, that agreement might specify what jurisdictions law applies. In the absence of such an agreement, the law of the place of publication will most likely apply. But since the intent is to publish on the internet, it is in effect published everywhere that an internet connection is available, which is almost all of the world. Legal action might be brought in any country with an internet presence. Particularly likely is the location of the organization, which seems to be Switzerland, and the residence of the performer, the United States. If the interview were to be published in a print publication circulated primarily in a single country, the law of that country would be the normal choice. Most of the discussion and caselaw I have been able to find is about US law, but some applies to UK or EU law. Copyright Fixation In all countries adherent to the Berne Copyright Convention, works are protected by copyright as soon as they are "fixed in some material form" (article 2 of the convention). In US law 17 USC 102 provides that: Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression Interviews have sometimes been denied copyright protection on the grounds that they were not fixed, but where an interview is recorded in audio or video form as it is made, it is clearly fixed in a tangible form, and protected by copyright. Ownership of Copyright in an interview The general rule is that copyright initially belongs to the "author" of a work (Articles 3 and 5 of Berne, 17 USC 201 But courts have been divided on who is the "author" of an interview. Most often the view has been taken that the interviewer (or the interviewer's employer) is the author, and holds initial copyright. Some cases have considered the interview to be a compilation with the interviewer holding copyright on the questions, and the subject of the interview (interviewee) holding copyright on the answers. And in some cases an interview has been treated as a joint work by the interviewer and the subject, making them joint owners of the copyright. Cases Falwell v. Penthouse Intern In the case of Falwell v. Penthouse Intern., Ltd., 521 F. Supp. 1204 (W.D. Va. 1981) a claim by the interview subject, the Rev Jerry Falwell, for copyright in an interview, was denied (along with claims for false light, defamation, conspiracy, and violation of personality rights, all of which were also denied). Judge Turk of the U.S. District Court for the Western District of Virginia wrote on the copyright claim in an interview: Plaintiff's claim of copyright is not founded on any existing principle of law, nor is it even analagous to any of the circumstances which heretofore have been contemplated by the courts. Plaintiff's claim of copyright presupposes that every utterance he makes is a valuable property right. If this were true, the courts would be inundated with claims from celebrities and public figures ... Plaintiff cannot seriously contend that each of his responses in the published interview setting forth his ideas and opinions is a product of his intellectual labors which should be recognized as a literary or even intellectual creation. Although the general subject matter of the interview may have been outlined in the reporters' minds prior to their meeting with plaintiff, the actual dialogue, including the unprepared responses of plaintiff, was spontaneous and proceeded in a question and answer format. There is no defined segregation, either by design or by implication of any of plaintiff's expressions of his thoughts and opinions on the subjects discussed which would aid in identifying plaintiff's purported copyrighted material. ... In the case at bar, plaintiff willfully and freely participated in the interview. An interview with members of the media is not a private conversation. Like a press conference, plaintiff in this action responded to questions in a spontaneous manner and not from a carefully prepared text or even from notes. Moreover, plaintiff was aware that his comments were not made in the context of a private conversation but rather were destined expressly for dissemination to the public. Plaintiff is free to pursue a breach of contract action against the journalists. But he is trampling upon fundamental constitutional freedoms by seeking to convert what is essentially a private contractual dispute into a broad-based attack on these principles of freedom of speech and press which are essential to a free society. Taggart v. WMAQ Channel 5 Chicago In Taggart the court held that an interview subject (a prison inmate) had no copyright in teh answers given. I have not been able to find a copy of the decision online, but it was cited and described in Michael G. Scott v. Scranton Greeting Cards, Co., No. 16-345 The opinion said in relevant part: Here, I follow Taggart v. WMAQ Channel 5 Chicago, No. 00-cv-4205, 2000 WL 1923322 (S.D. Ill. Oct. 30, 2000). The court in Taggart refused to allow a prisoner who had submitted to an interview with a television station to use the copyright law to force the station to destroy the tapes of their interview, on the ground that the interview responses were not copyrightable by the interviewee. The Taggart court gave at least three reasons for denying the plaintiff’s “singular and unjustified” attempt to claim copyright in the oral responses to the interviewer’s questions: (1) there is no copyright in the spoken word; (2) the interviewee is not the “author” of any published work; and (3) the responses were uncopyrightable facts. Although I do not find here that the interview responses consisted of uncopyrightable facts, I am persuaded that there is no copyright in the spoken word and, most importantly, Scott was not the “author” for copyright purposes of any copyrightable “work.” See 17 U.S.C. § 102 (providing that copyright subsists only in “original works of authorship fixed in any tangible medium of expression”). I recognize that there is dicta that disagrees with this position. The district court in Swatch Group Management Services. Ltd. v. Bloomberg L.P., 808 F. Supp. 2d 634 (S.D.N.Y. 2011), for instance, refused to dismiss a case where the defendant alleged that the interview responses given during a corporate earnings conference call were not copyrightable. Likewise, the court in Maxtone-Graham v. Burtchaell, Andrews & McMeel, Inc., 803 F.2d 1253 (2d Cir. 1986), implied that authors of books containing interviews must get copyright assignments from the interviewees before the authors can sue for infringement based on use of the interviewees’ words. Book authors would only be required to obtain copyright assignments from interviewees if the interviewees held the copyright in their responses in the first place. Moreover, some academic commentary takes a different tack altogether and suggests that interviews should be considered “joint works,” where the copyright in the entire article is held jointly by the interviewer and the interviewee. The reasoning here is that “the questions and answers in an interview are contemporaneous” and so the resulting interview is a joint product of both parties. See Paul Goldstein, Goldstein on Copyright § 4.2.1.3 (3d ed. 2016). ... But these positions both run up against two fatal flaws. First, ..., granting any form of copyright ownership to interviewees is generally inappropriate, because they are not “authors” of their own “works.” Instead, they simply answer questions and leave it up to interviewers and publishers to create the published interviews, which often contain introductions and edits. It is the published interview that is the “fixed” work and therefore the proper subject of copyright. Interviewees typically have no control over that fixation nor any hand in the resulting work; they only take part in the conversation that led to the work. They thus have no authorship interest at all—joint, solo, or otherwise. Second, denying interviewees any copyrightable interest in interviews published in newspapers or magazines is the only way to maintain the delicate balance between the First Amendment and intellectual property protection that the Copyright Act demands. ... But there is no evidence that Congress ever meant to reverse the centuries-old understanding that publishers ultimately control the use and reuse of interviews and quotations that appear in their pages. Donoghue v Allied Newspapers In the case of *Donoghue v Allied Newspapers[1938] Ch 106 The UK high court denied the claim of an interview subject to control the republication of an interview. Donoghue, then a popular jockey, gave an interview to a journalist in return for payment. The journalist wrote and published a series of articles, apparently recasting Donoghue's words. Later the journalist wrote a separate article for a different publication, reusing the contents of the interview. Donoghue demanded additional payment, and sued for copyright infringement. Chloe Sevil (see sources) wrote: The court ... found that Donoghue did not own the copyright in the articles. If the journalist had substantially reproduced Donoghue’s own words or had copied them word-for-word in the articles, then Donoghue may have been able to claim copyright. As Donoghue had only supplied the idea for the articles, he wasn’t the author of the article and therefore not its copyright owner. This case cuts both ways, as it suggests that the subject may own copyright in the exact words of the interview. I have not found a copy of the opinion online. Rights of Personality In some jurisdictions a person, particularly a famous or well-known person, has a right to control the use of his or her name or likeness for commercial purposes, particularly including the promotion of any product, service, or business. This is true in some but not all US states, and is a matter of state law in the US. This is also known as the right of publicity. If an interview, or an except or an image from it were used to promote any commercial interest, this right might well require the permission of the subject. the right of publicity does not generally extend to the publication of the interview itself, even if it is a commercial publication. This is all the more true for a non-commercial publication. So rights of publicity would not affect the publication described in the question. Sources consulted "Are interviews copyrighted?" 1917 article by *New Media Rights "Rights & Permissions" University of Iowa Press "Who Owns the Copyright in an Interview or Social Media Post?" by Chloe Sevil of LegalVision. "Who Owns an Interview? Insights into Copyright Cases" a 2021 article by Lloyd L. Rich (an attorney practicing publishing, cyberspace, and intellectual property law), published by the Independent Book Publishers Association. "Who 'Owns' an Interview?" by Mark Fowler , postesd on hius blog Rights of Writers Folwer describes himself as: "an attorney in New York City with 29 years of experience working for media companies - book and magazine publishers, newspapers, broadcasters, and online publishers, among others. For eight years before going to law school I was a writer and editor..." "Retrospective - Authorship" by Jani Ihalainen in IP Iustitia (I will be adding to this answer shortly. -DES) | Very similar to how MySpace done it all those years back.... MySpace did it differently back then because they got sued for copyright violations for the music their users were uploading and streaming. https://www.google.com/search?q=myspace+lawsuit+music These days, you can upload music to MySpace, but they have licenses and agreements with music publishers, and are clear to their users what can be legally uploaded: https://help.myspace.com/hc/en-us/articles/202591770-Music-Upload-Requirements And remember.... By uploading any content to Myspace, you hereby certify that you own the copyright in or have all the necessary rights related to such content to upload it. Don't step on someone else's hard work. And Myspace is are clear on how they handle copyright violations: https://help.myspace.com/hc/en-us/articles/202055394-Copyright-FAQs Myspace will respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act (“DMCA”). The DMCA provides a process for a copyright owner to give notification to an online service provider concerning alleged copyright infringement. Now, with your question: you are allowing users to both upload music and stream it. Streaming is legal in the UK; see an older question here on LSE Is Streaming Copyrighted Content Illegal in the UK But the hosting - storing the actual files - of copyrighted material is not legal. But my app knows no detail of the song uploaded. Could be anything.... This doesn't matter; the files are on your server. You run the risk of legal action being taken against you for the actual .mp3 file of copyrighted music on your server. You are the owner of the webserver, and thus control the files on it, along with your knowledge of building an App that allows users to upload the files. Even if you claim to know nothing about what users upload with the App you built, the music files are on your server. What happens also depends on where the server with the music files is located, i.e. in the UK (action against you legally possible), or elsewhere (legal action against depends on the country and their laws and agreements with other countries). If your server is in a third-party country and can't be taken down, but you are a UK resident, the music companies can still go after you in other respects, as the paying owner of the server, the owner of the domain registration, even possibly as the creator of the App itself. | No, bare possession is not illegal under US law Nothing in Tile 17 of the US code (which is the copyright law) makes it illegal or even actionable to simply posses a single physical object (such as a game or a book) which constitutes a copyright infringement. Criminal copyright infringement is defined in 17 USC 506 and is limited to people who: Infringe for "purposes of commercial advantage or private financial gain"; and Create infringing copies "which have a total retail value of more than $1,000" in a six-month period; or Infringe "by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution." However, in practice, the US Department of Justice only brings criminal copyright cases when infringement is carried on as a business, on a bulk or mass basis, and only when infringing copies are in fact distributed to the public. In practice the vast majority of copyright enforcement (both in the US and in other countries) is done by private suits by copyright owners or rights-holders. In the US such suits are generally to enforce the rights guaranteed in 17 USC 106. This protects six core rights (summarized): To make copies or phonorecords; To prepare derivative works; To distribute copies or phonorecords; To perform the copyrighted work publicly; To display the copyrighted work publicly; To perform the copyrighted work publicly by means of a digital audio transmission. The copyright owner can do any of these or authorize other to do them. Anyone doing any of these without such permission is an infringer unless one of the exceptions or limitations in sections 107 thru 122 applies. There are also the "moral rights" specified in section 106A. These apply only to works of visual art in the US, and grant the artist the right to: Claim authorship of the work; Prevent the use of the person's name on any work s/he did not create; Prevent the use of the author's name on any work that has been changed so as to possibly harm the author's reputation; Prevent any "intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation"; and Prevent any destruction of a work of recognized stature. Note that none of the six rights from sec 106 or the five moral rights from sec 106A covers possession of an infringing copy. One caution: so-called "first-sale rights" (from 17 USC 109) do not apply to an infringing copy, and it is infringement to knowingly sell, lend, rent or otherwise distribute an infringing copy. But the purchaser is not an infringer. Also, to play an infringing copy of a game might be a violation of the right to "publicly perform" the work, but not if done in private. However, in running a game it is likely that one or more temporary copies would be made. This is lawful if done from a lawful copy, but not if the person does not posses a lawfully-made copy. So playing an infringing copy of a game might well constitute an act of infringement, although a suit over a private act is unlikely. | In the United States, when you distribute a recording of a nondramatic musical work, the law grants a compulsory mechanical license allowing anyone to cover the song provided certain formalities are observed, and royalties are paid to the original artist. See 17 U.S.C. sec. 115. If your song falls under this section, then all that is required for your friend to cover it is to give you notice and to pay royalties as provided by the applicable statutes and regulations. Of course, you are free to negotiate other terms if you want to. But your song can be covered even if you don't. | Yes, a licensee of Sketchfab is only required to cooperate with this audit process because it was agreed to in a contract. Copyright law does not (in the US, or anywhere else that I know of) give a content creator such a right to demand proof that something is being used in accord with a license. If a content creator or copyright holder thinks that some content is being used without permission, or is an unauthorized derivative work, the holder has only a few possible courses of action. The holder can send a cease and desist letter. This has no legal force, but puts the alleged infringer on notice, makes further infringement clearly "knowing", and may well cause an infringer to stop infringing for fear of an expensive suit. The holder can send a takedown notice if the content is online in a venue that accepts such notices. But there is not a legal obligation to honor such a notice, and a counter-notice may lead to the content being put back up. Finally the holder may sue for copyright infringement. This has significant upfront costs, and requires significant time from the holder or the holder's business. The holder may therefore be unwilling to bring suit unless significant recovery seems likely. Once suit is brought, the holder will have discovery rights to demand answers to relevant questions from the alleged infringer, including the source of the content in question. | 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. | I am not a lawyer; I am especially not your lawyer; this is not legal advice; if you want legal advice, hire a lawyer. Idk. But probably not. The YouTube terms of service seem to prohibit this pretty clearly: You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player)... You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate. Now, were YouTube itself licensing the videos in question under the CC license, they might be prohibited from enforcing that term: You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material. though I'm not sure if the language in question would apply. However, it seems likely that in most cases, YouTube is using the material in question under the license to which users agreed when they created their accounts, and therefore is not bound by the term in question. All that said, it's entirely possible that the clause in the YouTube ToS prohibiting downloading does not apply for whatever reason (unconscionable in a contract of adhesion, browsewrap agreement doesn't form a contract to begin with, it's superseded by either some other agreement (part of the API EULA, etc), it's contrary to some law in your jurisdiction, etc). Just to be very clear, though, there is no COPYRIGHT CONCERN preventing uses like the one you mentioned. | No, the musical composition itself (i.e., what you might express tangibly in sheet music) has copyright distinct from the copyright that exists on Led Zepplin's recording of the song. Your new cover will still be a derivative work of the musical composition. When you record a cover of a copyrighted song, you must get permission from the composer (or current copyright holder of the composition). In the United States, however, you can compel the copyright holder to grant you license under 17 USC §115. Under a compulsory license, you pay a fixed fee per copy of the cover that you distribute (currently 9.1 cents), and the copyright holder must allow you to distribute those copies. See the circular Compulsory License for Making and Distributing Phonorecords from the U.S. Copyright Office. I am not aware of other countries that have a similar compulsory license scheme, so in those jurisdictions, you would need to negotiate a license with the publisher or an intermediary agency they use. However, even if you did get a compulsory license to distribute your cover song, you must get permission to synchronize the song with a video. The American Society of Composers, Authors and Publishers describes the copyright holder's exclusive synchronization right: A synchronization or "synch" right involves the use of a recording of musical work in audio-visual form: for example as part of a motion picture, television program, commercial announcement, music video or other videotape. Often, the music is "synchronized" or recorded in timed relation with the visual images. Since the synchronization right cannot be acquired under a compulsory license, you will need to have the publisher (or whoever the copyright holder is) agree to license the synchronization right to you under whatever terms the two of you can agree upon. |
My Canadaian university denied my religious vaccine exemption request, what type of lawyer do I speak to? I am situated in Canada. And go to a Canadian university (in Toronto). My university has a vaccine mandate for the Covid-19 vaccine, which I have requested an exemption to, due to issues with the vaccine and my religion. Anyways, I would like to know more about why I was denied and how I can remediate this, and think that speaking to a lawyer about this (my response to the denial) is my best move. So, since im not from Canada (from US), I dont know what type of lawyer to try and contact...? | Canadian lawyers who handle this kind of matter usually describe themselves as "human rights" and/or "discrimination" lawyers. No formal regulatory specialty is recognized or required, however. Any licensed lawyer in good standing is legally permitted to take on such a case. | Religious protection from federal warrants is not a First Amendment issue. If protected at all, the best argument would be in RFRA, the federal statute implemented in 42 U.S.C. §2000bb-1 et seq. It provides that the "Government shall not substantially burden a person’s exercise of religion..." except if the burden "is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest." It is my guess that every court in the U.S. would agree that a search warrant issued upon probable cause is in furtherance of a compelling governmental interest, and having an agent or two walk through the house (or whatever is necessary in order to exercise that warrant) is the least restrictive means of furthering that interest. | south-africa It is legal for South African employers to adopt a mandatory vaccination policy. The guidelines for such policies are described in Annexure C of Consolidated Coronavirus COVID-19 Direction on Occupational Health and Safety Measures in Certain Workplaces, released in June 2021. Briefly, it appears that employers may impose mandatory vaccination policies. However, employees can object to being vaccinated policy on "constitutional1 or medical grounds". If the employee does so, the employer must "counsel the employee", refer them for further medical examination (if a medical exemption is claimed), and provide "reasonable accommodations" so that employees who remain unvaccinated can remain employed. What exactly is a "reasonable accommodation" is in the eye of the beholder. Working from home is mentioned as a possible accommodation in the above-linked document. Other possible accommodations might include being transferred to a position that involves less public interaction, being required to wear a mask at all times, or working at different hours or a different location from other employees. If reasonable accommodations cannot be made due to the nature of the employer and the employee's position & duties, then the employee may be dismissed. Ultimately, what types of accommodations are "reasonable" will depend on the specific circumstances of the employer and the employee. If you are considering going this route, it would be worth your while to consult with a lawyer. If you have a trade union that represents you, it might be worth consulting with them as well. Finally, while the above outlines your legal rights to refuse to be vaccinated, I feel obliged to encourage you to just get vaccinated. The risks are minuscule and the benefits to you and those around you are substantial. 1 "Constitutional" here refers to religious beliefs but also to Section 12(2)(b) of the South African Constitution, which guarantees that everyone has the right "to security in and control over their body". | You clearly cannot provide data that you haven't stored – and not storing data is a good thing under the Art 5(1)(c) Data Minimization Principle. Despite the Art 20 data portability right being conditional on that the data subject has provided data and not on that data has been stored, I think responding to such a request with “sorry, as per our privacy policy we do not store this data” would be perfectly fine. It is also curious that you are using consent as the legal basis for the purpose of selecting the website language. How do you obtain consent from visitors? How can you prove that you got consent? In many ways, consent is the legal basis of last resort, and I'd think that legitimate interest would be a much more straightforward approach in your case. | How should I proceed? I am asking law friends to recommend some employment lawyers, but other than this, can I do anything else? You definitely don't need an employment lawyer for this. From a legal standpoint, the matter is very simple: If you grant their request (whether by signing or otherwise expressing your acceptance), you would be waiving any remedies currently available to you for their breach of contract. The company's attempt to override its contract with you is quite naive, but the company can always (and evidently does) try to get away with its liability nonetheless. I would not be surprised if the company subsequently tries harder to intimidate you, but that does not change your legal position & merits unless you sign the waiver the company is pursuing. Asking for your post-termination availability reinforces the notion of company's poor planning and subpar management. | According to the EEOC, in general: An employee cannot be forced to participate (or not participate) in a religious activity as a condition of employment. But how religious is this party? Simply calling it a "Christmas party" (or "holiday party") doesn't really make it a "religious activity". Many nonreligious people celebrate Christmas as a general holiday. If the party is nonreligious, then your religion is mostly irrelevant, whether or not it celebrates a winter holiday. The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion. So, they'd likely have to serve something you could eat if they're serving food, as that would be a reasonable accommodation. (But you'd have to inform them of your needs beforehand; asking them to go out and buy something during the party would probably not be "reasonable".) | The vaccine card doesn't have a specific legal status under US law. There are federal laws against fraud which would encompass vaccine card fraud, but tidying up disparate notices into a single notice is not fraudulent (there is no attempt to deceive), as long as you don't falsify signatures, seals, or specific information. From a practical perspective, though, the official vaccination record from your state is a better and more official way to have a single proof of vaccination. There is probably no practical way to transport vaccinations from a foreign country into the US system, but that is a question best asked on Travel, since it's not about the law, it's about quasi-legal mandates authorized under broad laws that say "in an emergency, the government can stipulate necessary rules". | You don’t “accept” a waiver Waiving a right is a unilateral action - you aren’t involved. You can neither accept it nor reject it. What you can do is rely on that waiver as an estoppel to them changing their mind latter. |
What legal recourse is available for a landlord trying to collect rent during an eviction moratorium? What legal actions are available for a landlord who is trying to collect rent during the recent U.S. eviction moratorium? The eviction moratorium seems to challenge fundamental notions about property rights and ownership, so I'm curious if this sort of thing would be dealt with at the state or federal level and how so. If a tenant(s) cannot be evicted, and the mortgage is still due, is foreclosure the only option if the landlord has no other income? | Laws and regulations often limit or restrict remedies in various ways that may not be intuitive or correspond to popular ideas of legal rights. In the case of the recent US eviction moratorium, the obligation to pay rent was not changed. The only effect is that no action for eviction could be brought for a residential property during the effective period of the order, in situation to which the ordeer applied. The order says (see link above): This Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract. Nothing in this Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract. To invoke the order a resident must sign a statement declaring under penalty of perjury that: I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary [38] out-of-pocket medical expenses; I am using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses; If evicted I would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because I have no other available housing options. as well as various other declarations. The order's justification section says in part: Evicted renters must move, which leads to multiple outcomes that increase the risk of COVID-19 spread. Specifically, many evicted renters move into close quarters in shared housing or other congregate settings The order later specifies that: This Order shall be enforced by Federal authorities and cooperating State and local authorities through the provisions of 18 U.S.C. 3559, 3571; 42 U.S.C. 243, 268, 271; and 42 CFR 70.18. However, this Order has no effect on the contractual obligations of renters to pay rent and shall not preclude charging or collecting fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract. ... While this order to prevent eviction is effectuated to protect the public health, the States and units of local government are reminded that the Federal Government has deployed unprecedented resources to address the pandemic, including housing assistance. It would seem that civil suits for payment of debts arising from unpaid rent are in no way prevented, only a remedy of eviction is blocked. That block would apply to any state or local courts, as well as any federal courts. Eviction cases are not normally brought in federal courts. But seizure of bank accounts or garnishment of wages could be obtained, if permitted by state law in a particular case. So might other remedies authorized by state or federal law. | The key here is the provision "through no fault of his own". A landlord who relies on this provision would need to be able to demonstrate what the cause of the delay was, and that s/he had not been reasonably able to avoid it. Nor could a landlord simply fail to take steps to repair the problem, whatever it might be. If the problem will clearly take more than 30 days to fix (Isay the building burned down), the prospective tenant would have the right to cancel the lease at once. True, in such a case the tenant would be put to the trouble and expense of finding another place at short notice, but then the landlord would have lost his income from the property. The provision allocates the losses between the parties in such a case. If the property is not available at the specified time for the lease to start, but could be available a few days later, the quoted provision would not allow the landlord to just ignore the situation and end the lease. The landlord is allowed only a "reasonable time" to fix the problem, and taking significantly longer than is needed would not be "reasonable". | It primarily depends on the title that you have to the house: are you "joint tenants with right of survivorship". This could have happened when you bought the house; it also could have been done after the fact in various ways. In that case, the house is outside of your wife's estate (which, under the circumstances, is divided between children and you). The lender might be confused about the status of the property, but they might be right, so the question is, what is your legal "interest" in the house, that is, does the title document say "tenants in common"? Assuming that the property is not recorded as JTWROS, then there are two matters to attend to. First, the lender may need to be satisfied, somehow, that they aren't taking a risk by refinancing when you aren't really the full owner. The second is clarifying actual ownership. Estates Code 201.0002-.003 govern intestate succession with a surviving spouse, where the dividing question is whether it is a community estate or not, which then implies shares for children. In that case, the children are part-owners, so you need their consent to e.g. sell the house (that is, this is a complication that needs to be fixed). Basically, you have to get a lawyer, and straighten this out. | 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. | 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). | Charlie is not a party to the contract between Alice and Bob Alice and Charlie have no contractural relationship and Alice cannot require him to do anything nor is he liable to Alice in any way. Alice’s issue is with Bob who has clearly breached his contract. Alice can sue Bob for damages and may be able to end the lease. There is no trespass because Charlie is there with the permission of the leaseholder. From Charlie’s position there is no reason to believe that Bob does not have the authority to give this permission so Charlie is not in breach of the law. The police will see this as a civil matter and won’t intervene. | The landlord is in breach of the contract You have three options: Accept the breach, Take legal action, Negotiate some other agreement. Option 1 means you put up with the situation, option 2 means you annoy the landlord - both options suck. If you go with the second option you could seek damages in the small claims court. If you want an order for the items to be removed then you need a court with equity jurisdiction which needs a County Court. | There are several questions in the OP. The answers to all of them depend on the lease terms. If Person A wants out of the lease, is the only option to just try to negotiate a way out of their portion of the lease with the landlord, presumably by payment or other means? Yes, usually. Regardless of who is on the lease, Person A is on the lease. In order to terminate or break the lease, Person A will have to negotiate termination. Most residential leases provide for joint and several liability for lease obligations. That means the co-signed lease is like three non-exclusive leases, one each between landlord and Persons A, B, and C. So Person A has to find a way to break the Person A lease. Other than a breach by either party, that likely can only be done by negotiation with landlord. What rights do Person B and C have if Person A does stop paying? Absent some other relationship or understanding between them (that is, other than the lease,) likely none. Persons B and C are each fully responsible to pay all of the rent. In other words, as far as the landlord is concerned it does not matter who pays the rent as long as it gets paid. If it doesn't get paid, the landlord can evict and sue all 3 for non-payment of rent. But the lease likely does not discuss the relationships between A, B, and C - whether they pay pro rata by time in the unit, by space used, per capita, or whatever. Landlord doesn't care, and is not the counterparty to those decisions. That said, if there is a relationship between A, B, & C (for instance, if A & B had a contract describing who would pay what, and B entered into another contract with C,) that will determine their relative obligations. The landlord agrees to allow the lease to be amended for another person, person C to be on the lease. Person B negotiated this with the landlord without consent of person A. This may create liability between B to A, C to A, or B & C to A. It is even conceivable that it creates a liability from landlord to A, if A had a reasonable expectation that the lease would not be amended absent A's consent. And the amendment may not be enforceable against A. So, for instance, A may be able to kick C out of the unit and bar C from reentry. It will not effect A's liability to pay rent. |
Can you sue an underage contractor? I recently got my garage epoxied. After about a week, it started peeling off. I was wondering if I can sue the contractor as they aren't answering my calls or replying to my messages. The reason I'm not fully sure about suing is that the contractors seemed young - maybe even under 18. Also, there was no written contract for the job, and the only information I have of them is their phone numbers. Is it possible for me to sue an underage contractor? (I'm in Ontario, Canada.) | Generally speaking, you have to disclose that the defendant is a minor in the complaint and their deadline to respond is tolled until the court has appointed a guardian ad litem for them. So, while it is possible, it is arduous. Also, since someone below the age of eighteen can claim minority as a defense to an executory contract (as opposed to a contemporaneous exchange of goods or services for cash), and in some cases, to other contracts, you have a better shot at suing for malperformance and nonperformance of work. Finally, even if you can sue, collecting a judgment from a minor, who is likely to lack both employment and any significant assets, is very challenging. A minor's legal guardians or parents would not be responsible for a judgment entered against a minor in these circumstances. there was no written contract for the job and the only information I have of them is their phone numbers. The lack of a written contract isn't a serious problem in a short job that was performed by both sides. You will need to be able to locate them to physically serve them with process to sue them. If you have their names, approximate ages, and the general vicinity of where they live or work, this isn't an insurmountable burden, but it is a bit of extra work that could turn out to be easy or could turn out to be a major obstacle. | You may contact a towing company; they will ask who you are, and will politely inform you that since you aren't the property owner, they aren't authorized to take someone else's car that is trespassing on the property. [Addendum] The first step in unraveling the legalities of the situation is seeing that only the property owner can give permission to enter (park) on the property. That permission can be rescinded, but only by the owner. The owner seems to have given permission and has stated in advance some conditions under which permission might be rescinded. The towing company could be called (by the owner) to act as the agent for the owner and remove the offending vehicle; but the towing company cannot just up an do this on their own. If they were to spontaneously tow a vehicle without officially acting on behalf of the owner, they would be liable for damages, owing to their having torted some guy's chattels. So the company will want to know that they are protected, in acting as the agent of the property owner. One way to do that is to verify that the person calling the towing company is the owner. Another would be to get the caller to swear that they are the owner and indemnify them against damages, in case they get sued. That pound of cure is more costly and annoying than the ounce of prevention of making sure that you're towing a car with proper authorization, so it's unlikely that they would just tow the car on your say-so. You might try suing the complex owner for some kind of breach of contract, if you think you have a contractual right to a parking space and they are negligent in doing what's necessary to meet your contractual right. The lease says "we may...", not "we will", so they haven't promised to absolutely enforce this rule. Or, of course, you could call the manager and mention that there's still a problem. | Contracts can say all sorts of unenforceable things, you provided an example of one of them. A person cannot be compelled to stay and work somewhere they no longer wish to work. At the risk of getting my wrist slapped for straying too far into the land of opinion, a clause like this is likely intended to take advantage of naive teenagers who will provide free employment referrals because they think they have to. | If Client was foolish enough to pay Bad Contractor (BC) without obtaining a proper assignment of copyright in the source, or at least a sufficient license to allow Client to use the code and create modified versions, then BC owns the copyright to the source, and anyone who creates a modified version without permission from BC is a copyright infringer. The contract under which BC was hired should spell out what rights Client is to acquire, and when they will pass to client's ownership, but it might be that Client didn't get such terms into the contract. Or perhaps BC disputes that Client has fulfilled all its obligations. Yes, an infringement claim could be brought against an individual employee, although it is more likely that it would be brought against the employer, or against Client. It could be brought jointly against all three: programmer, new contractor (NC), and Client. Of course, BC's IP rights only matter if BC files an infringement suit. And it might be that a court would find an implied contract, in line with industry practice and the fees that BC was paid, and toss out such a suit. But courts are often reluctant to create contracts that the parties never agreed to. It would be risky for NC to depend on such an outcome of a possible suit. If you or NC are to work on this, you might want to have a contract in which Client explicitly indemnifies you for any copyright claims by BC, saying that they will take on and pay for the defense of any copyright suit BC may bring, and pay any damages that may be awarded to BC. That would largely remove the risk for NC and for NC's employees. | The agreements are already binding Can a minor make a contract? John has a reasonable time after becoming an adult to void any ongoing contracts; if John continues to receive the benefit of or perform his obligations under any contracts he entered as a child after that reasonable time, they are no longer non-binding. Such an announcement as you describe would not prevent John from voiding voidable contracts in the future. The people who theoretically benefit from the announcement have not given John any consideration for it so they cannot hold him to this promise. | I'm a notary. If someone showed me a marked-up license, I'd refuse to perform the notarization, and make a note of the persons name and phone number, to make sure I would never make another appointment with the person. Is there a law that says I have to refuse? I don't think so. Is there is a law that says I can refuse if I have any doubts about the person's identity? Absolutely. | Under Fed. R. Civ. P. One can be served according to the state law or: (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized None of those would apply to your facts. Thus you would have to find some jurisdiction that would allow service of process under your fact. I dare say that none will and that due process would come into play. In NJ, due process applies and service may be made (1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf; It has to be the current place of abode. | Is this legal for the county to enforce? Yes. And can I sue if they try to enforce it? You could, but you would very likely lose your lawsuit. A more fruitful approach would be to go to the county planning board and seek a variance to permit you to do what you want to do. |
Can you get your fingerprints removed from the FBI database? Can you get your fingerprints removed from the FBI database after a background check? The FBI website says, "NGI will remove the retained civil fingerprints should the submitting agency request removal, or removal is required by court order." Is there a way to do this as a regular Joe who had a simple background check done? | Is there a way to do this as a regular Joe who had a simple background check done? Apparently not... It is important to note that this retention and searching of civil fingerprints is authorized only for those individuals whose employment, license, or other benefit requires that the individual not commit a prohibited criminal action. Moreover, these individuals are provided with a Privacy Act statement and other actual notices regarding the retention and searching of their fingerprints. [...] ...NGI retains the civil fingerprints after completion of the noncriminal justice background check. The fingerprints are retained regardless of whether there is any match to criminal history information. When the civil fingerprints are submitted for retention in NGI, the fingerprints are searched against the existing civil, criminal, and unsolved latent files. Latent fingerprints are fingerprints collected from locations or property associated with criminal or national security investigations. Likewise, once civil fingerprints are retained in NGI, all incoming civil and criminal fingerprints will cascade against those fingerprints, and latent fingerprint contributors may choose to have their latent fingerprints cascade as well. NGI will remove the retained civil fingerprints should the submitting agency request removal, or removal is required by court order. This retention and searching of the civil fingerprints provides, in effect, an “ongoing” background check that permits employers, licensors, and other authorized entities to learn of criminal conduct by a trusted individual, unless the contributor does not subscribe to a rap back service. It eliminates the need for periodic rescreening of the individual and the resubmission of fingerprints. https://www.fbi.gov/services/information-management/foipa/privacy-impact-assessments/next-generation-identification-ngi-retention-and-searching-of-noncriminal-justice-fingerprint-submissions | 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. | Since there is no search or seizure involved in having a driver's license, requiring a person to update their address is not a violation of the 4th Amendment. It is also not "testifying against oneself in a criminal case", so it does not violate the 5th. As has been repeated many times, driving is a privilege and not a right, meaning that there is no fundamental constitutional right to drive. Strict scrutiny would not render the requirement to have a license unconstitutional, and it certainly would not invalidate the requirement to give a correct address and update that address as necessary. There may be issues regarding a requirement to produce identification, but there is no legal precedent for the idea that an ID law law and a federal "must show" statute would violate the 4th (that is not to say that the courts could not find there is such a basis if the question arises, but it has not yet been found). Since there is no national ID law, one can only conjecture what the outcome of judicial review would be, but if such a law survived strict scrutiny, it would be inconceivable that a portion of the law requiring you to keep your address current would fail such scrutiny. A curiosity search would still be barred. | 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 standard of proof for a criminal conviction is the same. So they would similarly need to prove beyond a reasonable doubt to convict the foreign national of a crime. But deportation is not a criminal proceeding, and has a different standard of proof. (In deportation you also don't have criminal defendant rights like right to an attorney if you can't afford one.) I believe the standard is "clear and convincing evidence". | Under GDPR, can I request to be forgotten and re-register for a trail? No (unless they are stupid.) The "right to be forgotten" does not mean they have to delete your data. They can keep personal data about if they have "legitimate interests" to keep these data. Stopping clients from abusing their "free trial" system is a legitimate interest. | GDPR is not a blanket ban on the handling of personal data. It is a set of guidelines when and how data may be processed and stored. Documenting the compliance with a deletion request is one of many purposes for which some data may be retained after a deletion request. Others would be past contractual obligations, legal documentation requirements, and even a balance of 'legitimate interests' of the processors and the data subjects. The processor might be able to argue that fraud/abuse prevention is such a legitimate interest. What if I want to create a service that does let users enter their friends' email addresses, and send those friends an email invitation to the service? Get a specialist lawyer on staff who can check your exact business processes. A web site like this cannot possibly give you a full explanation of the pitfalls. | Law enforcement officers can obtain information with a search warrant, which is a document issued by a judge or magistrate that authorizes them to search for specific information or evidence based on "probable cause" to believe that it will inform the investigation or prosecution of a crime. A court can also issue a subpoena at the request of a party to a proceeding before it. Since in most cases only the state can bring criminal charges before a court, an individual would have to bring a civil complaint before a court in order to even request a subpoena related to his complaint. Also, it is up to the court to enforce its subpoenas: It's not like a warrant where you can then pursue the items subpoenaed through force. If the subject of a subpoena doesn't respond you have to ask the court to compel the party, which means you have to bring your complaint before a court that has jurisdiction over the party you wish to subpoena. This can be difficult when it involves a third party – especially a third party that would rather ignore or object to the subpoena than hand over the information. I.e., if you can't convince law enforcement to investigate the crime, and you can't convince the company in possession of the data that it's in its interest to help you, then you would most likely be facing a steep legal bill to get an attorney to successfully obtain the information through civil process. |
Copyrights for Popular Fairy Tales I am building an app for children which has some popular fairy tales in it, like, the little red riding hood, Goldilocks, the ugly duckling etc. The stories will be in our own words and we are originally creating illustrations for them. If we publish the app and sell the app for money, will we be violating someone's copyrights? | There is no copyright in an idea. A retelling of a story could be a derivative work, and the making of it a violation of the author's rights to authorize the creation of derivative works (17 USC 106 in US law. article 2 of the Berne Copyright Convention). However, the originals of most "fairy tales" are long out of copyright, and new versions of them may be created and published in any form, for pay or not, by anyone who chooses to do so. Some "fairy tales" are in fact original creations recent enough to still be under copyright protection. (at most 95 years in the US for works published before 1978, 70 years after the death of the author in many countries). In those cases a new version would probably be a derivative work, and require permission from the copyright owner. In some cases a particular author added significant elements to the plot of a fairy tale or folk tale recently enough that the version which introduced those elements is still protected by copyright. In any such case, a new version or retelling that included the new (protected) plot element might well be found to be a derivative work, and so require permission. Basing any retelling only on versions clearly out of copyright will avoid this problem. | Content posted to the web is usually openly accessible to all (unless protected by a password, paywall, or similar restriction). But that does not mean it is freely copyable by all. Such content is protected by copyright in just the same way as if it had been published in a book of essays by various contributors. Unless the copyright holders (who are likely to be the original authors, but might not be) give permission, or an exception to copyright applies, copying such content would be clear and obvious copyright infringement, and any copyright holder could sue for damages. Permission could be given by publishing the content under a permissive license, such as a CC-BY-SA license, or any of many other available permissive licenses. Or a would-be reuser could find the copyright holders and ask for permission. If the holder cannot be found or identified, or does not respond, then no permission has been granted. In the US the main exception to copyright is fair use. See this answer and other threads with the fair-use tag here for more on fair use. Since the question seems to contemplate using the whole of the posted content, since it might well damage any potential market for that content, and since the use does not seem to be "transformative", nor used for criticism or comment, a finding of fair use for this situation seems unlikely. But Fair use findings are very much fact-driven, and the exact facts do matter. Thus I cannot be at all sure whether a court would find this toi be fair use or not. In other countries there are a variety of exceptions to copyright, and I have not come close to reviewing them all. But none of the ones I know of seem to apply to the situation described in the question. Many are narrower than the US concept of fair use. I fear that without permission, copying this content would be infringement. However, it would not be infringement to create a site that includes a link to the existing content, and a summary or description of that content, along with new content, including comments on the old, with brief quotes to indicate what is being commented on. | Do you have an explicit permission by the artist? Does the artist give a blanket permission to anyone which covers this kind of use of their work (a license)? If no, then you commit a copyright violation when you use their work for your blog. This applies to practically any country which signed the Berne convention which is almost everywhere in the world. Having no commercial interest is usually not an excuse to violate copyright. Regarding which jurisdiction applies when you, your website and the copyright holder are in different countries: I opened a new question about this. | Yes So far so good. This is a copyright violation but it is probably fair use - certainly there is case law permitting a copy of a backup digital asset to be made so I don’t see why a similar argument wouldn’t work with backing up a physical book. Clear copyright violation. Alice can rent out the original under the first sale doctrine but the ‘backup’ is not so protected. It’s not fair use because it’s use is commercial, the work is a type of work the author expects to profit from, the entire work has been copied and the use is deleterious to the market i.e. the renters are less likely to buy an original - it falls foul of all four factors of the fair use test. | Imagine if the answer was a simple yes: adding a disclaimer was enough to exempt you from any and all copyright and trademark law suits. If that was the case, there would be no point in copyright or trademark law at all, because everyone could just include this disclaimer and never be sued. That doesn't mean every disclaimer is useless, but it does mean that copying and pasting some vague wording without understanding what it means is very unlikely to help you very much. The example you give is a good example of doing just that; the terms it uses are real, but they've clearly been thrown together without real understanding: Copyright is the right to control and profit from a creative work. This is relevant because images of Pokemon characters created for games, manga, etc are copyrighted by their creator. Trademarks are words, symbols, images, etc exclusively associated with a particular company or product. Trademark law aims, among other things, to avoid customers thinking they are getting an official product when they are not. "Nintendo" and "Pokemon" are both themselves trademarks. They are also the names of different companies. My limited understanding is that "The Pokemon Company" will be the owner of all the copyrights and trademarks related to those games, manga, etc. Naming them is a way of showing that you have researched this and understood their rights. "This app is not affiliated , endorsed or supported by Nintendo in any way". This is a disclaimer on the trademarks. Whether this is sufficient to protect against claims of counterfeiting depends on how prominent it is compared to other branding - you need to make it obvious to users that the product is unofficial, not bury this in small-print for the lawyers to find. "also some images used in this app are ... supported under fair use" - fair use is a US legal concept which allows copyrighted works to be used in certain specifically limited ways. Saying your use is covered does not make it true, you need to actually understand what provisions of the law allow your specific use. "no copyright infringement intended" This is a fluffy apology that has no legal standing. A more useful statement might be "every care has been taken to adhere to copyright and trademark law, if you notice a violation please contact X"; but you're still relying on goodwill, and it won't stop someone sending the lawyers in if they decide to. Which brings us back to the real question: The apps mentioned before are in the store since 2015 and they haven't been removed yet. The real reason for this has nothing to do with the poorly-written disclaimers, it is that Nintendo / Pokemon co haven't bothered. If an app is directly competing with an official app, or receiving a lot of attention (even if no money), the lawyers will descend; if it's a buggy image gallery with a dozen downloads, they might decide they have better things to do. If they do notice, they might just get Apple and Google to de-list the app, but not spend the time and money pursuing a legal case. On the other hand, at any time they might decide they need to tighten up control of their intellectual property, and make an example of a few authors picked at random. The only way to avoid that is to actually avoid violating their rights, rather than just saying so in a disclaimer. | They are claiming copyright protection so you cannot copy it unless fair dealing exemptions apply. However, there is no copyright in facts - only in they way facts are presented. If you present them in a different way ... | Yup, copyright statutes and case law cover these situations. In Canada, look at at Copyright Act Section 30.7: It is not an infringement of copyright to incidentally and not deliberately (a) include a work or other subject-matter in another work or other subject-matter; or (b) do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter. The US doesn't have this in statute, but some defendants used a fair use defence, some successful, some not. (http://www.iposgoode.ca/2010/04/cindy-incidentally-the-incidental-inclusion-exception-in-canadian-copyright-law/) If you're using a piece of art as part of a tutorial, or being illustrative of a point, or subject of commentary, review, or criticism, that may be fair use or fair dealing. | Legal unless you violate copyright. Screenshots will probably be fair use. The manuals/how-tos need to be your originals, not copies from anywhere. |
Cannabis Payment Processor based in the United States I have been doing some research on the cannabis industry over the past couple of months, and from what I have been reading it is a consistently growing market, and the barriers to entry are now becoming lower, thanks to various U.S. states making the substance legal, as well as the decriminalization of cannabis. One pain point that I have seen come up often is that there isn't a reliable payment processor for the sale of cannabis and cannabis derivatives. Large banks usually decline transactions for cannabis payments, and there are many hoops to jump through. This sounds like a a huge opportunity if a solution can be found, but as I was reading more on the legalities of cannabis payment processors, it gave me pause. While multiple cannabis payment processors do exist, there are some very gray areas with how these processors are able to process payments, some bordering on illegal. It would be great if it can be explained whether creating a cannabis payment processor can be legally done in the United States. Currently, large companies that deal with financial transactions (Stripe, Master Card, Visa, the big banks) reject or prohibit cannabis transactions. | Recall that federal non-enforcement of the ban no marijuana is via a non-enforcement memo from the Attorney General (which was revoked in 2018) and not an actual change in the law. Since sale of marijuana is illegal at the federal level, receiving money in exchange for marijuana is a federal crime. There are also federal laws prohibiting various forms of "banking" in a broad sense, if you know that the money is the proceeds of a criminal transaction. Taken together, it is not possible to devise a legal banking system to cover such transactions in the US, without a change in federal law (a small change, legalization, or a huge change, tweaking every little law involved in banking). The main concern is federal laws against racketeering and money laundering. The Bank Secrecy Act of 1970 requires finanicial institutions to report suspicious activity 18 USC 1956 starts the prohibition with Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity and since sale of marijuana is illegal, those funds are covered by this law. The federal agency FinCEN receives and analyzes data on financial crimes, and they issued a "guidance" in 2014 regarding marijuana banking. They affirm the obligation to file Suspicious Activity Reports for marijuana-related businesses, which essentially tells banks to specially-tag SAR to distinguish cases that an institution reasonably believes comply with the Cole memo. But this only addresses the requirement for FinCEN reporting, and does not address other federal regulatory and criminal resources for crime prevention. Even just looking at the FinCEN requirements, dealing with a marijuana-related business imposes a huge ongoing burden on the financial institution. Civil forfeiture is a risk which a prudent businessman would shy away from. Property that is used in commission of a crime or results from commission of a crime can be sued and seized (that is a bit bizarre, but you can sue property), and the person who holds the property need not have committed any crime. Assets in the possession of banks and credit card companies are not immunized against civil forfeiture proceedings. | First of all, if your Delaware LLC earns money, you will pay tax in America on that money. America still taxes "foreigners" on American income, just not on"global" income. That is, unless the U.S. has a tax reciprocity treaty with your home country, Malaysia. I don't know about Malaysian law, but I am writing as an American about American law regarding the Seychelles (and I am not a lawyer). The following is only as an "example." If you set up an LLC in the Seychelles, you could, in theory, avoid American tax by accruing income there. In practice, if you did nothing but "banking" in the Seychelles, America would look at your lack of "value added" there, and could tax you on Seychelles income as if your corporation was American. The way to make such a claim stick (typically in a place like Ireland), is to set up a manufacturing or operating facility (e.g. call center) there so that you were shipping goods or services from your offshore operation. Then you'd have a strong claim in America that your operation actually earned most of its income abroad, and the U.S. company was just a holding company. | You would be amazed at how vanishingly few the number of cases are where a signature is disputed. Signatures are easy, quick and don't require you having inky fingers all the time. They are so useful that to throw them out to deal with infinintesimally small fractions of disputes over their veracity (bearing in mind that 99.999999999% of contracts never have a dispute that gets to a court [or at all]) is ridiculous. When it does happen, handwriting analysis is probably not going to be put into evidence anyway. Testimony like "I saw him sign it" is way more likely to be used. | The relevant section of US patent law was already posted in an answer on one of the questions you linked, but I'll repeat it: 35 USC 271 (a): Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. Merely making a patented invention is infringement; it isn't relevant whether you sell it. It is also infringement if you use it yourself, regardless of who made it or whether you paid them, or whether you would have otherwise bought it from the patent holder. There are some special exceptions for things like certain kinds of pharmaceuticals, but I browsed the rest of 35 USC Chapter 28, and didn't see anything that would appear to be relevant in this case. | You are in a tough spot. The main risk is "civil forfeiture" of the duplex if you have sufficient knowledge that it is being used for purposes of drug dealing and take no action. See, e.g., a case from October 1, 2021 when a house was seized on this basis. But the tenant has property rights under a lease that you can't abridge unless you can prove that there is a violation of the law. And, it isn't obvious if you know enough to trigger civil forfeiture exposure based merely on uncorroborated statements from another tenant that observe only conduct often associated with drug dealing and not deals themselves. Still, the knowledge you do have might trigger a duty to inquire if you want to escape civil forfeiture liability. Under the statute, to defeat a civil forfeiture action (assuming it has been used for drug dealing), you must show: (e)(1) A property interest shall not be subject to forfeiture under this Code section if the owner of such interest or interest holder establishes that the owner or interest holder: (A) Is not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occur; (B) Had not acquired and did not stand to acquire substantial proceeds from the conduct giving rise to its forfeiture other than as an interest holder in an arm's length commercial transaction; (C) With respect to conveyances for transportation only, did not hold the property jointly, in common, or in community with a person whose conduct gave rise to its forfeiture; (D) Does not hold the property for the benefit of or as nominee for any person whose conduct gave rise to its forfeiture, and, if the owner or interest holder acquired the interest through any such person, the owner or interest holder acquired it as a bona fide purchaser for value without knowingly taking part in an illegal transaction; and (E) Acquired the interest: (i) Before the completion of the conduct giving rise to its forfeiture, and the person whose conduct gave rise to its forfeiture did not have the authority to convey the interest to a bona fide purchaser for value at the time of the conduct; or (ii) After the completion of the conduct giving rise to its forfeiture: (I) As a bona fide purchaser for value without knowingly taking part in an illegal transaction; (II) Before the filing of a lien on it and before the effective date of a notice of pending forfeiture relating to it and without notice of its seizure for forfeiture under this article; and (III) At the time the interest was acquired, was reasonably without cause to believe that the property was subject to forfeiture or likely to become subject to forfeiture under this article. (2) A property interest shall not be subject to forfeiture under this Code section for a violation involving only one gram or less of a mixture containing cocaine or four ounces or less of marijuana unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana. The language in bold is the most threatening part that effectively establishes a duty of inquiry and a duty to take action if your inquiry establishes that drug dealing is going on. If you can't establish that you were ignorant of wrongdoing, and reasonably so, under the circumstances of being told by one of your tenants that something is going on, you are at great risk of losing the duplex to civil forfeiture if the DA can prove that drug dealing is taking place by far less than a reasonable doubt standard. You might want to hire a private investigator to look into the situation carefully, and to try to evict the allegedly drug dealing tenant if the private investigator corroborates the fellow tenant's claims. | Who in the fraternity would be prosecuted if this became an issue? A lot of people could be held liable for this, including people who are not even in the fraternity. Anyone who has knowledge of the machine or the fact that it was possible for minors to access alcohol through it could technically be held liable if a prosecutor wanted to make that case. Presumably the building is owned by someone else and just leased out to fraternity members, and they very well could be held liable for sale to minors also. Would the machine be safer if it just accepted cash (so that no electronic paper trail was created), with a big warning sign WINK WINK that anyone under the age of 21 was strictly prohibited from purchasing from it? No. Payment method is irrelevant here. There are a number of states that legally allow vending machines to sell alcohol, but vendors are required to verify the age of any person accessing them and ensure that those cards aren't being used by people not authorized. What you describe is an extremely relaxed environment where admittedly no one is attempting to verify identities. The "accepting cash" scenario is no different than a liquor store selling alcohol to anyone that comes in just because they're willing to pay with cash instead of a credit card. Sales to minors laws are not "as long as you warn them, you're safe" laws. They require vendors to actively check IDs and ensure that alcohol is not landing in the hands of minors. Accepting cash just to erase the evidence doesn't meet that burden. There are a lot of legal troubles with the situation that could get a lot of people charged with multiple offenses. That you have underage fraternity members living there suggests you should not have alcohol readily accessible in the house at all, as most state laws expressly forbid providing access to alcohol, not just serving or selling. Them being there provides access to it, even if it's just a case in the fridge with a note on it. Not to mention, you technically cannot sell alcohol, as I highly doubt your fraternity has a liquor license to be able to do so. There's a big difference between asking everyone to pitch in to buy the case versus actively selling individual cans through a vending machine. The vending machine itself is violating liquor laws in your state merely by existing. | There are nuisance lawsuits and constructive eviction arguments--you can check with your local attorneys and perhaps tenants' rights organizations for detailed information. Just because marijuana is legal under state law (if certain steps were followed) does not mean that your landlord or another tenant can interfere with your use and enjoyment of your home. Civil consequences--such as a court order to the smoker to stop smoking, money damages, or a partial abatement of your rent until the smoking stops--may be achievable. It is important to follow the rules for your jurisdiction closely when starting a legal action, so you should talk to an expert in your jurisdiction if you want to pursue legal action. But where possible, most people deal with this kind of thing by moving. | Yes it is kind of possible what country would the legal action need to originate from? Would one file in the US and note the foreign defendant or would one file, as a foreigner, in the home country of the defendant? You can go either way. It is not obtaining the judgment that is the biggest trouble here, but enforcing it. You will need: A UK mailing address. Services like ScanMyPost will suffice. Some money to pay the court fees. Time, tenacity and patience to follow through the procedure and fill all necessary forms. Be lucky in that the defendant actually has something to pay the debt with. There are two stages: Obtain a court judgment in your favour. Unless the defendant pays you, enforce the judgment. Obtaining court judgment in the UK In the UK, the "small claims court" functions are executed by HM Courts & Tribunals Service. The specific service is called "Claim for money" which can be filed online via their old or new system. So, basically, you file the online form, pay the fee by credit card and wait for defendant's response. If they do not respond, you ask the court to make a judgment (in my case it took 10 weeks from filing claim to getting judgment). If the defendant responds and defends themselves, expect much longer wait and uncertain outcome. Enforcement So, you and the defendant have both received court judgment saying that they must pay you. But they are not paying. There is a range of options you can choose from: County Court Warrant of Control (claims from £50 to £5,000). Court bailiff will go to the defendant's address and try to seize goods that can be easily sold. High Court Writ of Control (claims from £600). Attachment of earnings order (you ask the court to order the defendant's employer to deduct his earnings in your favour). Third-party debt order (a.k.a. "Garnishee Order") — if you know the defendant's bank account details. Read about potential pitfalls here. Charging order: you will only get paid if the defendant sells their land. Bankrupt the defendant (big court fees!). Alternatively, you could always hire a UK lawyer but then you would probably not need this answer. |
Can a contract be backdated to cover a previous gap? I run a concession which trades on private property in the United Kingdom. My contract expired on 31 March 2021 and there was no correspondence to renew it. I have been allowed to continue trading, but the business has been badly affected by Covid-19. The previous three-year contract was due to end on 31 December 2020 but in July 2020 was extended to 31 March 2021, with 3 months free of charge to me due to Covid-19. Now I have been offered a new one-year contract, backdated to 1 April 2021. The fee to be paid by me is the full rate previously paid, with no consideration for the diminished trade caused by the pandemic. There is no opportunity to negotiate the terms or the fee between April 1 and to date, during which I have been allowed to trade. I have been given 2 weeks to sign. Moreover, the contract (as before) requires me to supply my product occasionally on demand to the landowner for a price determined by them, when they need it. This price has not been updated for 10 years, despite the submission of 'fair price' requests. Is this move by the landowner fair and legal? Their stance is to "take it or leave it" but this is my livelihood, and the location is important. I would rather not be specific about the landowner or the nature of the business. | It depends on what you mean by backdated. If you mean that the terms of the contract provide that they apply to a period which pre-dates the date on which the contract was entered into then this is fine. The parties are free to negotiate terms which govern their past behaviour. If instead you mean that the contract purports to have been entered into in the past then no, that is not legitimate. Depending on the circumstances this can amount to fraud or forgery. In practice it is common for people to misunderstand the difference and so you will often find contracts backdated by inserting the past date as the date of the contract (the 2nd type) when the correct approach is to have a clause which specifies that the terms apply from an earlier date (the 1st type). There is also an implied question here about what those terms should be for the backdated period. The parties are free to agree what they like in order to "rewrite history" but failing that, what are the terms governing the period after the fixed term contract came to an end? The contract itself may contain an automatic renewal clause. Failing that there are a number of possibilities. From Practical Law (pay-walled): In the circumstances you describe (the parties have continued to deal) one of the following legal outcomes is likely: A new agreement has been entered into. A contract may be created by actions as well as words. For more information about contract formation, see Practice note, Contracts: formation The old agreement has been continued, on the same or varied terms. Just as a contract may be created by actions, it can be varied by them too. Contract clauses seeking to limit the parties' freedom to vary the contract, for example by imposing formal requirements for a variation, may themselves be varied. For more information on variation generally, see Practice note, Contracts: variation. There is no contract, but only a duty to pay a reasonable sum for services requested. For more information on restitution generally, see Practice note, Remedies: restitution In determining which of the above applies, a court will look at: What the parties have said and done about extending the contract or continuing to deal. The extent to which their behaviour is consistent with the terms of the old agreement. If the parties continue to do business in a way which is consistent with the terms of the expired agreement, this will support an argument that their relationship is governed by its terms. Whether a court will hold that the expired agreement has been extended in its entirety or that just some of the old terms apply will depend on the facts. However, the following cases suggest that where there have been no disputes over specific terms in the post-expiry period, the entire original agreement may apply: [rest omitted for brevity] Disclaimers: my answer is based on general contract law. Landlord and tenant law is complex and specific rules may well exist in your case. The terms of your lease may also affect the situation. We don't give specific legal advice here and you should speak to a solicitor about you situation if in any doubt. | Assuming there is a contract (and it is not clear that there is), this is a purported liquidated damages clause. Alice is trying to dictate what Bob will owe her if he breaches his promise to not share the file. However, there are limits on what can be stipulated in a liquidated damages clause. Super Save Disposal Inc. v. Blazin Auto Ltd., 2011 BCSC 1784: The enforceability of a liquidated damages provision in an agreement engages two competing objectives: freedom of contract versus the right of the courts to intervene in a given case to relieve against an oppressive or unconscionable result flowing from enforcement of the liquidated damages term. It is well settled that the enforceability of such a term turns on whether it is a genuine pre-estimate of the expected loss that a party will sustain in the event of a breach of contract or a penalty clause so oppressive or unreasonable that equitable intervention is justified to prevent an injustice. Judicial interference with a liquidated damages provision will be justified if enforcement of the term results in payment of a sum which is extravagant and unconscionable in comparison with the greatest loss that could conceivably be proved to have followed from the breach Oppressive liquidated damages clauses work against a person's freedom to breach and the possibility of efficient breach. Perhaps if the file were a trade secret like the Coke recipe, the $1,000,000 might be a genuine pre-breach estimate, but without much more information about the nature of the file, I predict a court would find the $1,000,000 to be extravagant and unconscionable in comparison to the greatest loss that could conceivably be proved to have followed from the breach. What follows is less researched. If it is not a contract then I think it is at best a licence, which would make Bob's agreement to pay $1,000,000 a free-standing unenforceable promise. I also agree with Matthew's position on the possibility (and limitations of) a claim in promissory estoppel, especially in jurisdictions following Waltons Stores or similar reasoning. | A contract is terminated by performance when all parties have completed their obligations. So, when you have delivered and they have paid and any other obligations incidental to that have been completed (such as the expiry of any warranty or guarantee) then the contract has ended. There are other ways of terminating a contract but they are (hopefully) not relevant here. What you have in your contract is not an end date but a date by which you were obliged to complete one of your obligations. Not delivering by that date is technically a breach of the contract which would entitle the other party to sue. However, there is a mechanism in the contract for varying the date for delivery which you have done and the client has agreed to. Note that there is an implicit term that you will exercise any powers you have under the contract (such as extending the delivery time at your "sole discretion") in good faith - if your client rejected your proposed revision and sued, you would have to demonstrate that the revised date was reasonable in the circumstances. You should not unilaterally materially amend a written document that records a contract - doing so entitles the other party to terminate the contract. | Yes they can (by their contract) - Clause 3.1: The Seller reserves the right to amend prices at any time without prior notice. Errors and omissions are excepted. However, it is possible that there are consumer protection laws in your jurisdiction that prohibit this. I think this is unlikely, however. | client must provide me a suite in his hotel that costs $10K for a night based on a contract we held in the past (the contract has expired as of 31-Dec-18 but he never rendered the service because I didn't ask for it. The contract mentioning $10K has expired and is no longer relevant. You had a chance for a $10K suite before 31 Dec 2018 but you did not take it. There is no obligation on the client to keep this chance for you indefinitely. What happens now ($6K suite) is a completely new contract you have accepted. You are not entitled to anything in relation to the $10K suite from the past opportunity. | In England and Wales, falsely suggesting a sale or discount price would be contrary to the Consumer Protection from Unfair Trading Regulations 2008. https://www.hants.gov.uk/business/tradingstandards/consumeradvice/goodsandservices/pricinglaw practices that have been widely used by businesses for many years are now deemed under the Guide as “less likely to comply” or, in other words, more likely than not to be viewed as misleading and in breach of the CPUT Regulations. So what is now less likely to comply? Price establishing for 28-days within a 6-month period Using a reference price that applied many months (at least more than 2 months) prior to the promotion. Using a reference price when only a minimal amount of product actually sold at that price. There is now an expectation that a business will have sold a “significant number” of units at the higher price in order to make a price comparison. https://marketinglaw.osborneclarke.com/advertising-regulation/no-more-28-day-rule-pricing-and-promotions-under-the-spotlight/ | There may be violations of consumer protection and/or advertising statutes here by the online store, but the common law position is that: The website's owner is making an invitation to treat Based on that, you are making an offer The contract comes into place when the website's owner accepts your offer. The time of contract formation is "when the parties give objective manifestation of an intent to form the contract." You would need to read the site very carefully, in particular their terms and conditions, acknowledgement page and/or email to see if they are actually accepting your offer or if there are conditions attached. If there is no clear, unconditional acceptance then there is no contract at that time; this applies even if you have paid for the goods. If this is the case (and I strongly suspect that it would be for most online stores), then their acceptance of your offer and the formation of the contract probably does not come into effect until they "give objective manifestation of an intent to form the contract" by shipping the goods. Up until that time there is no contract and their only obligation to you is to promptly refund your money. | The parties to the contract have not changed; they are still the purchaser company and the scrap vendor. The obligations have not changed; they are presumably based on amounts of stock and monetary value. The only changes are in the name of one party and its ownership, so unless the contract permits termination for those reasons (not unheard of, if a contract has been intended to provide/avert support from/by a particular party or symbolism) the contract still stands with all its terms. A novation is not needed. |
If someone commits tax evasion, what organization will arrest them? If someone commits tax evasion, will they be arrested by local police, or the IRS’s CI and Justice Department? | 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 principle of constitutional law is that in order to arrest you, the officer would need probable cause. Certain acts are in themselves violations of the order (being closer to another person that 6 feet, illegal sneezing). Walking in public does not per se constitute a violation. In order to briefly stop a person walking on the street (a "Terry stop"), the officer needs a reasonable suspicion that the person is in violation of the law. That means there has to be a reason, and a gut feeling does not count. An officer would not (legally) be able to stop every person they see walking down the street / driving, and demand an explanation of where they are going. If a person is just aimlessly wandering down the strees with friends (even if they are sufficiently separated), that could suffice to justify a stop, given the limited legal excuses for being outside your home. | The problem with Solution 2 is that government officials in the United States enjoy qualified immunity with respect to actions that they did while acting under color of law. It's not total immunity, but if they do things by the book, they cannot be prosecuted even if something goes wrong (even when doing things by the book, Police deal in very volatile situations and things can still go wrong because of an X factor to specific for the training manual to cover.). In other cases, it may be because multiple officers are working the scene and Office A lied to Officer B about the situation. Consider Officer A pulls over a suspect and realizes it was someone who was suspected of a crime, but couldn't prove it. He calls for back up and Officer B arrives. Upon arriving on scene, Officer A tells B to search the trunk of the car despite the fact that A had not received consent from the suspect nor has a warrant, nor cause to make a search of a trunk of a vehicle. B makes the search and finds [the bloody knife/the stash of drugs/the smoking gun/the match to a child's shoe that was missing from the kidnapping scene/ insert other incriminating evidence]. Under system (2), since it was Officer B who made the illegal search, B would be liable for it, even though Officer A lied about having legal reason for a search of the trunk space. But what's more... if the evidence is gonna be used anyway, what's to stop the cops doing it again? After all, there is very little recourse for those who are illegally searched to contest this in court (If I'm illegally searched and don't have anything on me, I have to take this to civil court, which is a different animal than Criminal Court and exposes me to broader Discovery... aka gives the cops free reign to search my property for a hell of a lot more illegal things.) or just sit back and count my 4th amendment rights (the section of the constitution protecting against unwarranted search and seizures) as worth less than the paper they're printed on. Oh, and by the way... that second word seizure... that means that they will be taking my property (or myself if they arrest me) and will not be giving it back for some time while they process it... if it's a legal to hold item (like my laptop that I do work on) that's going to make it harder for me to do my job which injures me further in lost business and income. In other cases, it could be they have a warrant for a large item (a stolen big screen tv) and while searching for it, open my sugar bowel and find evidence of a crime unrelated to theft of the television (i.e. opening a baggie of weed). This is actually an illegal search because, unless I am a wizard, a Time Lord, or Mary Poppins, there is no reason why a container smaller than a big screen TV should ever be searched when looking for a Big Screen TV and the cops should logically see this as out of bounds of the search warrant. The nature of this is damaging before the legality of the search can be determined, and because the search may have been out of scope of the warrant that was otherwise justified, the rule of making the evidence of a crime inadmissible was held in order to prevent LEOs from doing this because they could. This rule also started to take formation prior to the Revolutionary War. British Law had ruled against compelled confessions being inadmissible as evidence in 1769, a full six years before the Revolutionary war started (1775) and seven years before the publication of the Declaration of Independence (1776). Now there are some exceptions that can get the evidence brought back in, such as plain view ("The suspect's vehicle is a pick up truck with an open bed, the murder weapon was lying in the bed covered in blood"), inevitable discovery ("We have developed evidence by other means that would have lead us to this evidence legally") and Exigent Circumstances ("We believed someone inside the property was in grave danger if we did not enter the property immediately and that's when we found a cache of stolen Big Screen TVs!) and Good Faith (the Warrant was authorized for the wrong street address of the target but we found the evidence of an unrelated crime in a place the warrant authorized us to search. Everything but the goofed up address was done by the book.). | Exactly the same thing that stops the same rogue lawyer from putting on a mask and robbing a bank. One is the crime of fraud and the other the crime of armed robbery but they are both crimes. People commit crimes all the time; that is why nearly 1 million people in the U.S. are in jail right now - some of them may even be in there for crimes they actually committed! Were your lawyer to commit this crime he may get caught or he may not; if he does he's going away for a long time and can never work as a lawyer again. So it's simply a matter of risk assessment; oh, and ethics | People make mistakes. My assessments come with information on how to dispute them, and if yours don't you should be able to get that information. File a dispute or whatever it is you do to challenge the assessment. Include the information about you being outside the district and not having he measure on your ballot. If you're just outside the district, you might have been mistakenly included. You'll either get a revised assessment or you'll be told that you have to pay the tax. You don't have a reasonable complaint unless and until your challenge is denied. | No If you break the law you are legally responsible. Can you make it more difficult for law enforcement to find and prosecute you? Of course, that's why bank robbers wear masks. | 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. | Your tax advisor was legally correct, but perhaps not very savvy. Unfortunately, the best way to resolve this sort of situation is to avoid it: You should have insisted your employer stop withholding for PA as soon as you moved out of state. Once someone else has possession of your money the burden is on you to get it back, and the burden can be (practically) quite high before it runs afoul of any serious laws. The fact is that your filings are correct, and the PA Department of Revenue is being ridiculous. If they can't be satisfied with reasonable and adequate evidence backing your return you can file administrative appeals at little cost in hopes of reaching a more reasonable agent. However, if I were in this situation, since NC's tax rate is higher, I would just amend my NC return to claim a credit for taxes paid (even though erroneously) to another state. (This takes advantage of our federalist system and your state citizenship and puts the burden on NC to collect the "correct" difference from PA if they care enough. You also don't have to fight for the actual return of money with your new state because presumably you will owe them taxes again this year, and if they haven't returned what you claim you're owed then you just deduct it from what you owe this year.) |
Does Double Jeopardy prohibit prosecution, for the same event, in both Federal and State court? The common understanding of the 5th Amendment's prohibition on being tried twice for the same offense is that no trial can be held which would put a person in a risk of loss of liberty if they have already been tried for that even. It's been suggested, in comments to an answer to another question on this site, that it is still possible to try someone in a state court even after a Federal trial has started and has been resolved. The comment references this claim, by a former state prosecutor, to support their argument. I am having trouble reconciling this with the following facts: the 5th amendment does not mention that it only applies to crimes "against the United States", which is the language that is usually used to indicate that its application would be limited to the Federal jurisdiction. the 5th amendment's double jeopardy clause has been incorporated into protections which states must afford their citizens. So it appears that its jurisdiction is both Federal and State. Other than "it's just federalism" (which is obviously not absolute) what is the justification for this, if it's true? More specifically, what is the origin of such a legal theory? Is there a case precedent which established this understanding or has this simply been this way and has gone unchallenged? | Does double jeopardy prohibit prosecution, for the same event, in both federal and state court? No. Key precedents on the question are US v. Lanza (1922) and Abbate v. US (1959). From Lanza: The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that state is not a conviction of the different offense against the United States, and so is not double jeopardy. From Wikipedia's article on Abbate: Abbate asked that the Court overrule its prior decision, which the Court declined to do. The Court reasoned that overruling Lanza would result in serious and undesirable consequences. Particularly, the state conviction here resulted in only three months' imprisonment, while the federal conviction made up to five years of imprisonment available. The Court deemed this potential disparity to be problematic. The only way to ensure that federal law enforcement interests would be vindicated under such a regime would be to displace state power to prosecute actions that also constitute federal crimes, which would be a massive shift in the balance of criminal power as between the states and the federal government. In a comment, you raise a question about the last sentence: "The only way to ensure that federal law enforcement interests would be vindicated under such a regime would be to displace state power to prosecute actions that also constitute federal crimes," seems to state that not displacing state power to prosecute, under such circumstances, would keep the law enforcement interests un-vindicated (which would mean unjustified). So the only justified thing to do would be to try under the Federal law and to not try under the state law. "Vindicate" here does not mean justify but rather maintain or substantiate. The point is that if double jeopardy protected against prosecution by the federal government for a crime that has already been charged under state law, then states could effectively neuter federal crimes with which they disagreed by establishing a crime with identical elements and a token punishment. Another way of avoiding this outcome without permitting separate state and federal prosecutions for the same crime would be to prohibit state prosecutions altogether for acts that are also federal crimes. In other words, this says that the court found that the prohibition against double jeopardy allows these separate prosecutions because prohibiting them would require a "massive shift" in the responsibility for enforcing criminal law away from the states and toward the federal government. (Of course, this works both ways; if double jeopardy applied across sovereigns then the federal government could also neuter state laws. More generally, the current approach to double jeopardy may be seen as maintaining the balance of power between the states and the federal government, more than as protecting the interests of one side over those of the other.) | In order to challenge a search at trial via an evidence suppression motion, the particular defendant has to have Fourth Amendment "standing"1 with respect to that search: Rakas v. Illinois, 439 U.S. 128 (1978). From the syllabus: Fourth Amendment rights are personal rights which ... may not be vicariously asserted ... a person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. Subject to the various exemptions to the exclusionary rule discussed at this question, the evidence in your scenario would not be admissible against Bob, but would be admissible against Rob. This does not necessarily mean that Bob would go free. As noted in that other question, if police/prosecution have other evidence, independently gathered, or sufficiently attenuated from the illegal search, they may still have a case against Bob. This also doesn't mean that an unconstitutional search of a person who will not even be prosecuted is without a remedy. See this answer for a discussion of civil remedies available for a person who has suffered an unconstitutional search. 1. The Court has distanced itself from the term "standing" in this context, so I am using it somewhat colloquially as it is still in common usage in this sense. The Court instead just conceives of whether the defendent even experienced a Fourth Amendment search; the notion of standing is either redundant with or subsumed by such analysis. | 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. | Yes. The precedent is President Gerald Ford's pardon of his predecessor Richard Nixon in proclamation 4311 before any possible prosecution had started. The pardon was granted specifically to prevent the disturbance of "the tranquility to which the nation has been restored" by "the prospects of bringing to trial a former President of the United States" (emphasis mine). It is noteworthy though that a pardon can be rejected by the recipient, and that there may be good reason to do so, because accepting one is an admission of guilt.1 In the words of the Supreme Court (Burdick v. United States, 236 U.S. 79 (1915): There are substantial differences between legislative immunity and a pardon; the latter carries an imputation of guilt and acceptance of a confession of it [...]. (Again, emphasis mine.) Proactively pardoning large swathes of current and former government officials, family members and other people connected to the Trump administration would therefore be a double-edged sword: It surely may save a lot of the money and headache coming with being the target of an (even unsuccessful!) investigation; but it may also amount to admitting that the Trump administration was essentially a criminal organization. 1 As always, things are a bit less clear-cut when one takes a closer look. Because I googled "prospective pardon" after the correct remark by JBentley I stumbled upon the entirely relevant and eminently readable Congressional Research Service reports on pardons. The first one is a "pardons FAQ", the second one is a more thorough legal exploration of what pardons actually do. The bottom line is that the Supreme Court and Federal Courts have edged away from a 19th century opinion (Ex parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866)) which viewed a pardon as an all-encompassing expungement. Newer decisions (prominently, Burdick v. United States, 236 U.S. 79, 86 (1915) which I quoted) don't. | Federal Civil Rights Liability Qualified immunity is a doctrine that applies to lawsuits under 42 U.S.C. § 1983 seeking compensation for an intentional violation of constitutional rights under color of state law. The qualified immunity inquiry is not reached in the first place if the prima facie case is not established because the conduct allegedly violating a constitutional right under color of state law, even if it is a well established constitutional right (i.e. one memorialized in a reported and controlling appellate court decision that is factually similar), if the action was merely negligent rather than intentional. Thus, most likely, there is no federal civil remedy to the victim, unless even the use of the taser would have been a violation of a well established constitutional right under color of state law. Non-deadly force, like a taser, is subject to a lower threshold of justification than deadly force, like a firearm. Of course, under general Fourth Amendment principles applicable to the states, an attempted arrest which appears to be what the OP describes, must be supported by probable cause that a crime was committed for which an arrest would be authorized. So, if this is the violation of rights alleged, there may be a federal civil rights remedy. But, further examination of the facts show that there was apparently a warrant for the arrest of the person shot outstanding. So the officer probably has a legal basis to use non-deadly force to make an arrest pursuant to the outstanding warrant, but probably did not have a legal basis to use deadly force to make an arrest. Federal Criminal Liability The most common charge under federal criminal law for excessive use of force by a police officer, is a criminal violation of civil rights. But this, like the civil remedy, requires a showing of an intentional violation of civil rights which the OP tends to suggest is absent unless the officer lacked probable cause to make an arrest. State Law Civil Liability At the state level, law enforcement officers acting under color of state law are immune from civil liability except as authorized by state law in an exception to sovereign immunity. Generally, there is no exception to sovereign immunity for a negligent use of force by a police officer. So, the police officer probably can't be sued successfully by the victim's estate under state law. State Criminal Law Considerations For criminal law purposes, whether or not the law enforcement officer's actions were a crime under state law would dependent upon both the elements of the offense: probably manslaughter or negligent homicide in this case, and the scope of force authorized under state law in the case of a law enforcement officer seeking to arrest a fleeing suspect. Usually, under state law, the use of reasonable force to make an arrest supported by probable cause is allowed and the use of deadly force to make an arrest support by probable cause is allowed only if there is a threat to the public based upon probable cause to believe that a particularly serious violent felony was committed. Qualified immunity is not applicable to state criminal law liability, although express statutory defenses in a state criminal statute might be similar in some cases. Caveat Of course, all of that analysis assumes that the story of the officer's motive and intentions was truthful. There is very good reason to be skeptical of this fact and to believe that the use of a firearm was not a negligent mistake, and that race was a motivating factor. Simply saying that one's motives were good is not a free pass and a jury doesn't have to believe the law enforcement officer. | Regarding the second part of your question: The 7th Amendment does not apply in state court, so any right to a jury trial there would depend upon the constitution of the State of Texas (specifically Article I, Section 15 of the Texas Constitution). This is the case because the Bill of Rights applies by its terms only to the federal government. Under the Selective Incorporation doctrine, the 14th Amendment causes some of the Bill of Rights to apply in state court but not all of it. In particular, the 7th Amendment is one of the parts that does not apply in state court as determined in the U.S. Supreme Court cases of Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916) and Pearson v. Yewdall, 95 U.S. 294 (1877). The 11th Amendment would probably bar a federal lawsuit over this matter, since the proper defendant would probably be the State of Texas which is immune from suit in federal court except by another state or the United States. You would still have a right to assert your substantive federal constitutional rights in any state court litigation, however. | This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification. | Yes and No. The Federal U.S. Government as well as each individual state and territory claim Soverign Immunity to a limited degree. In the case of Federal Government, they claim Soverign Immunity to a near limitless degree (more on this in a moment), while States and Territories claim "State Soverign Immunity" which grants them immunity with respect to all soverign powers granted under the U.S. Constitution. To clarify, each U.S. State is seperately soverign in all matters not explicitly allocated to the Federal Government by the U.S. Constitution and all constitutionally written laws. Where the Constitution does not in writing claim a power for the federal government nor reserver a power for the state government, the power is assumed to be state government. So a State can claim immunity for a police situation but not a law it makes regarding immigration or foriegn policy, since that is the exclusive wheelhouse of the Feds. Per the 11th amendment, states can only be sued in state court by citizens of the state, while non-state citizens wishing to sue a state must sue in the Federal Court (Which for the purposes of the trial may adopt the defendant State's laws and regulations for the purposes of questions of fact and law brought up in the suit). All U.S. States and the Federal Goverment additionally wave Soverign Immunity under specific conditions outlined in laws. In the case of the Federal Government, the laws governing when this immunity is waived are governed by the Federal Torts Claims Act (1946) and the Tucker Act (1887). The FTCA covers intentional torts by the Federal Government, while the Tucker Act typically covers matters related to contractual obligations or monitary interactions with the federal government. Things that may be sued for include but are not limited too: Intentional Torts committed by Government Agents in their Official Capacity (i.e. When the FBI violates your rights or maliciously investigates you). Contractual disputes where the Government is a party to the Contract, either in written or implied terms. Constitutional Claims (i.e. The Government may have violated the Constitution. These tend to be for non-monitary relief such as mandemuses, though the 5th Amendment's Taking Clause can be invoked of the government took property and does not justly compensate.). Individual Agencies of the Government when the monitary claim is not drawn from the U.S. Treasury (the agencies own allocated budget is used to pay). Refund for taxes paid In all cases, a Judge will determin if the Government, under the laws, can be sued. If in the example of a government employee being sued, the Justice Department will first make a determination if the employee was acting as an agent of the government when they committed the tortious act, and then will declare themselves Respondent Superior through the agency of employement. From there, the case becomes a suit against the Federal Government and FTCA immunity waiver is determined by a Judge. For example, lets say you (Mr. Rapt) sue Special Agent Jimmy Jones of an intentional tort that he committed in the course of his duty as an FBI agent. The DOJ will first declare that they are Respondent Superior in the case of Rapt v. Jones, thus turning the case to Rapt v. United States Government, Department of Justice, Federal Beura of Investigations, and Jones (Rapt v. United States, et. al.). From here, the Judge who gets the case then determins if the U.S. Government under FTCA can be sued by Rapt, based on Rapt's citizenship status (usually permanent legal residents are covered as citizens for this point, but I can say for certain in this particular law), ripeness (the suit must be filed within 2 years of the incident or first knowledge), and immunity waiver under FTCA. In the case of the State Government, they should have similar laws, but I'm not going to identify all 50 individual laws here. Additionally, the 11th Amendment permits U.S. Congress to waive a State's immunity to suit in certain cases (mostly comes up with the Due Process Clause in the 14th Amendment.). As a fun point, in all cases where a government appears as a defendant in a suit, it is automatically a Bench Trial, as the government usually include a waiver of their right as defendant to a jury trial. The thinking here is that, as a country that was founded by rebelling against the government, a jury of 12 of the government's citizens aren't going to give them any slack at trial, where as a judge (who they pay) is much more likely. TL;DR: Both questions are yes. The immunity is waived under federal law for certain cases, but it is a judge who will make the ruling if the specific case meets the aformentioned waived immunity. |
How do prosecutors prepare to cross-examine defendants? Prosecutor Peter is preparing for a trial. Defendant Dexter may or may not take the witness stand. Peter has no idea what he would say if he does (no disclosure obligation on the defendant) but still needs to be ready. So, Peter thinks up a few lines of defence that Dexter could possibly adopt on his evidence-in-chief and prepares separate sets of cross-examination questions for each. To each question Peter expects one or more possible answers. Every subsequent question will often depend on what the answer to the previous one was. Peter aims to plan the questioning such that inconsistencies in Dexter's answers surface as soon as possible so that it becomes apparent that he is lying and Peter could just say "no further questions, Your Honour". Is that roughly how prosecutors prepare? Do they draw flowcharts? Do they use some special methodologies? Or do they just fly by the seat of their pants? | I'd imagine that testimony from the defendant is rare enough that in the majority of cases, prosecutors do not meaningfully prepare for a cross examination. To the extent they do, I'd expect the preparation is similar to that for basically any other witness. So I wouldn't expect complicated flowcharts, because the general rule at trial is that you only ask questions whose answers are both known and helpful. So if I need to place the defendant at the OK Corral at 3 p.m., I'm only going to ask him where he was at 3 p.m. if I have evidence showing that fact is true -- maybe he gave a written statement to the sheriff, maybe he posed for a daguerrotype, whatever. I expect him to deny it, so I don't ask the question unless I have evidence more convincing than his denial. In this way, a defendant -- like any hostile witness -- is used less to provide any facts of their own, but rather as an involuntary narrator of my own story, authenticating evidence and validating the facts consistent with my theory of the case. | Lawyers may break confidentiality with client permission. You can also break your own confidentiality and talk to the prosecutor yourself. The prosecutor's response is up to the prosecutor; however, they tend to not be super excited about giving immunity to a witness for the defense if they might want to prosecute the witness later (and courts often are fine with that), so the more they suspect about your true role the less likely they are to grant it. No. If the feds later find truly independent evidence (they have the burden of showing it's truly independent), they can prosecute. Some states give transactional immunity to witnesses (you can't be prosecuted for crimes you testified about for any reason), but the Fifth Amendment doesn't require it and at least the feds aren't bound by state transactional immunity. It's hard to prosecute, but is possible if prosecutors play their cards right. Yes, it does allow civil liability. There is no right against self-incrimination in civil matters, only criminal liability. If the forced testimony leads to a lawsuit that bankrupts you, too bad. | Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality. | The parties can be required under oath to explain what they understand the plain meaning of the words to be. Where they disagree about the plain meaning of the words, they can use expert witnesses to give weight to their interpretation. Once the judge determines the plain meaning of the words (either by agreement between the parties or by reference to expert witnesses or other evidence), it is a matter of standard contract interpretation. Even in the case of an idioticon, where no expert witnesses are available, if the disagreement between the parties surrounds only a few words, the judge could find that there is no actual ambiguity because the context. Also, the judge could refer to parole evidence if needed. The purpose of the written contract is to provide evidence of your agreement. It is a bad idea to create evidence that you both may want to rely upon at some point if nobody else can understand it. | The situation you describe is extremely unlikely First, you will have been required to give a statement to the police who would have asked you most or all of the questions that you suggest before anyone gets anywhere near a courtroom and likely before any arrest has been made. That statement will be part of your evidence in chief. As in "Is this your statement?" "Yes". "Is this your video recording?" "Yes". After that, your evidence in chief is pretty much done. A witness of fact (rules for expert witnesses are different) can only testify as to what they personally sensed and what their state of mind was. So questions about what you saw, heard, tasted etc. are all perfectly legitimate as are questions about what you thought or felt. You are required to answer these questions honestly - if that means "I don't know" then say "I don't know". All of the hypothetical questions look fine but as I said, they will all have answers in your police statement. The only one that's off-limits is ""Do you feel that a crime has been committed?" - nobody knows if a crime has been committed; that's why we're having a trial. | united-states I am answering this in the case of a criminal jury trial (given the context of the previous question). It is my understanding that the judge must accept (almost?) all evidence admitted into court. So, this leaves me with three questions: What happens if an official shows evidence that the judge hadn't agreed to feature in the trial? . . . What happens if the evidence happens to be inadmissible? A trial in a criminal case takes place in a courtroom at a predetermined date and time, with the prosecutor physically sitting at one table in front of a judge and the defendant and the defendant's lawyer physically sitting at another table in front of the judge, and a jury physically sitting in a seating area to the side of the judge, and a witness (usually) physically sitting in a chair on the other side of the judge (in rare circumstances, for minor witnesses, testimony is provided by telephone with the phone put on speaker in the courtroom for all to hear), and a court reporter or tape recorder keeping track of what happens verbatim. In a trial, essentially all evidence comes in through witnesses sitting on a special the chair in front of the judge designated for witnesses (called the witness stand) at the request of either the prosecuting attorney, or the defense attorney. This is the only way the evidence is introduced (other than by stipulations of both side's lawyers). Prosecutors and defense attorneys don't testify or provide evidence themselves. The judge is usually not told what evidence will be offered at trial in advance, although sometimes a pre-trial hearing is held to consider a particularly important piece of evidence's admissibility prior to trial, in a hearing on what is called a "motion in limine" or a "motion to suppress". If that happens, the judge's decision made in advance will be honored by the judge when anyone tries to introduce the evidence at trial. But those are the exception and not the rule. Usually, any witnesses can be asked any questions at trial and the judge does not consider the admissibility of the answer to the question until it is asked and objected to by the other side's lawyer at trial. A defendant can choose to be, but is not required to be, a witness in his or her own case. In a trial, when it is their turn, the prosecution and defense, respectively, ask witnesses to sit at the witness stand one by one and ask them questions, which the witness answers under oath, absent an evidence objection from the other side's attorney. While a witness is on the stand, exhibits such as documents or physical objects can also be introduced into evidence in connection with the authenticating testimony of the witness (except in cases where both sides stipulate to the admission of the documents or other non-testimonial evidence). As the lawyers try to introduce evidence by asking a question to a witness on the stand, or by asking the judge for permission to introduce non-testimonial evidence, the other side's attorney can say, "I object". If that happens, the witness on the stand is not allowed to answer the question and the non-testimonial evidence (e.g. documents, or a knife allegedly used in a crime) is not made available to the jury until the judge rules on whether it is admissible or not in accordance with the rules of evidence. Usually, the judge rules on the evidence objection immediately in the moment, although in rare cases, the judge will let the jury have a break for a few minutes while hearing arguments from the lawyers for both sides on about the relevant evidence rules and/or researching the legal issue, before ruling on the evidence issue. Once the judge rules on the evidence issue, the trial continues immediately. If the judge "sustains" the objection to the evidence, then the question doesn't get asked and/or the jury doesn't get to see the non-testimonial evidence. The lawyer whose question or offer to introduce evidence was successfully objected to moves on to their next question (if any) for the witness instead. If the judge "overrules" the objection to the evidence, then the witness answer the question and/or the jury gets to see the non-testimonial evidence which is "received" into evidence by the judge. This process continues continuously, for as many business days as it takes, until all witness testimony and all non-testimonial evidence has been presented to the court and both sides have told the court that they have presented all of their evidence. Then each side makes closing arguments to the jury, the judge reads the jury instructions of law on how to resolve the case, and the jury is sent to closed room to discuss the case and decide whether to say "guilty" or "not guilty" with respect to each charge brought by the prosecution in the trial. This decision is called a "verdict" and when the jury has made up its mind on all charges present to it, the jury lets the judge know that it has made up its mind, and the judge calls everyone back to the courtroom, and the jury tells the judge what they decided in open court. If the verdict is "not guilty" on all criminal charges in the case, then the case is over, with no post-trial motions and no appeals. If the verdict is "guilty" the defendant is convicted, subject to post-trial motions to declare a mistrial and appeals by the convicted defendant. If the convicted defendant appeals the case, and the judge abused his discretion in overruling an objection to the evidence that is made by the lawyer for the defendant (or the defendant personally if the defendant is not represented by a lawyer), because no reasonable judge could have found that the evidence was admissible under the circumstances, then the appellate court rules that the judge has made an "error". The appellate court will not find that the judge's ruling is an "error" if the judge made the correct decision for the wrong reason. If it is reasonably possible that "error" possibly in combination with other errors made by the trial court judge could have caused a convicted criminal defendant to have been acquitted by the jury if the errors weren't made by the judge, then the defendant gets a new trial. The new trial usually before the same judge with a new jury. But the new trial is before a different judge and a new jury if the judge is no longer a judge on the court for any reason, or if the judge has been so defiant of the appellate court (typically ignoring its instructions in a retrial after a first appeal) that the appellate court decides it must remove the judge from the case. A criminal defendant is only acquitted by an appellate court if the appellate court finds that it would be impossible under any circumstances for the defendant to be convicted in a new trial, possibly with different evidence presented by the prosecution. What happens if a private citizen does the above? This doesn't make sense. Private citizens don't rule on the admissibility of evidence in a criminal trial, and can't introduce evidence in a criminal trial except at the request of a prosecuting attorney or defendant's attorney by being called as a witness and asking the questions that the lawyers (and sometimes the judge as well) asks the witness. Witnesses are not allowed to volunteer testimony or provide documents to a jury unless asked to do so by a lawyer in the case. What happens if someone provides evidence in court without the knowledge of the judge? As the process described above should make clear, this is basically impossible absent some extremely irregular event on the same level of irregularity as someone bribing a jury or threatening a jury with harm if he votes the wrong way. | 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. | First, while Law and Order should not be taken as an accurate depiction of a New York trial, it especially should not be taken as an accurate depiction of an Australian trial. Australian law, while it has some major similarities with US law (both ultimately derive from the law of England), is not US law. With procedural matters (such as "may jurors ask questions of witnesses"), it can potentially differ from court to court. In general, jurors may not simply ask a witness a question. The jury's job is not to investigate and figure out if the defendant was guilty or not; it's to evaluate the cases presented by each side. US (and Australian, as far as I know) courts use what's known as the adversarial model, where the prosecution and the defense both present the best cases they can and a neutral third party decides which case was stronger. In a US criminal trial, the state is expected to justify why someone should be in jail; the jury shouldn't be helping them justify it. This isn't how all jurisdictions around the world work, but it's how the US does. One concern with juror questions is that it has the risk that the juror will not be impartial. Jurors are not supposed to get into arguments with witnesses, or to go after them to try to prove a point. In your case, the juror might be introducing an entirely different line of reasoning from the one either side is presenting, and that's simply not their job. People have raised the concern that a juror thinking up questions might be deciding the case before they hear all the evidence, and might give too much weight to the answers to their own questions (or read a lot into it if a question is denied). There are also rules on what questions may be legally asked; lawyers know these and jurors generally don't, which is why jurors may almost never directly ask a question to a witness. Where they can ask questions, it's virtually always written questions, which the judge reviews, gives to both sides to see if anyone objects, and then reads to the witness in a neutral tone. |
Is it legal to run a business where members subscribe for a chance to purchase a product each month? Trying to determine the legality of a business idea in the United States. The business would offer a monthly membership for a set price. This membership grants the member 1 entry per month. Each month a product that is only available on the resell market for a high markup is offered to the members for purchase at the original retail price by way of a random drawing. A member would elect to use their entries granted to them by their membership to enter the drawing. By entering the drawing, the member is agreeing to purchase the product offered if their entry is selected. I am aware that a for-profit raffle/lottery is not legal in the US, but was not sure if the described process would constitute a for-profit raffle or lottery since the winner is only granted the option to make a purchase. Searching for answers to this questions is only returning results for raffles that give away items of value. | california This is a lottery, and thus illegal as a for-profit business Calfornia Penal Code § 319 defines a "lottery" as any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it, or for any share or any interest in such property, upon any agreement, understanding, or expectation that it is to be distributed or disposed of by lot or chance." Under Calfornia Penal Code § 320 (with some later exceptions for nonprofit charities), Every person who contrives, prepares, sets up, proposes, or draws any lottery, is guilty of a misdemeanor People v. Settles held that an obligation, such as the one you propose, is "property" within the meaning of the above section of the Penal Code: The duty of the operators of this game to permit the winner to play further games free is an obligation arising from contract, and the right of the player in the matter is personal property (Civ. Code, sec. 663), and a thing in action. It is, therefore, property within the meaning of [29 Cal. App. 2d Supp. 787] section 319, Penal Code. Therefore, running this scheme as a for-profit business would constitute a misdemeanor in California. | 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. | Under U.S. law, this is only actionable is you make this statement knowing that it would not "support the continued creation of X" and that instead, you had already completely abandoned that product and you were, for example, planning to change lines of work and become a lumberjack instead. Even in that case, common law fraud is hard to show, because you would need to show how that statement which related to how the profits will be used, rather than what you are actually receiving, could cause you damages in that narrow transaction. But, many states have deceptive trade practices acts that protect consumers by allowing the attorney general, local prosecutor, or a private individual or class of plaintiffs to sue if representations such as these are made when they are known to be false. Typically, these lawsuits provide for minimum statutory damages, attorneys' fees award, and when cases are brought by a public official, injunctive relief (ordering the advertising with that pitch to cease) are authorized. For example, saying this when it is false would be actionable in California and Colorado. A fairly common fact pattern is that someone will sell stuff at an above market price saying that "profits will help me pay for my cancer treatments" when in fact the person doesn't have cancer. This could even constitute criminal wire and mail fraud, for example. Sometimes, competitors can also sue you under the Lanham Act (which primarily governs federal trademarks), for false advertising about something that could unfairly undermine their sales if what you are saying isn't true and is causing their sales to drop. On the other hand, if you sincerely believe that what you are saying is true when you say it, and your belief is not so unreasonable that no reasonable person could believe that under the circumstances, then what you are saying is legal. Usually this is true, and if it is, ultimately, you will be fine. Although nothing can prevent you from being sued on a non-meritorious basis. In between are cases where this is true (you will be supported, but perhaps only get 5% of the profits while the rest are garnished for a lawsuit), but your statements were still misleading at the time you made them and you knew it. Those cases get resolved on a case by case basis. Outside U.S. law, your mileage may vary. Legal regulation of commercial speech varies significantly from one country to another. These statements might not be O.K. for example in a Communist regime on the Chinese or Korean model. | If you cannot legally purchase a gun in Utah due to any restriction, such as residency, and you engage someone else to knowingly buy or gift you a gun (such as a "straw man" purchase from a dealer or private sale), that is illegal. From the same link you posted (my emphasis): Can I buy a firearm as a gift for someone? Yes, as long as the receiver is not a prohibited person and the gifting is not being used to circumvent a background check or other laws. Calling a purchase intended in place of another is a straw purchase. | In German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content). If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court. Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms. Also note that everything said is only based on my own knowledge and can not be used as safe legal source. | Is it legal to sell currency at a price lower than face value? Yes. In fact, to donate is the act of transferring for free the ownership of something. Outlawing a transaction that is less extreme than a donation would be inconsistent with the lawfulness of donations. A significant departure from the market exchange rate does not affect the validity of currency exchange. A "sale" of currency in terms of itself is not illegal, since the transaction can be viewed as a combination of two transactions performed instantaneously and involving the fiction of an intermediary currency. Offers of currency for less than face value also happen very often when transacting the bonds issued by a country's central bank. Any two parties can transact those bonds in secondary markets. The scenario you describe obviates redemption periods, fluctuation risks, and various formalities, but those differences are inconsequential from a legal standpoint. | england-and-wales Yes it is legal. There is no law prohibiting such behaviour. A restaurant menu invites people to ask for items on the menu. People are free to make other offers too, e.g. "no cheese" or "will you add an egg?" or "will you accept £10 for the burger, it's all I have?" The customer is free to make an offer and the restauranteur is free to accept or refuse the offer. "No I don't want to sell you a burger patty on its own for £3." Unfair contract terms seem irrelevant because there is no contract at the stage when the customer asks the restauranteur for a food item. | Choice 2 is what the writers of the license have in mind. You own the physical media on which the copy is delivered, such as a DVD or floppy disk (if there was physical media). But you do not own the copy of the software, you merely have purchased a license to use it, which may be revocable under specified circumstances. This is different from the law in the case of a book. Why you buy a book, you own a copy of the book, although you do not own the copyright to the book, and may not make additional copies. The license model was adopted by commercial software distributors for several reasons, but largely to avoid the "first sale doctrine". When you buy a copy of a copyrighted work, you have the right (under US law at least) to lend, rent, sell, or give-away that copy. You do not need the permission of the copyright holder to do any of these. Those in the commercial software business did not want customers to be able to do those things legally. By making the software subject to a license, which is a contract, they could write that license to restrict or prohibit those rights. Sellers also wanted to prohibit reverse engineering of the software, and to restrict use of the software. (For example, to limit the user to installing it on a single computer.) There was at first much dispute over the enforcability of such license agreements. But most US courts now accept them as valid and enforceable, and copyright law has been modified to take account of them. Specifically, 17 USC 109 (2)(b)(1)(A) seems to include a legislative acceptance of this rule. |
Legal status of pre-natal gender screening by Indians outside India India has banned pre-natal gender screening under the The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 Does the said law (or any other law or treaty) prohibit Indians to get the pre-natal gender screening test done outside India (in any country where this is legal)? | Does the said law (or any other law or treaty) prohibit Indians to get the pre-natal gender screening test done outside India (in any country where this is legal)? YES, in theory but I cannot find any relevant case law where this has been considered by the court. Section 23(3) of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 (PCPNDT) creates the offence for non-medical practitioners etc: Any person who seeks the aid of any [medical practioner etc] or any other person for sex selection or for conducting pre-natal diagnostic techniques on any pregnant women for the purposes other than those specified in sub-section (2) of section 4, he shall, be punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees. And section 4(1) of the Indian Penal Code (IPC) provides for extra-territorial jurisdiction for any offences committed by: any citizen of India in any place without and beyond India... Normally, criminal justice action would only be considered once the parties returned to India, but note that section 299 of the Code of Criminal Procedure 1973 allows for trials in absentia. However I cannot find any relevant case law to say whether this has actually happened in this type of scenario. | Article 15(2) of the Indian Constitution prohibits restriction to any citizen of India on entry to a public hotel, restaurant or place of entertainment on the grounds "only of religion, race, caste, sex [and/or] place of birth". It is a fundamental right guaranteed to all citizens of India. The Supreme Court of India has held a "public place" to mean any place which is open to the public and to also include private places functioning to serve a non-exclusive group of people. Hence, a club or premise opened only to serve its affiliates or members shall not be considered a public place for the purpose of this provision of law. Hence, if a citizen of India is not denied admission purely on the basis of his/her religion, race, caste, sex or place of birth, his admission to a restaurant or a hotel owned and operated by the government or private concerns may be prohibited as the rights of admission may be reserved with the management of the premises. Just to conclude you can sue the hotel for denying entry | I'm not sure if the information is accurate, but according to the above text, when a wife cheats, it is marriage not biology that decides the paternity of the child. I got some questions: If my wife cheats on me, I would still be the legal parent of the child. If I don't want this paternity, is there a legal process to disavow it? In most states, yes (I can't think of any exceptions, but there are 50 states and more self-governing territories and this is a matter of state law). Typically there is a statute of limitations of one to five years from the date of birth for a husband or person listed as a father on a birth certificate to bring a legal action to disavow paternity. See, e.g., California Family Code §§ 7540-7541 (setting a two year statute of limitations from a child's birth for a person with standing to dispute that a cuckolded husband is the legal father with genetic evidence). Note also that the process and statute of limitations are usually not the same, if, for example, a child wishes to prove that the child's biological father is someone other than the legally presumed father of that child. If I fall in love with a married woman and we give birth to a child, I am the biological but not legal parent of the child. Is there a legal process for me to claim paternity of the child from the woman's husband? Sometimes yes, and sometimes no. The U.S. Supreme Court, in Michael H. v. Gerald D., 491 U.S. 110 (1989), held that a state is not constitutionally required to make such a process available, but some states do anyway. The details of how this plays out under New York State law are described in this Law.SE question and answer. An analysis of the relevant portions of Minnesota law can be found here. For example, in California, Family Code Section 7541 limits standing to dispute paternity to spouses, people "presumed to be a parent" under Family Code Section 7611, or representatives of children seeking to establish or disestablish the paternity of someone "presumed to be a parent" under Family Code Section 7611. So, the only people eligible to be found to be parents are (excluding spent provisions of only historical interest): A husband who was married to the mother at the time of the birth or within 300 days before the birth. § 7611(a). A putative husband who would have been a spouse under § 7611(a), who marriage is annulled (e.g. because a marriage license expired or a husband was too closely related to the mother or either spouse is already married). § 7611(b). A putative husband who cohabited with the mother within 300 days before the birth whose attempt to married was too obviously defective to require an annulment (e.g. two fifteen year olds who have a church wedding without a marriage license). § 7611(b). A husband of the mother who marries the mother after the birth and is also named as a father on the birth certificate, in a voluntary written promise, or in a court order. § 7611(c). A putative husband who attempt to marry the mother after the birth and is named as a father on the birth certificate, in a voluntary written promise, or in a court order. § 7611(c). A person "who receives the child into his or her home and openly holds out the child as his or her natural child." § 7611(d). A parent who dies while the "child is in utero" if this is established in a probate court proceeding. § 7511(f). Thus, in California, a father of the child of a woman married to someone else, who is still alive, (or someone of behalf of the child seeking to establish that he is the father) can only dispute the paternity of the husband of the child's mother (if the husband himself or the mother does not challenge the husband's paternity) if he "receives the child into his home and openly holds out the child as his or her natural child." Simply claiming paternity without "receiving the child into his home" isn't sufficient to overcome the presumption that the mother's husband is the father in California unless the mother of the child or her husband disputes this presumption. The document says "The reverse is not true". Why the decision about paternity is different between a wife cheats on a husband and a husband cheats on a wife? Because maternity (absent a surrogacy arrangement) is almost never in doubt, while paternity is often in doubt. Furthermore, it wasn't possible when these doctrines were formulated (centuries ago) to determine paternity reliably in all cases anyway, at least at an affordable price. Cheap and reliable paternity tests, that can be used in pretty much any circumstances{1}, have only been possible for less than forty years, which is why a case like Michael H. v. Gerald D. didn't come up until then. {1} There have been particular cases, for example, when mother and father are both white and a child is at least partially black, where it has always been possible to do so (although even that scenario isn't 100% accurate, as illustrated by a famous historical case in which both parents had a modest amount of African ancestry that wasn't visible phenotypically). Similarly, there was the scenario of @MartinBonner where husband "was away at sea/war at the time conception would have had to occurred". Later on, blood types could disprove paternity in some cases, but not prove it with any certainty. There is a quasi-magical process described in the Old Testament for resolving such disputes involving the wife drinking a semi-poisonous liquid. In the Roman Empire, those cases were resolved by the husband who had a right to commit infanticide if he wished. In modern times, something close to the existing legal process has usually been available, complicated in certain eras by criminalized adultery, "heart balm" civil actions, and fault based divorce. | Can you always ask for an independent genetic testing when you are asked by the court to support your wife's or your partners children? No. Only sometimes. (Literally, you can always ask, but sometimes the answer will be clearly "no", as a matter of law.) Some presumptions of paternity are conclusive (either immediately or after a statute of limitations to contest paternity expires) and can't be overcome by contrary genetic evidence. Other presumptions of paternity are rebuttable. The specifics vary in important details from state to state. The theory behind the conclusive presumption is primarily that the presumed parent in those circumstances becomes the psychological parent, and it is not in the best interests of the child to dislodge a psychological parent, even if that parent is not a biological parents. Put another way, a conclusive presumption is really part of the definition of what a father is under the law. Several other answers at Law.SE have addressed this in the context of specific U.S. states. An answer here considers California law and another answers the question under New York law. | Let's back up. It's premature to say that SB 8 "avoids the constitutional restrictions on banning abortions". The constitutionality of SB 8 has not been resolved; the Supreme Court said so explicitly (page 2). In fact there is good reason to think that is unconstitutional under existing interpretation of the Constitution per Roe v. Wade and the like. (Whether the court will actually follow existing interpretation is another question, of course.) But the courts do not determine the constitutionality of laws just because someone asks them; they only do so when it needs to be decided to resolve a particular case. For instance, if a person is charged with a crime, they can challenge the constitutionality of the law under which they are charged, and courts will address that question unless the case is resolved some other way. There are also ways that a person who wants to violate the law can pre-emptively sue the government to prevent them from enforcing the law, if they can show such enforcement is likely to affect them. The issue in SB 8 is that since it wouldn't be the government enforcing the law, it's unclear who an abortion provider can pre-emptively sue. In Whole Woman's Health v. Jackson, they tried to sue the State of Texas, its courts, and a private party who they thought might be likely to sue them. The SCOTUS majority found that none of those defendants were relevant. However, if and when an abortion provider actually does get sued, there'll be a clear case which has proper parties and is ripe, and courts then will have to consider whether SB 8 is constitutional or not. So if your hypothetical gun control statute were treated similarly, the law might avoid pre-emptive challenges, with a chilling effect on gun sales. But sooner or later, someone would probably violate the law (maybe deliberately as a test case), and the courts would consider whether it was constitutional or not. Under prevailing interpretations of the Second Amendment, they'd probably find that it wasn't. A key difference, of course, is that abortions are much more time-sensitive than gun purchases; being temporarily blocked from having an abortion is much more consequential in most cases than being temporarily blocked from buying a gun. The other subtext is that, although SCOTUS said their decision in Whole Woman's Health is not based on the constitutionality of SB 8, it's widely suspected that several of the justices are not all that keen on the constitutional right to abortion found in Roe v. Wade, and might look to overturn Roe when it comes up. As such, they may not be very motivated to look for procedural avenues to block SB 8 in the short term, since they might be inclined to uphold it in the long term. The dissenters in Whole Woman's Health certainly thought those avenues were available. But in the case of your hypothetical gun control bill, if a majority of justices were pretty convinced that the law was unconstitutional, they might try harder to come up with grounds to block it pre-emptively. | Yes. But it isn't illegal discrimination in many places. Laws against discrimination prevent the discrimination based on forbidden categories. Take the national Olympic team: They are allowed to discriminate based on athletic performance, obviously. They are allowed to discriminate based on gender. There are men's teams and women's teams, and men cannot simply apply for a slot on the women's team. They are not allowed to discriminate based on sexual orientation. Discrimination based on a minimum age might be legal, discrimination based on a maximum age probably not. For an employer, it is legal in many places to discriminate based on (formal) qualifications, but not to discriminate based on sexual orientation or race. (It may be legal to discriminate based on nationality, however ...) | The theatre is a private place. You may enter it only with the permission of the owners. They are not obliged to grant you that permission. They have the right to refuse admission on almost any grounds they choose. I say "almost" because many jurisdictions have laws about things like race or gender discrimination. I suspect in India it would be illegal to say "You can't come in because you are Hindu." The point is though, that there is a short list of reasons which they aren't allowed to use. Any other reason is legal. | Nowhere is this legal. Polygamy is legal in 58 countries, polyandry is possibly legal in Sri Lanka and Bhutan. Neither country recognizes same-sex marriage, ruling out a marriage between three women. The law of Bhutan is clear on the requirement of male-female mixing, only allowing marriage between 1 man and 1 woman at a time. In Sri Lanka, the Kandyan Marriage and Divorce Act also allows multiple husbands for a woman, but only for Kandyans (Buddhist from the former provinces of the Kandyan Kingdom). |
Regulations concerning non-commercial lithium ion battery transportation With the proliferation of lithium ion-batteries for small-scale energy storage projects, non-commercial transportation of significantly large batteries (in the few kWh range, much larger than the few hundred Wh limits currently set for non-regulated batteries) will become much more common. What regulations pertain to this type of non-commercial transport in the U.S.? How does this change once the batteries are installed in a trailer, RV, boat, or other transportable vehicle? My specific situation is that a repair shop is requiring HAZMAT certification for whoever picks up a replaced Tesla battery pack that I wish to (personally) transport elsewhere. Is this a governmental regulation in general if, say, I was to (personally) transport the pack or its components in the future? | Transporting Lithium Batteries Lithium batteries are regulated as a hazardous material under the U.S. Department of Transportation's (DOT's) Hazardous Materials Regulations (HMR; 49 C.F.R., Parts 171-180). The HMR apply to any material DOT determines is capable of posing an unreasonable risk to health, safety, and property when transported in commerce. Lithium batteries must conform to all applicable HMR requirements when offered for transportation or transported by air, highway, rail, or water. Is this a governmental regulation in general if, say, I was to (personally) transport the pack or its components in the future? The HMR is a weighty tome so there may be more information to add to properly answer the question, but in the meantime this appears relevant: (d) Functions not subject to the requirements of the HMR. The following are examples of activities to which the HMR do not apply: (6) Transportation of a hazardous material by an individual for non-commercial purposes in a private motor vehicle, including a leased or rented motor vehicle. UPDATE: I have reviewed the HMR and there does not appear to be anything else of direct relevance to the question | In the United States, the U.S. Department of Transportation, by regulation sets uniform design and signage standards for federally funded highways, which most U.S. state and local governments incorporate, either by restating them or incorporating them by reference for non-federally funded roads. I imagine that most other countries have similar regulations. Nonetheless, this is extremely unlikely to prevail as a defense to the traffic violation of speeding which is usually a strict liability offense to which almost no affirmative defenses, excuses, or justifications may be considered. | Regular maintenance does not include repairs for being broken – I have a contract with a company that (for a monthly payment) provides regular maintenance on the furnace, which does not cover the situation where the motor wears out, or whatever. In the worst case scenario of an oil line breech, the tenant would not be liable for the tens of thousands of dollars of cleanup that would be required. Under Pennsylvania law, there is an implied warranty of habilitability, for example the landlord warrants that it doesn't rain inside the house, there is hot and cold running water, and so on. Safe heat is an example of something that is included in a place being habitable. This warranty is not waivable by lease provision (Fair v. Negley, 390 A.2d 240). However, the subjective recommendation of a repair guy has little legal cash value: what is needed is an arms-length evaluation of the safety and functionality of the system. If the recommendation is based on inefficient fuel use and long-term likelihood of eventual system failure, that is probably not sufficient to compel a repair. Excess CO on the other hand is a clear danger. The repairman should be able to at least explain the specifics of the improper setup and the consequences of doing nothing. Documentation of actions taken is a good idea. | According to Virginia law, Every person convicted of reckless driving under the provisions of this article is guilty of a Class 1 misdemeanor. That speed easily qualifies as reckless driving: A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit. The punishment for a class 1 misdemeanor is "confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both." But wait! An airplane is heavy, so this may also apply: If it is found by the judge of a court of proper jurisdiction that the violation of any provision of this title (i) was a serious traffic violation as defined in § 46.2-341.20 and (ii) that such violation was committed while operating a vehicle or combination of vehicles used to transport property that either: (a) has a gross vehicle weight rating of 26,001 or more pounds or (b) has a gross combination weight rating of 26,001 or more pounds inclusive of a towed vehicle with a gross vehicle weight rating of more than 10,000 pounds, the judge may assess, in addition to any other penalty assessed, a further monetary penalty not exceeding $500. By the way, I couldn't find a general reckless endangerment statute (unrelated to specific objects like firearms or specific results like injury or death) in Virginia law. The closest thing I could find was disorderly conduct, which is also a class 1 misdemeanor. It's possible I just don't know where to look. | Gun control laws The moment you enter the 12 nautical miles zone of a country, you need to abide by its weapon laws. Most functioning large-caliber and fully-automatic weapons are not allowed in civilian hands globally. The moment the ship leaves the 12 nautical miles zone, the country law of its flag applies, so unless you happen to start in the US with a duly registered curio/relic deck gun with proper stamps... you'll have a hard time being allowed to have the thing on board in the first place, and entering any other country's water is pretty much violating their gun control laws and gun import laws. Ship hulls don't support them. That deck gun there is a type of Bofors 40mm L/60 twin mounting - 40x311mmR. That means, its installation weighs upwards of half a ton, as that's the smallest carriage setup according to Wikipedia. Navweapons helpfully provides gun weights of roundabout half a ton per gun. That puts the minimum weight at about that of a PAK 40, but as Navweapons tells us, a US Mark 1 Twin clocks in at 4.4 to 5.8 tons including guns. All on the one mounting spot. With the bulk they are, no fiberglass ship hull could support that much load on the gun's small footprint. It needs a steel-hulled superyacht to even bear the deck load of such an installation. If your ship is the size of a coastguard or navy vessel, it probably is such a ship redesigned, a commercial fishing boat (similar specs), a cargo vessel, a large cruise vessel, or built to your specifications from the ground up. | Battery – offensive, nonconsensual contact with another person – is a crime unless it is justifiable. There are numerous justifications, and the standards for them can vary. For example, self-defense is a justification for battery, and the standard is usually the "reasonable person." I.e., would a reasonable person in the position feel that force was necessary to defend against imminent injury, and was the force used reasonable and proportional to the perceived threat? Force can be used to effect a lawful arrest. The standards for arrest are different for police officers. For example, police typically need only have "probable cause" (i.e., a justifiable belief that a person likely committed a crime) to effect an arrest, and at the point police are typically allowed to use any force necessary to effect the arrest. On the other hand, "citizens' arrests" are typically limited to more serious suspected crimes and, in practice if not in theory, subject to higher levels of scrutiny. So, for example, a cop grabbing the person being chased from a store would almost certainly be immune to charges of battery. A bystander doing the same thing would have to be prepared to justify his interference in civil, if not criminal, court. Some jurisdictions accord a higher right to use force to owners of property. For example, "shopkeeper's privilege" allows merchants to use reasonable force to detain individuals they reasonably believe to have stolen from them. "Castle doctrine" allows people to use lethal force against any intruder in their residence. In the bus fare scenario you describe the bus driver is guilty of battery. Even if a prosecutor declined to charge him for the crime, the victim of that battery could sue the driver civilly. Likewise, the passenger who chose to subsequently attack the bus driver is guilty of battery, because (presumably) there was no ongoing physical threat once he was off the bus. | Such laws or rules most likely would be on a state-by-state basis. As an example, a rule in Minnesota (and the next part which can be accessed with the arrow in the upper right of the web page) requires that "all electrical equipment, including material, fittings, devices, apparatus, fixtures, appliances, and utilization equipment, used as part of, or in connection with, an electrical installation shall be listed and labeled by a testing laboratory." This rule only forbids use of unlisted cheater plugs, not sale. I have not found a law or rule that forbids selling them. Searching the usual places online, I see it is possible to find 3 prong to 2 prong adapters that are UL listed. I will add that essentially the same skills are needed to figure out whether a cheater plug is more or less safe to use in a certain receptacle as would be needed to replace the two-prong receptacle with a three-prong one, and a properly installed three-prong receptacle is going to be safer. | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. |
Can a court compel a particular doctor to treat a particular patient? In episode 15 of the first season of House, Dr. House is served with a federal court order which specifically orders him to treat a particular patient who is needed as a witness in some kind of prosecution. (The patient is in a coma, and will not be able to testify unless he recovers.) House is one of many doctors in the hospital, and there is no indication that he has any prior relationship with the patient. Doesn't this violate the Thirteenth Amendment? | A federal or state court can, in proper cases, order people to take specific actions, In civil suits this is known as "Specific performance". in the Wikipedia article it is said that: Specific performance is almost never available for contracts of personal service, although performance may also be ensured through the threat of proceedings for contempt of court. ... ... Such order[s] are granted when damages are not an adequate remedy and in some specific cases such as land (which is regarded as unique). ... ... Moreover, performance based on the personal judgment or abilities of the party on which the demand is made is rarely ordered by the court. The reason behind it is that the forced party will often perform below the party's regular standard, when it is in the party's ability to do so. In the case of contracts calling for specific personal service, such as that of an entertainer, an athlete, or a uniquely qualified professional, courts have been reluctant to order the individual to perform, but have been willing to order the person not to perform similar services for anyone else until the disputed contract is fulfilled or settled. This would not seem to apply to the situation on the House show. Therefore such an order would quite possibly be within a court's power, but would be highly unusual, particularly if other doctors could equally well perform the service and were willing to do so. Beyond that, the equitable remedy of "specific performance": is used when a party has in fact agreed to do something and then does not carry out the promised act. But in the situation described in the question Dr House had no such previous agreement, as I understand it (I haven't watched the episode). Under those circumstances, an order for such specific action to a particular person becomes very unlikely indeed. There would even be a question whether House would be subject to the court's jurisdiction since he has done nothing to involve himself in the case previously. Also if the treatment were not in the best interests of the patient, but only in the interest of the court system, such an order would be still more unlikely. I do not know of any similar order in real life. | The specifics are set at the provincial level. In British Columbia, consent is required for medical treatment except in certain circumstances like being incapable of consenting. However, the law also says that A health care provider must not provide health care under section 12 if the health care provider has reasonable grounds to believe that the person, while capable and after attaining 19 years of age, expressed an instruction or wish applicable to the circumstances to refuse consent to the health care. In some circumstances (i.e. as laid out in section 12), such a tattoo could trigger a "DNR" effect, but the "must not" provision has a narrower range of application, where it limits the exception to the consent requirement in the case of life saving emergency measures for an unconscious patient. More general advance directives can be given, but such a directive has more detailed requirements, and usually takes the form of filling out a printed form and including the signature of the individual and two witnesses. The aforementioned tattoo would not pass muster as a legal advance directive (even if the text were "don't transfuse me"). It might suffice under the "reasonable ground to infer consent refused" clause. | I know of no legal restrictions on using the title of Doctor in the United states. I know next to nothing about Canadian law and can't speak on that. Falsely claiming to have a license to practice medicine is probably illegal, depending on circumstances, and practicing medicine without a license is most certainly illegal, and there a numerous federal and state laws that would apply. But simply styling one's self as Dr. is unlikely to be held by a court as a claim to hold a medical license, or a particular degree. It's, of course, misleading and generally frowned to use the Dr. prefix unless one has earned an MD or PhD. Some holders of honorary doctorates use it as well, though some debate whether that's acceptable or not. | 1) Bob could disclose the PTSD condition and seek accommodation for it (in reality, controlled narcotics aren't actually used to treat PTSD but it isn't hard to imagine a situation where another controlled substance, e.g. ketamine, was used to treat this or some other Americans with Disabilities Act recognized disability and the absence of that disability was not a bona fide qualification of the job). The legal analysis in the case of the FBI (a federal government civilian civil service employer subject to special rules applicable to governmental employers), and a private employer, is not exactly the same, but it ends up in the same place. 2) Medical marijuana is, as a matter of federal law an oxymoron, because it is a Class I controlled substance that as a matter of law (contrary to reasonable facts) has no medical applications, and the FBI is charged with enforcing this law (among other agencies), so medical marijuana would legally disqualify someone from FBI employment. In Colorado which has legal under state law medical marijuana, employers have been allowed to discriminate based upon medical marijuana use because an employer is at a minimum allowed to treat federal law as enforceable. It is conceivable that some U.S. state other than Colorado which allows medical marijuana at the state level might reach a different conclusion as a matter of state law on the employment discrimination point, but potentially, the employer could appeal to the U.S. Supreme Court on a pre-emption argument so it would be a tenuous legal position to take. | This is normal. It only seems imbalanced because only the prosecutor has been able to call witnesses so far. Under Minnesota Rule of Evidence 611: Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. At this point, only the prosecution has put on its witnesses, so it hasn't had an opportunity cross examine anyone, and the defense has been able to lead because it has only been able to cross examine. Were the prosecutor to call the defendant's wife or mother or something like that, he would probably be permitted to use leading questions. And when the defense puts on its case, the roles will reverse: the defense attorneys will have to use open-ended questioning for any witness he calls, and the prosecutor will be able to use leading questions. | Only in a civil case Yes, in a civil case, Alice generally can call Bob as a witness to take the stand. In many cases, this is done very early, locking in their testimony, before expert witnesses or other evidence by the plaintiff are presented to try and undermine the testimony. Alice may ask only questions that have relevance to the case. Let's take for example a dispute about a contract: Alice may ask Bob if he engaged in negotiations to form the contract, about the matter of the contract, if he signed the contract, or how he (or his employees) fulfilled (or not) the contract. Pretty much everything that pertains to the contract or the execution thereof. This does not extend to the settlement of the case or attempts thereof. Alice may not ask if Bob has an affair with Clarice unless that somehow is material to the contract at hand. Alice may not re-ask questions where an objection was sustained in the same way. However, Bob might not need to answer all questions (there are things that are banned from being asked), especially as Bob's attorney will object to questions. A few examples of competent questioning can be seen towards the end of My Cousin Vinnie, though this is a criminal trial. Never in a criminal trial In a criminal trial, not only can the prosecution not call Bob to the stand, he has to elect to go to the stand to even be questioned by the prosecution. That is because he can "plead the 5th". There is a tiny exception for civil cases, where they can do so there too. | 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? | There is no prospect for equitable relief in such an outcome. The Texas state government enjoys sovereign immunity, except as specified under the Tort Claims Act. Under that law, immunity is waived only in the case of damage caused by negligence of a state employee, and is limited primarily to vehicle accidents and physical injuries. So the state cannot be sued for passing a law found to be unconstitutional. An individual would not enjoy such immunity, but given the law, there is no identifiable defendant to seek relief from (everybody is a potential defendant). An former abortion provider who now declines to perform an abortion can't be sued, because doctors in general have no obligation to perform particular medical procedures (most doctors in Texas won't perform an abortion, even before SB8), and the course will not render a judgment against a doctor on the grounds that they obeyed an existing law but should have known that it would be found unconstitutional. |
Under Texas SB.8 can physicians immunize themselves by paying damages to the person of their choice? If a physician performs an abortion in Texas, then immediately makes a payment of $10k to the person of their choice for violating SB8, are they immune to further damages under the bill? | Almost certainly the answer to this is no because SB.8 talks of the $10K as being (minimum) statutory damages. (The actual provision 171.208(b)(2) is for damages "not less" than $10K, i.e. the court can award more in the first suit.) If e.g. someone breaks the Fair Debt Collection Practices Act by making spurious claims against a group of people, they are each entitled to up to $1,000 statutory damages each (and class action is specifically allowed/mentioned). Generally, you can't avoid paying damages to an injured party by paying them to someone unrelated (before). There's nothing in SB.8 to suggest otherwise, the wording is: a court may not award relief under this section in response to a violation of Subsection (a)(1) or (2) if the defendant demonstrates that the defendant previously paid the full amount of statutory damages under Subsection (b)(2) in a previous action for that particular abortion performed Only proof of payment (not even having lost another suit on the same incident in another county) precludes a judge from awarding the statutory damages. (Claimants can file suits in their county of residence per 171.210, which me not knowing the Texas civil procedure too well, seem to allow multiple parallel lawsuits to proceed.) Now SB.8 is special in that limits relief to the first who sues (or maybe the first who wins) while enabling a very large class to claim injured status and sue... which in itself doesn't make a lot of sense when speaking of statutory damages, but it's a novel kind of relief, so who knows what courts may decide. (It would be interesting if a court determined that that first-claimant limit in SB.8 is unconstitutional, under either Texas or federal constitutions. In some other state laws, there is sometimes a limit on the total amount of damages out of a single incident, but it's not awarded on a first-winner basis, instead there's a provision to "allocate to each claimant his equitable share of the total".) Granted a defendant could come with a legal strategy that look something like: when sued in Texas county arrange for a "friendly" organization (members) to immediately sue in another county. Fight the first lawsuit so as to delay judgement, but immediately concede the one from the "friendly" organization members, so that only the "friendlies" get the statutory damages (first), possibly e.g. donating them back to the defendant thereafter. Whether this would work really depends on details in the Texas civil procedure law, which I'm not too familiar with. | I am not a lawyer; I am not your lawyer. You do not cite a jurisdiction so this makes it very difficult to get a definitive answer. What follows is for Australia but the general principles are common law and would be applicable to other common law jurisdictions except where statues apply or case law has diverged. In the first instance, it seems that you were not party to any arrangement to pay for the electricity. So on the face of it you are not party to any contract requiring you to pay. Even if there was such an agreement: family, domestic, social and voluntary agreements (which this would be) are presumed not to be intended to legally bind the participants. Whether this presumption would be overturned would depend on the specific facts. On the face of it, there is no legal obligation to pay. Your options are: Do nothing; this puts the ball in their court, they can: Forget about it (it would then be over) Attempt to sue you with little prospect of success (which would cost them and you a lot more than $50 irrespective of who won) Do something illegal like beating you up (you really need to assess this risk) Tell everyone they know (in person and on social media) what a skiving prick you are (you could probably sue them for damages but that's not really going to happen, is it?) Pay them what they are asking Offer to pay them something less. Option 1 is likely to break any relationship you have with the person, Option 2 is likely to preserve it and Option 3 could go either way. Ultimately, like most legal questions, this is not about the law; it's about relationships ... broken ones mostly. | Insurance fraud But not for the medical part of the form. Almost all procedures in Australia involve some type of insurance (Medicare, private, workers comp. etc.) - the notice is about the part of the form where you are authorizing payment. | You'd be confessing to committing a crime. I'm not a lawyer, but I wouldn't recommend trying it. Sure, if this trick worked, you might be able to clear yourself of civil remedies, but there's a much bigger problem with this: with the repeal of Roe vs Wade, Texas once more criminalised abortion, and so this tactic would, by necessity, require confessing to a crime in a court of law. While that law expressly prohibited the levying of penalties against the pregnant woman, the law allowing for lawsuits against people who "aid and abet" abortions didn't seem to apply to them either. As such, you'd be opening yourself up to fines of tens of thousands of dollars and a maximum prison sentence of life in jail. | 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. | There is no time limit on performing a legal abortion. §2599-bb of the bill says that a physician may perform an abortion when, according to the practitioner's reasonable and good faith professional judgment based on the facts of the patient's case: the patient is within twenty-four weeks from the commencement of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient's life or health It is left to ordinary language interpretation to understand what "abortion" is. The ordinary meaning of abortion does not include act that follow birth or a child. The law as amended still defines homicide as conduct which causes the death of a person under circumstances constituting murder, manslaughter in the second degree, or criminally negligent homicide and deleted the clause which included the clause an unborn child with which a female has been pregnant for more than twenty-four weeks (this is how abortion past 24 weeks was formerly illegal). The definitions say that A person, when referring to the victim of a homicide, means a human being who has been born and is alive Once a fetus becomes a person by being born, the homicide statute prohibits killing the person. So apart from the fact that killing a person is not "an abortion", the law does not make it legal to kill any man being who has been born and who is alive. As for what constitutes "health", that is not delimited by law, that is, it says simply "health", not "physical health". In general, "health" without modifiers means any kind of health. In fact, in Doe v. Bolton, 410 U.S. 179 it was found that whether a particular operation is necessary for a patient's physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered | I'm not a lawyer or a medical professional, but on Wikipedia's page about DNR, we see the following quote: In the United States the documentation is especially complicated in that each state accepts different forms, and advance directives and living wills are not accepted by EMS as legally valid forms. If a patient has a living will that states the patient wishes to be DNR but does not have an appropriately filled out state sponsored form that is co-signed by a physician, EMS will attempt resuscitation. Based on this, I would hazard the guess that you can't treat anything other than those forms as legally binding, as they even ignore a living will without that state's form. | Vaccination status does not currently define a protected class under Florida or Federal law. Being or not being vaccinated is not legally recognized as a condition that "substantially limits a major life activity", hence is not an example of disability-related discrimination. The opposite scenario, where an employer refuses to hire an un-vaccinated person, potentially runs afoul of disability discrimination laws when a person has a legal disability that prevents their vaccination. As noted here, due to the scope of the Privacy Rule HIPAA does not directly apply to your question, when the patient discloses information. However, the healthcare provider cannot disclose such information without patient authorization. It's hard to see a First Amendment basis supporting the action (in case the law changes w.r.t. vaccination and discrimination). You could imagine a religion which holds that vaccination against some disease is blasphemy, and forcing an employer to hire the vaccinated is compelled speech which repudiates a fundament of their belief. Even so, it is not sufficient that the business owner holds some odd belief, the belief has to be essential to the nature of the business (see BSA v. Dale). That could be the case of a religious school. |
How can one utilize an "objective observer", if one cannot be such? How can one utilize an "objective observer", if one cannot be such? When this "objective observer" is utilized. E.g. X is unlawful, if an objective observer would interpret it as such. like in For purposes of this rule, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State. source: https://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&ruleid=gagr37 The particular problematics related to this are discussed in e.g.: https://www.californialawreview.org/print/what-to-do-about-batson/ Or https://apnews.com/article/race-and-ethnicity-trials-juries-death-of-george-floyd-racial-injustice-495e7b36e5c1eee6eb2ff4ee35a21987 where in particular they say: While the goal objectively is to seat an unbiased jury, both sides try to remove people who may view their case unfavorably. Thus questioning the practical feasibility of an objective observer. While the concept is intuitive as "refers to physically appearing", the idea of an objective observer thus seems faulty to me. I would perhaps call it "non- subject dependent circumstances". But then the question could in some cases, does such exist? A challenge should be e.g. the difficulty/impossibility of displaying that someone is biased, because there's no objective instrument for it. And if it's a human judging it, then it cannot be unbiased. For example, the particular wording in relation to discrimination in the Batson example there seems like it suggests that "an objective observer would treat people equally" or that "it is unfair (to treat people unequally)", which are biases themselves. Thus possibly lending to the idea that "objective observer" may be utilized for "our bias, which we claim objective". Related: Machine-learning jury | The objective observer is not a real person She is one of a number of imaginary people who are used in law to inform judges and jurors how they should intellectually engage with a legal issue. We may not know or be a reasonable person or an objective observer but we know the characteristics they would have if they existed. The legal usage is not to prove a person is or isn’t an objective observer, it’s to establish the standard they would apply if they were. It’s worth quoting Lord Reed from Healthcare at Home Limited v. The Common Services Agency [2014] UKSC 49 at 1-[4]: The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years. The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias... It follows from the nature of the reasonable man, as a means of describing a standard applied by the court, that it would be misconceived for a party to seek to lead evidence from actual passengers on the Clapham omnibus as to how they would have acted in a given situation or what they would have foreseen, to establish how the reasonable man would have acted or what he would have foreseen. Even if the party offered to prove that his witnesses were reasonable men, the evidence would be beside the point. The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard. In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer. The particular objective observer required in Washington jury selection has these characteristics: … an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State. It doesn’t matter that you or I may not hold that view, the hypothetical objective observer does an therefore: If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. So, when the judge considers the challenge they have to view it in the light “that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors” whether they believe that or not. If a person who held that view “could” view the challenge as factoring in race or ethnicity then it must be denied. This long-standing legal tradition is founded in human psychology: we’re actually really good at imagining what other people will do if we make the effort. The hypothetical person is an idealised individual who doesn’t have to worry about money, or children or what the neighbours think. By making an effort to think like they would diverse real humans can actually produce amazingly consistent responses. | Carl may not do this, as he would be prohibited from making this argument at trial. At trial, evidence must be relevant, meaning that it makes a fact of consequence more or less likely to be true. Because the trial is meant to determine whether Carl is or is not guilty, his promises of future philanthropy have no bearing on the matter. And even if they somehow did, Carl still would not be able to tell the jury about them because they would be blocked under Rule 403, which excludes evidence because its probative value is substantially outweighed by its risk of biasing or confusing the jury. If Carl attempts to make these statements anyway, he risks a mistrial, which means he has to start over with with a new jury. In some jurisdictions, Carl may, however, be permitted to make this argument during the sentencing phase, where the court can properly consider the societal effects of whatever punishment it imposes. At this point, though, it's obviously a little late for Carl, as it presumes he has been convicted. | An appeal to ignorance asserts that a proposition is true because it has not yet been proven false. That is not in any way the situation here. The defendant knows if he/she has or has not so the only available answers under oath are "yes" or "no" - the jury knows this too so any other answer will be seen as disingenuous. However, this information (affirmative or negative) is off limits to the jury as it could prejudice their decision, hence the mistrial. A quick judge could instruct the defendant not to answer and instruct the jury to disregard the question but if a conviction results the defence team could use the fact that it was asked as grounds for appeal. A judge must decide if the interests of justice are better served by a retrial or a tainted conviction. | It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question. | 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. | While it is true that jury instructions are typically less than optimal, it is ideological hyperbole or cynicism to claim that instructions are purposely confusing. The ultimate source of the confusion is that the legal system has to assume (pretend) that it has clear-cut rules that any reasonable person can easily understand and automatically apply. In order to maintain uniformity of the law, there is an externally-defined instruction that a judge may read (rather than giving his personal spin on what "reasonable doubt" means or what the relationship is between "reasonable doubt" and convicting a defendant). Once the relevant body of government (committee of judges and lawyers) has established the apparently correct formula for expressing the applicable legal concept, they don't mess with it, until SCOTUS overturns decisions enough times based on crappy instructions. Legal professionals are trained to carefully scrutinze language so as to achieve a single interpretation of a given clause (never mind the fact that there turn out to be many such interpretations). Since they can apply these interpretive rules, it is assumed that anyone can apply them. But in fact, we know that people don't just use literal semantic principles to reach conclusions – but the law resist pandering to that imperfection in human behavior. There is a huge literature on problems of jury instructions, some of the better of which relies on psycholinguistic experimentation to establish that a given instruction is confusing or gives the wrong result. See for example Solan's "Refocusing the burden of proof.." (and references therein) that addresses the problem of the "beyond a reasonable doubt" instruction, which has the unintended consequence of implying that the defense has an obligation to create a doubt (which is not the case, and allows conviction if there is the weakest imaginable evidence which hasn't been refuted). But who gets to decide what the improved instructions should say? The instructions have to correctly state what the law holds (where "the law" means not just statutes, but the trillions of relevant court decisions and applicable regulations). Thus there is massive inertia, and improved jury instructions will not come about quickly. | Your question slightly misrepresents what the article says: Yes, the judge denied the motion which led to the collapse of the case, he did not make a ruling on the substance of the case. The distinction is significant to my mind as the judge was using non-evidentiary knowledge (i.e. what he read in the paper) to make a decision on process; in this case a process that would have put a lot of people to a lot of inconvenience. It would not be proper for the judge to have used such knowledge to inform a judgement. It is also not clear from the article if the academic paper in question was actually introduced by the defendant as evidence. If that was the case then it is only right and proper for the judge to consider it. As to why a judge is allowed to read the news and a jury is not, I can offer several ideas: A judge must document their reasoning process in a judgement which is subject to review - if they were to make a decision based on matters not supported by the evidence then an appeals court could correct it. Alternatively, juries are specifically prohibited from revealing their reasoning process to anyone. Judges do their jobs for years, perhaps a whole career - to prohibit them from consuming media is a) unworkable and b) a serious impediment on their lifestyle. Juries are empaneled for weeks or months - such sacrifices are more reasonable. Judges are (supposedly) trained and impartial professionals who are more readily able to make the distinction between evidence and news. Newsworthy cases are relatively rare | Without being omniscient, it is impossible to pin down an exact percentage, and there are a lot of context specific reasons why some kinds of "easy" cases are more likely to go to trial than others. But, there have been quite a few serious efforts to answer this question with data (putting aside the normative issue of whether you should go to trial when you are likely to lose). One of the best statistical estimates comes from an analysis of criminal jury trials in Sarasota, Florida and the race of the jurors on the jury pool. Based upon that study, it is possible to infer statistically that an average juror of either race would reach the same aquittal or conviction decision in about 55% of cases involving black defendants and about 68% of cases involving white defendants. But, there are many other cases that are close enough on the merits given the likely available that the outcome depends upon the race of the jury, which basically means that the evidence can be reasonably viewed in different lights to reach different conclusions based upon your predispositions before seeing it. For the sample as a whole, about 68% of cases where convictions results and a minimum of 14% of cases that produce acquittals, are sufficiently clear than the racial composition of the jury doesn't matter. Given that something like 90% of cases produce plea bargains generally, and that plea bargains are usually made before a jury pool is drawn, the random impact of the racial makeup of the jury pool that is selected for a case in Sarasota, Florida only directly matters in about 2% of all criminal prosecutions. My criminal procedure professor from law school made one of the most comprehensive surveys of data pertinent to estimating wrongful conviction rate ever prepared. He concludes that wrongful conviction rates for murders and rapes are on the order of 2.3%-5%, and that wrongful conviction rates for other serious felonies are probably somewhat lower (since weak cases are less often pursued) but that it is harder to determine precisely what error rate is involved since the legal process and civic activism rarely takes the time and resources necessary to consider wrongful juvenile convictions or wrongful convictions for less serious crimes. Other sources have suggested that wrongful conviction cases, and studies comparing jury outcomes with conclusions of the presiding judges in the cases regarding where the jury does and does not agree with the judge regarding the correct outcome generally speaking point to a similar level of uncertainty in decision making accuracy. suggest that as many as 10-20% of jury determinations are erroneous, although this is to some extent a product of samples biased for cases with a high risk of wrongful convictions. For example, analysis of a special set of state court cases in 2000-01 from four jurisdictions in a study by the National Center for State Courts (Hannaford-Agor et al 2003) suggested that approximately 17% of jury verdicts were inaccurate, 7% of the all jury verdicts were wrongful convictions and 10% of all jury verdicts were wrongful acquittals, with corresponding rates of 10% wrongful convictions and 1% wrongful acquittals for the judges' verdicts (Spencer 2007). Similarly, an abstract of one study stated that: "I examine . . . how the criminal system in the United States handled the cases of people who were subsequently found innocent through post-conviction DNA testing. . . . The leading types of evidence supporting their wrongful convictions were erroneous eyewitness identifications, faulty forensic evidence, informant testimony, and false confessions. . . . . few innocent appellants brought claims regarding those facts, nor did many bring claims alleging their innocence. For those who did, hardly any claims were granted by appellate courts. . . . courts often denied relief by finding error to be harmless on account of the appellant's guilt. Criminal appeals brought before they proved their innocence using DNA yielded apparently high numbers of reversals—a fourteen percent reversal rate. However, . . . the reversal rate is indistinguishable from the background rate in appeals of comparable rape and murder convictions[.]" Another way to judge the ratio of easy to hard cases is to look at conviction or verdict rates in cases that go to trial. While the vast majority of criminal charges brought result in conviction of something and the vast majority of civil cases brought result in a judgment for the Plaintiff, in an hypothetical ideal world where the lawyers and parties on both sides of cases are rational actors with the best available information and there is no bias in the availability of information, you would expect pre-trial settlements to resolve, on average, all of the cases with an objective lean one way or the other, leaving only the cases that are, on average, coin flips left to go to trial, with 50-50 outcomes, regardless of the mix of cases originally filed. And, that model isn't horrible. Less than 2% of civil cases and less than 10% of criminal cases go to trial. Civil case outcomes vary by type of case, but the overall result in those the go to trial is close to 50-50. But, in criminal cases, convictions greatly outnumber acquittals, because "easy cases" where a conviction is likely often still go to trial, because neither side is paying for their lawyers from their own funds in most cases, because there is little incentive to offer favorable settlements in close cases, and because, as discussed below, there is a significant irreducible risk of an inaccurate outcome. In federal criminal cases that actually go to trial, the Pew Research Center’s data shows that defendants who pursue a trial experience different outcomes based on whether they choose a bench or jury trial. The acquittal rate in bench trials is 38% (a very small and unrepresentative sample), whereas it’s 14% for juried trials (the vast majority of cases). This would suggest that about 72% of federal jury trials are "easy" cases, while about 28% are "hard" cases, in line with the Sarasota study in order of magnitude. Note that this is different from "conviction rates" which compare the percentage of cases charged that produce guilty verdicts or plea bargains, rather than conviction rates in the subset of cases that go to trial. The percentage of people charged with some federal crime who end up being convicted of something is very, very high, compared to state court, but that is almost entirely due to the ability of federal prosecutors to cherry pick strong cases with high mandatory minimum penalties and to secure plea bargains as a result, rather than from different rates of criminal jury trial outcomes. Still, in "2018, the Bureau of Justice Statistics reported that among defendants charged with a felony, 68% were convicted (59% of a felony and the remainder of a misdemeanor)" and the conviction rate at trial is lower than the conviction rate of all people charged criminally with felonies, since plea bargains are more common than unilateral government dismissals of all charges. But, in almost every court system, more than 50% of criminal trials result in convictions. So, the percentage of "easy" criminal cases going to trial in state courts is still significantly lower than in federal courts. Maybe the percentage of state criminal cases going to trial that are "easy cases" in the range of 5%-20% in this kind of analysis (which is quite a bit lower than the more rigorously designed Sarasota study). The challenging thing, of course, is knowing in advance which cases judges or juries will get wrong. I typically conceptualize the issue as a certain irreducible uncertainty of outcome any time you actually roll the dice on going to trial on the order of 10%-20% whether you are in front of a judge or a jury, and an additional uncertainty in cases where there is some specific reason to think that the outcome is a close call, or that special risk factors for inaccurate verdicts (like heavy reliance on cross-racial eye witness identification of suspects) is present. From the perspective a client, even in a seemingly secure case, this impacts how plea bargains and settlement offers are evaluated. If your client is actually in the wrong and facing very severe punishment and there are no offers to settle that don't also involve very severe punishment, going to trial and hoping to benefit from the irreducible inaccuracy of trial determinations can be rational even in a quite weak case. Likewise, in either a civil or a criminal case, if getting some win is much more important for the person bringing the case, than getting a "home run" maximal win, making a lenient deal even in a fairly solid case can make sense to avoid the risk of rolling the dice and the irreducible risk of error any time there is a trial. Also, of course, lots and lots of parties to both criminal and civil cases are not rational actors and make bad decisions. These characteristics of parties to legal cases frequently play a large part in the fact that these parties ended up having to deal with the legal system in the first place. One of the difficult systemic and institutional issues, however, is that the behavior of people who are irrational because they are dumb or crazy, and the behavior of people in the system who are innocent and have excessive but not necessarily unreasonable trust in the accuracy of the judicial process, can look very similar. People who are factually innocent systemically insist on going to trial even in the face of lenient plea bargains at rates much higher than people who are factually guilty, even in cases that seem to have identical strength before a neutral third-party, and are, as a result, over represented in the ranks of people who actually go to trial. |
Does res judicata prevent you from filing separate claims for different causes of action with overlapping facts? (UK law, small claims.) This is a follow-on question to one I asked earlier. Splitting a claim into several small claims A reply to my question stated: You can only sue once on the same facts on the same defendant The issue here is res judicata - once a case between 2 parties has been resolved, that matter can never be litigated again. So Adam cannot split his litigation against Bill. I would like clarification of the "same facts" part. What if the facts overlap, but have some different elements. Hypothetical case: Adam wants to sell a valuable painting. Bill promises to sell it for £120,000, and charge a fee of £10,000. But in fact he sells it for £95,000 and charges £20,000 for his work. So, Adam wants to sue Bill to recover some of his loss. Deciding that a claim in the high court is too expensive, he wants to make two claims in the small claims court. First case - a claim under tort law for negligence. Relies on the fact that the item was sold for less than its proper value. Cites facts A, B, C, D, E. Second case - a claim under contract law. Relies on the fact that Bill overcharged for his services. Cites facts A,B, C, F, G. Does the different causes of action, and the different but overlapping set of facts allow the splitting of the case? | Res judicata in the broad sense The relevant rule is stated in Henderson v Henderson (1843) 67 ER 313: where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. A more recent statement of the law appears in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160; [2013] UKSC 46: Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle … Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. These principles apply when one claim is decided, and in subsequent proceedings, the plaintiff raises issues which "could and should have been" addressed in the first claim. Consolidating pending cases Your question raises a slightly different situation, where two overlapping claims are brought at the same time. Doing this to avoid paying court fees is likely an abuse of process. It would also breach the plaintiff’s duty to help the court advance the overriding objective of dealing with cases justly and at proportionate cost. If both cases are pending, the overriding objective can be achieved by consolidating the cases or transferring them to a more appropriate jurisdiction. If the court does this, on its own motion or at the request of the defendant, the overlapping causes of action can be determined in one judgment. | You're missing some pretty important details in describing the facts of this case. The most important of which is: What were the agreed terms upon which Alice obtained possession of the car prior to paying? Your description says: Alice takes the car and doesn't pay. If that's literally true, then this case is both criminal theft and the tort of conversion — not breach of contract. Since the remainder of your question references a breach of contract, then I have to conclude that the fact as you stated it is not literally correct and there is some important missing detail about the terms upon which Alice was in possession of the car when she crashed it. So, I will have to invent some scenarios that would fit two other facts you describe: The jury awarded Bob $5,000. The jury found Alice to be in breach of contract. The following are the scenarios I can think of that would match the facts (as I understand them and speculated where important details are missing from the question). Maybe this is a small claims court and the damages are capped at $5,000? I never heard of a jury trial in small claims court but I guess it could be possible. Or maybe it was actually a judge and use of the term jury was careless or otherwise inaccurate? Maybe the terms under which Alice was in possession of the car when she crashed it put the parties in position where they effectively shared liability or risk of damage to the car? Like maybe Bob (or both parties) was/were required to carry insurance on the car while Alice was "test driving" it. I only use the term "test driving" as a placeholder for whatever she was doing with the car prior to paying for it which is left unclear by the question. Maybe Bob was found to have contributed to the breach of contract by something he did or didn't do. Similar to the above speculation about insurance. All this would be much easier to analyze if we knew how and under what terms Alice came to possess the car. Maybe there was only $5k of damage done to the car? Or, alternatively, the car was only found to be worth $5k and, for whatever reason (again, which we can not fully analyze given only the partial set of facts presented) the liquidated value of the car was the basis for the damage award and not the contracted price. (Consistent with @jimsug's comment.) I can easily imagine a scenario where Bob and Alice are close friends or family so the entire transaction is handled very loosely and informally and Bob let's Alice drive the vehicle while she is gathering the money to pay him. In this case, the jury might decide Bob shares the liability with Alice since the terms of the sales contract did not transfer the risk of liability to Alice during the time she was driving prior to payment. | To be able to sue the appraiser, he would have to have a duty to you. If he was hired by a bank, his duty is to the bank and not to you. Assuming that you directly hired the appraiser, then you would have to check the contract for limits on his liability – a clause that says "you waive your right to sue me for (certain) mistakes". Now supposing that you haven't waived your right to sue, you almost certainly cannot sue for misrepresentation, unless for some reason you can prove that he knew that he was lying to you. Your best bet is arguing that his mistake was negligent. You would have to establish that the first figure was incorrect (a disagreement in figures does not establish which figure is correct). A discrepancy between county records and an appraiser's estimate can be explained by numerous non-negligence related facts (unpermitted modifications of the structure, for example). Suppose that the source of the discrepancy is inclusion of finished basement space in the earlier appraisal, or perhaps measurement error. Then you would have to prove that that error involved a lack of professional care, which implies certain professional standards (not just your feeling that the error is egregious). This article explains the ANSI guidelines. The standard tends to increase square footage because it is measured from the outside. Then you would have to establish that you were damaged by the earlier figure. The law doesn't allow you to sue because someone does something that bugs you, you have to have suffered damage. You don't say how you were harmed – I presume the problem is that the buyer's bank is not willing to lend that much money, where you relied on an earlier incorrect estimate of square footage in advertising the house and setting the price. You may have contributed to the problem by relying on that estimate when you knew or should have known from the government records that the size is something less. There is some possibility of legal recourse, but it's not obvious (so gather all of your facts and talk to your attorney). | The standard of proof required to survive a motion to dismiss is very low. The factual (not legal) assertions of the plaintiff are assumed to be true, and the case is dismissed if the defense shows that even when the plaintiff is given that benefit, the assumed facts don't establish the case. This standard is somtimes referred to as "sufficiency of the claims". | Your attorney can file a lawsuit against the other driver, and legal liability can be determined in court. Your want to let an attorney do this, because the one thing that keeps you from being (expensively) counter-sued for defamation is that you didn't name the driver and insurance company. It is extremely unlikely that the other driver accused you of liability ("liable" is a legal conclusion, not a fact). Instead, there is a dispute over the facts. During the trial, both sides get to present their evidence and the judge will determine who is actually liable. If you are found liable, your insurance company may have to pay up. If the other guy is found liable, his company will have to pay up. Or, fault can be split 50-50 (in which case you will be out of luck because you don't have collision insurance to cover your losses). If the insurance company believes that the facts support their client and that you will lose in court, they are not going to volunteer to pay your losses. If they believe that the facts support you, or are closer to 50-50 w.r.t. fault, they are unlikely to volunteer to give you money. If the driver makes a material plainly false statement to his insurance company, they might have recourse against him. Lying under oath is perjury which is a criminal offense. But mis-remembering facts or having incorrect beliefs is not a crime and won't lead to any legal problems for the driver. The belief that you are not at fault is not a lie. If the facts are as cut and dried as you make them out to be, the matter will be easily sorted out in court. | Yes, this is plausible. To be doctrinally precise, "jeopardy" attaches when the jury is sworn in. Once jeopardy attaches, there can only be a second trial if: The defendant is convicted of a charge that is reversed on appeal or in a collateral attack on the conviction. There is a mistrial that is attributable to the defendant or the defendant's counsel's conduct (e.g. the defendant is observed by the bailiff trying to bribe a juror with cash in exchange for voting to acquit), or is requested by the defendant or his counsel (who has not been "goaded" into doing so by the government). There is a mistrial that is not attributable to the conduct of either the prosecution or the defendant. As explained here: Mistrials are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried. Furthermore, if a jury cannot reach a verdict, the judge may declare a mistrial and order a retrial as was addressed in United States v. Josef Perez, 22 U.S. 579 (1824). When the defendant moves for a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion. An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, 456 U.S. 667 (1982), the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." | This is explained at paragraphs 2-4 of the decision you link. There were two proceedings: a claim in the county court and an application to the Tribunal. The county court claim was transferred to the Tribunal to be consolidated with the application, and they were to be heard together. (Although, technically there should be no literal "transfer" or "consolidation"; the claim is always a county court claim, separate from the tribunal application. It is just that the matters are heard at the same occasion by inviting a tribunal judge to sit in their capacity as a county court judge. See commentary on City, University of London v. Vodafone Limited (2020).) In that circumstance, Judge Nicol was sitting as both a tribunal judge and as a county court judge. This is possible because: On 22 April 2014, the Crime and Courts Act 2013 Sch.9(1) para. 4 was brought into force, providing that judges of the First-tier Tribunal are judges of the county court and therefore able to exercise the jurisdiction of the county court, providing that a claim form has been issued and the matter has been listed for hearing by them. Stephen Jourdan, K.C., "FTT Judges sitting as judges of the county court" (January 2019) See also this previous Q&A where this was explained. | There have been cases in the UK where paying someone's legal bills was interpreted as joining their case. So when A with no money libels someone, and B with deep pockets pays A's lawyer, then B risks being held liable for damages if A gets convicted. So B should be very careful. Just giving you money is probably the safest. But attorney-client privilege is between attorney and client. I have been laid off twice with my company asking me to take an employment lawyer and paying for it. (Interestingly each time the bill was exactly the maximum amount the company was willing to pay :-) It would have been absurd if my company could demand information that is under attorney-client privilege just because they paid the bill. Why did two companies pay the lawyers bill? Because that way they ensure that the separation is without problems. The lawyer explained the settlement contract and what it meant exactly. They also checked that the contract didn’t contain anything unacceptable which the company would have fixed. So if I had tried to sue them later I would have no chance to win (but there was no reason to sue). Another reason not to sue was that the company offered I settlement that was very significantly more than was legally required, but if you sued them you would only get what you got in court - most likely less than you would get without suing. So basically they paid to make sure I would have no reason to sue them later. |
If a pardon is specifically referencing a crime a person has been convicted of, can an individual sue him for a different crime? Pardons, except for amnesties, are typically given after a person has been convicted of a crime, and they specifically reference that crime. In this respect, President Trump’s pardons of Scooter Libby, Paul Manafort, George Papadopoulos and Roger Stone are typical. After asserting that the recipient is given a “Full and Unconditional Pardon,” they go on to specify the statutes each was charged with violating and describe in detail the punishments given. Their pardons extend to the named crimes and no other. The pardon given to Michael Flynn is somewhat different. After referencing the charge of lying to federal investigators for which Flynn was convicted, the president goes on to pardon Flynn not just for this crime but also for “any and all possible offenses” within the jurisdiction of the Special Counsel’s investigating authority or relating in any manner to the Special Counsel’s investigation [of Russia’s attempted interference in the 2016 presidential election and links to the Trump campaign]. https://www.brookings.edu/blog/fixgov/2021/01/17/presidential-pardons-settled-law-unsettled-issues-and-a-downside-for-trump/ If a pardon is specifically referencing a crime a person has been convicted of, can an individual or a government sue the pardoned person for a different crime committed at the same time? Let's say a person committed crime A, B, C and D, but he was only convicted for crime A and B, then after a pardon was handed, can people still sue that person for crime C and D even though the crimes were committed by the same act? It seems like it's the case since Michael Flynn's pardon was particularly architectured in a way to avoid this. | The pardon does what it says it does Typically, the pardon is given for which the accused has already been convicted. Therefore, the principle of double jeopardy applies: the person has already been tried on the facts and all the charges that were or should have been brought have been determined. This, of course, doesn't prevent charges from being laid for other crimes allegedly committed at other times over different events. In the case where a person is pardoned more broadly, as in the Michael Flynn example, in addition to the double jeopardy limitation, a prosecutor is prevented from charging anything that falls within the scope of the pardon. Pardons do not constrain civil suits If you are pardoned of say, murder, that does not prevent the victim's dependants from bringing a wrongful death suit, just as being found not guilty wouldn't. These are different cases with different parties and the pardon has no effect. Similarly, a Federal pardon does not prevent a State (or another country) from laying charges over the same matter and vice-versa. | When it is a mistake of memory, and not intentional (as this question is asking), there are no clear standards, and it is largely up to prosecutorial discretion. This means that whatever factors affect prosecutorial discretion (such as the prosecutor knowing who they have to work with on other days) can become significant in the determination. A prosecutor who announced this decision also specifically noted that it's up to the prosecutor to decide each case separately, with no guidance on fact patterns that could influence the decision either way. The Washington Post Magazine covered this question somewhat in depth several years ago, arriving at that conclusion. This was a surprise to me, but the article seems like a good resource on this - the question turns out to be more interesting and less resolved than it first appeared to be. | The jury ultimately decides if a person is guilty or not. Jury nullification is when the person is clearly guilty or innocent, but for some odd reason the jury (who knows the person is guilty/innocent) gives the "wrong verdict" An example of this in the UK was when a guy was being charged with a spy crime years after his crime happened (I cant remember the case), the jury essentially thought that so much time has passed that it was silly to convict him, so gave a non guilty verdict. There are cases for and against jury nullification. In my personal belief I think in certain cases, such as if edward snowden would be charged, I would find him non guilty as a matter of what is right to ky conscience, regardless of the fact that he clearly did something illegal | It's naive to assume a college age hacker (or a hacker who bases his/her attacks from an academic institution) is treated differently than a "real" hacker, whatever a real hacker might be. The sentence any convicted hacker receives depends on many factors: the prosecutor, the evidence, veracity of witnesses, jurisdiction (academic or not), previous criminal records, the actual laws the person is being charged under, the judge, the jury, the lawyers, plea bargains, media coverage, etc. There are so many factors that the outcomes of the prosecutions of "hacking" crimes can be very different, re: your examples. Read about each case and you'll find many differences. Academic fraud or any form of fraud are completely different crimes. Hackers can commit fraud, but not all fraud involves hacking. Being convicted of fraud can sometimes happen if the evidence for a hacking charge is weak, or other factors. Again, that involves the specific case, the prosecutor, laws, the evidence, etc. | Willfully telling an untruth or making a misrepresentation under oath is perjury; the reason you do so or the substance of it is irrelevant. It is the act of perjury itself that is an offense and led to the impeachment. | The resolution in Connecticut is a statement that has been agreed by the state's legislature, but is not a law. If it were, it would indeed need to be signed by the Governor, by virtue of Article 4, Section 15 of the state Constitution. It exonerates the victims insofar as it expresses the current legislature's disapproval of the witchcraft trials of the past, and apologizes to living relatives. All of the victims are long dead, whether they were executed by the state or not, so even if this were a legally-effective pardon, it would have no other practical consequences. That said, a state legislature could enact pardons for named individuals, or a class of people. It would be unlawful to criminalize a named person (that's a "bill of attainder") or to punish someone for an act that wasn't a crime at the time (an "ex post facto law"). But the opposite, which reduces or eliminates a punishment, is not covered by the federal or state constitutional bans on such laws. That was explained by Samuel Chase in Calder v Bull, 3 U.S. 386, a Supreme Court decision of 1798 dealing with actions of the Connecticut legislature ordering a retrial in a probate case (with my emphasis): Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime. At the time, Connecticut's system for pardons made it so that an offender would always have to petition the legislature to pass a bill to that specific effect. That model predated the U.S. Constitution, and continued to operate after its ratification. The Governor only had the power to grant temporary reprieves, when the legislature was out of session - in fact, he still does (Article 4, Section 13 of the Constitution of Connecticut). Presently, the state has instituted a permanent system of a Board of Pardons and Paroles, but in principle they could enact some other model. The contemporaneous A System of the Laws of the State of Connecticut by Zephaniah Smith (1795) says in Book 5, Chapter 26: The power of granting pardon to criminals sentenced to death, or to any other punishment, is vested by law in the legislature. This carries forward a practice from the British legislatures, which also often passed acts to pardon or indemnify certain offenders. There was therefore quite a long history for Chase to allude to, even though he was writing not long after the revolution, in terms of this being part of the standard panoply of things a state legislature can generally do. | No. There is no such thing as vicarious criminal liability. Anyone convicted of a crime needs to be personally involved and have knowledge of the relevant facts for co-conspirator or solicitation liability. There isn't really a single law that says it. It is rooted in the overall structure of the criminal codes at the state and the federal level, and in the elements of each of the possible crimes. Section 302 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7241), requires a CEO to certify that its financial statements are materially correct to the best of the knowledge of the CEO, and also that certain internal controls are, or are not, in place, to the best of the knowledge of the CEO. Regulations address whom the CEO is entitled to rely upon in acquiring the knowledge that the CEO has when certifying the disclosures that are made under the Act. And, Sarbanes-Oxley imposes duties on lawyers and others to inform he CEO of irregularities. But the CEO is not subject to criminal or civil liability without having knowledge of errors or omissions in these statements that are contrary to the certification. | A subject can become a target, and this happens all the time. The subject/target distinction is not a statement about whether a person has done anything wrong; it's only a statement about how much information the prosecutor has linking you to a crime he is investigating. That means that the subject himself need not do anything to move from one category to the other. Here's guidance from the DOJ's manual for U.S. Attorneys: It is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a "target" or "subject" of a grand jury investigation. See the Criminal Resource Manual at 160 for a sample target letter. A "target" is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. An officer or employee of an organization which is a target is not automatically considered a target even if such officer's or employee's conduct contributed to the commission of the crime by the target organization. The same lack of automatic target status holds true for organizations which employ, or employed, an officer or employee who is a target. A "subject" of an investigation is a person whose conduct is within the scope of the grand jury's investigation. So the designation changes when the prosecutor has enough information to change it, not necessarily because the subject has done anything new. Imagine a prosecutor investigating a bank robbery. He watches surveillance footage showing a man checking out the bank repeatedly in the days leading up to the robbery. That's enough to bring him "within the scope of the investigation," but it's not really damning enough to link him to the crime or make him a defendant. So he remains a subject, and the FBI continues to investigate. All sorts of things could happen that might make him a target: someone else implicates him; video footage shows him robbing the bank; he admits to the crime; he denies the crime with an alibi that doesn't check out; he lies about something else, making him a target for making false statements to a federal investigator. Note that the change could come because of something the subject did himself, because of something someone else did, or just because the prosecutor happened upon some new information. |
What is the legality of the vaccine mandates in British Columbia, Canada? British Columbia unveiled a plan to require proof of COVID-19 vaccination for entry into multiple settings, including but not limited to restaurants, bars, gyms, night clubs, indoor ticketed events, and on-campus student housing. The requirement for a single dose will go into effect on September 13, 2021, and by October 24, 2021, will be extended to require two doses. The province has confirmed that apart from young children, there will be no exceptions to this mandate. This includes people who for medical reasons cannot be safely vaccinated, or people avoiding it for religious purposes. While there aren't as many valid medical reasons for avoiding the COVID-19 vaccine as some might try to argue, they do exist, albeit rarely. Section 15 - Equality Rights of the Canadian Charter of Rights and Freedoms states the following: (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Similarly, section 1 (b) of the Canadian Bill of Rights states a similar rule. Given this, how is the government legally able to enforce the mandate in its current form? If people do exist who cannot receive the vaccine due to a physical disability such as life-threatening allergies, is the refusal to accept these exceptions unconstitutional? While I would imagine a religious reason for avoiding a vaccine would be hard to argue in court, would the same principal still apply? | No rights are absolute. In particular, Charter s. 1 specifies rights are "subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Generally speaking, when rights are infringed the courts will consider it a justifiable infringement if it serves a substantial purpose while proportionate, rational and minimally infringing (Oakes test, though there's a heap of subsequent case law refining the test). While the exact order text isn't yet available, determining constitutionality would typically be a detailed analysis a judge would have to perform after hearing arguments from parties to a case (I assume the order will eventually be published here). In my own opinion, I would imagine such an order without appropriate medical exemption would be unconstitutional. It would seem to be disproportionate to deny freedom of movement to a presumably very small number of persons who could do little to remedy their medical condition. As a similar example from another province, a Quebec court ruled that a Covid-19 curfew requiring people to remain inside at night would not apply to homeless people due to discriminatory and disproportionate effect. Assuming the order to be similar in nature to existing BC orders on gatherings and mask-wearing, I would imagine lack of religious exceptions to be constitutional, as those orders have already been challenged and upheld against religious objections (though I believe appeals are still possible). The nature of the identified infringements against religious groups was considered reasonably proportionate, rational and minimal enough when weighed against the legitimate governmental need to contain the spread of Covid-19. P.S. The Canadian Bill of Rights has in practice been largely superseded by the Charter. Furthermore, it is completely inapplicable here as it is a federal statute with no effect on provincial matters. | Is there a law regarding this? The relevant law is the Employment Standards Act of British Columbia which only requires an employer to provide meal breaks for employees but not somewhere for them to eat their meal. (1) An employer must ensure (a) that no employee works more than 5 consecutive hours without a meal break, and (b) that each meal break lasts at least 1/2 hour. What legal actions are possible? None - unless there's a breach of, say, health and safety legislation by allowing meals to be eaten in a refuse area, but that's off-topic. | You can't just interpret the word "require" in isolation, you have to focus on what is allowed vs. disallowed by law. Guidance point K.1 starts with the rhetorical question Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19? They respond that no federal EEO laws prohibit such a requirement "subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations" (thus providing an answer to the question whether it can always be "required". However, they do not discuss the possibility that other laws (non-EEO, state, local: also contract law) that would prevent an employer from "requiring" a vaccination. They do not elaborate on ways that an employer might "require" a vaccination, leaving it to the inventive reader to figure out what legal leverage a company might have to get compliance. Assaulting non-compliant employees is not legal; withholding wages is not legal. Reassigning a non-compliant worker to working in the sub-basement may be legal, requiring a non-compliant worker to wear an anti-vaxer warning badge might be legal. Firing the employee, or reducing their hours to 0 until they comply, might be legal. But the EEOC is not advising employers in safe ways to sanction non-compliant workers, they are just stating their interpretation of applicable anti-discrimination law. Indeed, they can only address matters of discrimination, because that is what they address in general. They do not write the labor law regulations, that's the job of the Dept. of Labor. They are not giving legal advice as to the scope of allowed requirements set by employers. | 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. | Section 2 (a) of the order says: The heads of executive departments and agencies (agencies) shall immediately take action, as appropriate and consistent with applicable law, to require compliance with CDC guidelines with respect to wearing masks, maintaining physical distance, and other public health measures by: on-duty or on-site Federal employees; on-site Federal contractors; and all persons in Federal buildings or on Federal lands. (emphasis added) It would seem that if, in future, the CDC changes its guidelines to indicate that mask wearing is no longer needed (presumably in the wake of a large decline in cases) the order would mean compliance with such revised guidelines, and thus reduced or eliminated mask wearing, when and if that is advised. The order does not contain any dated sunset or reevaluation provision. But the President can at any time revise or rescind this or any other Executive Order. The Twitter comments could be taken as an intention to reevaluate and a hope to be able to remove, the order within 100 days. In any case Twitter comments are not legally binding, nor are press conference statements or other public statements by the President. Evert if the order had contained a fixed sunset date, the President could always issue a new order extending this one at any time. Note also that the order only instructs department heads to "take action, as appropriate and consistent with applicable law." This leaves significant room for judgement as to what is "appropriate." | One thing that may prevent this is contract law: the employer may not have the power to impose new requirements on employees during the period of the current contract. For prisons that are run by government agencies, there may also be statutory restrictions on what the warden or Bureau of Prisons can compel employees to do without legislative approval (this is a general feature of government employment). There are additional disability and religion-based protections for employees. Apart from such legal considerations, the vaccine is not universally available, which explains why not all employers mandate that employees get vaccinated. It's not clear how prisons, specifically, are relevant: there's no general rule that "because it's a prison, normal law is suspended". | This is largely a matter of state law. In California, for example, this would be plainly unlawful (my emphasis): All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Unruh Civil Rights Act, California Civil Code section 51) Other states may define "business" more narrowly, or exclude professional services. Also, there is the question of professional ethics. Discriminating against a racial group will likely run afoul of the rules of the licensing board, the AMA, the APA, and other organizations. Finally, remind your friend that every racist has what they regard as good reasons for their racism, and your friend is not special in that regard. | canada Not merely because of the length or legalese, and not the entire contract. But there is a line of authority in Canadian law that can lead to exclusion-of-liability clauses being unenforceable, and length is a factor. When there are unusual exclusion clauses, inconsistent with the main purpose of the contract, executed in hasty circumstances, where the contract is long and/or small and the signer's attention is not drawn to the exclusion clauses, courts have been wary to enforce them. Karroll v. Silver Star Mountain Resorts Ltd., 1988 CanLII 3294 (BC SC): [18] ... to allow someone to sign a document where one has reason to believe he is mistaken as to its contents, is not far distant from active misrepresentation. [19] In the usual commercial situation, there is no need for the party presenting the document to bring exclusions of liability or onerous terms to the attention of the signing party, nor need he advise him to read the document. In such situations, it is safe to assume that the party signing the contract intends to be bound by its terms. [20] But situations may arise which suggest that the party does not intend to be bound by a term. In Tilden the hasty, informal way in which the contract was signed, the fact that the clause excluding liability was inconsistent with the overall purpose of the contract, and the absence of any real opportunity to read and understand the document given its length and the amount of small print on its reverse side, led the Court to conclude that the defendant should have known that the plaintiff had no intention of consenting to the onerous exclusion in question. In these special circumstances, there was a duty on Tilden to take reasonable measures to bring the exclusion clause to the attention of Mr. Clendenning. Tilden Rent-A-Car Co. v. Clendenning, 1978 CanLII 1446 (Ont. C.A.) said: In modern commercial practice, many standard form printed documents are signed without being read or understood. In many cases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party, and, in the absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum. In the case at bar, Tilden Rent-A-Car took no steps to alert Mr. Clendenning to the onerous provisions in the standard form of contract presented by it. The clerk could not help but have known that Mr. Clendenning had not in fact read the contract before signing it. Indeed the form of the contract itself with the important provisions on the reverse side and in very small type would discourage even the most cautious customer from endeavouring to read and understand it. Mr. Clendenning was in fact unaware of the exempting provisions. Under such circumstances, it was not open to Tilden Rent-A-Car to rely on those clauses, and it was not incumbent on Mr. Clendenning to establish fraud, misrepresentation or non est factum. Having paid the premium, he was not liable for any damage to the vehicle while being driven by him. As Lord Denning stated in Neuchatel Asphalte Co. Ltd. v. Barnett, [1957] 1 W.L.R. 356 at p. 360: "We do not allow printed forms to be made a trap for the unwary." |
In CA: If one borrows a phone to send text messages and returns the phone without deleting them, is it legal for the owner to read or share the texts? In California, A borrowed a cell phone from B, which A used for months. Then, A returned the phone without deleting the text messages and even gave B the password to unlock the phone. Is it legal for B (the owner of the phone) to read A's text messages? Is it legal for B to share A's text messages with others? A never told B that they could or couldn't read or share their text messages, but they did give them the password to unlock the phone, so maybe permission was inferred. | Yes. By the fact that A did not take steps to protect the messages from B and used B's phone, A has no reasonable expectation of privacy from B and B is free to read and share those messages with anyone B sees fit. | Would it be legal to jump into an unlocked car and start it? No. Same situation, different object. | Purchasing a lot that contained the keys does not provide any rights to access the locks that those keys would open. What someone who did this would be charged with would vary by both location and also by prosecutorial discretion. The only exception in this scenario would be if the storage locker contained the deed to the property in question. | If the police confiscate a weapon that isn't owned by the suspect, would they have grounds to keep it? Not forever. For example, let's say the gun was owned by a friend or parent? What if the gun was owned by a Trust with several trustees? Third party owners of property lawfully seized from someone else can recover it. For example, I once took legal actions to recover a gun for a client that was in a gun repair shop that was seized in a criminal investigation because most of the inventory of the shop where it was being repaired consisted of stolen firearms and the primary business of the gun repair shop was fencing stolen property (a fact of which my client was completely unaware and shocked to discover). But, that was only possible once the trial was over because the guns seized were part of the evidence in that trial. A similar process applies when there is a civil forfeiture of property owned by a third-party. Could the owner (personal or trustee) recover the gun from police custody independently of a court finding on the suspect? Sort of. But it isn't entirely independent, since the firearm might be needed as evidence or might need to be kept out of the possession of the person from whom it was seized to effect the red flag order while it was in place in a way that that the third-party owners would have to assure. An example might be where a gun is confiscated via red-flag law, where no crime has been committed, but the suspect won't get his day in court for 6 months. Would the true owner, or partner owners if in a Trust, be denied their property or could they go ahead and recover it pre-trial (ie. the day after it was confiscated)? In the case of a red-flag seizure, the existence of the gun wouldn't be evidence in the court proceeding, so it wouldn't have to be retained for that purpose prior to trial. But, the owner of the gun would probably have to petition the court to regain possession and would have to demonstrate that the red-flag order would continue to deny the person who had the gun possession of it until the red-flag order period expired (if ever). If the trustee was the red-flag order target, or was someone related to him (or her), that might be a showing that the trustee could not make. Caveat Of course, red-flag laws are specific pieces of state legislation. Each one is different. Many would provide a specific statutory procedure for how this issue would be handled. For example, in some places, the proper means to regain possession of property held by law enforcement in connection with a criminal case is a motion filed by a third-party intervenor in the criminal case, while in others, the property process is to bring a civil action for replevin (a lawsuit to regain physical possession of particular items) against the law enforcement officer in possession or constructive possession of the property in question. | The GDPR's right to erasure just applies in some specific situations. While messages you wrote on Slack are personal data, they are generally also part of a larger discussion with others. If your messages are removed, the discussion becomes incomplete, so that will violate the freedom of expression of those others. Art. 17(3) GDPR provides an exception for the right of erasure in such cases. So basically, whoever is the controller, you probably don't have the right to have your messages to be deleted. However, you would have the right to have your account pseudonymized like Slack replied in the Reddit post you linked to. See also my answer in "Does a user have the right to request their forum posts deleted?". Basically, it is correct that Slack can be just the processor. Even if the controller cannot get access to more than 10000 messages unless they pay. However, Slack is not allowed to do anything with those messages, except when the controller says so. In its Privacy Policy, Slack distinguishes between customer data and other data. It states to be the processor for the customer data, but controller for the other data. Because those are tied together, I am not sure this distinction can be made. If not, Slack and the customer will be joint controllers, but it requires probably a court case to decide on that. For example, the Court of Justice of the European Union has ruled (in the Fashion ID case) that putting a Facebook "like" button on your website, makes you a joint controller together with Facebook. And (in the Wirtschaftsakademie case) that also creating a Facebook "fan" page makes you a joint controller. But neither of those are very similar to the situation with Slack. | 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 school can confiscate a cell phone if you violated phone usage policy, because schools have broad powers to set student conduct policies. Searching the phone is a separate matter: a search requires reasonable suspicion and the search has to be narrowly related to that suspicion. As long as there is an actual policy and a violation of the policy, there seems to be no limit on confiscating phones. School authority over children in the US was historically justified by reference to the in loco parentis doctrine since State v. Pendergrass, 19 N.C. 365, granting school "the authority necessary for preserving discipline", which is "analogous to that which belongs to parents, and the authority of the teacher is regarded as a delegation of parental authority". More contemporary rulings on the question of school authority, again in the domain of corporal punishment, as articulated in Ingraham v. Wright, 430 U.S. 651 find that the concept of parental delegation has been replaced by the view -- more consonant with compulsory education laws -- that the State itself may impose such corporal punishment as is reasonably necessary "for the proper education of the child and for the maintenance of group discipline". In other words, the courts do not rely on the parental doctrine to justify school authority, instead they rely on what is reasonably necessary to achieve an end. Thus in New Jersey v. T.L.O, 469 U.S. 325, in loco parentis was rejected as a rationale for an unconstitutional search, reasoning If school authorities are state actors for purposes of the constitutional guarantees of freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising parental rather than public authority when conducting searches of their students. Instead, the court frames the test in terms of competing interests: Against the child's interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. Since school authority to confiscate cell phones does not rest on acting according to the wishes of the parent, it is irrelevant that the parent approves of the child's actions. They may take the phone away, but it is not because of in loco parentis, it's because of necessity. It does not matter whose property it is; and it is not theft, because the confiscation was lawful. In loco parentis is not necessarily dead, see Vernonia School Dist. 47J v. Acton, 515 U.S. 646, where compulsory drug testing was justified, finding that the Policy was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care... when the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake It is not part of a school's remit to promulgate the drug-free life, so drug testing cannot be justified by appeal to necessity. Disciplinary matters are squarely within the scope of what is necessary for schools, so disciplinary questions don't need to rely on in loco parentis. In the Vernonia case, the court still finds that the state has limited reach to override the rights of children – parents still have much broader rights to restrict children than the state does. For the state, the matter has to reduce to a compelling state interest, whereas parental power isn't even subject to rational basis review. | A voicemail greeting, like any original sequence of words, will be protected by copyright. Making and publishing a copy without permission would be an infringement of that copyright, and could subject the person who does it to a civil lawsuit. However, such a greeting normally has no commercial value, and it is hard to see how any actual damages could be assessed. In the US, statutory damages could apply, but since the greeting is unlikely to carry a copyright notice, the person sued might claim to be an "innocent infringer", which could significantly reduce the damages assessed. (However if such a person had read this answer, and that were brought out in court, s/he would be on notice of the copyright protection, and could not claim to be "innocent".) Moreover, the defendant could still raise the defense of fair-use (In the US). The would be no harm to the market for the work, since there is no market, which would favor fair use. The whole of the work would probably be used, which would tend against fair use. A greeting is somewhat creative, more so than a work of non-fiction, although usually less so than actual fiction or verse, which leans slightly against fair use. It is hard to say if this kind of reuse would be considered transformative, it would probably depend on what sort of commentary, if any, was provided. In all, a fair use defense seems pretty close to a coin flip, but not as predictable. In any case, judges often do not favor suits over technical infringements of works with no commercial value where no meaningful damage has occurred, and often award minimal damages within the statutory range, which is wide. Given all that, the risk of suit seems low. The question mentions "school district administrators" If the person doing this is a student, this might be looked on negatively by the school district, which might be able to frame it as against some district policy or other. Consider possible repercussions carefully. As always on Law.SE, this is not legal advice. Before acting you may wish to consult an actual lawyer. |
Do companies have to ensure that a person doesn't suffer from dementia when selling products or services to them in the UK? Son confronts salesman for 'selling confused mum £6k doors' Do companies have to ensure that a person doesn't suffer from dementia when selling products or services to them? I am wondering if companies face criminal liability if they sell products to someone who cannot make rational decisions and if they have the responsibility to make sure the person they are selling to can make rational decisions on their own. | No Overview There is no general rule requiring a seller to determine the mental condition of a buyer. However, if a seller knows or has good reason to know that a buyer does in fact had dementia or some other mental problem, and is not or may well not be able to understand the nature of the deal or the reasons why it is or is not a good bargain, if the seller took advantage of the buyer's mental condition, then the seller may be liable. Also, if the buyer's condition is such that the buyer is deemed not to be capable of properly entering into a contract, that is the buyer lacks the capacity to contract, then the contract may well be void from teh4 start. The Video The video linked in the question shows a man confronting a salesman who, he alleges, sold two houshold doors to his mother for a total of just under 6,000 pounds UK. The son claims that it was obvious that his mother was impaired. He claims that the only problem was that one door had a broken handle and latch, which could easily be repaired for 50 pounds. He claims that the salesman falsely states that the doors were "not safe" without mentioning that the one with a problem could easily be repaired, and need not be replaced. He also claims that the salesman took checks in payment, in spite of the printed terms on the invoice saying that no payment was due until after installation. He says repeatedly that the salesman "pressured" his mother into making this purchase, and describes it as "robbery". No proof is shown in the video, and no court decision is refereed to. I express no vieo as to whether the claims of the son in the video are accurate. But I do discuss situations where similar claims are accurate. Consumer Protection from Unfair Trading Regulations 2008 (UTR) It sees that a sales agent acting similarly to the one accused in the video might have committed unfair practices and thus offenses under the UTR, specifically "aggressive selling", "misleading statements", and "misleading omissions". Under the UK Consumer Protection from Unfair Trading Regulations 2008 (UTR) regulation 3, specifically 3(3) and 3(4): (3) A commercial practice is unfair if— (a) it contravenes the requirements of professional diligence; and (b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product. (4) A commercial practice is unfair if— (a) it is a misleading action under the provisions of regulation 5; (b) it is a misleading omission under the provisions of regulation 6; (c) it is aggressive under the provisions of regulation 7; or (d) it is listed in Schedule 1. UTR regulation 5 provides in relevant part: 5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3). (2) A commercial practice satisfies the conditions of this paragraph— (a)if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and (b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise UTR Regulation 7 on Aggressive commercial practices provides in relevant part: 7.—(1) A commercial practice is aggressive if, in its factual context, taking account of all of its features and circumstances— (a) it significantly impairs or is likely significantly to impair the average consumer's freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and (b) it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise. (2) In determining whether a commercial practice uses harassment, coercion or undue influence account shall be taken of— ... (c) the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer's judgment, of which the trader is aware, to influence the consumer's decision with regard to the product; UTR regulation 8 provides in relevant part: 8.—(1) A trader is guilty of an offence if— (a) he knowingly or recklessly engages in a commercial practice which contravenes the requirements of professional diligence under regulation 3(3)(a); and (b) the practice materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product under regulation 3(3)(b). UTR schedule 1(12) describes as unfair: Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product. UTR regulations 9 through 12 make unfair practices, as described in regulations 3 through 7 and schedule 1, offenses punishable by fine or imprisonment. These might well apply to the practices alleged in the video linked in the question Financial Conduct Authority A Guidance from the UK Financial Conduct Authority is available online. This seems to apply more to sales of financial products (e.g. investments) than physical goods such as doors. It is also a draft, not a final regulation. But it more specifically deals with people vulnerable due to metal issues, and might show the trend of regulation on such issues in the UK. 2.1 In our Approach to Consumers we define a vulnerable consumer as ‘someone who, due to their personal circumstances, is especially susceptible to detriment, particularly when a firm is not acting with appropriate levels of care’ (as presented in our Occasional Paper 8 on Consumer Vulnerability) ... 2.14 (g) Exposure to mis-selling – vulnerable consumers may be more likely to fall victim to pressure selling, or be provided with the wrong information about potential products or services by staff who do not understand their circumstances. People with mental health problems, for example, are more likely to have mistakenly bought a product on credit and 3 in 4 of those felt pressured into doing so. 2.15 We expect the firms we regulate to treat customers, including vulnerable customers, fairly. Our previous work has shown that not all firms treat vulnerable consumers fairly, and those consumers face a significant risk of harm. Vulnerability is, therefore, a key priority for the FCA Conclusion I have not found any UK law or regulation that requires firms or people doing general business to determine if a potential customer suffers from Alzheimer's, dementia, or any similar mental issue. However, taking advantage of people who exhibit symptoms of such problems might be found to be an unfair practice, and so lead to civil or criminal liability | Contractual terms must always be read in context. Given the context, it is unlikely that the term could support the definition that you are worried about. It is clear that the purpose of you appointing the company as your attorney is to allow them to perfect the IP rights you have given them by the other parts of the clause; not to allow them to sell your house or make end-of-life decisions. If you are worried about it, ask them what they mean and ask for the clause to be clarified to your satisfaction. | If I have correctly untangled the law, Schedule 2 of the Data Protection Act part 3 identifies as a condition where you are not prohibited from revealing personal data: The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract. The Animal Welfare Act 25(1) says An inspector may require the holder of a licence to produce for inspection any records which he is required to keep by a condition of the licence I can't tell if you are required to keep customer names, but if you are, it looks like the pieces fit together and you would have to provide the records. Call a solicitor to be sure, though. | By definition, when a death is diagnosed as an instance of SIDS, the actual cause of death is not known. (If the cause is known or is determined by autopsy, the diagnosis is not SIDS.) Thus there can be no proof that the bassinet was the cause, or even a contributing factor, in the death, and therefore the seller of the bassinet should have no liability. If there was some other cause of death that was due to the condition of the bassinet, there could possibly be liability. For example, say the bassinet broke suddenly, causing the baby to fall and death resulted. But here I think ther could be liability only if the seller knew (or suspected) that the bassinet was in an unsafe condition, or if a reasonable person in the seller's position would have known or suspected this, or possibly if the seller made knowingly false statements about the condition which made the bassinet seem safer than it in fact was. None of these matches the situation described in the question. However, in many jurisdictions there are laws specifically forbidding the sale of used mattresses, adult or infant, regardless of their detailed condition or how they are described. In such a jurisdiction the seller could not lawfully include the mattress as part of the sale. With a new mattress it would be even harder to link the seller to any SIDS case, as any risk factor from an overly-soft mattress would not be the seller's responsibility. | Yes, it's absolutely legal. It turns out that UK retailers offer replacement out of their own politeness and are not required to do so by law. If they gave you refund then that's all they need to do. | Trademarks protect against consumer confusion. Ask yourself if a consumer seeing that image with the "studio" portion removed might think that the altered image represents the same company as the original image. Of course, the answer will be "yes." But in the end it also depends on how the trademark is used. You've used the original image in the question; have you violated the trademark? No. Do you violate Tesco's trademark when you say "I went shopping at Tesco"? No. Do you violate their trademark when you sell food using the name "Tesco"? Yes. A distinctive graphic design such as this will also be protected by copyright, so you will also have to consider whether your intended use infringes copyright. | The "logbook" is required by federal law, part of the Combat Methamphetamine Epidemic Act of 2005. See 21 USC 830 (e) (1) (A): Each regulated seller shall ensure that, subject to subparagraph (F), sales by such seller of a scheduled listed chemical product at retail are made in accordance with the following [...] (ii) The seller maintains, in accordance with criteria issued by the Attorney General, a written or electronic list of such sales that identifies the products by name, the quantity sold, the names and addresses of purchasers, and the dates and times of the sales (which list is referred to in this subsection as the “logbook”), except that such requirement does not apply to any purchase by an individual of a single sales package if that package contains not more than 60 milligrams of pseudoephedrine. "Scheduled listed chemical" is defined in 21 USC 802 (45) and includes pseudoephedrine (the active ingredient of Sudafed). As you can see, no distinction is drawn between prescription and OTC purchases. HIPAA became law in 1996. I'm not sure whether HIPAA would normally forbid the keeping of such a logbook (it mostly restricts how a provider can disclose information, not so much how it can store information), but even if it did, CMEA was passed later, so it would take precedence. Thus there is no way to "enable HIPAA" to avoid CMEA's requirements. (The passage quoted above does indicate a possible way to avoid the logbook: buy less than 60 mg at a time. That seems to correspond to two standard tablets. However, it's conceivable that a pharmacy might decide it wants to put such purchases in its logbook anyway; it's not clear to me that HIPAA or any other law would forbid them from making that a condition of purchase.) There may also be specific laws in your state placing further restrictions on pseudoephedrine purchases. | Is it actually necessary for businesses (such as a Small Town News USA Inc) that do not reside in EU to care about GDPR? Only if they offer goods/services to or monitor behavior of people in the EU (Art. 3(2)). Note that: having a commerce-oriented website that is accessible to EU residents does not by itself constitute offering goods or services in the EU. Rather, a business must show intent to draw EU customers, for example, by using a local language or currency. If it is then how (and by whom) would compliance be audited and/or enforced? Supervisory Authorities will care of it. |
How to determine the marital status of a UK Citizen? How can I determine the marital status, and any previous marriages, of a UK citizen living in the UK? | You can get a record of the family tree from General Register Office, through family tree you would be able to get much info about a person. GRO has all the records registered in England and Wales from July 1837. You’ll need to look at parish records to trace back further. https://www.gov.uk/research-family-history You can put a request online and pay a fee they can also provide you a copy of marriage certificate in-case if you know both husband and wife name. | The law was changed several times, and different versions apply to different age groups because certain rules were not changed retroactively. The page you link describes the situation for children born after the year 2000. My advice: citizenship is such a serious matter that you should consult a specialized lawyer, not a random crowd on the web. | The information in telephone books is public. so are postal change-of-address records. So are records of the ownership of real estate. So are vital statistics such as birth records. So are voter registration lists -- i myself purchased a voter registration list (in digital form) for a municipality which showed people's names, addresses, and the years when they voted, when I was a political candidate for local office in NJ. It cost about $100. I believe that many states also make driver's license information available for a fee to marketers. Credit records are available for certain limited purposes, also. No doubt there are other public sources I haven't thought of. If such a site relies on public records, or other publicly available data, it is not illegal. Many such sites offer to remove names on an opt-out basis, but there is no legal requirement that sites do so. This kind of information is not considered nto be "private facts" under US tort law. Aside from opting out, if the sites provide that option, I don't think you have any recourse. One could ask the local legislature to pass a law prohibiting such sites, or making them require consent, similar to the GDPR that the EU has. But I don't know of any such law in the US to date. | In england-and-wales this would fall within the Mental Capacity Act 2005 and depends on whether he lacks the mental not physical, capacity to make the decision for himself. Can he: Understand the information relevant to the decision Retain that information Use or weigh that information as part of the process of making the decision Communicate that decision (whether by talking, using sign language or any other means). If the answer to any of these is"no" then he cannot lawfully give true consent. Although the Act allows for others, such as a power of attorney, to make decisions on behalf of someone lacking the mental capacity, s.27 specifically excludes the decision to marry. | Laws are different around the world and you didn't bother to state your location, but typically no- this is not how the system works. What would be the point? There's no defendant. You, the plaintiff would argue against thin air and then what? The court rules in your favour, declares this illegal, and nothing happens because there's no defendant. Is it so you can use this ruling if you find out later? Pretty sneaky. Let's look into how this would actually work. You bring up a case- Jackson vs a mannequin or something. You make your arguments. The defense makes literally no defense. The judge rules in your favour, with a result of nothing as there is no defendent. Next, you find the culprit and bring a case against them. You point out that this is illegal because we came to that decision last week. What's that defendant? An argument against it being illegal? Too bad, the decision has been made. When I posted this answer, it was before the "Nyah, I was ranting about government spying but was deliberately vague- aren't I clever?" comment and I assumed it was against, say, a neighbour but it doesn't really matter. You cannot have a system that makes a judgement without a defendant so it can be applied later. | Sample answer: Be a US citizen - automatic US tax residency Own a UK property and live there for 91 days to gain UK tax residency Spend 60 days in India plus a total of 365 days over the previous 4 years Spend 62 days in Norway, having been tax resident there the previous year. If I understand correctly, this status can be maintained indefinitely by spending 62 days there per year once first gained. Spend 120 days in Paraguay On the last day of the tax year, start working in the Philippines on an indefinite contract Spend 183 days or more in Singapore during the prior tax year Spend a total of 270 days in Mauritius over the current tax year and the previous two years (our calendar is getting pretty constrained at this point but I think this is still all technically possible) Have access to a spare room that a friend informally keeps available for you in Germany Be a member of the crew of a vessel registered in Mozambique Have at least one essential connection to Sweden, having been tax resident there less than 5 years previously Have a spouse who lives as a permanent resident in Spain and is somehow a contributing member of the Commonwealth Superannuation Scheme (triggering Australian tax residency) Total tax residencies: 13 Total marginal income tax rate after double tax treaties and reliefs for the tie break: no idea | There is a form here which you submit to USCIS – immigrated not before 1906, not for a living person. However, to apply for citizenship, one must have been a permanent resident for 5 years, so given the date on the card (and assuming your father did not marry a US citizen), he could not have been naturalized before departure in 1959. | As cited by @xuhdev, discrimination on the basis of marital status is prohibited in Colorado. And, even though age is not on the list, the couple could claim that you discriminate them based on their marital status, whether current or would-be, and whether related to their age or not. Note that the reason why you discriminate is irrelevant: whether you do it by calling on your religious freedom or without giving any reasons at all does not make any difference. Holding religious beliefs is by no means a lawful excuse for discrimination, no matter how deeply they are held. |
Inventors's Ability To Use Their Idea After Being Patented By Their Employer This is for an ethics course. The professor tells the story (in summary): Josh works for Company A. He comes up with a new idea and presents it to his boss, Paul. Paul tells Josh to meet with Company A's patent attorneys and establish the baseline patents for the idea. Josh does, and the patent applications were produced. Paul then informed Josh that Company A had no intention of producing the patented system. Further, he lays off Paul, claiming it was due to budget cuts. At this point in the story, it is my understanding that no illegal action has been taken by Company A or Paul. An individual or entity can patent something with or without an intention to use that patent, correct? The story continues: Josh is interviewed at Company B. He presents the same idea now patented by Company A. Company B loves his idea, hires him, and allows him to hire 30 others to develop his idea. Was anyone's actions illegal, particularly Josh's? By allowing Company A to patent his idea, has he transferred the his rights to the idea to Company A? I am expected to write a paper comparing the story between two ethical frameworks. It would be great to understand the legal aspect here. Thank you. | The legal issues are too black and white to have any meaningful impact on an ethics discussion. The IP belongs to A and B can't use it. A's not planning to build a product around the patent is irrelevant to the law and I do not see it bring up any ethical issue, but some people who do not understand patent law might. There might be ethics issues if A hired Josh with the specific plan to fire him as soon as the application was filed and intentionally misled him about these plans. Another issue might be Josh's duty to not disclose A's confidential information (the application does not become public right away), and Josh's duty to not draw B into developing an infringing product. | Be careful of the 10% time “perk”. It is not your own time. It is work time where you are self-directed. Any project unrelated to your work should be on your actual own time not dork time that is free of specific assignment. Fortunately the section 39 of the UK patent law is short and relatively straightforward. It is focused on “the course of your usual duties” not on whose time you were on or whose equipment you were using. It belongs to them if - (a) it was made in the course of the normal duties of the employee or in the course of duties falling outside his normal duties, but specifically assigned to him, and the circumstances in either case were such that an invention might reasonably be expected to result from the carrying out of his duties; or (b) the invention was made in the course of the duties of the employee and, at the time of making the invention, because of the nature of his duties and the particular responsibilities arising from the nature of his duties he had a special obligation to further the interests of the employer’s undertaking. Otherwise it’s yours. See https://www.gov.uk/guidance/the-patent-act-1977/section-39-employees-inventions-right-to-employees-inventions | There have been cases in the UK where paying someone's legal bills was interpreted as joining their case. So when A with no money libels someone, and B with deep pockets pays A's lawyer, then B risks being held liable for damages if A gets convicted. So B should be very careful. Just giving you money is probably the safest. But attorney-client privilege is between attorney and client. I have been laid off twice with my company asking me to take an employment lawyer and paying for it. (Interestingly each time the bill was exactly the maximum amount the company was willing to pay :-) It would have been absurd if my company could demand information that is under attorney-client privilege just because they paid the bill. Why did two companies pay the lawyers bill? Because that way they ensure that the separation is without problems. The lawyer explained the settlement contract and what it meant exactly. They also checked that the contract didn’t contain anything unacceptable which the company would have fixed. So if I had tried to sue them later I would have no chance to win (but there was no reason to sue). Another reason not to sue was that the company offered I settlement that was very significantly more than was legally required, but if you sued them you would only get what you got in court - most likely less than you would get without suing. So basically they paid to make sure I would have no reason to sue them later. | That is a very broad clause, broader than the default US rule for copyright, for example. (I know the question asked about the UK, I just happen to know the US copyright rule.) It would seem on the face of it to include independent research on a subject totally unrelated to the person's employment, done off the company's premises and not during normal work hours, but while the person was an employee.. Indeed it would arguably include the copyright to a novel written off premises and during off hours. Use of "course of employment" (instead of "term") would improve the provision. so would "as a part of his or her employment" or "closely related to the subject of his or her employment". Another possible restriction would be "Using the Company's facilities and/or equipment, or during normal working hours". However, my experience is that an employer will have drafted whatever language it uses through its company lawyer, and will be quite unwilling to alter it in any way. A prospective employee will probably be faced with a take-it-or-leave-it choice unless that person is a nearly indispensable figure to the company. One could send the company a certified letter saying, "When i signed the contract agreeing to {company language} I did not intend to include any developments made off company premises, not using company equipment, and unrelated to the subject or scope of my employment. I retain full rights to any such developments." Such a letter would help establish that there was no meeting of the minds to assign such non-employment-related developments or IP to the Company. How much weight it would have if the rights to such developments were the subject of a court case I am not sure. | Critique I'm technically a director of a company ... You either are or you aren't - there is no "technically" involved. ... is not currently trading ... And doing nothing can create a conflict of interest? How? You mustn’t be involved either directly or indirectly with any other trade or business competing in or conflicting with the interests of our Company. "competing or conflicting" is the key here - if the "other trade or business" can adversely affect the performance of your employer then you have a conflict, if not, you don't. are only related in such that they are both technology based but otherwise are unrelated. Sorry, but that is so vague as to be totally useless - what company today is not "technology based"? Pharmaceutical companies are technology based, so are construction companies, so are law firms but one would hardly call them "related". Solution Conflicts of interest are easy: If you don't think you have a conflict of interest and they don't think you have a conflict of interest then you don't have a conflict of interest. If either or both of you do; then you do. Tell them about it! Conflicts of interest are a problem because people think that if you are keeping secrets then you are doing it for a nefarious purpose! In 90% of cases declaring the potential conflict resolves the conflict because the other party says "That! Don't be silly; that's not a problem!" or words to that effect. In the 99.9% of the remaining 10% of cases then sensible people can come up with sensible solutions, for example: If you want to be involved with another business whilst working for us then you’ll need to get a letter from the Director of your area confirming that they’re happy for you to do this. | Non-Profits Need Not Have Owners But Must Have A Lawful Purpose Any non-profit company, for example, a 501(c)(3), is ownerless and can be run by a self-perpetuating board if desired, rather than having delegates that provide an outside source for new board members. In that case you have to set forth a purpose of the company or trust, to which its assets and profits must be used, and it must be managed in accordance with that purpose. You can also have a "private foundation" that is effectively ownerless, again with a designated charitable purpose. Generally speaking, the law limits how much compensation can be paid to officers and employees of such a company and restricts self-dealing transactions by such a company. You probably cannot create a valid trust or business with no beneficiaries and no designated charitable purpose which is supposed to merely accumulate its profits and assets. Ownerless Cooperatives Are An Oxymoron Your reference in this and other posts to an "ownerless cooperative" is basically an oxymoron. A cooperative is an entity owned by a class of people who have a contractual relationship with the entity (usually consumers or producers) who are the owners of the company with voting control and who are entitled to an adjustment of their transaction prices with the cooperative via a rebate or surplus check proportionate to the dollar volume of their dealings with the cooperative (Northwest Mutual, must rural electric companies, and most credit unions would be examples of consumer cooperatives, Ocean Spray is a good example of a producers cooperative). An ownerless entity is pretty much by definition not a cooperative. An excellent overview of forms of entity organization other than investor owned stock corporations can be found in The Ownership of Enterprise by Henry Hansmann. The Life Of The Law Is Not Math Or Logic Honestly, it sounds like, in your several posts on the subject, that you are attempting the hide the ball of an ulterior purposes which is material to the legality and organization of an entity. The law is not like science or mathematics. You can't prove a bunch of isolated propositions and then string them together logically. The law operates on an entire comprehensive "fact pattern" and even if every step of your chain of reasoning to an ultimately result is supported by legal authority, this does not mean that this will be the result you get when you put all of the pieces together. That kind of logical reasoning doesn't work in a legal context. The heading of this section is a paraphrase of a famous statement about the law by Oliver Wendell Holmes, Jr.: The life of the law has not been logic; it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. from "The Common Law" (1881) at page 1. Blockchains Are Not The Legal Innovation That They Claim To Be Using blockchain technology to manage "tokens" of voting control in an entity is ultimately completely irrelevant. Blockchain technology is just another alternative to certificated shares, shares kept on an ownership ledger, or shares kept through secondary shareholding intermediaries or brokers. The technology used to keep track of voting control or economic ownership is irrelevant, and some common entities (e.g. homeowner's associations) have ownership that is basically determined via a crude public blockchain called the county clerk and recorder's records. People who think that blockchains provide any significant legal innovation into anything (e.g. here) are fundamentally misguided and typically are not people familiar with the law who have misconceptions about how the law works. Also, contrary to the hype, blockchains are not fraud-proof and indeed, involve serious systemic risks of instability because an error in an old transaction can disrupt lots of current claims. Claims such as those made here that blockchain transactions are irrefutable are naive and basically false. A block chain is a bit like a real property record system without an adverse possession rule to make ancient glitches irrelevant. Moreover, blockchains are a solution to a non-problem. Authenticating ownership and voting rights, economic entitlements, and corporate actions is something that has never posed a very significant economic problem ever since writing was invented. These are economic problems that were already effectively solved in the days of the Minoans, and widespread ownership of well authenticated entities by numerous ever shifting groups of owners was a problem well in hand by the days of the British East India Company. Anonymous Ownership Or Contribution Records Are Illegal Truly anonymous ownership, however, is legally prohibited, even though ownership need not be made a matter of public record. In the case of for profit entities, by securities regulation which requires disclosure for purposes of exercising voting rights and for disclosing large blocks of ownership as required by law, and for purposes of tax law. In the case of non-profit entities, it is prohibited by virtue of laws regulating private foundations that impose tax requirements when certain concentrations of contributions come from a small, related group of people. In the case of political organizations, campaign finance laws require disclosure. | You don't say what jurisdiction's patent laws you're interested in, and priority dates can differ in different schemes. I'm answering as to U.S. law only. In the United States, under the current hybrid "first-inventor-to-file" system, the priority date--the date that determines who "wins" if there are multiple claims to a specific invention--is, with some exceptions that I won't go into, the date of your first application. In other words, the date that the PTO got it in the mail. Once your application is submitted, it is--again, with some limitations I won't get into--prior art for the purposes of any later-submitted application. They can't get another application later, grant it first, and then deny your application based on the later-submitted application. Your application date would still win out. Could someone in the USPTO slip your application out of the stack, fudge the dates, and convince some other company to submit a similar application to get priority over you? Not as a practical matter, no. The USPTO isn't one guy in a room; it's a large organization, and the person who opens the mail, types in your application details, and sends you a receipt, isn't the same guy who knows whether your invention is any good or not. And, frankly, very few patentable inventions are going to be worth someone risking their job and/or jail time over--especially when there would be significant evidence of the misconduct--for example, your patent agent's files. So what are the chances that the examiner on your patent: 1) Is a nefarious character who has lived a life of public service long enough and wants to go rogue; 2) Has a friend in the mailroom who is also an expert in the field of your invention; and 3) Has a conduct in industry who is willing to break the law for the rights to your invention? Slim to none. And if you have an invention that is really so revolutionary that it's going to be worth so many people risking so much to steal it, odds are there will be other evidence that you were the inventor. | 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. |
Can a landlord use the delivery of U.S. mail as a method of surveillance? This is an on-going struggle for me with the management of my apartment building. In the past, the manager has instructed the USPS mail carrier to return-to-sender my mail, because it was addressed to a name that is sufficiently different from my legal name. For one such mailpiece, the mail carrier placed it in my box, but with a big question mark written with Sharpie next to the name. I wrote a note for the mail carrier on a photocopy of the front of the mailpiece showing the question mark. My note said, "Yes, please deliver this mail." On the same photocopy, the mail carrier wrote a reply to me: "Can't, name not on lease." Soon after, I received an email from the manager, with a scanned image of my photocopy/note as an attachment. In part, the email said We informed the carrier that we do not have any documentation for a resident by that name, and that their mail should continue to be returned. The email went on to say that if I have a roommate (I don't, see below), then that person needs to be added to the lease (which costs more money). I replied truthfully that there is no other person living in my apartment and invited management to check the security video. I added that I don't appreciate management interfering with my mail. Later the manager backpedaled. Even though his first email stated that he instructed the mail carrier to return the mail, his reply said, All I did was inform USPS that you were the only party on the lease. Any decision to return mail was made by the carrier. I asked on /r/USPS whether I should be able to get mail delivered to a pseudonym if I live in an apartment building. There were replies on both sides, but wzombie13 cited the rule book, Deliver mail according to the instructions or known desire of the addressee. [Line 131.35, Handbook M-41: City Delivery Carriers Duties and Responsibilities] I tried to call the local post office several times over the course of several days, but nobody ever answered. The line rings and rings and then eventually clicks off, and eventually I stopped trying. Fast-forward to now, I am renewing my lease, and the lease agreement has been amended, Residents agree that the receipt of mail by any individual not listed as a Resident or Occupant in this Agreement at the Leased Premises shall be proof of occupancy of that individual and a violation of this Agreement. I had privacy concerns even before this (the mail carrier really shouldn't have let my landlord scan my mail, and the landlord also shouldn't be releasing my private information to the mail carrier). The current manager claims it is USPS policy to deliver only to the name on the lease, but I think this clause of the contract belies that. I do not believe it is appropriate for my landlord to monitor my mail, and this lease expects me to waive any right to the privacy of my mail by agreeing to let the landlord use mail delivery as a mechanism of enforcement. I have argued that this is Obstruction of Mail (18 U.S. Code § 1701) because I am prevented from receiving mail that a homeowner, as opposed to a tenant, would be able to receive, and Obstruction of Correspondence (18 U.S. Code § 1702) because the landlord is "prying into [my] business." But they won't change any language of the lease agreement (these professional management companies never do, no matter how ridiculously badly the form contract fits the reality of the apartment building). As an aside, I'll outline my personal reasons for wanting to receive mail under different names, because I know people will question my motives. But I believe there are many other valid reasons for wanting this, and this question is not about whether my own justification is valid. Rather, I am seeking legal arguments to back up my intuitive belief that my mail is simply none of my landlord's business. As a protective measure against identity theft, I use different names in situations where I feel using my real name is not necessary. A simple example is buying online. I need to use my real address if I want to receive the physical thing I am buying. But from a purely practical standpoint, there is no need for my real name to get stored indefinitely in the seller's database, which is probably not secure. Even large corporations that spend millions on information security are commonly hacked, so it is far more effective for me to withhold my personal information than to rely on sellers -- whether big or small -- to secure their systems. Since it is the combination of my real name and real address that is valuable to an identity thief, using a different name prevents the proliferation of the valuable combination. | Residents agree that the receipt of mail by any individual not listed as a Resident or Occupant in this Agreement at the Leased Premises shall be proof of occupancy of that individual and a violation of this Agreement. I assume that the lease states that only the listed individuals can reside in the unit. Maybe they think that this says that receipt of mail by an unlisted person is a further violation of the lease, I don't think that is clearly enough stated that the courts would agree that receiving mail is itself a violation of the lease. Instead, it seems to be intended to say something about an existing clause – you can't have other people living there. The courts would look at the requirements of the lease, and ask "did you comply"? The question of whether you did a certain thing is a question of fact that has to be resolved in court. However, the revised lease language does not state that all mail must be addressed to Johnny Johnson – it only addresses receipt by a person not on the lease. You are (apparently) on the lease, so you may receive mail there. Nothing in the lease controls how such mail can be addressed. If you receive mail addressed to Tommy Thompson, your defense is that you received the mail, and you are on the lease, so you will not have violated the new clause. | 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. | There are some consequences for you, under the Seattle Residential Code. Per R103.5 Any person violating or failing to comply with the provisions of this code shall be subject to a cumulative civil penalty in an amount not to exceed $500 per day for each violation from the date the violation occurs or begins until compliance is achieved. $182,500 per year. Also under R103.4, Whenever any building or structure is being occupied contrary to the provisions of this code, the building official may order such occupancy discontinued and the building or structure, or portion thereof, vacated by notice. There should be a notation on your panel indicating permit number and approval, but if you have the permit number, you can check if the inspection was done and the work was approved (I think this will report status). The legal burden of assuring that the work was done correctly and paperwork is in order ultimately falls on the owner, though the city at least initially talks to the contractor. Insofar as a customer taking a picture doesn't count as an actual final inspection, I suspect that some cost- and time-saving short-cuts were taken. Following up on the new information about being a tenant, the primary legal question is whether you have a duty of care towards the landlord, since in engaging this company, the landlord's interest may be put at risk. The landlord may have protected his interest via a clause in the lease saying "you must get written permission to modify the property, and you assume full liability for resulting damages", so first thing to check is what the lease says (perhaps look for a "Tenant's duty of care" clause). In lieu of clear evidence that you caused damage to the owner (economic damage, by negligence w.r.t. his need to have proper permits and the whopping fines that follow), I don't see what the risk to you would be in just washing your hands of the problem. | Can a landlord keep a security deposit if my apartment rental application is approved, but I back out of signing the lease? That can't be legal, right? No. That is a violation of California CIV 1950.5. Although 1950.5(b) reflects that one of the permissible purposes of a security deposit is "to reimburse the landlord for costs associated with processing a new tenant", item (e) limits that amount "as [is] reasonably necessary for the purposes specified in subdivision(b)". A deposit of 1.5 times the monthly rent clearly is excessive for "processing a new tenant", let alone processing an applicant who never became a tenant because no lease agreement was entered. All other permissible uses of security deposit are inapplicable in your matter. Furthermore, if the landlord required a separate payment for the application, then your application fee satisfies the provision in 1950.5(b). This means that the landlord has the obligation to reimburse you 100% of the security deposit. | A "land contract" is not a way of renting property, it is a way of purchasing property on an installment basis without bank financing. It is Ohio's version of what in some other places is known as "contract for deed". See "What is a Land Contract in Ohio" and "How Land Contracts Work" The actual law is Section 5313. In a land contract, the buyer has equitable but not legal title. The buyer normally pays all taxes and fees, and is responsible for maintaining the property, just as if s/he has bought the property. But if the buyer defaults, all payments and equity would be forfeit to the seller. Until the buyer has paid 20% of the purchase price, or made 5 years of payments (whichever comes first) a single missed payment constitutes default and can lead to the buyer being evicted with all payments to date going to the seller, the buyer coming out of the deal with nothing. Also, if the seller still has a mortgage and defaults, the buyer may lose everything paid to date. The buyer does not have the protections that a lease gives a tenant, nor the protections that legal title gives a purchaser via a traditional mortgage. Land contracts are often used when the buyer cannot qualify for a mortgage. The buyer pays interest, and it is often at a higher rate than the current rate on a mortgage. Land contracts are often a form of predatory lending, but for some buyers they make sense. A buyer needs to carefully review the contract with a lawyer knowledgeable about land contracts, and consider the risks and benefits of this form of financing. As I understand it, there cannot be a valid land contract for one apartment in an apartment building. A land contract must be for title to the land and all fixtures, including all buildings, on it. (There was at one point some unclarity if the question referred to an apartment. It is now clear that it refers to a house, so this statement is not relevant to the OP, but may be to others.) It is not clear just what the OP's landlord (LL) has in mind. It may be that LL plans to offer a "land contract" in which the purchase would be completed only after a very long time, with the idea that the OP would simply default when s/he wanted to move. Such a default could harm the OP's credit. There seems no benefit to the OP in such a scheme compared to a lease, unless LL will lower the price significantly, taking into account maintenance costs and taxes, which OP may well be expected to pay under a land contract. Note that a landlord can't legally force a tenant to sign a document cancelling a lease, or to sign whatever s/he will call a "land contract". Nor can s/he cancel the lease without the tenant's consent except for good cause as specified in the law (such as not paying rent). S/He could become uncooperative on other matters if a tenant doesn't do as s/he wants. If a tenant does cancel his or her lease, s/he will lose some rights. Others are guaranteed by law as long as the tenant is paying rent. If one signs a "land contract", what happens depends on its provisions. OP needs to very carefully consider just what is being offered, and its risks and any possible benefits. Details of the contract will matter. No matter exactly what LL has in mind, this is not at all a usual procedure for a landlord. OP or anyone in a similar circumstance should be very careful. | 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). | Since they have allready given you a form to fill that you have sent back with the original receipts, I will assume that the major preconditions have been fulfilled (mainly that they have asked you to come in writing and have not exclude reimbursement). This a case of civil law based on §670 BGB. Since they have not fullfilled their obligation, you must send them a reminder (Mahnung) in the form of a registered letter, requiring them to do so within a reasonable timeframe (like 10 working days after receipt of the letter). look for standard letters on this topic (Mahnungen) The letter should be descriptive in nature (i.e. a Judge, after reading a copy of the letter, will understand the whole situation). Nowadays such a letter should be sent through your local Amsgericht, so that they can certify that your copy of the letter was included in the original letter. If they don't react to this, then you must charge them. This is a basic description of the needed method. Look up the details of the process and/or for someone to assist you. Section 670 Reimbursement of expenses If the mandatary, for the purpose of performing the mandate, incurs expenses that he may consider to be necessary in the circumstances, then the mandator is obliged to make reimbursement. Sources §670 - German Civil Code (BGB) Wer trägt die Reisekosten für das Vorstellungsgespräch? - ingenieur.de | You should not keep them at all. Mark them clearly with whatever variant of "not living at this address"/"not known at this address" is accepted in your area, or with "return to sender, wrong address" and provide them to the courier agent or post office responsible for your area. Keeping mail that isn't yours opens you to offences like theft or conversion, or of interfering with the post system. Opening mail that isn't yours opens you to offences specifically defined by that action, as well as potential privacy breaches. Destroying mail that isn't yours opens you to offences of property damage. |
How long am I supposed to keep previous tenant's packages I live in Nevada, US. I moved into my house 4 months ago and have been receiving packages addressed to my old tenant ever since. The first package arrived about 2 weeks since I moved in (meaning about 4 weeks after she moved out). I handed it to her. This tells me that she is aware her mail and packages are being sent to the wrong address. I saved all the subsequent packages for her, thinking she would show up and pick them up eventually. She never did. I then tried to write "not at this address" on the packages and left them at the door but whoever delivered them never picked them up. They're from various carriers, USPS, FedEx, USPS, DHL, etc. Next I contacted the real estate company that manages the property and asked them what I should do with these packages. They told me to either bring it in or throw it away. Their office is quite a distance from my house so I really don't want to bother. At this point I really think I did everything short of going out of my way to find the previous tenant or to deliver her packages to another location, be it the real estate management company or the post office. What are my legal obligations to her with respect to these packages? | You should not keep them at all. Mark them clearly with whatever variant of "not living at this address"/"not known at this address" is accepted in your area, or with "return to sender, wrong address" and provide them to the courier agent or post office responsible for your area. Keeping mail that isn't yours opens you to offences like theft or conversion, or of interfering with the post system. Opening mail that isn't yours opens you to offences specifically defined by that action, as well as potential privacy breaches. Destroying mail that isn't yours opens you to offences of property damage. | No. An eviction notice served while someone is an owner of record of a house would not be enforced. But, generally speaking, a divorce court retains jurisdiction to enforce its decrees after they are entered, and to clarify its existing orders. Obviously I will need to refinance it and pay him his share of the equity to get the deed solely in my name, which will take time. Usually, the ex's duty to get the deed in your name would precede the duty to refinance it. A deed from one owner of real estate to another co-owner doesn't violate a due on sales clause of a mortgage or deed of trust, and the fact that both of you are on the mortgage or deed of trust does not mean that both of you need to own it. Unless the decree says otherwise, the ex would usually have to transfer the property even if the mortgage is not yet refinanced. But, not all decrees and not all separation agreements have the same requirements and provisions. The exact language in the governing document would matter. If the decree doesn't say who gets to occupy the house, you could and probably should go to the court to have that issue clarified. Since violating a clear court order can give rise to contempt of court sanctions of incarceration or fines, often someone will comply with it without having to have the police intervene to remove someone. Conceivably, if the ex did not leave, you could seek to hold the ex in contempt of court for violating the divorce decree if it implies that the ex's right to occupy the house has ended. If the ex is found by the court to have willfully violated a court order following notice to the ex, an arraignment and a hearing if the violation was not conceded at the arraignment, the ex could face incarceration and/or fines (contempt proceedings are rather complicated and exactly how you do this is beyond the scope of a simple answer). You could also seek to hold the ex in contempt of court for not promptly signing the quitclaim deed (assuming that the decree does not condition the duty to do this on the refinancing of the house), but this would not be the best solution to that problem. This is because you could also go to the court and have it appoint the clerk of the court as the husband's agent to sign the quitclaim deed on behalf of the ex (assuming again that the decree does not condition the duty to do this on the refinancing of the house), if the ex failed to do so as required by the divorce decree by the deadline set forth in the decree, or a new court order, or within a reasonable time if not deadline is set. Then, after you were in title, you could bring an eviction action if necessary. It is much easier and faster to get an order directing the clerk to sign something on behalf of a party to a lawsuit than it is to hold someone in contempt of court. You could also ask the court to issue a protection order prohibiting him from occupying the house at any time prior to the title being put into your name pursuant to the decree. This could take effect as soon as the protection order signed/authorized by the judge is served upon the ex. A protection order (in most states) is directly enforceable by the police, unlike most court orders which are only enforceable by bringing contempt of court charges in the court that issued the order. But, a court would usually be reluctant to issue a protection order unless there was a clear and present risk of physical harm, or severe emotional harm to you from a violation of the decree. Also, while the ex wouldn't be committing the crime of trespassing by occupying the house, it wouldn't be unprecedented for you to persuade a police officer to remove the ex from the house after explaining the situation to prevent a breach of the peace between you, or because the ex's conduct in overstaying his right under the decree to be in the house constitutes "disorderly conduct" or "loitering" or "harassment" or some other minor offense in the opinion of the police officer, even if that charge might not hold up if prosecuted in court. But, there is really no way to compel a police officer to do that and it is close to the boundary of what a police officer does and doesn't have the authority to do. Most of these remedies would take several weeks, at a minimum, to complete. A protection order could be done in a day or two, subject to a prompt follow up hearing within a week or two after the fact. A court might also rule on a clarification order on an expedited basis by setting a shorter than usual deadline for the ex to respond given the urgency of the matter. | 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. | First, return addresses are intended simply to provide a mechanism by which an undeliverable or returned letter can be returned to the sender. If you have a practical concern then consider the following: I worked for the postal service and never experienced an instance where anyone cared whether there was an accurate return address except in the following cases: As mentioned above, a letter was refused or otherwise undeliverable, and an attempt will be made to return the letter to the return address. In cases of a false, unreadable, or non-existent return address, the letter will be marked undeliverable and likely destroyed or recycled. Someone is trying to scam the system by putting an identical address on each the delivery and return address of a mail piece, especially on mail pieces that have insufficient postage. If caught, this mail piece will go to the delivery address the same as any other case of insufficient postage, with a postage due requirement for the recipient. However, in this case this piece will be held and eventually destroyed rather than returning to sender, since it does not have a non-identical return address. The content of the mail piece is illegal (e.g. anthrax, drugs, etc. made apparent by forensic equipment or by a piece of mail being inadvertently opened/destroyed by a machine and discovered by a postal employee). In these cases the mail piece will be sent to the postal inspection service (most plants have one in-house). These postal inspectors might have use for a return address in the event that the sender was dumb enough to include an accurate return address on an illegal mail piece. 18 U.S. Code § 1342 penalizes those who commit crimes under false names, and uses broad language to include people who use pseudonyms to avoid detection, since these actions make the job of postal inspectors much more difficult. The final language also makes opening mail address to people other than one's self illegal, though this is likely described elsewhere, too. It does not pertain to false return addresses, unless someone were to open the letter upon return, despite that person not being the return addressee, or committing some other crime using the postal service. The only situations where I can see your hypothetical situation becoming a concern for postal inspectors or postal regulators would be: The mail piece masquerades as a certified, registered, or other special class of mail. There are many junk mailings out there that look surprisingly similar to the protected classes of mail, but are distinct enough to not raise any serious concerns (e.g. "CONFIDENTIAL", "URGENT", or various green or red markings). The penalty would probably be a fine in the amount of each identified letter times the price for the corresponding postal product. The return address is for a governmental entity, or possibly an annoyed person or company, but not actually sent from these locations. I suspect this is the possibility most relevant to your question. However, this is unlikely to raise any concern, unless a recipient or other affected party raises a fraud concern (18 USC 1341, 1342 & 1345; 39 USC 3005 & 3007) with the postal service. This would be taken on by the postal inspection service, which would investigate the content of the mailings for any signs of the actual sender, and they may attempt a variety of other methods (e.g. tracing letter meters, surveillance) to locate the source of the mail. However, the legal penalties would probably be fraud-related and might fall outside postal regulations per se, but could include federal laws about committing crimes that leverage the mail service, and various other laws if this is done across state lines (also this might invite FBI attention). | Leaving out who the shipper is for a minute, the primary loss would be the seller's (UCC 2-613) in that the loss would be total and the contract would void (so the buyer has not obligation to pay the seller, and the seller's stuff is nevertheless gone). The seller has a remedy against most shippers, so that UPS or Fedex would be liable to covering their loss (assuming buyer has not assume the liability by agreeing to delivery without signature). However, USPS has special immunity: the government is liable to tort claims, but 28 USC 2680(b) states that The provisions of this chapter and section 1346(b) of this title shall not apply to... Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter Thanks to Nate Eldredge for raising the case Dolan v. USPS 546 U.S. 481 (2006), where it was held that USPS has very narrowly circumscribed immunity from liability. Under this provision, they are not liable for breaking contents when delivered negligently, but that does not mean that they are not liable for breaking things as a result of their deliveries (they broke Mrs. Dolan, in how they piled stuff on the porch). Although this case does not rule on the meaning of "loss" or "miscarriage", on a plain reading of the terms, theft results in a loss ("loss" is not restricted to "mysterious disappearance"). The court also observes that losses of the type for which immunity is retained under §2680(b) are at least to some degree avoidable or compensable through postal registration and insurance and the court explains that one purpose of the FTCA exceptions was to avoid “extending the coverage of the Act to suits for which adequate remedies were already available” (that is, Congress opened the government to tort liability in just those cases where there were no remedies: but there has long been postal insurance). | There's good information at https://www.gov.uk/private-renting-tenancy-agreements/your-landlord-wants-to-end-your-tenancy. There are several types of tenancy with different rules, but in all of them, the landlord has to give you a certain amount of notice to move out, and it has to give a specific date. "Three months from when a buyer is found" doesn't seem to fit that, so I would say you have not yet received formal notice to move out. This statement may have just been a courtesy to give you more advance warning. So for instance, if you are in a tenancy that requires two months notice, the landlord may have intended this to mean "I plan to send you formal notice about one month after a buyer is found." Of course, this is not binding; he could send you formal notice tomorrow if he changes his mind. As far as I know, the sale of the house is really irrelevant in all of this. You don't automatically have to move out just because the house is sold; if you're not explicitly told to leave (with appropriate notice) then you don't have to, and you'll just start paying your rent to the new landlord. If you have a fixed-term tenancy, then the sale of the house doesn't shorten it. I am not sure what the point is of getting angry at the estate agents. Your tenancy is a matter between you and your landlord, and the estate agents have nothing to do with it. They work for your landlord, not for you. | 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. | Let's analyse the landlord's claims: You have an assured shorthold tenancy agreement. The fact that there isn't a written contract doesn't change this as a verbal agreement is legally binding. That's true. A tenancy exists even if this was never written down, and it's an AST by default if the requirements for being one are met. Payment of rent constitutes acceptance of these terms. Payment of rent by the tenant, and its acceptance by the landlord, is sufficient for a tenancy to be regarded as existing. The tenancy can only be terminated early from the permission of the landlord. That's rubbish. A tenant can always end a tenancy, but there may be restrictions. In particular, a tenant cannot end a tenancy before the end of a fixed term without the agreement of the landlord, but the landlord has an obligation to find new tenants if this happens. However, I've been unable to find any information as to whether a fixed term exists if there's no written agreement. Assuming there is no fixed term, then for a month-to-month tenancy, the tenant must provide one month's notice to end the tenancy, with that month ending at the end of a rental period (i.e. the day before the next payment would be due). If you leave early this is legally abandonment and you are still responsible for paying rent for the duration of the tenancy That's true. ... if you do leave next month I'll consider you in rent arrears and pursue payment through legal means That is possible - but if you give notice as described above, then the tenancy will end, and (assuming you're up to date with the rent) you'll no longer be liable. |
What should a person write in "Driver license or ID card no" if s/he doesn't have a driver's licence? Suppose that a new international student (S) in the US is looking to buy a car ASAP, but it may take few weeks before S can find free time to read and do the DMV test. But S has his or her own country's driver's license at the moment and has found a car to buy. S wants to purchase it before the seller sells it to another person. There is a field on the back of the pink slip with the title "Driver license or ID card no". As it has 8 spaces to fill it seems S can not write a SSN or visa number there because they have 9 characters. How should S fill this part? Can S buy a car without having a California's driver's license? If so, should S change this field in the future, after S gets a driver's license, to that number? | Here is the technical manual: you want 11.015. It says: New Registered Owner Section—The name, address, and driver license or identification card (DL/ID) number for each new registered owner must be entered on the appropriate lines. If an owner has not been issued a California DL/ID card, their out-of-state DL/ID number, if any, is acceptable. Print the out-of-state DL/ID number and state of issuance in the upper-right corner of the face document or application. The out-of-state DL/ID number cannot be keyed, but will be microfilmed with the title. The word “None” should be entered for persons who have not been issued a DL/ID card from California or any other state. | The short answer: The title is, more or less, a record of who "owns" the vehicle. It's you if you own it free and clear, the dealer if you're leasing it, and it depends what state you're in if you're financing the car. The registration is a permit to operate the vehicle. In all three situations above, you would hold the registration (you could also not register your vehicle if you're not using it, for instance by filing for a certificate of non-operation in California). | This is weird. Within the EU, a passport is proof of identity, and it is also proof that you are allowed to take a job in the EU. There is nothing that a birth certificate would add to this. Either the bar manager is badly misinformed, or he doesn't want to give your brother a job, and will come up with something even more ridiculous if he gets the birth certificate. | You will still have to pay A ticket can be ammended if the state so chooses (they can look up what color and model your car is). The car is probably on video. The officer can testify if they wrote your car info down somewhere else. And if they identified you inside the car as the violator, the car's color hardly matters. The idea that minor mistakes or omissions on tickets can get you off is a myth. From an actual lawyer | The law, at section 52(4) Data Protection Act 2018 does not expressly require a signature. What is needed is confirmation of one's identity: Where the controller has reasonable doubts about the identity of an individual making a request under section 45, 46 or 47, the controller may— (a) request the provision of additional information to enable the controller to confirm the identity, and (b) delay dealing with the request until the identity is confirmed. One option is to submit the request with an explanation as to why your signature has changed and wait and see if the data controller comes back for additional information. If you can't provide anything more, or they still won't process your request if you do, there's alway the option of appealing to the Information Commissioner's Office | There is no general duty to carry your identity with you when inside the UK, nor to identify yourself to any official. Many UK citizens have no photographic proof of identity at all. (My parents did not for many years, until they obtained fresh passports.) I am confused where you could be stopped by immigration officers. If you appear at a UK Border without your passport, it is a real headache, but immigration can find your record on the computer and will, if you satisfy them you are a UK citizen, eventually admit you. (They have no power to deny entry to a British Citizen, and must be satisfied you are not a British citizen to deny you entry.) For clarity, in respect of some comments, I am not advising that anyone should do this, but I am saying in the worse case scenario if somehow you end up without documents you can still be looked up in the computer, and your identity can be checked at the UK Border without a passport. In general you are not required to identify yourself to a police officer, unless you are arrested. http://www.findlaw.co.uk/law/criminal/your_rights/500109.html If I am stopped and searched, do I have to give my name and address? Although the police will likely ask for your name and address, you are not required to give it unless the police arrest you or are reporting you for an offence. There are a small number of occasions when you may be required (by law) to identify yourself when you are simply going about your private business. If you are driving a vehicle the police may stop you and require you to identify yourself. If you do not have your driving licence, you may produce it at court at a later date; in the mean time the police can check your status by computer. http://www.legislation.gov.uk/ukpga/1988/52/part/VII/crossheading/powers-of-constables-and-other-authorised-persons/enacted?view=plain If you are travelling domestically inside the UK by air, the police can stop you and require photographic identification at or after the security check point under Schedule 7 of the Terrorism Act 2000. (http://www.legislation.gov.uk/ukpga/2000/11/schedule/7?view=plain) However, I travel within Great Britain by air several times a month and usually do not bring anything more than a credit card and a change of clothes, and I have never had any problems. Most airlines will "advise" you to bring photographic ID. If however you do travel between Great Britain and Northern Ireland, immigration staff are often interested in your status then. It is wise to have photographic ID on such a journey. | Yes 15 USC 1501, which is part of the Lanham Act, the basic US trademark law, provides in subsection (a)(2) that: (2) The application [for registration of a trademark] shall include specification of the applicant’s domicile and citizenship, the date of the applicant’s first use of the mark, the date of the applicant’s first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark. This clearly implies that the applicant may have a citizenship other than US, or else ther ewould be nbo point in specifying the citizenship in the application. subsection (e) of the same section provides, in relevant part: If the applicant is not domiciled in the United States the applicant may designate, by a document filed in the United States Patent and Trademark Office, the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark. This makes it cleat that an applicant need not be resident in the US., 15 USC 1141a provides that: (a) In general The owner of a basic application pending before the United States Patent and Trademark Office, or the owner of a basic registration granted by the United States Patent and Trademark Office may file an international application by submitting to the United States Patent and Trademark Office a written application in such form, together with such fees, as may be prescribed by the Director. (b) Qualified owners: A qualified owner, under subsection (a), shall— (b)(1) be a national of the United States; (b)(2) be domiciled in the United States; or (b)(3) have a real and effective industrial or commercial establishment in the United States. 1141a (b2) and (b)(3) make it clear that an applicant need not be a national (citizen) of the US. The USPTO's page "Trademark FAQs" lists under the heading "General - Trademark Help - Getting Started - Other" the following Q&A: Must I be a U.S. citizen to obtain a federal registration? No. However, your citizenship must be provided in the application. If you have dual citizenship, then you must indicate which citizenship will be printed on the certificate of registration. | The legal line has to do with title requirements for vehicles. There is no specific law that requires you to do anything in connection with the VIN when replacing parts, and you can swap VIN plates on vehicles, or destroy the plate – but that limits your rights with respect to the car. You need a certificate of title to operate or transfer (but not simply to own) a vehicle, per RCW 46.12.520. According to RCW 46.12.520, when applying for title, you have to include “A description of the vehicle, including make, model, vehicle identification number, type of body, and the odometer reading at the time of delivery of the vehicle”. This is trivially doable with an unmodified vehicle. Once you have that Washington certificate of title, then apparently (based on a reading of RCW 46.16a), you simply have to keep registering it. There is normally no need for a further certificate of title, unless you try to transfer it. If a new certificate of title is required, you may be in trouble for crossing a line. In case you need to apply for title (RCW 46.12.560) on a modified vehicle, the State Patrol may (probably will) perform a VIN inspection, since there would be a discrepancy in the description of the vehicle. The full list of inspection requirements is here and this document seems most relevant, being about “homemade vehicles”, as defined in WAC 308-56A-455. The core features of a homemade vehicle is that it is: (a) A vehicle that has been structurally modified so that it does not have the same appearance as a similar vehicle from the same manufacturer; (b) A vehicle that has been constructed entirely from homemade parts and materials not obtained from other vehicles; or (c) A vehicle that has been constructed by using major component parts from one or more manufactured vehicles and cannot be identified as a specific make and model. In that case, you need notarized bills of sale or certificates of title for all of the major components – by RCW 46.80.010 this includes at least each of the following vehicle parts: (a) Engines and short blocks; (b) frame; (c) transmission and/or transfer case; (d) cab; (e) door; (f) front or rear differential; (g) front or rear clip; (h) quarter panel; (i) truck bed or box; (j) seat; (k) hood; (l) bumper; (m) fender; and (n) airbag. So replacing the seat may trigger the requirement for a VIN inspection by WSP. Of course there is the question of how they would know, but I'm only talking about the law. There are various rules about the documentation that has to be provided, depending on the supplier: for example, if parts come from a private individual, the documentation requires everybody’s name, address, phone, description of parts, price, and the VIN of the original vehicle. If you can't do this, you can apply for ownership-in-doubt registration (no title) and 3 years later you can apply for title. So, an oil change is okay, changing seats is mildly risky. While exchanging parts on a same make-and-model basis is unlikely to cause any problem, real problems could arise if there is ever a comparison between your license plate and vehicle description (if the police run your plates). If you truncate your Explorer into a Mini-Cooper, the mismatch between description and license will be noticeable, and they would have reason to think the vehicle was stolen. |
Is there any way to stop a rogue jury from making a deliberately bad decision? It seems to me that juries potentially have the ability to deliberately and maliciously make decisions they know are wrong. For example, a jury might happen to say, "We know he's guilty, but we're acquitting him because we hate the government." Or they might say, "We know he's innocent, but we're convicting him because he's (race)." Yes, I know jury selection is supposed to weed out people like that. But with millions and millions of trials taking place, sooner or later, someone will probably slip through, and sometimes it only takes one or two people to incite "mob mentality." Yes, I know that juries are sternly instructed not to make rulings like that and to rule according to the law. But just asking someone to do something is not really binding. If a verdict like that did happen, there are some cases where it couldn't be appealed at all (like an acquittal), and even if it is possible to appeal it, many US courts seem to have a tendency to reject appeals of criminal convictions. And even if you got it overturned, this would still be a horrifying and costly ordeal. So let's say a jury openly admitted that they made a bad decision out of malice. Could the jury be charged with anything? Would the verdict still stand? | No more than any other system Ultimately, when deciding a criminal or civil matter and forcing people to abide by the decision somebody has to make that decision. A jury made up of members of the public can make poor, arbitrary, malicious or otherwise ‘wrong’ decisions. But so can a trained and experienced judge. Or police officer. Or surgeon. In countries where jury trials are an embedded part of the legal system, they are seen as providing an important balance to government power, an egalitarian measure that places judgement in the hands of lay members of the public rather than a judicial elite and a defence against bias since they require unanimous or near-unanimous (10 of 12 is common) verdicts. In countries where they are not part of legal-social culture they are often regarded as stupid. Both positions are arguable. At the end of the day, juries can be biased and arbitrary. So can judges. The protection against this for judges is they have to give reasons for their decision and that is subject to appeal. The protection against this for juries is that their decisions have to be unanimous or, where majority verdicts are accepted, they have to be a super-majority - usually 10 from 12. However, the decision of the jury is typically not subject to review and they are usually prohibited from discussing their reasons: what happens in the jury room stays in the jury room. There are arguments both for and against why this is a good thing. However, in most jurisdictions, if there is clear evidence of jury misconduct (like jurors conducting a seance), a mistrial can be declared and we all start again. Similarly, if the judge reaches the opinion that the prosecution or plaintiffs has not provided enough evidence such that no reasonable jury could find that they have met their burden of proof, they can enter a directed verdict. Jurors who are corrupt or otherwise engage in criminal conduct can be prosecuted. Jurors who are just idiots are just idiots. | It happens all of the time, even though it is mildly improper. Usually, the lawyer can get away with it until the judge sternly warns the lawyer not to try it again, in which case the lawyer risks being held in contempt of court. This is riskier for a prosecutor (who risks this conduct causing a conviction to be overturned on appeal resulting in a new trial), than for a criminal defense attorney. This is because an acquittal, if obtained by these methods, is still not subject to appeal. Indeed, for a criminal defense attorney, even if it results in a mistrial followed by a new trial (which can be allowed if the mistrial is caused by the conduct of the defense), the mistrial will often count as a win if the trial was going badly on the merits. | In the US, if a person enters a guilty plea, a judge may proceed to convict and sentence the accused without any form of trial. In the case of minor offenses with possible penalties of less than six months in jail, there is no US constitutional right to a jury trial. and the accused may be convicted and sentenced after a bench trial with no jury. In the case of infractions that are not criminal, such as many traffic offenses, a judge or magistrate may make a judgment and impose a penalty after a brief and often informal hearing. In some non-US jurisdictions, there is no right to a jury trial even in serious cases. In most such jurisdictions some form of due process and some hearing or trial is required for conviction. However, in various authoritarian regimes, people may be "convicted" of "crimes" without anything like a trial before an independent tribunal. In short, this depends on the nature of the case, and the laws of the jurisdiction involved. | The "why" is pretty simple: the duty of the court is the ensure compliance with the law and uphold the rule of law. A statement to the contrary would undermine that obligation and would undermine a juror's oath to rule consistent with the law. But, out of institutional considerations, any rule that would make jury nullification impossible would also undermine other aspects of the jury trial that are designed to make a jury's determination of the facts of a case in a manner consistent with the law independently. And the oath of jury members to uphold the law is seen as adequate to secure the goal that juries uphold the law. One of the main points of a jury as an institution is to make random members of the general public who will never assemble together again and whose reasons aren't disclosed, rather than an identifiable individual who will continue to serve for decades and is identified with the government responsible for unpopular resolutions of particular criminal cases. If a judge could inquire about the reasons for a jury decision and punish them for making a decision for the wrong reasons, this appearance of independence and transfer of responsibility would be defeated. Another purpose of a jury trial system is to democratize the courts and to make a collective decision of the people at large look like one. But, even rare instances of jurors being disciplined for rendering a verdict in a manner that a judge grilled the jurors upon and found wanting would be problematic with respect to the cause of getting jurors (who already readily evade service) to serve. Therefore, continuing to keep in place the practices with respect to appellate review and the privacy of jury deliberations that makes jury nullification possible in fact, while not acknowledging this "loophole" in the system, is viewed as a suitable compromise. This isn't a breach of a human right to a fair trial because jury nullification is an extra-legal benefit to a criminal defendant to which they have not entitlement for the trial to be fair, and because governments don't have human rights. A jury nullification is in the same moral and human rights territory as an executive branch pardon. It can provide a safety valve that, because of the persons who are exercising it, we believe to be fairly safe from undue abuse, even though it does not implicate legal rights strictly construed. | See jury-nullification. I'm not a legal historian, so I can't say for sure what the laws on jury acquittals were at that time in that jurisdiction. However, when a jury has final discretion to acquit a defendant of a crime that's it: They can effectively ignore laws if they want to acquit someone. Such acquittals do not set a precedent or have any bearing outside of the trial in which they issue their verdict. | Carl may not do this, as he would be prohibited from making this argument at trial. At trial, evidence must be relevant, meaning that it makes a fact of consequence more or less likely to be true. Because the trial is meant to determine whether Carl is or is not guilty, his promises of future philanthropy have no bearing on the matter. And even if they somehow did, Carl still would not be able to tell the jury about them because they would be blocked under Rule 403, which excludes evidence because its probative value is substantially outweighed by its risk of biasing or confusing the jury. If Carl attempts to make these statements anyway, he risks a mistrial, which means he has to start over with with a new jury. In some jurisdictions, Carl may, however, be permitted to make this argument during the sentencing phase, where the court can properly consider the societal effects of whatever punishment it imposes. At this point, though, it's obviously a little late for Carl, as it presumes he has been convicted. | There is no answer to the question, as presented. The criminal law differs in various respects in England, Scotland and Northern Ireland: one cannot speak of 'UK law', because criminal procedure is really very different in the three separate jurisdictions. In England and Wales, the rules of criminal procedure are what govern the issue raised in the question, rather than the substantive laws relating to the various charges which might be brought; and while the substantive laws in England and Scotland are often fairly similar, the procedures are usually very dissimilar. In a trial at the Old Bailey, in London, a Jury has no role in the criminal procedure: once empanelled it performs its usual function of deciding the facts of the case, based upon the evidence presented, but it has no role in determining what charges are preferred against the accused (this is decided by a different court at a much earlier procedural stage), and the jury has no power to alter the charges on the indictment. Only the prosecution can decide what charges are made against an accused person. And if an amendment to the indictment is thought to be appropriate, only the prosecuting barrister can make such a change. If the case has come-on for trial, the permission of the Judge must usually be obtained to any alteration in the charges. The Judge might object to an attempt to add a charge carrying a more severe penalty at a late stage in the proceedings (as the case may of course have already taken many months to reach the Old Bailey). He will often be more accommodating to an application to reduce the charges, to a lesser offence, particularly if accompanied by an undertaking not to proceed on a more serious charge - e.g. due to a lack of evidence supporting it. Where several charges are brought in the alternative, then the jury has a function, since it can then convict of a lesser charge if the evidence on a more serious one does not satisfy it. But it cannot ask for the charges to be altered: the jury represents the layman, and jurymen are inevitably not legally qualified (at one time, being legally qualified was an automatic disqualification from serving on a jury). So the jury is assumed to be incapable of understanding the fine distinctions between different offences, and has no role whatsoever in deciding which offences shall be included on the indictment. Even the Barrister representing the accused has no role in determining which charges his client will face: that is purely a function of the Crown Prosecutor's office, and once the trial has come-on at the Bailey only the prosecuting Barrister and the Judge truly have a role in making any necessary amendments. The function of defending Counsel is to strike a plea-bargain, if he can, and where the opportunity arises: which is to say, if he can persuade his client to plead guilty to a minor charge (whether or not on the indictment), and can also persuade the prosecutor not to proceed on the more serious charge(s) on the indictment. A Judge will not usually object to a legally-represented defendant applying, by consent (i.e. through the prosecutor), to amend the indictment in order to enter a plea of guilty. He might refuse, if the accused has no legal representation, but not otherwise. The short answer, therefore, is that in England and Wales a defendant cannot be convicted on a charge that is not listed on the indictment, but a jury can convict of any charge on the indictment if the judge asks the jury to retire and consider a verdict - but the case may not get so far as that, if a plea-bargain is struck. There are rare occasions where a judge might withdraw a charge, if he desires, by directing the jury to acquit on that particular charge, but this only occurs if he considers that any conviction on that charge would be positively unsafe in all the circumstances of the case. | The US legal system deals with this by punishing you for the crimes of which you are convicted. That is, those where the evidence (whatever it is) convinces a jury that you are guilty beyond reasonable doubt. If there is insufficient evidence, for whatever reason then you would not be convicted. The prosecution can, subject to admissibility, put forward whatever evidence they like in order to convince the jury. This can include a pile of ash that they allege contained convincing and unambiguous evidence of guilt. Of course, if that's all they've got the prosecution would probably be censured by the judge for wasting everybody's time and money, more likely, a prosecutor wouldn't lay charges in the first place. As to punishment for an evidence tampering conviction: you have been convicted of evidence tampering, not drug production so you will be punished for evidence tampering, not drug production. The legislature sets different punishments for these for a reason, possibly a reason known only to them but a reason nevertheless. The judge has discretion to apply anything between the minimum and maximum sentence prescribed. A conviction for evidence tampering in a drug case rather than, say, a jaywalking case, is likely to get a more severe sentence all else being equal. |
Can a railroad bar a property owner from access to their property? A 90+ acre tract of land has CSX railroad on it. The property owner in this rural area hunts on the property. In fact the back half of the tract of land is bounded on three sides by the rail main line and two secondary lines. There is literally no way other than helicopter for the man to access this portion of his land without crossing a rail right of way. (130 ft) Note the triangle shaped portion surrounded by tracks Recently while hunting he crossed the Rail road tracks and right of way to hunt on the back half of his land. The game warden observed him walking across the tracks and cited him for trespassing on railroad property. According to the South Carolina law he is charged with breaking no one can be on the rail right of way except those with authority like rail workers, fire and emergency personnel and law enforcement. CSX rail police came to the court proceeding to vouch that this was a case of trespassing. Can a law that effectively bars a property owner from access to their property be enforced or does the constitution protect the property owner’s rights and thus make them exempt from such a state law? Edit: on the interactive tax map touching within the orange lines marking rr right of way brings up “no information available” touching elsewhere brings up the owners name info and market value. | It would seem that the law involved is probably Section 58-17-4096 of the South Carolina Code of Laws, Title 58. This is part of the General Railroad Law of SC (GRL), and apparently was last revised in 1996. Section 58-17-4096 reads, in full: (A) It is unlawful, without proper authority, for a person to trespass upon railroad tracks. (B) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days. Note that the section does not specifically define "proper authority" nor "trespass" (nor do the definition sections at the start of the GRL), so those terms should have their ordinary meanings. It might be argued that the landowner has "proper authority". It is interstice to contrast this with the previous section, SC Code § 58-17-4095 (2012) which gives a rather detailed list of who is authorized to "park or operate a vehicle on a railroad right-of-way". Persons authorized are: an employee of the railroad ... in the performance of his duties [one who] has authority from the railroad [one who] is using a public or private roadway which crosses over the railroad ... [one who] is acting in an official capacity with the military, police force, a fire fighting organization, or some similar public authority ... which crosses over the railroad ... [one who] is an employee of a public utility or telecommunications carrier, or of the forestry industry ... The question asks: Can a law that effectively bars a property owner from access to their property be enforced or does the constitution protect the property owner’s rights and thus make them exempt from such a state law? There is no such absolute right of access by the owner specified in the US Federal Constitution. As the comments by Nate Eldredge suggest, the Takings Clause of the Fifth Amendment might be relevant, but that would have (or should have) been applied when the railroad lines were put in, and if proper compensation was paid at that tiem to the then landowner, future ownership would include the restrictions then imposed. Any easement should be recorded on the actual deed to the property, but a tract map would not normally show it. Moreover, it is possible that the railroad was put in before the fourteenth amendment made the takings clause applicable to the states, or before this incorporation was recognized in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897). Even so, an easement might have been obtained by private agreement between the railroad and the owner of the land at that time. In the "Interactive Constitution" article "The Fifth Amendment Takings Clause" by Richard A. Epstein and Eduardo M. Peñalver (both noted professors of law) it is said that: ... The Clause also applies, not only to the confiscation of all existing interests in any individual piece of property, but to the confiscation of certain lesser interests in property. Under Anglo-American law, these would include recognized interests like easements (such as rights of way), leases, mortgages, life estates, and remainders. ... ... Any time some private party could seek a court order stopping another private party from engaging in harmful activities, the government can impose the same limitations through fines and court orders without a duty to compensate. A law or regulation authorized by law may bar access by a landowner to a part of a property in proper cases. For example if the land is environmentally sensitive, or if there is a dangerous condition, such as old ordnance on a former proving ground or battlefield. Such a law would probably be a partial taking, and require appropriate compensation, depending on the exact circumstances The answer by Greendrake which says: the only theoretically possible case of trespassing here is that of trespass to chattels, but that is a tort, not a crime. There can be no charges, only claims. is incorrect because of Section 58-17-4096, which specifically makes such trespass a misdemeanor punishable by fine or imprisonment. However, in Faulkenberry v. Norfolk Southern(Opinion No. 25454, Opinion Filed April 29, 2002) the South Carolina Supreme Court found that a railroad claiming under an 1845 charter which authorized it to purchase land, and force such purchases, had acquired only an easement, not a title in fee simple. The opinion by Justice Waller refers to and quotes the SC 1845 Act No. 2953 which granted powers of acquisition to the railroad, and mentions other similar acts of the same era granting such powers to other railroads. The opinion also cites the SC 1868 Act No. 43, 7, which explicitly limits such railroad tenures. The Justice wrote: The circuit court, pursuant to numerous cases of this Court, held Railroad acquired only an easement to use the tracks, rather than a fee simple determinable, and that, in any event, Faulkenberry was entitled to an easement by necessity. ... In Ragsdale v. Southern Ry. Co., 60 S.C. 381, 38 S.E. 609 (1901), the Court construed a Charter to the Spartanburg and Union Railroad which had provisions identical to those of sections 9, 10 and 11 above. The Court noted that, under sections 9 and 10, the Legislature had specifically provided that land taken by and paid for by the railroad would vest in fee simple. However, the Court noted that no such words were used in section 11, which provided only that the company shall have "good right and title. . . so long as the same may be used only for the purpose of said road." The Ragsdale Court, after citing Justice Wardlaw's dissent in Lewis, concluded: [t]he legislature wisely made a distinction in the tenure by which the railroad company held the land when it was under one or the other of said sections. Having reached the conclusion that the rights of the parties are different under the foregoing sections, . . . [o]ur interpretation of the foregoing sections is that the railroad company acquired only a right of way over the land described in the complaint. ... We adhere to the wealth of authority in this state and hold the 1845 Charter created only an easement in Railroad, such that Faulkenberry is entitled to use the disputed crossing. We note, however, that although Faulkenberry may cross the railroad tracks, he may not do anything which would unreasonably interfere with Railroad's use of its easement. Marion County Lumber Co. v. Tilghman Lumber Co., 75 S.C. 220, 55 S.E. 337 (1906) (owner of the dominant estate cannot materially interfere with use and enjoyment of servient estate's easement; owners must be held during continuance of easement to have abandoned every use of the land except such as might be made consistent with the reasonable enjoyment of the easement). See also Brown v. Gaskins, 284 S.C. 30, 33, 324 S.E.2d 639, 640 (Ct.App.1984). ( A footnote to the opinion mentions that: The circuit court ruled that, in any event, Faulkenberry was entitled to an easement by necessity to cross the railroad tracks. In light of our holding, we need not address this alternate ruling. Note that in the Faulkenberry case there was apparently a road crossing the tracks, although not an authorized crossing. The doctrine of an easement by necessity might apply in the case described in the question. Detailed legal advice would be needed to determine this, and quite probably a court case. | Summary: More information needed, but I have listed out some legal claims available to homeowners when they have similar concerns. There are several issues here which need elaboration before deciding if you can take legal action. The first is: "the destroyed some vegetation on my street." If the by "my street" you mean that the street is part of your property, you may sue the builders for trespass and/or damage to property. If the street isn't your property, but the vegetation is your property, you may sue them for destruction of your property. What you are probably looking for, however, is a prohibitive injunction. This is a court order forcing the builders to avoid doing something, e.g. An order forcing them to avoid using roads adjacent to your property. To obtain such an injunction you will have to prove that what they are doing is violating your rights, is somehow harmful to you or your property, or inevitably will do either of those things. One way to demonstrate this is if you can show that you have a claim under nuisance, or damage to property, or trespass. On the description you have given us, there isn't enough to say your rights are being violated, or that your property has come to harm or will come to harm because of their actions. You should also be aware of claims under nuisance. Nuisance is when someone is doing something that prevents you from "peaceful enjoyment of your land". It appears from your question that the actions of these builders have, in your mind, done this. However there are several aspects that have to be satisfied for this to amount to private nuisance: What the builder are doing must be a "continuing state of affairs." They may have annoyed you by trampling over vegetation, but if this is a "one-off" event, it is unlikely to amount to nuisance. A reasonable person must find the conduct to interfere with the enjoyment of their land. That is to say: it isn't enough that their conduct is making you unable to enjoy your land peacefully, you have to show that any reasonable person in the same situation would find this conduct unacceptable. Finally, the context of your neighbourhood matters: if the behaviour is something expected in a residential area, then it will not amount to a nuisance. For example, heavy drilling in an industrial location will not amount to a nuisance, while the same may do so in a normally quiet neighbourhood. | 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. | Easements are normally rights granted by the property owner to others. When a person buys property with existing easements, the purchase is normally subject to those easements. That is, the new purchaser agrees to grant the same rights to the easement holders that they previously had. The property owner can always grant additional easements for whatever purpose and on whatever terms the owner chooses. If the problem is that the easement does not cover what you or the easement holder wants it to cover, you can grant an additional easement, free or at a price, if the other party agrees. If the problem is that the easements are too large (either in area or in rights granted), the other party can surrender some of the easement, but cannot be compelled to do so, and may not be willing to do so, or may demand payment. The property owner does not normally hold an easement, the owner holds all the rights except what is granted by easement to others. It would be a very good idea to have any changes in any easement drafted by a local lawyer skilled in property law in the relevant jurisdiction. Easements are normally permanent, and affect the nature and value of the property from then on, including what rights the owner can later sell or leave by will. If not carefully worded, the undesired effects may be significant, and hard or impossible to undo. | You were trespassing The community college is a public institution but they can decide what part of their land you can walk on and in what circumstances. Just like the military is a public institution but they don’t let you walk across their shooting ranges. To be clear, in the absence of clear “no dogs allowed” signage, you were not trespassing until you were told about the policy. At that point, you were legally obliged to remove yourself (or more precisely, your dog) from the campus as soon as possible. When you refused to do so, you became a trespasser. It’s trivially easy to find out who you are. One photograph, one reverse image search they’ll know everything about you right down to your shoe size. Even if you don’t use social media, I’m sure some of your family and friends do. In most US states, trespass is a misdemeanour and also in most states members of the public can arrest someone who is committing a misdemeanour in their presence. They can use reasonable force to do so and can hold the arrestee until they can transfer them to the custody of a law enforcement officer. Admittedly, this seems unlikely but it is possible. If you have caused damage, you can be sued. It seems that your discussion with the college staff was somewhat protected so the loss of productivity of those staff members is a loss that the college suffered and that they could sue you for. Again, not likely but possible. Alternatively, they could just report you to the police who may or may not bring charges. Note: this assumes the dog is a pet. If it’s a disability assistance animal, it can’t be excluded. See: Are sidewalks on a university public or private property? Can a local government charge a fee to enter a public downtown area during an event? Trespassing or Public Property? Is a mall considered a "public place" for copyright purposes? | Almost certainly, there is no such right. It's illegal under 18 USC 831 to possess "nuclear material" without specific authorization. 18 USC 832 forbids the possession of a "radiological weapon". If there is intent to use the device to cause death, serious bodily injury, or damage to property or the environment, that's also a violation of 18 USC 2332i. I don't think these laws have been explicitly tested against the Second Amendment, but related cases suggest they would hold up (if the challenge wasn't simply dismissed as frivolous). The Second Amendment doesn't grant a blanket right to own weapons. Federal law, 18 USC 922 (o) makes it unlawful to own a "machinegun" (as defined in the statute), and in the case of Hollis v. Lynch, the Fifth Circuit held that this law was constitutional, because, as they said, the Second Amendment only protects weapons that are in "common use [...] for lawful purposes like self-defense." This case doesn't seem to have been appealed further, but the reasoning cited by the Fifth Circuit comes from the Supreme Court's opinion in D.C. v. Heller. If machineguns aren't in "common use", and therefore not protected, surely the same would apply to nuclear weapons. | In this answer, I address title question: "If someone catches a Pokemon that is on my property, is that theft?"1 The Pokémon is an entry in a database, presented by Nintendo to users in their mobile app and can be included in a user's collections after that user completes some in-game actions. It isn't your property. It isn't even their (the users') property. Further, a Pokémon appears for all users can be captured again and again by multiple users until it disappears for all users. One user capturing a Pokémon doesn't make it unavailable for others. The Pokémon doesn't "become subject to" any property rights of the owner of the real property that it happens to be virtually overlaid on. Said another way, it doesn't "incur" any of their property rights. Capturing it in-game is not theft. 1. The question in the question body is "does [a Pokémon] incur any kind of property right for the property owner". Incur means "to become subject to". That is different than the broader verb "implicate". This question does not ask (and this answer doesn't answer) whether the Pokémon can implicate the property owner's property rights (e.g. via attractive nuisance, trespass, etc.). Some of that is addressed at a separate question. | Usually this answer would be provided by a local government land use ordinance, and not by the constitution, national law, state law or common law caselaw rules. It would vary considerably from place to place within India. You would need to review your local land use ordinances to find the answer. |
How many people can legally contest a given mandate at the same time in the United States? How many people can legally contest a given mandate at the same time in the United States? A lot of companies intend to legally contest the vaccine mandate that was announced by Biden. I am wondering if judges are allowed to reject some legal contests if too many individuals are contesting it. Sources "State AG Promises Court Challenge of Federal Vaccine Mandate" from US News "A vaccine law expert explains the 3 most likely legal challenges Biden's federal vaccine mandate might face" from Insider "Current constitutional issues related to vaccine mandates" from Constitution Daily "Biden is requiring the vast majority of federal workers to get vaccinated or face disciplinary measures" from the NY Times | As many parties as have standing. The First Amendment protects the right to petition for redress of grievances, so any limitation on that right would be highly disfavored. When there's a rush of cases like this, though, there are a few option for dealing with them. For instance, a plaintiff may seek class certification, permitting him to stand in for similarly situated parties so they don't need to litigate themselves, or a court may consolidate the cases if they are sufficiently similar. | In an extreme hypothetical situation: at a meeting where there is a quorum present, there are 50 members qualified to vote in attendance. An issue comes up for a vote, and 45 people abstain, 3 vote yes, 2 vote no. Would this pass 3 to 2, or is there some overriding part of "majority present and voting" that I am just not understanding? The measure would pass 3-2. The words mean what they say. Quorum requirements prevent the small number of people voting from being unfair. | The true answer is this is fundamentally unclear and ratification would definitely set up for a Supreme Court showdown. The Supreme Court would in my opinion need to resolve 3 issues: Are Congressionally imposed deadlines in resolutions proposing an amendment to the States for ratification binding? Does a state withdrawal of its ratification of an amendment annul its ratification of the amendment? Who decides when an amendment is ratified? For the first question this is perhaps the most unresolved question. Clearly if the deadline is imposed in the text of the amendment it is binding. For example, see the text of the 18th amendment, Section 3. What is not clear is what if any binding effect a deadline in the text of the resolution proposing an amendment has as to the validity of the proposed amendment. Article V makes no provision on such deadlines. In fact the most recent amendment ratified was submitted for ratification on September 25, 1789, but ratified May 5, 1992. In this instance the Archivist of the United States declared the amendment ratified, but Congress also acted to do so and several members scolded the Archivist for doing so before Congress acted. However, there was no resolution of who had to actually approve the ratification. For the second question there is absolutely no answer to this question except Coleman v. Miller which suggests this is a political question. This essentially means that the question should be resolved by Congress, not the courts. Lastly, for the third question see also my response to the first question. If Congress is indeed the ratifier, what happens if one Congress decides the amendment was not ratified, but a future one decides it was? Honestly, ratification of the ERA would open a whole can of worms and make it difficult to really resolve this issue. Probably the most direct method to force the Supreme Court to rule on this issue would be someone challenging their requirements to register with the Selective Service System. | No Once a state has accused a person and tried that person for a particular act or set of acts, the state can't later hold a different trial for the same act or acts. That is the Double Jeopardy rule (or the basics of it at least). Some limited exceptions: If a person is convicted and appeals, and the conviction is overturned, the appellate court may order a new trial. *If there is a mistrial, such as a hung jury (jury cannot agree) then there can be a new trial. If an act is both a state and a Federal crime (in the US) then both can have separate trials, and possibly two convictions. If the accused bribes the judge or jury, that trial will not count, and there may be a new trial. If an act is a crime in two different countries, each can have its own trial (but often they don't). If it is later discovered that the accused committed a quite different act than the one s/he was tried for, a new trial for that act may be possible. But otherwise, whether the accused is acquitted or convicted, only one trial for a given alleged crime. The state cannot later change its mind on what to charge the accused with for the act. | A good starting point would be the SCOTUS opinion, or everything on SCOTUSblog, especially the application for injunctive relief filed on Aug. 30. There is a long sequence of petitions and orders which ask the courts either to issue an injunction preventing the law from taking force, or to vacate an administrative stay of proceedings by the lower court regarding petitioner's challenge. The lower court denied the petitions, therefore petitioners turn to SCOTUS to get an injunction against the law. Then you can turn to the SCOTUS opinion to see what the reasons were, for and against the petition. The majority position is that an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. The majority concludes that The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. Immediately after this the court comments that federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. However, it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention The law states that 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 and the named respondents (government workers of various sorts) all appear to be precluded from filing an action – thus an injunction against the judge is superfluous since he cannot file a lawsuit anyhow. It is also unclear whether SCOTUS can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. When SCOTUS say "it is unclear" in this context, they mean that petitions did not adequately demonstrate that the court can in fact issue such an injunction. It's not that SCOTUS cannot decide such matters after extensive consideration of the facts / arguments and discussion, it's that the standards for an emergency action require something that the court found lacking in the petition: we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. | That remains to be determined. This article (100 Tex. L. Rev. 56 (2021)) discusses the possibility. To start, the Constitution does not directly say that a sitting president cannot be prosecuted. The lack of an express presidential immunity and the fact that an attempt by Madison to create such an immunity is an indication of "original intent". The view that an incumbent president cannot be indicted, prosecuted, convicted or punished is a policy stance set forth by the Dept. of justice, but is not constitutional law. Alito in Trump v. Vance points to some apparently negative consequences of allowing indictment of a sitting president, but this was in a dissenting opinion. Practical considerations of policy might argue for not prosecuting a sitting president, but the Constitution itself does not expressly forbid it. As we know from numerous SCOTUS rulings, the court is also capable of finding implicit support for a rule in the Constitution. For example theimpeachment provisions do not demand or even hint that impeachment must precede trial and punishment. An argument that prosecution would "incapacitate" the president is met with the fact that there is a provision for replacing an incapacitated POTUS with VPOTUS as acting president. The idea that a trial interferes with a person's ability to do their job (or that they can't adequately participate in their defense if they are doing their job) has not actually prevented ordinary people with jobs from being prosecuted for their crimes. | Federal countries usually define the separation (and sometimes sharing) of legislative competencies in their constitutions. There will also usually be a "default" case for if the competency is not explicitly defined in the constitution. For example, in the United States, the default is to give legislative power to the individual states via the Tenth Amendment. If criminal law is left to the sub-national entities, then the nation can usually still enact a penal code with respect to its competencies (again, the U.S. is a good example). So, I decided to make this a mini-research project by checking the countries Wikipedia lists as federations. I wasn't able to find an explicit statement as to whether there were competing penal codes in most cases, but was able to find in which level of government the constitution placed criminal law. In some cases where there are "competing" penal codes, the constitution specified which level has supremacy, making for less "competition". Without further ado, here's what I've been able to find. Links are either to an appropriate Wikipedia page, or the part of the applicable constitution dividing the legislative competencies. Take these with a grain of salt. Competing penal codes Australia Bosnia and Herzegovina Ethiopia India Iraq Mexico Nigeria Pakistan Sudan United States Single national penal code Austria Brazil Canada Comoros Germany Malaysia Nepal Russia Switzerland Venezuela Unclear Argentina Belgium Micronesia St. Kitts and Nevis Somalia South Sudan United Arab Emirates | It is difficult to keep track of the rapidly changing legal variables, but it would be illegal and unconstitutional for state police to set up an unauthorized stop-and-search checkpoint on the road ("due process" means "following the law"). As a prelude, there would have to be some higher authority that empowers them to do this. You would have to scrutinize the emergency powers legislation of every state to be certain, but no governor has the power to mandate blanket body searches in case of a medical emergency. (Martial law shifts enforcement of the law to the military, but doesn't generally create arbitrary decree-writing powers). The legal foundation of such searching would have to be a new law: then the question is what the law requires that could make on-the-road body searches constitutional. Since the right to be free of unreasonable searches is a fundamental constitutional right, this law would be reviewed under strict scrutiny. Searches "just for fun" will not pass such scrutiny, nor will "because it's an emergency" or "keep the public safe". Having the disease is not and cannot be a crime, so this law would have to be founded on a strict no-travel requirement. That brings the matter within the sphere of the "officer safety" exception in the case of an arrest. I'm not suggesting that an absolute travel ban would be upheld as constitutional in the US, but that is the kind of legal foundation that would be required for state police to force people to be Covid-searched. |
What prevents an employer from mandating vaccination? IANAL: Would said requirement need to be found unconstitutional in order to prevent mandating vaccine in prisons, where prisoners are literally a captive audience? The two stakeholders comprise at least prisoners & guards. What legal hurdles would such a vaccination mandate face? CONTEXT: The headline US prison guards refusing vaccine despite COVID-19 outbreaks indicates: Prison guards are refusing coronavirus vaccines at alarming rates.. UPDATE: September 2021: "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 | One thing that may prevent this is contract law: the employer may not have the power to impose new requirements on employees during the period of the current contract. For prisons that are run by government agencies, there may also be statutory restrictions on what the warden or Bureau of Prisons can compel employees to do without legislative approval (this is a general feature of government employment). There are additional disability and religion-based protections for employees. Apart from such legal considerations, the vaccine is not universally available, which explains why not all employers mandate that employees get vaccinated. It's not clear how prisons, specifically, are relevant: there's no general rule that "because it's a prison, normal law is suspended". | Why do other countries, like America, not allow this? It is the way that U.S. courts have interpreted the constitutional amendment requirement and reflects a policy judgment that letting someone go free now and then is better than frequently forcing someone to be tried more than once. That value judgment flowed from concerns about and fear and skepticism of the British colonial criminal justice system and the Star Chamber in England with which they were familiar. The U.K., Australia, Canada, and New Zealand didn't have an independence revolution in their history to create the same kind of deep distrust of authority, especially in the criminal justice area. The U.S. was founded by terrorists. Few other former British colonies were. Quoting Dale: "As a constitutional protection, legislative change like this is not available in the United States." Is that really true and can someone expand on this? When the courts determine that the constitution requires something it can't be changed with ordinary legislation. Either the constitution needs to be amended to change it (which is very hard), or the courts can change their interpretation (which is unlikely in an area so settled in the law and which is relatively uncontroversial between liberals and conservatives in the U.S.). If it is, this is a big problem in my opinion. The powers that be in the U.S. don't agree. This kind of case is exceedingly rare. And, there are much bigger problems with the system that obscure that one. Also, the dual sovereignty doctrine allows federal prosecutions in some wrongful acquittals that really matter (e.g. for civil rights violations by law enforcement). | Probably not An employee is someone that the employer "suffers or permits to work" - moderators would appear to be caught by this. There are specific exemptions carved out in the public and not-for-profit sectors where they "a) work toward public service, religious or humanitarian objectives; b) not expect or receive compensation for services; and c) not displace any genuine employees." However, they very specifically say “Under the FLSA, employees may not volunteer services to for-profit private sector employers.” So on the face of it, a moderator is an employee and is entitled to minimum wages and conditions for the hours they work. AOL settled a lawsuit in 2009 with their moderators who were suing for wages for an undisclosed sum and so the case did not set a precedent. This article suggests that "for-profit companies don’t have volunteers; they have lawsuits waiting to happen" and uses examines the situation at Reddit (which could equally apply here). Facebook employs moderators so the precedent exists that this is work that employees do. When the lawsuit happens, we'll find out. It will turn on the particular facts - some types of mods for some companies may be employees while others may not. | The legal question is whether there is a religion-specific exception to mandatory vaccination laws, and if so where does it come from? These are state-specific laws, so one would have to look at a specific state to answer the question. In Washington, this is implemented in the exemptions section, RCW 28A.210.090 (1)(b) A written certification signed by any parent or legal guardian of the child or any adult in loco parentis to the child that the religious beliefs of the signator are contrary to the required immunization measures; or (c) A written certification signed by any parent or legal guardian of the child or any adult in loco parentis to the child that the signator has either a philosophical or personal objection to the immunization of the child.... (2)(c) Any parent or legal guardian of the child or any adult in loco parentis to the child who exempts the child due to religious beliefs pursuant to subsection (1)(b) of this section is not required to have the form provided for in (a) of this subsection signed by a health care practitioner if the parent or legal guardian demonstrates membership in a religious body or a church in which the religious beliefs or teachings of the church preclude a health care practitioner from providing medical treatment to the child. In other words, you have to just say you object for one of these reasons, or you have to show that you are a member of a sect that is known to object. The law does not, however, provide a central registry of churches whose teachings preclude immunization, not is there any investigation of the claim allowed under the law. In Nevada, NRS 392.437 does not expressly include the personal-or-philosophical exception contained in Washington law: A public school shall not refuse to enroll a child as a pupil because the child has not been immunized pursuant to NRS 392.435 if the parents or guardian of the child has submitted to the board of trustees of the school district or the governing body of a charter school in which the child has been accepted for enrollment a written statement indicating that their religious belief prohibits immunization of such child. However, there is, likewise, no further vetting of the claim for exemption where the state determines if the religion claim is real. Nevertheless, under a Nevada-type law, one would have to make the claim that the belief was religious in nature, in order to claim the Free-Exercise exemption. California has no such exemptions – they eliminated an existing exemption – and predictable they were sued (Brown v. Smith). The state district court rejected a free exercise argument, though one based on the California constitution (the court however cited various free exercise rulings in the US). That court points to case law saying that "the state’s wish to prevent the spread of communicable diseases clearly constitutes a compelling interest", suggesting that such a law might pass strict scrutiny (the First Amendment has limited exceptions). The ultimate legal source of such exceptions is the First Amendment, specifically the "Free Exercise Clause". In a nutshell, that says that the government cannot prohibit a person from exercising their religious beliefs. If that means you must pray at noon, you must be allowed to pray at noon; if that means that you cannot eat lettuce, you cannot be forced to eat lettuce. Because "Congress shall make no law respecting an establishment of religion", the government also may not get into the business of approving or disapproving religions. The courts have indicated that a personal or subjective belief does not enjoy Free Exercise protection. In Wisconsin v. Yoder 406 U.S. 205 the court commented that Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal, rather than religious, and such belief does not rise to the demands of the Religion Clauses. Somewhat contradictorily, in US v. Seeger, the court held that "The test of religious belief within the meaning of the exemption in § 6(j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption", but "The exemption does not cover those who oppose war from a merely personal moral code, nor those who decide that war is wrong on the basis of essentially political, sociological or economic considerations, rather than religious belief", and "There is no issue here of atheistic beliefs, and, accordingly, the decision does not deal with that question" (that is, the court did not rule on atheistic religious beliefs). Under the premise that one claims a religious exemption, there is no further investigation as to how compelling the claim is. On the other hand, if one makes a claim that merely looks like slapping the religion label on a personal objection, one might well run afoul of the state law, and then the courts might be forced to judge that very delicate question. This could arise, for instance, in the context of the Islamic distinction between haram and makruh acts, where the former are absolutely forbidden and the latter are "recommended against". | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | In addition to the above, mandatory quarantine (self-isolate) means you must: go directly to your place of quarantine, without stopping anywhere, and stay there for 14 days do not go to school, work or other public areas and community settings monitor your health for symptoms of COVID-19 arrange to have someone pick up essentials like groceries or medication for you Emphasis mine. Coronavirus disease (COVID-19): Travel restrictions and exemptions | California Penal Code 647f states that being intoxicated in public is prohibited. When the police arrived, they were confronted with probable cause for an arrest. They (presumably) became aware of the matter because the doctor called the police, since she believe that you would drive drunk. (We can inquire into whether that was a reasonable belief, but it doesn't matter, what matters is that she had the belief and acted on it). Now the question is whether the doctor acting on the belief (making the call) was legal. A negative answer does not affect the legality of the arrest. There is also a law imposing on medical professionals a duty to report, which is fairly wordy, but does not seem to directly require reporting the fact that a person is publicly intoxicated. However, attending circumstances could have suggested one of the triggering causes for mandatory reporting (wounds, for example). Again, it does not matter (to a point) if, in the light of close scrutiny, the doctor's conclusions were mistaken. When doctors are required to report facts to the police, reasonable over-reporting is not penalized. There is also no law against calling 911 to report a potential DUI (the usual public-campaign focus is on those actually driving). So calling the police under the circumstances falls between "allowed" and "required". The HIPAA privacy rule could be relevant because that theoretically could block the doctor from making the call. (Note that the doctor, and not the patient, is bound by the confidentiality requirements). §160.203 allows exceptions to the confidentiality requirement if "necessary... For purposes of serving a compelling need related to public health, safety, or welfare", so an exception may have been granted. If this was done within the scope of a mandatory reporting law, it is legal to disclose PHI; under §164.512 it is allowed, "to prevent or lessen a serious and imminent threat to the health or safety of a person or the public". A confidentiality agreement would not increase your chances of being arrested. If the doctor's confidentiality statement were less restrictive than HIPAA, HIPAA prevails (the law trumps contract terms). If it is the same as HIPAA, it has no effect (and simply states what HIPAA says – the normal case). If the agreement were more restrictive, it is possible that the doctor calling the police would be a breach of contract, unless the call was required by law. You would have to see what in the agreement would have prohibited calling the police. But that would not affect the validity of the arrest. To re-phrase the matter: the arrest was because you were found to be intoxicated in public. The police were there and could judge your state (probable cause). They were there by permission of the property owner, so the arrest was not unlawful for lack of a warrant. That is as far as one can go in searching for an illegality to the arrest itself. One might go further and ask whether the doctor has committed an actionable wrong by calling the police with her suspicions. This could go either way: it really depends on the full set of details, regarding your condition. If the doctor suspected that your actions fell under one of the mandatory reporting categories, she had to report, and otherwise it is not prohibited under HIPAA. If a person is intoxicated and answers the question "Would you normally proceed to drive home in this state?" in the affirmative, then it is a reasonable inference that the person will do so. An answer "No, absolutely not", on the other hand would work against the "public danger" inference: that has no effect on the arrest, but could have an effect in a suit against the doctor (violation of the privacy rule). In such a suit, the doctor's defense would presumably be that despite the answer, she still had a reasonable belief that you were a public danger. Then the matter would reduce to what other facts she knew of that would support a public danger conclusion. | Article 640 of the Italian Penal Code under the heading "Crimes against property by fraud" begins (via Google Translate): Anyone who, by artifice or deceit, by misleading someone, procures an unfair profit to himself... And the article (cited by the OP in a comment) says the suspect... ...worked in the health sector and had been suspended from his job because he had refused to be vaccinated against COVID-19. The jab is mandatory for all health workers. So, it seems the allegation is that he intended to "profit" by gaining a COVID-19 vaccine certificate and therefore unjust employment after attempting to use the silicone patch to deceive the health worker. Edit following @jkej's comment observing that the alleged unfair profit was never actually procured. The more likely charge - depending on the actual evidence - would seem to fall under Article 56 which begins under the heading Crime Attempted (again via Google Translate): Whoever carries out suitable acts, directed in an unequivocal way to commit a crime, is liable for an attempted crime, if the action is not carried out or the event does not occur. |
May an F-2 visa holder marry inside the US with a US citizen/green card holder without ending the previous marriage? If someone with F-2 visa status comes to the US, then wants to marry with a US citizen/green card holder, should he/she ends/gets divorce of his/her previous wife/husband even if their marriage happened outside of the US and they both aren't US citizens/green card holders? | Only the currently unmarried may lawfully marry in the US US laws generally prohibit a marriage if either person is currently in a valid marriage to a third person, whether in the US or anywhere else. If a current marriage is valid it must be ended by divorce or in some other lawful way before a valid US marriage can occur. Marrying in the US while already married to another person is the crime of bigamy, and will also render the later marriage invalid and void. All this is true regardless of immigration status, it would be true for citizens, green-card holders, holders of any visa type, and undocumented people. No one may contract a marriage while currently married to someone else. I believe this is true in all US states and territories. Committing the crime of bigamy could possibly have negative impact on the immigration status of a non-citizen, in addition to potential criminal penalties. I am not sure why you would think it might be OK to proceed with such a marriage without first obtaining a divorce, annulment, or other lawful termination of any existing marriage, inside or outside the US, but it is not. | Would such a person be considered a "natural born citizen," for the purpose of qualifying for the presidency, from October 25th 1994? In other words, after having lived in the US for at least 14 years, could such a person run for the office of the president or the vice president? This is an unresolved issue. Some scholars believe that to be a "natural born citizen" you have to be a citizen on the day that you are born. Other scholars believe that a "natural born citizen" is someone who gains citizenship by a means other than naturalization. No binding precedents resolve the issue because the phrase "natural born citizen" is used nowhere else in the law besides qualification to be the President of the United States, and the issue can't be resolved until someone is purportedly elected because there isn't an actual case or controversy until then, and there haven't been an examples that have come up that have tested this issue. My personal guess is that the courts would make every effort to find that someone who has been elected by the citizens of the United States as President, despite the inevitable debate by the public over someone's qualification as a "natural born citizen" during the campaign, is eligible to hold that position, because to do otherwise would seem massively undemocratic. So, I suspect that retroactive citizenship at birth would be held by the courts to make someone a "natural born citizen" and eligible to serve as President. Then again, I could see this issue being resolved by the courts on basically partisan lines too with conservative judges tending to hold that a liberal candidate was ineligible for office, and liberal judges making the opposite conclusions about a liberal candidate. This is one fair reading of what happened in the case of Bush v. Gore. Would the answer depend on whether the person had been naturalized before 1994? The citizenship by naturalization is irrelevant to whether you have another grounds for claiming citizenship that was present at birth or did not arise from naturalization. On October 25th, 1994, the naturalization became redundant. | The modern rule is that individuals in a married couple are almost never considered a single person (ownership of real property in a tenancy by entireties in a few states mostly in the Northeast, is a narrow and rare exception). Historically, considering a married man and woman to be a single person (a legal doctrine called coverture) was common place in the common law, but almost all such rules have been superseded. Lots of the relevant law and legal history is considered in the answer to this question at Law.SE. | No, it does not follow. Mostly, because that's not what is actually happening with sanctuary cities. First, there is no actual definition of a sanctuary city, neither in the law or, more specifically, in immigration policy. Here's what happens in sanctuary cities. Section 1373(a) of Title 8 of US Code states that local and state governments are prohibited from enacting laws or policies limiting the exchange of info re: citizenship w/Department of Homeland Security. So if you work for the local Department of Human Services, and someone shows up to sign up for public benefits and you find out they are undocumented immigrants, if you wanted to report that person to ICE, no government could forbid you from doing so. Conversely, the federal government can't force you to report that undocumented immigrant. Likewise, the detainers that ICE issues, which are requests to the local government to inform them when a given undocumented immigrant is to be released, are not mandatory. If that action is taken, the jail can hold the undocumented immigrant up to 48 hours for ICE to act. If ICE doesn't act, the person must be let go. A report by the DOJ's inspector general looked at a random sampling of cities that receive federal funding and found that each of them had certain policies in place that limited cooperation with ICE and ICE's detainers. However, the same inspector general found that Section 1373 is not applicable to detainers. In sum, the IG determined that, although there were no explicit policies forbidding state or local employees from cooperating with ICE, non-compliance with detainers in some jurisdictions at the very least were "inconsistent with ... the intent of Section 1373." Legal arguments abound. One argument is that the administration is interpreting Section 1373 too broadly in order to include both types of sanctuary cities. Another is that Section 1373 violates the anti-comandeering doctrine of the 10th Amendment. I guess the real answer is, "stay tuned," but for now, no it does not follow that it is a violation of federal law for a government official to declare a state/city to be a "sanctuary city." | Any municipality is fine In addition, they could get married in a different province and it would be a valid marriage in Ontario. They could also get married in a different country with which Canada has agreed to honour their marriages (i.e. most of them) unless they offend Canadian law (e.g. bigamy, child marriage etc.) | When can I re-apply for the citizenship, there is no date mentioned on the letter received. You can reapply as soon as you meet the criteria. If you don't move again to another state or USCIS district, and if you don't spend so much time outside the US that you fail to meet the physical presence requirement, then you can reapply on the three-month anniversary of your move to your current place of residence. The criteria are available at USCIS's Naturalization Information page: Naturalization Eligibility Requirements Before an individual applies for naturalization, he or she must meet a few requirements. Depending on the individual’s situation, there are different requirements that may apply. General requirements for naturalization are below. Be at least 18 years old at the time of filing Form N-400, Application for Naturalization. Be a permanent resident (have a “Green Card”) for at least 5 years. Show that you have lived for at least 3 months in the state or USCIS district where you apply. Demonstrate continuous residence in the United States for at least 5 years immediately preceding the date of filing Form N-400. Show that you have been physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing Form N-400. Be able to read, write, and speak basic English. Have a basic understanding of U.S. history and government (civics). Be a person of good moral character. Demonstrate an attachment to the principles and ideals of the U.S. Constitution. | "Intention to relinquish" means you actually meant to stop being a US citizen. In practice, the US assumes that normal people doing normal things don't want that. As described on the page you linked, there's an "administrative presumption" that you don't mean to give up US citizenship when you: become a citizen of another country, declare your allegiance to another country, join the military of a country that isn't at war with the US, or take a non-policy-level job with a foreign government. That means the State Department will assume you wanted to keep your citizenship unless you "affirmatively, explicitly, and unequivocally" say that you did not. In practice, if the issue comes up then the State Department will just ask you what your intention was and take you at your word. Unless you actually go to a US embassy or consulate and fill out a form saying "I do not want to be a US citizen any more," you don't really have to worry about it. | There's no hard deadline for you to return to the US. There are some consequences, however, beginning at 180 days, at which point you are to be processed at the border as an "applicant for admission," which will usually have little practical impact on the process. After a year, your green card is no longer valid for admission to the US. This doesn't mean that you lose your LPR status, and the green card remains valid for other purposes. It just means that you should get a returning resident visa (unless you have a re-entry permit, which you would have to have acquired before leaving the US, so I assume you don't have one). There are ways to get into the US without a returning resident visa -- in particular, an airline isn't going to refuse to fly you to the US, because they won't know that you've been away for more than a year. Your LPR status remains until there is a formal finding that you have abandoned your residence in the US. This can be a result of your voluntarily relinquishing it or of an administrative or judicial action. In general, it's probably safe to say, the longer you're away, the more likely the immigration officer is to look into the possibility of abandonment. If you are absent for more than six months, you may also delay your eligibility to naturalize because this absence would disrupt "continuity of residence." A good starting point is the USCIS page International Travel as a Permanent Resident, which has more information about these matters as well as links to more detailed descriptions of some of them. Since this is https://law.stackexchange.com/, I suppose I should add some citations. The 180-day threshold is found in 8 USC 1101(a)(13)(c). The one-year threshold is at 8 CFR 211.1(a)(2). Residence requirements for naturalization are regulated at 8 CFR 316.5. It should be stressed that failing to meet these requirements does not by itself put your LPR status at risk; it only affects your ability to qualify for naturalization. |
Date Calculation Florida HOA law (FS718) indicates a response is required from the board within 30 days of receipt of certified mail. Assume a letter is mailed July 1. How exactly would the courts decide which day the letter is received? Assume that the letter is mailed within the same zip code. Assume return receipt is not used. NEW twist (maybe I should create a new question?): Assume that a copy is also emailed July 1. hand delivered by sender and signed for by recipient. | It's based on the date the letter was received, not the date it was mailed. Since it's certified, it's not received until somebody signs for it, which starts the clock. The actual date isn't possible to calculate from the information on hand. The delivery receipt would have the date it was signed for, it would be prior to the end of the 30th calendar date from that date. Edit... Your new "twist" results in void service and doesn’t require action by the HOA. Certified mail is a service of the USPS, hand delivering or email does not legally count as "certified mail". If a contract requires service by a specific method (e.g. certified mail), then delivery by any other means is invalid and of no effect. | These all seem to be issues with how the local post office is handling your mail (and no doubt that of others). I would start by asking to see the person in charge of that office, and asking that person the same questions that you asked here. I am not sure that, under US law, the "envelope information" of your mail is protected in the way that the contents are. | NY Est Pow & Trusts L § 3-2.1(a)(1)(C)(4) requires that There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will. That means that the witnesses attest to having seen you sign the will, and you must know that it is a will being signed. There is no requirement that they see the will itself, and they do not "attest" anything regarding sound mind, memory or testamentary capacity. It is not required that witnesses receive a copy of the will (for any reason), and it is probably extremely rare for them to do so. However, a witness could be called, during a subsequent court procedure, to testify as to relevant facts such as that a beneficiary held a gun to the testator's head. | What is one supposed to do if they want to take an extended trip somewhere? Or is one basically not allowed to take such trips if they are a US citizen eligible for Jury Duty? In the US you are not required to seek permission to travel, or prove your past whereabouts to the government if you happen to miss some civic duty. They generally call up way more people than they need for this sort of reason. The length of time you are gone or where you choose to travel is irrelevant. In my experience you are given about a month heads up. If you didn't receive the notice until you returned from out of town, and they send a follow up, simply inform them of the fact that you were gone and didn't receive the notice until you returned. Jury duty is an obligation to some extent, but it is also a right and a privilege. It isn't a criminal offence you are liable for if you didn't get the notice. If it were that important to verify your availability ahead of time the notification would be sent registered mail with a signature required. | According to Consumer Rights 2015, is there a deadline from when the issue is raised to the trader to then taking action to fix it, or is it based on what deadline I set on my letter? The "deadline" is one that is reasonable in the circumstances. See s.23 of the Act: [...] (2) If the consumer requires the trader to repair or replace the goods, the trader must— (a) do so within a reasonable time and without significant inconvenience to the consumer, and (b) bear any necessary costs incurred in doing so (including in particular the cost of any labour, materials or postage). [...] (5) Any question as to what is a reasonable time or significant inconvenience is to be determined taking account of— (a) the nature of the goods, and (b) the purpose for which the goods were acquired. [...] If I do send a letter, for instance, notifies him for court, to which address should I send it to? His official one in gov.uk, where he claims he didn't notice or his yard? The Civil Procedure Rules Pre-Action Protocols do not dictate where such a letter (referred to a letter before claim and described here and here) must be served but the usual requirement is to an address at which the potential defendant resides or carries on business within the UK. See Rule 6.8(a) for example. | I cannot answer whether this particular person committed a crime or not. Only a court can answer that. I can give you general information about laws involving destruction of mail. Under 18 USC 1703: Whoever, being a Postal Service officer or employee, unlawfully secretes, destroys, detains, delays, or opens any letter, postal card, package, bag, or mail entrusted to him or which shall come into his possession, and which was intended to be conveyed by mail, or carried or delivered by any carrier or other employee of the Postal Service, or forwarded through or delivered from any post office or station thereof established by authority of the Postmaster General or the Postal Service, shall be fined under this title or imprisoned not more than five years, or both. So it would generally be a crime to deliberately destroy or delay mail that was otherwise deliverable. If a carrier took back mail that should have been delivered, that would probably count as "detaining" or "delaying" that mail. In the case at hand, though, I suppose the carrier might argue that when you refused to sign for the letter, it gave her reason to doubt that the addressee(s) actually lived there, in which case perhaps the mail should not have been delivered after all. So she might say that she took it all back to the post office for further investigation as to where or whether it should be delivered. Destroying the mail would similarly be illegal. However, based on other information in your question that is now removed, it appears that she did not actually do so. Merely threatening to destroy mail, if the threat is not carried out, does not seem to be a crime under this section. I don't know whether it might be prohibited by some other statute. Crimes involving mail are normally investigated by the US Postal Inspection Service, not by local police. Of course, even if the behavior is not a crime, it may still be cause for the postal employee to be fired or otherwise disciplined. | In most jurisdictions a message sent by email is now legally the same as one sent on paper by, say, postal mail, and a name typed at the end, or other indication of source is the legal equivalent of a physical signature. You are probably in the same legal position yu would have been in if you had written, signed, and sent by post a letter of acceptance. | Is a response to a N5B section 21 accelerated claim required to be given on the dedicated form N11B? YES. Assuming this refers to an accelerated possession claim on property let on an assured shorthold tenancy in England then Rule 55.14 Civil Procedure Rules applies: A defendant who wishes to – (a) oppose the claim; or (b) seek a postponement of possession in accordance with rule 55.18, must file his defence within 14 days after service of the claim form. (2) The defence should be in the form set out in Practice Direction 55A. Practice Direction 55A, at Rule 1.5, states: [...) The defence must be in form N11, N11B, N11M or N11R, as appropriate. The use of must is well established in British law as meaning a non-optional obligation (unlike should). It is not, as far as I can see, defined by statute so the courts' convention is to use the normal meaning of the word by reference to the Oxford English Dictionary. The recently revised free online version has limited availability but the previous version merged with Dictionary.com which offers these examples: 1 to be obliged or bound to by an imperative requirement 2 to be under the necessity to; need to The use of must in Rule 1.5, by my reading, trumps the use of should in Rule 55.14 but Alice might be able to argue this apparent contradictory terminology as to why her case for her defence is submitted by letter rather than the prescribed form. What happens with this letter when it is received by the court...what happens with the case more generally? Does it get listed for a hearing? Do the contents of her letter reach or get considered by the judge? All that would be a matter for the court to decide and could go either way: a judge has the inherent power to deal with matters in his own court as he sees fit (within the limits of the law etc). |
Does a duty of care arise from advertised functionality? Credit card issuer advertises "account alerts" on its website and in other communications, e.g., to "receive a reminder when your payment is due". Customer sets up alerts, and relies on them to know when to make a payment. Bank fails to send them, resulting in late payments and credit damage. Is the issuer liable? Common law negligence and negligent misrepresentation causes of action typically involve a "duty of care". Does a duty of care arise under these circumstances, i.e., from the fact that the issuer advertised the feature? The cardmember agreement does not reference account alerts at all. @Rock Ape kindly points out that a supplementary agreement may. One does (pertinent parts below). Three parts stick out: No express promise is made that messages will be sent at all, only that the agreement "includes access" to "Alerts". However, one could argue that it is implied. It contains a sentence limiting liability from "any disclosure of account information to third parties, non-delivery, delayed delivery, misdirected delivery or mishandling of, or inaccurate content in, the messages sent". Based on the context, my interpretation is that the limitation is for third-party conduct (e.g. customer's e-mail provider fails to deliver alert). Alerts are "provided for your convenience and do not replace your monthly account statement(s), which are the official record of your accounts". One interpretation, which seems inconsistent with the extrinsic advertisements on the website, is that the Alerts come with no guarantees at all. Another interpretation is that billing statements continue to be necessary for certain account information, e.g. transactions. Your enrollment in the Online Service includes access to [...] Alerts. By receiving or otherwise using these services, you agree to the following terms for these services. You agree that we may send messages through your communication service provider in order to deliver them to you and that your communication services provider is acting as your agent in this capacity. [...] Additionally, you agree to indemnify, defend and hold us harmless from and against any and all claims, losses, liability, cost and expenses (including reasonable attorneys' fees) arising from your provision of a phone number, e-mail address, or other delivery location that is not your own or your violation of applicable federal, state or local law, regulation or ordinance. Your obligation under this paragraph shall survive termination of the Agreement. The Alerts and Text Services are provided for your convenience and do not replace your monthly account statement(s), which are the official record of your accounts. [...] You understand and agree these services may not be encrypted and may include personal or confidential information about you such as your account activity or the status of your account. You also understand that there may be a disruption in service when you change your communications service provider. Messages may be delayed or impacted by factor(s) pertaining to your Internet service provider(s), phone carriers, or other parties. We will not be liable for losses or damages arising from any disclosure of account information to third parties, non-delivery, delayed delivery, misdirected delivery or mishandling of, or inaccurate content in, the messages sent through the Alerts and Text Services. | Jurisdiction: england-and-wales. You don't necessarily need to turn to tort law to find a duty of care. For example, assuming the customer is a consumer (i.e. not operating as part of their business) then the following sections of the Consumer Rights Act 2015 are relevant: 49 (1) Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill. 50 (1) Every contract to supply a service is to be treated as including as a term of the contract anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service, if — (a) it is taken into account by the consumer when deciding to enter into the contract, or (b) it is taken into account by the consumer when making any decision about the service after entering into the contract. 57 (1) A term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader's liability arising under section 49 (service to be performed with reasonable care and skill). 57 (2) Subject to section 50(2), a term of a contract to supply services is not binding on the consumer to the extent that it would exclude the trader's liability arising under section 50 (information about trader or service to be binding). | The primary question is whether you actually committed a crime in signing a credit card receipt, when you are not the cardholder nor are you authorized to sign on behalf of the cardholder: did you commit fraud? It is not possible to accidentally commit fraud, you have to have intended to deceived the other party that you are authorized to sign. For the sake of discussion, I will assume that you had no such intention. Presumably, the person who ordered the stuff will wonder "where is my stuff?", will complain to the vendor, they may then find the signed receipt and some evidence regarding where the goods were delivered. Whether or not they contact you asking for an explanation / return of the goods, the police would have to investigate the situation in light of some allegation that you committed fraud. The police will not just come knocking on the door and nab you (in the US: North Korean law is different). In many jurisdictions, there is a requirement for a warrant supported by probable cause. If the investigation provides sufficient credible evidence proving that you did intentionally falsely sign the receipt, to the point that given those facts you would be convicted of the crime, then there is probable cause for a warrant for your arrest. The fact of signing a receipt is not probable cause to support such an arrest, but other facts could be added to reach that level of evidence. | How Are Liability And Insurance Matters Usually Disclosed? Normally, in a car sharing arrangement, you must establish a membership or account with the car sharing firm that includes all of the terms and conditions of the agreement between the parties (at least by reference to a document that you acknowledge that you have had an opportunity to read), often in connection with downloading an app necessary to use the service. I also strongly suspect (as a comment below indicates) that if you dug around enough on the firm's webpage that a link to the relevant terms and conditions could be found, even if it wasn't in the most obvious place. But, this information will often not be on the firm's main landing page of their website, and can instead often only be reached with multiple clicks and/or drop down menus. Sometimes this is called a "terms of service", sometimes this is called a "master agreement", sometimes it is called a "membership agreement" or "account agreement". My list of names for this agreement is not exhaustive. Often these terms are also described elsewhere in simplified form, such as a "how to" brochure, or information that is posted on the interior of the vehicle itself or in a sleeve of documents in the car. Usually, in the course of the sign up process there would typically be a box to click and a link or scrollable portion of the screen at which you can review all of those terms and conditions which are the terms of the contract. What Must Advertising Say And Why? It is not generally necessary for the advertising itself to disclose every term and condition and detail of the arrangement. Generally speaking, an advertisement is considered merely an "invitation to make an offer" to enter into a contract, rather than an offer which can be accepted directly and form a contract. Of course, a particular jurisdiction's legislature certainly has the power to require that a car sharing company disclose liability and insurance information in a particular fashion set forth in a statute or regulation, if that jurisdiction's legislative body chooses to do so. Even when these issues are mentioned in advertising (even when some disclosure is required by law in adverising), usually this would be in the form of a sentence that incorporates another document by reference like "Additional terms and conditions, including terms and conditions related to liability and insurance, that can be found at . . . . apply." This is due to the practical reality that TV and radio ads are usually just 15-60 seconds allowing about 25-100 words or perhaps a few more if the announcer speaks quickly, and that ads in print or on a screen also typically have room for only a very small amount of text. Websites, in principle, provide an effectively infinite amount of capacity to host content, but considerations of ease of website use and the need to make the landing page striking for marketing purposes (as well as the need to make websites mobile user friendly when that is the only way that many Internet users can access the web) usually relegates the legal terms of the agreement to less attention grabbing locations. Often, these terms are disclosed more conspicuously when the terms and conditions change materially, something that often has its own little PR campaign accompanying it. Unilaterally Imposed Contracts of Adhesion One reason that disclosure isn't such a huge issue is that car share agreements are almost always mass produced, not up for negotiation, "contracts of adhesion" that only senior management of the firm has the authority to modify. In the case of these intangible contractually agreed services, the terms of the agreement are more akin to a non-negotiable product design than to the paradigmatic haggled legal agreement between parties. Thus, a customer has only two choices. Use the service according to the standard terms, or don't use the service. Given this reality, the average buyer of the services relies upon the market place rejecting contracts of adhesion with bad terms, upon testimonials (good and bad) from prior users of the service, and upon media publicity for notorious terms or incidents that makes it look like the business doesn't treat it customers well, to keep the agreements reasonable, rather than upon individualized decisions to use or not use the service based upon a detailed review of the contract terms. There are legal doctrines pertaining to contracts of adhesion that invalidate terms that are unconscionable or not within the reasonable expectation of a consumer unless those terms of conspicuously disclosed. A classic example, for example, would be that a car share agreement that imposed extraction of a kidney as a fine for being one days late in paying an invoice would be void as a matter of law, even if the referenced document said so in bold large face type and the customer clicked a box acknowledging having read the agreement. What Happens If There Is No Agreement Or Disclosure? If there was never a step at which the terms and conditions were disclosed or accepted, then the default rules of law pertaining to personal property leasing, together with the laws pertaining to automobile accidents and insurance (both statutory and case law) in the jurisdiction in question. In almost all cases, liability to third parties for accidents is generally a matter of tort law or statute imposed by the government, rather than being something that can be modified by agreement. Also, usually the government imposes minimum insurance requirements and the owner of the car also has an incentive (and often a legal requirement) to have car insurance in force. In the United States, the default rules of law pertaining to personal property leasing, are set forth in Article 2A of the Uniform Commercial Code, which has been adopted in every U.S. State, the District of Columbia, Puerto Rico, and each self-governing U.S. territory with its own internal laws. In countries Europe or Latin American or Asia known as "civil law" countries (i.e. in those countries outside the British common law tradition, the Islamic law legal tradition, tribal or clan or caste law, or legal systems with communist regime roots established in the 20th century), the equivalent default rules of law (governing personal property leases, contracts to provide services, leases and insurance) would be contained in either a civil code or a commercial code of that country in most cases. In common law countries, the contractual agreements tend to be longer than the default provisions of law are skinnier. In civil law countries, the reverse is true. A hybrid of these two approaches which also limits the need of customers to monitor contract terms is the regulatory model commonly used in the insurance industry in the United States takes the reality that contracts of adhesion are the norm and gives it a regulatory twist. In this hybrid model, all of the boilerplate language of every insurance contract down to the last word of non-customized or only semi-customized language, and often fee schedules as well, must be substantively improved by a state agency that regulates insurance. In these models, a public official negotiates the terms of the contracts with the firms, subject to intervention in and participation in the process by industry associations and non-profits or interested individuals on behalf of consumers or other interested parties. In these hybrid systems, the approved contract language which can't be modified in the boilerplate language by either the firms or the customers, is on file with the regulatory agency and provides constructive notice to all parties in much the same way as a statute or government regulation. If not enough material terms of the agreement (e.g. the rental rate) were disclosed to form a contract, then there would be no enforcement contractual arrangement involved in the car share and the car share company would have to rely on the law of unjust enrichment to recover the fair market value of the services provided in each case, which as a practical matter, wouldn't be viable as a business model. Distinctions Between The Two Kinds Of Car Sharing Arrangements There is some ambiguity in the question because there are a couple main types of car sharing arrangements. One is more like a rental car and you drive the vehicle yourself (Car2Go is one of them). In this case, the firm typically provides car insurance and does a limited background of a prospective account holders driving record before allowing someone to use the service. But, the user of the service, who drives the car, would be primarily liable for any accident that the car gets into. The other kind, sometimes called a "car share" and sometimes called a "ride share" is more like an Uber or Lyft, which is a glorified, on demand taxi service, in which a driver provides the services of the driver and the vehicle and takes car of insurance and will be primarily liable for any accident the car gets into as a driver and owner of the car. | You have read it: legally It doesn’t matter if you haven’t read it in fact. At law, you have. Therefore you cannot avoid obligations or consequences by saying “ I didn’t read it”. It’s an extension of the common law principle that if you affix your ‘mark’ to a document you were acknowledging that you understood it and would abide by it: even if your mark was an X because you were illiterate. There are protections. At common law an unconscionable term is unenforceable and may void the contract entirely. Additionally, many jurisdictions have passed legislation to make unfair contract terms unenforceable, particularly in contracts of adhesion. Further, consumer protection laws often have non-excludable warranties that operate in spite of the contract. | 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. | There is no clear legal answer, and in case the matter goes to court, the jury would compare actions of the parties. For example, shipper could say "mail it back to us" and recipient could refuse, saying "come pick it up in the next 10 minutes". Both parties are being unreasonable, imposing significant obligations on the other party (time and money, in the case of the shipper's demands). In the case where a shipper is responsible for the error, most of the burden is on the shipper, thus the shipper should arrange for someone to recover the package. The question is, what limitations can the recipient insist on – what is a reasonable level of inconvenience that the recipient should bear? For instance, it is not generally an unreasonable inconvenience to ask a person to leave the package in a corner on the porch, but it could be too much of an inconvenience to ask a person to interrupt their dinner in order to hand over the package, and it would clearly be an unreasonable inconvenience to require the recipient to wake up at 3am to hand it over. When jurors have to decide such matters, they think "what would I do in this situation, and people have different views of what constitutes a reasonable inconvenience. | Short Answer It depends on the totality of the facts and circumstances. But based on your description, this approach is likely problematic and might not withstand judicial scrutiny. Explanation Plaintiffs can attack this behavior as a sham transaction. Court could find this to be a fraudulent conveyance. and provide relief via clawback order. Badges of Fraud include: (Source: Wikipedia) Becoming insolvent because of the transfer; Lack or inadequacy of consideration; Family, or insider relationship among parties; The retention of possession, benefits or use of property in question; The existence of the threat of litigation; The financial situation of the debtor at the time of transfer or after transfer; The existence or a cumulative effect of a series of transactions after the onset of debtor’s financial difficulties; The general chronology of events; The secrecy of the transaction in question; and Deviation from the usual method or course of business. | There may be violations of consumer protection and/or advertising statutes here by the online store, but the common law position is that: The website's owner is making an invitation to treat Based on that, you are making an offer The contract comes into place when the website's owner accepts your offer. The time of contract formation is "when the parties give objective manifestation of an intent to form the contract." You would need to read the site very carefully, in particular their terms and conditions, acknowledgement page and/or email to see if they are actually accepting your offer or if there are conditions attached. If there is no clear, unconditional acceptance then there is no contract at that time; this applies even if you have paid for the goods. If this is the case (and I strongly suspect that it would be for most online stores), then their acceptance of your offer and the formation of the contract probably does not come into effect until they "give objective manifestation of an intent to form the contract" by shipping the goods. Up until that time there is no contract and their only obligation to you is to promptly refund your money. |
Can a report exempt someone from owning a firearm in the U.S.? I was reading a thread on the social media site Reddit and the OP discussed how he found out that he was unable to purchase a firearm with no reason given. Though he had no criminal record and no involuntarily commission, he had been reported by a forensic psychiatrist to the Met Police (he's a dual UK/US citizen) for homicidal ideation and he figures that when he moved back to the U.S., the police detectives also informed the FBI who noted and it came up on a background check. But I've heard that reports from the public/doctors aren't enough to bar someone from owning a gun and I'm thinking it may be a false story. What is true? | What is true is that 18 USC 922(d) says It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person...(4) has been adjudicated as a mental defective or has been committed to any mental institution "Adjudicated as a mental defective" is then defined in 27 CFR 478.11 A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs. A forensic psychiatrist is not a general "member of the public", so it is credible to consider one to be a "lawful authority". No aspect of the law limits whose law gives the lawful authority his authority: of course more details on the psychiatrist would be necessary to determine that this is a proper application of the restriction. | 39 CFR § 232.1(l) provides that: Notwithstanding the provisions of any other law, rule or regulation, no person while on postal property may carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, or store the same on postal property, except for official purposes. Police officers on active duty, enforcing the law at the request of post office employees, appear to be discharging "official purposes". | It is probably illegal in all of the jurisdictions in the US where a fetus is legally declared to be a person and where the murder statutes are written to not explicitly exclude abortion: that is, in no jurisdictions. No law existing or proposed for Georgia specifically addresses "travel for the purpose of getting an abortion". The underlying theory behind the claim (advocated by some Georgia attorneys) is that a person may be open to a conspiracy charge for taking a woman to another state to get an abortion, which would be a crime if committed in Georgia. If a conspiracy exists in Georgia to do something illegal (in Georgia), that is a violation of OCGA 16-4-8 ("when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy"). The substantially same law exists in Washington, and most if not all other states. The theory is apparently that "conspire to commit a crime" means something like "conspire to perform an act which would be a crime if performed in in this jurisdiction", e.g. "purchase marijuana, or take a job at certain payday loan companies". No state has successfully claimed extraterritorial jurisdiction, where a Georgia resident can be prosecuted in Georgia for a legal act carried out in another state, so this theory is a bit of a stretch. | The short answer: No license is required in any U.S. jurisdiction to buy a firearm magazine. There are some jurisdictions that restrict the sale of "high-capacity" magazines to civilians. That's something that is changing often enough that any answer covering the U.S. will probably quickly be obsolete. Suffice it to say: If you can find it in a store there are no legal restrictions or conditions on purchasing it. Technically an "export" license might be required under ITAR to take magazines out of the country, but in practice this has not yet applied to individuals carrying low-tech small-arms accessories (in quantities reasonable for an individual's use). | There are several federal excise taxes on firearms. The main ones are (dispensing with the fine definitional details and Internal Revenue Code citations): A tax on transfers of firearms of $5 per concealable firearm and $200 per firearm on certain other firearms; a $500 per year firearm's dealers tax which is increased to $1000 if you import more than a certain number of firearms per year; a 10% of sales price excise tax on pistols and revolvers; and an 11% of sales price excise tax on other firearms and on ammunition. Of course, like any other business, firearm's dealers also have to file annual income tax returns on their revenues less their expenses on tax forms that depend upon the form of organization of the business (e.g. C-corporation, S-corporation, partnership/LLC, trust, etc.). The IRS has the right to examine the books and records of people who owe or are believed to owe taxes without going to a court to obtain permission to do so. Treas. Reg. § 1.601.105. Subject to certain exceptions, information obtained by the IRS in a review of a taxpayers records and their return information are confidential. 26 U.S.C. § 6103. There are criminal penalties for (slightly over simplifying) tax offenses including willfully failing to keep records necessary to file tax returns, willfully attempting to evade or defeat taxes, willfully failing to collect and pay taxes where required by law to do so, and willfully making false statements to IRS employees or on returns. 26 U.S.C. § 7201-7212. If the government provides probable cause to a federal judge or magistrate in connection with a possible criminal tax prosecution that there is probable cause to believe that a taxpayer has committed a criminal tax offense, then the government may obtain a search warrant to seize records without the advanced notice available in the usual civil record examination process. For example (not based on any facts I have been told about or read about in this particular case), suppose that a former employee of a firearm's dealer or an ex-spouse of one of the owners of the business, told the IRS that the dealer intentionally lied on their excise tax return by underreporting the number of firearms the dealer sold and that the dealer then kept the sales taxes collected from unreported buyers who completed Form 4473, and told the IRS criminal division investigators where the Form 4473s were kept at the dealer's offices. In that case, it would be routine for the IRS to obtain a federal search warrant to obtain those forms to seize and review in connection with an excise tax fraud investigation. If there was just an income tax audit, bank records and accounting records obtained by subpoena from banks and accountants would usually be sufficient. But this would cease to be the case if the inventory records obtained by subpoena from the dealer's suppliers, for example, and the accounting records, didn't match. If there was evidence of unreported firearm sales income, or of unreported excise taxable sales, the IRS would usually need to compare the the Form 4473s of the business to its income and excise tax returns filed with the IRS. It would be routine to obtain these records with a search warrant rather than a civil office record review with advanced notice if tax fraud was suspected. The Form 4473s due to IRS confidentiality requirements, wouldn't be publicly available to anyone by the IRS and criminal investigators (not even members of Congress or local law enforcement), and would probably only be presented in redacted or summary forms in a criminal tax fraud prosecution at trial. In all likelihood, the IRS doesn't care about the customers who filled out the Form 4473s at all, and isn't even bothering to investigate them (except possibly to spot check for fake social security numbers or names, which appear on the forms, to see if fake information was used to Form 4473s used to substantiate tax records). Instead, the IRS is probably simply tallying them up and noting dates of sale, putting them in a spreadsheet, and seeing if they are different from what was reported to the IRS on the dealer's tax returns. If the dealer, for example, paid the proper excise taxes on 800 guns in 2022, but had 1200 Form 4473s in banker's boxes at its offices, then the people involved in the tax fraud at the dealership are probably going to go to federal prison for a few years. Indeed, they would probably just plead guilty rather than going through a futile trial where documents with their own signatures on them from boxes seized in their shop clearly establish their guilt in that case. Federal firearm excise tax fraud prosecutions aren't terribly common, but they are about as plain vanilla as they come in the world of federal criminal prosecutions. This certainly doesn't portend any threat the Second Amendment rights or any crack down on the firearms industry. In terms of this message this sends, this is really no different that seizing the electronic records of a gas station that filed false gasoline excise tax returns to show how much gasoline was actually sold, and prosecuting the people who engaged in the tax fraud for that. The argument that a Form 4473 isn't a "financial record", when it provides documentation of all of the information except the price on all of the dealer's firearm sales (Manufacturer, Model, Serial Number, Type of Firearm, Caliber or Gauge, number of firearms sold, and check boxes for tax exemptions), and the fact the some of the federal firearm excise taxes due don't even depend upon the price of the firearm, isn't a very strong one. Even if the search warrant didn't single out Forms 4473s from other kinds of business records, this would probably just be harmless error, because the IRS absolutely has the right to ask for and seize Form 4473s in connection with the tax fraud investigation, just like any other business record of a firm suspected of not paying its taxes. These records aren't protected by any evidentiary privilege in a federal tax fraud prosecution. Also, combined with past sales fliers and catalogues and business records about sales pricing for different products from the dealer in its accounting records, it would be fairly trivial to use this information to recreate a very accurate forensic reconstruction of the gross firearm sales revenues of the dealer and the amount of excise taxes that should have been paid. It would be tedious work, but it would be extremely damning evidence of tax fraud if the estimated sales significantly exceeds the sales reported on the dealer's tax returns. Even if the some of the documents in a particular banker's box aren't within the scope of the search warrant (for example, perhaps someone put Christmas Cards and as well as accounting ledgers and cancelled checks in the same box), the IRS would not be beyond its rights to grab all of the banker's boxes of documents, review them at their leisure in a government office, and then return the contents of the boxes that turned out to be something other than what the IRS requested a search warrant to seize. A good faith belief that the boxes seized has some financial records in them would justify taking them away, reviewing their contents, and returning materials that were beyond the scope of what was sought. The IRS criminal division agents don't have to look through the many, many banker's boxes page by page at the dealer's place of business to screen them at that time at that level of detail. Similarly, the IRS agents are not required to assume that boxes actually contain what the label on the outside of the box says that the box contains. Of course, if the Form 4473s corroborate the tax returns filed by the dealer apart from minor clerical errors or uncertainties about the exact sales prices of sales reported on them due to irregular discounts provided by a dealer who sometimes haggled over the prices of used firearms, the dealer would be vindicated and the informant who triggered the investigation and prosecution (if there is evidence that this informant willfully lied to IRS investigators) might even be prosecuted for making an intentionally false report to a law enforcement officer. The dealer wouldn't be entitled to reimbursement for criminal defense expenses or harm to the dealer's reputation, but it would still be a huge PR coup and the criminal charges would go away, probably long before a trial was even held. Montana Attorney General Austin Knudsen absolutely knows all of the facts in the post above. His claimed fear of a crackdown on gun users is something he is doing to willfully mislead the people of Montana for political gain. He may also be throwing stones at federal prosecutions because he was irritated that the IRS and Justice Department didn't keep him in the loop on this tax investigation in his state which he sees as his turf, even though it was purely a matter of federal tax law violations which his office didn't have jurisdiction over. Indeed, the IRS may have kept him in the dark and out of the loop from this investigation, in part, in order to protect taxpayer and gun owner privacy by not sharing confidential IRS investigation information with state law enforcement officers, something that it is not allowed to do. | Chain of custody and testimony in this regard. Say there is a murder victim, with DNA of the suspect under the fingernails and a knife with the suspect's bloody fingerprints stuck in the chest. There would be testimony what happened to the knife. If a paramedic removed it to attempt first aid, the paramedic would testify. So would the officer who bagged it, and the forensic analyst who took the fingerprints. A pathologist would testify if the knife was consistent with the stab wound (a careful pathologist could never swear that the knife was the cause of death, just that it matches). The pathologist would also testify how DNA was collected under the fingernails, and how it was sent to the lab. The defense may claim that the suspect also tried first aid, or that a corrupt cop forced the suspect to hold the knife. The court or jury then draw their conclusions from this and other testimony. Same here. A lifelike picture found on the web proves nothing. A witness who takes the stand to testify that he or she took a certain picture would be more credible. So would a forensic officer who testifies how she or he removed the data from a surveillance camera, checked for common signs of tampering, and then signed a copy of the data with a private key. (The signing shows no third-party tampering after collection, it is not evidence of integrity before that.) Years ago, in germany, there was the case of a bank robber who claimed that a fleeing suspect had handed him a bag of money in the forest and then vanished. "Prove it wasn't so," he demanded. "You can't. So there is reasonable doubt." Well, the court found that the statement merely created unreasonable doubt, and the sentence was upheld on appeal. | 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. | There are several elements working in your friend's favor. The first is "guilty beyond a reasonable doubt." In an entrapment case, the police have recordings or documents claiming that the "girl" was underaged. If there is no such smoking gun from the (real) girl, the case (probably) would not be prosecuted in the U.S. He doesn't have to prove that she told him she was 18; "she" (or the police) has to prove that she told him she was "not." The second factor is "remoteness" in time, and distance. Two years after a U.S. state sent me a "nasty letter," I asked my lawyer if the state would ever come after me. He answered, "If they were going to do this, you would have heard further by now." The other factor, distance and cross border, (three countries: Turkey, the U.S., his home country) further militates against prosecution except for highly aggravating circumstances such as drug dealing, gambling, or sex for pay. A third factor is that your friend would not come close to qualifying as a "serious offender." This would be someone like a drug dealer, or the head of a "call girl" ring. The cops concentrate their effects on big "busts" like this that make their careers, not "small fry" like your friend. But of course they use the publicity from the big catches to scare everyone else. While there is no "guarantee" against "the worst possible consequences," the chances of them happening are similar to his getting hit by lightening, and less than his chances of being hit by a car crossing the street. No one stresses out about those chances. He shouldn't either. I am not a lawyer but I have done paralegal work in a law office. |
What happens to a person's social security account if they die and have no survivors? What law determines where the money goes? Where would it go if there were no survivors to pay the benefit to? | The relevant law is encoded at 47 USC Ch. 7. The money doesn't "go" anywhere other than into the US Treasury. You are required by law to pay a percentage of earned income in the US forever. Independently, you might get an entitlement to draw benefits, depending on whether you are old enough (or are disabled or blind) and have enough "credits" (earned enough money). Certain people can receive money owing to your qualification (mnior children, spouse, dependent parent), see here. There is no individual balance, as there would be with an IRA or other savings plan. | A babysitter is a household employee in the IRS's parlance. This means that: [Y]ou may need to withhold and pay social security and Medicare taxes, pay federal unemployment tax, or both. To find out, read Table 1. You don't need to withhold federal income tax from your household employee's wages. But if your employee asks you to withhold it, you can. The thresholds in Table 1 (for 2021) are: If you pay more than $2,300 in a calendar year to any one household employee, you must withhold Social Security & Medicare taxes from that employee's wages, as well as pay the employer's share of these taxes. If you pay more than $1,000 in a quarter to any one household employee, you must pay federal unemployment tax. In addition, you are liable for Virginia state unemployment tax as well. As noted in the above document, you do not have to withhold income taxes from your household employees. You and your employee can agree to a withholding arrangement for income taxes, but it's not required. This doesn't mean that your employee isn't liable for income taxes on these wages, it just means that they're not your concern. Finally, note than wages paid to anyone who is under the age of 18 at any time in 2021, and whose work for you is not their primary occupation, are exempt from Social Security & Medicare taxes. Such wages are still subject to federal unemployment taxes, though. (And possibly also Virginia unemployment taxes, though I haven't checked.) See the "Wages Not Counted" subsections within the sections on "Social Security and Medicare Taxes" and "Federal Unemployment Taxes" in the above-linked publication. | You're missing some pretty important details in describing the facts of this case. The most important of which is: What were the agreed terms upon which Alice obtained possession of the car prior to paying? Your description says: Alice takes the car and doesn't pay. If that's literally true, then this case is both criminal theft and the tort of conversion — not breach of contract. Since the remainder of your question references a breach of contract, then I have to conclude that the fact as you stated it is not literally correct and there is some important missing detail about the terms upon which Alice was in possession of the car when she crashed it. So, I will have to invent some scenarios that would fit two other facts you describe: The jury awarded Bob $5,000. The jury found Alice to be in breach of contract. The following are the scenarios I can think of that would match the facts (as I understand them and speculated where important details are missing from the question). Maybe this is a small claims court and the damages are capped at $5,000? I never heard of a jury trial in small claims court but I guess it could be possible. Or maybe it was actually a judge and use of the term jury was careless or otherwise inaccurate? Maybe the terms under which Alice was in possession of the car when she crashed it put the parties in position where they effectively shared liability or risk of damage to the car? Like maybe Bob (or both parties) was/were required to carry insurance on the car while Alice was "test driving" it. I only use the term "test driving" as a placeholder for whatever she was doing with the car prior to paying for it which is left unclear by the question. Maybe Bob was found to have contributed to the breach of contract by something he did or didn't do. Similar to the above speculation about insurance. All this would be much easier to analyze if we knew how and under what terms Alice came to possess the car. Maybe there was only $5k of damage done to the car? Or, alternatively, the car was only found to be worth $5k and, for whatever reason (again, which we can not fully analyze given only the partial set of facts presented) the liquidated value of the car was the basis for the damage award and not the contracted price. (Consistent with @jimsug's comment.) I can easily imagine a scenario where Bob and Alice are close friends or family so the entire transaction is handled very loosely and informally and Bob let's Alice drive the vehicle while she is gathering the money to pay him. In this case, the jury might decide Bob shares the liability with Alice since the terms of the sales contract did not transfer the risk of liability to Alice during the time she was driving prior to payment. | 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. | The official judgements do not reveal the funding for these lawyers; so where can I find this information? Nowhere. The commercial arrangements between lawyers and their clients are private and confidential like any other business transactions. You have no more right to know this then you do to know how your neighbour pays their mortgage. how could she have funded litigation in the EWHC and then EWCA before the UKSC? She may have rich parents or another benefactor who has in interest in her or the outcome of the case. She may have won the lottery. She may be the heiress of a dead rich uncle. By the way, "having" student loans does not mean you "need" student loans. Interest rates on student loans are cheap - if I need to pay $10,000 for a course and have $10,000 earning 5%, I would be nuts to use that if I could take out a loan at 3%. | You can't sue her for not having insurance. You sue for the damage you suffered. You can name her as a defendant alongside her son on the theory that she contributed to the accident by letting her son use the car, and then let the judge sort out who gets landed with the liability. Depending on the rules in your jurisdiction you might have to pay her travel expenses and/or lost wages if the judge decides she wasn't to blame (and the same for her son, but that sounds like a slam-dunk). However you might be better off going for victim restitution. That way the order gets made as part of the criminal case against the son. Less hassle for you, and the state authorities are responsible for actually getting the money out of them. Edit: It turns out that Idaho has the Family Car Doctrine in its law, so the mother is legally liable for her son's accident (thanks to ohwilleke for the pointer). | I would think that this would be treated the same as lost property. In most places, if you notice lost property (for example because the postman hands it to you) you have the choice of ignoring it (don't touch it, don't accept it from the postman), or you have to make reasonable efforts to find the owner and return it. If you as the sender had no idea who received the package so you cannot contact them, and there was nothing in the package identifying the sender, the receiver would be able to keep the package when their efforts of finding the owner fail. But if you manage to contact them, then the receiver knows the owner, so there is no legal excuse to keep the package. | Bob’s estate can be sued Bob the human is dead but Bob the legal person continues, at least for a while. People who were damaged by Bob the human can sue Bob’s estate for restitution. Assuming that Bob would like his assets Togo to his heirs instead of these people, that acts as a disincentive. This does not apply to criminal sanctions. |
Which part of the Covid relief bill mandates to publish a UFO report? It was reported that the Consolidated Appropriations Act, 2021 (H.R.133) ($2.3 trillion coronavirus relief and government funding bill) signed on December 27, 2020 contains a provision which mandates the US intelligence agencies to publish a report about unidentified flying objects (UFOs). For example here. Exactly which part of its text says so? | It appears that the Consolidated Appropriations Act of 2021 (HR 133) included several bills that had already been voted out of committee and were waiting for full congressional approval, including the Intelligence Authorization Act for Fiscal Year 2021 (referred to as "Division W" within HR 133.) This authorization act includes the following text: Advanced Aerial Threats The Committee supports the efforts of the Unidentified Aerial Phenomenon Task Force at the Office of Naval Intelligence to standardize collection and reporting on unidentified aerial phenomenon, any links they have to adversarial foreign governments, and the threat they pose to U.S. military assets and installations. However, the Committee remains concerned that there is no unified, comprehensive process within the Federal Government for collecting and analyzing intelligence on unidentified aerial phenomena, despite the potential threat. The Committee understands that the relevant intelligence may be sensitive; nevertheless, the Committee finds that the information sharing and coordination across the Intelligence Community has been inconsistent, and this issue has lacked attention from senior leaders. Therefore, the Committee directs the DNI, in consultation with the Secretary of Defense and the heads of such other agencies as the Director and Secretary jointly consider relevant, to submit a report within 180 days of the date of enactment of the Act, to the congressional intelligence and armed services committees on unidentified aerial phenomena (also known as "anomalous aerial vehicles"), including observed airborne objects that have not been identified. The Committee further directs the report to include: A detailed analysis of unidentified aerial phenomena data and intelligence reporting collected or held by the Office of Naval Intelligence, including data and intelligence reporting held by the Unidentified Aerial Phenomena Task Force; A detailed analysis of unidentified phenomena data collected by: a. geospatial intelligence; b. signals intelligence; c. human intelligence; and d. measurement and signals intelligence; A detailed analysis of data of the FBI, which was derived from investigations of intrusions of unidentified aerial phenomena data over restricted United States airspace; A detailed description of an interagency process for ensuring timely data collection and centralized analysis of all unidentified aerial phenomena reporting for the Federal Government, regardless of which service or agency acquired the information; Identification of an official accountable for the process described in paragraph 4; Identification of potential aerospace or other threats posed by the unidentified aerial phenomena to national security, and an assessment of whether this unidentified aerial phenomena activity may be attributed to one or more foreign adversaries; Identification of any incidents or patterns that indicate a potential adversary may have achieved breakthrough aerospace capabilities that could put United States strategic or conventional forces at risk; and Recommendations regarding increased collection of data, enhanced research and development, and additional funding and other resources. The report shall be submitted in unclassified form, but may include a classified annex. | The law is really bad at protecting whistleblowers From my understanding of US law, this is not unauthorised access to a computer: the reporter made a legitimate request to a remote computer, that computer provided data,the reporter accessed the supplied data on their own computer. However, pointing out the failures of people in power is fraught even if it is not illegal. It is certainly within the Governor’s power to authorise an investigation of the reporter. On the face of the law, it seems reasonable to suspect that what was done might be a violation so there is nothing legally wrong with initiating an investigation. I suspect that such a broad interpretation of the law would fall foul of the First Amendment which may partly explain why it wasn’t prosecuted: the government doesn’t want to find out. Similarly they can issue press releases, which, due to the First Amendment, don’t have to be true, just not defamatory. Saying it’s a possible violation is true and not defamatory. Saying the reporter was an evil person who is only doing this for political purposes is a statement of opinion and not defamatory. It’s a fact of the world that people with power can use that power in ways that are malicious, unethical, and unfair but not necessarily illegal. | The only real answer is that Congress hasn't (to the best of my knowledge) chosen to pass such a law. But the kinds of forgery that Congress might plausibly and constitutionally prohibit, such as forgery of checks, forgery of legal documents, and forgery as part of a fraudulent scheme are already crimes under state law, and the states handle such prosecutions perfectly well. There is really no need for a separate federal law on such issues. The kinds of forgery covered in the answer b grovkin would probably not be covered by a federal forgery statute, if one were to be passed. But that is speculation. | 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. | In lay terms, the Raich case cites authority pursuant to the "Commerce Clause" of the Constitution of the United States; specifically, that the government has the power to regulate interstate commerce, to the degree that crops of individuals (whether directly or indirectly, or not at all, in commercial circulation) can be regulated by Congress, citing the Filburn case, which had nothing to do with "marijuana" or "cannabis", or "THC" or "CBD"; in essence, the government has the power to tell a private individual which crops they can cultivate or not, depending on the intent of Congress in enacting the law. The premise being that since the intent of Congress in regulating "marijuana" within the scope of the CSA was for the express purpose of maintaining higher prices (including so-called "black market" prices) for "marijuana", an individual cultivating "marijuana" which was not intended to enter the "stream of commerce" nonetheless impacted the price of the crop (or commodity) by cultivating the crop at all (i.e.g., greater supply of available product reduces the price of the product in any market, whether "black market" or not; having access to the product by means of private cultivation reduces the resources necessary to acquire the crop) - thus resulting in the overall price of the crop not being higher, thwarting the intent of Congress in regulating that specific crop or commodity. Of importance, Congress has concluded that "marijuana" had (and still does not have) any medical purpose (various bills have been written over the years to exempt "marijuana" from Schedule I classification in the CSA; "medical marijuana" exemptions, etc.), or at least no medical purpose recognized by Congress (save for specific research done by Dr. ElSohly, and a very limited number of private individuals (patients) to consume the crops produced by Dr. ElSohly, et al. pursuant to licenses issued by a federal administrative agency). It is interesting to note that the United States holds a (potentially defensive) patent (and has so for several years as of 2018) on various medical applications of CBD via the National Institutes of Health. The "property rights" aspect of your inquiry can be categorized into two parts which are independent of each other, that is both actions can be ongoing simultaneously The government has the power to regulate the cultivation of any crop or commodity on private property pursuant to the Commerce Clause and the intent of Congress, irrespective of if that crop enters the stream of commerce proper or not The government can pursue medical research, apply for and be granted patents (intellectual property), by the government itself, for technologies relating to the medical use of crops or commodities defined by Congress as not having any recognized medical application (e.g., the identical crop or commodity at 1.), potentially for defensive purposes, investment in a potential future market (i.e.g., licensing of patented technologies to pharmaceutical or private equity concerns) for profit, or other undisclosed purposes | To the best of my knowledge, there is no crime under US law known as "despotism". However, many of the actions that might be called "despotism" are crimes, civil violations, or possibly violations of police regulations. "use of excessive force", "false arrest", "illegal detention",. and "deprivation of civil rights" might apply, as might various other charges or causes of suit. In particular there is 42 U.S. Code § 1983. Civil action for deprivation of rights often known simply as "section 1983". This provides that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. ... This means that if a police officer or other government official takes action based on his or her authority as a police officer or government official that deprives someone of rights, the person deprived can sue the police officer or official in court, and collect damages directly and personally from the officer. This is limited by qualified immunity. That says that is a point of law has not been "clearly established" police can not be sued for violating it. The exact limits of when qualified immunity applies is a complex topic that has been the subject of many legal cases, quite a few decided by the US Supreme Court. The rules have changed over time. But what has not changed is that clear violations of constitutional and statutory rights by the police and others can give grounds for a federal lawsuit against the people who committed such violations. qualified-immunity, section-1983 | The article "The Posse Comitatus Act..." analyzes the legal restrictions on use of military power arising from that act. Following US v. McArthur, 419 F. Supp. 186, where the act played a role in trials related to Wounded Knee, it was found and subsequently supported in various ruling that the use which is prohibited by the posse comitatus statute is that which is regulatory, proscriptive or compulsory in nature, and causes the citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority. Mere "involvement" of "deployment" of the military is not contrary to the act. It should also be noted that the act includes a provision for actions expressly authorized by Congress, as was the case of the Espionage Act of 1917 and the related Magnuson Act of 1950. Hypothetically (in extremis), Congress might pass a law requiring the seizure of persons infected with a disease. If Congress expressly authorized USAMRIID to effect such seizures, that would not be in violation of the act. Otherwise, it would be. Since USAMRIID is a research lab and not an enforcement arm of the military, it is both highly unlikely that Congress would authorize such activities or that USAMRIID would get involved in this way. W.r.t. their ordinary operations, scientific research, nothing in what they do that contradicts the Posse Comitatus Act. Since we are dealing in hypotheticals, I should point out that SCOTUS has so far not definitively endorsed the "regulatory, proscriptive or compulsory" test, so that test could be overturned, though it is unlikely to be. | "Civic obligations" are based on one's personal moral philosophy, best discussed on Philosophy SE. On the legal front, in the US, there is no (existing) legal basis for simply declaring some random thing to be "top secret", even if it has great potential to be used for evil purposes. If this is research conducted under the umbrella of the Dept. of Defense, it might be classified, but a garage inventor is not subject to the laws regarding classified documents. Congress could pass a law prohibiting promulgating research on time travel, but even if such a law were found to be constitutional (unlikely, on First Amendment grounds, see this), one cannot be penalized for breaking the law before it becomes a law. |
Downloading music using "online converters" Is it illegal to use online converters to download .mp3 files of songs from websites such as Soundcloud, YouTube etc. You can search online for terms such as youtube to mp3 or download from soundcloud and find countless sites that allow users to paste in links and direct-download an .mp3 file of songs. I think I've heard that distributing music collected this way is illegal, but keeping them for yourself is okay. I've seen this post, but I'm specifically interested in general music from any website. What are the laws regarding this? And do they vary in different countries (UK, Australia, North America etc.)? | Under US law, the use of the converter is irrelevant. The legal situation would be the same if they were posted in MP3 format, or downloaded and played in whatever format they are posted in. The point is making and distributing copies without permission. The first question is: Is the music protected by copyright at all? If the work is old enough, there is no copyright on the composition. For example, most works of classical music will be long out of copyright. However, the recording itself can be copyrighted, even if the composition is not. In general, if recording was published before 1972, it will not be protected by US copyright. There are some other edge cases where the the recording will not be protected. See This chart for details. Assuming the recording is protected, the second question is: is the posting legal? That is, was the music posted by or with the permission of the copyright holder? If not, any download or further use would be copyright infringement, although holders are unlikely to sue individuals who download for personal use only. If the posting of a protected work was legal, the key question is, did the user have permission or some other legal basis. It is generally considered that when music (or other content) is posted to the net, there is an implied permission to download it for personal use. Alternatively and to the same effect, this might be considered in US law to be a case of fair use. But this will stop at personal use. Any making of additional copies, redistribution of such copies, or public performance of the music will require permission from the copyright holder. In the absence of such permission, it will be infringement, and the holder could sue. Permission may be granted directly, by contract, or by a permissive license. But permission in some form is required for such use to be lawful. I should add that the creation and distribution of a new (cover) version of a copyrighted song or other music may be permitted under US law by a compulsory license, known as a "mechanical license". This is provided for under 17 USC 115. There is a specific procedure to follow, which involves notifying the copyright holder and paying royalties at a specified rate. Failure to follow this procedure, unless permission is obtained in some other way, means that making and distributing recordings (phonorecords) is copyright infringement. | The DMCA prohibits circumvention of technological measures that effectively control access to a copyrighted work. So you can't legally "crack" the software, period -- even if you own a disc containing the software and have a valid license to use it, a license to use the work is not authorization to circumvent access controls. So if the disc is copy-protected, by my understanding of the DMCA, you're kinda screwed. (The company might be willing to provide you a replacement copy, even if only to maintain the illusion that the software is "licensed, not sold". But you can't make one yourself.) Likewise, if you have a copy of the disc but have lost the license key, you're screwed. Even if you could prove beyond any doubt that you are the licensee, there's not any law i'm aware of that would compel the copyright owner to provide you another license key. And courts have held that distribution of license keys without authorization is a violation of the DMCA. So whoever might provide you another key, if they're not the copyright holder, has broken the law. If you managed to copy the disc from a friend (without circumventing any kind of copy protection), and had your own license key, you might be in a better position. Many EULAs allow you to make a backup copy. Even if they didn't, copyright law does, so there's a possible case for fair use. | Content posted to the web is usually openly accessible to all (unless protected by a password, paywall, or similar restriction). But that does not mean it is freely copyable by all. Such content is protected by copyright in just the same way as if it had been published in a book of essays by various contributors. Unless the copyright holders (who are likely to be the original authors, but might not be) give permission, or an exception to copyright applies, copying such content would be clear and obvious copyright infringement, and any copyright holder could sue for damages. Permission could be given by publishing the content under a permissive license, such as a CC-BY-SA license, or any of many other available permissive licenses. Or a would-be reuser could find the copyright holders and ask for permission. If the holder cannot be found or identified, or does not respond, then no permission has been granted. In the US the main exception to copyright is fair use. See this answer and other threads with the fair-use tag here for more on fair use. Since the question seems to contemplate using the whole of the posted content, since it might well damage any potential market for that content, and since the use does not seem to be "transformative", nor used for criticism or comment, a finding of fair use for this situation seems unlikely. But Fair use findings are very much fact-driven, and the exact facts do matter. Thus I cannot be at all sure whether a court would find this toi be fair use or not. In other countries there are a variety of exceptions to copyright, and I have not come close to reviewing them all. But none of the ones I know of seem to apply to the situation described in the question. Many are narrower than the US concept of fair use. I fear that without permission, copying this content would be infringement. However, it would not be infringement to create a site that includes a link to the existing content, and a summary or description of that content, along with new content, including comments on the old, with brief quotes to indicate what is being commented on. | Let's examine some laws that may apply to your case Digital Millennium Copyright Act (DMCA) There are criminal penalties for willful infringement for personal financial gain. If you are only sending it to one family member through a private communication (eg not posting it publicly) and not selling it and one copy of the music video has a retail value of $1,000 or less then there will be no criminal penalties. But you may be liable for civil penalties. Computer Fraud and Abuse Act (CFAA) Courts have ruled that ToS violations do not constitute unauthorized access (or exceeding access) so you aren't in violation of the CFAA Civil Liability By downloading a video off of YouTube you are in violation of their ToS. There isn't enough prior case law for me to tell you the outcome here. You may be committing some sort of civil wrong by the act of downloading. In addition, you are distributing a copyrighted work without permission which would open you to more civil penalties. The real question is how likely is it for this to be enforced? Not likely. | You are required to provide a copyright notice on your work, such as putting (c) rhino 2016 in the liner notes. Nothing precludes you from licensing that copyright in any way you want, such as Creative Commons. As long as you aren't in violation of the last sentence (your work is not primarily the samples, and you actually made a song with them), then others should be able to use your work with no restrictions other than what you yourself place on the work. The purpose of requiring a copyright notice on derivative works is to give notice of who the actual author is and distance the original author from the derivative work. If you take their samples and make a song that is later at the center of a lawsuit (copyright, defamation, etc), the the copyright notice will hopefully steer people first to the derivative author and not the original author. That is the purpose of the clause in the copyright grant above. | You don't need to "publish" your song to obtain copyright protection. Original works are protected by copyright at the instant they are fixed in a tangible medium. This means that if you type the lyrics, write an arrangement of notes, or record yourself playing the song, the song is copyrighted. | Sure, you can. But if you, from the US, contract with and pay someone outside the US and then use the results of that effort - the reverse-engineered code, either directly in violation of copyright or to find workarounds - within the US, you may not be culpable in a criminal sense (depending on different jurisdictions and trade/IP agreements), but you certainly would be liable in a civil sense. If the US based software developer (I assume a US-based software company, as you said "outside the US") tracks you down, they can open a civil action against you for any damages they want to claim, including theft of IP, loss of profits, EULA violations, and on and on, because you posses and are using reverse engineered code. How much money do you have to lose? | Any adapted work derived from a work used under a CC-BY-SA licnese must be distributed, if at all, under a compatible license. The question is whether a large work incorporating a much smaller work is said to be "based on" that work. The CC-BY-SA 4.0 legal text does not use "include" or "incorporate" or any similar term to define an adapted work, instead it says: Adapted Material means material subject to Copyright and Similar Rights that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor. For purposes of this Public License, where the Licensed Material is a musical work, performance, or sound recording, Adapted Material is always produced where the Licensed Material is synched in timed relation with a moving image. If including a single work makes your book Adapted Materiel, than you must either release the book under the same license, or else not rely on the CC license. I am not at all sure if such use would make the book Adapted Materiel. If the content could be quoted (perhaps only in part) based on fair use or fair dealing or a similar theory, you would not be relaying on the license. But whether such use is legitimate is always a very fact-bound question, which will depend on various specific facts. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for a summary of US fair use principles. If the materiel you want to use would not qualify under fair use (or whatever similar principle applies in your jurisdiction), and the book would be considered Adapted Material, then you would have to omit it or put the book under the CC license. I see in The CC case law page the statement that: The atlas was a compilation not a derivative work, so did not need to be licensed under the SA term, Which might apply to your book. If it does, you would not need to place the book under a CC license. Update: On reading CC's detailed wiki page on Drauglis v. Kappa Map Group, LLC I find the statement that Use of a whole work is suggestive of a "compilation" rather than a derivative work subject to the ND/SA terms. attributed to the US District court (DC district) that decided this case in 2014. If that decision were followed, it would seem that the book would not be considered a derivative work and while proper attribution must be provided, and the applicable license must be indicated, the book itself need not be released under CC-BY-SA. |
When there is a legal requirement for someone to be 'qualified and competent' to carry out a job, how would this be tested? The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 were recently introduced in England and require that landlords carry out an inspection and testing of the electrical installation in their properties at least every 5 years. This must be carried out by an electrician deemed 'qualified and competent', which is defined as such in the guidance here (https://www.gov.uk/government/publications/electrical-safety-standards-in-the-private-rented-sector-guidance-for-landlords-tenants-and-local-authorities/guide-for-landlords-electrical-safety-standards-in-the-private-rented-sector): "When commissioning an inspection, in order to establish if a person is qualified and competent landlords can: check if the inspector is a member of a competent person scheme; or require the inspector to sign a checklist certifying their competence, including their experience, whether they have adequate insurance and hold a qualification covering the current version of the Wiring Regulations and the periodic inspection, testing and certification of electrical installations." The second bullet point seems to have been kept deliberately vague and has led to confusion among electricians as to who would qualify to conduct the inspection and testing and fill out an appropriate report. If somebody believes they can fulfil the requirements of the second bullet point, i.e. they have demonstrable experience working as an electrician, have adequate insurance and hold qualifications from a recognised institution like City & Guilds covering the current version of the Wiring Regulations and the periodic inspection, testing and certification of electrical installations, would they legally be able to conduct these checks? It seems to me that the answer, given the vagueness of these regulations, should be an obvious 'yes'. However, having asked around on some electrician forums, it's been pointed out that the important term is 'competence'. Is this really an important term, and if so, how would this be tested? | When a court is required to decide whether someone is professionally “qualified” or “competent,” it will generally consider the opinion of expert witnesses from that profession. For example, in Stothers (M & E) Ltd v Leeway Stothers Ltd [2011] NIQB 35, a building contractor claimed that an electrical contractor had breached a contract requiring work to be done by “qualified electricians.” Two of the electricians had no formal qualifications, but through experience, had acquired “grandfather rights” entitling them to work as electricians. The four experts disagreed as to whether these electricians were “qualified.” After hearing from the experts, the judge decided that the electricians were not “qualified,” for the purpose of that specific contract, because they had not fulfilled the requirements of an objective standard. It is not possible to say, in general, if someone who “believes … they have demonstrable experience working as an electrician, have adequate insurance and hold qualifications from a recognised institution” is “competent to undertake the inspection and testing required” in a particular case. The person’s belief may be incorrect or unreasonable. The inspection and testing required may be unusually complicated. Expert witnesses can give evidence about this. If there are conflicting opinions, the court must make a decision based on the facts of the particular case and the purpose of the legal requirement, as occurred in Stothers. The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 require that a “qualified person” be “competent” to work “in accordance with the electrical safety standards,” namely the Wiring Regulations, BS 7671: 2018(3). This article in Professional Electrician & Installer analyses regulation 621.5 of BS 7671, which requires that “periodic inspection and testing shall be undertaken by a skilled person … competent in such work.” Such analysis of a specialised industry standard, if presented by an appropriate expert, could be adopted by the court. | The B.C. Human Rights Code exempts age restrictions for 55+ in relation to tenancy. See Human Rights Code, s. 10. The subsection prohibiting discrimination in tenancy on the basis of age "does not apply": if the space is a rental unit in residential premises in which every rental unit is reserved for rental to a person who has reached 55 years of age or to 2 or more persons, at least one of whom has reached 55 years of age Further, as to condominium bylaws, in 2022, the Province enacted Bill 44, the Building and Strata Statutes Amendment Act, which makes any strata age restriction below the age of 55 invalid (which you have quoted a portion of). Human Rights Tribunal The Human Rights Tribunal can only provide remedies for claims arising under the Human Rights Code. Given that the Human Rights Code does not provide a basis for discrimination claims in tenancy when the age of distinction is 55+, any valid strata by-law relating to age of residents will by definition fall outside of the scope of a Human Rights Code complaint. And even when the Strata Property Act allowed all sorts of age restrictions, the BC Human Rights Code does not provide a remedy when the distinction is authorized by another act (see s. 41(2); Hallonquist v. Strata Plan NW307 and another, 2014 BCHRT 117): Nothing in this Code prohibits a distinction on the basis of age if that distinction is permitted or required by any Act or regulation. Constitutional challenge in a court You also ask about a challenge in a court. I assume you consider that the challenge would be based on s. 15(1) of the Charter (equality rights). There are three potential targets of the challenge: the strata by-law that restricts residency to people aged 55+; the provincial statute prohibiting strata by-laws from imposing any age restriction unless it is an age restriction based on an age not less than 55 years; the carve-out in the Human Rights Code for tenancy restrictions for ages 55+ The Charter challenge to the strata by-law itself would face the barrier that a British Columbia court has held that stratas are not "government" for the purpose of the Charter, so are not subject to Charter challenges: Strata Plan NW 499 v. Kirk, 2015 BCSC 1487. I have quickly added this final portion in response to a clarification of the question, but there is more to say. I will return to explain the law relating to partially ameliorative legislation. | In summary, At the time of writing, Michael Gove has overall ministerial responsibility for making planning regulations, with a good part of the role delegated to Rachel Maclean as Minister of State for Housing. The detail of regulatory verbiage is the work of civil service lawyers, based on policy formed within the department as a result of the general political process. There are various rules for how these functions arise and get transferred around government, described below. The Secretary of State can make regulations about flag display These pieces of secondary legislation, as their names suggest, are made under the authority of the Town and Country Planning Act 1990. Several sections of the Act empower regulations to be made by "the Secretary of State", e.g. in s.220(1) we read Regulations under this Act shall make provision for restricting or regulating the display of advertisements so far as appears to the Secretary of State to be expedient in the interests of amenity or public safety. and the full Parliamentary procedure for making them is spelled out in s.333. This comports with the regulatory preambles, e.g. for the 2007 regulations, saying: The Secretary of State for Communities and Local Government, in exercise of the powers conferred by sections 220, 221, 223(1), 224(3) and 333(1) of the Town and Country Planning Act 1990, makes the following Regulations "The Secretary of State" means a specific Secretary chosen by the Prime Minister Note that the Act just said "the Secretary of State", whereas we have just read about a specific Secretary. What's going on here is that primary legislation just wants to say "whoever in Cabinet has a job that is most relevant", since functions get transferred around, departments created or abolished, etc., and nobody really wants to update a zillion Acts every time that happens. Instead, there is a framework pattern where powers will be given to "the Secretary of State" generally, but will be executed by a specific one according to the division of responsibilities in the government of the day. That will sometimes be just a matter of agreement within Cabinet, but at other times be encoded in secondary legislation - a "Transfer of Functions Order". Those Orders are also needed to handle special situations like - transferring property and legal obligations when departments are created, merged, split or abolished making amendments to legislation which did happen to mention a specific minister ministers who are not a "Secretary of State" as such, but hold another ministerial title, such as "Lord Privy Seal" These Orders are made under the Ministers of the Crown Act 1975, and are in the form of orders of the King on the advice of the Privy Council - which is to say, that the Prime Minister decides who does which jobs. Historically, this is something of an accident, since the number of Secretaries of State has increased along with the scope of government, and it was convenient to appoint lots of people to the same formal office rather than invent fresh jobs - especially in the days before ministers were paid. In any case, flag decisions would currently be made under the authority of the minister responsible for planning affairs, the Secretary of State for Levelling Up, Housing and Communities, Michael Gove. That comes from a 2021 order when that position was created, inheriting all functions from the Secretary of State for Housing, Communities and Local Government. Those in turn derive from a 2018 order taking them from the Secretary of State for Communities and Local Government, and so on back in time. SoS authority can be exercised by other people who work for him Additionally, the SoS can delegate functions to junior ministers; for example, the 2021 regulations state that they are Signed by authority of the Secretary of State for Housing, Communities and Local Government Christopher PincherMinister of StateMinistry of Housing, Communities and Local Government Intra-departmental delegation of functions also requires the agreement of the Prime Minister, although some functions must be performed by the Secretary of State personally. That relates to the so-called "Carltona doctrine", named for a 1943 court case Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, which establishes that a minister is generally responsible for his whole department, and that when some function is conferred on the Secretary of State, it usually doesn't mean that he has to do it himself. Most administrative functions are like that, although the actual laying of secondary legislation before Parliament has to be done by a member of Parliament, i.e. a member of the ministerial team. Following the downfall of Mr Pincher, the junior minister responsible for planning is currently Rachel Maclean, so she would be likely to be taking lead responsibility for putting through planning regulations. So all this doesn't mean that Mr Gove personally decides which flags fall into which category, although observers of his career know that we can't rule that out. But he is responsible for the actions of his department, and the secondary legislation would be laid before Parliament in his name and on his instructions. On the making of flags and sausages Regarding "how and on what considerations" these decisions are made, I have no specific knowledge for flag-related policy. But in general, the secondary legislation is written by civil service lawyers on the basis of government policy, and then approved (or at least not disapproved) by Parliament. For example, after Brexit, the EU flag was removed from the list. The mechanism would be that various people who had never heard of the Town and Country Planning Act became upset about flying of the EU flag, and either wrote to ministers or were Cabinet ministers already. Internally to the department, there would have been a mandate to stop the flag being flown, civil servants would figure out the legal steps, and draft the statutory instrument. In the end we get a regulation saying In Class H in Schedule 1, in paragraph (b) of column (1) omit the words "the European Union,". even though only planning experts would know or care about "Class H in Schedule 1". Similar remarks apply to the companion regulation giving prominence to the Union flag over the Scottish flag, which was a political reaction in Westminster to the SNP-led government in Scotland. Someone who is upset about a regulation, or just wants it to be different, may be able to challenge it through the political process in the same sort of way. There are also avenues for judicial review, if regulations have been made in a way which is irrational, or exceeding the scope of what the original Act allowed, or other similar reasons - but these are difficult to pursue in court. For example, it is more than three months since the 2021 regulations were made, so it is now too late to mount a judicial challenge. | It seems like a lot of "punishments" can be applied to a person without having to go to court. Yes, because everyone has the right and freedom to associate, or dissociate, with other people, and the freedom of contract, at least when the state does not decide to interfere. The state, owing to its monopoly of legitimate violence, has a duty towards everyone under its rule and the people in many countries decided that the state's power should be significantly limited with judicial supervision where individual rights and freedoms are implicated. Other individuals or legal persons do not in general owe a duty to be friend with you or to sign or continue a labour or rental contract with you. At the same time, the people and their government have also decided in certain situations there exists a power imbalance (e.g. between the landlord and the tenant, the employer and the employee, groups suffering from discrimination and stereotypes) where unlimited freedom of association and contract not only harms the individual's human dignity but also harms the society as a whole (e.g. homeless and unemployment, which may lead to increased crimes etc.). Thus, in some situations, the law prohibits discrimination and provides for legal rights generally for the more vulnerable. However, this is a decision that is undertaken by each jurisdiction. A court order is only required if the law says that you normally have a legal entitlement but the state or someone else wants to take it away or limit it, or if the law explicitly requires a procedure before the court. Since you tagged the question with canada... Can a person be fired ... without a court order? Yes. However, in Canada, all jurisdictions have labour laws that regulate dismissal of an employee. Dismissal without cause usually requires notice period and/or severances, depending on the length of employment. Dismissal for cause can be challenged in court and the employer has the burden of proof to justify the cause on a balance of probabilities (more probably than not) and the terminated employee will have the right to have them heard before the court and present their evidences. If the person occupied a unionized position, they may also be able to file grievances with the union before an arbitrator, depending on the text of the collective agreement. The collective agreements also often provide for procedural requirements before the dismissal of an employee in a unionized position. Violation of these procedural requirements may lead to the annul of dismissal or awards of damages. Can a person be banned ... without a court order? Yes. You have no general right to be on another person's property in Canada. Your rights end where others' property (or other) rights begin. Like said in the beginning, this is a societal decision and an act of balancing particular to each jurisdiction, for example, in some places, there exists a right to roam over certain publicly accessible lands. The property owner or another person otherwise legally authorized has the authority to decide who they want on their property (which means what is one's own), subject to certain narrow exceptions, under common law and provincial trespassing acts. Your neighbour cannot prevent you from crossing on their land if you have a valid easement and are not abusing it. But if you are abusing your easement, your neighbour may take you to court for an order. Here the property owner includes the state. However, like almost all decisions made by the state, in Canada and many other countries with the rule of law, can be judicially reviewed for their reasonableness, and sometimes correctness. Like all decisions made by the state, trespassing notices may be challenged if the decision is arbitrary or without legal basis. Can a person be evicted ... without a court order? No. In all jurisdictions in Canada, eviction, that is, the forced removal of tenant from a premise, can only be carried out by sheriffs or other legally authorized officers upon an order from a court or tribunal (often called Landlord and Tenant Board or similar), with exceptions for certain tenancies (e.g. where the landlord and the tenant share living area). Court order is not required for the termination of a tenancy; but the termination of tenancy can only be achieved if the tenant agrees or a tribunal or court orders so. Does Habeas corpus come into play in any of these situations No. Habeas corpus means "that you have the body", which is an order from a judicial official to command the state to bring someone in its custody before the court, so that the legality of their detention by the state may be determined. In Canada, habeas corpus only protects liberty interests of an individual. | Such laws or rules most likely would be on a state-by-state basis. As an example, a rule in Minnesota (and the next part which can be accessed with the arrow in the upper right of the web page) requires that "all electrical equipment, including material, fittings, devices, apparatus, fixtures, appliances, and utilization equipment, used as part of, or in connection with, an electrical installation shall be listed and labeled by a testing laboratory." This rule only forbids use of unlisted cheater plugs, not sale. I have not found a law or rule that forbids selling them. Searching the usual places online, I see it is possible to find 3 prong to 2 prong adapters that are UL listed. I will add that essentially the same skills are needed to figure out whether a cheater plug is more or less safe to use in a certain receptacle as would be needed to replace the two-prong receptacle with a three-prong one, and a properly installed three-prong receptacle is going to be safer. | In Great Britain Employees have two types of protections: contractual and statutory. It would be in breach of contract ("wrongful dismissal") for an employer to dismiss without notice for job hunting but contractually there is nothing to stop an employer dismissing for any reason if they give the notice required (which may be only a week or two, say). Statutory protection may, however, prevent "unfair dismissal" but this generally only applies if someone has been employed for at least two years. There are some exceptions - e.g. dismissal as an act of religious/racial/sex discrimination etc. is prohibited even if the employee has less than 2 years service but these exceptions do not include job-hunting. So someone who has been employed for less than 2 years could be dismissed with notice for job hunting. There are also contractual and statutory protections in Northern Ireland. The contractual ones are the same as in the rest of the UK but some of the details of the statutory protections are different from GB. | The cited provision is: A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex. This language originates in the Sex Discrimination (Gender Reassignment) Regulations 1999. This statutory instrument was made in response to a 1996 decision of the European Court of Justice (P v S and Cornwall County Council, C-13/94) that Council Directive 76/207/EEC of 9 February 1976 , regarding equal treatment of men and women, also covered discrimination on the grounds of gender reassignment. The regulations were made in order to bring domestic law up to date with the EU requirement, by amending the Sex Discrimination Act 1975. The definition at the time, found in the amended section 82, was: "gender reassignment" means a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process So the idea of "other characteristics" or "other attributes" comes from the 1999 version of the law. I expect that the change to "attributes" is simply because the Equality Act 2010 uses the term "characteristic" to mean something else, as it consolidates many different regimes about discrimination on the basis of sex, race, disability, etc., all of which are called "characteristics". The more recent text removes the part about "medical supervision", and explicitly includes people at any stage of transition. Explanatory Notes to the 2010 Act give the example: A person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully ‘passes’ as a man without the need for any medical intervention. He would have the protected characteristic of gender reassignment for the purposes of the Act. (These notes are not binding in law but they do give a good idea of what the drafters meant to say. The concept of 'passes' is also not the most sensitive language to bring in, since trans people do not necessarily want to measure themselves by their ability to pass undetected, and may present differently in different contexts.) The example shows that someone can have the protected characteristic without having, or contemplating, any change to their body. So from this example, the other attributes of sex would include all those ways in which the man "continues to live as a man". From general knowledge of trans men, that could include using a masculine name and pronouns; wearing traditionally-male clothes; wearing a binder, baggy clothing, padding in the crotch, or other ways to suggest a more masculine than feminine body; having a traditionally-male haircut; using traditionally-masculine body language; pitching the voice lower; and so on. The situation for trans women would be parallel. These things are all attributes of sex, in that our society abounds in stereotypes of what is a "manly handshake", or a "girly drink", or otherwise associated with a particular sex. They are to do with behaviour more than the body. | An employer has a duty of care to employees and must take steps to ensure their safety. Notably: 125 (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity, ... (y) ensure that the activities of every person granted access to the work place do not endanger the health and safety of employees; (Canada Labour Code (R.S.C., 1985, c. L-2)) If there is a reasonable belief that the other employee is a danger to you, they should take reasonable steps to prevent this. If they choose to ignore this, they may be liable. Whether or not there is a reasonable belief they are a danger to you or others here is unclear. Being annoying or rude does not endanger you and they haven't made threats towards you (I assume, since you'd have mentioned otherwise). |
What are the legal boundaries of a parent's right to direct their children's education in terms of a private school or homeschooling curriculum? All states in the US have some form of compulsory education law with allowances for private schools and homeschooling for children roughly between the ages of 5 and 17. There are some existing exemptions from compulsory education for special situations, but let's set aside those exemptions and assume we're talking about a child without special physical, mental, religious or geographical considerations when it comes to education. In many states the curriculum for the non-public education must cover a number of specific topics, like language arts, math, history etc. Sometimes the law requires the schooling offer an "equivalent" education to the public school education. How comprehensive and/or specific can the government's dictates be with regard to specific topics? For example, some states have banned teaching certain concepts like "That the United States of America and the state of Iowa are fundamentally or systemically racist or sexist. Currently, the law only applies to "governmental agencies and entities, school districts, and public postsecondary educational institutions", but what if the state refused to recognize a parent's proposed curriculum as equivalent or failed to certify them as a home school teacher because they knew a parent was going to teach the banned concepts? What prevents a state from requiring certain topics that some parents might object to on non-religious grounds? Can the state insist on a particular version of history for example? If the state requires that the curriculum include teaching that "Jimmy Carter was widely regarded as the handsomest US president." do parents that believe that is not true have any recourse? I realize that state law varies widely on how a parent can go about homeschooling their child, and I'm not trying to express an opinion on what children should or should not be taught. I'm interested in how far the government can go with compulsory education to ensure that its populace receives an education that is reality-based (we don't have winter because Persephone is in the underworld), and what safeguards are in place to prevent the government from using public education to teach things in its own self-interest like "only bad people need a lawyer when being questioned by the police". | The state has wide discretion on what to require that a school teach to children, particularly in the K-12 grade range. There is little case law where a parent or private school has challenged such requirements. However, for a state to forbid that certain things be taught would probably run into a first amendment problem, because the school has free speech rights. In addition, if the school is a religious one, forbidding teaching its dogmas and views might also impact the free exercise clause. Note that a state need not permit homeschooling at all, and some states do not. When a state requires that a school teach something that it disagrees with, it can often follow a line such as "Many people think X {Standard state supported concept} but we believe Y instead. Then it has taught X, but not endorsed it. Some religious schools have handles the teaching of evolution in this sort of way. If a state mandated teaching matters of opinion as fact, such as "CARTER WAS THE MOST HANDSOME president EVER" there might well be a challenge, and I am not at all sure how it would be resolved. | This question mixes up two separate although related issues: Does a student have a first amendment right to perform "sacred" music during school time? Is a public school allowed to include such in its curriculum, or does the First Amendment's Establishment Clause forbid that? The answer hinted at in the question applies only to issue 2, while the title of the question goes to issue 1. Engel v. Vitale, 370 U.S. 421 (1962) held that school officials may not compose an official prayer, and mandate or encourage its recitation. (mandatory recitation would probably have been prohibited by West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) much earlier.) The ruling of Engel v. Vitale, would also have applied to sung prayers. Later rulings, consistent with Engle prohibited "one minute for prayer or meditation" ( Wallace v. Jaffree (1985)), clergy-led prayer at middle school graduation ceremonies (Lee v. Weisman (1992)), and school-organized student-led prayer at high school football games (Santa Fe ISD v. Doe (2000)). But none of these prohibited religious music as part of an instructional music program that was not a form of worship. All the above cases prohibited school-organized prayers intended as prayer or worship. As to issue #1, it is settled that students have the right to pray privately, in ways that do not disrupt school activities. It is hard to see how performing religious music could be done privately and non-disruptively. Neither students nor their parents have a right to insist that certain topics be included in the school curriculum. The students have a right to pray, but not to insist that the school organize prayers or include religious music in its music program. | Ultimately the answer (in the US) is the US Constitution. The courts pretty much have the unlimited power to interpret the law, and the limits on power mainly pertain to what the state can do. The length of the leash on the government depends on what kind of rights are at stake. The weakest and default limit is known as "rational basis", and comes down to asking whether a government action is rationally related to a legitimate government interest (such as stopping terrorist attacks) plus whether there was due process and equal protection. There are more rigorous standards (intermediate scrutiny, strict scrutiny) in case a law involves a "suspect classification", or in case a fundamental constitutional right is infringed. In the case of strict scrutiny, the government would have to show that it had a compelling interest in the action, the law would have to be "narrowly tailored" (i.e. does that thing and only that thing), and should be the least restrictive way to achieve that result. Roe v. Wade is probably the best-know example of that kind of review, which held that abortion laws "violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy". A court would not order a party to do an impossible act. A court could order a party to do something which the party had argued was impossible, but you can interpret a court's decision to indicate that it rejected the argument. The defendant would not shoulder the burden of proving that the action was impossible, though they would have to counter the government's argument that the act could be performed if they believe it is not possible. (In the Apple case, the argument would probably be some Apple-internal document that says "Yeah, we can do it, but do we want to?"). There is probably an expense-related limit in that the courts would not order Apple to liquidate all of their assets to comply. But: if a case were to end up at the Supreme Court, the court is stricken with mass insanity and arbitrarily orders a defendant to do the impossible, there is only the option of impeachment and Senate trial to remove the offending justices, and that is just not going to happen. There is no higher authority that overturns SCOTUS. | 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. | Students too have freedom of information and expression. The school has no right to interfere with the student's activities outside of school. But is this activity outside of school? If the newspaper is created as part of a student council or a school-supported project group, supervision by a teacher might be appropriate. If the newspaper wants to distribute copies on school grounds, it will need the school's consent. If the name of the newspaper suggests an affiliation with the school, this could affect the reputation of the school which could lead to legal problems down the line (e.g. claims of defamation). Private schools are likely allowed to impose more restrictive rules. While there are legitimate reasons why the school would have to be (or wants to be) involved, it is ultimately not possible for a headmaster to restrict the student's freedoms. There is no legal basis for installing a censor. But a newspaper by students is not necessarily a “student newspaper”. Of course, any newspaper will have to comply with applicable press laws. Ultimately, the exact rules depend on press law and education law in that particular state. Bavaria provides a good online summary of the rules in that state, and Wikipedia summarizes the situation across a few states. Note that some press laws might require the senior editor to have a certain age if there isn't a special privilege for student newspapers. | Clause (c) says that while schools cannot generally restrict otherwise legal expressions by students, a school run by a religious organization can restrict such speech in terms of its tenets. It then becomes a matter of fact to be proven in court that the church has a particular tenet. So if you are asking whether it is correct that the religion exception is narrowly limited to contradictions of the religion's tenets, that is correct. | Yes. It is legal. Curriculum requirements are policy decisions of an institution, not binding contracts with students. It might be ill advised policy, but it is not prohibited. | 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. |
Is there any legal obligation to tell a supplier they are consistently undercharging for a service? Back story: Historically my electricity supplier worked on a 3-month billing cycle. They asked for a meter reading (or took their own reading), sent a bill, and I paid it. Rinse and repeat every three months with no problems. A few months ago, the supplier unilaterally changed to a 1-month cycle. (I suspect their reason is to "encourage" all their customers to install smart meters and to authorize payment by direct debit, but that is beside the point of the question. Neither smart meters nor direct debit payments are mandatory). The first iteration of the changed system was as expected: supply meter reading, receive bill, pay bill. Since then, I have been getting monthly requests for meter readings. I supply the readings and get confirmation that the supplier has received them. However I am not receiving any bills. Indeed, each monthly request for a meter reading has an explicit statement that my account balance is £0.00. The first time this happened I assumed it was just a glitch in their new system, but it has now been repeated for several months. All messages and payments are electronic (as they were in the previous system), so there is no physical paper trail. The company website contains a copy of logs all messages sent to me, and there are no messages that were sent but never received (e.g. lost emails). Do I have any legal obligation to tell the company they are supplying me with free electricity? (Ignore any ethical or moral considerations). Of course, if and when they company does discover its error, I have no problem with paying the arrears. | To me this seems analogous to failing to report a bank error in your favour, which amounts to theft in england-and-wales. I wrote an answer about that here. See that answer for the details but briefly there are five elements to establish under section 1(1) the Theft Act 1968: Dishonesty (section 2) Appropriation (section 3) Property (section 4) Belonging to another (section 5) Intention to permenantly deprive (section 6) As pointed out in the comments, there is a separate offence of abstraction of electricty in section 13 which only has the following elements: dishonesty, use of electricity, and lack of due authority. The courts have also held that electricity cannot be considered "property" for the purposes of the Theft Act (Low v Blease [1975] 1 WLUK 325). Arguably this offence is not commited here as you had due authority (permission from the supplier) to consume the electricity, however I will have a look later to see if I can find some case law on this point and edit it in if I find anything. With that said, "property" includes choses in action (section 4(1)). Choses in action are intangible property which can only be recovered by enforcing a right rather than by taking possession. In the case of a bank error, the resulting bank balance is a chose in action and the crime of theft is committed on that basis. In your scenario, the right to be paid for electricity you consume is a chose in action belonging to the supplier. Although I'm not aware of any case law specifically on this point, it seems to me that depriving the supplier from its right to be paid could satisfy the requirement of appropriation of property. The other elements of theft, as in the case of bank errors, are easily established here. Note that you won't be saved by "if and when the company does discover its error, I have no problem with paying the arrears". This is because of section 6(1) of the Act which states: A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. Even if you eventually pay for the electrity, your intention was not to do so if they didn't notice. Note also that it is not necessary that there is a contractual requirement to notify the supplier of their mistake. Such a requirement can arise under common law (e.g. A-G's Reference (No 1 of 1983) [1984] 3 All ER 369, elaborated in my other answer). You didn't specify which part of the UK and this answer may not be applicable in Scotland or Northern Ireland. | It is legal for a company to ask for any information they want as a condition of doing business with you, so long as their request isn't proscribed by law. I don't know of any jurisdiction where a request for banking or credit information is illegal. (In this case, however, it does seem like you are being phished. You could report the matter to your country's consumer protection agency.) | As it turns out, Talgov has a convoluted way it bills taxes which it doesn't explain on its bills or website. Its website claims to bill electricity at a rate of $7.59/month + $0.10522/kWh but, with taxes, it actually comes to $8.5631 plus $0.11598/kWh. On top of the advertised rate, it bills a gross receipts tax of 2.56406%. It also bills a public service tax of 10% on the monthly charge + $.07792/kWh + the gross receipts tax. That gets you the higher effective billing rate I mentioned above. The $.07792/kWh is reached by replacing the ECRC rate from the website with $.0077/kWh--I don't know why and I can't find an official document saying this--but that's what is happening apparently. So, Talgov doesn't bill sales tax after all and private residences are not exempt from the taxes it bills. Thus, it has not overcharged me a tax I should be exempt from and Talgov is allowed to do what it is doing, but it would be better if they represented their billing rate more honestly on their website. I'm also still not sure how they reach their 2.56406% gross receipt tax rate. The Florida statute that addresses gross receipt tax seems to specify either 2.5% or 2.6% (I can't figure out which should apply), but not something in between: (b) 1. The rate applied to utility services shall be 2.5 percent. 2. The rate applied to communications services shall be 2.37 percent. 3. An additional rate of 0.15 percent shall be applied to communication services subject to the tax levied pursuant to s. 202.12(1)(a), (c), and (d). The exemption provided in s. 202.125(1) applies to the tax levied pursuant to this subparagraph. 4. The rate applied to electrical power or energy taxed under subparagraph (a)3. shall be 2.6 percent. I found the information about the Talgov tax rates in a document from a Jacksonville utility company that compares utility rates for various utility companies, including many in Florida. Some Florida companies use a 2.5% gross receipt tax and some use a rate between 2.5% and 2.6%. This is also strange because that Florida statute seems to suggest the rate should be uniform statewide. TL;DR: Talgov is not charging sales tax, but rather some other taxes that I am not exempt from. I was able to figure out what rates they were charging for those taxes, but not why. | In the UK, if you're in a regulated sector e.g. financial services or health services, there are obligations relating to complaints handling. E.g. the Financial Conduct Authority sets out complaints handling rules in DISP 1.3. The FCA says a complaint is: any oral or written expression of dissatisfaction, whether justified or not, from, or on behalf of, a person about the provision of, or failure to provide, a financial service, claims management service or a redress determination, which: (a) alleges that the complainant has suffered (or may suffer) financial loss, material distress or material inconvenience; and (b) relates to an activity of that respondent, or of any other respondent with whom that respondent has some connection in marketing or providing financial services or products or claims management services, which comes under the jurisdiction of the Financial Ombudsman Service. So if there is "feedback" expressing "dissatisfaction" etc it is a complaint. Some entities have acted such that they seem to believe a complaint must be submitted through 'proper channels' to be a complaint. E.g. a complaints form online, a complaints@companydomain email address or a letter addressed to the Complaints Department. Is that the distinction you are making? But that is not the case in regulated organisations, where a complaint is "any oral or written expression of dissatisfaction..." Now, in such an organisation you're not obliged to have a particular type of form or email address etc. But you are obliged to make the complaints procedure relatively easy and reasonably priced if not free (i.e. premium rate phone number for the complaints line = bad, local rate or freephone number = OK). | 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. | If you are in the habit of paying people just because they ask you to, then I say you owe me $500 - if you want to pay I'll send you my wire transfer details. This is a facetious way of making a very simple point: You don't owe people money just because they say you do. If someone claims to be owed money by you, the legal onus is for them to prove both their legal entitlement and the amount. Normally, people agree that they owe money and that's enough, however, if the debtor disputes the debt then the creditor has to prove that it is owed: the debtor does not have to prove that it isn't. Their legal basis must come from either a contract or the tort of trespass. For the former they must prove that a contract exists and that you breached a term of it. For the latter they must prove that you committed the tort. In both cases, they are only entitled to recover their costs (including loss of profit) that your actions caused. As they are not a government they have no right to punish you with a fine: if they are asking for more than damages then this is a penalty and void. I am unaware of the consumer protection laws in Canada but presuming they are similar to Australia - a disputed debt is not a debt. It only becomes a debt when the dispute is resolved, usually by agreement or a court. Only actual debts can have enforcement action taken including such things as being pursued by a collection agency or being recorded by a credit reporting agency. In short: this is a scam. In 2012 I went through a similar process. This is the letter I sent: We are the registered operator of motor vehicle XXXXX and have received your letter dated 6/6/2012 for payment of car parking penalty number XXXXX that you allege we incurred on 6/4/2011. To the extent that we entered into a contract with you, which is denied, please take this letter to constitute a written appeal in accordance with the appeal process described on your website and/or in your documentation. We dispute incurring the alleged debt and we dispute entering into any contract with you. We will defend any action brought against us. You must cease all efforts to collect this alleged debt whilst it remains in dispute, in compliance with National, ACCC and NSW laws and guidelines. Except as specifically outlined herein, we are requesting that you cease all contact with us about the alleged debt. Any further contact should be strictly in conformity with the ACCC Debt Collection Guidelines (refer http://tinyurl.com/parking-01). Your contact with us should be limited to: acknowledging our letter and providing us with any documentation that we have requested informing us that you have ceased collection efforts on the alleged debt stating that you are taking a specific action in relation to the debt such as commencing court proceedings (note that you can only threaten court proceedings if you intend to start them otherwise you are in breach of the guidelines - refer page 33 "you must not threaten legal action if the start of proceedings is not possible, or not under consideration, or you do not have instructions to start proceedings"). You must also advise any debt collectors or lawyers you have collecting this debt to stop. If you or your agents continue to attempt to collect this alleged debt, we will complain in writing to the ACCC, to NSW Fair Trading, and to the car park owner (and if we receive a further letter from your lawyers, we will complain to the Legal Services Commissioner in the lawyer's home state). Please send us within 7 days: Confirmation of whether or not you still hold us responsible for this alleged debt. If you still hold us responsible, we require you to properly articulate the facts and matters on which your claim is based. Please forward us the following particulars: A copy of the contract we are alleged to have entered into. Photographs of any signs that need to be read in conjunction with the alleged contract. Details of the actual offence you are claiming. e.g. failure to buy ticket, expired ticket, parking in no-standing etc. As well as the usual particulars of date, time, precise location with the car park and other facts and matters giving rise to the alleged breach of agreement. An itemised breakdown of the debt you are claiming and details on how it was calculated. Show separately legal costs, court costs, administration costs, costs associated with identifying us as the car owner, patrolling costs and a breakdown of any other costs not already mentioned. Pursuant to the Privacy Act, a copy of all photos you have of our car and/or us. Indicate the date each photo was taken and the name of the person who took the photo. And forward us any other data that you hold on us that the Privacy Act requires you to disclose. The basis on which you allege that we ware a party to the agreement alleged to exist; Proof that the alleged debt was incurred by us. The name(s) of any lawyers or solicitors who received payments pursuant to any clause in your terms and conditions. Please show the amounts and dates on which these costs were incurred, and the dates when these payments were made. Please itemise the work that such lawyers or solicitors performed for you, and indicate which clause in your terms and conditions allows you to hold us liable for such payments. A copy of any agreement that the car parking company has with the owner of the car park which covers the handling of disputes and appeals. Indicate the amount of money the car park company would have been paid had we entered into the alleged agreement with it, and if the alleged terms and conditions had been followed to the company's satisfaction. (In other words, how much money do you normally receive for a car to park in your car park for the period of time we are alleged to have parked there for). The contact name, postal address, and phone number of each of the following: the car park owner, the car park manager, and the car park operator. A copy of your Appeal handing procedure. As well as setting out what factors are taken into account, state who is the judge or arbitrator and whether they are independent and any other relevant factors to the Appeal. In addition, please give us disclosure of any arguments being put by yourselves on this matter in the Appeal so that we might reply to any new issues which are raised. If you decide to dismiss our appeal, please send us the full reasoning in relation to each of the specific points raised in our letter. The name and address of the person you allege was driving our car at the time you allege our car was parked in your car park. If you are alleging an agent authorised by us was driving our car, please confirm this in your response and forward us a copy of the agency agreement, along with the name and address of the agent. We put you on notice that should you continue this claim, we will issue an application, seeking orders that: Any request for a statutory declaration or request from you to prove in anyway that we do not owe this debt is misleading or deceptive conduct, because you are not a government agency and that the burden of proof rests with you as the person who claims the alleged debt. The amount claimed pursuant to the alleged contract amounts to a penalty and therefore void at common law. Alternatively, the amount claimed is claimed pursuant to a consumer contract within the meaning of the Australian Consumer Law and that the amount claimed is an unfair term within the meaning of section 23 of the ACL and, accordingly, is void. Finally, this debt remains in dispute until we advise you in writing that we owe this debt. I received one further piece of correspondence which didn't address any of the things I asked for and which I ignored and that was the end of the matter. | They're not actually billing people different amounts because they have insurance or not. Doctors can pretty much bill a patient whatever they want for their service, similar to how a grocery store can charge whatever they want for their fresh deli cheese. Generally, they charge every single person the same amount. It just gets discounted depending on the insurance you have and how much they're willing to pay. One of the huge benefits of having medical insurance (outside of them paying for your medical expenses) is that they build contracts with service providers, known as their network. Those contracts specify prices (both preset and algorithmic) for certain services that you receive through those providers - the insurance provider will only pay that much and the doctor cannot charge the patient more than what is paid. If a claim was processed through a different insurance provider, the price will likely be different since each provider will have a separately negotiated contract with different price points for different services. It's not a system of "this is the insured price and this is the uninsured price" but rather a system of "this is the contract you established saying you'd accept this much from us for this service." For an uninsured person, though, you have no insurance provider and more importantly no provider contract backing you up. So you'd have to face the full force of the non-discounted price of those services. You'll face the same problem even with insurance if you go out-of-network, where the provider does not have contracts and therefore will only cover up to a certain amount that they would normally pay out for a similar service, requiring you to cover the rest of the amount of whatever the doctor decided to bill for that particular service. Without that insurance contract preventing the doctor from billing you the remainder of what they'd normally charge, you'll likely be slapped with a bill for that remainder. Directing back at your original question: there is no reason that a medical provider would ever legitimately bill someone a different amount because they are insured or not, thus there are no laws preventing it. It's that they already agreed to accept this certain amount from patients covered under this specific insurance. Again, they bill every patient the same amount - the insurance company is just saying "we're giving you this much and the rest of this, yeah that needs to go away." If you've ever looked at an EOB (Explanation of Benefits) from your insurance company, you'll see that the actual billed amount from the doctor is almost always much, much higher than what is actually paid out by you or the insurance, often known as the insurance discount. Maybe you'd rather think of it as a coupon? | Depends on where you are, and likely also on what they knew when. It is entirely normal to order some goods (like perishable food, or custom-fitted furniture) before it is produced. The contract may or may not include advance payment. Most jurisdictions require some sort of intent for fraud, so the non-fulfillment would not be fraud if circumstances beyond the control of the supplier prevent delivery. The question of civil damages and repayment is distinct from criminal fraud charges. |
Can I choose how to pronounce my own name? This is more a thought experiment than anything else... Let's say my name is 'Alan Temaficoni', and, as a joke, I decide to pronounce 'Alan' as 'Professor', making my name sound like 'Professor Temaficoni'. Are there any laws that prohibit me from doing so? I can imagine that if I were to do this in order to perpetrate some kind of fraud (I'm not thinking of doing this!), I could encounter legal challenges. I've done some searching on this, both here and on the Internet at large, and have come up with a total blank. Thank you for your thoughts! Addenda in response to comments: I'm not specifically referring to any particular jurisdiction. If there are any rules relating to this, I would imagine that they would presumably follow the same lines. I'm not talking about aliases. I'm referring specifically to the latitude allowed to anyone who might choose to insist that their legal name be pronounced in a manner that would be substantially different from the way in which others might do so. | No jurisdiction imposes penalties for "mispronunciation", however conceived. Some jurisdictions have official language academies which sanctioned by the government, but they are limited to a declaration of what is "official". Some countries have naming laws, according to which in Norway you shall not name your child Zaphod Beeblebrox, but Knut Toresen is available. No law of Norway requires you to pronounce the name the way it is pronounced in "Standard Norwegian" (if there were such a thing), or even the way it is pronounced in any known dialect. While you have a right to mispronounce the name however you want, you cannot use this practice as a pretext for evading legal responsibilities, thus you must respond to legal service duly delivered to you under the name Knut Toresen, etc. To slightly change the scenario, if you decide to pronounce Knut Toresen as Tore Knutsen, you cannot disaffirm a contract where your name was given orally and you pronounced Tore Knutsen, intending that the person should write "Knut Toresen". | I've seen prohibito used in a few places, but never by any source that I'd use as a model for my writing. As I understand it, the Latin names for the other writs were adopted in medieval times, when Latin was much more heavily used in the English courts, while the writ of prohibition developed centuries later. In that case, I think it would have been natural to simply give it a standard English name. | Your caveat about not being a national of either country is a bit puzzling, because your question is about acquiring the countries' nationality, which implies as a matter of course that you do not presently have either nationality. After acquiring each country's nationality, of course, you will be a national of that country, so by the time you are a dual citizen of Italy and the US, it will no longer be true that you are not a national of either country. In other words, it's analogous to asking "Will I be able to get a driver's license after I learn how to drive? The problem is that I don't have a driver's license." US law does not require you to renounce Italian citizenship if you naturalize as a US citizen. I don't know Italian law on the matter very well, but the relevant section in Wikipedia says, without citations, that naturalizing elsewhere does not cause loss of Italian citizenship. Assuming that is true, and that neither country makes any relevant changes in its nationality law, then the answer to your question is yes: you can be a dual citizen of both Italy and the United States. (In fact, you may at that point hold three or more citizenships if your current country or countries of citizenship does not or do not have laws causing you to lose citizenship when you naturalize in Italy or the US.) | You can hire someone to locate the defendant with the information that you have, or you can apply to a court for permission to serve them with process via "substituted service" because their physical address can't be determined. But, in general, better business practice is to not enter into contracts with people with whom you have more than a name that might be false, and an email address, unless you have some means of non-judicial enforcement of your agreement (like the practical ability to shut down access to an internet subscription). If you don't even know if someone's name is real and have done nothing to confirm that then you also have no assurances that they have any assets from which you could collect if you won a breach of contract lawsuit. If you deal with large numbers of people in low value contracts, it may be worth treating the fact that some contracts are effectively unenforceable as a cost of doing business. But, if a contract is important, it was foolish from a business perspective to rely on a contract on that basis alone, even if it is legal to do so. | Disclaimer: I'm from the US and don't claim to know German or Turkish law. So let me discuss some general principles here, but details may well be different in Germany and Turkey. You're mixing together three very different things: trademark, copyright, and patent. Copyright protects the expression of an idea, in this case, the exact computer code, images, etc. If you didn't copy his code, the chance that you would coincidentally write identical code is remote. The fact that you both have a line of code that says x=x+1 wouldn't give him any grounds for a lawsuit. He'd have to show substantial portions of the code were identical. If you didn't deliberately copy his code, this isn't going to happen. Barring some extraordinary and unbelievable coincidence, you can't violate copyright accidentally. Trademark protects names and symbols used to identify a company or a product. If you decided to call your software company "Microsoft", then that other Microsoft could sue you for trademark infringement. Likewise if you copied somebody else's logo or other distinctive graphics. This is very different from copyright. It is quite possible to violate someone's trademark accidentally. Especially if he gave his company or product a rather generic name. Like if someone called his product, say, "Password Manager", someone else might make a product with the same name without ever having heard of the original. Ditto if he has some simple logo or other graphics. If you did accidentally duplicate a name or graphic elements, well, in the US a court would likely order you to change your name or graphics and that would be the end of it, unless you refused, in which case you'd end up in court. US Courts have ruled that very generic names have limited trademark protection. An example I saw recently was "Main Street Auto Repair". A court said that the owner of that name could prevent someone else from opening a shop in the same town with the same name, but he couldn't sue someone in another town who happened to use the same name. This is why, by the way, companies often use made-up words for their product names. In your case, this should be a trivial issue. If he is claiming trademark to the look of the main menu screen, just change the colors or move some buttons around. If it actually went to court, you should be able to argue that the similarity was accidental and when you were informed you promptly changed it, and that should be the end of it. Depending, I guess, on how hard-nosed the judge is, etc. Patents are different still. A patent gives the owner the exclusive right to use an invention or process for a specified period of time. It doesn't matter if you invented the same thing entirely independently. Whoever filed the patent first has exclusive rights. There have been cases where an inventor lost out to someone with a similar invention because he submitted his patent application one day later. If this other person has patents that you are infringing, you are pretty much out of luck. | 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? | Yes An American would spell it as “your honor,” but yes, this is how we refer to all judges. This is simply a custom that shows respect. There is no law or concrete fact I could cite that requires this; it is more of a “tradition.” But I have seen plenty of court proceedings (mostly on TV), and I can confirm that all judges, ranging from small claims court to the Supreme Court, are called “Your honor.” (The chief justice of the Supreme Court is sometimes addressed as “Chief Justice.”) Googling articles about courtroom etiquette also mostly leads to people who agree with this. Apparently, there are some countries where it is customary to say “my honor,” or even something else altogether. Sometimes people from these countries immigrate to the US and continue using their local terminology in a US court. Although every judge is different, my perception is that most judges try to be inclusive of other cultures, and if whatever term they use is intended as a sign of respect, most judges will usually just interpret it as it was intended. | Unless the notary personally knows the signer, the notary should, and normally will, ask for identification, and the name that the notary puts in the notarization certificate should be copied exact6ly from whatever ID is presented. For Alan Jones to sign as J7, he would need some sort of official proof, acceptable to the notary, that he is "J7". What would that be? I doubt that any notary would certify such a doccument. (If the document is signed as "Alan Jones" but the ID says "Alan J Jones" I am not sure if the notary must follow the ID or may follow the document, assuming that the notary is convinced that the two are the same person. Many notaries in practice will follow the ID.) I agree that the normal way would be for the document to say "Alan Jones, also known as 'J7'", and possibly include wording such as "I Alan Jones, am the person who posts on site XYZ.com as "J7", and specifically who posted a message starting {quote} at {timestamp}." (Or it could give the secure hash of the message, or of several messages.) This would clearly est6ablish a link between the document and the online conversations/acts that it is meant to refer to. The questions says: a need has developed for Alan Jones to sign a document using the name J7 I doubt that doing such a thing is either required or helpful. Rather I suspect he will need to sign a document in which he acknowledges being the particular "J7" involved in the matter. |
Now that the OPEN Government Data Act is law, can we request data for free? Currently reading The OPEN Government Data Act is now law. Now that the measure is the law of the land, agencies will be called upon to maintain comprehensive data catalogs... I am pretty sure some sites like the Delaware Business Search (@ delaware.gov) don't offer free bulk access to their public business listings beyond what their web service provides, I am not fully sure I have asked though. Is it just a matter of asking now? | You generally can request data for free, but keep in mind that the Act does not require every set of data to be published or released. For instance, it applies only to data that is subject to release under the Freedom of Information Act. This means that it has no effect on the Delaware Business Search database, because that data is not controlled by a federal agency, and therefore not subject to FOIA. There have been requests for bulk access to this data in the past, and as far as I know, they have all been rejected. Given the state's economic reliance on its very sketchy business laws, I would but expect that to change any time soon. You would suddenly have journalists and the like scouring the database making all sorts of connections and uncovering all manner of unsavory activity, and no one in a policy making role wants to have to deal with that. | a few quick notes that come to mind. As the commenters point out: DSGVO is indeed the German equivalent name to the GDPR (English term) "Imprint" isn't a privacy related topic that much, as such it's not really changed by the upcoming GDPR The GDPR changes many things, but the requirement for up front information isn't one of them - so it would've already been a rule to follow Sometimes the question who is responsible for privacy information might not be that easy to decide when you're on platforms. I take this situation as being pretty clear though. You are basically given a blank slate, you can do with that page whatever you want, and the visitor has no clue whatsoever that it might be hosted by Github. In addition to this, Github would be classified as a data processor (providing the tool) and you as the data controller who is in charge of practically everything except for the provision of the page. I hope this helps. Btw. it's not that hard anymore to write a privacy policy these days. | My remarks pertain only to US Law. Laws vary in other countries. Subject matter eligible for copyright protection in the US must be expressive and creative. To the extent data are merely measurements of observable fact in the world, they are not copyrightable. It may be that the presentation or interpretation of data is eligible for copyright protection (for example, artwork used in charts, graphs, graphics, etc., that is expressive and creative), subject to various equitable use provisions (in particular Fair Use, which is still a legal grey area). The methods by which data are gathered can be considered IP, but is the domain of patents. Methods are not copyrightable (17 USC 102(b)). | Publishing government records is pretty classic First Amendment-protected activity. Keeping in mind that one can find a lawyer to sue for anything, I think that person would likely be operating well within the law. One thing in particular that I'd recommend staying aware of is how one might attempt to monetize this endeavor. There have been a lot of sites publishing arrest records, court records, and mugshots, and then charging people to have them removed to keep them from popping up in a Google search for those people's names. That is -- rightly -- regarded as sketchy behavior; while several states have passed laws prohibiting that business model, I don't believe any such law exists in Washington State at this point. | 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! | From my reading of the bill, and the manner in which it would amend the Family Educational Rights and Privacy Act, the changes do not prevent educational research, but rather, ensures that constraints are in place to prevent the identification of individual students as a result of that research. It also requires a student's parents to consent to such research and/or video monitoring. The data is required to be aggregated prior to any kind of public release, and this is already common practice in most research programs. | There is nothing preventing the OP's "subject" from making a Subject Access Request in these circumstances From the British Transport Police's Privacy Notice page, under the heading "How we use personal data": This privacy notice explains: ... the rights individuals have when we process their personal data. ... Right of Access: You can request access to the personal data we hold about you free of charge. You can request access to the personal data we hold about you using the contact details in this privacy notice. ... We collect personal data from a variety of sources, including: ... sound and visual images (e.g. from body worn cameras, CCTV, or facial recognition software); ... our own CCTV systems and body worn cameras. There's more detail in the link, which I have not replicated here to save space and avoid unnecessary "noise", but the above should cover the relevant points raised by the OP | Copyright Prominent at the bottom of the page is: © RealClearPolitics 2015 This is nice because it tells you who you have to approach for a licence. If it wasn't there the material would still be copyright you just wouldn't know who owned the copyright. Questions So: If I'm looking to build an app or write a book and I wish to use statistics, am I allowed to basically use their numbers as long as I cite where it is coming from? No, unless what you do constitutes fair use and I don't think it does. If I do make a profit from it, do I owe any royalties to the original scientists/surveyers? No, but you would owe whatever licence fee you negotiated with the copyright holder, ostensibly RealClearPolitics. Must I ask them for permission? Yes, unless you are OK with running the risk of being sued. Commentary I see books reference hundreds of studies all the time This is because they are generally protected by Academic Fair Use public polls should be open information to everyone The only public poll that I know of is an election and that information is available. What you are looking at is a private poll commissioned by and paid for by RealClearPolitics and it is their intellectual property; why should that "be open information to everyone"? commercial interests may be legally entangling Always |
Is litigation required for SCOTUS to judge the constitutionality of an issue? I made an observation in another thread about mandating vaccines that it would probably be a good idea for those who are for the idea of mandating vaccines, that its constitutionality should first be judged. As I saw it people did have the right to refuse medical treatments and that includes refusing a vaccine. If the constitutionality of this issue would be tested by SCOTUS is it required that some sort of litigation must precede it? Do you first need some sort of government agency that wants to do it, someone who objects and then for this issue to go to court or can a civil rights group ask for a judgment before it is actually enacted? Can courts make judgments like this or do they not handle hypotheticals or judge the constitutionality of things that might one day occur? | The Supreme Court does not handle hypotheticals. The court has interpreted Article III Section 2 Clause 1 of the Constitution, the Case or Controversy Clause as a limit on the powers of the judicial branch. The courts have jurisdiction over various types of cases and controversies but only those listed in the Constitution. This limits courts to hearing actual cases and prevents them from issuing advisory opinions. Additionally, in order to bring a case, the plaintiff must have standing to bring the suit. You can't sue the government just because you don't like a law (well, you can, your suit will just be dismissed because it lacks standing). You have to show That you have been, or will imminently be, injured (injury-in-fact) That there is a direct correlation between that injury and the law (causation) And that a favorable court decision will redress the injury (redressability) As a practical matter, the courts are already overwhelmed by the number of actual cases that come up and the Supreme Court can only hear a tiny fraction of the cases they are asked to hear. If they added the ability to hear hypothetical cases as well, the court could easily be overwhelmed by Senators and Representatives asking them to weigh in on every remotely controversial bill or amendment before Congress or interest groups bringing cases for speculative grievances. | Why do other countries, like America, not allow this? It is the way that U.S. courts have interpreted the constitutional amendment requirement and reflects a policy judgment that letting someone go free now and then is better than frequently forcing someone to be tried more than once. That value judgment flowed from concerns about and fear and skepticism of the British colonial criminal justice system and the Star Chamber in England with which they were familiar. The U.K., Australia, Canada, and New Zealand didn't have an independence revolution in their history to create the same kind of deep distrust of authority, especially in the criminal justice area. The U.S. was founded by terrorists. Few other former British colonies were. Quoting Dale: "As a constitutional protection, legislative change like this is not available in the United States." Is that really true and can someone expand on this? When the courts determine that the constitution requires something it can't be changed with ordinary legislation. Either the constitution needs to be amended to change it (which is very hard), or the courts can change their interpretation (which is unlikely in an area so settled in the law and which is relatively uncontroversial between liberals and conservatives in the U.S.). If it is, this is a big problem in my opinion. The powers that be in the U.S. don't agree. This kind of case is exceedingly rare. And, there are much bigger problems with the system that obscure that one. Also, the dual sovereignty doctrine allows federal prosecutions in some wrongful acquittals that really matter (e.g. for civil rights violations by law enforcement). | I am wondering if the government can still implement it and force people to pay even if the decision is challenged in court. Laws are not automatically put on hold because they are challenged. For an action or a law to be halted by the Court before a decision is made, the applicant would have to seek an interlocutory injunction, which are granted only if, as established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, (i) is there a serious issue to be tried, (ii) will the party seeking the injunction suffer irreparable harm if it is not granted, and (iii) does the balance of convenience favour the party seeking the injunction. The first issue is rarely a problem, especially for a controversial issue like this. I am thinking the government might be able to tax people and then refund people if the court doesn't uphold the decision instead of a court challenge being able to postpone the tax indefinitely. A quantifiable financial harm is rarely irreparable (in private law cases). However there is an important exception for Charter cases where a financial harm is assumed to be irreparable because damages are often not awarded in constitutional cases. Though in this case it might be considered reparable because the quantification of damage and the method of redress are straightforward. For the third question, the Court needs to weigh both sides' interests in the case where the injunction is granted. Even if the damage is deemed irreparable, the Court may (or may not) still find the public interest in health outweighs the financial interests of the unvaccinated. | You may be mistaken about the purpose of the Miller test. If some content is obscene according to the Miller test, then it does not receive First Amendment protection, and could be prohibited from distribution by the government. However, it says nothing about the contractual obligations that two parties can agree to. To the extent that the obligations themselves are objectionable this analysis would fall under the doctrines of unconscionability and public policy. | The answer is they are quite different. The SCOTUS found almost 100 years ago that the Several States have the power to require vaccinations. This is one of the "reserved powers" under the constitution. The Texas Heartbeat law creates a regulation on doctors (similar) and a civil cause of action (very different). However, the biggest difference is that the older case permits the state to require medical treatment while the Texas law requires a medical justification for treatment. It seems uncontroversial to require a doctor's services to perform an abortion. However, now the Texas legislation is in effect codifying the medical ethics requirement to "do no harm." Medical ethics do allow exceptions based on a specific situation, and so does the law. A mandatory vaccination law is almost the opposite. It guides doctors that the general risks of vaccination are not strong enough to be considered harmful when weighed against the benefits of the vaccination. But, of course, medical ethics would also allow exceptions based on specific situations, and so should the law. Fizz already cited the case: Zucht v. King https://supreme.justia.com/cases/federal/us/260/174. | 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. | LegalZoom did not get it wrong. The case Masterpiece Cakeshop v. Colorado Civil Rights Commission was under Colorado law (hence it was against the Colorado Civil Rights Commission), not federal law. LZ stated that 20 states have enacted laws against discrimination based on sexual orientation, and Colorado is one of those states. The issue was heard by SCOTUS because the plaintiff raised claims under the Free Speech and Free Exercise Clauses of the First Amendment, hence he could make a federal case of it. A prior case (Azucar Bakery) cited by LZ was about refusing to make a cake with anti-gay slogans, and was decided by the commission. Here is a brief filed by that plaintiff in that and two related cases, arguing a pattern of religious discrmination. LZ got it mildly wrong in saying "the court ruled that this was not discrimination because...", because the case did not go to court, it ended at the Colorado Civil Rights Commission. The second case appears to refer to Charge No. CP2018011310 a complaint filed against Masterpiece, where the same commission found probable cause for an anti-discrimination proceeding. In that proceeding, the Colorado Civil Rights Division finds that complainant Scardina "adequately shows that the Respondent's reason is pretext". This led to a complaint against the commission in US District Court (Civil Action No. 18-cv-02074-WYD-STV). There was a motion to dismiss which had partial success, but which was not about the substance of the case (it had to do with immunity, standing, abstention doctrines). The case was later dismissed, because the parties settled. So at no point did a court rule on the substance of the "pretext" issue – on this point, I think LZ overstated the significance of the commission's decision. | This was asked and answered by KPD on the Politics stackexchange. This issue came up in a decision from an appeals court, with a judge dying before the opinion was released, leading to the following SCOTUS opinion. The short of the answer: that Judge's vote is voided. If the result of negating the deceased Justice's vote is a 4-4 tie, then the usual procedure for a 4-4 tie is invoked, which is addressed in the Q&A you link. Of course this assumes that SCOTUS will apply this to themselves, but the issue appears to be non-controversial, as it was a fairly recent decision with no dissents noted. So this assumption seems safe. |
Does a "temporary guardian" count as a "legal guardian" as mentioned in Proclamation 9984? I'm a US citizen, and I want my young son's and newborn daughter's Chinese grandparents (without green cards) to be able to visit and take care of them in the near future. They don't speak English, so quarantining for 14 days in a 3rd country would not only be expensive (hotel stay plus extra air travel) but also quite challenging for them. So I read the proclamation: https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-persons-pose-risk-transmitting-2019-novel-coronavirus/ I read that guardians of US citizens are excluded from the travel ban. Sec. 2. Scope of Suspension and Limitation on Entry. (a) Section 1 of this proclamation shall not apply to: (i) any lawful permanent resident of the United States; (ii) any alien who is the spouse of a U.S. citizen or lawful permanent resident; (iii) any alien who is the parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21; Now I'm trying to understand what constitutes a legal guardian. Is that determined by the individual states, or is there a Federal take on what constitutes a legal guardian? Connecticut, where I live, in addition to permanent guardians, has both temporary guardians and standby guardians. From my reading of the CT rules, it seems we couldn't appoint the grandparents as permanent guardians without one of us parents abdicating our parental rights. But it seems there's nothing stopping us from appointing the grandparents as temporary or standby guardians. The question is, would that be sufficient to make the travel ban not applicable to them? In all likelihood they would be flying into NY, not CT. Does that change the legal guardianship restrictions? I waited 90 minutes to talk to National Visa Center on the phone but they were not very helpful. They seemed to imply that it would be up to airport or airline (I didn't hear clearly) whether the guardianship papers would be accepted. Thanks for any input you have. | A temporary guardian would qualify, however, you would have to go to the probate court and explain why you are "unable to care for the minor". It would appear from the situation you describe that you are able to care for the child. A standby guardian would also qualify if it has taken effect "upon the occurrence of a specified contingency, including, but not limited to, the mental incapacity, physical debilitation or death of the principal….” Killing yourself seems a little extreme just to avoid 2 weeks in quarantine. | Everyone physically present in the US is protected by the US Federal constitution. (In some cases persons not physically in the US also have protection from the US constitution. When that applies is too complex for this answer.) Most of the rights protected by that constitution are available to anyone present, whether citizen, lawful immigrant, lawful visitor, or a person in the US without lawful authority. A few rights, such as the right to vote and to run for public office, are limited to citizens. If a person was arrested but not informed of his or her Miranda rights, then statements made to the arresting officers (or later interrogating officers) would not be admissible in court, unless an exception to the Miranda rules applies, which is unlikely. I can't say if this happened in the particular case mentioned in the question. In general, in the area of criminal procedure, there is no difference between citizens and others subject to US jurisdiction (accredited foreign diplomats normally have immunity). A few crimes can only be committed by citizens (or others owing allegiance to the US) such as treason. A few crimes, such as unlawful entry to the US, can't be committed by citizens, as citizens automatically have a right to enter. But criminal procedure and constitutional rights affecting criminal procedure, are the same for all in the US, citizen or not. (Oh, there are special laws for minors, but that isn't a matter of citizenship.) | In the US, adoptions follow state law. Here is the law for Washington state. RCW 26.33.140 says that "Any person who is legally competent and who is eighteen years of age or older may be an adoptive parent". The word "person" does not have a statutory meaning under this title, thus it has its ordinary meaning. There are discussions in case law regarding the "person" status of corporations, but those extensions of the meaning "person" involve extending a constitutional right which refers to a "person" to corporations. A corporation can hold property, enter contracts, and sue and be sued just like a person, and from the earliest days esp. Trustees of Dartmouth College v. Woodward, 17 U.S. 518, the US courts have recognized that corporations as having the same rights as natural persons to contract and to enforce contracts. But corporations can't vote or get married. So, in Washington you have to be a person-person. And, presumably in all states. | Child custody (and alimony) are determined by state courts, so the exact details are state-dependent. There is no legal basis for a person preventing thrie former spouse from moving (assuming the host country doesn't deny a visa), but the courts would be involved in determining whether the child can be taken along: parent A cannot legally just pack up the kids and bolt. When parents don't agree, then the court must determine what outcome is in the best interest of the child. If the children want to move, that counts in favor of them moving ("counts in favor" does not mean "decides the matter"). If the moving parent doesn't have viable employment prospects abroad, that counts against them moving. The amount of time each parent spends with the children also matters, not to mention the laws of your state (here is what the California courts say: "Move-Away" Situations). Generally speaking, the moving parent has to provide notice, then the non-moving parent has to file a legal action to block the move. Your attorney will discuss all of the relevant considerations with you. The fact of a parent moving to another country does not per se invalidate court-ordered support, but the court can modify an order if circumstances warrant (there's no obvious reason why moving to France would result in modification of such an order). | An individual obtains due process rights upon entering into the United States. For a recent write-up on this question, see this piece at Reason. The people Trump is talking about generally aren't being denied admission at an established, legal border crossing; they're coming across wherever they can get through, and only being discovered by federal agents thereafter. Because they're already in the United States, they have due process rights. As for cross-border interactions with ICE or CBP, the extent of due process protections is still an open question. SCOTUS took it up last year, but it kicked the case back to a lower court rather than deciding it. | Does Amazon prohibit a family of adults from sharing a single Amazon account? No, or at least it seems unlikely. As outlined in my answer & comments on Law Meta, a domestic or family-oriented character is palpable in the clause. That weakens the notion that Amazon's intent is to preclude scenarios which are of a personal-domestic nature and short of commercial/sublicensed use. The language "You are responsible for [...] restricting access to your account" seems more permissive than something akin to "only you are allowed to access your account". The former language is consistent with the term "non-exclusive", which otherwise seems to have no relevance or purpose in the clause. Users' ability (if any) to enter multiple payment methods with different names (i.e., card holder name) could be an additional indication that the scenario you have in mind is acceptable to Amazon. It is easy for a company to implement a validation for the purpose of identifying significant discrepancies of holder names and/or to have the user confirm that all payment methods refer to one same owner. The latter approach is more conclusive for scenarios where a woman has changed names as a result of getting married or divorced. The fact (?) that Amazon declined to include that simple validation weakens the notion that the company is genuinely interested in sticking to a rule of one-person per account. | There are no EU rules on whether and under which conditions unaccompanied minors are allowed to travel, and the competence hence rests with the Member States. You are probably more proficient with Slovak rules on the matter, but judging by the information provided by the UK Government, there should be no regulatory hassle. The most probable source of problems will be the airline, but at least BA lets persons 12-17 years of age travel alone. | Yes, you can register in Connecticut. Connecticut previously limited voting eligibility to "permanent" residents, but it later changed that to limit it to people with at least year's worth of residency, and then six months' of residency. Under current law, though, a voter need only be a "bona fide" resident of "some town" in Connecticut. This means you need only to have legitimately moved into the city with some actual intent to stay, even if not forever. The deadline is tomorrow, so register now. |
Is there any cognizable ground for criminal prosecution for the surreptitious or unconsensual use of male reproductive cells or “spermjacking”? Bob, the founder of a Silicon Valley business on a high-growth trajectory, meets Alice, and they enter into a romantic relationship. Sure enough, Alice informs Bob that she wants to be the wifey. Bob, without hesitation, replies Alice that, if at all, only on as strict of non-exchange prenup conditions as allowed under the law; Alice agrees, and that Bob, under no circumstances, agree to be a father. Alice agrees, and conveys no intention until any premeditated agreement is reached otherwise on parenthood. Bob and Alice continues in a romantic relationship where sex is, with reasonable caution, prevents impregnation. Soon after and with the above-described prenup, Bob proposes to Alice. Alice, after seeking legal advice, presumably found no loophole on the document, she tries negotiating, but Bob stands his grounds, and informs Alice there is no room for haggle. GRAPHIC, OBSCENE OR LEWD CONTENT WARNING One night, Alice and Bob engages in a consensual sexual intercourse on the previously agreed non-baby, non-fatherhood, non-motherhood and non-impregnation conditions. At the moment when Bob ejaculates on the abdomen of Alice — something done on several occasions between the couple —, Alice, without the express consent or any implied indication of Bob, starts to shovel the reproductive matter of Bob into her genital tract, and continues and substantially finishes against the firm and express objection of Bob. Alice also refuses to use water, soap or any female hygienic products to remove any reproductive matter of Bob; and refuses to use any postcoital contraception and so she remains with Bob’s continued objection to the potential fertilization and request that Alice prevents or ceases impregnation. END OF GRAPHIC OR OTHERWISE DISTURBING CONTENT [Alice have obtained the reproductive matter of Bob without Bob’s consent and against his objection] Alice becomes pregnant, and Bob a father. What crime or crimes did Alice commit; presume Alice premeditatedly obtained the reproductive matter of Bob on the premise she would not use it for a consensually prohibited purpose? | There is no cognizable grounds for a criminal prosecution in those circumstances. There are also no cognizable grounds for Bob to deny paternity, or to bring a civil action against Alice. Bob will be obligated to pay child support and to have all of the responsibilities of an unmarried co-parent with Alice. | In US law, there was, as far as the question indicates, no probable cause to search her phone at all, Therefore (unless there is some cause not mentioned in the question), any such search is illegal, and any evidence found in such a search, or that is found as an indirect result of such a search (pointers toward it are found in the search, and followed) would not be admissible in any criminal case against Alice. In the case of Bob, if his friends and family approach the police or other authority with a vague suspicion that Bob might be involved in the creation of illegal content That will probably not constitute probable cause for an arrest of Bob or a search warrant for his phone. Unless the accusation does prove to constitute probable cause, any evidence found during such a search would not be admissible against Bob in a criminal case. In practice, most US police would not undertake either search without better evidence than is described in the question. But some police will overstep the lines, which is what the US exclusionary rule is for. Legal procedure does not as far as I know make a distinction between "exploratory" and "confirmatory" evidence. Instead, evidence is either admissible or not. The rules for when evidence is admissible are quite complex, and vary by jurisdiction. Some of them are more traditional than logical, and some of them are addressed to particular problems that have arisen in particular circumstances. But the US Fourth Amendment protections against unreasonable searches, and the requirement of probable cause before search or arrest warrants are issued, serves some of the same purpose. Other countries have different rules, but many of them restrict the authorities to some extent from making arbitrary searches with no initial evidence. Response to the Revised Question As the question has been edited, there seems to be fairly clear probable cause to search Alice's phone, and if clear evidence of "illegal pornographic content" presumably actually child pornography, as no other kind is illegal simply to posses) is found, she can be brought to trial and perhaps convicted. The mere "suspicion" of Alice's "friends and relatives" would add little and mi8ght well not even be admissible. The facts, if any, on which those suspicions are based might be admissible, one cannot tell from the summary in the question. The case against Bob, however, remains weak. Indeed there still seems to be no probable cause either to arrest Bob nor to se3arch his phone, and the results of any search that was done would not be admissible. Probably none would be done without more evidence. The OP wrote: Thus, although the situation looks grim for both, since the evidence against Bob is confirmatory, it might be considered stronger. Not so, the case against Bob is weaker, indeed so weak that an arrest would be unlikely, and if one were made, the case would likely be dismissed before going to trial, assuming no more evidence than was included inn the question. The evidence prior to the search seems to consist only of vague suspicion not supported by any actual evidence, and so there is nothing to confirm, and no valid search would occur. That suspicion of Bob came before the search, and the search is thus "confirmatory" is not relevant. The question is, what evidence against each defendant is admissible, and does the totality of the admissible evidence amount to "proof beyond a reasonable doubt" no matter what order it was discovered in, or what idea was in the minds of the investigators, provided that they were acting lawfully so that their findings are admissible. | You may be mistaken about the purpose of the Miller test. If some content is obscene according to the Miller test, then it does not receive First Amendment protection, and could be prohibited from distribution by the government. However, it says nothing about the contractual obligations that two parties can agree to. To the extent that the obligations themselves are objectionable this analysis would fall under the doctrines of unconscionability and public policy. | Does this practice contravene any state statute(s) or rule(s) of evidence? Generally not. States could adopt a statute that says otherwise, but I'm not aware of states that do. States often have regulations limiting police use of biometric data for general, non-probable cause based searches for criminal suspects. For example, many states don't make fingerprints obtained for professional licensing background checks available for searched by law enforcement without a warrant and probable cause. I suspect that states may start to do so with rape kit DNA, but it hasn't previously been identified as an issue, so there aren't statutes that prohibit this in most cases (e.g. victim's rights bills have not thought to address the issue). The reason for concern that could lead to future statutes is two fold. First, including rape kit DNA in searches discourages people from reporting crimes because it might put them at a disadvantage in an unrelated criminal proceeding. Second, the risk of false positives is vastly higher in a random search of biometric data from people with no articulated connection to the crime than it is when isolated individual suspects who there is probable cause to believe committed a crime are investigated. The chance of a false positive for someone in a database with millions of people is non-negligible even if the risk of a false positive in any one isolated comparison is tiny. Even a 1 in 10,000,000 chance of a false positive in a database of 40 million people will routinely produce false positives in random searches. And, while DNA evidence is very accurate, partial forensic DNA samples aren't absolutely incapable of producing false matches to nearly the same extent as a comparison of two complete whole genome samples. So, states may adopt such statutes in the future now that the issue is in the spotlight. contravene any federal statute(s) or rule(s) of evidence? No. violate any state constitutions or the US constitution? No. At least under current jurisprudence. The relevant provisions are vague legal standards that are applied with great discretion by courts. Evolving understandings of the situation could change that view in the future. Footnote: Does doctor-patient privilege or HIPPA control? There is a doctor-patient privilege recognized in every U.S. state and in the federal courts. Forensic DNA obtained from a rape kit from a potential suspect isn't protected by the privilege since the suspect isn't a patient of the medical provider in that medical procedure. There is an arguable case that the rape victim is a patient of the medical provider who gathers the DNA, including the rape victim's DNA for the rape kit, and that the patient has not waived the doctor-patient privilege merely by permitting the medical professional to use the rape victim's DNA profile to distinguish between sample material in the rape kit that is her own from material from a suspect. Moreover, such a waiver of doctor-patient privilege would probably not be legally valid unless the rape victim provided informed consent to that release. The rape victim might also have federal HIPPA protections for the privacy of her DNA profile collected as part of her medical records under a similar theory. Mostly, this hinges on how the relationship of the rape victim to the person administering the rape kit is characterized, and in particular, if gathering evidence in a rape kit is "medical treatment" that is privileged. To the best of my knowledge, there is no case law interpreting either the doctor-patient privilege or HIPPA in a rape kit DNA fact pattern. If it is considered to be a doctor-patient relationship for medical treatment within the meaning of the evidentiary privilege and HIPPA, and the DNA was shared on a database which law enforcement has access to without a warrant without the victim's informed consent, this evidence and all "fruit of the poisonous tree" derived from it, could probably be suppressed in a criminal proceeding against the rape victim, even if the evidence conclusively linked the rape victim to the crime. Under the circumstances, and given the policy considerations and the lack of other controlling law, this would be an attractive interpretation of the existing law for a court to adopt. If evidence completely independent of the blind database match provided probable cause that the rape victim committed a crime, and the crime was one in which there was forensic DNA evidence, law enforcement could probably get a search warrant to take a legally untainted DNA sample from the rape victim to compare to the forensically collected DNA evidence, however, just as it could with any other suspect. | 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. | You seem to have put a lot of thought into this - which is good. However, the short answer is: There is no legal solution. To address your points: And legally, my future wife has the right to divorce me even if I did nothing wrong (no-fault). Yes (at least in most jurisdictions). And then, according to the US Census Bureau [1], mothers usually get primary custody (unless she is on drugs or abusive, which she isn't). And according to the Indiana Parenting Guidelines [2], babies only get one night per week with the non-custodial parent. And even as a teenager, only alternating weekends. Here, it depends. What you describe is indeed what happens often, but not always. Rules vary a lot, and change, but there is an increasing trend to have joint custody in case of a divorce. The details vary, but joint custody can extend to joint physical custody or shared parenting, where both parents take turns looking after the child. This is possible in the United States. In practice, in case of separation the parents will have to work out a parenting plan - ideally together, or in court if needs be. What the result is will depend on circumstances, and on the opinion of the court what is in the children's best interest. This may or may not mean joint physical custody. Child support payments are based on custody, so I would need to pay her child support. And since she always planned on her husband financially supporting her, then I would need to pay her alimony too. And because of imputed income, I couldn't afford to take a lower-paying job with more flexibility. Again, this depends. For example, with joint physical custody, there may be only small or no child support payments if both parents care for the children about equal time. And even if child support is due, there may be no alimony payments if the mother can work (even if she chooses not to). Again, a lot depends on the specific case and jurisdiction. Also, while it is not possible to reduce child support in a pre-nup (because theses payments belong to the child), you can (to some extent) limit alimony payments in a pre-nup. Is there any way out of this situation? How can I ensure, starting now before my children are born, that their primary caregiver is me? Here we are leaving legal territory. The short answer is: There is no way to ensure this, certainly not using legal means. The only good approach is to get to know your partner first, and make sure you have similar views on how to approach parenting. If she wants to be a stay-at-home mom, and you want to share both work and parenting (such as in a shared earning/shared parenting marriage) then you need to think (and speak) about how to reconcile these views. You may find that you are just not compatible on that point. Then take appropriate consequences. To put it plainly: In my opinion, if you do not trust your partner to respect your wishes on parenting together, she is probably not the right person for you to have children with. | Does any American state have a statute under which Joanne would be liable for her son's death? Probably not. None of the mother's conduct seems like a basis for a homicide prosecution. Suicide is only prosecuted, in states that allow it to be prosecuted at all, for conduct with a calculated purpose to cause a suicide, or encouragement of someone to commit suicide. These facts don't show that. There is no intent to cause suicide and there is no encouragement of the son to commit suicide by on the mother. A survey of selected laws on point by the Connecticut Legislative Research Service can be found here. The case law and related legal theory is reviewed and analyzed in this law review article with the following abstract: In 2017, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy by text message, but imposed a sentence of only fifteen months. The conviction was unprecedented in imposing homicide liability for verbal encouragement of apparently voluntary suicide. Yet if Carter killed, her purpose that Roy die arguably merited liability for murder and a much longer sentence. This Article argues that our ambivalence about whether and how much to punish Carter reflects suicide’s dual character as both a harm to be prevented and a choice to be respected. As such, the Carter case requires us to choose between competing conceptions of criminal law, one utilitarian and one libertarian. A utilitarian criminal law seeks to punish inciting suicide to reduce harm. A libertarian criminal law, on the other hand, justifies voluntary suicide as an exercise of liberty, and incitement of suicide as valuable speech. Utilitarian values are implicit in the foreseeability standards prevailing in the law of causation, but libertarian values are implicit in the reluctance of prosecutors to seek, and legislatures to define, homicide liability for assisting suicide. The prevalence of statutes punishing assisting—but not encouraging—suicide as a nonhomicide offense reflects a compromise between these values. These statutes are best interpreted as imposing accomplice liability for conduct left unpunished for two antithetical reasons: it is justified in so far as the suicide is autonomous and excused in so far as the suicide is involuntary. This explains why aiding suicide is punished, but less severely than homicide. Yet even these statutes would not punish Carter’s conduct of encouragement alone. Her conviction although seemingly required by prevailing causation doctrine, is unprecedented. Guyora Binder and Luis Chiesa, "The Puzzle of Inciting Suicide" 56 American Criminal Law Review 65 (2019). In any jurisdiction, could anyone but Joanne, in light of the aforementioned circumstances, face liability for Jordan's death? Maybe the bullies could be prosecuted for homicide or some lesser charge like harassment intended to provoke a suicide or something like that. More facts would have to be developed on that point. Maybe teachers have civil liability for negligence, but not criminal liability for not intervening since they didn't intend to cause or encourage the suicide. | canada In Canada, there are the separate offences of: sexual assault (premised on lack of consent, no matter by what means consent is lacking; R. v. G.F., 2021 SCC 20) and administering a stupefying substance. If someone were to use a "substance such as everyday alcohol" (I would reject the premise that this is "benign") for the purpose of facilitating sexual assault, this would be an offence under s. 246 of the Criminal Code. Section 246 makes it an offence for a person, "with intent to enable or assist himself or another person to commit an indictable offence" to administer or cause any person to take a "stupefying or overpowering drug, matter, or thing." The Court of Appeal for Ontario has accepted that the element of administering a stupefying thing could be established by oversupply of alcohol. They have said that alcohol is a "stupefying substance" (R. v. Vant, 2015 ONCA 481) and can support a conviction under s. 246. "Date rape" has no legal significance and even criminologically, misframes the circumstances in which people experience sexual assualt. Further, your premise that intimate partner sexual assault "usually happens when someone uses narcotics to drug another into an unconscious state" is not supported by the evidence. While this is a criminological point, rather than a legal point, it is important context for understanding such crimes. This 2005 study estimated that 4.6% of intimate partner sexual assaults were facilitated by surreptitious drug use. These two fact sheets describe the variety of circumstances, completely unrelated to incapacitation by drugs, in which people experience intimate partner sexual assault/violence: Fredericton Sexual Assault Crisis Centre Info Sheet; Centre for Research & Education on Violence Against Women & Children Backgrounder on Intimate Partner Sexual Violence. |
Is this Cookie scenario GDPR compliant? I noticed that many websites, including StackExchange websites just have a banner while full functionality is provided by the website, which is probably not GDPR compliant. Is this true? As far as I know, legally you may not load ANY external JavaScript files or pictures without getting consent first. So my prototype would be the following: Every time a user visits the website under any URL the cookie consent will get checked and if the cookie is set already the user will get redirected to the URL they were visiting. But if they don't have the cookie (a.k.a. haven't given consent) no external pictures or JS gets loaded and the user goes to a captive portal where they got to accept the cookies. Is this GDPR compliant? Is this secure enough? Let me know whether this should be posted on Law StackExchange. | There are a number of misconceptions here. GDPR does not generally impose blanket bans, but things get dicey if you're using data in a way that is not strictly necessary. Consent (freely given opt-in) is a way to continue nevertheless. A website without ads, tracking, or potentially tracking embedded content can probably work without having to ask for consent. Under the GDPR, every processing of personal data needs a purpose. This purpose must be covered by a legal basis. Some processing might be legally mandated or required by a contract with the data subject. It's also possible to base processing on a legitimate interest, but this requires a balancing test that also considers the data subject's rights and interests. As a last resort, consent can be an appropriate legal basis, but this comes with additional restrictions. Once you have a clear purpose that is covered by a legal basis, you can process the minimum data necessary to achieve the purpose. Sometimes, laws prescribe a particular legal basis. This is the case for cookies. You can use cookies (and similar technologies that access information on the end user's device) as strictly necessary to provide a service explicitly requested by the user. If you go beyond that, the ePrivacy Directive says you must obtain consent first. So for example, session cookies, shopping carts, or cookies that remember a “dark mode” preference are all perfectly fine because they are strictly necessary for something the user is trying to do. Also, you can use cookies to remember if the user gave or declined consent. On the other hand, analytics or tracking cookies are not necessary and require consent. If a website embeds third party content, this discloses personal data such as IP addresses to the third party. This disclosure requires a legal basis, most likely consent. There is case law about this regarding Facebook Like buttons on a page (→ Fashion ID case) but the same principle can be generalized to embedded Tweets or Youtube videos, images, or JavaScript files. A common way to handle this is to replace the embedded content with a placeholder, and to only load the embed once the user gives consent. But not all other domains or services are “third party” in the sense of the GDPR. When you engage a company to act as a data processor on your behalf, they are contractually bound to only use the data as instructed by you, and not for their own purposes. The GDPR allows you to outsource processing activities such as serving web content, as long as you have a suitable contract in place. Such “data processing agreements” are common for hosting providers or CDNs. When consent is to be used as a legal basis, it's important to consider the various conditions that the GDPR imposes (see Art 7 GDPR). The core principle is that consent must be freely given. You cannot make access to a site conditional on consent, so a naïve cookie wall or captive portal will be non-compliant. It's fine to force a choice, but “no” MUST be valid and possible. That consent is freely given also means that you must provide enough context for the user to make an informed decision, that the user must give consent through an unambiguous, affirmative action (consent is never the default), and that consent must be specific for a particular purpose (you can't bundle unrelated purposes). That is why modern consent management tools have multiple layers of information and allow the user to give consent for individual purposes (e.g. yes to analytics but no to ad personalization). In your particular context, you could proceed as follows: Figure out what kind of external content you're currently including. Can you enter into a data processing agreement with the external providers? If so, sign that. Can you host the content locally? This can be an easy solution except for video streams. Careful: copyright concerns might make this impossible. Can you replace the content with placeholders that only load if and when the user gives consent? That way, the rest of your site remains accessible without annoying consent walls. If the third party content is an unavoidable and essential part of your page, use an interstitial to inform the user of the risks before they proceed. | There is no clear answer to this question. The GDPR doesn't not apply, but it delegates rules for processing in the context of employment to member states. That means, the laws in your country might override the GDPR here. As the data controller in this situation, the company must protect the personal data it processes, including the personal data of employees. Protection doesn't have to be absolute, just proportional to the risks. It may be fine to treat data in one context more carefully than another. This is always a judgement call of the data controller. There is nothing about holiday rotas where the GDPR would require them to be kept under lock. The company could very well decide that this data isn't very sensitive and that everyone can look at it themselves. For example, the company might argue they have a legitimate interest for this so that employees can see whether their colleagues are unavailable. But until the controller makes such a decision, the rota contains other person's personal data and cannot be disclosed without a legal basis. Here, I see three reasons why the company might be acting that way: They are overly careful with GDPR compliance and are cargo-culting restrictions that are not actually necessary. They have made a conscious decision to restrict access to this data to protect the private life of employees. They want to make it more difficult for employees to take time off. | What would be the legal validity of this behaviour? Your changes to the browser source of the website contract or license of Terms of Service (TOS) - essentially a "click-wrap" license - before agreeing to it means nothing in a legal sense, other than to void the contract. The other party (the website) can't possibly agree to those contract changes without them being submitted as contractual changes and agreeing to them, if they did agree to them. That's basic contract law. That website TOS probably has a clause that says that if you don't agree to the TOS in full, as written, without modifications, you can't use the website. And the TOS may also say that they reserve the right to prevent you from using the site by closing your account or even blocking your access. Your "witness" to the contract changes is meaningless, as your witness is not a party to the contract. And any witness to the fact that you have changed the terms of the TOS before agreeing to it would work against you in a civil proceeding as proof of your attempt at modifying the contract. | If you are purely a designer (and not contracted for the daily operation of the site), the answer is "no". GDPR Article 4 defines the "roles" responsible for complying with GDPR, and there are two: Controller and Processor. The Controller is the one who calls the shots. In particular: Decides what personal data to process. This is usually the owner of the web site. The Processor is the one that actually does the processing. This is usually some company providing some sort of data processing service (e.g. SaaS, PaaS, etc.). The relationship between the Processor and the Controller must be contractual. The contract is called a DPA (Data Protection Agreement or Data Processing Addendum). As a designer, you don't fit into any of these roles. If your contract with the client is silent on liability for GDPR compliance, then you have no liability. This goes for projects completed both before and after the May 25 deadline. Of course, if there are GDPR clauses in your contract, then you must fulfil them just as have to fulfil any other contractual obligation. But unlike the controller and the processor, there are no automatic legal liability for a designer or programmer. | No, it's not legal. The General Data Protection Regulations (GDPR) apply given that you are in the UK (regardless of where the Data Processor is based). The UK GDPR is slightly modified due to Brexit, but the same principles apply. The only plausible legal basis for this actions would be that you consent to it, and you're entitled to withdraw that consent at any time. Some may claim that Article 6.1(b) applies, i.e. that it's necessary to send marketing email in order to fulfil the contract, but GDPR is clear that bundling such consent into a contract for service simply to permit the data processor additional actions isn't allowed, as I'll demonstrate. UK GDPR requires that consent to use your personal information (in this case, your email address) for the stated purpose be freely given. Consent to use your information for direct marketing is not freely given if it's inseparable from the consent to use it for some other service, as per para 43: Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. And Article 7.4 backs this up with When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. The intent of Article 6.1(b) is that only the processing required for the service you have bought is allowed (e.g. if you supply your address for delivery of stuff you've bought, the data processor can use that address to send you the stuff, but is not allowed to add a contract term that allows them to send you unwanted stuff). Examples of emails that Article 6.1(b) would allow (in my assessment) include things such as notification of upcoming downtime, or a reminder that subscriptions are due, but not unsolicited advertisements for other products. There's a grey area that's open to interpretation, where adverts are piggybacked onto actual service messages. | The GDPR as such puts obligations on the Data Controller (DC), that is the person or firm or other entity who determines the purposes for which data is processed. The entity that hires the developer and operates the web site is responsible for compliance with the GDPR and other laws and regulations, such as the e-privacy directive and its implementing laws. However, it is highly likely that in commissioning a web site the DC would specify that it be designed to aid compliance with the GDPR and other relevant laws, and if the developer did not do that it might be a breach of contract. Indeed, even if GDPR-friendliness was not explicitly required by the contract between the developer and the DC, the implied warranties of merchantability and fitness for the purpose would probably apply. A designer who, knowing the site is to be hosted and operated within the EU, failed to design it to facilitate GDPR compliance might well be in violation of those warranties. But that would depend on the specifics of Italian law. But note that GDPR compliance is not a matter of web site design, but of the ongoing practices of the operation of the site. There are various ways to comply with the GDPR, no specific technology or design need be used. The DC must so operate the site as to comply. If the DC fails to do that, penalties could be imposed on the DC, not on the developer. | Any processing of personal data needs a legal basis, for example necessity for some contract or legitimate interest. If no other legal basis allows the processing, you need to acquire consent. Consent must be freely given. If something is gated behind consent without that consent being really necessary, this might coerce users and they would not be able to consent freely. The GDPR does not have a hard ban on this, but it explicitly calls out that this case must be considered when determining whether consent is valid. So what your company is trying to do is in a dark grey area. Not necessarily wrong, but likely so. Consent could be made free if users have an actual choice. For example, some online newspaper sites had success with a “pay or consent” wall. (Success in the sense that some data protection authorities allowed this). In your case, this could mean that users either consent to extra data collection, or that they buy some reasonably priced premium mode. But none of this is for you to decide. You can voice your doubts that the software would be compliant. You could also ask if the Data Protection Impact Assessment document for this proposed processing is available (creating such an assessment is likely mandatory in this case). But in the end, it is the company's obligation to be compliant, and this responsibility is largely shouldered by the company's data protection officer (to whom you can turn with further questions). | 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. |
Are there other laws that are (1) enforced only by the general public and (2) enforceable by someone not directly involved? Typically you need some sort of standing like demonstrating potential damages for a court to listen to any request for action. For example, I can't bring a copyright suit for work where I do not own the copyright, even if there is an infringement occurring. But is there any example other than S.B. 8 where (1) the general public can bring civil action, and (2) the person bringing the suit is not directly affected? Environmental suits come to mind, but I'm not sure if a person raising environmental concerns can get away without explaining some sort of damages. | This is from an opinion piece (albeit by Law profs.) so you'll have to bear/excuse the tone and check the details... but seemingly there some similar laws introduced earlier this year, on different topics though: But the subversion of private enforcement laws to restrict individual rights goes far beyond abortion. Since the beginning of this year, Tennessee has authorized students and teachers to sue schools that allow transgender students to use the restrooms that match their gender identity; Florida has followed suit, with a law that allows students to sue schools that permit transgender girls to play on girls’ sports teams. My opinion is that the comparison falls short on (2), as the [plaintiff] students seem to have to be from the same school, so it's not as broad as SB.8., in terms of who can sue. (N.B. found a more in-depth news article on the Florida sports law. Some of the writeups on this aren't totally clear on that though, just saying "another student" can sue. I couldn't find the exact text of the law insofar.) The promoter of SB.8, actually gave some inspirational examples in an interview, and they are somewhat older: And this is ground that's been ploughed before - under current Texas law under Medicaid fraud, for example. Any person who discovers Medicaid fraud can bring a civil case to bring that forward. The Chick-fil-A law, Senate Bill 1978 from last session about your religious freedom, that also allowed any person to bring a civil action. So it's not a new concept in Texas law, and if elected officials won't follow the law, we'll empower the people of Texas to do it, and we think it makes sense. (Hat tip to a Politics.SE answer for this latter quote.) Again, I didn't check the details... I suspect there may be some divergence from the strict letter of the (1) requirement. I bet (Medicaid) fraud is criminal as well. It seems the Chick-fil-A law failed to do its (immediately) intended job because it was attempted to be used against a city municipality, but the suit was dismissed (on appeal) due to governmental immunity... The private enforcement of the Medicaid fraud issue was apparently passed because of the huge backlog that existed at one point in the state/agency enforcement in Texas: The Office of Inspector General was lambasted in a state review last year [2015--seemingly] for, among other things, a massive backlog of cases and a failure to recover significant tax dollars from providers it accused of fraud, sometimes incorrectly. N.B., these are referred to as qui tam cases, but they don't quite entirely substitute the plaintiff, at least not in the insurance cases that were won: So-called qui tam cases allow whistleblowers to file lawsuits alleging fraud on behalf of the government. If the claims turn out to be legitimate, state and federal laws award a finder’s fee of between 15 and 25 percent of the total settlement or judgment. Interestingly higher awards are possible if the government declines to intervene, but they are still not 100% going to the private initiator (under the False Claims Act)--from Wikipedia: If the government does not decide to participate in a qui tam action, the relator may proceed alone without the Department of Justice, though such cases historically have a much lower success rate. Relators who do prevail in such cases may potentially receive a higher relator's share, to a maximum of 30%. As Wikipedia also notes, some such laws that entirely left the prosecution to a private entity were found unconstitutional, at the federal level e.g. In 2011, the United States District Court for the Northern District of Ohio held that the False Marking Statute was unconstitutional. Judge Dan Aaron Polster determined that it violated the Take Care Clause of Article II of the Constitution, because it represented "a wholesale delegation of criminal law enforcement power to private entities with no control exercised by the Department of Justice". Of some note, the FCA requires that the complaint actually be served on the government and not the actual defendant. This basically ensures that the gov't is notified of all such actions. The Texas-specific legislation on qui tam fraud cases actually seems to mirror the federal one pretty closely: A whistleblower under the Texas Medicaid Fraud Prevention Act [TMFPA] may be entitled to an award between 15% -25% if the state intervenes in the case. If the state chooses not to participate in the litigation, then a whistleblower may be entitled to an award between 25% – 30% of the amount recovered. Nonetheless, a court may reduce the award if the court finds that the action is based primarily on information disclosed by someone other than the person bringing the action. [...] Note: Changes to the Texas laws were enacted by Acts 2015, 84th Leg., ch. 1 (S.B. 219). | What are the ethical rules that limit interaction between civil and criminal proceedings on the same facts? A private lawyer's job is to look out for the client's interests before the public interest in these cases. In many states, a private lawyer is not permitted to threaten to seek a criminal prosecution to gain an advantage in a civil action. A private lawyer, myself included, will often deliberately not pursue criminal charges in order to not impair the ability of a client to collect a judgment. A prosecutor has wide discretion to prosecute or not when the prosecutor is aware of a crime that there is probable cause to believe was committed. A complaint by the victim is not required in the U.S., but most prosecutors consider a victim's wishes. A prosecutor may ethically make prosecution dependent upon making a victim whole. So is this conflict and result just an "unfair" fact of all common-law justice? What is "fair" is beyond the scope of Law.SE which deals in "what is", not in what is "fair". Or are there mechanisms that exist to satisfy the demands of justice despite this conflict? Not really. Just the good judgment of the individual actors in the system given their respective duties and roles. | First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply. | Normally, statutes don't crawl out of law books and enforce themselves. And, government officials have broad sovereign immunity for most of their activities, so in most cases the only remedy available if someone in the government doesn't enforce a law according to its terms is to seek an injunction ordering the government to carry out the law. Impossibility is a defense to an injunction request. Also, enforcement of many laws is vested entirely in the discretion of the executive branch and can't be compelled judicially at all. When compliance can be judicially compelled because someone has standing to do so and the language makes the action required by statute truly mandatory, short of demanding full compliance with the law, a judge can set deadlines for compliance (a recent example of that involved a judge ordering the federal government to reunite migrant parents and children who had been separated). In the absence of a court order, the attorney-general for the jurisdiction (or an assistant AG tasked with the job) and the chain of command managers responsible for the function and often aides on the chief executive's staff will come up with a compliance plan that is within the realm of the possible. If none of those approaches is workable, the chief executive or top aides to the chief executive will typically approach friendly members of the legislature to seek a legislative work around. A substantial share of the bills in Congress or a state legislature at any given time that almost never make headlines are bills addressing situations like these that come up from time to time, for example, when a statutory requirement that used to become workable, ceases to be due to unavailability of resources or some technical barrier. Most of these bills pass on a bipartisan basis as a matter of course without the general public even noticing it. Most large omnibus laws are followed a few months later by a technical corrections bill address problems discovered in trying to implement the law. | Violations of 15 USC 52 can generally only be enforced by the Fair Trade Commission (FTC) in civil lawsuits seeking injunctions or civil fines pursuant to 15 USC 45; it is not a crime to violate 15 USC 52 as your use of the term "prosecute" might imply. In particular, 15 USC 45(n) in the enforcement provisions applying to all types of violations of that act which are enforced by the FTC in civil lawsuits, prohibits the kind of enforcement actions that you contemplate in your question. It says (emphasis added): The Commission shall have no authority under this section or section 57a of this title to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition. In determining whether an act or practice is unfair, the Commission may consider established public policies as evidence to be considered with all other evidence. Such public policy considerations may not serve as a primary basis for such determination. | Utah has a lot of public parks, so to point in the right direction, I will assume that this is a public park in Salt Lake City, it's just a plain old grassy field, and it's not during a special event. A person is suspected of some crime like selling drugs, not arrested, but told by a police officer to go away and never come back. This is way beyond the power of the police. After due legal process, a proven (not just suspected) public menace could be ordered by the court to stay away from the park. A police officer can, of course, order a person to leave a park when they violate a park rule, in fact rule number 1 is "It is unlawful for any person to do or to allow or permit any of the acts prohibited by this chapter in any park in Salt Lake City", so the police cannot legally turn a blind eye to rule violations. Violation of park rules is an infraction which can earn you a ticket of up to $299. However, the officer can tell you to go away, rather than giving you a ticket or arresting you. But an police order cannot issue a unilateral restraining order. Apart from city laws, there are general state laws regarding trespass and destruction of property. The state criminal trespass law says that A person is guilty of criminal trespass if...knowing the person's... entry or presence is unlawful, the person enters or remains on to which notice against entering is given by...personal communication to the person by the owner or someone with apparent authority to act for the owner In this case, the owner is the city, and the officer has apparent authority to act for that owner. In the case of private property, the owner or his agent has very broad authority to give notice requiring you to leave (e.g. if you don't like their politics or their shirt); but in the case of public property, the government has more narrowly circumscribed authority to kick you out. | The law does not require any reference to science of any kind – that is a political choice. The law grant a certain authority to the governor, under certain circumstances, go give extraordinary orders at the governor's discretion. No actions are mandatory during an emergency. The laws may or may not require legislative approval for extending an order beyond a certain point, where the order is issue pursuant to declaring a state of emergency. There are two main bases for appealing to the courts to enjoin against some aspect of an order: lack of initial authority (the statute does not actually grant that power), or, violation of fundamental constitutional rights. The latter is the predominant basis for appeal in the present instances. | It is the use of a "menace" which creates the crime, not the nature or validity of the demand. That's not correct. You've inadvertently missed the other element of the offence: that it's an "unwarranted demand". A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief— (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand. https://www.legislation.gov.uk/ukpga/1968/60/section/21 For example, I may have reasonable grounds under the Consumer Rights Act to demand a refund for a faulty good. It might be sensible to moderate one's language, e.g. "If I do not receive a satisfactory response from you within 30 days of the date of this letter, I intend to issue proceedings against you in the county court without further notice. This may increase your liability for costs." vs. "If I do not receive the money from you within 30 days of the date of this letter I'll take you to the f***ing cleaners, sunshine." But the language doesn't make the demand unwarranted. |
Would a Surrogate Parent's Right to Abortion Supersede Parental Rights? Would a Surrogate Parent's Right to Abortion Supersede Parental Rights? Under the Hague Convention, Parental Rights are determined via the last shared and well-settled intents of the parents. (At least some U.S. Circuit Courts.) In Quebec, Parental rights are exercised jointly. So, if there is a right for parents to "pursue life", would a right to abortion still remain for a surrogate parent? | Pursuant to well-established law in the US, the person carrying the fetus (conventionally, the mother) has the right to an abortion. Doing so might be a breach of contract. Some jurisdictions flat out ban surrogacy contracts (Arizona, D.C), perhaps even penalizes (Michigan, NY), or declares void (Indiana, Kentucky, Louisiana, Nebraska). In California, surrogacy contracts are legal and enforceable. One possible challenging scenario is that the mother refuses a requested abortion, the other is that one or both of the intended parents seek to block the mother from getting an abortion. The former case in the case of Melissa Cook, where there was an attempt made to reduce the number of pregnancies from three – Cook carried the fetuses to term despite a contrary request from the intended parents (no action was filed to attempt to force an abortion). There has apparently been no attempted case to force a mother to carry a fetus to terms because of a contract (i.e. order for specific enforcement). Under present US law, the woman carrying the fetus has the exclusive right to choose to terminate a pregnancy. No statutes or case law suggest that a surrogacy contract will override that right, and some laws explicitly deny the ability to force a mother to have an abortion (Utah Code Ann. §78B-15-808(2) & (3), Tex. Fam. Code Ann. §160.754(g), Fla. Stat. Ann. §63-213(3)(b)). A mother could be sued for breach of contract if she terminates a pregnancy – the intended parents may have suffered a financial loss from that decision, but that depends on the state. | There's no such right, but a government could create such a right just as it's possible to guarantee a right to telephone service or to public libraries. Some governments do this, some don't. Rights of this nature are not so fundamental as to be found in documents such as the Universal Declaration of Human Rights. | Can Alice still get child support, or will she be denied because she can not definitively prove which man is the child's biological father? The legal standard is a preponderance of the evidence (i.e. more likely than not) and there is plenty of evidence that can be offered in addition to DNA evidence, such as testimony under oath from people in a position to know who was having sex with whom at the relevant times. Contrary to a common misconception, testimony under oath is still solid evidence that can support a verdict on appeal. Alice had neither a long standing romantic relationship with Bob nor anyone that was a witness to the sexual act, thus making the question of who she slept with difficult to prove. It isn't that hard to prove. Q to Alice's physician: Based upon an ultrasound, when did Alice conceive? A: April 5-8, 2021. Q to DNA expert: Based upon the DNA test, who could the father be? A: Billy or Bob. Q to Alice: Did you have sex with Billy between April 5-8, 2021? A: No. Q to Alice: Did you have sex with Bob between April 5-8, 2021? A: Yes. Q to Billy: Did you have sex with Alice between April 5-8, 2021? A: No. Q to Billy: Why not? A: I was at the Shuffleboard World Cup in Tibet, I have time stamped pictures. Q to Bob: Did you have sex with Alice between April 5-8, 2021? A: -- if Yes, judge says he believes Bob and Alice and the case is over. -- if No, the judge decides who among Bob, Billy, and Alice the judge believes based upon other evidence. Ultimately, the judge has to rule between the two based upon non-genetic evidence and resolve credibility disputes just as in any other case that doesn't involve DNA evidence (which is the vast majority of cases). Also, the edge cases are few are far between. Identical twins are rare to start with, and few women have sex with more than one identical twin in the several day period when she could have conceived or didn't know which twin she had sex with. It has happened at least once in history (post-DNA testing), but you can probably count the number of times that it has ever happened on one hand. For example, presumptions from cohabitation, marriage, and claims of paternity often resolve paternity disputes without DNA evidence. Further, to the extent that there is good faith uncertainty (perhaps everyone agrees that the mother has sex with both twins on the only possible day of conception and nobody really knows), the downsides to a mistake in the larger cosmic sense of the overall paternity law system are minimal, as identical twins very rarely become deeply alienated from each other and instead tend to be close and intensely cooperative once they discover each other, and tend to be similar to each other in almost every respect depriving the child of little if the court gets it wrong. Realistically, identical twins are particularly likely to settle out of court so the judge doesn't have to decide. In one of the only two actual cases I could locate that went to trial (in Brazil), both twins were ordered to pay child support because the evidence showed that they actively conspired with each other to confound the mother and the court regarding who the father was, and conspiracies can support joint and several liability. The other case reported in a news story had convincing circumstantial evidence supporting one identical twin over the other that probably establish a presumption of paternity for one twin and not the other. One of the twins, who cannot be named for legal reasons, went to court last summer in the hope of forcing the mother to grant him access to the child. Although his name is not on the birth certificate, he claims he is the only father the boy has known, cared for him every other weekend, provided financial support and was even known to him as 'papa'. But then the man's relationship with his girlfriend broke down and the visits halted. When he began legal proceedings to prove his paternity, the mother made her claim that she had been sleeping with his twin at around the same time. The twins have said they knew they were both having sex with the woman, but argue that only one had sex during the period of conception. Both refused to undergo a DNA test: the complainant refused to pay the £335 charge while his brother, who has since married and fathered children, does not consider himself involved in the dispute. Now, however, Judge Jolin has asked the complainant to take a DNA test by 1 December to ensure he can claim even possible paternity, while his brother may also be tested. (The second case is in Quebec and the cost of the test in pounds is apparently a currency conversion value.) (It is possible in principle to distinguish even identical twins from each other with high coverage whole genome tests that would reveal a few random mutations in each twin out of billions of possible mutations, but it is currently prohibitively expensive to do so.) Can she even get a paternity test given that it would not be definitive proof which man was the father? Yes. This rules out all 4 billion men in the world minus two of them. It has great probative value, narrowing the list of possible fathers down to two. | You are responsible or assessing risks to your children A parent (or a person in loco parentis) is obliged to care for and protect their children this includes assessing the risk to those children and whether that risk is acceptable or should be avoided or mitigated. This applies to all risks, when they should cross the road, when they are responsible enough to be left home alone and, yes, who is a suitable person to care for them. This does not require any sort of formal or documented risk assessment process but if things go wrong, the state may require the parent to justify their actions. If the state believes that their actions were reckless then this may be a crime. If the state believes their actions were not reasonable then this may have ongoing consequences with child protection agencies. | In the US, there are no laws against surgical circumcision with informed consent (and I don't know of any such laws in any other country). Parents are generally allowed to grant surrogate informed consent. There is no requirement that circumcision be carried out by a licensed physician or other approved practitioner. A person can be held civilly liable for damage done by the procedure. There are no criminal prohibitions in the cases that you describe, but there could be civil interventions. In particular, the court could override parental consent – for instance, if a parent ordered circumcision of their 17 year old. If some person does the circumcision without parental consent, that could be a crime. The key distinction is parental consent. The law grants parents the power to act on behalf of the child, under the premise that children do not have the capacity to act in their own best interest, and cannot reasonably be forced to bear the full consequences of their actions. These are long-standing pre-common law premises, which even predate the promulgation of English common law. "Best interest" is not a technical term requiring definition, but it is a factual matter that is very difficult to judge. Judges use solomonic wisdom to determine whether a surgery is in the best interest of a child when it is medically advantageous but psychologically detrimental. Just as an adult can consent to a circumcision thereby negating any accusation of assault, so too can a parent consent on behalf of their child. | Sure: No Constitutional rights are totally unencumbered. Even natural rights like the "right to life" are legally "infringed" through various theories (e.g., self-defense, capital punishment, warfare). The Second Amendment has been interpreted as a right to keep and bear weapons that would reasonably be used in self-defense or in military service. You don't have to go to strategic weapons like nukes to find "reasonable infringement" of that right. For example, even though the military and even police routinely use explosives, individuals are absolutely subject to the whims of a federal regulatory agency (the BATFE) as well as state restrictions if they want to keep and bear detonators. Also, I'm not aware of an absolute prohibition on the possession of nuclear devices by non-government entities. E.g., various government regulators oversee private entities that operate commercial and research nuclear reactors and other activities that put them all-but in possession of nuclear arms. If an individual really wanted to legally keep and bear a nuclear weapon it could probably be done with enough money and oversight. (Amendment: Except, as cpast points out in the comments, that there is a law against private possession of nuclear weapons in the U.S. Which just goes back to the broad answer to your general question: In practice there are no unencumbered rights. Constitutional "rights" might better be called things that require "strict scrutiny" and "narrow tailoring" of government infringement.) | The child C cannot receive anything as a "gesture despite the Will" if everything in the Will is left to B; unless B agrees to a Deed of Variation the Executor is legally bound to follow the instructions in the Will. C may have a claim if he is dependent on A at the time of A's death and A has failed to make provision. It is possible that A's sibling S might also have a claim if dependent. Although you have tagged the question as United Kingdom, inheritance and intestacy law differs widely between England and Scotland. Such a Will should be drafted by a specialist trust and executry planning solicitor to avoid the risk of contentious probate. | Are there actual laws written, or de facto situations (e.g. let's say another law specifies that a child can't be physically forced to go anywhere without causing abuse) where the child can refuse to attend? Are there "tiers" to the age; Is it true that a temper tantrum of a 5 year old would be seen as such, but the refusal of a 17 year would be legally accepted? This is a hard question to answer that doesn't have a neat resolution. Very little pertaining to the authority of a parent over a child is codified in statutory law and there is not a clear cut age at which a child has "freedom of conscience" vis-a-vis a parent. Most of the law related to children concerns allocation of parenting time and parental decision making between divorced, separated or unmarried parents; abuse and neglect; and juvenile delinquency. There is also usually a snippet of criminal law stating that certain kinds of uses of force to discipline children do not constitute crimes. But, part of why it doesn't come up very much is that older children are usually socialized in a manner that causes them to show a certain amount of respect for the wishes of their parents. It also doesn't come up much for children who aren't in their late teens, because the complete economic dependence of children on their parents or guardians gives the parents considerable power of their children that doesn't require the exercise of physical force. Also, it is quite dependent upon how the issue presents itself. No law enforcement agency is going to aid a parent in forcibly dragging a kid to church against their will. But, no social services agency is going to remove a kid from a home because his birthday party will be cancelled if he doesn't go to the church of his parents' choice the Sunday before his birthday. There are also some subtle but important distinctions between states on the issue of emancipation. In Colorado, emancipation is a statement about the empirical reality. If a child is self-supporting and lives apart from parents or guardians then the child is an emancipated minor. It is not a status granted by a court, it is a status acknowledged by courts when evaluating other issues. In California, a child is not emancipated unless a court grants a child that status and a child who is de facto emancipated without the leave of a court is guilty of a "status offense" (the New York State term for someone in this state is PINS for "person in need of supervision"). Basically, if a parent can force a child to go to church by means that don't constitute abuse or neglect and don't exceed the level of force authorize for child discipline in the criminal code, then they can do it, and if they can't manage that, then they can't do it. Many states have a "status offense" that allows government intervention with the cooperation of a parent or guardian in cases where an "uncontrollable" child is defiant and simply will not give any heed to the parent or guardian's instructions. In practice, the older a child is, the less likely someone viewing a parent's conduct forcing a child to do something is to be viewed as acceptable or legally justified. The legal rights of children in a school setting are also age dependent under the case law, although not always in a really well defined way. Controls on student expression that would be uncontroversial for elementary school students may be looked upon by the law with disfavor for high school students and clearly prohibited for adults. Perhaps one useful way to conceptualize it is that trying to make a child attend a particular kind of religious service is not considered an improper purposes for a parent of any minor to utilize the resources available to the parent to do so, but the range of resources available to a parent with regard to an adult child is much narrower. |
What would the copyright laws probably say about these 3 similar pieces of music? Hopefully, someone with some knowledge or background in copyright and music can provide me with some insight for this question. The following 3 short pieces of music seem to share a similar tune (or, at least, some music notes) to certain extent. These 3 pieces were written by 3 different musicians/composers, and are sold on 2 different websites. Would you please listen to them, and help me with these 2 questions : Are there certain levels of similarity or plagiarism among these 3 pieces ? What do you think the copyright law for music would probably say about these 3 pieces ? (Is it potentially a copyright issue or not ? Or is it unclear either way ? undecided ? Difficult to say ? Not enough data to decide ?) Note: I don't even know if these 3 composers get their inspirations for their own piece independently from a common and publicly available music source or not. Here are the link to the 3 pieces of music: (1) Title: Meditative Piano (Sold at the website AudioJungle.com) https://audiojungle.net/item/meditative-piano/32206211 (2) Title: Nature Beauty (Sold at the website MelodyLoops.com) https://www.melodyloops.com/tracks/nature-beauty/ (3) Title: Magical Stars (Sold at the website MelodyLoops.com) https://www.melodyloops.com/tracks/magical-stars/ | 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. | No Copyright protects expressions of ideas but not ideas. A song with the words if a poem set to music would generally require the permission of the owner of the copyrighted poem. An instrumental score “inspired by a poem” would not remotely be using the same expression, or a derivative of, the poem. Titles are not subject to copyright and there are many books with identical titles. Try “The Gathering Storm” as a book title. | In a hypothetical case like you are describing, you could make a contract with them regarding the duplication of the content, irrespective of copyright law. Their violation of that contract would not necessarily be a copyright violation (which would allow statutory damages), but you might win a breach of contract lawsuit. But if someone took it from them and made copies, you would likely not have a case against that person because copyright would not protect you and you have no contract with them. In addition, you could obtain a very "thin copyright" in a particular new presentation of the material. This would mean that copyright law would apply, but only to the particular presentation (e.g. new footnotes, a particular layout, etc...) If considering doing this IRL, you should consult a copyright attorney. | The lyricist and composers already have copyright. Copyright exists for the moment of creation: registration is not necessary to enforce copyright rights and to grant licences. Registration in the US is merely useful if you want to prove that you own the copyright which otherwise would require providing evidence of the date of creation, priority etc. Most countries do not have copyright registers. Similarly, you will have copyright in the derivative work of the soundtrack from the moment of its creation. | No. These companies seem to be saying that they are entitled to sell music under some sort of mandatory licensing agreement authorized by the law of the Ukraine, or by a licensing agreement specific to the Ukraine. Even if this were true, it would only give them the right to distribute the files in the Ukraine. If an American, sitting in the U.S., makes a digital copy of a file on a Ukrainian server by copying it to his or her U.S. hard drive, they have to have a license to do so issued either by the U.S. copyright holder or authorized by U.S. law. A license to distribute in the Ukraine doesn't give the U.S. end user that license. A Ukrainian statute doesn't give the U.S. end user that license. If the end user doesn't have that license, he or she is violating the copyright holder's rights and may be civilly or criminally liable. There is no scienter requirement for copyright infringement. In fact, it's not at all clear that any Ukrainian site is operating even under this dubious legal cover. This report on Ukrainian licensing agencies by an industry group claims that many Ukrainian licensing authorities are actually scams that have no rights to distribute music under any license--one of the "rogue licensing agencies" discussed is Avtor, referenced in your first example. There is some legal confusion over what group does have permission to license music and collect royalties in the Ukraine, but it's clear that Avtor doesn't, and it certainly doesn't have permission to distribute them in the U.S. If a guy came up to you on the street and told you he had written permission from Disney to videotape their latest movies with a camcorder and sell them to you for a dollar, are you violating the law if you buy it? The answer is yes, and it's the same for these Ukrainian sites. | This is a heavily fact-dependent question. Exactly how and how much your work "evokes" the original will matter. That said, your belief that "My understanding is that as this doesn't contain any mechanical part of the original movie it is fine." is not at all correct. If your new work is clearly based on the original work, it would be a derivative work. For example, if Shakespear's Romeo and Juliet were still in copyright, West Side story would have been a derivative work, and would have required permission. You would do well to consult a lawyer knowledgeable in this specific area, in your specific jurisdiction, as the detailed rules vary by country, although the general principles are pretty much world-wide. | My question is, because I am not making any income from the distribution of the game, would the use of the copyrighted music fall under Personal Use? There are some "private use" exemptions in Australian copyright law but they have some fairly narrow conditions. These exemptions are fairly narrow because the point of copyright law is not to prevent you from making money with someone else's intellectual property but to protect the other person's ability to make money with it. If Alice writes a song and Bob distributes it free of charge, Alice loses revenue. Similarly, it is Alice's right to decide whether that song should be included in a freely available open-source software product, and her right to decide whether to allow that use without charge or in exchange for a license fee. | This would likely be considered a derivative work. You would need permission from the copyright holder to make it, especially if you intend to distribute it for profit. |
Is it illegal for a company to sell an item it does not currently have in stock? If a company does not currently have something in stock does that information need to be known to the consumer? Wouldnt this fall under a pre-order since the company does not actually have the merchandise it is selling currently in stock (this is for a new item that has never been sold before). I recently purchase a product from a company which advertised it had X amount of items in stock ready to ship. Turns out the company never actually had possession of the items when they said they did. This was not known to consumers at the time of purchase. Is this company breaking any laws? | 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. | Warranty is company policy. It could be considered part of the contract of sale, but it would still be what the company stated it - at time of purchase - to be. Unless the warranty lists accidental damage as being covered, it looks like the company are following their policy and fulfilling the contract. If you were looking for legal redress since accidental damage resulted from using the product as intended, you'd have more chance of success looking at unsatisfactory quality or the product being unsuitable for the intended purpose under Part 1 chapter 2 sections 9 and 10 of the Consumer Rights Act 2015. It's worth sticking to objective details (for example that the port broke, and that you had used the device as intended). The company are not assuming you broke it (anyone or anything could have caused the accidental damage), and they are not refusing a warranty repair as it appears that accidental damage is not covered by their warranty policy, so this is not one. | A store owner may ban any person from that store that s/he chooses, provided that the ban is not for a reason forbidden by applicable anti-discrimination law, such as banning all people of a particular race or religion. That does not appear to be the case in this situation, from the description. Since this is a franchise, the store has a local owner who is not the chain company. The company will have a franchise contract with the local owner, which will specify in what ways the company can and cannot control the store. They might or might not have the power to require the store owner not to ban you, or not to engage in verbally abusive behavior in the store. In any case, you, or any third party, cannot force them to exercise such power, even if they have it under such a contract. It is very unlikely that law enforcement the authorities will treat the verbal harassment as a crime based on a customer report. You could publicize the situation, as by an online review, which might cause the chain company to take some action, for fear of bad publicity. But be careful. You have already learned that your initial understanding of the situation was significantly incomplete. If any public statements you make are untrue, and harmful to reputation, you could be accused of defamation and sued, perhaps successfully. | The retailer You can try making a subject access request under Articles 15(1) and 15(3) of the UK GDPR. Provide as much information as you can (your name, date of purchase, store you purchased it from, copy of the receipt, etc.) and ask for the serial number. If they still have it, and it is stored in a way which is linked to you in an identifiable way, then they are obliged to provide it without undue delay (and in any event within 30 days). You may want to provide a copy of your passport in the request to pre-empt them coming back with an ID check request under Article 12(6), which then allows them to delay processing the request until you have replied. As stated above, if they no longer have the data or you are not identifiable from the data then they do not have to provide it. If they do have to provide it but refuse then you can complain to the Information Commissioner's Office or ask the County Court for a compliance order under section 167 of the Data Protection Act 2018. The insurer Regulation 3(1) of the Consumer Protection from Unfair Trading Regulations 2008 prohibits "unfair commercial practices". Regulation 3(4) provides that a commerical practice is unfair if, inter alia, it is listed in Schedule 1. Paragraph 27 of Schedule 1 contains the following item: Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights. As you've provided proof that you purchased the item, you can try to argue that having the serial number of the lost item can not "reasonably be considered relevant". Yes, the contract says that you must provide it, but consumer rights legislation overrides contractual provisions. You may also want to consider dealing with the insurer by email/post instead of by phone, (a) to avoid continuing to waste time on hold, and (b) because if they systematically fail to respond then this may also cause them to be in breach of the above provision, (c) to acquire evidence which you can use later. Escalating If you get no results from the insurer, make a formal complaint to them through their complaints process. Under the FCA Handbook rule DISP 1.3.1R, the insurer is required to provide a complaints procedure. Under rule DISP 1.6.2R they are required to provide a final response to a complaint within 8 weeks. If you are not happy with the response, you can escalate the complaint to the Financial Ombudsman Service which has the power to make financial awards pursuant to section 229 of the Financial Services and Markets Act 2000 ("FSMA"). Doing so is free of charge and is therefore a good alternative to going to court. The ombudsman can also make awards that are not strictly based on law (i.e. they can go further than the courts can) because of section 228 of FSMA which provides that: "A complaint is to be determined by reference to what is, in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case." You must generally escalate a complaint to the Ombudsman within 6 months of receiving your final response from the insurer (rule DISP 2.8.2R). | The simple way is to post a picture of you and the widget to a site like Flickr. A more expensive way (but with rather more weight) is to get a Notary to certify they saw you and the widget on January 9th. Both the above provide evidence you had access to the widget before January 10th, but neither prove you owned it. For that, you would need a dated (possibly even notarized) bill of sale or similar - but if you acquired the widget via a gift, that won't work. A signed witness statement from the giver would probably serve (and the statement could legitimately be created when you are prosecuted). None of the above are unforgeable - but you don't need that. Depending on how the law is written, you will only need to show ownership on the balance of probabilities, or you might only need to show reasonable doubt that you didn't own it on 9th January. | I emailed the Bureau of Alcohol, Tobacco and Firearms in the USA asking this and received the reply: "There is nothing to prevent you from marketing antiques in the UK while present in the US." I also contacted a relevant US attorney and received: "There’s nothing in your question which would implicate Colorado or US law. If you're a UK citizen, and the sale is happening in the UK while you're in the US, then the US has anything to do with it. So as long as the UK doesn’t have any problem with it, the US will not." So I would conclude this question fairly answered. | A "similar brand", even a "knock off", does not infringe trademark protection (which is the issue here, not copyright) as long as reasonable consumers or purchasers will not be confused or mislead into thinking that the product is the same as the original product, or is made by, affiliated with, sponsored by, or authorized by the makers of the original product, or that the knockoff in some way shares the reputation of the original product. Obviously that is a fact-based judgement, but a name that alludes to another product but is obviously different is generally not considered an infringement. (I recall reading of a case in which the well-known "North Face" clothing brand tried to sue a new brad called "South butt". I believe that North Face lost. Apparently I was wrong and the case was settled.) | Is it legal in the US for a company that rents out car parking spaces, to bundle the renting of a parking space to buying insurance for the content of the parked car? Yes. Honestly, I'm a little surprised that I've never see this practice in real life. All things not prohibited are allowed, and there is nothing, per se illegal about bundling services and requiring them to be purchased as a package deal (there may be some licensing issues for insurance sales involved, but those would probably be easily overcome). Sometimes bundling gives rise to an anti-trust violation, but neither the parking lot operation business nor the car insurance business are so consolidated that this would fairly be viewed as some kind of anti-competitive practice. |
Public liability in the UK during building works on house When building works are done on a house in the UK (specifically England, if it makes a difference), is the contractor who erects scaffolding required to have public liability insurance? If the scaffolding fails, and they don't, would the home owner be liable for any injury/damages? | No one is required to have Public Liability Insurance If a contractor (or householder) wants PL insurance they are free to take it out but there is no legal requirement to do so. There may be contractural requirements. For example, a mortgagee may require a mortgagor to have property insurance and PL usually comes bundled with this (but check your policy because it may not be so). Or a householder principal may require their contractor to have PL insurance but a wise principal also requires evidence of cover. Whether a person has PL insurance or not, they can be liable to the public for damage. Insurance does not remove liability, an insurer just indemnifies their insured from the costs of defending or settling a claim. Liability In general, the head of claim for liability is typically negligence. Whether a person is negligent depends on if they had a duty of care and failed in that duty among other things (see Is there liability for pure accidents?). The contractor could be liable. The householder could be liable. Both could be liable. Neither could be liable. In normal circumstances, a plaintiff will sue everyone they can think of. At that point, it would be nice to have insurance so you can say to your insurer: "You deal with it." | This is a pretty good example of "Contributory Negligence". Depending on the precise details of the case, both (or multiple) parties may have contributed to Karen's injuries. She certainly had some role by ignoring posted signs and wearing inappropriate footwear. But the shop may have made access too easy. Maybe they didn't have a front-desk person posted in a safe-area, causing her to go seeking an employee. The shop had a dangerous bin of metal shavings without a lid on it, and at a height and location where a single misstep means someone could fall into it head-first. They had dangerous crane-control mechanism in easy reach that didn't need a Key or other Lock-out mechanism. Ultimately, the details will matter. But it should be straightforward for mediation or a trial to determine each parties contribution to the overall unsafe situation and injuries. Taking the description above at face-value, I think Karen and the shop might both be found partially responsible for the injuries. It may not be a 50/50 split, but Karen likely acted unreasonably, and the shop, despite OSHA compliance, may well have created more hazards than appropriate. | When a court is required to decide whether someone is professionally “qualified” or “competent,” it will generally consider the opinion of expert witnesses from that profession. For example, in Stothers (M & E) Ltd v Leeway Stothers Ltd [2011] NIQB 35, a building contractor claimed that an electrical contractor had breached a contract requiring work to be done by “qualified electricians.” Two of the electricians had no formal qualifications, but through experience, had acquired “grandfather rights” entitling them to work as electricians. The four experts disagreed as to whether these electricians were “qualified.” After hearing from the experts, the judge decided that the electricians were not “qualified,” for the purpose of that specific contract, because they had not fulfilled the requirements of an objective standard. It is not possible to say, in general, if someone who “believes … they have demonstrable experience working as an electrician, have adequate insurance and hold qualifications from a recognised institution” is “competent to undertake the inspection and testing required” in a particular case. The person’s belief may be incorrect or unreasonable. The inspection and testing required may be unusually complicated. Expert witnesses can give evidence about this. If there are conflicting opinions, the court must make a decision based on the facts of the particular case and the purpose of the legal requirement, as occurred in Stothers. The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 require that a “qualified person” be “competent” to work “in accordance with the electrical safety standards,” namely the Wiring Regulations, BS 7671: 2018(3). This article in Professional Electrician & Installer analyses regulation 621.5 of BS 7671, which requires that “periodic inspection and testing shall be undertaken by a skilled person … competent in such work.” Such analysis of a specialised industry standard, if presented by an appropriate expert, could be adopted by the court. | Could you insure yourself either given the fact that- you bought the property on mortgage? A mortgage does not generally have the legal effect of insurance. You owe the debt to the lender, which is a strict liability obligation, without regard to the value of the collateral. So, if the collateral is devalued, you still owe the debt, whether or not the lender forecloses. For example, if you sell the property for less than the amount of the debt (i.e. a short sale), you remain personally liable for the deficiency between the proceeds of the sale, and the amount owed on the debt, unless the lender consents. The exception to this is a "non-recourse mortgage", which is a mortgage in which the lender expressly agrees to accept the collateral as the sole means from which the debt can be repaid in a compulsory fashion. The financial crisis of 2009 was mostly a function of a handful U.S. states like California and Florida with economically important mortgage markets having residential mortgage loans that were as a matter of law, non-recourse debts (or nearly non-recourse debts) compounded by people making risky decisions knowing that they didn't face the risk of a deficiency judgment. But, non-recourse mortgage lending is very rare in the U.K. (the linked material inaccurately asserts that mortgages in "most of the United States" are non-recourse, however, when, in fact, that is true only in a small minority of U.S. states, probably not more than five state in all, although a couple of the states that are close to non-recourse for residential mortgages, like Florida and California, are economically important U.S. mortgage markets). Of course, even in the case of a debtor who is obligated on a full recourse mortgage, it may be in the interest of the lender to write off the deficiency judgment, rather than seeking to recovery the debt from the borrower, if the borrower is apart from the collateral, judgment-proof or very nearly so. The lender is taking the risk that both the collateral will be insufficient and that the borrower will also be unable to pay the debt, and when that happens the lender takes a loss. Or is there any insurance which could protect you against massive downfall in any Unforseen compulsory purchase situation. In the United States, lenders often buy what is called "mortgage insurance" at the expense of the buyer, when the down payment on the property is under 20% of the purchase price, that remains in force until 20% of the purchase price has been paid through a combination of a down payment and principal payments on the loan. But, this form of insurance is not generally available to property owners themselves as a matter of economic reality, possibly because it is an uninsurable risk, and possibly because there isn't enough economic demand for it at prices that would make it profitable to do so. Also, when a lender receives a payment on a mortgage insurance policy, the insurance company receives in exchange, all of the rights that the lender had to sue the borrower for a deficiency judgment, if any. These are called the insurance company's "subrogation rights." I have certainly also never seen any form of insurance for an unfavorably bad outcome in an eminent domain/condemnation proceeding for any reason. In a case like that the court determines as a matter of law (in one of the few proceedings where there is still a right to a jury in the U.K.) what the fair market value of the property is at the time of the condemnation, and that determination would complicate recovery on any insurance policy because you would need to have a proof of the loss. Generally speaking, a mere decline in the fair market value of real estate, in and of itself, it not considered to be an insurable loss, of the owner of the real estate, for insurance law purposes. Bonding A very close cousin of insurance contracts are bonding contracts. When a third party is unsure that you will be able to perform a contract or pay a debt, you can encourage them to do business with you by having a bonding company agree to meet your obligations up to a certain dollar amount if you are unable to do so, usually, in exchange for a fee, a right to sue you if they have to make a payment for the amount that they had to pay, and sometimes for some sort of collateral to protect them against the risk that they are taking. But, bonding companies don't generally provide bonds for residential mortgage customers at any price, because someone who needs a bond on a debt like that is unlikely to be able to ever repay the bonding company for its loss if it does have to pay the mortgage debt, and because bonding companies would need to set aside too much money as financial reserves against this risk to be prepared in the event that it had to pay a lot of claims due to collapsing real estate price bubble or something like that. Or is there any way to mitigate this risk / avoid this risk? Option To Sell Contracts On the buyer's side the primary "insurance-like" legal instrument would be for the buyer to purchase from a third-party a legal option to sell the property at a specific price that is lower than the current purchase price. Such an option would probably be legal to enter into, and, with the proper regulatory compliance and financial disclosures, a firm could sell such options to residential property buyers. But, as a matter of practical economic reality, I have never encountered a transaction in which someone actually did that with an unrelated third-party in an arms-length business transaction. In the financial crisis of 2009, secondary market mortgage debt buyers had purchased options to hedge against just this kind of risk, but the counterparties who were obligated to cover the losses pursuant to those options didn't have sufficient reserves and other assets to cover the losses that they were obligated to pay, and so the people who had purchased these options were stiffed anyway. This is because prominent credit rating firms for businesses (of which there were only three or four in the United States) failed to properly evaluate the fact that the risk of one claim under this kind of option was not independent of the risk of other claims under similar options happening at the same time, and in general, failed to accurately evaluate the risk of counterparties being unable to perform their sides of the contracts because the counterparties were be prominent financial companies that had never failed before. But, faced with this situation, almost every investment bank in the United States either went bankrupt or was acquired by another financial company that was not allowed to engage in this kind of derivatives transaction. Mortgage insurance companies, in contrast, paid all of the claims against them, because state insurance regulators had adequately evaluated the risks and forced the mortgage insurance companies to set aside adequate reserves to pay claims in the event of a situation like the 2009 financial crisis. But, because the need to set aside reserves made mortgage insurance (which also had premiums that were not tax deductible to the property owner) made mortgage insurance more expensive than having the same bank give someone both a first mortgage and a higher interest second mortgage on a residence, and then entering option contracts to control their risk of loss in the event of a real estate devaluation that made the second mortgage uncollectible, mortgage insurance companies had a pretty low market share of the financial services providers who were addressing the property devaluation risk for mortgage lenders. Long Term Leases In Lieu Of Purchasing With A Mortgage Another alternative would be to enter into a favorable long term lease of the property, which would be owned by somebody else, rather than actually buying it. If the lease had a term automatically terminating upon a compulsory purchase such as an eminent domain proceeding, the landlord and not the tenant, would bear the risk of loss in the event that the property bad massively devalued due to a change in prevailing market prices (although the landlord would also benefit in the event of massive appreciation at the termination of the lease, although that might be long in the future). This would be an extremely uncommon arrangement for someone to make with their own residence, but isn't unthinkable. For example, over in Ireland, the Guinness Brewing Corporation rents rather than owns most of the real estate that it used on long term 999 year leases (if I recall correctly), possibly out of concern for this possibility, which was a very real one at the time that those leases were put in place. Similarly, my childhood home in a university town was built on land leased from the university on a 99 year lease in the 1960s or 1970s, that was later converted to absolute ownership of the land by my faculty and administrator parents about fifty years into the original lease by mutual agreement between the university and the original home builder. But, that wouldn't really be strictly analogous, because the house was purchased by my parents subject to a full recourse mortgage secured by the building and their rights as tenants on the land lease, so they weren't really protected from a mass devaluation of the property. The transaction didn't really hedge against an economic downturn. Instead, it effectively gave the university the right to buy back the land at the cost of compensating my parents for the value of the residence built on that land, if it wanted to expand. But, it would still probably be possible and legal to enter into a long term lease whose terms did hedge against that possibility, possibly with an option to buy the premises after a certain number of years long in the future when devaluation relative to the purchase price was much less likely to due gradual annual appreciation and inflation over that time period (e.g. 40 years out), if you could find someone willing to serve as a landlord in that kind of deal. Caveat Regarding Taxation The way business transactions are structured is frequently heavily driven not just by the underlying economic effect of the transactions, but also by the tax implications of the transactions. But, I am not familiar enough with the tax laws of the United Kingdom to evaluate that piece of the puzzle. In the context of the question, the most viable alternative to limit risk downside devaluation risk would be to enter into a long term lease rather than buying the residence. But, that only makes sense if there are not big tax benefits to owning a residence with a mortgage as opposed to leasing one. In the United States, there are huge tax incentives to buy rather than lease. But, I don't know if there are similar tax incentives in the United Kingdom that might make a long term lease solution less attractive. For example, a large share of all businesses in the United States lease rather than own the real property that they use, and a large share of skyscrapers and other high rise buildings in the United States are built on leased land. But, those transactions are structured as long term leases, rather than purchase transactions, primarily for tax reasons. Under U.S. tax law, businesses can't treat money spent to purchase raw land or principal payments on mortgages as an expense for tax purposes, but can treat the full amount of any lease payment the business pays to a landlord as an expense for tax purposes. So, transactions are structured accordingly. For example, in a high rise transaction, the building owner pays the fully deductible long term land lease payment to the owner of the land (usually a non-profit that isn't worried about having taxable income not matched by an expense deduction), while the building owner can make up for not being able to deduct principal payment expense on the construction loan by being able to take depreciation deductions on the building itself as an expense in a similar amount. The non-profits usually don't borrow the money to buy the land that they lease to high rise owners. Instead, this is an investment option for cash rich, stable non-profits that need to find a way to get reliable, low risk, long term passively managed returns on their investments. And, the risk of devaluation is much lower for a long term investor with a forty year time horizon than it is for property owner with a shorter time horizon. But, without these tax incentives, there would be far less real estate leasing by businesses in the United States, and a desire to hedge against significant real estate devaluations is a far more secondary reason for businesses to lease of real estate in the United States. | 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. | You might suggest that the neighbor consult with their insurance agent, in case the insurance policy does not cover liability from damage caused by standing trees, especially when the policy holder knows that the tree poses a threat to property. The only thing you can do without the neighbor's cooperation is complain to the city, since it's possible that this situation violates a local ordinance, and the city might order him to remove the tree. | Your rights and responsibilities in this realm are a matter of local law, sometimes down to the level of the city, plus whatever is stipulated in the lease. In San Francisco, for example, No Person shall have upon any premises or real property owned, occupied or controlled by him, or her, or it any public nuisance [which includes] Any visible or otherwise demonstrable mold or mildew in the interiors of any buildings or facilities This does not say whether the owner or the occupant is liable for remediating the situation. Shower mold is gross but not a health hazard (the SF ordinance just lumps all mold into one category). Since you have no written lease, there is no automatic clean-up requirement. There might be a law requiring a tenant to clean the premise to its original condition, for instance in Washington, tenant must Upon termination and vacation, restore the premises to their initial condition except for reasonable wear and tear or conditions caused by failure of the landlord to comply with his or her obligations under this chapter. Landlord duties are here: there is no duty to provide ventilation. However, the bathtub appears to be in a common area and not your particular unit. The landlord duties also require the landlord to Keep any shared or common areas reasonably clean, sanitary, and safe from defects increasing the hazards of fire or accident so in Washington, it's his problem and not yours. In general, even if a tenant is responsible for some form of cleanup, that does not constitute legal license for a facility upgrade. It might cost a couple hundred dollars to hire a person to wash ordinary mold accumulation, and does not justify getting a $5,000 new tub. Since this is in a common area, you would not be solely liable for whatever the damage was. The part where you say "crack in a common bath tub" is a large red flag: it suggests to me that somebody negligently broke the bathtub, and then caused behind-the-wall damage by letting water infiltrate without notifying the landlord. If you broke the tub and let it rot, you could be liable. If the tub was broken already and the landlord didn't bother to do anything about it, that is his negligence. The three questions that you should try to answer are: (1) what are the duties of landlord and tenant in my jurisdiction, (2) what was the actual harm done, and who did it, (3) what is the ordinary cost of whatever repair was done. | In New Zealand, employers have a duty to take all practicable steps to ensure their workplace is safe for employees and for others who come onto the premises (Health and Safety in Employment Act s6). So if there was a wasp nest and they didn't do anything about it, presumably they would be liable. If it was a random bee, I doubt they would be liable, because they couldn't practicably prevent a bee flying in if, say, someone opened the door. The state would have to charge the company as HSEA is a criminal provisions act. If the plaintiff brought a claim based on the tort of negligence, they would have to prove that the company had a duty of care, breached that duty, the breach caused damage, and the damage was not too remote from the breach. The company does have a duty of care to their patrons. The standard for this is what a reasonable person would have done in the circumstances. If they didn't remove a wasp nest they may have breached their duty of care. The breach will have caused damage (a wasp sting). It wouldn't have been too remote since had they removed the wasp nest, the person wouldn't have been stung. However if a random bee flew in, the company probably wouldn't have breached their duty of care, and if the court found that they had, the damage would probably be too remote or not have been caused by them directly. |
Is there an extra time given for criminal prosecution in Canada if there's foreign evidence that have to be collected? Is there an extra time given for criminal prosecution in Canada if there's foreign evidence that have to be collected? There might be delays experienced if the court has to secure bank records and other evidences located outside of Canada, I am wondering if the laws of Canada take that into consideration when applying the statute of limitation for criminal laws. https://ca.practicallaw.thomsonreuters.com/w-005-4460?transitionType=Default&contextData=(sc.Default)&firstPage=true The Court held that proceeding on a foreign judgment is subject to the basic two-year limitation period in the Limitations Act, 2002, S.O. 2002, c. 24 (Act). Section 16(1) of the Act, which provides that there is no limitation period in respect of "a proceeding to enforce an order of a court, or any other order that may be enforced in the same way as an order of a court" does not apply to a foreign judgment. There's something I found about foreign judgment, but it doesn't seem to be related to foreign evidence at all. | Statutes of Limitation are not applicable once charges are laid Statutes of limitation set time limits on when proceedings (civil or criminal) must be started, not on when they must be concluded. This does put pressure on police forces to gather sufficient evidence to lay charges (at least for crimes that have a statute of limitations - the most serious don't) but further evidence to secure a conviction can be sought during the trial process. How much time they get is usually at they discretion of the judge. | There are essentially no such limits on the use of such evidence. The police are free to use evidence from one case in whatever other cases it may be helpful, and criminals have no right to turn over evidence to the police on the condition that it not be used against them. The Exclusionary Rule has no application here, because it only governs evidence that was obtained in violation of the Fourth Amendment. Because the defendant here consented to producing the evidence, the Fourth Amendment does not apply. Nor does the Fifth Amendment prohibit the use of this evidence. The right against self-incrimination only applies to compelled self-incrimination; if a defendant wants to voluntarily confess or turn over inculpatory evidence, he is free to do so. | Part XVIII of the Criminal Code addresses the power and procedure for appeals. Appeals of indictable offences are appealed to the provincial Court of Appeal. The Crown can generally appeal where there is an error in law. The Crown has a limited appeal on the basis of questions of fact. This includes appeals for unreasonable verdict.1 However, the Crown cannot appeal on issues of credibility unless it amount to an error in law. The Defence can appeal both issues of fact and law.(ss. 675 and 676) R. v. Kendall, [2005] O.J. No. 2457 (Ont. C.A.), at para. 46 from a Canadian Criminal Procedure Wiki. Unlike in U.S. law, the government can directly appeal an acquittal on certain grounds in Canada (without regard to whether it was a jury trial or a bench trial), although those grounds aren't quite as broad as those of the defense. This would also be true in modern English law. In practice, it is somewhat easier to appeal a verdict in a bench trial than in a jury trial, because in a bench trial you know why the judge says he or she came to the verdict and can determine if those reasons were incorrect, while in a jury trial, the appellate court presumes that the jury followed the law and use any even implausible basis for their opinion even if that isn't what really happened. The complete bar on appeals of acquittals of criminal charges in U.S. law due to the double jeopardy clause of the U.S. Constitution's Bill of Rights, is a rare exception to the global norm. | Unless there is enough evidence to convict one or more of the suspects, none will be convicted. In general the argument: We know it must be one of you, but we don't know whch, so we find you all guilty. is not allowed in any non-dictatorial jurisdiction. Just how much evidence is needed for a conviction varies by jurisdiction in theory, and by judge or jury in practice. Also, it would be possible to charge several of the residents with having acted jointly in the crime, but there would still need to be sufficient evidence against each defendant to obtain a conviction. | Up to any time bar in a statute of limitations: yes By using the services, your neighbour incurred the debt. The debt did not become due and payable until the bill was issued. It doesn’t matter when the bill was issued. In most jurisdictions, there is a statute of limitations with a time limit on how long after a debt was accrued it can be pursued. For Utah, the limit is 6 years so your neighbour is liable for all of the past 4 years. Given the circumstances, the utility may look favourably on proposals for discounts and time to pay but that will be a commercial decision, not a legal obligation. | 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.) | Any country is free to decide what actions are considered to be crimes, and what crimes are prosecuted depending on whether you perform the action in the country, outside the country, and depending on whether you are a citizen, a resident, both, or neither. They can also decide what are accepted defences in court and which are not. Any other country is free to decide under which circumstances they will ever extradite someone to that first country. Now you have to check the laws of the individual countries. | Stogner v. California, a criminal case, held that "A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution". In 1798, in Calder v. Bull, SCOTUS long ago decided that the Ex Post Facto Clause does not apply to civil cases. In that case, Calder had been entitled to property under a will, and the Connecticut legislature changed the law. The Supreme Court held that the legislative act was not an Ex Post Facto law. Chase's reasoning, which relies on the distinction between ex post facto law and retrospective law, is this: In my opinion, the true distinction is between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime. The expressions "ex post facto laws" are technical; they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors. So, yes it can. |
Does the statute of limitations apply if the company to be sued wasn't operating in the U.S.? A civil statute of limitations applies to a non-criminal legal action, including a tort or contract case.[5] If the statute of limitations expires before a lawsuit is filed, the defendant may raise the statute of limitations as an affirmative defense to seek dismissal of the charge. The exact time period depends on both the state and the type of claim (contract claim, personal injury, fraud etc.). Most fall in the range of one to ten years, with two to three years being most common. https://en.wikipedia.org/wiki/Statute_of_limitations Does the statute of limitations apply if the company to be sued wasn't operating in the U.S.? Let's say that a company in China wasn't located in the U.S. for 12 years and 12 years before it created a headquarters in the U.S., the plaintiff was victim of a contract breach from that company, can the the plaintiff still sue the company because the company could not be sued before that even if the statute of limitation would suggest the company cannot be sued anymore? Assume the plaintiff is in the United States in California. | Does the statute of limitations apply if the company to be sued wasn't operating in the U.S.? If the company is not operating in the USA then, of course, US law does not apply to it. There may be statutes of limitations where it is operating but the US ones are irrelevant. However, the company you describe which is entering into a contract with a California resident to provide goods or services in California is most definitely operating in California. The fact that it doesn't have a physical presence in California doesn't mean it's not operating there. If you wish to bring an action in California, the Californian statute of limitations will most definitely apply and time will run from when the breach of contract occurred. You are suffering under the misapprehension that you can't sue a foreign company in a US court You can. It's technically more complicated and there can be disputes over jurisdiction, the appropriate venue and which law applies but assuming all of that can be managed and a Californian court has jurisdiction and considers itself the most appropriate venue (it may be that a Chinese court is more appropriate) then there's no reason why you can't sue a foreign company with no physical presence in California. | The offences found in the Computer Misuse Act 1990 are criminal offences. The Limitations Act 1980 deals with civil offences and is thus not relevant. Apparently, there is no general statute of limitations for criminal offences in the UK (though for summary proceedings, the limit is in general 6 months). | The law regarding proof of service allows service of summons by publication in case a defendant "is not a resident of the state, but has property therein and the court has jurisdiction of the subject of the action". Plaintiff must file an affidavit saying that he believes that you are not a resident, and he either mailed the summons to you or states that your residence is unknown. Knowing how to contact a person is not exactly the same as knowing their residence, so the statement in the affidavit might be true. There is a one year limit on your right to defend and reopen if not served personally. The statute of limitations tolls after the cause of action has accrued (which I suppose would be defective service of the summons, viz. perjury in the affadavit). For recovery of real property, the time would be ten years. The court rules allow that "At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued". (This is clearly a matter that your attorney needs to address). | When the matter is final (no more appeals), the winner in the suit will request a writ of execution to collect whatever is owed. This may involve seizing a person's cash, car and so on. There are limits to what can be seized (some things are exempt by law), for example they can't outright seize a person's home. However, they can put a lien on it, meaning that when the house is sold, the proceeds go to the winner. There are various limits on what can be taken, for example Social Security benefits, welfare, child support – the details are largely determined by state law. There is also a process where the loser's wages can be garnished (there are federal and state limits on how much can be taken). Ultimately, it may not be possible to collect everything. However, today's lack of funds does not necessarily mean permanent lack of funds. A judgment will be valid for a long time and may be renewed. The reason for liability for damages comes down to basic justice. If you harm a person to some extent, you should compensate them accordingly for the wrong that you have done to them. The job of the jury is to determine two factual questions: (1) did the defendant wrongfully harm the plaintiff, and (2) what is the extent of harm. The ability of a defendant to pay such an amount does not affect the answer to those two questions, so inability to pay is legally irrelevant. how much harm was done | Suing them and winning may not be that difficult, and you can generally sue a business even if it ceases to operate as a going concern. Collecting the judgment you win, however, is likely to be very difficult. Still if you are going to sue, the sooner the better, because outside of bankruptcy, the general rule is that the person who is first in time to actually seize the available assets of a company with more debts than assets is first in right to those assets. Also a squeaky wheel is often the one that gets the grease. "Shaming" companies on social media often works for going concerns, but is rarely effective when a company is actually going out of business soon. There are special remedies available against recipients of improperly diverted funds when funds are deliberately sucked out of the organization without receiving anything in exchange for its money (this is called a "fraudulent transfer"), but those cases are expensive to bring and hard to prove. Often in the case of a legitimately failing business, operating losses and not improper diversion of funds from the company, is the reason that it doesn't have enough money to pay all of its debts in full, so this remedy is not available. Winning a lawsuit simply gives you a piece of paper stating that the defendant owes you money which you can then use to seize money and property from the defendant and/or people who owe the defendant money, if you can find either of those things. But, you can't get blood out of a turnip, and the alternative formal collection mechanism (forcing an involuntary bankruptcy) requires the coordination of multiple significant creditors and may not provide much better results if the company has genuinely run out of money, although unpaid wages are often entitled to priority in bankruptcy up to a certain dollar amount which is a preference that is not generally available outside of bankruptcy court. There are sometimes laws that can be invoked to hold people affiliated with the management of a defunct business personally responsible for unpaid wages (sometimes the Fair Labor Standards Act (FLSA), and sometimes state wage claim acts). And, very rarely in egregious cases that affect lots of people where there was an intent to stiff you before you finished earning new wages at the company, a local or state prosecutor will prosecute a company or its officers for "wage theft". Finally, "freelancers" often have far fewer rights in efforts to collect wages than true employees, so a mere independent contractor is in a weaker position and should consider that fact when deciding whether or not to settle. Bottom line: consider seriously accepting a settlement because the cost of collection and the unavailability of assets to collect from once it goes out of business may make a bird in the hand worth more than two in the bush. | There are a few main factors that limit law enforcement liability in a civil lawsuit: 1. Governmental Immunity Statutes. Usually, a state has a governmental immunity act that bars tort liability of state or local governments and of governmental officials acting in their official capacity, except for some narrow exceptions, the most common of which are for negligence in situations that are very similar to cases in which non-governmental agencies are operating (e.g. car accidents, slip and falls at government facilities, medical malpractice by doctors at government owned hospitals, etc.). Usually there is not an exception for intentional torts by law enforcement officers acting in their official capacity. Usually, damages are limited and punitive damages are not allowed at all. In New Hampshire, this is found at Revised Statutes Annotated Chapter 507-B. See e.g. here. 2. Statutes of Limitations Usually, the kind of state law torts that could give rise to police liability have short statutes of limitations that are often further curtailed by special shorter deadlines that apply to suits against governments and government officials. New Hampshire is relatively liberal in this regard with a three year statute of limitations for most civil actions that could conceivably give rise to law enforcement action related liability. (In Colorado, in contrast, the statute of limitations to file a notice of claim against a governmental entity is six months and the statute of limitations for intentional torts in the event that a court finds that an police officer's conduct was outside the scope of his or her official duties is one year.) 3. Federal Liability Claims The main kinds of liability that the U.S. Constitution prevents state governmental liability statutes from providing immunity from are suits under 42 U.S.C. § 1983 (i.e. civil rights lawsuits), and suits arising under the due process clause of the 5th Amendment as incorporated through the 14th Amendment and under the 14th Amendment directly (i.e. inverse condemnation actions alleging a taking without due process or compensation). A. § 1983 Lawsuits There are several barriers to recovery under 42 U.S.C. § 1983 a.k.a. the Third Enforcement Act (see generally, e.g., Allison L. Patton, "The endless cycle of abuse: why 42 USC 1983 is ineffective in deterring police brutality" Hastings LJ (1992)). Note also that the limitations below apply primarily to retrospective suits for money damages. Not all of these limitations apply to prospective relief in the form of an injunction prohibiting certain kinds of conduct in the future. i. There is no vicarious liability. See, e.g., here. So, a government is not responsible unless it as an entity, and not just an agent or employee, has an intent to violate someone's civil rights. This factor is somewhat less important than it seems in practice, because a law enforcement officer's employer or union will usually advance the costs of defense of a civil rights action (something not normally available for intentional tort lawsuits in the private sector) and will often agree to indemnify a law enforcement officer defendant in a settlement or after an award against a law enforcement officer defendant. The absence of vicarious liability also means that you can only prevail if you can determine that a particular named individual violated your rights. It is not sufficient to know, for example, that some unnamed police officer in a particular city's police department violated your rights. In contrast, if you are harmed by an unnamed employee or agent of a private business corporation, because of the much maligned doctrine of corporate personhood, the corporation can be held liable for that unnamed employee's acts anyway, which is usually better than proving liability on the part of the employee because usually the employer has a greater ability to pay a judgment than an employee. ii. There is only liability for intentional violations of civil rights. If mere negligence, § 1983 does not provide a remedy. Daniels v. Williams, 474 U.S. 327 (1986). If poorly designed systems cause someone's civil rights to be violated, it is usually impossible to identify someone whose more culpable than negligent conflict is responsible for this violation. iii. Police officers have qualified immunity from liability under § 1983 (a doctrine created surprisingly recently). This means that the police officer must have allegedly intentionally violated a well established right, which basically means that there must be controlling case law governing the fact pattern in question. If there is no prior controlling case law, the police officer does not have liability even if the court finds on the merits that the victim's civil rights were indeed violated. It is basically a "one free bite" rule. iv. Unlike most other legal issues in civil lawsuits (the main other issue treated similarly is jurisdiction), issues of qualified immunity can be raised at the motion to dismiss stage, before any other response to the lawsuit is required, even if it requires a judge to consider disputed evidence to resolve it, and if the judge rules against the police on the issue of qualified immunity, they can immediately appeal the ruling, rather than waiting until the case is resolved on the merits at the end of the case. Appellate case law on qualified immunity frequently analyzes facts in an unreasonable manner that a jury could disagree with, even though it is not suppose to do that. v. While local governments and state and local government officials can be sued in federal court pursuant to § 1983, the 11th Amendment to the United States Constitution bars lawsuits against state governments in the federal courts in most circumstances, unless the state governments have expressly waived their immunity from suit. (N.B. I have linked to Wikipedia rather than just the text of the Amendment because the Courts, shortly after it was adopted and forever after that time, have interpreted the 11th Amendment to have a meaning contrary to its plain language and impossible to infer from its text alone.) For reasons that are doctrinally complex and obscure, the 11th Amendment generally bars § 1983 actions entirely against state governments although not against state government officials (in what is called a Bivens action), and not suits against local governments. B. Inverse Condemnation Actions There are barriers to inverse condemnation actions as well: i. Inverse condemnation actions can be asserted against entities (which have vicarious liability for acts of their agents) but not against officers of government agencies. Usually, holding an entity strictly liable for actions of the entity's subordinates is a good thing for a plaintiff harmed by the government, but this doesn't provide a civil lawsuit mechanism for holding particular bad actors responsible for their conduct so it can be a poor incentive for individual governmental employees to act properly. ii. Inverse condemnation actions apply only to property interests, not harms in the nature of lost of life, harm in the form of personal injuries, lost services or time, pain and suffering, emotional distress, or loss of dignity or other legally recognized rights. Punitive damages are also not generally available in an inverse condemnation action. See, e.g., here ("It is important to note at the outset that, under inverse condemnation, only damages to real and personal property are recoverable. The claim does not allow recovery of other damages.") (arguably intellectual or intangible property that is totally taken may also give rise to an inverse condemnation claim). iii. Inverse condemnation actions are available only in the event of a "total taking". Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Government action that reduces the value of property is not enough. For government action to be a "total taking" it must destroy all more than nominal economic value of the property in question. 4. Why Does A Federal v. State Forum Actually Matter? Vogelman files the suits in federal court because he says it’s “almost impossible” to sue a police officer in state court, given statutes that insulate them from litigation. This is either a misquotation or an erroneous statement. It is "almost impossible" to sue a police officer under state law, given the statutes that limit them from litigation such as RSA Chapter 507-B. But, it is not materially more difficult to bring an action under 42 U.S.C. § 1983 in state court than it is in federal court from the perspective of statutory law or civil procedure rules, since state and federal courts have concurrent jurisdiction over such actions. There are still good reasons to bring suit in federal court rather than state court under § 1983, and for these reasons this is how it is usually done. But, the reasons aren't statutory. Instead, they mostly pertain to the personnel involved. A. Jury Shopping Jury pool differences between state courts and federal courts are important. But, this factor varies from case to case and doesn't fully explain the strong pro-federal court choice of forum decisions made by Plaintiffs that we observe. i. Federal court provides a larger jury pool, which is desirable when the violation of rights takes place in a jurisdiction less favorable to civil rights plaintiffs vis-a-vis law enforcement defendants. ii. Further, the federal jury pool will typically include many jurors from outside the jurisdiction in which the law enforcement defendant are employed, while state courts will typically have jury pools that are drawn from the jurisdiction that employs the law enforcement defendants who will be among the people who may face increased tax liability for damages awarded for law enforcement misconduct. Like Congressmen, even if people are not favorably inclined towards law enforcement, in general, they are often more favorably inclined towards the law enforcement officials in their own jurisdiction who are protecting them (in theory) from crime. B. Implicit Judicial Bias. More importantly, in practice, state court judges presiding over § 1983 cases are usually more favorably inclined towards law enforcement defendants than federal court judges, and judges are unusually powerful in these kinds of cases. This, in turn, is a product of four main factors: i. Regulatory capture (state court judges have had law enforcement defendants testify before them in criminal cases on a routine basis and found them to be credible again and again, while routinely finding that criminal defendants, who are often demographically similar to or overlap with criminal defendants, to be not credible). ii. Most state court judges are biased in favor of law enforcement, in part, because a large share of them are state and local government criminal prosecutors. This is also true of federal court judges (about 40% were prosecutors before becoming judges) but to a lesser extent. Evidence of this bias at the appellate court level can be found here. See also here and here. iii. State court judges are part of a network of state and local government officials and politicians to whom they are favorably inclined who tend to strongly back the law enforcement officials who are also part of that network, while federal court judges, while still politically connected and not necessarily positively inclined towards civil rights defendants, have a much more attenuated connection to those networks of state and local government officials and politicians. iv. State court trial judges are typically more responsive to public opinion and civil rights plaintiffs are often unpopular individuals. Footnote Re Sources In addition to the sources linked, my first "real job" out of law school including defending county governments and county officials from government liability claims. The matters for which there are no links to sources largely reflect the conventional wisdom of myself and my colleagues in that context. | The statute of limitations in Oregon appears to be six years (per the link provided by Nate Eldgredge in the comments). This would be extended if there was a partial payment or written affirmation of the debt by the debtor. | Stogner v. California, a criminal case, held that "A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution". In 1798, in Calder v. Bull, SCOTUS long ago decided that the Ex Post Facto Clause does not apply to civil cases. In that case, Calder had been entitled to property under a will, and the Connecticut legislature changed the law. The Supreme Court held that the legislative act was not an Ex Post Facto law. Chase's reasoning, which relies on the distinction between ex post facto law and retrospective law, is this: In my opinion, the true distinction is between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime. The expressions "ex post facto laws" are technical; they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors. So, yes it can. |
Do asylum seekers or those with a refugee status in the U.S. enjoy anonymity in any criminal charges? This question is based on the reports on the attacker in Auckland, New Zealand who is currently prosecuted under an act of terrorism charge. “Neither his name nor the fact that he was a refugee could be reported until a suppression order by a New Zealand judge was lifted late on Saturday night. The identity of refugees, and their immigration status, are automatically protected by law in New Zealand.” Is there a duty on U.S. or courts to protect the anonymity of criminally accused persons until they are found guilty or any precedent that permits a court discretion in specifically the case of asylum seekers or refugees? Is it different in infraction, misdemeanor or felony charges? Disclosing the name and/or address of an asylum seeker may expose them to grave danger which is duly noted and dealt with under New Zealand law even in matters that may not bar or even cognizably affect the outcome of their immigration case. Is there any state specific regulation on this in California, for e.g.? | It's exactly the opposite. All arrests are public record under California Government Code 6254(f): Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation: (1) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds. Other than the "endanger the safety" exception, which could be applied case-by-case, there is no general exemption for refugees or asylum seekers. Trials are also public, see What does it mean that a trial in a US court is "Public"?. Members of the public cannot be excluded from a trial, and the defendant can't "opt out" of this. This is considered to be a central feature of US justice systems and an important check on possible abuses of the criminal judicial process. | The UN has a copy of the extradition treaty between the US and Brazil, the short version of it is that the treaty lays out in Article II an exhaustive list of crimes that are extraditable, skimming the list I don't see defamation (since of course in real life it's not a federal crime). As a general principle, Country A won't extradite someone to Country B if the conduct they are accused of in Country B is not a crime in Country A, if Country A does not think Country B would provide a fair trial, or if the person is convicted if the punishment likely to be imposed by Country B would be illegal under the laws of Country A (this comes up a lot with extradition from Europe to the US if a possible punishment for the crime is death). So in your hypothetical Brazil would probably be unwilling to extradite its own citizen for the crime the US accuses them of. I think another part of your question is whether the US or Brazil would have jurisdiction over this defamation. In theory, both could claim jurisdiction over it. In practice most criminal conduct is criminal relatively universally, especially among similarly geolocated countries, so the rest of this paragraph is assuming both countries did consider the defamation criminal and extraditable. As a matter of judicial effectiveness an Internet crime would probably be prosecuted in the country where the person resides. There would likely be a language barrier too, if the US court would have to employ a Portuguese translator. However, this is all largely a political question more than a legal one, if the US really wanted to make an example of this person in their own country the US could try to use political leverage to get Brazil to extradite them. The US could also wait until the person travelled abroad and petition the third country to imprison and extradite them. That's something that happens more commonly for citizens of a country that the US does not have an extradition treaty with. | 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). | So the most obvious is that the U.S. Miranda Rights specifically mention right to legal counsel and right to state provided legal counsel (Public Defenders) if you cannot afford legal counsel (Contrary to some opinions, these guys are very good at their job... it's just that they are also very over worked and private industry pays better). While the right exists in the U.K., the U.K. version of the required reading of rights only speaks to right against self-incrimination, which, if you want a difference is a good place to look. In the self-incrimination clauses, the U.K. and U.S. versions are very different. The U.K. right is a qualified right where as the U.S. is an absolute or unqualified right. This is a distinction which sounds silly upfront but is very serious in how things will transpire. Suppose that you are arrested for the murder of your spouse. You definitely did not do and the "one armed man" definitely did. Either way, you remain silent during interrogation. At trial, your defense is "It wasn't me it was the one armed man" and you intend to present evidence of this. In the U.S. this would be permitted, no further questions asked (or at the least, defeated by other means unrelated to you giving the cops the cold shoulder). In the U.K., this would be first be challenged by the prosecution with "Why didn't you say this when you were arrested?" and your silence on this matter will be used against you. In fact, asking that challenge in the U.S. is very inappropriate, as was recently seen in the Kyle Rittenhouse trial, where the Prosecution did ask that up front to Rittenhouse, prompting a scolding from the judge out of view from the jury. The reason for this is that in the UK there are more strict rules placed on cops during interrogation than there are in the U.S. (In the former, cops cannot lie to you about the facts of the case and they cannot interrupt your statements to them once you start to respond. This is par for the course in the U.S. for cops. In fact, in the U.S., shouting "It was the one armed man" on arrest can do more damage than just shutting up until you're before a judge and jury since that lets the prosecution use the implausibility of a one armed man against you (in both nations, statements that are against your interest do not violate hearsay rules, thus, the cops will only use such a statement against you... it's your job to prove it true or at least plausible enough to make a jury doubt the cops are right.). Also note that this is England and Wales jurisdictions only. Scotland, having its own legal system, retains the right against self-incrimination as an absolute right. Also a big obvious one but the read rights would not be called the "Miranda Rights" by the police or legal community (it may be, by the crooks they are arresting who have no clue that the TV version might be the U.S. one since it's more likely to get shown there than on U.K. TV.). In the U.K. they would be called "Standard Cautions" or "Reading the rights". The U.S. name derives from the SCOTUS case Miranda v. Arizona which was the ground-breaking case that made this required by all police when interrogating a suspect. Additionally, each state has their own version, which generally reads the same way (they explain your 5th and 6th Amendment rights to silence and an attorney) and may vary on asking if you choose to waive the rights upon receiving an affirmative answer that the rights were understood ("With these rights in mind, do you wish to speak to me?" is the proper phrasing). They also are read from cards (business card to index card sized) where the right is printed in English and Spanish and the suspect must sign it as part of acknowledging that their rights were read. | In general, there are few laws in the US that restrict a person's freedom to disclose a fact known about another person. Examples of such limits are HIPAA which restricts health-professionals disclosure of medical information, and FERPA which restricts an educational institution's disclosure of student records. There are laws that restrict government disclosure of information about individuals. Confidentiality might be guaranteed via a contract, if there is a non-disclosure clause in the contract. A number of (major) businesses do have privacy policies where they promise not to disclose your information, or do so only in a specified way: such things generally exist for internet businesses. Some states like California have mandatory privacy policy laws. In New Jersey, there is simply the traditional tort claims of intrusion upon solitude, unreasonable publicity of private life, false light, and appropriation of name or likeness. Passing along general information about a person or a way to contact them would not be seen as an unreasonable intrusion. | The Sixth Amendment to the US Constitution guarantees assistance of counsel for the accused in all criminal prosecutions. The Fifth Amendment protects a person from being forced to self-incriminate. Taken together, in Miranda v. Arizona, the Supreme Court interpreted this to mean that police cannot continue interrogation after you have requested an attorney. Laughter is actually not a violation of your rights, the violation would come from continuing to interrogate you, or in prohibiting you from contacting your attorney or not providing an attorney if you cannot afford one (via the public defender's office). | I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general. Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea. And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications. The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved. In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K. The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality. | There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake. |
Can the Texas Senate Bill model be used for gun control too? Texas Senate Bill 8 takes a legally imaginative route to allow citizens to sue people involved in abortions after week 6 (that is 6 weeks from the most recent period of the woman). This avoids the constitutional restrictions on banning abortions. Another controversial topic in the US is gun control. There are similar constitutional bars on laws that restrict the ownership of guns. Could a state pass a similar law to the Texas law to allow citizens to sue anyone who sells a gun, buys a gun, possesses a gun or similar? | Let's back up. It's premature to say that SB 8 "avoids the constitutional restrictions on banning abortions". The constitutionality of SB 8 has not been resolved; the Supreme Court said so explicitly (page 2). In fact there is good reason to think that is unconstitutional under existing interpretation of the Constitution per Roe v. Wade and the like. (Whether the court will actually follow existing interpretation is another question, of course.) But the courts do not determine the constitutionality of laws just because someone asks them; they only do so when it needs to be decided to resolve a particular case. For instance, if a person is charged with a crime, they can challenge the constitutionality of the law under which they are charged, and courts will address that question unless the case is resolved some other way. There are also ways that a person who wants to violate the law can pre-emptively sue the government to prevent them from enforcing the law, if they can show such enforcement is likely to affect them. The issue in SB 8 is that since it wouldn't be the government enforcing the law, it's unclear who an abortion provider can pre-emptively sue. In Whole Woman's Health v. Jackson, they tried to sue the State of Texas, its courts, and a private party who they thought might be likely to sue them. The SCOTUS majority found that none of those defendants were relevant. However, if and when an abortion provider actually does get sued, there'll be a clear case which has proper parties and is ripe, and courts then will have to consider whether SB 8 is constitutional or not. So if your hypothetical gun control statute were treated similarly, the law might avoid pre-emptive challenges, with a chilling effect on gun sales. But sooner or later, someone would probably violate the law (maybe deliberately as a test case), and the courts would consider whether it was constitutional or not. Under prevailing interpretations of the Second Amendment, they'd probably find that it wasn't. A key difference, of course, is that abortions are much more time-sensitive than gun purchases; being temporarily blocked from having an abortion is much more consequential in most cases than being temporarily blocked from buying a gun. The other subtext is that, although SCOTUS said their decision in Whole Woman's Health is not based on the constitutionality of SB 8, it's widely suspected that several of the justices are not all that keen on the constitutional right to abortion found in Roe v. Wade, and might look to overturn Roe when it comes up. As such, they may not be very motivated to look for procedural avenues to block SB 8 in the short term, since they might be inclined to uphold it in the long term. The dissenters in Whole Woman's Health certainly thought those avenues were available. But in the case of your hypothetical gun control bill, if a majority of justices were pretty convinced that the law was unconstitutional, they might try harder to come up with grounds to block it pre-emptively. | In Roe v. Wade, the primary holding is that "a person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception". The opinion finds that there does exist a right to privacy, and that it is protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. It is immaterial that there is no mention of abortion in The Constitution. There is also no mention of TV and radio transmissions, the internet, speech-amplifying devices, or automated forms of text reproduction and yet the vague words of the First Amendment w.r.t. "press" and "speech" are interpreted as protecting your right to blog. Revolvers and various other firearms that did not exist at the time of the writing of the constitution are not mentioned, but they (the right to have them) are protected under the Second Amendment. Lack of specific mention is irrelevant to determining constitutional protection. §VIII of the opinion discusses the right of privacy, and the ruling roots the recognition of that right in Union Pacific R. Co. v. Botsford, 141 U. S. 250, and numerous other SCOTUS rulings – Stanley v. Georgia, 394 US 557; Terry v. Ohio; Katz v. US, 389 US 347; Boyd v. US, 116 US 616, Olmstead v. US, 277 US 438; Griswold v. Connecticut, Meyer v. Nebraska, 262 U. S. 390 and so on. You might then look at the Dobbs ruling to see whether those arguments are addressed and refuted. That, at least, is where you would start in understanding the legal background. | Note, Washington State Senate Bill 5061 seeks to block certain "untracable" firearms without a serial number. This relates in part to "3D printable" guns, but the act of milling of a 80% lower (in Washington) could be a violation, if and when it passes. But it appears the bill hasn't been made a law yet... Is Washington specific news this issue what drives the question? Federally, the ATF web site says: Receiver blanks that do not meet the definition of a "firearm" are not subject to regulation under the GCA. The ATF has long held that items such as receiver blanks, "castings" or "machined bodies" in which the fire-control cavity area is completely solid and un-machined have not reached the "stage of manufacture" which would result in the classification of a firearm per the GCA. But this gets a bit technical. For further risk mitigation, the Texan could mitigate any risk related to both Federal and Washington state law by shipping it to a federal firearms licensee (FFL) in Washington as if it were a firearm, per ATM instructions which say (in part): Generally, for a person to lawfully transfer a firearm to an unlicensed person who resides out of State, the firearm must be shipped to a Federal Firearms Licensee (FFL) within the recipient’s State of residence. He or she may then receive the firearm from the FFL upon completion of an ATF Form 4473 and a NICS background check. That FFL is then responsible for ensuring the transaction properly conducted in the state of Washington, including federal and state requirements. The FFL I contacted only charged $25.00 (plus collecting the state sales tax). Form 4473 was easy enough; only about one page for me to fill out. Of course, I've got a clean record, so going through channels isn't a problem for me, it took less than an hour. The FFL confirmed for me that it wasn't necessary for something like an antique musket, which legally isn't a firearm by the federal defeinitions. In my case the sender was a nervous "trust" lawyer who wasn't sure, hired yet another lawyer to advise him. The FFL didn't charge me anything for receiving that musket. | It is probably illegal in all of the jurisdictions in the US where a fetus is legally declared to be a person and where the murder statutes are written to not explicitly exclude abortion: that is, in no jurisdictions. No law existing or proposed for Georgia specifically addresses "travel for the purpose of getting an abortion". The underlying theory behind the claim (advocated by some Georgia attorneys) is that a person may be open to a conspiracy charge for taking a woman to another state to get an abortion, which would be a crime if committed in Georgia. If a conspiracy exists in Georgia to do something illegal (in Georgia), that is a violation of OCGA 16-4-8 ("when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy"). The substantially same law exists in Washington, and most if not all other states. The theory is apparently that "conspire to commit a crime" means something like "conspire to perform an act which would be a crime if performed in in this jurisdiction", e.g. "purchase marijuana, or take a job at certain payday loan companies". No state has successfully claimed extraterritorial jurisdiction, where a Georgia resident can be prosecuted in Georgia for a legal act carried out in another state, so this theory is a bit of a stretch. | District of Columbia v. Heller, 554 U.S. 570 (2008), majority opinion, written by Justice Antonin Scalia: Like most rights, the right secured by the Second Amendment is not unlimited ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. (emphasis mine) | 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. | In Texas, sex offenses are defined in Texas Penal Code § 21.01, et seq., and rape and kindred offenses are defined as sexual assault § 22.011 and aggravated sexual assault § 22.021. None of those laws prohibit the conduct described (assuming adults who are not in a teacher-student relationship with full mental capacity), nor do they prohibit the video as long as there is no intent or threat to disclose it. Of course, not recognizing that it is the same person both times in an in person meeting when they have sex is highly implausible. | A number of states, as well as the US Federal Government, have laws against "fetal homicide", under which a woman might be prosecuted. The Alabama law, to take one example, defines homicide A person commits criminal homicide if he intentionally, knowingly, recklessly or with criminal negligence causes the death of another person and then defines "person" The term, when referring to the victim of a criminal homicide or assault, means a human being, including an unborn child in utero at any stage of development, regardless of viability. The abortion exception is stated thusly: Article 1 or Article 2 shall not apply to the death or injury to an unborn child alleged to be caused by medication or medical care or treatment provided to a pregnant woman when performed by a physician or other licensed health care provider but this exception, which codified a result of Roe v. Wade, could be repealed. There are various reported arrests, prosecutions and convictions of women reported here in cases where the woman did not obtain the abortion through approved medical channels. Generally, there are statutory provisions that preclude prosecution of women and physicians involved in a legal medical abortion, but you would have to carefully scrutinize the wording of those exceptions. If the exception is expressed unqualifiedly as an exception for abortion, then until the law is changed, a woman could not be prosecuting for obtaining an abortion. But if the exception is framed in terms of obtaining a legal abortion, then when abortions become illegal, prosecution of the woman becomes a possibility. |
Can a state governments outsource actions that are illegal for the state government to perform? There is some history behind oppression by proxy: both Nazis and Communists sponsored pro-government militias that committed violence on the respective governments' behest while the governments denied direct involvement. Can state governments do that in US? The trigger for the question was the Texas "abortion ban", which is not really a ban but rather an open season for private citizens to sue abortion providers at the Texas government behest, on the state's dime, and in the state's courtrooms, while the state would deny direct involvement and therefore deny Roe v. Wade violation. Because, apparently, Texas v. Planned Parenthood would be illegal, but John Smith v. Planned Parenthood, requested and sponsored by Texas, is not. This question is not about the particulars, not about abortions, but rather about how far state governments can go in encouraging and sponsoring actions that are illegal for the state government to perform. Can Texas declare: "any citizen will be paid $10k for filing frivolous lawsuits against abortion providers, regardless of merit or standing," and then claim that Texas doesn't prosecute abortion provider? Apparently, SCOTUS has no problem with that. 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? Can NY or CA decriminalize violence against gun owners and publish their names and addresses? Can Texas offer $10k per abortionist's scalp? | 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). | Some kinds of companies (e.g. freight shipping companies and banks) often do have those policies. The real issue is not whether those policies are permitted, but what the consequences are for breaking them. The fact that a company forbids its employees from exercising a legal right doesn't mean that the employee ceases to have that legal right. It simply means that if the employee exercises that legal right, then the employee has breached the contract and may suffer the consequences for breaching that contract. Violations of those policies are grounds for termination from employment, and this would probably not be void as a matter of public policy. For an employee at will this is really pretty meaningless, although it could conceivably affect unemployment benefit eligibility. But, for a unionized or civil service employee who can only be fired for cause, this is a big deal. But, in theory, a company policy does not impact the tort liability or the criminal liability of the individual engaging in legally privileged self-defense to anyone. This is because two people can't contractually change their legal duties to third parties with whom they are not in privity (i.e. with whom they do not have a contractual relationship). And two people also can't contractually change the terms of a country's penal laws. The policy may be a defense of the company from vicarious liability for the employee's use of force in violation of the policy that gives rise to civil liability for the employee because the grounds for authorizing self-defense were not present. If the employee using force did so wrongfully and was sued for negligence rather than battery, the existence of the company policy might also go to the issue of whether the employee was acting negligently since a reasonable person in the employee's shoes might have been less likely to wrongfully use force in purported self-defense if there was such a policy than if there was not such a policy (and instead there might arguably have been a legal fiduciary duty as an agent to protect the property and workers of the principal in the absence of the policy). | Assuming that all of these locations are in the same state, this is not an issue of federal law and is not governed by the U.S. Constitution. The geographical jurisdiction of state and local law enforcement officers is exclusively a matter of state law and has no single correct resolution. Different states handle the issue differently. Even if state law or the state constitution prohibited the arrest, this violation of state law or the state constitution, would not give rise to a federal claim for violation of civil rights under 42 U.S.C. § 1983, which may vindicate only federal rights, and could not form a basis for a collateral attack on a state court conviction in a federal court habeas corpus petition which is likewise limited to vindications of federal law rights. Any remedy would have to be secured in the state court system invoking state law rights (assuming for sake of argument that state law provides such a remedy), or in a diversity lawsuit in federal court applying state substantive law, if the defendant was from another state and the amount in controversy was in excess of $75,000. | Murder is most often prosecuted by the states, not the US government, and each state greatly varies on the subject. Some states consider a fetus to be a person at any stage in its development; some require harsher punishments if the defendant knew the victim was pregnant; and some have no specific mentions of whether a fetus makes any difference in the law. You can see a great breakdown of the various laws and how they are applied to fetuses in this per-state table. Any federal crimes that are prosecuted by the US federal government are also subject to the Unborn Victims of Violence Act which recognizes a fetus as a victim if it is injured or killed while committing a list of federal crimes. | This is from an opinion piece (albeit by Law profs.) so you'll have to bear/excuse the tone and check the details... but seemingly there some similar laws introduced earlier this year, on different topics though: But the subversion of private enforcement laws to restrict individual rights goes far beyond abortion. Since the beginning of this year, Tennessee has authorized students and teachers to sue schools that allow transgender students to use the restrooms that match their gender identity; Florida has followed suit, with a law that allows students to sue schools that permit transgender girls to play on girls’ sports teams. My opinion is that the comparison falls short on (2), as the [plaintiff] students seem to have to be from the same school, so it's not as broad as SB.8., in terms of who can sue. (N.B. found a more in-depth news article on the Florida sports law. Some of the writeups on this aren't totally clear on that though, just saying "another student" can sue. I couldn't find the exact text of the law insofar.) The promoter of SB.8, actually gave some inspirational examples in an interview, and they are somewhat older: And this is ground that's been ploughed before - under current Texas law under Medicaid fraud, for example. Any person who discovers Medicaid fraud can bring a civil case to bring that forward. The Chick-fil-A law, Senate Bill 1978 from last session about your religious freedom, that also allowed any person to bring a civil action. So it's not a new concept in Texas law, and if elected officials won't follow the law, we'll empower the people of Texas to do it, and we think it makes sense. (Hat tip to a Politics.SE answer for this latter quote.) Again, I didn't check the details... I suspect there may be some divergence from the strict letter of the (1) requirement. I bet (Medicaid) fraud is criminal as well. It seems the Chick-fil-A law failed to do its (immediately) intended job because it was attempted to be used against a city municipality, but the suit was dismissed (on appeal) due to governmental immunity... The private enforcement of the Medicaid fraud issue was apparently passed because of the huge backlog that existed at one point in the state/agency enforcement in Texas: The Office of Inspector General was lambasted in a state review last year [2015--seemingly] for, among other things, a massive backlog of cases and a failure to recover significant tax dollars from providers it accused of fraud, sometimes incorrectly. N.B., these are referred to as qui tam cases, but they don't quite entirely substitute the plaintiff, at least not in the insurance cases that were won: So-called qui tam cases allow whistleblowers to file lawsuits alleging fraud on behalf of the government. If the claims turn out to be legitimate, state and federal laws award a finder’s fee of between 15 and 25 percent of the total settlement or judgment. Interestingly higher awards are possible if the government declines to intervene, but they are still not 100% going to the private initiator (under the False Claims Act)--from Wikipedia: If the government does not decide to participate in a qui tam action, the relator may proceed alone without the Department of Justice, though such cases historically have a much lower success rate. Relators who do prevail in such cases may potentially receive a higher relator's share, to a maximum of 30%. As Wikipedia also notes, some such laws that entirely left the prosecution to a private entity were found unconstitutional, at the federal level e.g. In 2011, the United States District Court for the Northern District of Ohio held that the False Marking Statute was unconstitutional. Judge Dan Aaron Polster determined that it violated the Take Care Clause of Article II of the Constitution, because it represented "a wholesale delegation of criminal law enforcement power to private entities with no control exercised by the Department of Justice". Of some note, the FCA requires that the complaint actually be served on the government and not the actual defendant. This basically ensures that the gov't is notified of all such actions. The Texas-specific legislation on qui tam fraud cases actually seems to mirror the federal one pretty closely: A whistleblower under the Texas Medicaid Fraud Prevention Act [TMFPA] may be entitled to an award between 15% -25% if the state intervenes in the case. If the state chooses not to participate in the litigation, then a whistleblower may be entitled to an award between 25% – 30% of the amount recovered. Nonetheless, a court may reduce the award if the court finds that the action is based primarily on information disclosed by someone other than the person bringing the action. [...] Note: Changes to the Texas laws were enacted by Acts 2015, 84th Leg., ch. 1 (S.B. 219). | Supporting a secessionist movement is protected by the First Amendment. Terrorism, in the name of a secessionist movement or otherwise, or support of terrorism is a federal offense. See 18 USC 2339A and 2339B. The latter applies to foreign terrorist organizations, the former applies to to anything in violation of a specific list of crimes (§§32, 37, 81, 175, 229, 351, 831, 842(m) or (n), 844(f) or (i), 930(c), 956, 1091, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 1992, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, 2332f, 2340A, 2442 of Title 18, and a few other things). Advocating secesion is not a crime, so supporting the advocacy of secession – in the US – is not a crime. §2339B determines what terrorist-organization status via 18 USC 1189, which is basically a finding by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General that "the organization threatens the security of United States nationals or the national security of the United States". Here is a current list. Advocating the forceful overthrow of the US government or that of any state or lower political subdivision is a crime under 18 USC 2385, likewise abetting, advising, or teaching the duty, necessity, desirability, or propriety of such overthrow. | The restrictions of the First Amendment have been made applicable to the states via the Fourteenth Amendment. For the right to assemble, this was recognized in De Jonge v. Oregon, 299 U.S. 353 (1937). But note that the right only protects peaceable assembly. When it is alleged that improper violence or other properly unlawful action has occurred, the state may make that criminal, and indeed laws against rioting have existed throughout the history of the US. Whether a law is criminalizing peaceful assembly or prohibiting unlawful violence is a question that depends on th wording of the law, and the way it is applied In the De Jonge opinion the Court wrote: The broad reach of the statute as thus applied is plain. While defendant was a member of the Communist Party, that membership was not necessary to conviction on such a charge. A like fate might have attended any speaker, although not a member, who "assisted in the conduct" of the meeting. However innocuous the object of the meeting, however lawful the subjects and tenor of the addresses, however reasonable and timely the discussion, all those assisting in the conduct of the meeting would be subject to imprisonment as felons if the meeting were held by the Communist Party. ... While the States are entitled to protect themselves from the abuse of the privileges of our institutions through an attempted substitution of force and violence in the place of peaceful political action in order to effect revolutionary changes in government, none of our decisions goes to the length of sustaining such a curtailment of the right of free speech and assembly as the Oregon statute demands in its present application. In Gitlow v. New York, 268 U. S. 652, under the New York statute defining criminal anarchy, the defendant was found to be responsible for a "manifesto" advocating the overthrow of the government by violence and unlawful means. Id. pp. 268 U. S. 656, 268 U. S. 662, 268 U. S. 663. In Whitney v. California, 274 U. S. 357, under the California statute relating to criminal syndicalism, the defendant was found guilty of willfully and deliberately assisting in the forming of an organization for the purpose of carrying on a revolutionary class struggle by criminal methods ... Freedom of speech and of the press are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution. Gitlow v. New York, supra, p. 268 U. S. 666; Stromberg v. California, supra, p. 283 U. S. 368; Near v. Minnesota, 283 U. S. 697, 283 U. S. 707; Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 243, 297 U. S. 244. The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental. As this Court said in United States v. Cruikshank, 92 U. S. 542, 92 U. S. 552: implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. The First Amendment of the Federal Constitution expressly guarantees that right against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions -- principles which the Fourteenth Amendment embodies in the general terms of its due process clause. Hebert v. Louisiana, 272 U. S. 312, 272 U. S. 316; Powell v. Alabama, 287 U. S. 45, 287 U. S. 67; Grosjean v. American Press Co., supra. | 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. |
What standard of evidence is used in suits related to Texas SB8? If someone sues another person over a claimed infringement of Texas' new professedly anti-abortion bill, what standard of evidence is used? The bill itself calls its enforcement provision a "civil liability". Does that mean the claim needs to be proven beyond reasonable doubt, as it would in a criminal trial, or will the court look at the preponderance of the evidence as in most other trials about a civil liability? | The standard of proof for civil cases in Texas is generally "preponderance of evidence". See in re Steven Lipsky for some discussion. The applicable evidentiary standard is generally determined by the nature of the case or particular claim. Criminal cases require proof beyond a reasonable doubt, a near certainty, whereas civil cases typically apply the preponderance-of-the-evidence standard, that is, a fact-finder’s determination that the plaintiff’s version of the events is more likely than not true. Some civil claims, including some defamation claims, elevate the evidentiary standard to require proof by clear- and-convincing evidence. See Sec. 171.208 of SB8. There is no specific statutory specification of the evidentiary standard, therefore the standard is "preponderance of evidence" (compare Lipsky: the issue is that the statute refers to "clear and specific evidence" which is not defines in the statute or elsewhere, hence that lawsuit). | Are there cases or situations where both parties are burdened with justifying their positions? england-and-wales Yes, but different standards are applied. One example is the "reverse burden of proof" placed on the defendant in section 1(1) of the Prevention of Crime Act 1953: Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence... The prosecution have to prove "beyond a reasonable doubt" that the article is actually an offensive weapon and that the named defendant possessed it on a particular date and that s/he was in a public place at the time. Whereas the standard of proof for the defendant to show they had lawful authority or a reasonable excuse for having is the, lower, "balance of probabilities". Similar legislation, for a similar offence, at section 139 of the Criminal Justice Act 1988 states that: (4)It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place. (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. Which, again, is on the balance of probabilities. See, for example, R v Lambert [2001] UKHL 37: If [a legal burden of proof on an accused] is created the matter in question must be taken as proved against the accused unless he satisfies the jury on a balance of probabilities to the contrary... | Yes, a judge may use the bible when making a decision. However, the usage nearly always takes the form of citation (in the form of scholarly texts) rather than precedent. That said, the lines get blurry sometimes. In Banks v. Maxwell, 171 S.E. 70 (N.C. 1933), the N.C. Supreme Court was tasked with resolving a dispute where the plaintiff had been gored by a bull. As a means of anchoring precedent and establishing a strict liability rule when a bull has previously gored, it stated "[t]he familiar rule of liability for injuries inflicted by cattle has remained approximately constant for more than 3,000 years. This rule of liability was expressed by Moses in the following words..." The court goes on to cite Exodus 21:28-30. | It is the job of the judge to instruct the jury about the law. If Texas had pattern instructions I'd look up what the instruction is for this matter, but you don't, so I don't know what the judge would say. But it is the judge's sole prerogative to instruct the jury in the law. If the question is a "commitment question", then it is an improper question and should be disallowed, see Stendefer v. State. The question "Would you presume someone guilty if he or she refused a breath test on their refusal alone?" is such a commitment question, and is disallowed. Similarly, "If the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that" (Atkins v. State, 951 S.W.2d 787). An improper commitment question could be of the type "could you refrain...": Let us assume that you are considering in the penalty phase of any capital murder case, okay? And some of the evidence that has come in shows that the victim's family was greatly impacted and terribly grieved and greatly harmed by the facts․Can you assure us that the knowledge of those facts would not prevent you or substantially impair you in considering a life sentence in such a case (Penry v. State, 903 S.W.2d 715). One way in which a commitment question can be legal is if it asks basically "can you uphold the law?", for example "can you consider probation in a murder case?", or "are you willing to consider mitigating circumstances". The wrong answer to those questions will lead to a for-cause dismissal. The third question is flagrantly improper, the first is rather improper, and the second probably is. If the question can be framed in terms of a candidate's willingness to follow the law, then it should be legal. | Yes in general Generally, almost all western jurisdictions (be they civil law or common law) have some way to get medical records into evidence, be that via subpoenaing, or by discovery requests or court orders. In most cases, the party that brings the suit is also the patient or their legal representative, and they give (or imply) consent to the use of the records. And in cases where the defendant's medical records are required, usually, the defense wants those in too to prove some condition. And then there are cases where the state or their representatives brings the charge. They usually can bring a warrant or court order to obtain the documents. Then there are Medical records that had been made specifically on the behest of the state. Here, the warrant is usually filed to obtain the samples or access to the body to be investigated, the record itself forms the basis for the investigators to proceed - and is not under client-doctor confidentially in the first place. It had been made specifically for the state and it is a state-owned medical record, be they made on request of the executive power (police) with a warrant signed by a judge or on behalf of the judicative after a court order to evaluate capacity (see below). However, medical records can generally only be obtained if the records are relevant to the case at hand and only to the degree necessary: You can't request the medical records about a person's fertility status in a case that discusses damages for his broken arm. As a result, the medical record available in court might be only an extract from the original, with irrelevant passages sealed or redacted. Unlike many people think, it's quite common to get some medical records into court in some way or another: As the basis of injury cases If you have a case of physical injury, the injuries themselves need to be proven in court. This is done generally by getting the medical records - thus they can be subpoenaed by a party, usually the injured party here. Then a medical expert can discuss them, be they a court-appointed one or paid by either of the parties. In this category also fall mandatory reports of certain types of wounds or situations. As such, the treating doctor has to provide a medical report with enumerated types of injuries, like bullet wounds or where child abuse might be the reason. Very necessarily in malpractice cases Malpractice is pretty much injury on steroids: the injuring party made the records and would never want to give them up to the one suing them - if they could. Alice shall remove Appendix. It goes haywire and the day after Charly needs to cut Bob open again. Now Bob sues Alice for malpractice. Bob needs medical records from both Alice, the doctor who botched it, and Charly, who was fixing Alice's error. Generally, both records are subpoena-able to the degree relevant and necessary, and indeed the opposing medical opinions on the operation and records form the very basis of the case for either side. Without the ability to subpoena the - in this case unmodified - records from the injuring doctor, proving - or defending - a case of malpractice would be impossible: the very truth of the allegation should be in the medical records. It's routine in cases around death What is the very last medical record a person can ever get? An autopsy record! That's a very sensitive medical record, but they routinely are used in homicide cases. Oftentimes, the investigators also subpoena the medical records of the victim from their doctors to corroborate the autopsy record, while the defense might subpoena them to try and disprove it. Even in civil cases, like the OJ-Simpson civil damages case, autopsy and medical records from an accompanying criminal case can and will be "pulled" (copied over) from the other trial's docket. Regularly in child protection cases Whenever child protection is on the line, be them protective orders or who a child will live with after the child protection service (whatever its name is) is in on a case, then medical records are often required to bolster one side. Those records could be medical records from quite many doctors, be they physicals or psychological evaluations... Sometimes the medical records required here are only created due to court-ordered medical or psychological evaluation by a doctor. Whenever incompetence defense is called When the lawyer claims temporary incompetence or insanity, courts generally order a psychological evaluation. These medical records are evidence, but usually don't need to be subpoenaed: they have a waiver form to be disclosed to the court almost built-in. Are they available to the public? Medical records are part of truth-finding, but they are also quite sensitive. As a result, most medical records can not be gotten from the court and enter the dockets under seal. Another option is, that they enter the docket partially or even mostly redacted, with passages blackened. | Standing requirements are different in state and federal courts, and from one state to the next. A random individual would not have standing to object to a stranger's abortion in federal court, and likely not in any state court, under normal circumstances, as they are not injured in any meaningful way by the abortion. I don't know what the normal rules of standing are in Texas, but it is likely perfectly acceptable for the Legislature to wave its wand to grant standing to whomever it wants regarding any violation of the law it sees for. That seems to be what is happening here. | The FCC addresses this. As a general matter, the standard of proof is the “preponderance of the evidence” standard. See, e.g., Application of Ameritech Michigan Pursuant to Section 271 of the Communications Act of 1934, as amended, to provide In-Region InterLATA Services in Michigan, Memorandum Opinion and Order, 12 FCC Rcd 20543, 20568-69, paras. 45-46, n.87 (1997); Bender v. Clark, 744 F.2d 1424, 1429 (10th Cir. 1984) (“The traditional standard required in a civil or administrative proceeding is proof by a preponderance of the evidence [and t]he traditional preponderance standard must be applied unless the type of case and the sanctions or hardship imposed require a higher standard.”) Reasonable doubt is the standard for criminal prosecutions, which are not included in 47 CFR Part 97. | Texas and California are actually what are called Presumed Speeding states, unlike most others which are Absolute Speeding states. (There is a little known third category called Basic, but this is uncommon). In a presumed speeding state, a speed-limit violation offers someone in your shoes far more flexibility in building your defense than the more common absolute state. In states that use this presumed system, such as California and Texas, it is not illegal to drive over the posted limit as long as you are driving safely and this can be established. For example, if you are driving 50 mph in a 40-mph zone, you are "presumed" to be speeding, yes. However, despite this prima facie evidence (meaning "on its face") of speed in excess of the posted limit, if you can show you were driving safely you may be able to mount a pretty decent defense. Just because you got a ticket is not prima facie evidence beyond a reasonable doubt that you were speeding. You are presumed innocent. If they prove you were speeding this is all they need to make their case, unless you rebut it. But there is a lot of room to rebut this presumption – and that is if they prove it. They must (as with all criminal cases) prove you did what you are accused of beyond a reasonable doubt – the highest standard of proof in the U.S. So, if everyone was going 80 MPH in a 70MPH zone, you would argue that the road was (I'm assuming) dry, unmarred, you were traveling in heavy enough traffic that to slow your speed to the posted limit would actually be less safe than traveling with the flow of traffic. You can talk about the state of your vehicle (repair, handling, etc.), how you stayed in one lane, and you can describe your skill at driving – especially if you have no other tickets and you have been driving for a long time. If you were weaving in and out of traffic, riding someone's bumper, if it was pouring rain, the road was bumpy or under construction, or if you admitted speeding (if you did this you can still rebut with a showing of safe driving, but ignore all info regarding challenging radar or other means of determining speed), or if any other evidence exists that the officer would testify to that shows you were not driving safely, this will not be successful. A successful example of a speeding defense in Texas: on a clear, dry morning with no other cars on a wide, straight road, a man is pulled over for being clocked going 50 mph in a 40 MPH zone. He had a perfect record and had been driving 22 years. He was driving a 2-year-old car. He convinced a judge that this was driving safely given those conditions and was acquitted. That's because facts presented were sufficient to "rebut the presumption" that by going over the posted limit he was driving at an unsafe speed. NOTE: Never bring up your driving record unless it is spotless. Unless you are a habitual offender it cannot be used against you or be brought into evidence at all, unless you open the door. You can also mount a defense based on the radar detection device, if one was used. You can seek records as to when the calibration fork was last checked, when the last time it was professionally calibrated (rather than self calibrated). You can ask, in a leading way (only if you know) how close the car behind and in front of you were (you don't want to be too close to the car in front of you, however if the cars were tightly grouped it is more likely the radar detector could have read another vehicle): e.g., "Isn't it true that the car behind me was only 1.5 car lengths behind me?" Only do this if you know, but if you can get the officer to admit that the car behind you was close, that can be used to rebut the radar detection and goes to the argument that driving slower would have been dangerous and you were driving safely with the flow of traffic. You should be prepared to put on an entire trial if you fight the ticket. In Texas, I believe speeding is considered a Class C criminal offense (rather than a civil offense as in most absolute states); hence, they have to build the prima facie case against you and prove it beyond reasonable doubt. If you can afford one, get a good traffic violation attorney. Always choose a jury in this type of case. Everyone speeds a little and you are far more likely to be acquitted by a jury than a judge. You should also ask to have the case assigned to the county seat; request this in writing ASAP. If you are trying the case, be prepared to go after the officer. Note any distinguishing marks on your car (if any), recall what you wore, what time of day, the lighting, all that. Even go back to the scene at the same day and time and take video showing the flow of traffic, (hopefully) the straightness of the road, etc. Cross-examine him on all facts with confidence and in a leading manner. Always ask for the calibration reports and you will get all evidence against you in discovery. This thing about 10mph being the minimum they can give a ticket for: ignore that, it's rubbish! It's meant to get you to admit to him that "you were only going 8 or 9 over." Also, that whole percentile argument is not relevant and will not work at all. You must show that you were driving safely given all the facts and circumstances to rebut the presumption that you were driving unsafely by speeding. It is worth fighting as you will also incur surcharges, increased insurance rates, and points on your license that are cumulative and stay for 3 years – a certain amount of which gets you suspended if you get (or have) more violations. |
Supreme Court of US, Roe v. Wade Really confused by this Supreme Court decision: https://www.npr.org/2021/09/02/1033048958/supreme-court-upholds-new-texas-abortion-law-for-now Quote from the article. "It said the abortion providers didn't properly address "complex and novel antecedent procedural questions" in their case." So my question is... doesn't this open the door for states to pass any law whatsoever? For example, what if a state wanted to bring back slavery. Would the Supreme Court again ignore the issue because of "procedural questions"? I mean... is this something specific to abortion law, or to any law whatsoever? | No The case was dismissed on procedural reasons. Like this. Well, perhaps not so pedantic but there are things that have to happen before the Supreme Court can get involved and they haven’t. For example, the Supreme Court only has original jurisdiction in a limited classes of case; if this isn’t one of those (and it isn’t) it has to be heard in a court that does and then get appealed up the chain. When they have, the court will make a decision on the merits. | Probably not, because there is no legal case or controversy, and the law is clear enough. In US v. Wong Kim Ark, 169 U.S. 649, SCOTUS held that A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution The opinion has a long analysis of the "subject to jurisdiction" clause, reasoning that this excludes only children of diplomats, who are not subject to US law. Harris's parents were not immune diplomats so she was never immune to US jurisdiction. They are never forced to take any case, and are especially not likely to take a case so lacking in legal merits. | The Constitution does not state your opinion of SCOTUS's job, instead it just says that there shall be one supreme court with judicial power, and it says what kind of cases are within the jurisdiction of that court. Thus The Constitution does not mandate whether rulings will adhere to the doctrine of stare decisis, will be based only on a narrowly literal interpretation of The Constitution, or will be based on a general sense of justice. The Constitution also does not say anything about the rules of that Supreme Court, therefore the court is free to set its own rules, and to allow or to not allow amicus briefs. Many points raised in amicus briefs fall on deaf ears, sometimes because they are based on non-shared legal assumptions. You can read a very brief summary of the over 140 amicus briefs in this case here. If you read various SCOTUS opinions over the past 225+ years, you will see that the court does make reference to fact, not just statements of the law and constitution. This brings it well within the scope of "potentially relevant" to determine some fact. The lawyers get to argue how facts relate to legal conclusions, but the basic fodder for any legal decision is some set of facts. The specific briefs you mentioned are: Pro-Life Obstetricians and College of Obstetricians. The latter's argument is self-summarized as Amici’s position is that laws regulating abortion should be evidence-based, supported by a valid medical or scientific justification, and designed to improve—not harm—women’s health Pro-Life Obsetricians' position is self-summarized as support for a law that rationally furthers Mississippi’s interest in protecting women’s health from risks posed by later- term abortions, which are now well established in the literature These statements refer to interpretive doctrines previously established by SCOTUS, but not literally expressed in The Constitution. In US v. Carolene Products Company, 304 U.S. 144 introduced concepts of constitutionality (not literally stated in The Constitution) whereby cases could be reviewed either with "strict scrutiny" for protection of Constitutional rights or else discernment of a "rational interest" in government taking a certain action. Either of these kinds of judicial review require a comparison of law to "the facts". Hence "the facts" can be legally relevant. | I found the case in an episode of Amicus (podcast). Mark Joseph Stern was on the show and Dahlia Lithwick referred to an article he had written about the subject. Here is a quote from the article: In the 1990s, Thomas disapproved of race-conscious redistricting designed to empower black Democrats; today, he objects to race-conscious redistricting designed to empower white Republicans. In the 1990s, all the conservative justices voted to not allow taking race in to account to create solidly black districts. All the liberals said that it would be ok. Now (in Cooper v. Harris) all the liberals are saying it is not ok to take race in to account when destroying Democratic districts through gerrymandering and the all the conservatives said it would be ok, save Clarence Thomas, who remained consistent with the previous ruling, giving the liberal justices a victory. | This is an opinion question, even if it doesn't seem like one. The life work of many professors is trying to explain the current system of review. One theory that is fairly well accepted relates to the concept of deference to other political actors. To understand this theory, we need to begin by recognizes that the Court is not unilaterally adjudicating political rights; it is one of many actors that all have some stake in making Constitutional decisions. The Court recognizes this, even if it also demands that it get last word on whether or not it gets last word. In footnote four of Caroline Products the Court laid the foundation for the modern equal protection doctrine. That text embraced a constitutional scheme whereby rights are given judicial protection primarily if they are unlikely to be given political protection by the other branches of government. Under this scheme, we care about groups that are politically weak or political distant from those with power. This equal protection jurisprudence is an example of deferential thinking; we trust the political branches generally unless there is reason to doubt the effectiveness of the political process. The deferential thinking approach to constitutional law holds that we do the same for many other area of Constitutional law. A given enumerated right is only Scrutinized strictly by the courts if the courts don't trust the other political actors (States, Legislature and Executive), to adequately protect that right. As I said, that is a theory. Not everyone agrees that this is what is going on or that this is what should be going on. Moreover, many enumerated rights are protected under a very strict level of review. Strict review and "strict scrutiny" are similar ideas, with the latter being a term of art and the former being a reasonable description of how much attention courts will pay to protecting a given right. | Constitution of the USA, Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. and the Commerce Clause (Article I, Section 8, clause 3): [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; SCOTUS has found the former to mean that states that do not allow same-sex marriages in their laws must recognize same-sex marriages registered by other states - Obergefell v. Hodges. Maybe one could argue that driver licenses are not equivalent among states, but I would expect judges (SCOTUS) to require a very well reasoned explanation. For example, maybe Alaska could refuse to recognize licenses from Florida because Florida drivers do not know how to cope with snowed roads. But even in that case Alaska probably would need to produce data showing that these measures aim to serve the public interest (avoid accidents) and that there are no other ways of getting the same result. OTOH the Commerce Clause has been successfully used to avoid states mandating racial segregation of travellers, so it is quite reasonable to see it being used to prevent a state from trying to limit the mobility of citizens from other states (again, in the supposition that the state restricting it cannot show a compelling reason to do so). AFAIK, only the Federal Government could invoke the Commerce Clause; I would expect a lot more people (in your example, the PA government or maybe even any PA driver) would have standing. | Yes. In some common law jurisdictions, such as Canada, the United Kingdom and even some U.S. states, the government may under some circumstances refer a legal question to the appropriate Supreme Court (Privy Council in the U.K.) for an advisory opinion. These opinions are non-binding, but have large influence because they are often made by the same judges that would otherwise end up dealing with the question should it occur in a case. One common law country in particular stands out in this field: Ireland. Under Article 26 of the Irish Constitution the President may, with some exceptions, refer a bill to the Supreme Court to test its constitutionality. The referral is optional, but once made, the Supreme Court's decision is binding. The relevant portion: 3 1° In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill. [...] 3° In every other case the President shall sign the Bill as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced. This power was last used successfully in 2004. | No 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. Any courts the Congress creates are, by definition, inferior. Of course, Congress can overrule a SCOTUS decision by passing a law to that effect,unless the decision defines a right under the Constitution. So they couldn’t overturn Roe but they could overturn Dobbs. It’s largely the gutlessness of Congress in grappling with controversial issues that has put SCOTUS in the position of lawmaker. |
Would a S.B.8-style law that were to enforce a vaccine mandate be in the same constitutional bucket (as S.B.8)? The Atlantic suggests this analogy-of-sorts regarding Texas' recent S.B.8 law, limiting abortions by allowing private citizens to sue providers to enforce the law's mandate: Imagine if Massachusetts had mandated vaccines for those with bona fide religious objections and allowed private citizens to use litigation to enforce that decree. Does this putative law giving citizens the ability to enforce a vaccine mandate via lawsuits have a reasonable prospect of being just as difficult to challenge as SB.8... or even harder perhaps, since a vaccine "refusenik" potentially poses a community health risk more easy to quantify than someone having an abortion? Or would it, in contrast, be much easier to challenge, because it would impose a treatment on someone who has religious objections, as opposed to forbid a treatment/intervention? | The answer is they are quite different. The SCOTUS found almost 100 years ago that the Several States have the power to require vaccinations. This is one of the "reserved powers" under the constitution. The Texas Heartbeat law creates a regulation on doctors (similar) and a civil cause of action (very different). However, the biggest difference is that the older case permits the state to require medical treatment while the Texas law requires a medical justification for treatment. It seems uncontroversial to require a doctor's services to perform an abortion. However, now the Texas legislation is in effect codifying the medical ethics requirement to "do no harm." Medical ethics do allow exceptions based on a specific situation, and so does the law. A mandatory vaccination law is almost the opposite. It guides doctors that the general risks of vaccination are not strong enough to be considered harmful when weighed against the benefits of the vaccination. But, of course, medical ethics would also allow exceptions based on specific situations, and so should the law. Fizz already cited the case: Zucht v. King https://supreme.justia.com/cases/federal/us/260/174. | It might be more helpful to reverse the analogy. Unprotected speech is a box, and everything that doesn't fit inside the box is free speech. The box is small and strangely shaped, and therefore, very few things will fit inside. The government has spent centuries trying to cram things into it, so we have a pretty good idea of what fits and what doesn't: Content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression long familiar to the bar. Among these categories are: advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U.S. 444 (1969); obscenity, see, e.g., Miller v. California, 413 U.S. 15 (1973); defamation, see, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949); so-called “fighting words,” see Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); child pornography, see New York v. Ferber, 458 U.S. 747 (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976); true threats, see Watts v. United States, 394 U.S. 705 (1969); and speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), although a restriction under the last category is most difficult to sustain, see New York Times Co. v. United States, 403 U.S. 713 (1971). These categories have a historical foundation in the Court's free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules. United States v. Alvarez, 567 U.S. 709, 717–18 (2012). Although I don't know that I've ever seen the Supreme Court acknowledge it explicitly, one of the common threads you'll see in most of these categories is that First Amendment protection begins to weaken when words are spoken with some kind of ill intent and are likely to cause some kind of societal harm. So the Gillars case falls into the "speech integral to criminal conduct" category. She appealed her conviction on First Amendment grounds, but the D.C. Circuit affirmed. Although the First Amendment would protect someone who hated the American government and went on the radio to denounce the American government, it does not protect those who commit the act of treason, even if speech is their weapon: There is no question in our mind that words may be an integral part of the commission of the crime if the elements which constitute treason are present; that is, if there is adherence to and the giving of aid and comfort to the enemy by an overt act proved by two witnesses, with intention to betray, though the overt act be committed through speech. ... While the crime is not committed by mere expressions of opinion or criticism, words spoken as part of a program of propaganda warefare, in the course of employment by the enemy in its conduct of war against the United States, to which the accused owes allegiance, may be an integral part of the crime. There is evidence in this case of a course of conduct on behalf of the enemy in the prosecution of its war against the United States. The use of speech to this end, as the evidence permitted the jury to believe, made acts of words. The First Amendment does not protect one from accountability for words as such. Gillars v. United States, 182 F.2d 962, 971 (D.C. Cir. 1950). This is probably one of the least-developed exceptions to First Amendment protection, and therefore one of the hardest to understand. For a deep dive, I'd recommend Eugene Volokh, The "Speech Integral to Criminal Conduct" Exception, 101 Cornell L. Rev. 981 (2016). | Not much. Consider the following: The father can not force the mother to abort the pregnancy. Ex post facto agreements of non-payment are, in all likelihood, unenforceable. The father will be obligated to pay child support under the laws of the state with jurisdiction over the paternity. The abortion angle won’t work. Setting aside commentary regarding the politics or ethics of abortion. I think we can agree it is a highly charged and emotional topic for some people. I point to the fact it always seems to be an issue during Supreme Court nominations and presidential elections. Given the explosive nature of the issue of whether abortions should be legal or not (in the case where the mother does not want to carry full term) could you imagine how much more dynamite it would add to the debate if the question were whether or not to allow the father to force the mother to terminate the pregnancy against the mother's wishes! One can only imagine how much more bombastic the abortion debate might then become. You can’t escape child support (most likely). To give you a sense of how difficult it is to escape the obligations of child support. Consider the following... A Kansas man was ordered to pay child support when he thought he was being a sperm donor only and signed numerous agreements with the lesbian couple he thought he was helping. In that case, the court justified its ruling on the grounds that a doctor was not involved in the insemination process. But nothing prevents future courts from making the same ruling in cases where a doctor is involved in the insemination process. Especially if that state either withdraws from the The Uniform Parentage Act, amends it, repeals it, or never adopts it in the first place. Sperm Donors and Child Support: Even in cases in which the donor is known, but holds himself out as unknown, some courts have held the donor legally obligated to pay child support. Read more here. Ex post facto agreements are problematic. Now that you've edited the question, the above link is even more useful for providing a possible avenue to try (albeit unlikely to work): a non-payment agreement. The discussion in that link describes that even if you could somehow convince the mother to go along with it, it is unlikely (though not impossible) to be enforced by the courts. It depends on the facts (e.g., intercourse vs. in vitro), circumstances (e.g., relationship vs. no relationship between the parties), timing (e.g., before vs. after the agreement), etc. of the impregnation itself. Notwithstanding all the above, if you still have questions, you might consider floating an idea of an approach you think you might try (in a separate question) and get reactions to that specific proposal. | So, as I understand the decision, it's a little more subtle than that. By default, states have sovereign immunity and can't be sued without their consent. Congress can remove ("abrogate") this immunity by law in some circumstances. They tried to do so for copyright infringement cases with the Copyright Remedy Clarification Act of 1990. However, in the present case of Allen v. Cooper, the Supreme Court held that this part of the CRCA is unconstitutional. The idea is that under the Fourteenth Amendment, Congress can abrogate state immunity when it's necessary to ensure people's right to due process, but only in a "congruent and proportional" way. Now if a state unintentionally or negligently infringes someone's copyright, that does not violate the person's right to due process, but an intentional infringement might. At the time the CRCA was passed, when Congress went looking for instances where states infringed on copyrights, they found several cases of unintentional or negligent infringement, and just a couple where they may have infringed intentionally. SCOTUS argued that to respond to this by completely abrogating state immunity in all copyright cases was disproportionate, and therefore unconstitutional. But the Court suggests in the opinion that Congress could pass a different law to abrogate immunity in copyright cases, if it were narrower. For instance, a law that only stripped immunity in cases of intentional infringement would likely be constitutional, especially if there were evidence that intentional infringement was happening enough to be a significant problem. So I think the answer is that as of right now, a state could deliberately infringe someone's copyright (e.g. by pirating software) and be immune from suit. However, Congress has the power to "fix" this, and most likely will, especially if there seems to be egregious abuse. (By the way, the decision contains an impressive quantity of pirate jokes. I guess since it's not only about copyright infringement (aka "piracy"), but actually alleges infringement of a video about a sunken pirate ship, the justices just couldn't resist.) Your "eminent domain" idea is separate from this. Seizing copies of the software wouldn't give the state the right to use them, as the software itself would still be copyrighted. The state would have to seize the copyright, and I don't know whether that is possible - it's not necessarily property in that sense. But if they did so, then they wouldn't be infringing the copyright at all (since the state itself would now own the copyright) and this case would be irrelevant. On the other hand, when a state uses eminent domain to seize property, they must as you say pay fair market value for it, and that means the market value before they seized it. So the value of the copyright in such a case wouldn't be "nothing" - it would be more like the amount a competitor would have had to pay the software maker to buy all the rights to that product. Likewise, if the state seizes your lovely house and bulldozes it to build a toxic waste dump, they owe you what someone would have paid for the house, not the value of a dump that nobody wants. | The question didn't mention marital status, but since states formally recognize that relationship it's helpful to start there. tl;dr: The Supreme Court decided state laws that required a woman to notify her spouse were unconstitutional. Thus it's unlikely there'd be grounds for suit. Background The central mechanism of Roe v. Wade (U.S. 1973) was a balancing act between what it decided was a 14th amendment right to privacy and the state's interest in both the health of the woman and the potentiality of life. Because Roe explicitly recognized a state interest, Pennsylvania passed a statute in 1982 that required informed consent and a 24-hour waiting period. It also mandated parental consent for minors (with some exceptions) and spousal notification. This reached the Supreme Court in Planned Parenthood of SE Penn. v. Casey (U.S. 1992). There, the court upheld most of the Pennsylvania law (reinforcing its statement in Roe that a state does have an interest) but struck down the spousal notification portion. To do that, it determined the appropriate test was whether a state was placing an undue burden---a significant obstacle---in the path of a woman seeking an abortion prior to fetal viability. It reasoned that: state regulation impacts a female's liberty more than male's during pregnancy (by way of biology) if a man and woman disagree, only one can prevail not all women are equally impacted by a notification mandate (for reasons of domestic violence, etc.) Combining this with the notion that women do not lose any constitutionally protected liberty upon marriage, it decided spousal notification would be a significant obstacle and thus an undue burden. In other words, unmarried women don't have spouses to notify, so placing a notification requirement on married women creates an additional burden that the court found undue. To get back to the question, the father certainly has a right to file a suit against the female (...and it happens from time to time). However, it likely wouldn't go far. Since unmarried women were the baseline in Casey, it's unlikely there'd be grounds for either married or unmarried fathers to sue their female partners. This comes up frequently under the moniker of "Father's Rights," which has gained less traction in the U.S. than in other countries. That said, Wisconsin recently introduced a bill that would allow fathers to proceed against abortion providers. | It was decided back in 1905 in the case of Jacobson v Massachusetts, 197 U.S. 11, that mandatory vaccination laws are constitutional in the US (the specific example being mandatory smallpox vaccination - through vaccination, this illness was eradicated globally). The court observed that in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. An American citizen, arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared. The power of the government to protect is not totally unfettered: its actions must be necessary. Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large was arbitrary and not justified by the necessities of the case. We say necessities of the case because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. An attack on a mandatory vaccination law would probably focus on the question of necessity. | This is a pretty good guide to the student's right to express their views on religion (for or against). For example you may pray in school, but you cannot compel others to listen to your prayers. You may discuss Jesus Christ and you may advocate a religious perspective, if it is on topic (e.g. in a class discussion abortion, but not in an algebra class). There are familiar ways of saying "Jesus Christ" which would be disruptive, but a general prohibition against uttering a name (on the grounds that the name is of a religious figure) is not a proper application of the separation of church and state -- as the ACLU statement says, SCOTUS did not make public schools religion-free zones. Whether or not the teacher was given the authority to forbid mentioning religious figures by some supervisor, that would not have been proper authorization. Official advocacy of religion in general, or a particular religion, is contrary to the First Amendment, as is official prohibition of religion in general, or a particular religion. | Can a state make a law that deputizes individuals to sue individuals in other states? This question (apart from the question below that implicates federalism concerns about a sister state court process in the secondary question below) would be resolved by the constitutional limitations on personal jurisdiction and choice of law. A state can have a law that authorizes a lawsuit for non-judicial system conduct against a non-resident of the state if it meets the requirements of "long arm jurisdiction." The most succinct description of this requirement is that the person being sued "personally availed themselves" of the laws of the state whose law authorizes the lawsuit, in a manner that would reasonably be understood to subject that person to the state's legal authority. This could involve a lawsuit against someone outside the state arising from an incident that took place in the state. It could also involve a lawsuit against someone who took tortious action directed at a state or people in a state that caused harm, or a lawsuit arising from a business transaction that could reasonably be considered doing business in the state imposing that law. Constitutional law requirements on "choice of law" require that the state or foreign jurisdiction whose law is applied to a question in a dispute must have some meaningful connection to the disputed issue (subject to the backdrop rule that the law of a jurisdiction other than the forum where a case is litigated is presumed to be identical to that of the law of the state where the case is being litigated if no party provides any evidence or legal authorities to the contrary). Case law on state level qui tam litigation (which involve statutes that empower private individuals to sue someone who has wronged the government on its behalf for a share of the amount recovered for the government), the case law regarding private criminal prosecutions that are available in a handful of U.S. states, and some California consumer protection laws (which authorize suits without personal showing of actual damages in some cases when there are fraudulent advertisements) might also be relevant. So would the authority granted to bail bondsmen that is similar to law enforcement authority but limited to people authorized a person posting a bail bond for a criminal defendant who is subject to that authority. Concretely, if the constitutionality of the Texas law was upheld<1>, Texas probably can authorize a lawsuit against a California resident who would be involved in an abortion that took place in Texas that was illegal under Texas law. And, a judgment from a Texas court in a case like that would probably be entitled to full faith and credit in California. But, Texas probably couldn't constitutionally authorize a lawsuit against a California resident in connection with an abortion that took place in California. There would be, of course, many edge cases with no close past precedents, where the application of constitutional jurisdiction and choice of law limitations would be far less clear. <1> The majority opinion by five conservative justices other than the Chief Justice deciding not to stay enforcement of the law specifically limits itself to whether the proper parties were joined to the request to enjoin the statute and states "this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts." A decision that has not been resolved on the merits. The Courts have merely declined to stay enforcement of the law pending the current litigation over the law's validity. Upholding the law on the merits would require courts to overturn existing precedents related to abortion restrictions and other legal issues. Is there any extra legal barrier that would prevent states with pro-choice legislatures from passing laws designed to counter the anti-abortion deputies? For example, California could pass a law that deputizes private California individuals to sue people who sue abortion providers, and could reimburse their court costs up to $10,000. This seems to be a separate question from the question in the title. A law of this character would probably not be upheld. Basically, it would make a state authorized legal process in one state's courts, actionable as illegal in another state. Generally speaking, interference in another state's legal process would either violate the "dormant commerce clause", or the "full faith and credit clause", or constitutional limits on jurisdiction and choice of law, or constitutional standing limitations (even though they don't apply in the same way in state courts as in federal courts, or the "due process clause" of the 5th or 14th Amendments, or the "privileges and immunities clause." The exact legal theory isn't clear because there is really not history of litigation over this kind of legislation and you'd need to resort to vaguely analogous cases. The effort of Texas to litigate Pennsylvania election law administration following the 2020 election was recently dismissed by the U.S. Supreme Court for lack of standing and that is suggestive of how this case might be resolved, even though it isn't strictly analogous. It is also informed by the long standing common law rule, that could conceivably have constitutional dimensions, that litigants participating in a court process in good faith are immune from collateral litigation in another lawsuit over their conduct in the original lawsuit. There isn't a lot of precedent one way or the other with laws having this kind of purpose, and none on a law exactly in this form. Indeed, a dissenting opinion from the U.S. Supreme Court yesterday by the Chief Justice and two of the liberal justices (with which the third liberal justice states he agrees without formally joining that opinion) stated that: The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The last time there was significant litigation of laws with a similar purpose that were adjudicated was in the pre-U.S. Civil War period in abolition of slavery oriented legislation. But, the post-Civil War amendments to the U.S. Constitution and subsequent development of constitutional case law would render most precedents from that time period infirm. |
Does Texas S.B. 8 actually "ban abortion"? Note: I voted to close my own question. I agree, the way I asked it was too opinion-based. I've not read the Texas statute exhaustively, but as far I understand, it is not a criminal statute. Furthermore, section Sec. 171.205 seems to allow abortions in cases of a medical emergency, as determined by the doctor performing the abortion. I have read the ACLU's headline description: SUPREME COURT TO REVIEW TEXAS ABORTION BAN. I've read the body, saying for example: "S.B. 8 bans abortion after six weeks into a pregnancy..." That is scary stuff. I absolutely believe that abortion should not be banned. But viewing the news with a skeptical eye, my immediate reaction was that "ban" seems to imply criminality. But comments have suggested it's broader, so let's examine if S.B. 8 "officially or legally prohibits abortions". It certainly prohibits them without the doctor checking for a fetal heartbeat, which scares me less, but it's not conclusive, it is a complex law setting standards applicable to a doctor, not on a mother. In fact, the rest of the conditions seem comforting similar to medical ethics as many doctors interpret them. Other doctors interpret the Hippocratic oath differently. I'm no expert on medical ethics, but if there is a ban here, it seems to be imposed by the Hippocratic oath. In in Wikipedia, I find this: I will use those dietary regimens which will benefit my patients according to my greatest ability and judgment, and I will do no harm or injustice to them.[7] Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course. Similarly I will not give to a woman a pessary to cause abortion. But I will keep pure and holy both my life and my art. I will not use the knife, not even, verily, on sufferers from stone, but I will give place to such as are craftsmen therein. It's interesting how closely tied this is to other controversies, like medically assisted suicide. States (including mine) have legislated to relax the requirements on doctors regarding terminal patients, but that seems like a state-by-state choice. Related second question about the legal claims: Are the other claims, e.g. "Texas politicians will have effectively overturned Roe v. Wade." accurate? Note: I"m not at all opposed to the ACLU, but I do try to read carefully. | The law actually does ban abortions, when a fetal heartbeat is detected. Here is the law. Sec. 171.204 says (a) Except as provided by Section 171.205, a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child as required by Section 171.203 or failed to perform a test to detect a fetal heartbeat. (b) A physician does not violate this section if the physician performed a test for a fetal heartbeat as required by Section 171.203 and did not detect a fetal heartbeat. You could say that it is an "ineffective ban", because it does not impose criminal penalties for violating the prohibition, but it is a prohibition nevertheless. As pointed out by Ohwilleke, "Laws without penalties are actually rather common". There were a number of "bans" announced during covid lockdown, which (being promulgated by gubernatorial decree) had no penalty for violation, so I don't find the use of "ban" to be misleading. | 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. | Article 8 is pretty clear. The fact that it is recommended to extend the draft to women indicates that there is a conflict needing resolution. A relevant case before the European Court of Human Rights ruled on this and found the law to violate articles 14 and 8 of the ECHR. They identify an exoneration from the tax under the Military-Service Exemption Tax Act sect. 4. Reading the judgment could be helpful (maybe you know the case). What I get from it is that there are a bunch of situation-specific details that could be applied (e.g. you have to first complain formally in-country before going to ECHR), and issues of disability level and the distinction between disability and illness. This gives a model for anyone to attempt to resist the tax, but only a change in the law will get rid of it. | 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. | Here is a link to the relevant Texas Statute: Title 7, Subtitle C, Chapter 545, Subchapter A: Sec. 545.351. MAXIMUM SPEED REQUIREMENT. (a) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing. Combine that with: Sec. 545.352. PRIMA FACIE SPEED LIMITS. (a) A speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful. This section mentions, as an example, among other points: (2) except as provided by Subdivision (4), 70 miles per hour on a highway numbered by this state or the United States outside an urban district, including a farm-to-market or ranch-to-market road; What this means is that if you are driving over 70 miles per hour on a type of highway mentioned in (2) above then you are, by legal definition, driving at a speed that is greater than is reasonable and prudent. When you are cited for speeding you are not charged for driving at a specific speed in an area posted at another speed. You are cited for violating a broader law, such as in Texas, driving in an unreasonable or imprudent manner. The mention of the speed is merely a recordation of the facts that support the state's case against you. Let's take the proposal to demonstrate the speed is too low to its logical conclusion. You plead not guilty and it comes out during testimony that you weren't driving 80 but really 85. The judge will still find you guilty of the underlying charge as the facts in the case still support that finding. I have personally witnessed mistakes in tickets result in dismissal. Those mistakes have, however, been related to other facts about the case though: time of day, date of offense, etc. I've also witnessed people attempt to claim a lower but still illegal speed. For example, "I wasn't going 85 I was only going 80." These resulted in findings of guilt. | Does the "US national" above matter? The nationality of the person is not relevant. Like most criminal statutes, the law applies to acts within the jurisdiction of Alabama, which basically means within the state's territory. The only foreign people who would be immune from that jurisdiction would be diplomats and the like, but such people would not be licensed to practice medicine in Alabama. This brings us to the point in the next paragraph. is it still a felony to have an abortion outside of Alabama? No. It is not even a felony to have an abortion inside Alabama. The law does not criminalize having abortions. It criminalizes performing abortions. See section 5 of the law: Section 5. No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable. Furthermore, no physician confirming the serious health risk to the child's mother shall be criminally or civilly liable for those actions. To extend your question, let us consider a doctor who is licensed to practice medicine both in Alabama and in some other jurisdiction where abortion is legal. Such a doctor could not be convicted under Alabama law for performing abortions in the other jurisdiction. | First off, a court in the United States does not care if the federal law was good policy or bad policy. Courts do not make those decisions. A court cannot strike down a law for being a stupid idea; it can only strike down the law for violating a more fundamental law (i.e. state and federal constitutions, including striking down state laws for going against federal laws). Courts are not in the business of evaluating whether marijuana is dangerous, because that determination was made by Congress. As long as the law itself does not violate the Constitution (and being stupid doesn't make it violate the Constitution), a court cannot strike it down. If a law is validly passed under the Constitution, a court likewise cannot decline to strike down a state law that contradicts it. Valid federal laws preempt state law. This is not seriously disputed by courts. The question before the court is whether or not the CSA forbids Colorado from involving itself in the marijuana business. This is a question about federal law. While the Supreme Court will make the ultimate decision themselves, the US government generally submits an amicus brief on just about every Supreme Court case involving federal laws, outlining its position. The purpose of the brief is to get more arguments, in order to provide more for the court to think about. It is not even a tiny bit unusual for non-parties to submit briefs, and it would be incredibly unusual for the US to not submit one here. The Supreme Court cannot do something like jury nullification*. That's not their role in the world. No Supreme Court decision can say "well, this is the law, and it's clear, but we don't like it and are doing it another way." Their duty is to apply the actual law, not what they want the law to be. What they can do, though, is stretch words and make arguments to fit what they think it should be. Often, in cases they don't want to handle, they end up finding some technical point to avoid setting broad precedent. But they don't get to simply not apply the law because they disagree. * Technically, if they do that, they can't be overturned; however, it's just something that is not done. | I wouldn't say that it "trumps state law". Indeed, the State of Georgia, either expressly by statute or through the common law, establishes that teachers and school administrators have the authority to create rules and regulations governing the conduct of students that are not themselves unconstitutional as applied to students, although, in general these consequences can't resort to criminal punishments. Instead, typical punishments include detention, suspension (in school or out of school), expulsion, and adjustment of grades for an assignment or a course. Marks in one's disciplinary record and public shaming, forfeiture of eligibility to participate in school sponsored extra-curricular activities or honors (including marching at graduation), refusing to release transcripts, and historically (but much less so in recent years) corporal punishments such as spanking, have been options for schools to enforce their punishments. A prohibition on recording in a syllabus certainly wouldn't result in criminal punishments, and probably wouldn't even give rise to civil liability. Depending upon the purpose for which the recording was being used, it is even conceivable that the school's right to punish someone for violating a school rule could be estopped by First Amendment and whistle blower protection law considerations (e.g. if it was used to document harassment and discriminatory conduct for use in sharing with the school board or law enforcement or publishing on radio or TV or an Internet news source). But, the mere fact that conduct is legal outside a school setting does not mean that a school cannot prohibit and punish that conduct in its own rules. The closer case, upon which there is more division of legal authority, is under what circumstances a school can legitimately punish conduct away from school, for example, uploading rap lyrics about a teacher to YouTube from home without using any school resources to do so. |
Why can't the Supreme court overturn Texas abortion law if abortion during the first semester is a constitutional right? Texas designed its law in a unique way to allow abortions to be banned without a court intervening, by authorizing any private citizen to sue doctors and clinics who perform abortions on women more than approximately six weeks after a woman’s last period. The Texas law also allows any private citizen to sue people who assist women in obtaining an abortion after that time period. https://www.nbcnews.com/think/opinion/supreme-court-vote-texas-abortion-law-allows-ban-without-mentioning-ncna1278401 A woman has a federal constitutional right to obtain an abortion during the first stage and the Texas law effectively prevents women from obtaining abortion as clinics will be unable to run the financial and other risks that come from waiting for a private person to sue them under the Texas law depriving them from their constitutional rights. Why can't the Supreme Court intervene? | A good starting point would be the SCOTUS opinion, or everything on SCOTUSblog, especially the application for injunctive relief filed on Aug. 30. There is a long sequence of petitions and orders which ask the courts either to issue an injunction preventing the law from taking force, or to vacate an administrative stay of proceedings by the lower court regarding petitioner's challenge. The lower court denied the petitions, therefore petitioners turn to SCOTUS to get an injunction against the law. Then you can turn to the SCOTUS opinion to see what the reasons were, for and against the petition. The majority position is that an applicant must carry the burden of making a “strong showing” that it is “likely to succeed on the merits,” that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is consistent with the public interest. The majority concludes that The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. Immediately after this the court comments that federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves. However, it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention The law states that 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 and the named respondents (government workers of various sorts) all appear to be precluded from filing an action – thus an injunction against the judge is superfluous since he cannot file a lawsuit anyhow. It is also unclear whether SCOTUS can issue an injunction against state judges asked to decide a lawsuit under Texas’s law. When SCOTUS say "it is unclear" in this context, they mean that petitions did not adequately demonstrate that the court can in fact issue such an injunction. It's not that SCOTUS cannot decide such matters after extensive consideration of the facts / arguments and discussion, it's that the standards for an emergency action require something that the court found lacking in the petition: we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. | As Mark's answer indicates, you are evidently thinking of the Full Faith and Credit Clause. "Public acts" being laws, it may seem at first glance that states must fully respect the laws of other states. But the interpretation of this clause by the courts is rather different, and has evolved a bit over time. The short of the (modern) matter is that it mostly applies to matters concerning the judiciary. SCOTUS has recognized a "public policy exception" to the clause, which limits the ability of the clause to force a state to abide by laws which are in conflict with their own (for the most part: they don't have to). Driving privileges, and more generally who is licensed to do what (doctors, hunting, concealed carry, etc.), within a state falls under that public policy exception. So Texas does not have to obey New Hampshire's laws concerning the legal privilege to drive. As a basic sanity test, if this were not the case, then why wouldn't everybody in Texas not simply bounce off to New Hampshire for a summer to get their license there and then return to Texas and never bother with insurance? It entirely undercuts the state's sovereignty and ability to set their own laws if any other state can so easily create loopholes around them. Moreover, despite what the name might suggest, a "driver's license" is more a certification that you have the requisite skills, physical performance (passing an eye test), and knowledge to drive safely and in accordance with that state's traffic laws. It certainly makes sense for a state to require you to demonstrate at least that much, but they may also impose additional requirements. A requirement for insurance demonstrates your ability to handle financial liabilities that may reasonably result from your driving. All states currently accept a valid out-of-state license in the above sense: that you are certified to have the requisite skills, that it is valid proof of age, etc. Though if you become a permanent resident there they may require you to take new tests. However to legally drive in any particular state you must not only have such certification (a driver's license) but also satisfy any other conditions, such as age requirements and insurance requirements. As an aside, such state-by-state variations as to who is licensed to do what are in fact quite common, especially across history, even on very prominent issues. But even nationwide resolutions of those issues via SCOTUS have never, to my knowledge, utilized the Full Faith and Credit clause to do so. And, really, how could they? By saying since some state could force all other states to do X via the clause, then X must be a constitutional requirement? Or that any one state could unilaterally dictate laws in all other states? Madness! For one example, anti-miscegenation laws, which outlawed (certain) interracial marriages, were quite common until 1967, when SCOTUS struck them all down using the 14th amendment. More recently, gay marriage was forced to be recognized in all states, also via the 14th amendment. In both cases, before those SCOTUS rulings, the courts had generally recognized that the Full Faith and Credit clause did not compel the state to recognize (out-of-state) marriages it did not want to recognize. These both fell under the public policy exception. | No The case was dismissed on procedural reasons. Like this. Well, perhaps not so pedantic but there are things that have to happen before the Supreme Court can get involved and they haven’t. For example, the Supreme Court only has original jurisdiction in a limited classes of case; if this isn’t one of those (and it isn’t) it has to be heard in a court that does and then get appealed up the chain. When they have, the court will make a decision on the merits. | Constitution of the USA, Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. and the Commerce Clause (Article I, Section 8, clause 3): [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; SCOTUS has found the former to mean that states that do not allow same-sex marriages in their laws must recognize same-sex marriages registered by other states - Obergefell v. Hodges. Maybe one could argue that driver licenses are not equivalent among states, but I would expect judges (SCOTUS) to require a very well reasoned explanation. For example, maybe Alaska could refuse to recognize licenses from Florida because Florida drivers do not know how to cope with snowed roads. But even in that case Alaska probably would need to produce data showing that these measures aim to serve the public interest (avoid accidents) and that there are no other ways of getting the same result. OTOH the Commerce Clause has been successfully used to avoid states mandating racial segregation of travellers, so it is quite reasonable to see it being used to prevent a state from trying to limit the mobility of citizens from other states (again, in the supposition that the state restricting it cannot show a compelling reason to do so). AFAIK, only the Federal Government could invoke the Commerce Clause; I would expect a lot more people (in your example, the PA government or maybe even any PA driver) would have standing. | The executive can only make laws within the scope of the powers granted to them by the constitution (of which there are very few) or delegated to them by congress. An executive order that oversteps those bounds is void as recent experience has shown. | No 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. Any courts the Congress creates are, by definition, inferior. Of course, Congress can overrule a SCOTUS decision by passing a law to that effect,unless the decision defines a right under the Constitution. So they couldn’t overturn Roe but they could overturn Dobbs. It’s largely the gutlessness of Congress in grappling with controversial issues that has put SCOTUS in the position of lawmaker. | In that case, Cruise-Gulyas was subject to a second stop, and the court found that the second stop was an illegal seizure. There is no qualified immunity since this was an exercise of a clearly established First Amendment right. The authority to seize her ended when the first stop ended. The finger is not a basis for a stop, since it does not violate any law ("This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity", Swartz v. Insogna, 704 F.3d 105. | 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" |
Move money from Germany to Spain I want to move money I earn working in Germany to Spain, where I am from. What should I take in account or be carefull to do during this transaction? I dont kow the minimum amount of money which I should declare taxes, o if I have to do it or if there are other thing to take into account I would transfer the money between a german bank to a spanish one but I am interested in other ways. | Since Germany and Spain are both in the EU, there is really nothing special you have to do that would be any different from moving money from one account in Germany to another. Indeed, if you deposit money into a bank in Germany that has branches in Spain, you ought to be able to deposit it in Germany and withdraw it in Spain. You could also wire the funds from one bank account to another. Or, for that matter, you could withdraw all the funds in currency form and travel from Germany to Spain and put it under your mattress in Spain. You owe taxes without regard to what you do with the money that you are paid. | Is it legal? Yes. You can make just about any payment arrangements you like. You wouldn't be able to verify compliance, though, without some connection to the student's employer. The IRS won't tell you how much money a third party earned, or how much tax they paid, in a given year. Pretty sure they can't provide that info, which is why companies wanting to verify your income ask for copies of your tax returns rather than permission to get those returns. | While it is true that cash is legal tender, this can still be overridden by mutual agreement (i.e. in a contract). So the legal tender status only matters if payment methods were not agreed upon before entering into an agreement. In other words: If a restaurant lets you eat without telling you they do not accept cash, they will have to accept cash. However, if they explicitly tell you they only accept card payments, they can insist on this later. This applies in both the United States, in Germany, and in Canada (see e.g. It may be legal tender, but more businesses are snubbing cash). So to address your points: As I understand the legality would work something like this: 1) I accept the the contract where I agree to pay with card in exchange for food Yes - however, in accepting the contract you also accept that the restaurant is "cashless" (assuming the restaurant clearly tells you so, e.g. by putting up a sign or by saying it in person). I attempt to fulfill the contract to the best of my ability, but am prevented from doing so by circumstances beyond my control Yes. Since you attempted to fulfill the contract, you did not commit the crime of theft (which requires intention not to pay). However, you still owe what you promised when entering into the agreement, which is to pay with a card. At this point I owe the restaurant the money, but since the original transaction failed, this is a debt, which I offer to settle with legal tender No. As explained above, if the agreement stipulates a specific payment method, this generally overrides the "legal tender" aspect. In short: You agreed to pay with a card, so you are required to pay with a card. If you cannot pay with a card, you have not fulfilled your part of the agreement. It is is arguable that it is not your fault, but this does not change your obligation. Now you must either negotiate a suitable alternative (cash, cheque, golden watch...), or come back to pay later with a card. Also, the business may be able to charge you additional costs, such as extra accounting work or interest because of your non-standard payment - that would depend on the details. | Obviously, it's not simply illegal to have a business that exchanges currency - legal currency exchanges do exist, after all. But you'd have to be careful if you wanted to open a business that does this. According to 31 CFR 1010.100, you are considered a "dealer in foreign exchange", and thus a "money services business", and thus a "financial institution", if you are: A person that accepts the currency, or other monetary instruments, funds, or other instruments denominated in the currency, of one or more countries in exchange for the currency, or other monetary instruments, funds, or other instruments denominated in the currency, of one or more other countries in an amount greater than $1,000 for any other person on any day in one or more transactions, whether or not for same-day delivery. You are not considered a "money services business" if you do this "on an infrequent basis and not for gain or profit", but you say you want to "open a business" that does this, so this exemption wouldn't apply to you. If you are considered a financial institution, then you must comply with all sorts of anti-money-laundering regulations, including, for example, verifying the identity of your customers, and filing reports with the US Treasury. You would definitely want to hire a lawyer to guide you through the requirements. | What should he do use or not use digital currency on sundays? If I understand correctly, you are asking about a scenario where the parties agree that the governing law will be that of jurisdiction B notwithstanding that the contract, or the relevant part thereof, will be performed in jurisdiction A. If A and B were [in] different countries, the issue could depend on what (if any) international treaties binding both countries provide regarding a conflict of laws. Absent any realistic specifics (enasia and eukaria are not realistic), let's assume that A means the U.S. or is some jurisdiction in the U.S. The contractually chosen law (jurisdiction B) would apply unless doing so contravenes policy restrictions of the jurisdiction where the contract is performed (jurisdiction A). Those policy restrictions could be public policy, legislation, or legislative intent that can be inferred from jurisdiction A's laws. For instance, see Ticknor v. Choice Hotels Int'l, Inc., 265 F.3d 931, 937 (9th Cir. 2011): The law of the state chosen by the parties ... will be applied ... unless ... application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state[.] (citing Restatement (Second) of Conflict of Laws at § 187(b)). Note that discrepancies between A's law and B's law do not necessarily result in a material detriment to A's policy, and it is unclear from your post whether refraining from using digital currency on Sundays would be such case. One would need to ascertain A's public policy and/or legislative intent (if the relevant legislation has been enacted). | [C]ould that person, in the future, provide another I-134 for a different person who's trying to immigrate to the US? According to the Instructions for Form I-134 (PDF, 371.05 KB) If you are sponsoring more than one foreign national, you must submit a separate Form I-134 for each foreign national. There is no mention, that I can see, prohibiting future applications. | The court in France would not enforce a debt collection against you; but the person who owed you the money could - very easily. They would apply to the court in Scotland to enforce the judgement of the French court, the Scottish court would look at it, say "yup, the French court has made a decision", and then tell you to pay up. After that, the French company has the same range of options as a Scottish company would. I think (but I could be wrong), that the decision of the French court might well not go on your credit record - but the corresponding decision of the Scottish court would. Note that a CCJ doesn't go on your credit record if you pay within a short period (seven days?). In your case though, the right thing to do is Pay the amount you don't dispute you owe Wait for them to sue (they may well not). Defend the case (probably in writing, not in person). If you lose, pay up straight away (at this point the court has decided that you were wrong, and you do owe the money. As such you should pay.) | Yes. A company from one member state may do business in any E.U. state so long as it complies with local law in the course of doing so. For example, a Dutch company doing business in Germany must still pay German taxes and comply with German labor laws for its German employees. But, it doesn't have to form a German subsidiary to do business in Germany. |
Is there a right to contract oneself, or one’s dependents, into servitude? The closest common examples I can think of are jurisdictions where prostitution is semi-legalized or legalized, jurisdictions where minors can work on behest of their guardian, and military service in remote areas. All these imply some ability to bind one’s future self, or a dependent’s future self, into a situation of constrained freedom. And of an authority that recognizes and enforces such. Historically, debtor’s prisons with penal labor effectively enabled that in most countries, and which is still the practice in some. The clearest rationale for the existence of such a right is in any country with a formal security classification system. A person holding a security clearance becomes subject to certain limits on their future actions, beyond that of that of the regular citizenry, which they cannot unilaterally remove even after leaving the position that required it. This appears to be quite close to contracting oneself into an indefinite, limited, servitude. | 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. | Involuntary servitude is illegal in Spain/Europe Has been for more than 100 years. Once an employee resigns their only obligation is to work the contracted (or statutory) notice period or pay the employer the equivalent salary. | I think you're viewing the use of pronouns and contracts wrong. You are speaking to the Licensee, not some third person. So you would say "You agree to give us all your bases", not "The]y agree to give us all your bases". If you were to use a third person pronoun in describing what the other person is gonna do and what you'll do for them, calling the Licensee "they" is positively confusing, and more likely to cause problems. I hope they see my point. | Silence itself does not generally imply consent, but in the context of a history of transacting, silence in the face of continued actions by the other side can indicate consent. Here's a fun little example (Saint John Tug Boat Co. Ltd. v. Irving Refining Ltd., [1964] S.C.R. 614). The plaintiff was a tug boat company who was providing tug services for the defendant who operated an oil refinery. The large crude oil tankers coming into the refinery needed tug guidance and the plaintiff provided this. There was an undisputed verbal acceptance of a written offer for services from June 13, 1961 to July 13, 1961. The agreement was expressly extended twice, each for two weeks, into August 1961. No further authorization for extension was made. However, the plaintiff continued to provide tug service for the incoming tankers and continued sending monthly invoices to the defendant until February 1962. The defendant did not pay and denied liability for all charges after the middle of August 1961. The trial judge said: I find that the defendant knew that the Ocean Rockswift continued after August 1, 1961, in commission on call to assist and did assist the large tankers during the period in question, and that the plaintiff expected payment on a rental basis for its being kept in commission. The defendant had ample opportunity to notify the plaintiff that it did not accept any liability on that basis, but did not do so. The defendant acquiesced in the tug being so employed. The Supreme Court of Canada quoted from Anson on Contracts: So if A allows B to work for him under such circumstances that no reasonable man would suppose that B meant to do the work for nothing, A will be liable to pay for it. The doing of the work is the offer; the permission to do it, or the acquiescence in its being done, constitutes the acceptance. And from Williston on Contracts: Silence may be so deceptive that it may become necessary for one who receives beneficial services to speak in order to escape the inference of a promise to pay for them. But the Supreme Court of Canada clarified: ... mere failure to disown responsibility to pay compensation for services rendered is not of itself always enough to bind the person who has the benefit of those services. The circumstances must be such as to give rise to an inference that the alleged acceptor has consented to the work being done on the terms upon which it was offered before a binding contract will be implied. This answer shows how silence can play a role from a pure common law contract perspective, without considering equitable principles. sjy's answer correctly adds that silence can be relevant to various equitable doctrines. | it's not illegal to sign a contract that demands illegal things, however, such a contract, in general, is called an illegal contract. Illegal contracts are null and void. Contracts that violate public policy never have force in the first place. A contract can't force people to declare lies under oath or demand them to murder someone. Thus, a contract demanding such is illegal. As a result, such a clause would not just be unenforceable, it might void the entire contract wholesale if it is not severable. In the least, any clause demanding illegal acts was null and void ab initio, and never was valid. void contracts in law germany explicitly makes contracts void that are "Sittenwidrig" in § 138 BGB and also illegal ones in § 134 BGB Declarations to the Agentur für Arbeit are made under threat of perjury, and thus lying is illegal. It is also Sittenwidrig. This makes the provision void. Murder is illegal, inciting to murder someone is illegal, and so a contract to murder someone for pay is void. Such a contract also is Sittenwidrig. Selling the right to ask to marry your daughter per see isn't illegal, but it is Sittenwidrig and as such the contract is void. california judges refer to such contracts as illegal contracts, defining this as a test where making non-enforcement of such a contract something of public interest: It is in the public interest that people tell the truth to the unemployment office, so a contract demanding you to lie is illegal. It is illegal to lie on the stand (perjury), and thus the contract is illegal. Conspiracy However, the contract can also be evidence of criminal activity in itself: It manifests the will of two parties to commit an illegal act. That is the core of a conspiracy charge. Conspiracy is illegal and usually a felony. germany: Conspiracy to commit a crime is §30 STGB | Yes Companies can own companies - that’s what subsidiaries are. On a practical level, you know this is true because you actually have an example. Companies House would not have allowed its registration (barring error) if it was illegal. Why can’t it open a bank account? Banks (or any other business) can choose who they will and won’t do business with. Unless it’s discrimination on the basis of a protected characteristic, it’s not illegal. Since juridical persons don’t have protected characteristics (apart from nationality) it’s virtually impossible to illegally discriminate against them. | Under Fed. R. Civ. P. One can be served according to the state law or: (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized None of those would apply to your facts. Thus you would have to find some jurisdiction that would allow service of process under your fact. I dare say that none will and that due process would come into play. In NJ, due process applies and service may be made (1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf; It has to be the current place of abode. | This was at least a feature of Athenian law. In the Aristarchus of Isaeus (early 4th century BC), it is recorded that "the law expressly forbids any child—or woman—to contract for the disposal of more than a bushel of barley". This is a sufficiently ancient and transmissible principle of law that there well may have been Egyptian and Sumerian analogs. You might get the details that you seek by focusing on medieval English common law. |
What if an American state ratified an article to its constitution that blocked judicial review? Basically, if an American state added an article to its constitution, via the relevant mechanism that allows it to do so, that proscribed state and federal courts from striking down its legislation, how would they be able to handle cases involving judicial review with a law they deemed unconstitutional (e.g. one prohibiting same-sex marriage)? Would the Supreme Court be able to invalidate part of a state's constitution? Would the law simply be allowed to stand despite a federal or state court's finding that it is at odds with the US or state constitution? Has this issue ever come close to being addressed before, or is it something that could never happen? Many thanks in advance. | Under Article VI of the US Constitution, the federal constitution and valid federal laws are the supreme law of the land, and judges in every state are bound to apply them regardless of anything in the laws or constitution of any state.* If a state legislature passes a law banning same-sex marriage, a state court is required under the federal constitution to instead apply the federal constitution (as interpreted by the US Supreme Court in Obergefell v. Hodges) and rule as though same-sex marriage is legal. When it comes to a federal court, things are even easier: a state cannot command a federal court to do anything. A federal court’s authority is laid out in Article III of the federal constitution and in federal statute, which (per Article VI) is supreme over anything in the laws or constitution of any state. There have been times where states attempted to challenge federal supremacy. Normally, this is handled by going to federal court. Decisions in state courts can ultimately be appealed to the US Supreme Court, which can reverse them if they incorrectly applied federal law. Most of the time, that’s the end of matters: when a federal court rules, state officials comply. Occasionally, that’s not enough. If a state disobeys the orders of a federal court, they can be enforced by federal agents. If even that isn’t enough, the President can deploy the armed forces to uphold federal authority. * There are situations which are more complicated, like when something is a federal crime but not a state crime. I can do more research on that if you want, but for now I’m going to leave it at “it’s more complicated.” | So it's not that SCOTUS is declining to review the matter on Constitutional Grounds but that it's declining to rule because 1.) It's a military matter 2.) It's under review by congress. SCOTUS is basically saying that, of the three branches, they are the least equipped to deal with military policy and when a better equipped branch is reviewing the matter. SCOTUS doesn't want to dictate to Congress how to change the rules when Congress is in the process of changing the rules itself... but they can say "Hey, we got our eyes on this as a constitutional matter so keep that in mind when you decide on what you're gonna do about this. When Congress makes a decision on this particular law (either change it or keep it), SCOTUS may take a look, but that doesn't mean they'll rule against it, as Congress and the Military can present an argument that it might be necessary for military defense reasons. | The US Supreme Court has made some decisions that legal scholars, other judges, lawyers, and people in general have strongly criticized as mistaken, but none anywhere nearly as wild as the one suggested in the question. Many such, well let me call them "disputed", rulings have been later overturned by the court itself. A well known example is Minersville School District v. Gobitis, 310 U.S. 586 (1940), which was overruled a few years later by West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Many of the so-called Lochner era economic decisions were also eventually overturned by the Court itself. Some disputed holdings have been altered by changes in the law, State or Federal. Some have been overturned via a constitutional amendment, such as Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), which is now held to have been overruled by the Fourteenth Amendment, although the Court did not come to that conclusion until early in the 20th century. Perhaps the most notorious case is Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) which held that a person of African descent could never become a US citizen, and that Congress was without power to prohibit slavery in any US state or territory. This is perhaps the most denounced decision of the US Supreme Court in its history (See the linked Wikipedia article for a few such comments.) This decision was undone de facto by the outcome of the US Civil War, and de jure by the adoption of the Thirteenth and Fourteenth Amendments. Some cases have later been treated as "bad law" even though not formally overturned. An example is Korematsu v. United States, 323 U.S. 214 (1944), in which the Supreme Court upheld the removal of US citizens of Japanese ancestry from the US Pacific coast during WWII, and their confinement in what has been described as a series of concentration camps. This has not been formally overruled, but in Trump v. Hawaii No. 17-965, 585 U.S. ___ (2018), Chief Justice Roberts wrote: The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—'has no place in law under the Constitution.' 323 U. S., at 248 (Jackson, J., dissenting). [quoting Jackson's dissent in Korematsu] And some cases, although much disputed, still stand as good law. The case of Flood v. Kuhn, 407 U.S. 258 (1972), holding that Baseball continued to be exempt from anti-trust laws, federal and state, has been much criticized, but remains in force to this day. (See the section "Subsequent jurisprudence" in the linked Wikipedia article) Congress has not, so far, acted to limit the exemption, as the opinion indicates that it had the power to do. In short, a US Supreme Court decision, however "erroneous" or "absurd" commentators or the public may consider it, remains the law of the land until it is overturned or distinguished by the court, or made obsolete by changes in statute or in the Constitution itself. It the highly unlikely situation described in the question, John Doe would remain in prison until his sentence expired or he received a pardon. | The court said in Obergefell (emphasis mine): Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right. If same-sex couples are to be given in marriage the "same legal treatment" as opposite-sex couples, the divorce process must also be the same. | Why has this never been interpreted by SCOTUS? It has never been interpreted by any court, because the interpretation you're advocating is nonsensical, and nobody has ever tried to advance it in any court. Therefore, no court has had an opportunity to rule on it. Congress, however, has (at least implicitly) interpreted this clause to mean that all natural-born citizens are eligible to be president if they also fulfill the other requirements, regardless of when they were born, so that is the prevailing interpretation unless someone manages to challenge the interpretation either before congress or in a court. If such a challenge is made then there will be an explicit ruling. | In the specific example you have given, Florida law could not be applied. A state has jurisdiction over a crime under constitutional due process limits on the scope of a state's criminal jurisdiction if the crime is either committed within the state (regardless of where the harm occurs) or is directed at or impacts the state (the classic example is a gunshot fired from the Ohio side of the state line killing someone located in Indiana, which could be prosecuted in either state, or in both states as it doesn't violate double jeopardy to be prosecuted for the same offense by more than one sovereign). Sometimes these issues are framed not as "jurisdictional" per se, but as "conflict of law" questions limited by the constitution. The proof that a crime was committed in the territory where it is applicable is called proof of locus delecti and depends upon the nature of the crime alleged and the location of the act or acts constituting it. To determine where a crime is committed depends on what acts constitute the crime, something that leaves considerable room for flexible interpretation and a careful reading of the exact wording of the relevant criminal statute. The most important limitation on the territorial jurisdiction of a U.S. state is the Sixth Amendment to the United States Constitution. This applies directly in the case of federal criminal prosecutions in the federal courts, and applies in state courts because it is incorporated to apply in state court cases through the due process clause of the Fourteenth Amendment to the Constitution of the United States under 20th century case law applying the "Selective Incorporation doctrine." The Sixth Amendment mandates that criminal trials be conducted “by an impartial jury of the State and district wherein the crime shall have been committed.” If a suspect is not present in a state to be criminally prosecuted, then the options available to a state are (1) to toll the running of the statute of limitations while the suspect is outside the state to the extent permitted by the relevant state statute and the U.S. Constitution, (2) to bring a civil lawsuit against the suspect instead of a criminal prosecution, or (3) to seek extradition of the suspect, which must be granted under certain circumstances under the United State Constitution and reads as follows in the pertinent part: Article IV, Section 2, Clause 2: A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. (Note that the Sixth Amendment does not apply to civil lawsuits. Civil lawsuit trials can be conducted in a state other than the state where the breach of contract or tort giving rise to the lawsuit took place for jurisdictional purposes and not infrequently is brought in another state, although constitutional choice of law rules limit the circumstances under which a particular state's laws can be applied to a particular set of circumstances in a lawsuit.) The Sixth Amendment, on its face, prohibits Florida from prosecuting a case in the example given in the question involving a crime that was committed solely in Washington State. Of course, the exact definition of the crime might determine where it was committed. In traditional "common law" "blue collar" crimes there is usually no ambiguity over where it is committed except in the most extraordinary circumstances, but in prosecutions of conspiracies and crimes involving economic activity (such as owning or mailing something), the question of where a crime is committed can grow much fuzzier. For example, one could imagine a differently defined crime prohibiting providing funds to finance a purchase of marijuana in excess of 20 grams being committed both in Washington State and Florida at the same time (e.g. perhaps a purchase of marijuana in Washington State was financed by a Florida bank by delivering cash to a courier in Florida who is bound for Washington State knowing that the cash would be used to finance a marijuana purchase). Similar ideas apply in international circumstances where the Sixth Amendment and Extradition Clause do not apply. But, in those cases, the more flexible and less well defined "law of nations" as interpreted by Congress and the U.S. Supreme Court and the President still does impose some territorial boundaries on prosecutions for actions which are not crimes in the country where they are committed under that country's domestic laws. But, those boundaries are not so hard and fast and the idea that a crime is committed in places where it has an impact allow for considerable flexibility in prosecuting crimes committed outside the United States. It has also been well settled since the earliest days of the United States that "The courts of no country execute the penal laws of another." The Antelope, 23 U.S. (10 Wheat.) 66, 123 (U.S. Supreme Court 1825) and that this applies to states applying each other's penal laws as well. So, Florida cannot enforce a violation of the criminal laws of Washington State in its courts either. If you get in a bar fight in Seattle, you can't be prosecute for assault in a court in Orlando, even if both of the parties to the bar fight were Orlando residents and U.S. citizens. Some notable cases resolving the question of whether locus delecti is present in a particular case include the following: In Hyde v. United States, 225 U.S. 347 (1912) although none of the defendants had entered the District of Columbia as part of their conspiracy to defraud the United States, they were convicted because one co-conspirator had committed overt acts in Columbia (225 U.S., at 363). So conspiracy is a continuing offense committed in all the districts where a co-conspirator acts on the agreement. Similarly, In re Palliser, 136 U.S. 257 (1890) the sending of letters from New York to postmasters in Connecticut in an attempt to gain postage on credit, made Connecticut, where the mail he addressed and dispatched was received, an appropriate venue (136 U.S., at 266—268). A typical state statute on the subject from Colorado's Revised Statutes (2016) is as follows: § 18-1-201. State jurisdiction (1) A person is subject to prosecution in this state for an offense which he commits, by his own conduct or that of another for which he is legally accountable, if: (a) The conduct constitutes an offense and is committed either wholly or partly within the state; or (b) The conduct outside the state constitutes an attempt, as defined by this code, to commit an offense within the state; or (c) The conduct outside the state constitutes a conspiracy to commit an offense within the state, and an act in furtherance of the conspiracy occurs in the state; or (d) The conduct within the state constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense prohibited under the laws of this state and such other jurisdiction. (2) An offense is committed partly within this state if conduct occurs in this state which is an element of an offense or if the result of conduct in this state is such an element. In homicide, the "result" is either the physical contact which causes death or the death itself; and if the body of a criminal homicide victim is found within the state, the death is presumed to have occurred within the state. (3) Whether an offender is in or outside of the state is immaterial to the commission of an offense based on an omission to perform a duty imposed by the law of this state. Case law under this statute sometimes describes the issue presented under this statute a question of "sovereign jurisdiction." See, e.g., People v. Cullen, 695 P.2d 750 (Colo. App. 1984). | "Law" is actually a very broad term, which encompasses statutes, rules, regulations, precedent and I'm sure some other things that I'm forgetting. The popular understanding of "law" is the statute, which involves Congress (at the federal level) or the legislature (and the state level). That is the kind of law that we say is "passed". At the federal level, some number of representatives or senators will introduce a bill into the House or Senate, and it is discussed in a relevant committee; if it is approved, it moves to debate by the whole House / Senate and if it passes it moves to the other house. Once it has passed both the House and Senate, it goes to the President where it may be signed, rejected, or ignored. If signed, it becomes "a law", if rejected (vetoed) it can become law anyhow if it gains a 2/3 majority vote in both houses. If the President ignores it ("pocket veto"), it becomes law in 10 days (Sunday is not a day), unless Congress is not in session. Oh, and, that's just the tip of the iceberg. At the state level, there is a similar process, with the further option of referenda and initiatives. In the former case, a particular law will have been passed by the legislature and then it is put to a popular vote for affirmation / overturning, and in the latter case a new law is proposed by the people (generally through a petitioning process) and then voted on by the populace. There is a fair amount of variation on how this works and what can be done, by state. A law can be repealed (withdrawn) by passing a law that repeals a given part of the existing law, and it can be re-written. The Supreme Court of the jurisdiction can also withdraw a (part of a) law if it is found to be unconstitutional. No foreign body can override US law, although if the US is bound by treaty (which necessarily involves another country) then we might have to do whatever that treaty says, because we approved the treaty. One limit on what we can be forced into by treaties is that a treaty cannot violate the constitution. The largest source of law in the US is actually not statutory, it is regulatory law, where a regulatory agency writes rules with the force of law (so really, it is law). In that case, there has to be a statutory basis, where at the federal level a law is passed empowering an agency to write rules, where the scope of the regulation is supposed to be related to the empowering statute in some manner. In that case, there is a vetting process, but basically no voting, just an announcement, some discussion, and eventually the rules are set. Analogous processes exist at the state level. We also have various county and city governmental bodies, where e.g. the city council can vote to create a law; or, they can empower an agency to write regulations. Yet another source of law is the Executive Order, where the president can decree that such and such will be the case (as long as it has something to do with what the executive branch does). These are somewhat limited in scope, but every president seems to like to test what that limit is. Governors get to do it too! And lastly, courts have an indirect power to make law, by ruling on how an existing law is to be interpreted (as well as ruling that a law or part of a law is unconstitutional). | If the Senate took the extreme measure of attempting to abolish the Supreme Court, there's nothing in the Constitution that requires them to confirm any of the President's nominees. However, attempting to dismantle one of the three branches would be nothing short of a coup d'etat. The president has some options here: He [the President] may, on extraordinary Occasions, convene both Houses [of Congress], or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper. -- Article 2, Sec. 3 Basically, this means that, in an extraordinary circumstance (total defiance of the entire Senate would easily qualify), the President can lock the Senate in their chamber until they straighten their heads out. And when I say "lock them in", I don't mean that figuratively. The Constitution requires that a majority of each house be present to constitute a quorum to do business. The President could order up to 51 Senators to convene, and if they refused, could order the FBI or whoever to physically arrest them and drag them to the capitol building. This was actually done in Wisconsin by Gov. Scott Walker in 2011 when 14 Democrat Senators fled the state to avoid the quorum needed to vote on a controversial bill that they couldn't block. It would be messy for sure, and as far as I know, has never been done with the U.S. Senate. But there is precedent for it. Additionally, the President could use his vacancy power and just appoint a justice. Legally, he would have to wait for the Senate to be in recess, and the Senate would likely arrange things so that never happens. However, if there were no justices left, he could just appoint a Chief Justice (the Constitution provides that there be at least one justice). Even if he did this in the most "in-your-face" illegal way, with both middle fingers extended, the only judge that can tell him he did wrong is the guy he just seated. Of course, the Senate would move to impeach that judge, and probably the President too for having appointed him illegally, but you need a supermajority of both houses to remove them from office. If you had such a supermajority, then the game is over at this point; there's no way the President would step down in such a situation (who would force him?) and we're in a civil war because we don't have a functional government anymore. In reality, this isn't an "interesting twist in constitutional law that the Founding Fathers may not have considered." It's that if Congress ever went totally off the rails like that, the President, or the people would have to step up and hope they could end the standoff peacefully without resorting to violence, because this is the kind of thing that revolutions are fought over. |
Why is banning "vaccine passports" unconstitutional? CONTEXT: Florida has tasked the Department of Health to fine businesses / government requiring proof of vaccination to be fined $5K: The Florida Department of Health will begin enforcing the state’s ban on vaccine passports on Sept. 16. https://www.wfla.com/community/health/coronavirus/florida-businesses-will-soon-face-5k-fines-for-violating-vaccine-passport-ban-state-says/ Said news article indicates: Last month, a federal judge sided with Norwegian Cruise Line in its case challenging the Florida law prohibiting cruise companies from demanding passengers show proof of vaccination before boarding a ship. Judge Kathleen Williams said the ban is unconstitutional on grounds of free speech. “The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws ‘abridging the freedom of speech’… Pursuant to this clause, a state ‘has no power to restrict expression because of its message, its ideas, its subject matter, or its content,’” her ruling stated. Why is this unconstitutional? Isn't the real issue whether businesses and other organizations can selectively choose who can / can not enter? There are obvious forms of selection (i.e. based on race) that are unconstitutional: where is the 'bright line'? | Section 381.00316 is unconstitutional because it is an unjustifiable content-based restriction on speech, in violation of the First Amendment. The law is unconstitutional because private businesses and their owners have a First Amendment right to demand that their customers engage in speech as a condition of doing business. If you've watched Showtime at the Apollo or America's Got Talent, you understand the concept that a business owner can make decisions -- objectively or subjectively -- about what kinds of speech they want to host. If you want to make it through your performance, it's incumbent on you to satisfy the predilections of the business owner. And this doesn't just apply to TV. If you went to a poetry slam at your local coffee shop, the owners could boot you if talked through the performances, making it difficult for other customers to enjoy the show. Likewise, they could boot you if you went to the mic and started spouting racist nonsense, or if you just stood at the mic and said nothing at all. In the Florida case, Norwegian is doing the same thing -- just not for artistic reasons. Beyond requiring customers to pay for a ticket, it is requiring its customers to communicate the message that they are vaccinated, and they are requiring them to communicate using written documentation. In other words, Norwegian is demanding that customers engage in speech ("I am vaccinated") in a certain way (written proof of vaccination), and that kind of exchange falls within the protections of the First Amendment. That speech is subject to regulation because of its vaccination-related content of that speech, making Section 381.00316 a content-based restriction on speech, which subjects it to strict scrutiny, meaning that the state cannot enforce the law unless it furthers a compelling governmental interest and is narrowly tailored to advance that interest. The state argued that the law furthered compelling governmental interests in protecting medical privacy and preventing discrimination, but the court wasn't buying it: Here, Defendant has presented no evidence to demonstrate that his asserted interests are in response to real problems that Florida residents are actually facing. There is no evidentiary support to show that residents have experienced intrusions on their medical privacy or discrimination because some businesses, including cruise lines, have required COVID-19 vaccination documentation. The legislative record cited by Defendant is bereft of any facts or data underpinning the Statute’s purported purpose. In light of the absence of any appropriate data, reports, or even anecdotal evidence on this issue, the Court cannot conclude that Defendant’s articulated interests are based on a problem that exists in fact. And even if these were compelling interests, the state failed to prove that the law was actually advancing them. Because the law outlawed the exchange of written communication rather than outlawing the vaccination requirements themselves, businesses remained free to demand information about vaccination status (through oral statements, for instance), and to discriminate against who they knew or believed to be unvaccinated. (N.B.: For procedural reasons, they court actually applied intermediate scrutiny, but the law ends up invalid for basically the same reasons.) Section 381.00316 is unconstitutional because it substantially burdens interstate commerce in violation of the Dormant Commerce Clause. The law was also struck down because it intrudes on the federal government's authority to regulate interstate (and international) commerce. When a law is challenged under the Dormant Commerce Clause, courts ask two questions: (1) Does the state law favor in-state economic interests; and (2) Does the state law's burden on interstate commerce outweigh the legitimate local benefits to the state? A "yes" answer to either will invalidate the law. Here, the court held that the law did not directly favor in-state economic interests, but that the burdens on commerce outweighed the local benefits. Because the law did not meaningfully advance any of the local interests it had invoked (as discussed above), but it did impose a substantial burden on interstate commerce because Norwegian's ships travel to additional ports where proof of vaccination is required: Section 381.00316 will prevent NCLH and other cruise lines from possessing verified information necessary to effectively and efficiently process landing and disembarking at various, preferred domestic and international ports where documentary proof of vaccination is required. This affects not only opportunities for vacation activities like sightseeing, but also responses to mechanical and medical emergencies, or even geopolitical crises. Depriving cruise lines of corroboration of passengers’ vaccination status impedes their ability to prepare and address these eventualities. Either the First Amendment violation or the Commerce Clause violation would have been independently enough to invalidate the statute. Norwegian also argued that the statute was preempted by the CDC's Conditional Sailing Order and related orders, but the court declined to address that argument. | The 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. | Actually, the concept "right" means that it can be waived: you may exercise the right, but do not have to. If it is an obligation, you can't "waive" the obligation; but the right to free speech does not mean that you must speak, and the right to bear arms does not mean that you must bear arms. You may decline to exercise, or waive, a right. Sternlight 16 Ohio St. J. On Disp. Resol. 669 (2001) in "Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury Trial" partially addresses this (the focus though is on binding arbitration). One thing to note is that the Seventh Amendment does not appear to apply to issues in state court (it is a separate and fascinating question to wonder what parts of The Constitution are incorporated against states, and why). All is not lost for the constitutional question, we just need a different constitution. By the agreement terms, "This Agreement is governed by the laws of the State of New York". Therefore, New York's Constitution (Article 1 Sect 2) is also applicable: Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. Thus, the right may be waived. Waiver of a right to jury trial is not the same as waiver of the right to trial: what the agreement says is that litigants would have a civil bench trial, where the judge determines whether there was a breach. In New York, NY CPLR § 4102 allows parties to waive civil trial by jury (and unlike California), such waiver terms have been upheld, but the courts have recognized that there is a problem, so it's not always obvious whether such waivers in contracts are legal. | There are two constitutional doctrines that prohibit discrimination based upon state of residence. One is the dormant commerce clause (a court created doctrine) and the other is the privileges and immunities clause. There are actually two privileges and immunities clauses, one in Article IV, Section 2, Clause 1, which states: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. and the other in Section 1 of the 14th Amendment which states: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Some of the leading privilege and immunities cases are reviewed here. With respect to the dormant commerce clause, per the link above: [I]n a dormant Commerce Clause case, a court is initially concerned with whether the law facially discriminates against out-of-state actors or has the effect of favoring in-state economic interests over out-of-state interests. Discriminatory laws motivated by "simple economic protectionism" are subject to a "virtually per se rule of invalidity," City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), Dean Milk Co. v. City of Madison, Wisconsin, 340 U.S. 349 (1951), Hunt v. Washington State Apple Advertising Comm., 432 U.S. 333 (1977) which can only be overcome by a showing that the State has no other means to advance a legitimate local purpose, Maine v. Taylor, 477 U.S. 131(1986). See also Brown-Forman Distillers v. New York State Liquor Authority, 476 U.S. 573 (1986). Notwithstanding these constitutional protections against discrimination based upon state residence, the U.S. Supreme Court held that this discrimination is constitutional in the case Vlandis v. Kline, 412 U.S. 441 (1973) and reaffirmed the continuing vitality of that decision in Saenz v. Roe, 526 U.S. 489 (1999). The majority opinion in Vlandis v. Kline explains this authority was basically undisputed at that time: The appellees do not challenge, nor did the District Court invalidate, the option of the State to classify students as resident and nonresident students, thereby obligating nonresident students to pay higher tuition and fees than do bona fide residents. The State's right to make such a classification is unquestioned here. Some of the justification is set forth in the Saenz v. Roe (1999) decision which states: The second component of the right to travel is, however, expressly protected by the text of the Constitution. The first sentence of Article IV, § 2, provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Thus, by virtue of a person's state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the "Privileges and Immunities of Citizens in the several States" that he visits. This provision removes "from the citizens of each State the disabilities of alienage in the other States." It provides important protections for nonresidents who enter a State whether to obtain employment, to procure medical services, or even to engage in commercial shrimp fishing, Toomer v. Witsell, 334 U.S. 385 (1948). Those protections are not "absolute," but the Clause "does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States." There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, see Baldwin v. Fish and Game Comm'n of Mont., 436 U.S. 371 (1978), or to enroll in the state university, see Vlandis v. Kline, 412 U.S. 441 (1973), but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for "the 'citizen of State A who ventures into State B' to settle there and establish a home." Zobel, 457 U.S. at 74 (O'CONNOR, J., concurring in judgment). Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident's exercise of the right to move into another State and become a resident of that State. Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause "is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State." Basically, the exception isn't logical and instead is a case of the Courts upholding a common practice that seems to make economic sense, notwithstanding that fact that it is clearly contrary to the relevant constitutional provisions and doctrines. The life of the law is not reason, it is experience. Assuming logical consistency in the law will often lead you to a descriptively inaccurate result. | 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. | It was decided back in 1905 in the case of Jacobson v Massachusetts, 197 U.S. 11, that mandatory vaccination laws are constitutional in the US (the specific example being mandatory smallpox vaccination - through vaccination, this illness was eradicated globally). The court observed that in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. An American citizen, arriving at an American port on a vessel in which, during the voyage, there had been cases of yellow fever or Asiatic cholera, although apparently free from disease himself, may yet, in some circumstances, be held in quarantine against his will on board of such vessel or in a quarantine station until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared. The power of the government to protect is not totally unfettered: its actions must be necessary. Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the State, to protect the people at large was arbitrary and not justified by the necessities of the case. We say necessities of the case because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons. An attack on a mandatory vaccination law would probably focus on the question of necessity. | The government cannot force people to get vaccinated, without passing a law to that effect. When they do, they can. This was sorted out in Jacobson v. Massachusetts, 197 U.S. 11, when the Supreme Court, in 1905, ruled: The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State. It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health. Nothing in that ruling is specific to vaccinations as opposed to other medical treatments. If a law mandating a certain vaccination exists in a state, the citizen's beliefs about the efficacy of the vaccination are irrelevant to the legal issue -- get the vaccination, or the punishment. If a state were to pass a law mandating snake-oil innoculations to prevent smallpox infections, the law could be challenged in court. In general, people have the right to go about their business without the government interfering in their fundamental rights, but fundamental rights are not absolute, they are attenuated in case of a "compelling government interest": which leads to a particular kind of judicial review, strict scrutiny. While preventing a virulent deadly disease is arguably a compelling government interest, snake-oil is not necessary to reach that end (it does not reach that end, so it is certainly not necessary to reach that end). | There are venue restrictions where political speech is restricted, such as on military bases; content restrictions (transmitting classified information to the world); you cannot defraud by saying false things in order to get something, you cannot defame a person, you cannot speak obscenely (though it's hard to tell what counts as "obscenity"). You cannot appropriate other people's property in speaking (i.e. copyright law is a restriction on speech). The type of speech restrictions seem to pertain to speech and violence caused by such speech. A classic limitation is that you cannot speak "fighting words" (Chaplinsky v. New Hampshire 315 U.S. 568), which in 1942 meant calling someone a "damned racketeer" and "damned Fascist", which the court characterized as "inherently likely to provoke a violent reaction". The court subsequently refined its position on "provocative" speech. In Virginia v. Black 538 U.S. 343 a law against cross-burning was found to run afoul of the First Amendment as a restriction on political expression, but it would be fully consistent with The Constitution to outlaw "cross burning carried out with the intent to intimidate". This states may "prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm". The current position is that you cannot incite to the imminent use of force. In Brandenburg v. Ohio 395 U.S. 444, the court stated that the First Amendment does not "permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action". There are myriad laws against threats, for instance in Washington you may not "knowingly threaten(s) to cause bodily injury immediately or in the future to the person threatened or to any other person", and you can't do that ("knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person") in Ohio either. You can't get away with threatening "to commit a crime which will result in death or great bodily injury to another person" in California. This class of restrictions on speech seems to be quite robust. You may not induce panic in Ohio, e.g. shout "fire" in a theater -- I don't know if any other state has such a law. |
Date Privacy and Twitch; Do I have the right to access my chat logs? Under Data Privacy laws, the user has a right to access their data, erasure, etc. Yet under Twitch the users have no way to access their own logs, only the streamer and a team of mods. This has always struck me as odd, that I can one day, theoretically, start recieving personal information about myself, where I was, what I was watching, what I was typing, from an unknown party (mods) who has access to information that I didn't even know had been stored, accessed or perhaps that I didn't even know exist if sufficent time passed. It's something i've noticed recently, with the most recent unban system put in place. Users are requesting for unbans yet given no insight into what they said prior to being banned. Yet, years after the fact, these logs are available for mods to see. I believe the user should have access to that information and indeed the right of erasure in case of personal information accidentally being posted. Would I be mistaken? I compare it to something like Youtube comments. Where one can very easily modify, delete and view a history of their logs. Even Facebook has the choice to download a file of everything they have on record for their chat history and activity. Curious how Twitch avoids this responsibility when the act of commenting on Twitch feels no different than Youtube or Facebook commenting. | The Art 15 GDPR right to access is pretty absolute. There are only three grounds under which access to a copy of your data can be denied: Art 12(5): the request is “manifestly unfounded”, e.g. clearly just submitted for trolling Art 12(5): the request is “excessive”, e.g. if you repeat the same request very frequently Art 15(4): access to a copy would “adversely affect the rights and freedoms of others” Thus, I am confident that Twitch would respond to an access request with a copy of all your chat messages. Of course, the chat messages might be useless without context, but providing that context might infringe on the privacy rights of others (see Art 15(4)). There are two caveats to this right. The data need not be machine-readable, unless the more limited Art 20 right to data portability also applies. Twitch is under no explicit obligation to provide access in a self-service manner, e.g. through an app or web interface. It would probably in the best interest of Twitch to provide self-service means, but right now the Twitch privacy policy (permalink) asks you to exercise your rights by emailing [email protected]. Alternatively, their privacy choices page contains an entry to “Obtain access to or a copy of certain personal data we hold about you”, which contains a barely-visible link to a web form where you can request chat data. | Your friend's relationship with the game company is one of contract. You don't say what the contract terms are, so it's impossible to say whether they were breached by your friend or the company. In any case, it is likely that the only remedy your friend could seek is damages, probably limited to whatever outstanding portion of the subscription they have not had the benefit of. It seems unlikely that it will be a large enough amount to be worth pursuing. As a private company the game provider can choose to contract with who they wish, or not as the case may be (unless they can be shown to be discriminating against protected characteristics). | I know of an app that did similar. They sold membership access and linked Youtube videos. One of the Youtuber's started to take legal action against them. I don't know what happened but the app blocked their content from being shown. Updated this comment to remove incorrect information. After looking at Youtube's recent terms and conditions; you aren't allowed to link, embed or use the API if you want to put content behind a paywall, or show it alongside advertising: Under the section: Permissions and Restrictions https://www.youtube.com/static?gl=GB&template=terms So long as your app is free, and doesn't contain advertising you are probably okay. | What you are doing is commonly referred to "web scrapers" and they are legal in the EU. What you cannot do is extract personal data. Since the data you are aggregating is non-personal data, whether or not a chat button is available, it should be fine. EDIT As some of the commenters said - it's legal, but many websites detect scrapping. To (try to) avoid being blocked by the server, make it act human. Something like. I check once every 15 minutes with 3 minutes +/- is probably enough. That also is probably what a human would do using the website so it should strengthen your argument the website is unavailable. | Update: On 1 October 2019 the CJEU ruled in Case C‑673/17 (Verbraucherzentrale Bundesverband vs. Planet49 GmbH) that cookies require explicit consent regardless of personal data is being processed. (Where the exceptions don't apply). (paragraphs 68-70 of the ruling). That does probably invalidate my answer below. However, because I have based my answer on information provided by the Dutch DPA, I will not update my answer until that DPA has responded on this. Basically, your thoughts are all correct. The Dutch DPA (Autoriteit Persoonsgegevens) has written a manual how to use Google Analytics compliant with the GDPR without having to ask for consent. But unfortunately it is not available in English. Based on Art. 28 GDPR, you need a Data Processing Amendment with google. Open the settings menu from Google Analytics Go to Admin Choose Account Settings Scroll down to the data processing amendment Open it Accept it Click Save Anonymize your visitors IP Address. A full IP address is considered personal data. It is possible to remove the last octet before it is processed by google. Add { ‘anonymize_ip’: true } to the tracking code on your website Create a screenshot of the change, so you can prove later at which date you made this change. Disable Data Sharing with google. By default Google uses the data for 5 different purposes. Each of them would require consent from the visitor of your website. So you need to switch that off. Open the settings menu from Google Analytics Go to Admin Choose Account Settings Scroll down to the data sharing settings Uncheck all checkboxes (Google producs & services, Benchmarking, Technical support, Account specialists and access for sales experts) Click Save Disable Data Collection for Advertising. This has to be disabled at a different location, for the same reason as the previous step. Open the settings menu from Google Analytics Choose Property settings Choose Tracking info Choose Data collection Turn off these two options (remarketing and advertising reporting) Click Save Disable the User-ID feature. This is probably turned off by default. But it is important to keep it turned off. So you need to verify this. Open the settings menu from Google Analytics Choose Property settings Choose Trackinginfo Choose User-ID Disable it Click Save Even though you don't need consent to use Google Analytics, you still need to inform your users, for example by adding a few lines to your privacy policy explaining: You are using Google Analytics cookies. You have a data processing agreement with google. You have enabled IP anonymization/masking. You have disabled data sharing. You are not using any other google services in combination with Google Analytics. The Autoriteit Persoonsgegevens still recommends to offer an opt-out for Google Analytics, but it would not be required. As the Autoriteit Persoonsgegevens is a DPA as defined in chapter 6 of the GDPR, you have to assume their advice really is GDPR complaint. In the past they also had performed other investigations to the privacy policies of google. | It could be. Accessing any web page is subject to whatever the terms of use are for the page, and if those terms state that the page may only be accessed from within the US, then accessing the page from outside the US is a violation of the TOS (hence use is infringing): see 2.4(h) of the Netflix EULA. There are EU rules that override such terms, within the EU. The usual way to circumvent technological location-restrictions (where the web page says "I'm sorry, I can't let you do that") is to use a VPN and pretend to be somewhere else. Use of a VPN is not per se illegal in most countries (there are exceptions), but using it to circumvent geo-blocking may be. Again returning to the point that the TOS may itself say "No you may not", the interesting question is what to conclude if there is no such statement, for example I did not see anything in the PBS TOS that restricts access to the US (I didn't look very deeply). Terms of service can't be secret: you can't be held to following rules that you cannot reasonably know of. If you attempt to access a page that uses un-announced geo-blocking technology and it informs you that you can't use the page because of your location, then you have effectively been put on notice that there is a rule. If you happen to be using a VPN and access an un-announced, (reasonably) undetectable geo-blocked site, that would not be a breach of the terms (because you have not been put on notice that location is a term of use). | To preface my answer, this aspect of UK law is unclear at best and I try to set out general principles where available. If you are acting in a private sphere, then the recording of conversations are unregulated, however this is only for personal use – i.e., should you desire to make notes on what was said for your reference at a later date. Should you wish to share it with a third party, then you would need consent from all participants or be able to demonstrate that it would be in the public interest. If you are acting as an employee or a company, then the situation changes. Firstly, you need to check your contract, whilst this does not constitute a crime, it may be against the terms of your employment. Secondly, a company can only make recordings without knowledge under statutory conditions, such as to establish facts, ensure regulatory compliance or demonstrate standards that are achieved or need to be achieved by training. It is a general principle that conversations recorded without consent are inadmissible in court, particularly in terms of a criminal proceedings. In civil matters, it similarly follows the concept that a claimant should come to court with clean hands. However, judges are usually more pragmatic in civil cases and if parties are aware of the existence of the recording, then it often be subject to usual rules of disclosure, though this may open the creator of the recording to subsequent litigation regarding the illegality of the recording under Data Protection Act or others. | You have no right to privacy in public What you do and say in public is … public. In general, in common law jurisdictions, anyone and everyone has the right to record you unless you have a “reasonable expectation of privacy”. Where the exact line on that is situational but if you are shouting racist slurs, you don’t have it. The person who made the recording owns the recording and none of the people in the recording have a say in what they do with it. However, under privacy laws like the GDPR, a person’s image and voice are personal data so any data processor must have a legal reason for processing it. However, such laws do not usually extend to private individuals acting in a private capacity. So images captured on a private phone are unlikely to be caught while images on a corporate CCTV system will be. |
Travelling through New York with a firearm I recently had a discussion with a gentlemen when asking about a scar on his body and it led to a shocking story that almost seemed such an abortion of justice as to not be entirely correct or truthful. He told a story that he legally owned a firearm as a citizen of Pennsylvania and travelled through New York state on his way to New Hampshire. He had the ammunition and magazine in the trunk and the firearm locked in his glovebox. On his way, he ended up in a terrible accident on the interstate and was ejected from the vehicle. He was taken unconscious to a hospital where he was kept in a medically induced coma for several days in the ICU where he fought for his life. After a succesful surgery, he was awoken to be told by law enforcement that he was going to be placed under arrest as soon as he was released from the hospital, as the firearm and ammunition were ejected from the car during the accident and found. The charges he was told were that while it was legal to travel through the state of New York with a firearm, it is illegal to stay overnight in the state with the firearm if you are not a citizen of the state of New York? So he was in fact arrested and charged with a felony apparently, released on 50k dollar bond, and was facing prison time. He scrounged what little savings he had and hired a defense lawyer that advised him to plea for a reduced sentence of probation, and that conditions of this are that he is not to possess firearms and must not be under the influence of alcohol. The story defies belief and I definitely feel there is much more to this story than was told to me. Is there such a firearm law in New York that you are not allowed to stay overnight while travelling through the state with a firearm? If this is in fact true, why would he not have a valid defense in that being unconscious and kept under medical coma to save his life, that he did not have ability to choose in this instance to not stay overnight? And if this is not a valid defense, why would they press charges against the man that nearly died and fell into such great misfortune? And what does the 2 year moratorium for alcohol have to do with the probabtion? | This story is plausible but the technical legal details are probably wrong. It is completely illegal to transport a pistol in a car in New York State if you do not fall into the list of exceptions § 265.01-b: A person is guilty of criminal possession of a firearm when he or she: (1) possesses any firearm or; (2) lawfully possesses a firearm prior to the effective date of the chapter of the laws of two thousand thirteen which added this section subject to the registration requirements of subdivision sixteen-a of section 400.00 of this chapter and knowingly fails to register such firearm pursuant to such subdivision. Since the question mentions the firearm locked in a glovebox I'm assuming it is a pistol. Comments have suggested and certain exemptions in the law suggest that there isn't a licensure or registration requirement for manual action long guns, but I have not found the specific section exempting them from the possession law. There is a long list of exemptions to the possession law in § 265.20, but the only one that could be applicable to a person just travelling through the state might be section 13: 13. Possession of pistols and revolvers by a person who is a nonresident of this state while attending or traveling to or from, an organized competitive pistol match or league competition... Notably, for a regular citizen they must have a New York State carry permit to possess a handgun, and their long guns must be registered with the state: 3. Possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01 of this chapter or possession of a weapon as defined in paragraph (e) or (f) of subdivision twenty-two of section 265.00 of this article which is registered pursuant to paragraph (a) of subdivision sixteen-a of section 400.00 of this chapter or is included on an amended license issued pursuant to section 400.00 of this chapter. Neither applies to someone simply travelling through the state to another state who hasn't fulfilled the appropriate license or registry requirements. What may apply, however, is the federal Firearm Owners Protection Act, which in part codifies 18 U.S. Code § 926A: Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console. The notwithstanding in this case preempts state law and affirms that transporting a firearm between two states that allow the person to carry that firearm cannot be a crime assuming they meet the statutory requirements on carrying the firearm and ammunition. However, he failed to meet those requirements by keeping the firearm in the glove box, which the federal law specifically does not protect. Therefore, NY State law is allowed to apply and he can be charged with possession without a license under NY State law. The part about whether or not he stayed overnight being a distinction may be a retelling error or conflating this law with similar state laws that allow transporting firearms that are inaccessible in the vehicle as long as the vehicle doesn't stop in the state beyond minor pit stops (e.g. for gas). | There is no basis for the view that requiring a driver's license is unconstitutional. First, it's critical to realize that a right to travel has nothing whatsoever to do with licensing drivers. A right to travel does not in any way mean there's a right to travel in a particular way. Likewise, using a car does not mean you're traveling. Schactman is about the right to obtain a passport, which is a requirement to travel overseas. Kent is likewise about international travel. Freedom of movement means the government cannot, without good cause (like being on parole), prevent you from traveling within the US, living where you choose, or working where you choose. Likewise, there's a right to international travel that means that without good cause, the government can't stop you from leaving the US or re-entering if you're a citizen. Requiring a drivers license to use public roads doesn't stop you from doing that -- there are other ways to travel. The Thompson v. Smith decision explicitly supports the idea that requiring drivers licenses is allowed. To quote a more representative section from the case: STREETS AND HIGHWAYS -- Right of Citizen of Travel and Transport Property -- Use of Ordinary Vehicles. -- The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day. This right is not a mere privilege which a city may permit or prohibit at will. STREETS AND HIGHWAYS -- Right of Citizen to Travel and Transport Property -- Use of Ordinary Vehicles -- Police Power. -- The right of a citizen to travel and transport property and to use the ordinary and usual conveyances of the day may, under the police power, be regulated by the city in the interest of public safety and welfare; but the city may not arbitrarily or unreasonably prohibit or restrict it, nor may it permit one to exercise it and refuse to permit another of like qualifications, under like conditions and circumstances, to exercise it. AUTOMOBILES -- Drivers' Permits -- Arbitrary Revocation. -- The regulation of the exercise of the right to drive a private automobile on the streets of the city may be accomplished in part by the city by granting, refusing, and revoking under rules of general application permits to drive an automobile on its streets; but such permits may not be arbitrarily refused or revoked, or permitted to be held by some and refused to others of like qualifications, under like circumstances and conditions. While Chicago Motor Coach doesn't seem to be available online, searching it finds other sites stating that the real issue was a commercial operator licensed by the State of Illinois, and whether Chicago, as a municipality within Illinois, could require them to also be permitted by the city. Another line from it seems to be "Even the Legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience." To quote more recent precedent, Miller v. Reed from the 9th Circuit (a federal court of appeals, not a state court) states that The plaintiff's argument that the right to operate a motor vehicle is fundamental because of its relation to the fundamental right of interstate travel is utterly frivolous. The plaintiff is not being prevented from traveling interstate by public transportation, by common carrier, or in a motor vehicle driven by someone with a license to drive it. What is at issue here is not his right to travel interstate, but his right to operate a motor vehicle on the public highways, and we have no hesitation in holding that this is not a fundamental right. (incidentally: Drivers licenses are not required by federal law. They are required by state laws.) | 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. | A problem with the question is that it uses the loaded term "victim". If you change the question to "Are there actions that you can perform involving another person, which are crimes even if the other person consents to participating in the action", then there are very many. Selling alcohol to a minor; selling heroin to anyone; selling sex in most US jurisdictions; selling firearms to a convicted felon. Also, for a physician to assist a person in suicide, in most states. Formerly in the US, various forms of sexual intercourse were acts that consent did not make legal. Whether or not the person is a "victim" in these cases is open to debate. In the case of physician-assisted suicide in Washington, the doctor is allowed to prescribe (oral) drugs that the person ingests: only a doctor is permitted to do this, both under the DWD Act and as a consequence that only a doctor can prescribe the drugs. There seems to be a belief that it is a crime to assist a person in committing suicide, which is probably correct if the assistance is shooting the person in the head, or in general directly causing the death (thus, "I give you permission to shoot me in the head" doesn't cut it). But from what I can tell, it is not generally against the law in Washington to help a person who commits suicide (e.g. supplying the means of self-dispatching). In some countries, suicide and helping with suicide is illegal, e.g. in Kenya Penal Code 225 says Any person who (a) procures another to kill himself; or (b) counsels another to kill himself and thereby induces him to do so; or (c) aids another in killing himself, is guilty of a felony and is liable to imprisonment for life. No exception is created if the person consents to being aided to kill himself. | 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. | You have accurately summed up the conundrum. There is little else to say. You need to accept that there is confusion, even within the law itself, and rely on context to establish in any given instance which meaning is meant. You will come to find that there are many instances of such confusion in the law. The historic technical distinction in the law (especially in tort law) between assault and battery has been collapsed in the everyday vernacular and this had made its way even into the way that the words are used even by law enforcement officers and legislators, who grew up speaking the vernacular language like everyone else. Where I live, in Colorado, the word "menacing" has been used be legislators to replace the historic sense of the word "assault" and the words "assault" and "battery" have become synonymous. But, in England, they are struck with a situation in which the meaning of the word "assault" has become context specific. | You don't really need any reasonable doubts about the currently available evidence to get it started. If an investigating authority thinks a crime has been committed and not yet been adjudicated, it is free to investigate, even if others disagree. There are plenty of avenues for starting an investigation: Congress can exercise its oversight power to initiate an investigation. State legislatures can do the same, so you could petition the New York Legislature, the Virginia General Assembly, or the Pennsylvania General Assembly. At both the state and federal level, attorneys general have the authority to initiate an investigation of crimes committed within their jurisdictions. At both the state and federal level, a judge's authority to appoint a special prosecutor is a power considered to be inherent in the courts, so nearly any court could appoint someone to pursue the investigation. Of course, the prosecutor's authority could be jurisdictionally limited -- if a New York state judge appointed a prosecutor, he wouldn't really have much authority to investigate federal crimes, and if a small-claims court judge in Idaho appointed a prosecutor, he'd be limited by both his lack of authority to investigate events outside his jurisdiction and the practical difficulties of enforcing a subpoena from out of state. Even at the local level, law enforcement and legislative bodies have the authority to launch investigations. If NYPD or the Somerset County Sheriff or the Arlington County Board want to investigate, they could do so. I don't know what the relevant rules are in each jurisdiction, but some states allow lawsuits for civil damages based on criminal activity. So if the gist of the sponsor's complaint is that someone used "explosives and/or incendiaries" to kill his son, it may be that he could bring a lawsuit over that, which would in turn open up the the tools of civil discovery. Of course, that's only if the claim isn't time-barred; now that we're nearly 17 years out, I'd guess that it would be too late. And there's always the possibility of continuing an independent investigation. Using the same tools that the press uses -- interviews, freedom-of-information laws, etc. -- any member of the public is free to make an inquiry into any matter of public concern. Obviously, I'd expect any of these authorities to be reluctant to take up the cause due to the investigatory consensus against the inside-job/cover-up theory, and I'd also expect -- for the same reason -- that any authority that tried to take it up would run into serious roadblocks from all the other authorities that have declined. | Since we don't have a system of robot justice, it's impossible to say whether a prosecutor would file charges in this bizarre circumstance, since filing charges is discretionary. However, this situation does fit the description of murder. It is intentional, it causes death (maybe, vide infra), it is not legally justified (as self-defense, or as an act legally sanctioned by a state executioner), the victim is a person. It is not sanctioned by any "death with dignity" statute. The one issue that might be effectively argued by the defense assuming the irrefutability of the factual claims of your scenario is that perhaps the relevant crime is assault with a deadly weapon, since it probably could not be proven beyond a reasonable doubt that the victim died from the shooting, and not from being incinerated by lava. It depends on where the person is shot, and with what. |
Does a Good Samaritan law protect a person from murder charges if they kill someone who had been violently attacking a police officer? I am wondering if Good Samaritan laws protect a person from being charged with murder if they kill a person who had been violently attacking a police officer. For example, say that a person is walking down a street and he/she comes upon a person who is violently attacking a police officer who is lying on the ground and looks to be in physical distress. If he/she then comes up behind the attacker and then puts that attacker into a choke hold, and then the attacker ends up dying from being put into a choke hold, will a Good Samaritan law keep that person from being charged with the murder of the attacker? | Good Samaritan laws are not applicable to the facts Good Samaritan laws give a person civil immunity if they render aid in good faith and that aid turns out to do harm. For example, in a person incorrectly performs CPR in a genuine effort to save a life, Good Samaritan laws prevent them for being sued if the cause damage or fail to save the life. The legal paradigm in your facts is self-defence The doctrine of self-defence extends to the protection of others and allows the use of reasonable force to do so. If a jury considers that the choke hold was a reasonable response to the situation and the maintenance of it to the point of death was also reasonable then the defendant will be not guilty. There would be a lot of evidence around this and it’s difficult to see how this would go. However, for a more straightforward situation, if the defendant verbally challenged the attacker, the attacker persisted in the attack, the defendant struck the attacker, the attacker fell and cracked their skull and died, this is likely to be self-defence. Self-defence does not prevent prosecution. It is a defence that can be raised. Of course, if it seems likely that self-defence will succeed, that may be enough to dissuade the police/prosecutor from proceeding anyway. | 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. | The non-cougher committed an unjustified assault, and could be arrested or sued for his actions. The actions were clearly not the minimal level of force needed to prevent continued assault or to effect an arrest (the dude who entered and coughed clearly is guilty of assault). This is regardless of covid. Instead, the other guy decided to beat on the first punk. The courts might retaliate against the cougher by fining him or sending him to prison: that is what the law is all about (putting the use of force under the control of laws, not individual emotion). It would be legal to use some degree of force to arrest the guy, and it would be legal to use some degree of force to prevent the guy from continuing with his assault. The puncher was not engaged in self-defense, because there was no credible continuing threat and his response was way over the top. The particular response here, vigilante justice, was disproportionate, and not justified by the circumstances. A police officer might have arrested both of them, had one been present (but police have discretion, so he might have gone with the "you started it" theory). Legally, they were both wrong. | Something pretty close happened in Arvada, Colorado recently. A "good guy with a gun" shot the "bad guy with a gun" who shot a cop. When another cop arrived on the scene, he shot and killed the "good guy with a gun" mistaking him for the "bad guy." The good guy with a gun died, so criminal charges and defenses became moot. But there was no doubt that the "good guy with a gun" was justified in shooting the bad guy, and the authorities investigating the case determined that the cop who shot the "good guy with a gun" was also justified in his actions. The shooting happened on June 21 in Olde Town Arvada. Police also released their timeline of events that can be viewed at the bottom of this article. According to police, Officer Beesley was dispatched to a suspicious person call at about 1:30 in the afternoon. When Officer Beesley was walking in the area of Weber Street, the suspect got a semi-automatic shotgun and ran after Officer Beesley. Arvada Police say that when Officer Beesley stopped to turn, he was shot “immediately” by the suspect. The police timeline then states that the suspect shot out the windows of the officer’s car, returned to his truck and grabbed an AR-15. The suspect went back to Olde Town Square with the AR-15 when he was confronted by the good Samaritan. The good Samaritan was armed with a handgun and shot the suspect. Police say that a responding Arvada officer encountered the good Samaritan ad that the good Samaritan was “holding the suspect’s AR-15.” That’s when the responding officer shot the good Samaritan. Another Colorado case in 2016 that attracted international attention involved a shootout between two biker gangs at a motorcycle show. It wasn't possible to determine who was an aggressor and who was firing in self-defense, and so, ultimately, the only prosecutions were for people who had guns that they weren't allowed to legally possess due to prior felonies or prior domestic violence cases. It is much more common for these situations to be resolved by prosecutors not bringing charges at all than it is for them to be resolved in mutual murder trials where self-defense is asserted in each trial. Also, in both of these cases, the genuinely most criminally culpable people as far as after the fact investigations could tell, were killed (although there is always a temptation to throw the dead guys under the bus). | No. This is not possible. You cannot give consent to homicide, and only the state can provide immunity from prosecution. Consent is not a "justification" or "excuse" under Oregon law, as those terms are defined in its penal code (there is nothing even remotely close in the definition of the relevant terms). Assisting suicide under Oregon law is, however, a situation which can reduce a homicide offense from murder to manslaughter: ORS 163.117 (2015) Causing or aiding suicide as defense to charge of murder It is a defense to a charge of murder that the defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this section shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter or any other crime. | This is manslaughter of the vehicular variety Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:... (c) Vehicular— (1) ... driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. This is what they call a wobbler, and could be charged as a felony or a misdemeanor. In the latter case, the maximum penalty is a year in county jail and in the former it is six years in state prison. If the cause was ordinary negligence, it is just a misdemeanor. The details of gross negligence are set forth in the jury instruction CALCRIM 592 A person acts with gross negligence when: He or she acts in a reckless way that creates a high risk of death or great bodily injury; AND A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. The "absent-mindedness" defense seems a bit far fetched, but still not everybody who drives inattentively is prosecuted for a felony, or even a misdemeanor. However, it is really hard to imagine not being acutely aware of the fact that people drive on the right side of the road here. Without a more-detailed story, I don't see a basis for deciding what level of negligence a prosecutor is likely to argue for, and what the prosecutor's agenda is: somewhere between no prosecution, and (most likely) misdemeanor manslaughter. | This is a no win situation. People who try to stop in a safe public place fearing that the cop may be an imposter risk prosecution for resisting arrest. But, no one will offer you any remedy if the cop was an imposter who was victimizing you. One recommended course of action if you doubt a cop is real is to call 911 as you pull over to confirm that the cop trying to pull you over is real. | Murder Which is the unlawful taking of a life with intent to do so. However, the doctrine of self-defence can make killing lawful: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. if the prosecutor is of the opinion that the force used "is reasonable in the circumstances" they may not lay charges. If they do lay charges the judge may decide that there is no case to answer before going to trial if self-defence applies. If there is a trial this will probably be the strategy the defence employs and they may or may not be successful. If convicted the penalty is life imprisonment. Also, there is no UK law: there is the law of England and Wales, the law of Scotland and the law of Northern Ireland. |
How does California (CA) have standing in CA vs Activision Blizzard? It's been reported that the state of California (CA) has sued Activision Blizzard as a result of its two-year-long investigation. The alleged actions are not alleged to be ongoing. It's been reported that this is a civil action. I am puzzled by what that means in this context. My limited understanding is that civil actions can only be taken to recoup damages (plus penalties for causing damages) or to stop ongoing behavior which is causing damages. But the merit of the suit is reported to be a run-of-the-mill sexual harassment, which to my (again limited) knowledge is usually litigated by the United States Department of Justice (DOJ). The DOJ is conspicuously absent from this law suit though. I understand that states can sue firms when those firms cause states to increase certain expenses (increased healthcare outlays, for example). But I am struggling to imagine what would be the increased costs to the state of CA if a certain firm engages in behavior which gives cause of action to the firm's past and current employees. So what is the legal reason for CA having standing to sue? | A government always has standing to enforce violations of its own laws in its own jurisdiction. The harm to its legally protected interest is its interest in enforcing its own laws. While the forum here is a civil action, the basic concept is the same one that authorizes a government to enforce its own criminal laws. Also, a government agency may seek fines and not merely compensatory damages or liquidated damages in lieu of compensatory damages, unlike private litigants in civil actions. A civil government enforcement action is civil in the sense that only monetary damages and injunctive relief are sought, rather than incarceration, and that the court rules for civil actions apply (and as a result, the constitutional rights of criminal defendants are not invoked). But from a standing/political theory/legal theory perspective, this is almost like a quasi-criminal action in which restitution for the victims is also sought. Many labor, consumer protection, health, safety and environmental laws authorize enforcement by a state agency through the attorney general, or in the alternative, by private litigants acting as a "private attorney general." In the area of employment discrimination, the usual situation is that you must first seek relief by filing a complaint with the appropriate agency, and then have a private cause of action to enforce your rights associated with the complaint only if and when the agency decides not to pursue the case with its own resources. The harassment involved here is being conceptualized as a form of employment discrimination that is subject to that kind of regime. This arrangement is legislatively favored because it provides a means by which people who can't afford attorneys can obtain relief. | Statutes of limitations (hereinafter "SOL") vary from jurisdiction-to-jurisdiction. If it is only one-year in New York (I've not confirmed this) that would not be surprising. SOLs exist for all civil matters and nearly all criminal matters. I'd just like to point out that your question is not really limited to defamation or to the time frame for which the specific SOL runs for libel/slander ... at least as I've read it. It seems you are asking the broader question pertaining to what the philosophical or practical purpose(s) for SOLs in general are, as well as what effect these limits can have on the ability of a would-be claimant/plaintiff to get relief through the courts. So, to answer whether a person who believes they've been defamed can still bring a cause of action after the SOL has passed: the short answer is no. But, that is only the short answer. SOL is an affirmative defense, meaning that it can only be asserted if it is pled in the answer to a complaint. So, if John Doe feels he's been defamed by a libelous statement in the Times, and he files suit 4 years after the statement was made (and the SOL is 1 year), the court will still accept the filing of the complaint and Times must still be served. You do not lose the right to file your claim, when the SOL has passed, which is a very common misconception of the law. And, Times must still file an Answer to avoid defaulting. However, in that answer Times (no doubt by and through qualified counsel) will most likely assert a variety of affirmative defenses pro forma, which will include the passage of SOL (the claim is stale). If, in fact, the SOL has passed and the affirmative defense is pled, the next thing the Times will do is file a motion to dismiss. The judge will view the complaint in a light most favorable to Doe, the plaintiff, which will lay out all the facts (including when the libelous statement was published). If the cause of action accrued (this just means when the injury was sustained) and the claim was not filed prior to the expiration of the SOL, Doe's case will be dismissed. If the Times does not assert SOL though, it is deemed to have been waived for that and any subsequent related proceedings. There are ways to toll (extend) the statute of limitations. There is a discovery rule (this does not mean Doe didn't read it until after the SOL, even though he was able to). It means that the SOL can be tolled in cases where one could not have discovered the tort occurred. In these instances, the SOL doesn't begin to run until the discovery was either made or should have been made. This is most typically seen in medical malpractice cases (e.g., a surgeon leaves a sponge or instrument in your abdomen, and after years of failed treatments for IBS your doc sends you for an x-ray and an MRI and it's discovered) or in asbestos cases (you don't know you breathed it until you have asbestosis) – those types of scenarios. In cases like that, the SOL begins to run when you find out the tort occurred. This has also been successful in recovered memory cases where childhood sexual abuse occurred but was suppressed. Incapacitation is another way the SOL can be tolled. So, in Doe's libel case, the SOL can be tolled if he is incapacitated (in a coma and didn't wake for 4 years, in a mental hospital in a break from reality for 5 years) – in such circumstances you can still file a claim and have it survive a motion to dismiss based on SOL once you are rehabilitated. Also, Absence due to military service is reason to toll in some jurisdictions. Lastly, (at least the last one I can recall) is that minors can often toll the SOL however long the statute is (say 1 year) after they turn 18. As for why there are SOLs: That is more public policy than anything else. It is one of the oldest rules of law known to modern man, dating back all the way to early Greek and Roman law. Statutes of limitations are a fundamental part of EU and US law, as well as most other modern legal systems. They function to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become dubious and unclear due to the progression of time, which can lead to lost or uncertain memories, death of witnesses (for each side), or disappearance/inability to locate witnesses. The policies behind SOLs are also for judicial economy and to protect defendants from having a never-ending potential suit looming over them. Often, the seriousness of the crime or the tort, or some element of it, dictates the time frame of the SOL. It is a means to ensure that plaintiffs pursue their claims with reasonable diligence: I.e., if it matters to you, file it. Also, as I touched on above, time disadvantages defendants. Plaintiffs are the "injured" party, so they tend to retain evidence much longer than a defendant, who might not even realize he has done wrong – especially in civil matters. So, in a libel case, the whole basis of the claim is the irreparable damage to your reputation. If more than a year has passed and you didn't know about it, one could assume the damage never rose to the level of having sufficed to make a valid claim in the first place. That is why they run fast in those cases. They run fast in medical malpractice claims too, but this is a result of tort reform – the public policy that litigation against doctors/hospitals causes increased health care costs for everyone. So, policy suggests it's best for society to dispose of these claims quickly (not so much if you're the plaintiff). Whereas most regular negligence claims can have SOLs as long as six years in some jurisdictions where I have practiced. So there are clearly policy determinations going into these legislative acts. The Golden Rule of Law that I tell all of my clients is this: If you think you have a claim, talk to a lawyer right away, because if you don't you can lose the right to pursue relief, much, much quicker than one may ever imagine! I know this is a long answer, but I get asked this (type) of question all the time. Plaintiffs feel the SOLs run too fast, while Defendants cannot believe they can still be on the hook! | My findings so far are: It does appear to be against public policy at least in California and Oregon. In California outlawed statutorily — Ins. Code § 533 provides: “An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured’s agents or others.” Also on point is Civ. Code, § 1668: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law." Affirmed, for e.g., in Tomerlin v. Canadian Indem. Co., 61 Cal.2d 638, 39 Cal. Rptr. 731, 394 P.2d 571 (Cal. 1964) “[A]n insurer may not indemnify against liability caused by the insured's wilful wrong (Civ. Code, § 1668; Ins. Code, § 533; see, e.g., Abbott v. Western Nat. Indem. Co. (1958) 165 Cal.App.2d 302, 305 [ 331 P.2d 997])” In Oregon, Outlawed by case law: “Despite variations in the language of the policies, this court has interpreted various policy provisions excluding insurance coverage for intentionally-caused injuries similarly. [...] For an exclusion from insurance coverage for intentional conduct to apply, "[i]t is not sufficient that the insured's intentional, albeit unlawful, acts have resulted in unintended harm; the acts must have been committed for the purpose of inflicting the injury and harm before either a policy provision excluding intentional harm applies or the public policy against insurability attaches." [Citation.]” Ledford v. Gutoski, 319 Or. 397, 877 P.2d 80 (Or. 1994) | In all but a few U.S. states the answer is that you are not entitled to any compensation. This is grossly unfair, but is the dominant rule by far in most jurisdictions in the U.S. As a matter of legal doctrine this is justified on the grounds that a criminal prosecution requires proof beyond a reasonable doubt, and many people who are actually guilty may be acquitted anyway because the standard of proof in a criminal case is so high. The classic example of that distinction is the O.J. Simpson murder case, in which O.J. Simpson was acquitted of murdering his wife in a criminal prosecution, but was found liable for murdering her by the lower civil action preponderance of the evidence standard in a wrongful death lawsuit brought by her family. (In reality, most acquittals involve juries who think that the defendant was innocent, but that isn't reflected in the choice before them to convict or acquit a defendant.) The only compensation to which you are entitled as a matter of law if you are acquitted of a crime, per the U.S. Supreme Court, is a refund of any fines or costs payable only upon conviction of a crime, which you paid or had taken from your assets, prior to your acquittal. See Nelson v. Colorado, 581 U.S. ___ (2017). There would an exception if you can show that a law enforcement officer intentionally brought charges without probable cause in a civil lawsuit you bring against the law enforcement officer, which is realistically impossible in almost all cases. (Prosecutors and judges and jurors (see, e.g. here)) have absolute immunity from liability for their official acts related to the court process.) There are a few jurisdictions where you could bring a civil lawsuit for compensation based upon "actual innocence", rather than law enforcement misconduct. In those places, you could receive compensation if you could prove by a preponderance of the evidence (or with a prosecutor's affirmation) that you were actually factually innocent, so you could get some compensation even in the absence of an intentional violation of your civil rights. Texas is one state that has such a scheme, with important limitations, as explained in this linked case. You would probably have to hire a lawyer with your own funds to bring either kind of lawsuit, and realistically, you wouldn't have been incarcerated for eight months pending trial if you had enough money to do that, because you would have posted bond and been released pending trial. There may be one or two states (I can't recall any from memory) where there might be a right to compensation merely because you are acquitted, but this would be an extreme outlier in terms of U.S. law. Outside the United States, outcomes could vary dramatically from one country to another. They relevant law in England and Wales is discussed in an answer to this question at Law.SE. International human rights law does not recognize a right to compensation in these circumstances. | Question 1: Some of the more recent questions from December 2016 on this on Avvo.com replying to a question on Los Angeles Small Claims courts: "[T]he likelihood of any small claims judge in LA awarding them to you is slim." And another answer: "Yes you can if the claim is $10K or less." Another California lawyer on Avvo in 2013 replying to a San Francisco, CA question: "I have seen cases where punitive damages have been awarded in small claims court. You can always request and try to offer evidence that you feel warrants such a finding" (one additional lawyer agrees) And another licensed in California to the same question: "Punitive damages are available in Small Claims [but] if you do not ask for it, it cannot be awarded." Another one from 2010 to another question: "You can, up to a maximum claim of $7,500. Punitive damages are based on the net wealth of the defendant, so normally litigants don't request any amount, since the amount depends on the defendant's financial disclosures." Question 2: In Indiana: "If punitive damages are awarded, the TOTAL of all monetary damages CANNOT exceed the Small Claims Court's jurisdictional MAXIMUM award" According to another attorney in California from March, 2019: "You can sue for up to $10,000.00 in small claims, and pray for punitive damages up to that amount." So, attorneys in California seem to agree that punitive damages may be awarded in Small Claims court in California if: You ask for punitive damages, and ask for them timely up to no more than the jurisdictional limit, and probably without stating an exact amount; Serve the claim as required for the court on the other party; If you can prove by clear and convincing evidence that the conduct was despicable, fraudulent, oppressive malicious or outrageous; If you can prove the net worth of the defendant which could warrant the award. | What you are referring to is a Rule 68 (FED. R. Civ. P. 68) offer of judgment (OOJ). Thus far, nearly every jurisdiction's court of appeals has refused to construe these as being binding on the Plaintiff if the offer is denied, even if it offers complete remuneration, especially in a putative class action. The underlying reasons when applied to a certified class differ fairly substantially from an individual plaintiff or a non-certified class. However, there are some kinds of cases where a Rule 68 offer could never fully compensate (as with cases where subjective or non-substantive forms of damage have been requested). A Rule 68 offer is a cost-flipping mechanism, often used by defense attorneys when they are making what they believe is a fair offer (very rarely is the offer one that is equal to the Plaintiff's demand, which is why this issue rarely arises). If a defense attorney makes an offer of judgment, and then the Plaintiff doesn't accept the offer, they need to get a jury verdict in an amount greater than the offer, or the costs are flipped. So, typically, if there is no OOJ and the Plaintiff wins even a nominal judgment (it can be a dollar) the Defendant always has to pay their costs, which can be substantial. When a Rule 68 offer is made, it's a carefully calculated amount that the defendant thinks the plaintiff can't get in a jury verdict, even if they win, but it's typically less than the demand. The reason a Rule 68 offer is almost never "full compensation" is that a Plaintiff's demand for settlement will typically be somewhere in the area of 3x the amount the Plaintiff's attorney estimates the case to be worth. The Plaintiff is informed of this by their lawyer, so they don't have unreasonable expectations. If you think about it, this makes sense from an ability to negotiate perspective, with the logic being that the Plaintiff wants to get as close to full value as they can, and the defense needs their client to think they've saved them from some huge judgement. If a plaintiff demanded only what the case was worth, it would have no chance of settling for true value, or if the case were to settle, the Defense lawyer wouldn't be able to move the Plaintiff down off their number in any substantial way. This way, the lawyers can play their game negotiating the case down to a fair value. Plaintiff gets what their case is worth and Defendant feels like their lawyer saved them from catastrophe. It's all illusion. The First Circuit recently joined the Second, Fifth, Seventh, Ninth, and Eleventh Circuits in holding that a Rule 68 offer made prior to class certification and rejected by Plaintiff does not moot the Plaintiff’s claim. The Plaintiff, a private high school, brought the action against the corporate developer of a college-entrance exam, alleging violations of the Telephone Consumer Protection Act and an analogous state statute related to unsolicited faxes it received. Prior to Plaintiff’s deadline to move for class certification, the Defendant made an Offer Of Judgment, offering Plaintiff the amount it could receive under the two statutes for each fax. Plaintiff did not respond within 14 days, rendering the offer withdrawn under Rule 68, and instead moved for class certification. Defendant then moved to dismiss, arguing that the withdrawn offer rendered Plaintiff’s claims moot and divested the court of subject matter jurisdiction. The district court denied the motion, holding that Plaintiff’s claim was not moot, but certified the question of whether an unaccepted Rule 68 offer, made before certification, moots the entire action and deprives the court of jurisdiction. Generally speaking, aside from very specific types of cases involving contracts, or specific types of statutory relief, a Plaintiff typically includes counts for things like NIED (negligent infliction of emotional distress), pain and suffering, loss of consortium, loss of future earning capacity – these are a few of the types of counts whereby there is no specific value a defendant could ever point to being "fully satisfied" – the reason being, a jury needs to determine the legitimate value of these claims unless the Plaintiff accepts a settlement award whereby he/she/it feels as if it's fully satisfied. | 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. | This case was filed in federal court under diversity jurisdiction, meaning that it’s a lawsuit between citizens of different states. In most cases, diversity jurisdiction requires “complete” diversity: every plaintiff has to be a citizen of a different state than every defendant. If one of 12 plaintiffs is a Maryland resident and one of 15 defendants is also a Maryland resident, that tiny overlap means the entire lawsuit is kicked back to state court. In this case, the defendants are an Ohio fraternity, an Illinois resident, a Wyoming company, and a person whose residence is unclear. Defendant Smith might be a Wyoming resident, a Utah resident, or a Washington resident. The plaintiffs aren’t sure. However, as long as the plaintiffs aren’t residents of any of those states, there’s complete diversity of citizenship. It doesn’t matter whether Doe II is from Alaska or Florida, just that she isn’t from the same state as any defendant. |
Are children allowed to pray at goverment schools? I was once told on the internet that there is no actual ban on religion at government schools in the US. The issue is actually that public school teachers are considered agents of the state and are therefore expected to refrain from religious activities whilst operating in their official capacity. So children praying at schools is not illegal as long as no agents of the state (e.g. teachers) participate. I was wondering if this was accurate though? | This is roughly accurate, but there are nuances. The real US issue with teacher-led prayer is that a teacher's authority can make it effectively coercive, or seem so, even if this is not intended by the teacher. (And in the past it has often been so intended, by teachers and administrators who thought it was good for children to be required to engage in prayer.) There is no ban on a teacher praying privately. Similarly, there is no ban on private prayer by a student. Indeed such a ban (for either teacher or student) might violate the free-exercise clause of the US constitution. Of course a student should not be engaged in prayer when s/he is supposed to be doing classwork, but there are times during the school day available for prayer. However, public, student-led prayer can also be an issue. For example, at some schools it was customary to have such public prayer at the start of football games, or school assemblies. This official designation of a moment or occasion for prayer was challenged as an endorsement of prayer by the school, and as coercive to those who did no want to participate, but might feel strong social pressure to do so. The point is that the school, as an aspect of government, and one where students are required to attend at that, should not make prayer an expected norm, resulting in singling out those who do not conform. But no US law or court decision has ever forbidden private prayer in schools by students, or indeed by teachers. | If it is not actually in the contract, it cannot be considered to be a breach of contract. There are two kind of private schools: approved, and non-approved. An approved private school is subject, in Washington State, to Chapter RCW 28a.195. The state board of education can take action against an approved private school which does not conform to the applicable regulations. This does not create a private cause of action, so you cannot sue the school for violating the regulation, instead you complain to the BoE, who may take action, and if the issue is not corrected, the approval may be withdrawn. The advantage of being an approved school is that this satisfies the compulsory education statute, unlike your local Sunday school, nursery school, or any other kind of things calling itself a school. This does not preclude the possibility that a contract with a private school will include some clause to the effect that the school promises to comply with BoE regulations. This page provides a collection of possibly real enrollment contracts – my cursory reading did not locate any promise to adhere to state regulations There is a separate question herein, that it may be deceptive advertising to imply that you are an approved school when you are not approved. | I wouldn't say that it "trumps state law". Indeed, the State of Georgia, either expressly by statute or through the common law, establishes that teachers and school administrators have the authority to create rules and regulations governing the conduct of students that are not themselves unconstitutional as applied to students, although, in general these consequences can't resort to criminal punishments. Instead, typical punishments include detention, suspension (in school or out of school), expulsion, and adjustment of grades for an assignment or a course. Marks in one's disciplinary record and public shaming, forfeiture of eligibility to participate in school sponsored extra-curricular activities or honors (including marching at graduation), refusing to release transcripts, and historically (but much less so in recent years) corporal punishments such as spanking, have been options for schools to enforce their punishments. A prohibition on recording in a syllabus certainly wouldn't result in criminal punishments, and probably wouldn't even give rise to civil liability. Depending upon the purpose for which the recording was being used, it is even conceivable that the school's right to punish someone for violating a school rule could be estopped by First Amendment and whistle blower protection law considerations (e.g. if it was used to document harassment and discriminatory conduct for use in sharing with the school board or law enforcement or publishing on radio or TV or an Internet news source). But, the mere fact that conduct is legal outside a school setting does not mean that a school cannot prohibit and punish that conduct in its own rules. The closer case, upon which there is more division of legal authority, is under what circumstances a school can legitimately punish conduct away from school, for example, uploading rap lyrics about a teacher to YouTube from home without using any school resources to do so. | The First Amendment states Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. It thus protects such videos. An analogous situation is that there is network news coverage of riots, bank robberies, terrorist attacks and assaults. Backpage was seized because it facilitated prostitution, not just reported or even encouraged it. That is basically where the line exists. | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | Crime and disorder act 1988 s32 introduces religiously aggravated harassment which effectively extends S2 and S4 of protection from harassment act. This seems to completely nullify the protections of the behaviours allowed by s29J of racial and religious hatred act 2006. I don't understand how you arrive at that conclusion. Harassment is unwanted behaviour repeatedly targeting a particular individual or connected group of individuals (e.g. a family or members of a particular club or place of worship). "Religiously aggravated" means it has a religious component and adds to the sentence. For example, standing outside a place of worship every day, shouting at the coming and going individual(s) "you Christian/Jewish/Muslim scum." https://www.cps.gov.uk/legal-guidance/stalking-and-harassment Commenting or joking about Christianity/Judaism/Islam generally is entirely different behaviour and has the 29J defence. | This potentially (i.e. almost certainly) runs afoul of laws against religious discrimination. However, you can have such a requirement provided you make an accommodation for those with sincerely held religious beliefs or practices against bacon-eating. You can also have such a requirement (despite the beliefs) if not having the requirement imposes an undue hardship on the business. For example, if the job is "bacon taste-tester", then there's no reasonable accommodation. This applies to religious objections, since religion is protected class, but not "I don't like bacon" as an objection; nor does this apply to people who object to meat-eating on economic grounds. | Does criticizing public figures constitute libel especially in a private group? It depends on the specifics, but a priori your description suggests that the defense of honest opinion would be applicable. This is regardless of whether the subject is a public figure and regardless of whether the statements were in private --albeit non-privileged-- communications. Case law surely provides guidelines or precedents on how the details and circumstances of the events would fare on the parties' legal position, but I am not knowledgeable of UK/English law. Does X have a counterclaim for illegally accessing the data? The matter seemingly depends on how the religious leader had or gained access to the data. Even if he gained access by stealing or hacking a device or account, X would not have standing to [counter-]sue unless the device or account belongs to X. Be mindful of the possibility that third party might have made the disclosure to the religious leader. In that case, actionability (if any) of the disclosure only encompasses the third party, not the religious leader. X's intent that his statements stay only among the participants does not necessarily imply that participants' disclosure elsewhere is unlawful. |
I live in a city and I walk my dog on community college campus they come out say that it is policy not to have dogs on campus The retort I had is that this is not posted anywhere, and even if it was what legal enforcement does the campus have against me. They can't find out who I am, They can't detain me. They can't hold me until police arrive. So how would they enforce that policy. After it escalated to that level what penalty for trespassing would there be, and can I even trespass on public property. | You were trespassing The community college is a public institution but they can decide what part of their land you can walk on and in what circumstances. Just like the military is a public institution but they don’t let you walk across their shooting ranges. To be clear, in the absence of clear “no dogs allowed” signage, you were not trespassing until you were told about the policy. At that point, you were legally obliged to remove yourself (or more precisely, your dog) from the campus as soon as possible. When you refused to do so, you became a trespasser. It’s trivially easy to find out who you are. One photograph, one reverse image search they’ll know everything about you right down to your shoe size. Even if you don’t use social media, I’m sure some of your family and friends do. In most US states, trespass is a misdemeanour and also in most states members of the public can arrest someone who is committing a misdemeanour in their presence. They can use reasonable force to do so and can hold the arrestee until they can transfer them to the custody of a law enforcement officer. Admittedly, this seems unlikely but it is possible. If you have caused damage, you can be sued. It seems that your discussion with the college staff was somewhat protected so the loss of productivity of those staff members is a loss that the college suffered and that they could sue you for. Again, not likely but possible. Alternatively, they could just report you to the police who may or may not bring charges. Note: this assumes the dog is a pet. If it’s a disability assistance animal, it can’t be excluded. See: Are sidewalks on a university public or private property? Can a local government charge a fee to enter a public downtown area during an event? Trespassing or Public Property? Is a mall considered a "public place" for copyright purposes? | 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). | It depends on where you live, but "restrain" doesn't mean telling a person that they have to stay put, it implies either a physical blockage (locking the door) or a threat of force, and neither of those are present or suggested by the sign. We don't know what the consequences are, for example they might report you to your parents or even restrain you if you are a minor (that's who is in most "gym classes"). If you are an adult, the consequence could be some contractual sanction (read the contract) or termination of the contract for breach (read the contract). You can simply ask a supervisor how they intend to enforce this restriction. | While the elements of criminal trespass vary from one U.S. state to another, the majority rule is that a good faith belief that you have a claim of a legal right to be present on property (even if you are ultimately found to be incorrect on the merits) prevents you from having the intent necessary to commit criminal trespass. The majority rule is that there is strict civil liability for trespass without regard to intent, but the minority rule that civil trespass is an intentional tort isn't terribly uncommon either, in which case criminal and civil liability for trespass would often be the same. Given the legitimate possibility on reasonable grounds that someone inside some given building is not actually supposed to be there, how might this apply to the law about it being mandatory to leave? What if you claimed you either did not think they were really in charge, or that you simply had no way of verifying? This is irrelevant. The burden is on you not to go into property where you are not allowed to be, and not on someone else to tell you to leave. If you know you have no right to be on the property, the fact that you believe someone else may also not have the authority to control who is on the property is not a defense to criminal trespass. You can be guilty of criminal trespass in most jurisdictions even if no one asks you to leave, if you know that you do not have permission to be on the property. Lack of permission is the default in the absence of someone with apparent authority to do so telling you otherwise. | No, the minor cannot be in violation either being on the property of residence or the sidewalk in front of that property. Montgomery County Curfew Law: Section 1-2 (Offenses): (a) A minor commits an offense if he remains in any public place or on the premises of any establishment within the unincorporated areas of the county during curfew hours. Section 1-3 (Defenses): (a) It is a defense to prosecution under Section 1-2 that the minor was: (1) Accompanied by the minor’s parent or guardian; (2) On an errand at the direction of the minor’s parent or guardian, without any detour or stop; (3) In a motor vehicle involved in interstate travel; (4) Engaged in an employment activity, or going to or returning home from an employment >activity, without any detour or stop; (5) Involved in an emergency; (6) On the sidewalk abutting the minor’s residence or abutting the residence of a next-door neighbor if the neighbor did not complain to the police department about the minor’s presence; (7) Attending an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor, or going to or returning home from, without any detour or stop, an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor; (8) Exercising First Amendment rights protected by the United States Constitution, such >as the free exercise of religion, freedom of speech, and the right of assembly; and (9) Married, had been married, or had disabilities of minority removed in accordance with Chapter 31 of the Texas Family Code. (b) It is a defense to prosecution under Section 1-2 (c) that the owner, operator, or employee of an establishment promptly notified the Montgomery County Sheriff’s Department, or the appropriate Constable’s office, that a minor was present on the premises of the establishment during curfew hours and refused to leave. Your property is not public, so you cannot be in offense of this ordinance being on your private property. You also cannot be in violation being on your sidewalk (or a neighbors sidewalk if that neighbor has not called police on the offender). | I was swimming in a college owned pool... That's one of the important details; you're either college students or visitors on a campus, and you are bound by the student conduct code or other safety laws set in place by the college that dictate behavior on the college campus. Check with the college about the rules that involved the pool. Campus laws and regulations can differ greatly, depending on if the college is private or a public institution. The other detail is that the lifeguard has been given authority to control behavior in the pool as an agent of the owner of the facility (the college) with all authority that the college has to regulate the pool. Be using the pool, you have entered into an agreement with the owners of the pool (the college) and that the lifeguard has authority in that area. Look around for a sign near the pool or in the locker rooms that outlines the rules and regulations of using the pool. | 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. | Trespass to chattel The TV is owned by the store or restaurant. You are not allowed to use it or manipulate it. So you commit Trespass to Chattel, which is "the use of property without permission of the owner" and a common law tort. To prove Trespass the store would need to show: You intended the trespass on the chattel, in this case, by turning off the TV. That can be proven by you owning the TV-B-Gone and using it. You deprived the owner's use of the chattel for a substantial time, which in the case of a sports bar might be any moment of the game, especially if the bar is allowed to run sports bets. in the case of the sports bet bar, you might even have created harm to something that the bar has a legitimate interest in. The Sports Bar might have the much easier case, while the store might not be able to prove the required deprivation of the chattel or damage caused by turning it off. Similarly, if a TV-B-Gone turns off a public CNN monitor at an airport though, you created harm because CNN would need to send a technician to turn it on again - the remote controls are only with the technicians, not in place. Do note that because of TV-B-Gones many such displays are installed in shielded boxes, or have been modified to not register to remote controls at all. Most sports bars don't even have a TV there, it's a computer monitor that is fed from a stream. However, if it's store advertisements... I doubt you turning it off would have caused the substantial deprivation to qualify as trespass to chattel. And while TV-B-Gone is just a tort... Don't you dare to run a cellphone jammer: Well, Cell-Phone-B-Gone could be done, but it’s illegal. One way to do it is to create a very low power fake cell transmitter, and the phone call would be gone. But disrupting a cell phone service is illegal in and of itself. - Mitch Altman, inventor of the TV-B-Gone in a 2006 interview |
Can someone deny cash as the payment method? There are a few restaurants in my area where cash payments are not accepted. They only accept electronic payments such as credit cards, local debit cards, etc. Is this legal? On most currencies, it is written on the note something along the lines of "this note settles X dollars of debt". If a customer offers to purchase a product or settle the bill for a service they have consumed (e.g., food already is eaten, gas already pumped into the car) via cash, can the seller deny it? On a related topic, must business entities accept cash for invoice settlements? I know that the party receiving the payment can charge a "reasonable fee" for processing the cash (e.g., thousands of coins). Can they, for example, demand the debt be settled by bank transfer only? | The Bank of England actually makes this pretty clear with the following line: Legal tender has a very narrow and technical meaning, which relates to settling debts. It means that if you are in debt to someone then you can’t be sued for non-payment if you offer full payment of your debts in legal tender. Essentially, if you are in debt (frequent examples are a taxi ride or a meal at a sit-down restaurant) then you can use legal tender to pay off that debt. But that doesn't necessarily mean they have to accept it. It only means that they cannot sue you if they do refuse to accept it. But the refusal wouldn't itself alleviate the debt either. They could technically return to you at some point and say "ok, fine, we'll take the cash" and you'd still be obligated to provide it to pay off your debt. It's also worth emphasizing that this only applies to situations where the payment is to alleviate a debt, for services that have already been provided before you are billed. It would not apply while buying groceries at the supermarket. Even restaurants where you pay for your food up-front and then receive it afterwards can refuse cash payment. In those situations the services are prepaid and you are not ever alleviating a debt. | It is legal. 18 USC Chapter 17 contains laws regarding what you can/cannot do with US legal tender. It doesn't mention anything about buying, or selling US tender at or above the face value. And there are several businesses in the USA that do this (coin exchanges which purchase coins at less then face value and give you dollar bills in return, etc...). However I would be concerned that your action might look like money laundering to the customs official on your way back home. Or on the way going to the foreign country for that matter. Which could be very bad for you. I would talk to a lawyer about this. | Don’t ignore the debt collects In most jurisdictions, your failure to pay can and will be recorded on your credit history. This may affect your ability to obtain finance or the rate you pay for it. For credit reporting, there is no need for the creditor to prove the debt before doing this. For example. In general, you are not legally allowed to default on a contractual obligation (i.e. not pay the bill) even if the other party has defaulted on theirs (i.e. failed to complete the work). It is not clear that you have explained to the contractor that you are withholding the remaining payment until they have fixed the alleged defects or if you have just not paid the money. When you have a contract dispute you need to be clear and take active steps to resolve it. Perhaps head office thinks all these items have been resolved. Perhaps you think they are defects or omissions but they are actually within normal tolerances or are exactly what you contracted for. Unless you talk to them, you can’t resolve it. When you have set out the disputed items, given them a time to fix them, told them you will pay when they are fixed, and possibly set out an alternative method of resolution (like you accepting the defects for a 5% discount) then you have a bona fide dispute. At that point you can tell the debt collector this and they must stop pressing you and remove your name from the credit reports. | "One day and that day may never come" If a company never invoices me, am I obligated to do anything? No (given that they know how to contact you i.e. you are not evading being invoiced). That said, you will still owe the money. When/if they ask it to be paid, you will need to pay. But there is no need to proactively bug them to take the payment. Until invoiced, you can enjoy the money as a zero-interest loan. | Disclaimer: I am not familiar with US law, so this answer is from a general perspective. It should apply in most jurisdictions, though. Are there any laws or regulations which I can use to convince a hospital's billing department to talk to me, despite the fact that they have a clear policy otherwise? No, I don't think so. A company or organization is generally free to decide for themselves who will or will not communicate with you - I don't think there is any law giving you a right to choose. How would this even work? What if the people you ask to talk to are overworked, on vacation or just not qualified? However - you do have another, more important right: To be considered valid, a bill must provide credible evidence that the charges are justified. You cannot just ask someone to give you money, you must actually provide a reason why you are owed money. In this case, this means the hospital must send you a bill that you can understand and verify. To get this: First, stop bugging them over the phone. Once a point is reached where legal action seems likely (like in your case), any information you get is only really useful to you when in writing. So do everything in writing. It's fine to talk to them if it helps solve the problem - but insist on getting things in writing afterwards. The first thing you need to write is a formal letter that you refuse to accept the bill, because you cannot verify it. Outline in details what parts you cannot understand/verify, and ask for the information you need (such as what the codes mean). Once you have received a satisfatory explanation of the bill (which may take multiple letters), you go through it with a fine comb, and dispute any items that you think are unjustified. You may need the help of a lawyer to exercise these steps, but in principle you can probably do it on your own, too. Whether you get a lawyer is ultimately a trade-off (making a mistake may cost you money, but hiring a lawyer costs money, too). A first consultation with a lawyer is probably not too costly (ask first!), and may help you to decide whether you need more assistance. | If there is no written contract, why not just respond to their invoice with a letter stating you do not intend to pay because the trial was free so you don't owe anything. If they attempt to collect, make the same case to the court. Then the burden is on them to prove otherwise. Which, if there is no written contract agreeing to pay an ETF, might be difficult for them to do. Be careful about surreptitiously recording phone calls without the other party's knowledge or consent. In some jurisdictions this is illegal and can subject you to criminal prosecution. | Essentially, if there is no written agreement or receipt of payment, the only records that exist will be in the payment itself. If it was paid by cash, there's probably no recourse without additional facts. However, if it was paid electronically, then even if there's no narration (description) that claims that the payment was for rent, it is still possible that you would be able to file a summons requiring the recipient bank to produce the information relating to the entity that holds the account the money was sent to. The information they have may be limited, but generally this would include: Name Address Date of birth (for natural persons) Phone number The above information is typically required under anti-money laundering and counter-terrorist funding legislation. Additionally, if it was paid electronically, the regularity of the payments and the regular amounts may be persuasive. Finally, it's not proof, but you can swear an affidavit or a statutory declaration attesting to the truth of your assertions, but without additional evidence (the aforementioned transaction information), it doesn't really hold weight on its own. | If a business literally has an "exact change only" policy, that can't be enforced in post-pay situations. But if they have a "you are free to overpay, but we won't give you change back", that's different, especially if it's communicated from the beginning. If they tell you they don't give change, then you're taking their goods/services implicitly agreeing to their terms. |
Can state secrets be revealed in a criminal lawsuit? Imagine if there is criminal lawsuit against a CIA agent before a U.S. court. To defend himself, he needs to reveal secrets. For example, he would need to reveal other CIA agents whose lives would be threatened if their names become public. He has the option to remain silent, but if he did so he would not be able to defend himself. What is the protocol in such a case? Is he allowed to reveal that information? | There is a state secrets doctrine that as a practical matter prohibits the litigation is issues in which state secrets figure in the case in a civilian court that is open to the public by dismissing the case. "The state secrets privilege is a common law evidentiary rule that allows the government to withhold information from discovery when disclosure would be inimical to national security." Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 546 (2d Cir. 1991). It was recognized as a common law privilege in United States v. Reynolds, 345 U.S. 1, 7 (1953), and is usually invoked in civil lawsuits, but is not inherently so limited. Of course, the federal government has the authority to waive the privilege in order to allow a criminal prosecution to go forward. Among other things this doctrine means that covert operatives are not allowed to bring lawsuits for unpaid compensation against the government, even if they have a solid case on the merits. | 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) | If there's a reason to believe that your machine has data that would be relevant to a lawsuit, then yes, it is subject to inspection under Fed. R. Civ. P. 34: A party may serve on any other party a request ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: ... any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. So if there's a lawsuit where there becomes a question about what you downloaded from the network, then it's quite plausible that your device could be demanded or subpoenaed. But that's not the same thing as "forfeiting" your device. The normal procedure in such a case would be that the agency's lawyers would notify you of the demand, and you would take your device to an ESI expert, who would make a digital image of the device's hard drive. The parties would then fight about what portions of that image they are allowed to access, but you would have your device again while that was going on. | There are cases out there like Unnamed Petitioners v. Connors, State v. Unnamed Defendant, Williams v. Unnamed Defendant; there have been indictments of John Doe who was only identified via a DNA profile. Not knowing the actual name of a person wouldn't pose a problem per se, and it seems that when the name is not known, John or Jane Doe is generally filled in. There was in instance a year ago in the UK where rioters who refused to identify themselves, and prosecution decided to drop the case. | You do need to know the location of both parties. U.S. Federal law (18 USC 2511(2)(d)), which prohibits the interception of wire and electronic communication, states: It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State. California Penal Code 632 requires the consent of all parties to a confidential communication in order for the conversation to be recorded. The statute defines a "confidential communication" as follows: The term “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. Once AT&T, or anyone else for that matter, states that the communication is being recorded, it is no longer considered a confidential communication requiring the consent of all parties in order for any party to record it. Part of the California Civil Jury Instructions for this code requires that the plaintiff must prove, among other things, that the plaintiff had a "reasonable expectation that the conversation was not being overheard or recorded." You can see the full jury instructions here: https://www.justia.com/trials-litigation/docs/caci/1800/1809.html | There is no exception arising from the Espionage Act, indeed in Gorin v. US, 312 U.S. 19, one of the holdings is that "In a prosecution under §§ 1(b) and 2 of the Espionage Act, the jury determines whether the acts of the defendants were connected with or related to the national defense under proper tests laid down by the instructions". This does not mean that the prosecution will not be eager to avoid the possibility of jury nullification and may hope for a bench trial. Here is the transcript of the jury verdict in the trial of the Rosenbergs, and another report of an espionage conviction in a trial by jury. There is no evidence that Assange "would not be afforded a trial by jury" if he requested it. | In a trial by judge (bench trial) that could certainly happen. Most substantial parts of the judicial process can be sealed, under numerous laws and theories. The U.S. FISA "Court" is notorious for operating virtually entirely in secret. Various laws allow for secret subpoenas or warrants, with the subjects on which they are served held criminally liable for violating the court's order for secrecy. In a trial by jury it would probably be impossible for an exonerating fact to be presented to the judge only, since the proper role of the jury is to decide all questions of fact in a case. Furthermore, a court can compel a witness to testify, with no requirement to mitigate the damages of such testimony. However, if the accused knew that an exculpatory fact could be provided by a witness, and that the witness might decline to give (honest) testimony to a jury, he would presumably waive his right to a jury trial, at which point the testimony could (in theory) be given only to the judge. | Generally, irrespective of charge, there is no 'shield laws' in the UK legal system. Any such provisions are a matter of discretion for the judge on the same grounds as the admissibility of evidence. Though the following case relates to a murder case rather than rape, it does provide justification for the lack of 'shield laws'. In R v Davis [2008] UKHL 36; [2008] 1 A.C. 1128 (henceforth Davies), as described in para 3, per Lord Bingham, the witnesses were subject to extensive protective measures, as 'they claimed to be in fear forth their lives if it became known that they had given evidence against the defendant'. [Tom Bingham, The Rule of Law (2011 Penguin) 99]. The case addresses issues at the time of the original hearing. However, more recently, there have been statutory provisions for anonymity of witnesses, specifically section 86 of the Coroners and Justice Act 2009. This enables witness anonymity orders to be made, however there are specific requirements that can be found in subsequent provisions of the Act, but there is no common or absolute protection of victims or witnesses. A closing note regarding the 'victim' in the rape case, it should be noted that in the UK legal system, as criminal cases are brought by the CPS on behalf of the Monarch, not the victim and as such the victim is, for all intents and purposes, a witness. |
Under what circumstances can you be convicted of indecent exposure for being naked in a California changing room? Recent events have seen a person (with a history of sexual offending) charged for indecent exposure in the changing room of a nude spa in Los Angeles. However, I am confused because surely a changing room necessarily involves the nude exposure of body parts not ordinarily exposed. Under what circumstances can you be charged with indecent exposure in a setting where nudity is necessary in California? | That would be when he does so willfully and lewdly. Simple nudity is not illegal. See for instance in re Dallas W., where the court found that sexual intent is necessary: "'something more than mere nudity' must be shown", citing In re Smith (1972) 7 Cal. 3d 36. A propos this incident, the reported partial erection is not irrelevant. | In the US, does a person photographing private property (houses, farms etc.) while standing on public ground (road, park etc.) commit any offence? No. In general, while standing on public land, it is legal for your eyes to glance onto everything around you. You cannot be arrested and imprisoned for allowing your gaze to pass over your neighbours lawn. It is legal for you to take out a tripod, canvas and paintbrushes and paint the general scene, even if it includes, for example, a tree standing on private land. Instead of a paintbrush, you may use a camera to create a picture of the scene. There are a few exceptions Some military installations Some installations operated by the department of energy (e.g. some nuclear power stations) You cannot photograph people where they have a "reasonable expectation of privacy" - Note that this is not dependant on how the people feel about it. You can photograph a couple kissing at a bus stop, you probably can't legally point a telephoto lens at their bedroom window through a broken privacy-fence. will they commit any offence by publishing the photos They may need copyright permission from the owners of any identifiable works of art included and may need model releases from identifiable people included. There are specific exceptions allowing the publishing of photographs of sculptures and buildings that are visible from public spaces. See The Photographer's Right | In NSW Australia this is covered by Division 15A of the Crimes Act 1900 which deals with Child Abuse Material. Under Section 91FA a "child" means a person who is under the age of 16 years - the situation you describe would be between consenting adults in NSW. “Child abuse material” can be text or images that are sexually explicit and would be “offensive” to a normal person (which means offensive to the particular jury) Assuming Jane is 15 or less, however, prima facie the image would be child abuse material and under Section 91H "A person who produces, disseminates or possesses child abuse material is guilty of an offence." The punishment is up to 10 years in jail. Section 91H provides a number of defences, the most relevant to the circumstances you describe being: that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material. that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it. (for possession only) If, considering all the circumstances of the relationship, Joe doesn't know and could not reasonably be expected to know Jane's age then he can use the defence under S91H(1). If he did not request the picture and as soon as he was aware of Jane's age, deleted it, then he can use the defence under S91H(2). The outcome is not so rosy for Jane: she is guilty of both production and dissemination of child abuse material and (assuming she knows how old she is) faces up to 10 years in jail (14 if she is under 14) and registration on the Sex Offenders List for life. It is admittedly unlikely in the circumstances that the state would prosecute her and, if they did, it is very likely that the judge would rule that no conviction be recorded. | 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. | england-and-wales There's no law specifying that shirts must be worn by people visiting shops or restaurants. As the owner or tenant of the property the business can set the rules for who is allowed entry and service, provided it does not discriminate based on a 'protected characteristic' in the Equality Act. The business can set a 'dress code' and refuse entry to people who are not dressed to code. If a rule says "no topless people" that's OK. If a rule says "men must not be topless" then on the face of it that's unlawful discrimination. If a rule requires smart footwear that's OK. If a rule says "women must wear high heels" then on the face of it that's unlawful discrimination. Generally the business can refuse to serve a person and require the person to leave the premises. If the person refuses to leave then they commit the civil tort of trespass. If the person then obstructs the lawful activity of the business or damages its property then they commit the criminal offence of aggravated trespass. | It may depend on what offences are suspected of being committed. One example is: In the united-states under 18 U.S. Code § 2258A an Electronic Service Provider (ESP) is required to report apparent violations of sections: 2251 [Sexual exploitation of children] 2251A [Selling or buying of children] 2252 [material involving the sexual exploitation of minors] 2252A [material constituting or containing child pornography] 2252B [Misleading domain names with intent] 2260 [sexually explicit depictions of a minor etc] The report is made to the National Center for Missing & Exploited Children (NCMEC) who in turn forward the information to the relevant domestic or foreign law enforcement agency. The ESP is protected from commiting distribution or related offences when making the report by virtue of subsection (g)(4): Permitted disclosure by a provider.— A provider that submits a report under subsection (a)(1) may disclose by mail, electronic transmission, or other reasonable means, information, including visual depictions contained in the report, in a manner consistent with permitted disclosures under paragraphs (3) through (8) of section 2702(b) only to a law enforcement agency described in subparagraph (A), (B), or (C) of paragraph (3), to NCMEC, or as necessary to respond to legal process. | The relevant law is not so specific. It prohibits child abuse and child neglect which are defined only as general standards and not as specific rules. This doesn't appear to be child neglect, indeed, the opposite to the extent that there is such a thing. So, would it be child abuse? This would be up to the finder of fact to determine, and might depend upon the manner in which this is done (for example, what is said to a child about it) and the reason that it is done (e.g. a history of self-harm) and more generally in light of the total context of the situation. But it is not obviously child abuse, unless, for example, recorded video was used for child pornography purposes, which there is nothing in the question to indicate. A comment suggests that the criminal offense of voyeurism (F.S. § 810.140) or video voyeurism (F.S. § 810.145) might be implicated, but both of those statutes apply to "secretly" observing someone or "secretly" setting up cameras, while in this case, the cameras and viewing are anything but secret. So, even if it were child pornography, it would not be voyeurism or video voyeurism under state law in Florida. As a general rule, a child is not entitled to privacy from a parent except in certain specifically defined circumstances (e.g. certain privileged communications). | The definition of defamation, itself, doesn't change. What may change is whether certain kinds of false statements are "so bad" that it is not necessary to prove that the person was actually damaged by the statement, i.e. is defamation per se. In California this is Charges any person with crime, or with having been indicted, convicted, or punished for crime; Imputes in him the present existence of an infectious, contagious, or loathsome disease; Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; Imputes to him impotence or a want of chastity; Hence, being falsely claimed to be a virgin is not defamation per se, but if you can show that you were actually damaged by the claim then you can be compensated for those damages. This is long-standing law (Tonini v. Cevasco (1896) 114 Cal. 266), which makes it difficult to erode in lieu of a change in statutory language (as in the case of the California Civil Code, amended in 1948). Barnes-Hind v. Superior Court (1986) 181 Cal.App.3d 377 provides a loophole, that the reader of a libel will recognize it as such. If no reasonable reader would perceive in a false and unprivileged publication a meaning which tended to injure the subject's reputation in any of the enumerated respects, then there is no libel at all. If such a reader would perceive a defamatory meaning without extrinsic aid beyond his or her own intelligence and common sense, then (under section 45a and the cases, such as MacLeod, which have construed it) there is a libel per se. But if the reader would be able to recognize a defamatory meaning only by virtue of his or her knowledge of specific facts and circumstances, extrinsic to the publication, which are not matters of common knowledge rationally attributable to all reasonable persons, then (under the same authorities) the libel cannot be libel per se but will be libel per quod. A "reasonable" reader would not recognize a claim of non-virginity as having a defamatory meaning, but would likely recognize being a professional incompetent as having a defamatory meaning. In other words, even false statements statutorily listed as being potential defamation per se will be subject to a "reasonable man" test: but proving actual damage is still an option. |
Do they check ARD ZDF bill payment during de-registration in Frankfurt if a person is leaving the country? I came to Frankfurt in Jul 2019. I lived in an apartment from Jul'19-Feb'20. During this period, I had some amount to pay to ARD ZDF. Eight months after moving to a new apartment (Oct'20), I de-registered from my previous contribution number and registered to my new landlord's contribution number (I live in WG apartment and owner pays the ARD ZDF bill). During this period from (Mar'20-Oct'20), I received the ARD bill at my new address but with my old contribution number. Now in Oct'20, I received a letter from ARD saying to pay the balance through FEB'20. I did so, and after 3 days, I received a letter saying that my contribution number account is balanced. I asked them the same thing on a phone call and was informed I don't have to pay anything. But somehow I am not convinced. So my question is: while doing a de-registration, will the city office check if any amount is pending from ARD in my name? Also, if de-registration is given to me from the city office, will that mean I am all good in ARD ZDF's books? | The registration office does not have access to your GEZ bill. They cannot deny you deregistration, but also cannot tell you whether your debts are settled. You might prefer to clarify this matter with the GEZ in writing rather than over phone, since you can more easily machine-translate an email or letter. | Labor Code §70 states that (1) Where a trade union that is the bargaining agent for employees in a bargaining unit so requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular union dues and to remit the amount to the trade union forthwith. so yes, it is legal to deduct union dues. There is no requirement to notify a prospective employee that they will be required to be a member of a union. The employer is required to inform you of deductions for taxes and union dues, under §254, when they pay you, which is why you know that you were a member of a union. That is what labor law gives you, but a union contract could impose other obligations on the employer. It is a matter of public record that a certain workplace is unionized, so you can find out, they just don't have to volunteer that information. There is no statutory limit on union dues, that is a matter set by the union. | As written, your question seems to ask for legal advice in a specific case. That would be off-topic. If you are asking strictly as a hypothetical: In germany, there is supposed to be the Bestellerprinzip for services of a real state agent (whoever retains the agent pays the fees). This was clarified in the Gesetz zur Regelung der Wohnungsvermittlung as changed in 2015. Landlords and real estate agents are frequently trying to get around it, but getting the legal construction of the contracts wrong would mean a substantial fine. | The university has a legal obligation to collect certain data from attendees, including employees an visitors. It has decided to keep these records in digital form, and offers a smartphone app as a convenience. The university has outsourced the data processing activity to a third party. This is perfectly legal under the GDPR, if that third party is contractually bound to only process the data as instructed, and not for their own purposes. Whereas the university acts as a data controller (Verantwortlicher), the third party would be a data processor (Auftragsverarbeiter). I have some doubts though whether an app or a website is indeed the solution that offers the best data protection, especially taking into account the GDPR's data minimization principle. Requiring updates when entering or leaving any room is potentially excessive. Given the sensitivity of the data, the university should have performed a data protection impact assessment to weigh the consequences of this measure. At least for employees, the measure would likely have to be approved by the union (Personalrat) as well. | The EU VAT directive has harmonized rules for invoices. Relevant for your question: Article 226 requires, among others, that the invoice contains the customer's VAT identification number, as referred to in Article 214, under which the customer received a supply of goods or services in respect of which he is liable for payment of VAT, or received a supply of goods as referred to in Article 138 If the customers receive invoices by electronic means they are supposed to archive the electronic invoice (and not a printout). They are not allowed to alter it in any way for archiving purposes by Article 246 The authenticity of the origin and the integrity of the content of the invoices stored, as well as their legibility, must be guaranteed throughout the storage period. In respect of the invoices referred to in the second subparagraph of Article 233(1), the details they contain may not be altered and must remain legible throughout the storage period. (where Article 233(1) refers to electronically received invoices.) The rules where put in place to combat VAT fraud – putting the VAT number of both parties on the invoice makes it a bit harder. If you were allowed to alter invoices before giving them to the authorities you would circumvent the entire purpose. | Probably not until and unless the process server gets the correct address and actually serves you. Then the documents should explain the matter fully. If the person who was attempted to be served took note of the court involved, and told you what court it was, you could call the Clerk of the Court and inquire. Otherwise you would need to ask every possible court, which would take a great deal of time and effort. You have not been lawfully served (at least not in most US jurisdictions) until you have been served in person, or perhaps by mail, or by publication in a newspaper, or in some other way considered lawful in your jurisdiction, but serving a person at your old address is not likely to be valid service. (Valid methods differ from one jurisdiction to another, and in some situations differ by the kind of case involved.) If the person at your old address gave the server your new address, s/he will probably be along shortly. If a process server is given an address by the client (plaintiff), s/he may well go there first, and only do research later in case the first address is wrong. One need not worry about it until the papers are served, but it might be wise to read the legal ads in any nearby large newspapers for a few weeks, in case of service by publication. The papers should give the name of a court, and perhaps the name of a judge. You can call the clerk of the court and find out if the papers are legit. There may well be a docket no or case no or some other identifying umber, as well. This will help in verification. Docketed cases may be listed on a court web site. A comment asks is service by publication is still possible. It can be. According to the Michigan Court Rules Rule 2.106 (D): (D) Publication of Order; Mailing. If the court orders notice by publication, the defendant shall be notified of the action by (1) publishing a copy of the order once each week for 3 consecutive weeks, or for such further time as the court may require, in a newspaper in the county where the defendant resides, if known, and if not, in the county where the action is pending; and (2) sending a copy of the order to the defendant at his or her last known address by registered mail, return receipt requested, before the date of the last publication. If the plaintiff does not know the present or last known address of the defendant, and cannot ascertain it after diligent inquiry, mailing a copy of the order is not required. In addition, subrule (E) provides that: If the court orders notice by posting, the defendant shall be notified of the action by (1) posting a copy of the order in the courthouse and 2 or more other public places as the court may direct for 3 continuous weeks or for such further time as the court may require; and (2) sending a copy of the order to the defendant at his or her last known address by registered mail, return receipt requested, before the last week of posting. If the plaintiff does not know the present or last known address of the defendant, and cannot ascertain it after diligent inquiry, mailing a copy of the order is not required. The moving party is responsible for arranging for the mailing and proof of mailing. Thus if the plaintiff does not know and cannot determine the defendant's address, or has an incorrect address but thinks that it is correct, a service by publication (or even by posting) may be lawful, if the Judge so orders, without the defendant getting an individual copy of the documents by mail. This requires some unlikely events, but is possible. | The GDPR roughly applies in the following scenarios: Art 3(1): you have an establishment in Europe Art 3(2): you do not have an european establishment, but Art 3(2)(a): offer goods or services to persons in Europe Art 3(2)(b): monitor the behaviour of people who are in Europe (where Europe means EU/EEA/UK as appropriate). Art 3(1) does not seem to apply for you. Art 3(2)(a) does not apply, since you're not actively targeting people in Europe. At the point in time where you are offering the app to users, those users are in the US. Art 3(2)(b) could apply if you collect some kind of tracking data, in particular (but not limited to) location data. But if you temporarily shut down collection of new data for personalisation while the user is in Europe, that's probably going to be reasonably safe. It might not be necessary to disable ad personalisation if that personalisation is based on data collected outside of Europe. In practice, unless your app is specifically targeted at travellers, no one will care about what your app does outside of the US. For detailed guidelines on the territorial scope of the GDPR, consider reading EDPB guidelines 3/2018 (PDF). The document contains some relevant examples, but since it's official guidance they won't explicitly say that GDPR won't apply in a scenario like yours. The closest is Example 8: An Australian company offers a mobile news and video content service, based on users’ preferences and interest. Users can receive daily or weekly updates. The service is offered exclusively to users located in Australia, who must provide an Australian phone number when subscribing. An Australian subscriber of the service travels to Germany on holiday and continues using the service. Although the Australian subscriber will be using the service while in the EU, the service is not ‘targeting’ individuals in the Union, but targets only individuals in Australia, and so the processing of personal data by the Australian company does not fall within the scope of the GDPR. Also relevant is Example 10, which says that app downloads in the EU might not be subject to GDPR: A U.S. citizen is travelling through Europe during his holidays. While in Europe, he downloads and uses a news app that is offered by a U.S. company. The app is exclusively directed at the U.S. market, evident by the app terms of use and the indication of US Dollar as the sole currency available for payment. The collection of the U.S. tourist's personal data via the app by the U.S. company is not subject to the GDPR. | I think you vastly exaggerate the difficulty. Basically: when a user registers, ask for their address, including country, as well as a phone number (including country code, which you may validate via SMS for instance). This should give you the 2 pieces of information that help you determine the country In the case of the UK, HMRC says: Support for MOSS registered micro-businesses UK micro-businesses, that are below the current UK VAT registration threshold and are registered for the VAT Mini One Stop Shop (VAT MOSS), may use best judgment and base their ‘customer location’ VAT taxation and accounting decisions on a single piece of information, such as the billing address provided by the customer or information provided to them by their payment service provider. based on the country, use the standard VAT rate for that country. The difficulty here is to track when those rates change, but your accountant should be able to keep up with that. There is very little chance any special reduced rate would apply to such services, and in any case, no tax authority will complain if you apply the standard rate instead of the reduced one! then declare everything online to your local MOSS (you don't need to register with each tax authority! You can, but you don't need to). In the case of a micro-business, this should be more than enough to comply with the rules. |
Can the FD&C conflict with the CFR? Page 77 of the textbook Vaccines states: The Food, Drug and Cosmetic Act (Section 502[e][1][A][iii]) states that all inactive ingredients should be noted in labeling; it also states that this requirement is not necessary if trade secret information would be disclosed. The CFR additionally notes that an inactive ingredient should be listed in the labeling if the ingredient's presence is considered a safety factor (21 CFR 610.61[n]). In some cases, even in the absence of any evidence that a particular material might pose a safety factor, manufacturers have elected to disclose the presence of residual materials such as detergents, solvents, and chelating agents (see Table 6-2 for examples of manufacturing residuals). Here is the relevant quote from the FD&C: (iii) the established name of each inactive ingredient listed in alphabetical order on the outside container of the retail package and, if determined to be appropriate by the Secretary, on the immediate container, as prescribed in regulation promulgated by the Secretary, except that nothing in this subclause shall be deemed to require that any trade secret be divulged, and except that the requirements of this subclause with respect to alphabetical order shall apply only to nonprescription drugs that are not also cosmetics and that this subclause shall not apply to nonprescription drugs not intended for human use. And from Title 21 of the Code of Federal Regulations: The following items shall appear on the label affixed to each package containing a product: The preservative used and its concentration, or if no preservative is used and the absence of a preservative is a safety factor, the words "no preservative"; The type and calculated amount of antibiotics added during manufacture; The inactive ingredients when a safety factor, or reference to an enclosed circular containing appropriate information; The adjuvant, if present; The source of the product when a factor in safe administration; The identity of each microorganism used in manufacture, and, where applicable, the production medium and the method of inactivation, or reference to an enclosed circular containing appropriate information; FD&C allows keeping of trade secrets. CFR says the inactive ingredients must be disclosed when a safety factor. Let's say we have an inactive ingredient that is a trade secret that is also a safety factor. Which law has precedence? Why does the law that has precedence have precedence? How is it determined if an inactive ingredient is a safety factor? Does a trade secret ever have to be disclosed? When? As far as you can tell, is this a "loophole" in the law? | Neither law has precedence - manufacturers have to obey both. The FD&C says that they don't need to list ingredients which are trade secrets; the CFR says they must. If they list the trade secrets they do not break either law. If they don't, they break the CFR. Conclusion: they must list the trade secret ingredients. If the FD&C said it was forbidden to list trade secret ingredients, but the CFR required it, manufacturers would still have to obey both laws - which would mean they couldn't sell anything where one of the ingredients was a trade secret. | Congress imposed price controls on various agricultural and manufactured goods under several of the "New Deal" anti-depression measures, particularly the National Recovery Act, or NRA. There were constitutional challenges to these, and the were upheld under the Commerce power. I'd need to do some research to find the exact cases. (Update: Relevant cases include Wickard v. Filburn, 317 U.S. 111 (1942 (Federal productioin quotas for wheat, even if consumed on the same farm where it is grown), Nebbia v. New York, 291 U.S. 502 (1934) (Regulation of price of milk by NY state), Olsen v. Nebraska, 313 U.S. 236 (1941) (state regulation of commissions charged by private employment agencies), Bowles v. Willingham, 321 U.S. 503 (1944) (wartime Federal rent control), and United States v. Carolene Products Company, 304 U.S. 144 (1938) (Federal regulation of interstate milk shipment) See also the Hepburn Act of 1906 (Federal power given to the ICC to control railroad prices), this law review article on price control cases, and this article on Price Controls from the Legal information institute) Cases imposing minimum wage laws, both by Congress and by the States, were also challenged and upheld. Those are one from of wage control. I think that West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) was the key case on that issue. By the 1970s this was probably regarded as settled, and so was not raised in the challenge to the laws of that date. | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | The state health codes applicable to food are here esp. ch. V and here. The primary focus of those health codes is preventing the introduction of toxic substances or pathogens. There is obviously no law against serving meat, nor is there any law against half-and-half pizza. The only possible prospect for a health law addressing your interest would be via the allergy avenue (yes, you do not allege to be allergic to anything – my point is that even if you did, this would not help your cause). There are some provisions regarding training and informing when it comes to "major food allergens", which however is defined as Milk, EGG, FISH (such as bass, flounder, cod, and including crustacean shellfish such as crab, lobster, or shrimp), tree nuts (such as almonds, pecans, or walnuts), wheat, peanuts, and soybeans or proteins derived from the above. Note that mammal meat is not included (it may be an individual allergen, but it is not a statutory major food allergen). Even if you wanted to sue, you would have a very hard time establishing that you were damaged. First you would have to establish that they have a legal obligation to serve you "vegetarian food" (crucially undefined). You might be able to establish that they made such a promise. Now we have to determine whether a reasonable person would conclude that a pie with half-meat and half non-meat is clearly not vegetarian food. I do not believe that there is secular case law addressing this, so the courts would resolve this by determining whether there is a reasonable means for a vegetarian to eat part of such a pizza – obviously, yes, only eat the cheese part (leave wide margins). So there is no legal recourse for getting what you want: there are still ample political options. | No. Congress, in the Federal Food, Drug and Cosmetic Act, gave the the power to regulate drugs to the FDA, not the President. In addition to giving the FDA jurisdiction, Congress also set up requirements and procedures that the FDA must use to classify and reclassify drugs. (The FDA, acting under the APA and other statutes, has engaged in further procedural rule-making as well.) These procedures require the FDA to hold hearings, etc. before making decisions. Since the President can only execute laws passed by Congress, he cannot bypass the FDA or these procedures. To do so would violate the separation of powers. For example, the FDA could grant its Emergency Use Authorization for HCQ because a statute -- 21 USC § 360bbb-3 Authorization for medical products for use in emergencies -- gives it the power to do so. FWIW, interbranch conflicts over FDA decisions are quite common. | Why do you think Oracle have not been protecting their trade mark? Using a trade mark to describe the product (“Written in JavaScript”, “Seeking JavaScript developer”) is not an infringement and the trade mark owner is under no obligation to, indeed, cannot stop this. Where they are required to defend their trade mark is when it is being used in such a way that there is the risk of confusion that the goods or services could be confused with the trade mark owner’s goods or services. Further, they are not required to defend all breaches, only enough to show that they are actively doing so. Also it is not important that the trade mark be associated with the trade mark’s owner. Do you know who owns the trade mark “Ben & Jerry’s”? | It is not required. The companies undoubtedly prefer that you include those designations, and they may even write to say that you should, but that is just them doing their due diligence in policing their brands. In the instances you cited, there is probably some agreement between those companies to include those markers. If you don't have such an agreement, there is no obligation to notify the users of your website that some third party has trademarked a name that you mention. | If an employee takes home information that his or her employer considers confidential, that would be a matter of company policy. The employer could discipline or fire the employee if it learned of the incident, and chose to act. If the information is considered to be a trade secret, or part of one, disclosing it or mishandling it so as to risk disclosure could be a crime under US law. However, only in unusual cases is criminal action taken on such matters, normally it is left to civil lawsuits or internal company action. I do not know if Canada has a similar law. |
GDPR Compliance - Password Protected Documents in AutoRecovery I'm working with personnel data in my job, including lots of details which I know to be sensitive and most certainly covered by GDPR. In order to maintain compliance with the regulations while preserving the ability of our team to work on the same spreadsheets, we have hidden sheets and locked the Excel workbook every time it has been saved. This effectively obscures all personal data behind password protection. A problem I have noticed however is that once the spreadsheet is unlocked and in use, MS Excel makes "AutoRecovery" copies of it which are accessible upon opening Excel. I wanted to check where things stand under these circumstances - of Excel autosaves effectively leaving a copy of the document without password protection. I presume this is non-compliant, if this is the case, is the only way around this to turn off autosaving and recovery mechanisms from Excel (providing this is possible)? Many thanks for any answers to what I hope is a fairly clear-cut question, but I can't be sure of my assumptions on the matter. | What does your Data Protection Officer say? It’s their role to be aware of and assess if you policies, procedures and processes comply with the principles. For the particular application is it: “specified, explicit and legitimate purposes”? “adequate, relevant and limited to what is necessary” “kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed” “processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures” And can you clearly demonstrate compliance with the above? Just a personal observation: WTF are you using a spreadsheet for what is clearly a database problem? This is several dozen steps away from best practice data security. | In my opinion, this should be enough. The GDPR regulation is general - it does not attempt to address these issues directly, precisely for the reasons we see here: You can never predict how the technology will develop. When interpreting the GDPR, we must keep the intended goal in mind. What is the purpose of the "right to erasure"? To prevent anyone from further processing the personal data. If you "crypto-shred" it, it can't be processed anymore, not even theoretically. The encryptec file cannot be used to identify the subject, therefore it is not even personal data anymore. In case it can be decrypted in the future... Well, that is just a speculation. The courts can go to great lengths in interpreting what personal data is (dynamic IP address is considered personal data, since it can be linked to a person by the police with a court order), but i am pretty sure that "it can be theoretically possible in some distant future" is beyond the limit. As for the second question, I am not aware of any applicable case-law, but I guess that current security and technological standards will be used to assess the delay. You have a right to protect your data, the subject has a right to erase them. Those rights must be balanced, neither fully overrules the other. The delay should be short enough so the right to erasure is effective, and it should not extremely long compared to other (economically viable) backup solutions available, in line with current industrial standards. | I cannot speak for civil law systems (Germany) but in Common Law (UK, USA) systems the law looks at substance rather than form. So: Am I allowed to undo the word-wrapping of all the texts and unindent them, as well as performing a new word-wrap on them? Yes Do I have to make sure that it is readable for everyone on every device, and do I have to make sure that accessibility interfaces are used (e.g. for blind persons, which aren't even the target group of my software)? If they are licences (rather than contracts) they must simply be available; this does not mean universally available. Do I have to make sure, that if my application wouldn't even start correctly on a device, that the user is able to start the application in an impossible, absurd, magic or religious way to ensure that he can read the legal texts or is it enough to state it on the website then? It depends if you want the licences to be enforceable by you on the users or if you are simply complying with your disclosure obligations. See What if the user disagreed with the Terms of Service, but still registered on a website?. Do I have to make sure that the rendering of the licenses/privacy policy/impressum is performant (e.g. text rendering and refresh after scrolling takes less than a second)? I already have to include two external libraries with my software to display the texts, otherwise it would not be possible to display texts at all. No - make them wait if you want. | You are correct that facts in general are not protected by copyright, and most raw data are facts. However, a collection of data may be protected by copyright as to its selection and organization. A use which copies such selection might possibly be copyright infringement. If data constitutes a trade secret it may be protected as such, and "improper" access might be unlawful. This would not apply to publicly available data or collections of data. If, to access a data set, one must sign or agree to a contract, that contract may limit the use of such data. Again, this would not apply to most publicly available data. | Maybe not. The ICO says that The right of access enables individuals to obtain their personal data rather than giving them a right to see copies of documents containing their personal data. It might be valid to interpret the DPA / UKGDPR in a way that the relevant personal data undergoing processing in their system is the existence of the letters, but that you are not entitled to a copy of the letters. This is in line with the purpose of the right to access, that you can check what data they are processing about you and whether it is correct. If that argument holds and the data subject insists on receiving a copy of the letters, it might be legitimate to charge them a fee for these copies. But in practice: The data controller might not make this argument and just hand over the copies. It is worth a try. A right to access founded in data protection might not be the only way to receive a copy of these materials. If the letters are relevant for legal proceedings, they could perhaps be requested during the disclosure process. | GDPR is not a blanket ban on the handling of personal data. It is a set of guidelines when and how data may be processed and stored. Documenting the compliance with a deletion request is one of many purposes for which some data may be retained after a deletion request. Others would be past contractual obligations, legal documentation requirements, and even a balance of 'legitimate interests' of the processors and the data subjects. The processor might be able to argue that fraud/abuse prevention is such a legitimate interest. What if I want to create a service that does let users enter their friends' email addresses, and send those friends an email invitation to the service? Get a specialist lawyer on staff who can check your exact business processes. A web site like this cannot possibly give you a full explanation of the pitfalls. | a few quick notes that come to mind. As the commenters point out: DSGVO is indeed the German equivalent name to the GDPR (English term) "Imprint" isn't a privacy related topic that much, as such it's not really changed by the upcoming GDPR The GDPR changes many things, but the requirement for up front information isn't one of them - so it would've already been a rule to follow Sometimes the question who is responsible for privacy information might not be that easy to decide when you're on platforms. I take this situation as being pretty clear though. You are basically given a blank slate, you can do with that page whatever you want, and the visitor has no clue whatsoever that it might be hosted by Github. In addition to this, Github would be classified as a data processor (providing the tool) and you as the data controller who is in charge of practically everything except for the provision of the page. I hope this helps. Btw. it's not that hard anymore to write a privacy policy these days. | Since your consent is not required in Texas, revocation is irrelevant. Restrictions of use of recordings flow from the legal nature of the recording itself, so there is no provision saying, for example, that only one party needs to consent for just recording, but all parties must consent to make any use of the recording. Since these laws were devised to regulate the practice of wearing a wire and collecting evidence of crimes, requiring consent from all parties would be counterproductive to the purposes of the law. You could try drafting a contract where you pay people to not record you (anybody who doesn't sign, you shouldn't talk to them), but enforcement could be tricky, so I would not try a DIY contract: get a lawyer. You would have to show that you were harmed by them making an unconsented recording. It should be in the form of a contract where you give something of value in exchange for something of value, which is a thing typically enforced by the courts. Also bear in mind that even in an all-party state, if you know that you are being recorded, you cannot just say "I do not consent", you have to stop talking. Continuing to talk when notified that there is or may be a recording constitutes implied consent, which is why on the phone companies often announce via recording that the conversation may be monitored, and they do not ask "Do you consent". By not hanging up, you consented. |
Can a state make a law that deputizes individuals to sue individuals in other states? I've read briefly about the recently in-effect Texas anti-abortion law, and I'm perplexed at how it supposedly is difficult to challenge in court. If I understood correctly, it deputizes private Texan individuals to sue pretty much everybody involved in a post-heartbeat abortion except the patient, and will reimburse their court costs up to $10,000. This approach seems absurd to me because it seems so easy to be a "slippery slope". Let's suppose the Supreme Court allows the Texas law to stand when it finally does make a decision, and then that all the states with anti-abortion legislatures pass laws like Texas'. Is there any extra legal barrier that would prevent states with pro-choice legislatures from passing laws designed to counter the anti-abortion deputies? For example, California could pass a law that deputizes private California individuals to sue people who sue abortion providers, and could reimburse their court costs up to $10,000. This hypothetical law seems equally absurd to me as the Texas one. (Of course there's a common sense barrier as to why California would want to pay for that, but let's ignore that because I expect there are states where strongly pro-choice people are actually willing to pay for it even without reimbursement. They just need the "deputization" giving them a green light. As an aside, I'm kind of surprised that some billionaire hasn't come forward and offered to pay court costs for any provider sued under Texas' crazy law. Maybe it hasn't happened yet because they're waiting to see if the Supreme Court will strike it down.) | Can a state make a law that deputizes individuals to sue individuals in other states? This question (apart from the question below that implicates federalism concerns about a sister state court process in the secondary question below) would be resolved by the constitutional limitations on personal jurisdiction and choice of law. A state can have a law that authorizes a lawsuit for non-judicial system conduct against a non-resident of the state if it meets the requirements of "long arm jurisdiction." The most succinct description of this requirement is that the person being sued "personally availed themselves" of the laws of the state whose law authorizes the lawsuit, in a manner that would reasonably be understood to subject that person to the state's legal authority. This could involve a lawsuit against someone outside the state arising from an incident that took place in the state. It could also involve a lawsuit against someone who took tortious action directed at a state or people in a state that caused harm, or a lawsuit arising from a business transaction that could reasonably be considered doing business in the state imposing that law. Constitutional law requirements on "choice of law" require that the state or foreign jurisdiction whose law is applied to a question in a dispute must have some meaningful connection to the disputed issue (subject to the backdrop rule that the law of a jurisdiction other than the forum where a case is litigated is presumed to be identical to that of the law of the state where the case is being litigated if no party provides any evidence or legal authorities to the contrary). Case law on state level qui tam litigation (which involve statutes that empower private individuals to sue someone who has wronged the government on its behalf for a share of the amount recovered for the government), the case law regarding private criminal prosecutions that are available in a handful of U.S. states, and some California consumer protection laws (which authorize suits without personal showing of actual damages in some cases when there are fraudulent advertisements) might also be relevant. So would the authority granted to bail bondsmen that is similar to law enforcement authority but limited to people authorized a person posting a bail bond for a criminal defendant who is subject to that authority. Concretely, if the constitutionality of the Texas law was upheld<1>, Texas probably can authorize a lawsuit against a California resident who would be involved in an abortion that took place in Texas that was illegal under Texas law. And, a judgment from a Texas court in a case like that would probably be entitled to full faith and credit in California. But, Texas probably couldn't constitutionally authorize a lawsuit against a California resident in connection with an abortion that took place in California. There would be, of course, many edge cases with no close past precedents, where the application of constitutional jurisdiction and choice of law limitations would be far less clear. <1> The majority opinion by five conservative justices other than the Chief Justice deciding not to stay enforcement of the law specifically limits itself to whether the proper parties were joined to the request to enjoin the statute and states "this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts." A decision that has not been resolved on the merits. The Courts have merely declined to stay enforcement of the law pending the current litigation over the law's validity. Upholding the law on the merits would require courts to overturn existing precedents related to abortion restrictions and other legal issues. Is there any extra legal barrier that would prevent states with pro-choice legislatures from passing laws designed to counter the anti-abortion deputies? For example, California could pass a law that deputizes private California individuals to sue people who sue abortion providers, and could reimburse their court costs up to $10,000. This seems to be a separate question from the question in the title. A law of this character would probably not be upheld. Basically, it would make a state authorized legal process in one state's courts, actionable as illegal in another state. Generally speaking, interference in another state's legal process would either violate the "dormant commerce clause", or the "full faith and credit clause", or constitutional limits on jurisdiction and choice of law, or constitutional standing limitations (even though they don't apply in the same way in state courts as in federal courts, or the "due process clause" of the 5th or 14th Amendments, or the "privileges and immunities clause." The exact legal theory isn't clear because there is really not history of litigation over this kind of legislation and you'd need to resort to vaguely analogous cases. The effort of Texas to litigate Pennsylvania election law administration following the 2020 election was recently dismissed by the U.S. Supreme Court for lack of standing and that is suggestive of how this case might be resolved, even though it isn't strictly analogous. It is also informed by the long standing common law rule, that could conceivably have constitutional dimensions, that litigants participating in a court process in good faith are immune from collateral litigation in another lawsuit over their conduct in the original lawsuit. There isn't a lot of precedent one way or the other with laws having this kind of purpose, and none on a law exactly in this form. Indeed, a dissenting opinion from the U.S. Supreme Court yesterday by the Chief Justice and two of the liberal justices (with which the third liberal justice states he agrees without formally joining that opinion) stated that: The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The last time there was significant litigation of laws with a similar purpose that were adjudicated was in the pre-U.S. Civil War period in abolition of slavery oriented legislation. But, the post-Civil War amendments to the U.S. Constitution and subsequent development of constitutional case law would render most precedents from that time period infirm. | Probably not. There is an unenumerated constitutional "right to travel" (which has been recognized in case law, and has not yet been judicially overruled) and there is also a concept called the "dormant commerce clause" which prohibits legislation by a state that interferes with the ability of people to engage in interstate commerce even if Congress has passed no relevant legislation. There could also be a privileges and immunities clause argument arising under the original 1789 constitution and not the 14th Amendment to that document privileges and immunities clause, which affords people from outside a state the same rights as people in a state. Also, citizens of a state are defined as its residents, so a state only has jurisdiction over someone as a citizen for so long as they reside there. I was born in Georgia, for example, but haven't lived there since I was six years old, so I am not a citizen of Georgia. The proposed Texas law bears some similarity to the Mann Act of 1910 which prohibits transporting people across state lines for the purposes of prostitution (to slightly oversimplify). But the Mann Act is a federal law, not a state law. The proposed Texas law also bears some similarity to the infamous Fugitive Slave Act of 1850 which required free states to respect the slave status of people treated as slaves in a slave state under the slave state's law by returning fugitive slaves to their out of state masters, when the slave escaped across state lines. But, this was also a federal law and reflect the greater extraterritorial force of contracts and property rights created under state law compared to the extraterritorial force of the police powers of a state government. There are constitutional provisions requiring states to honor each other's rulings as well, most notably the requirement to extradite felons, and the full faith and credit clause that requires states to honor the court judgments and government determinations of status (e.g. marriage certificates) of other states in most circumstances. But, I don't think that you get there in a case regulating the conduct of a state resident outside the state, or in a case where you want to criminalize assisting someone in the state to leave the state for a particular purpose. Neither of these examples, however, involve state laws. Generally, penalties for doing something across state lines need to be established by federal, rather than state, laws. This said, the issue has not been litigated in this particular context yet, and the legal theories implicated and structure of those lines in fine particulars could matter. States have only rarely tried to regulate the conduct of their residents outside their own states and have even less frequently been successful in doing so. | The liability shield is the big one, and it can't be achieved with a contract. Just because the contract says you're not liable, that doesn't make it true. If I sign a contract with my friend that says "Nate Eldredge is hereby the King of France", that won't make me the king, nor will it force anyone except maybe my friend to acknowledge me as the king. By its nature, a contract can only bind the parties to the contract, and has no effect on the rights of anyone else. Suppose, then, that Alice and Bob agree to start a pizza delivery business, using a contract like you suggest. Their delivery car crashes, injuring Carol, a bystander, who incurs medical bills that exceed the assets of the business. Carol decides to sue Alice and Bob personally. Sure, Alice and Bob have a contract, and maybe it prevents them from suing each other, but it certainly doesn't prevent Carol from suing them; Carol never signed it. So Carol can still go after Alice and Bob's personal assets. Thus contract law cannot give them a liability shield. However, the government can, since it makes the laws about who can sue whom under what circumstances. And it has made laws saying that Alice and Bob can be protected from such suits, but only if they form a company according to the process that the law sets forth. So that's what they have to do. | They aren't "imposing tax laws at the state level", and the states are still perfectly free to award whatever credits they like. There's a more complete explanation here. Before 2017, if you paid, say, $30,000 in state taxes, you could take a $30,000 deduction from your federal taxable income, thus reducing your federal income taxes by some fraction of $30,000 (depending on your tax bracket). The 2017 tax bill placed a $10,000 limit on this deduction. Some states responded by creating a provision where you could donate $30,000 to the state and receive a $30,000 credit against your state taxes owed - so you end up paying the same amount to the state, but now you characterize it as a charitable donation, which is still deductible from your federal taxable income. The new IRS regulation says that such a "donation" will no longer be deductible from your federal taxable income; that's all. Your state can still issue you a tax credit for such a donation if they want - the federal government has no control over that - but any such credit will reduce the amount you are allowed to deduct on your federal return, making the whole exercise pointless. The federal government certainly has the power to determine how you should compute your income for the purposes of your federal income taxes, including what you may or may not deduct. That's the power they're using here. | In the specific example you have given, Florida law could not be applied. A state has jurisdiction over a crime under constitutional due process limits on the scope of a state's criminal jurisdiction if the crime is either committed within the state (regardless of where the harm occurs) or is directed at or impacts the state (the classic example is a gunshot fired from the Ohio side of the state line killing someone located in Indiana, which could be prosecuted in either state, or in both states as it doesn't violate double jeopardy to be prosecuted for the same offense by more than one sovereign). Sometimes these issues are framed not as "jurisdictional" per se, but as "conflict of law" questions limited by the constitution. The proof that a crime was committed in the territory where it is applicable is called proof of locus delecti and depends upon the nature of the crime alleged and the location of the act or acts constituting it. To determine where a crime is committed depends on what acts constitute the crime, something that leaves considerable room for flexible interpretation and a careful reading of the exact wording of the relevant criminal statute. The most important limitation on the territorial jurisdiction of a U.S. state is the Sixth Amendment to the United States Constitution. This applies directly in the case of federal criminal prosecutions in the federal courts, and applies in state courts because it is incorporated to apply in state court cases through the due process clause of the Fourteenth Amendment to the Constitution of the United States under 20th century case law applying the "Selective Incorporation doctrine." The Sixth Amendment mandates that criminal trials be conducted “by an impartial jury of the State and district wherein the crime shall have been committed.” If a suspect is not present in a state to be criminally prosecuted, then the options available to a state are (1) to toll the running of the statute of limitations while the suspect is outside the state to the extent permitted by the relevant state statute and the U.S. Constitution, (2) to bring a civil lawsuit against the suspect instead of a criminal prosecution, or (3) to seek extradition of the suspect, which must be granted under certain circumstances under the United State Constitution and reads as follows in the pertinent part: Article IV, Section 2, Clause 2: A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. (Note that the Sixth Amendment does not apply to civil lawsuits. Civil lawsuit trials can be conducted in a state other than the state where the breach of contract or tort giving rise to the lawsuit took place for jurisdictional purposes and not infrequently is brought in another state, although constitutional choice of law rules limit the circumstances under which a particular state's laws can be applied to a particular set of circumstances in a lawsuit.) The Sixth Amendment, on its face, prohibits Florida from prosecuting a case in the example given in the question involving a crime that was committed solely in Washington State. Of course, the exact definition of the crime might determine where it was committed. In traditional "common law" "blue collar" crimes there is usually no ambiguity over where it is committed except in the most extraordinary circumstances, but in prosecutions of conspiracies and crimes involving economic activity (such as owning or mailing something), the question of where a crime is committed can grow much fuzzier. For example, one could imagine a differently defined crime prohibiting providing funds to finance a purchase of marijuana in excess of 20 grams being committed both in Washington State and Florida at the same time (e.g. perhaps a purchase of marijuana in Washington State was financed by a Florida bank by delivering cash to a courier in Florida who is bound for Washington State knowing that the cash would be used to finance a marijuana purchase). Similar ideas apply in international circumstances where the Sixth Amendment and Extradition Clause do not apply. But, in those cases, the more flexible and less well defined "law of nations" as interpreted by Congress and the U.S. Supreme Court and the President still does impose some territorial boundaries on prosecutions for actions which are not crimes in the country where they are committed under that country's domestic laws. But, those boundaries are not so hard and fast and the idea that a crime is committed in places where it has an impact allow for considerable flexibility in prosecuting crimes committed outside the United States. It has also been well settled since the earliest days of the United States that "The courts of no country execute the penal laws of another." The Antelope, 23 U.S. (10 Wheat.) 66, 123 (U.S. Supreme Court 1825) and that this applies to states applying each other's penal laws as well. So, Florida cannot enforce a violation of the criminal laws of Washington State in its courts either. If you get in a bar fight in Seattle, you can't be prosecute for assault in a court in Orlando, even if both of the parties to the bar fight were Orlando residents and U.S. citizens. Some notable cases resolving the question of whether locus delecti is present in a particular case include the following: In Hyde v. United States, 225 U.S. 347 (1912) although none of the defendants had entered the District of Columbia as part of their conspiracy to defraud the United States, they were convicted because one co-conspirator had committed overt acts in Columbia (225 U.S., at 363). So conspiracy is a continuing offense committed in all the districts where a co-conspirator acts on the agreement. Similarly, In re Palliser, 136 U.S. 257 (1890) the sending of letters from New York to postmasters in Connecticut in an attempt to gain postage on credit, made Connecticut, where the mail he addressed and dispatched was received, an appropriate venue (136 U.S., at 266—268). A typical state statute on the subject from Colorado's Revised Statutes (2016) is as follows: § 18-1-201. State jurisdiction (1) A person is subject to prosecution in this state for an offense which he commits, by his own conduct or that of another for which he is legally accountable, if: (a) The conduct constitutes an offense and is committed either wholly or partly within the state; or (b) The conduct outside the state constitutes an attempt, as defined by this code, to commit an offense within the state; or (c) The conduct outside the state constitutes a conspiracy to commit an offense within the state, and an act in furtherance of the conspiracy occurs in the state; or (d) The conduct within the state constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense prohibited under the laws of this state and such other jurisdiction. (2) An offense is committed partly within this state if conduct occurs in this state which is an element of an offense or if the result of conduct in this state is such an element. In homicide, the "result" is either the physical contact which causes death or the death itself; and if the body of a criminal homicide victim is found within the state, the death is presumed to have occurred within the state. (3) Whether an offender is in or outside of the state is immaterial to the commission of an offense based on an omission to perform a duty imposed by the law of this state. Case law under this statute sometimes describes the issue presented under this statute a question of "sovereign jurisdiction." See, e.g., People v. Cullen, 695 P.2d 750 (Colo. App. 1984). | I know of no laws at the federal or state level that explicitly extend their protection to poly relationships. However, any law that purports to outlaw a polyamorous relationship among consenting adults should be looked at very skeptically, as it would likely be found unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003): The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. While that case dealt with homosexual relationships, it seems unlikely that the courts would conclude that heterosexual couples, throuples, etc., are entitled to less protection. Adultery laws exist in many jurisdictions, and many of them have survived constitutional challenges. But as far as I know, all those challenges relied on legal principles and precedents -- in particular, Bowers v. Hardwick, 478 U.S. 186 (1986) -- that Lawrence explicitly overruled. In this regard, I would not expect anyone in a polyamorous relationship to encourter meaningful legal jeopardy as a result of that relationship, assuming that the relationship(s) were otherwise legal and out in the open. If A is unaware of her spouse's relationship with C, for instance, that could cause problems in a divorce proceeding. I don't know of any legal options specifically designed for this sort of arrangement, but the more interconnected and interdependent these groups are, the more likely it becomes that some sort of written agreement would become worthwhile -- not as a response to legal danger arising from the polyamorous nature of the relationship, just to address the fact that someone is eventually going to fall short, potentially causing problems for the whole group. There are many lawyers who specialize in LGBT issues, and I'd imagine that some of them would be able to provide more detailed advice about how to deal with this type of situation. | If you want to sue them, you should start with the US Constitution (as a model), in particular the Free Exercise clause: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The question is whether one could overturn homicide statutes on the grounds that an individual holds to traditional beliefs that a human sacrifice is required every few months. Or, is it an unconstitutional prohibition of the Mormon belief in polygamy to outlaw polygamy, see Reynolds v. US, 98 U.S. 145. The court held that the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Observe that a religious exception to the law would be unconstitutional, as establishing religion as a means of gaining extra rights. The reductio ad absurdum of the unfettered religious-belief excuse is: Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. The "wall of separation" was modified more recently in the 60's and 70's. In Wisconsin v. Yoder, 406 U.S. 205, the issue was compulsory education imposed on Amish children, where higher education was held to be antithetical to the Amish doctrine of a simple life. The court rules that The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children and especially it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish There were additional holdings pertaining to the legitimacy of the purported belief (that is, is there really such a doctrine – clearly yes). You might have better luck purporting to be a Rastafarian or Hindu, so I will set aside that complication. The core question will be whether the government has a "compelling interest" in the restriction, also whether the restriction is narrowly tailored. In the case of Sherbert v. Verner, 374 U.S. 398, Sherbert's employer required her to work 6 days a week (a change in policy during her time of employment), which she refused to do (as a member of SDA) and was fired. Sherbert was denied unemployment benefits because the firing was for cause. The court ruled that Disqualification of appellant for unemployment compensation benefits, solely because of her refusal to accept employment in which she would have to work on Saturday contrary to her religious belief, imposes an unconstitutional burden on the free exercise of her religion. and There is no compelling state interest enforced in the eligibility provisions of the South Carolina statute which justifies the substantial infringement of appellant's right to religious freedom under the First Amendment. Employment Div. v. Smith, 494 U.S. 872 brings us to the neighborhood that you are interested in living in. The relevant detail is that Smith (and Black) were fired for ingesting peyote in connection with a ceremony at a Native American church. The court ruled that The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use To be more precise, Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. We can contrast this with Lukumi v. Hialeah, 508 U.S. 520. The city of Hialeh passed an ordinance forbidding animal sacrifice, specifically to suppress the Santeria church. The Supreme Court said, no, you may not do that: Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability. However, where such a law is not neutral or not of general application, it must undergo the most rigorous of scrutiny: It must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. Neutrality and general applicability are interrelated, and failure to satisfy one requirement is a likely indication that the other has not been satisfied ... The ordinances' texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santeria's central element, animal sacrifice. At least so far, restrictions on drug use have not been overruled as conflicting the the Free Exercise clause, although if e.g. Washington state were to prohibit Mormons from purchasing marijuana (where others can), that would surely be struck down as unconstitutional. There are a number of other relevant developments, for example Congress passed the Religious Freedom Restoration Act in 1993, in reaction to Employment v. Smith, and that law statutorily mandating that strict scrutiny be applied to the question of whether a law violates the 1st: but this was ruled unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507. Then in Gonzales v. O Centro, 546 U.S. 418 (Schedule 1 tea for religious purposes), the court ruled that The courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca which is to say, we have a case where the federal government was prohibited from enforcing a drug prohibition involving religion. A challenge of the type which you have in mind will surely also involve the question of the legitimacy of the purported religion, where UDV was founded in 1961 whereas one might suspect that your claimed religion is a pretext to smoke pot (hence the Rastafarian suggestion). The WWII era conscious objector cases held that the CO exception to military service is not limited to governmentally-approved religions, but as a general rule, the courts have not ruled that you can simply claim to have a religious belief which is being infringed on and thereby be excempt from the law. The basic issue would be whether either the US government of the state of Kentucky have a compelling interest in preventing the use of marijuana. The Kentucky Supreme Court does indeed recognize the concept of "strict scrutiny", so the case is not doomed from the start. | I wouldn't be surprised to see other states and jurisdictions with similar statutes. Fortunately, in the United States, there is a safe harbor against demands for state income taxes: For every dollar of taxable income, you can only be taxed by one state. (This was affirmed by the Supreme Court in 2015 in Comptroller of the Treasury of Maryland v. Wynne.) Therefore, if you show that the LLC (or its members if it's a pass-through) paid taxes to another state on the income in question (e.g., by sending a copy of the tax return), that's legally the end of the matter. |
What does an administration need to show in court so that its change-of-policy decisions are not judged "arbitrary and capricious"? Regarding a recent SCOTUS decision on the "remain in Mexico" program, I've read that: The Supreme Court on Tuesday said the Biden administration likely violated federal law in trying to end a Trump-era program that forces people to wait in Mexico while seeking asylum in the U.S. [...] The court offered little explanation for its action, although it cited its opinion from last year rejecting the Trump administration’s effort to end another immigration program, Deferred Action for Childhood Arrivals. In that case, the court held that the decision to end DACA was “arbitrary and capricious,” in violation of federal law. Is there some general test for whether an administration's change of policy (like rescinding something initiated by a previous administration) is "arbitrary and capricious"? Or failing that, are there opposite examples, where such a policy change was challenged on "arbitrary and capricious" grounds, but the courts didn't find it to be so by ruling on the merits of that challenge (instead of side-stepping it—e.g., by dismissing it as a "political question")? | The agency must have provided "reasoned analysis" for rescinding its previous rule The Supreme Court in Motor Veh. Mfrs. Ass'n v. State Farm Ins., 463 U.S. 29 (1983) held that (emphasis added): An agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance. While the scope of review under the "arbitrary and capricious" standard is narrow, and a court is not to substitute its judgment for that of the agency, the agency nevertheless must examine the relevant data and articulate a satisfactory explanation for its action. In reviewing that explanation, a court must consider whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment. The Supreme Court's denial of the application for a stay in the "Remain in Mexico" case cited Department of Homeland Security v. Regents of Univ. of Cal., which (citing the above case) overturned the rescission of the DACA program because: In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” 116Stat. 2178, 6 U. S. C. §202(5). But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. | 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. | The first paragraph on the nature of the concern in the ICIG letter to McGuire clarifies what the alleged violation of the law is: Here, the Complainant's Letter alleged, among other things, that the President of the United States, in a telephone call with Ukrainian President Volodymyr Zelenskyy on July 25, 2019, “sought to pressure the Ukrainian leader to take actions to help the President’s 2020 reelection bid.” U.S. laws and regulations prohibit a foreign national, directly or indirectly, from making a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election. Similarly, U.S. laws and regulations prohibit a person from soliciting, accepting, or receiving such a contribution or donation from a foreign national, directly or indirectly, in connection with a Federal, State, or local election. Further, in the ICIG’s judgment, alleged conduct by a senior U.S. public official to seek foreign assistance to interfere in or influence a Federal election would constitute a “serious or flagrant problem [or] abuse” under 50 U.S.C. § 3033(k)(5)(G)(i), which would also potentially expose such a U.S. public official (or others acting in concert with the U.S. public official) to serious national security and counterintelligence risks with respect to foreign intelligence services aware of such alleged conduct. That is, it is alleged that it is a violation of federal election law for a foreign national to aid a US election (by providing information, which might be of value). The underlying statute is ambiguous. One reading is that the term refers to a deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information and also A serious or flagrant problem, abuse, violation of law or Executive order The alternative is to take the entire list and limit the scope of the violations etc. to those within the responsibility and authority of the Director of National Intelligence involving classified information The interpretive canon known as the "last antecedent rule" favor the narrowest scope possible the immiidately above phrase. The law does not require a Supreme Court quality analysis of the underlying law: the proper interpretation of that statute is far from obvious, see here. Whether or not the last antecedent rule would be actually invoked in a final appeal is very hard to say, but generally the courts disfavor the supposition that any statute is ever written ambiguously (that still doesn't tell us what the scope of the last phrase is). The wording of the ICIG letter clearly indicates his interpretation of the scope of the DNI phrase, as not being limited to only intelligence activities within the responsibility and authority of the Director of National Intelligence involving classified information. However, the ICIG letter also notes that the Director of National Intelligence has responsibility and authority pursuant to federal law and Executive Orders to administer and operate programs and activities related to potential foreign interference in a United States election Additionally, Executive Order 13848, Imposing Certain Sanctions in the Event of Foreign Influence in a United States Election declares that the ability of persons ... outside the United States to interfere in or undermine public confidence in United States elections... constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States putting the combination of foreign + elections within the scope of the DNI. The ICIG letter also reasons that alleged conduct by a senior U.S. public official to seek foreign assistance to interfere in or influence a Federal election would constitute a “serious or flagrant problem [or] abuse” under 50 U.S.C. § 3033(k)(5)(G)(i), which would also potentially expose such a U.S. public official (or others acting in concert with the U.S. public official) to serious national security and counterintelligence risks with respect to foreign intelligence services aware of such alleged conduct. | The court receives petitions for something like 8,000 cases annually, but it only hears something like 75 to 100 cases. There is not enough time or manpower to address each case that comes up, so the vast majority of the cases are simply rejected without comment. There are some notable exceptions, but a review of the order list from the day before Trump's order might give you a better feel for the caseload the court is dealing with and how unremarkable it is for an order to be brief, unsigned, and with no noted dissents. The only significance of the Court disposing of Trump's case this way is that it indicates none of the justices considered the issues he was raising to be serious enough to merit their attention. | Such a lawsuit is known as a strategic lawsuit against public participation, or SLAPP. In the United States, several states have enacted laws that penalize those whose file SLAPPs. The provisions of these laws vary from state to state, but they usually allow a defendant to file a motion to dismiss on the grounds that their statements were constitutionally protected free speech about a public figure. These laws may allow discovery to be halted until the motion to dismiss is decided; they may also require a plaintiff who files a SLAPP to reimburse the defendant's attorney's fees, possibly also with punitive damages. Some state's laws require the speech to be before a government forum (as opposed to, say, on Twitter), or to be aimed at procuring government action. And several states have no such laws at all. A summary of various US states' anti-SLAPP laws can be found on the website of the Public Participation Project, an organization advocating the establishment of such laws. Note that these motions to dismiss are not always brought by "the little guy" against "the big guy". A notable recent case was Stormy Daniels's libel suit against Donald Trump, which was dismissed earlier this year. Daniels had filed suit against Trump claiming that one of Trump's tweets about her was defamatory. Trump moved to dismiss under Texas's anti-SLAPP law, on the grounds that his tweet was protected political speech about a public figure (namely Daniels); and the judge agreed. | Collateral estoppel is inapplicable in both scenarios. The first scenario leaves no room for issues of collateral estoppel. Whether or not charges for "no-registration" proceed would strictly depend on whether the statute sanctions an offender's mere intent not to register his or her new address. If the elements of the claim require both (1) actual change of address, and (2) intent not to register it, the fact that the woman in your hypothetical scenario did not actually move precludes any claims about her failure to register what she [unavailingly] alleged to be her "new" address. In the alternative, where mere "intent not to register" meets all the prima facie elements for the new charges, her relocation (if any) as well as the prior judgment on grounds of the Fourth Amendment are irrelevant to these new charges. In the second hypothetical scenario, collateral estoppel is precluded from the standpoint that issues are not identical and therefore do not involve double jeopardy. See Ashe v. Swenson, 397 U.S. 436,, 444, 448 (1970). HHS's prior failure to produce FOIA records did not involve litigation, does not negate, and is not essential to the fact, that the physician committed fraud. VanDEVENTER v. MNB, 172 Mich.App. 456, 463 (1988) ("Collateral estoppel conclusively bars only issues "actually litigated" in the first action."). Edited to add/correct reference (see comments) Beyond these hypothetical scenarios, it should be obvious that collateral estoppel may apply to criminal cases. This is reflected, for instance, in footnote 4 of Yeager v. U.S., 129 S.Ct. 2360; 557 U.S. 110 (2009): Although the doctrine of collateral estoppel had developed in civil litigation, we had already extended it to criminal proceedings when Ashe was decided. Another treaty of interest might be Kennelly, Precluding the Accused: Offensive Collateral Estoppel in Criminal Cases (cited here). | This answer is under United States law. Usually, when a court interprets the law in a way that was previously ambiguous, parties are not given any leniency for not knowing in advance how an issue will be resolved. Sometimes, when a court overrules prior precedent with a new precedent the court will grant some leniency, if there is an easy way to do so. For example, in the Colorado case of Warne v. Hall, 2016 CO 50, the Colorado Supreme Court made the level of detail required in documents commencing civil lawsuits in the state was made much more strict, reversing long standing prior binding precedents in the state on the issue. The U.S. Supreme Court had done the same thing in federal cases, but the Colorado Court of Appeals at the time had repeatedly declined to apply the federal standard to state court cases. In Warne, the party whose legal documents were held to be insufficiently detailed was allowed, on remand to the trial court for further proceedings, to try to amend those documents to meet the new standard (for what it is worth, he didn't succeed on remand). This is usually not done, however, in "writing on the wall" situations where the new decision overruling prior law was obvious from an amendment to the statute that an older case interpreted, or from a previous new court precedent that overruled prior law in some circumstances and made it very likely that addition related binding case law would also be overruled, even if the previous landmark precedent didn't necessarily have that result. An exception applies in cases where a law enforcement officer is accused of violating someone's civil rights. In those cases, liability is only imposed on the officer if the fact that the conduct violated the plaintiff's legal rights was "clearly established" by statutes and case law at the time that the law enforcement officer took the action giving rise to the lawsuit, under a doctrine known as "qualified immunity". If the law was ambiguous at the time that the law enforcement officer took action, "qualified immunity" bars the lawsuit. Similar considerations apply in favor of the government in some habeas corpus litigation in federal court (where a state court conviction is collaterally attacked after direct appeals are exhausted). | The State Department has what I believe are deliberately awful FOIA processing guidelines, which categorize virtually every request as complex, unless all the requested documents are "readily available for release." Exactly what that means, I don't know, but I think it's safe to assume that they would not consider a 30-year-old document readily available. Nonetheless, that designation does not, as I understand it, have any effect on the statutory deadline to respond to the request, which is 20 days, regardless of whether it's been designated standard or complex. 5 U.S.C. 552(a)(6)(A)(i). Of course, all of this could vary somewhat depending on exactly what you've requested. If you've requested a press release from 1992, they should adhere to the 20-day deadline. But if you've requested a compendium of classified diplomatic cables, and they've decided to actually consider declassifying them, that might constitute the kind of "unusual circumstances" where the statute permits more than 20 days. Even then, though, the statute requires them to give you written notice of the circumstances, and the extension usually should not be more than another 10 days. At this point, you have the option of continuing to wait, calling the FOIA office for some polite sabre-rattling, going through the OGIS dispute-resolution program, or treating the delay as a denial and filing an appeal. You cannot go into court until you have gone through the full administrative appeal process. |
Is it legal to have an abortion in another state or abroad? Alabama passed new laws recently, making abortion a very limited option. In that context is it legal for a US national who lives in Alabama to have an abortion in another state where it is legal in the circumstances she in in? have an abortion abroad, in circumstances which are illegal in the US? Does the "US national" above matter? In other words: is the specific act of abortion illegal on itself in Alabama (or another state if it matters), just because of the geographic constraints - or is it related to the fact that someone lives in Alabama or, more broadly, is a US citizen (second bullet of my question)? Or, yet phaserly differently: can someone who lives in Alabama just travel to another state and get an abortion, then come back safely (= Alabama law enforcement does not care) or is it still a felony to have an abortion outside of Alabama? Note: Alabama is taken as an example following the recent law changes and their wide broadcasting in France. Any other state with a similar law will do. | Does the "US national" above matter? The nationality of the person is not relevant. Like most criminal statutes, the law applies to acts within the jurisdiction of Alabama, which basically means within the state's territory. The only foreign people who would be immune from that jurisdiction would be diplomats and the like, but such people would not be licensed to practice medicine in Alabama. This brings us to the point in the next paragraph. is it still a felony to have an abortion outside of Alabama? No. It is not even a felony to have an abortion inside Alabama. The law does not criminalize having abortions. It criminalizes performing abortions. See section 5 of the law: Section 5. No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable. Furthermore, no physician confirming the serious health risk to the child's mother shall be criminally or civilly liable for those actions. To extend your question, let us consider a doctor who is licensed to practice medicine both in Alabama and in some other jurisdiction where abortion is legal. Such a doctor could not be convicted under Alabama law for performing abortions in the other jurisdiction. | Is abortion still legal in all 50 states? Yes But if abortion is still legal, how could there be a case that gets appealed? By arresting someone who is involved in the allegedly illegal abortion and pressing charges. The case will be dismissed by the court of first instance as being contrary to Roe v. Wade. The State will appeal the dismissal. The appeal court will uphold the dismissal. The State will eventually request an appeal to the Supreme Court. Appeals to the Supreme Court are at the discretion of the Court (they hear them if they want to hear them) . If the choose not to hear it that's the end of the matter. If they choose to hear it then they will hear evidence and decide if they will uphould or overturn the precedent they set in Roe v. Wade. Doesn't someone have to be arrested under one of the new laws, and then the judgement in that case gets appealed? Yes What prevents numerous people from being arrested during this period of confusion? Politics. Such draconian measures are likely to be counterproductive to the state's objectives. It is far more likely they will wait for a slam-dunk, open-and-shut case where a conviction on state law would be guaranteed but for Roe v Wade. They will then run that one as the test case. And even after SCOTUS rules, what prevents a state from continuing to enforce the statute, repeatedly appealing them? Arrest by the FBI. A person who knowingly and repeatedly flaunts the authority of the Supreme Court will soon find themselves facing a Federal warrant for contempt. Also, what could be the justification for appealing a ruling that the new law is unconstitutional, because of Roe v. Wade? The state will argue that Roe v Wade was wrongly determined - that the court in 1973 misunderstood or misapplied the Constitution. There are certainly arguments that could be made on that basis and most of them are contained in the dissenting judgement - the case was decided 7-2. A lower court is forced to uphold this precedent, right? Yes The appelant [sic] would have to find some procedural reason why this ruling was incorrect, they can't appeal just because they don't like the ruling and think SCOTUS might agree with them, can they? Appeals are made for an error of law. These are often procedural but they can also be an argument that a particular decision was wrong because the court that set the precedent got the law wrong. So yes, they can appeal based on the argument that SCOTUS in 1972 was wrong about Roee v Wade and that SCOTUS in 2019 (or, more realistically, 2021-23) will agree with their interpretation of the law. | Of course there were laws on abortions in 1791 There just weren’t any statutes because this was handled by the common law. Under that, abortions were legal until quickening (when the mother first feels the foetus moving) and murder after that. Quickening usually takes place around 15-17 weeks. The fact that the Mississippi law makes 15 weeks the cutoff is probably not coincidental. | 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. | Only the currently unmarried may lawfully marry in the US US laws generally prohibit a marriage if either person is currently in a valid marriage to a third person, whether in the US or anywhere else. If a current marriage is valid it must be ended by divorce or in some other lawful way before a valid US marriage can occur. Marrying in the US while already married to another person is the crime of bigamy, and will also render the later marriage invalid and void. All this is true regardless of immigration status, it would be true for citizens, green-card holders, holders of any visa type, and undocumented people. No one may contract a marriage while currently married to someone else. I believe this is true in all US states and territories. Committing the crime of bigamy could possibly have negative impact on the immigration status of a non-citizen, in addition to potential criminal penalties. I am not sure why you would think it might be OK to proceed with such a marriage without first obtaining a divorce, annulment, or other lawful termination of any existing marriage, inside or outside the US, but it is not. | If a person A, speaking by telephone to an election official B in Georgia, attempts to influence that official to improperly alter an election result in a way that would constitute frauds or otherwise be a violation of Georgia law, then the person A has committed a crime in Georgia. There are various ways to commit a crime in a place without being physically present in that state. Since there is no question what was said on the telephone call in question (because it was recorded) the question to be determined would seem to be whether it constituted a crime under Georgia law, and whether the Georgia officials think it is worth prosecuting. It is true that a trial for a criminal accusation is normally held in the state where the crime was committed (or allegedly committed). But that need not be in a state where the person was ever physically present. If a person living in State C does business is state D, and is requires to file a tax return with the authorities in D, and it is alleged that the return was false, then the person is being accused of a crime in D, committed when the false return was received in D. | Does this mean all countries law applies to it? Basically yes. If the videos are in english and are about science in general does this mean if some country some day bans ( imprisonment ) science videos or use of a specific colour in videos can they extraterritorialy enforce this imprisonment if they are in some other country like USA or India? With respect to criminal cases, only if it can arrest that person or convince another country to arrest and extradite that person. Generally speaking, countries will only extradite someone if it is a serious offense under the domestic laws of the country of arrest as well as the country requesting that the person be handed over, and also only if the crime occurred in or was targeted at the requesting country. Sometimes the arrest is not legal in the place where it is made. For example, in this case decided by the U.S. Supreme Court (the quote is from the official syllabus to the case): Respondent, a citizen and resident of Mexico, was forcibly kidnapped from his home and flown by private plane to Texas, where he was arrested for his participation in the kidnapping and murder of a Drug Enforcement Administration (DEA) agent and the agent's pilot. After concluding that DEA agents were responsible for the abduction, the District Court dismissed the indictment on the ground that it violated the Extradition Treaty between the United States and Mexico (Extradition Treaty or Treaty), and ordered respondent's repatriation. The Court of Appeals affirmed. Based on one of its prior decisions, the court found that, since the United States had authorized the abduction and since the Mexican government had protested the Treaty violation, jurisdiction was improper. Held: The fact of respondent's forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws. U.S. v. Alvarez-Machain, 504 U.S. 655 (1992). I mean can a country just bring to jail any youtuber outside its borders ( using its national language as the language of the video ) who uploads content of international appeal because of some law? If the country can manage to arrest the person, yes. There are high profile cases from Saudi Arabia where that has happened. See, e.g., here and here (a blogger and his sister arrested in Saudi Arabia, while his wife and children flee to Canada), here (journalists for Lebanese periodical arrested in Saudi Arabia in relation to years old publications) here (more journalists arrested in Saudi Arabia), here ("A male Saudi Arabian teenager has been arrested in Riyadh over a series of online videos of conversations between him and a female Californian streaming-video star that went viral."), here (Yemeni blogger), and here (Washington Post journalist tortured and killed in Saudi Arabian embassy in Turkey at the direction of a senior member of the Saudi Arabian royal family). Also can a country just hold liable for youtube's data privacy practices a youtuber outside its borders and enforce the judgement if the practices of both youtuber and their chanell and youtube is legal in their home country? A country can hold anyone liable for anything its domestic laws allow it to hold someone liable for, and can enforce that judgment against any assets it can exert power over. Some countries with similar legal systems recognize each other's court judgments widely. Countries with very different legal systems often don't recognize each other's judgements. For example, most European countries do not recognize U.S. money judgment for torts (i.e. civil wrongs such as personal injury awards). Similarly, the U.S. does not recognize most foreign defamation judgments, and does not recognize most judgments of Saudi Arabian courts. One last thing is wether inclusion of ads make a difference? Usually not. But it can matter for purposes of assertions of lawsuit liability over someone outside the jurisdiction seeking to impose liability for something that harmed someone in their country. If conduct amounts to "doing business" in the country seeking to impose liability or amounts to a "purposeful availment" of the laws of the country seeking to impose liability in some why, an imposition of extraterritorial liability is more likely, and that tends to happen more in cases where there are ads that are commercial targeting the people of the country where the courts seek to impose liability. | Currently there is nowhere in the USA where polygamy is legal. So regardless of their sexual or gender expression or orientation, being married to MORE THAN ONE person at the same time is illegal. If, however, it turned out that someone had more than one spouse at their death, I'm sure that property distribution would be a matter for the probate court to sort out. As far as legally-married "trans spouses", for lack of a better term, I don't see why that would that impact inheritance in any way? |
US: Is there any subject that it is unlawful to teach in schools? In the US, are there any laws that restrict certain subjects or topics, or parts thereof, from being taught in schools? | 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. | 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. | It may "seem[] normative" that "a law cannot enumerate any specific persons or companies to be included or excluded from its provisions." But in fact it is not generally the case. There are various kinds of laws that traditionally have named specific people or entities to define their scope. These include: In nineteenth-century England, a divorce could only be granted by a specific law passed by Parliament, naming the persons to be divorced. I am not sure when the practice stopped. In the US during the nineteenth century (and I think the early twentieth century also) a corporation was normally formed by a specific law granting a charter of incorporation to the named company. In the US during the period 1866-1870 there were a number of laws passed permitting former Confederate officers and officials who were presented by the 14th amendment from holding office under the US or any state to hold office again, as the amendment provides for. Eventually Congress passed a more general amnesty. It was once common for the English Parliament to pass bills of attainder. These were legislative declarations that a particular person was guilty of a particular crime, generally without any trial or other process. Sometimes the specific sentence was also imposed by such a bill. This was sufficiently resented that the US Constitution specifically forbids Congress or any state from passing such a bill. It was once common for actual laws to grant payments to specific people for specific purposes. This is no longer common, but there is no legal bar to it in either the UK or the US that I know of. The UK Copyright, Designs and Patents Act 1988 contains a provision enabling Great Ormond Street Hospital for Children to continue to receive royalties for performances and adaptations, publications and broadcast of "Peter Pan" whose author, J. M. Barrie, had given his copyright to the hospital in 1929, later confirmed in his will. This right is to persist even after the expiration of ordinary copyright for the play, but is not a full grant of copyright. Laws or ordinances invoking eminent domain to take the property of particular individuals for particular purposes are common, mostly at the local level. In the US, the Equal Protection Clause generally forbids laws which treat people, or groups of people, differently unless there is some rational basis for the distinction. But in some cases a plausible basis is asserted and such laws are passed. | The main source of liability would be "for injuries caused by the act 'of things that he has under his guard'" (this article). As stated in Art. 1383. of the 1804 Civil Code, "Everyone is liable for the injury he has caused not only by his act, but also by his negligence or imprudence". Then the question is whether the teacher was negligent in allowing a poisoning to happen. It is much more difficult to judge French standards, since court rulings do not generally create legal principles. To take two extremes, suppose on the one hand that a teacher were to store a bottle of sulfuric acid on the table where anyone could take it. Knowing that some rapscallion might take the bottle and prank someone with it, the teacher might have neglected her duty as a teacher to safeguard students. However, if it is safely locked up and yet someone manages to get into the locker (e.g. they have a safe-cracking device that nobody expects a student to have access to), then she probably would not be liable. The difference comes from whether there is fault in the teacher's choices of action, that is, is that choice something that a reasonable person would know is wrong. It's not clear from the description how Bob got the substance: finding a means of preventing students from accessing dangerous materials should be the main goal, and probably does not require stopping experimentation. But facts about the school might imply that the risk is not practically controllable (e.g. no locks on the chemical cabinet). | The only time that this conduct has to be prohibited in a private university is when state or federal law prohibits it in any case. In those circumstances, no separate university policy to restate the applicable law is required. Best practices are to make students and teachers aware of any applicable laws, because knowing that, the the parties are less likely to be involved in illegal conduct. But private universities aren't required to adopt policies of that type if they aren't bothered to do so. With federal grant funding, private universities are required to have a mechanism in place for addressing sex discrimination complaints, but the policy doesn't have to articulate that particular conduct is or is not prohibited, beyond what federal law provides in the absence of a formally adopted policy. Incidentally, a few private colleges, almost all religious, specifically decline federal funding in order to be free of the regulations and strings that come with accepting it. Also, while private universities are not required to have such policies legally, private universities are required, as a matter of practical reality (e.g. in order to be considered eligible to borrow money from banks and to be eligible for many charitable grants) to have liability insurance in place, and liability insurers will often insist that their insured have certain policies in place, especially if the insured private university has a history of prior claims of this type. | No this is not a violation of discrimination law as there is no official language (de jure) in the United States at the Federal Level even though English, as the most common language is considered the National Language (de facto). Language is not a Federally recognized basis of discrimination for private business (your local state may require it though). Compared to Canada, where all services must be in English or French to comply with their Official Languages being English and French. It could be argued that, given America's very liberal Freedom of Speech laws, that requiring catering to a specific language by law could be challenged as a violation of your First Amendment Rights (after all, if you have freedom of speech, then you should have freedom of speech that others do not understand). Since there is nothing stopping an English Speaking American from learning the language you wish to do business in, nor is it confined to any race or religion (I, as a predominotly European descent, am perfectly capable of learning Arabic... or Japanese... or Navajo...). Where the confusion comes from is that in the United States, courts will often provide a linguistic interpreter for those who are not native English Speakers (even if they are conversational, given how technical legal terms can be, it may people who speak English as a Second Language will avail themselves of this service for the sake of making sure the nuance is properly translated). | Everything is allowed unless the law says it isn’t Common law systems like the USA are ‘exceptions based’ - the law permits everything except what it prohibits. So, your question is backwards - rather than looking for laws that allow it, you need to look for laws that prohibit, restrict or regulate it. There are laws that regulate this but none that prohibit it. | new-south-wales Almost certainly a school can enforce detention as part of discipline Government schools The Education Act 1990 at s35 gives the Minister power to discipline students and the power to delegate that discipline. That delegation has been done and individual principals are required to develop and implement disciplinary policies in their schools in consultation with staff, parents and students. If such a policy included out-of-school-hours detention then it would be a legal requirement on students and parents. Failure to comply could trigger further disciplinary action including suspension and expulsion. All of this would have to be done in a manner that ensured procedural fairness to be legal. Failure to comply could trigger civil action for truancy - students are required by law to attend school: this would include lawful disciplinary action. As a practical matter, this seems unlikely but it is possible in theory. Private schools Are under no obligation to provide education to any particular student. Although the Education Act still applies to them, they can reach for the suspension/expulsion buttons more quickly in response to what would be a breach of contract in failing to adhere to school rules. The expelled student would then become the government’s problem. |
Can Someone Sue me For Lawyer Costs If I File a Police Report and they are Found Not Guilty? The question is in the title, but I'm wondering if there's any risk to filing a police report against someone who broke a contract and stole $10,500 from me. The police report is being filed in Washington DC, and I'm very confident that he should be found guilty as I have clear evidence and 3 witnesses, but I want to confirm this before filing it. | No, filing a police report in good faith does not expose you to liability Of course, making false allegations or allegations where you are recklessly indifferent to the truth to police is both a serious crime in itself and defamation. Of course, breaking a contract is not a crime and the police are unlikely to take any action. If you borrow money from the bank and don’t pay it back, that’s not stealing or fraud unless it can be proven that you had no intention of paying it back when you borrowed it. This is a civil matter for the bank, not a criminal matter for the police. | No If you break the law you are legally responsible. Can you make it more difficult for law enforcement to find and prosecute you? Of course, that's why bank robbers wear masks. | Publishing government records is pretty classic First Amendment-protected activity. Keeping in mind that one can find a lawyer to sue for anything, I think that person would likely be operating well within the law. One thing in particular that I'd recommend staying aware of is how one might attempt to monetize this endeavor. There have been a lot of sites publishing arrest records, court records, and mugshots, and then charging people to have them removed to keep them from popping up in a Google search for those people's names. That is -- rightly -- regarded as sketchy behavior; while several states have passed laws prohibiting that business model, I don't believe any such law exists in Washington State at this point. | A case for negligence or some other tort would likely never reach the stage where we could answer this question, as lawyers are generally immune from suit for their litigation conduct. I don't know of any case with facts likey you've described, but my understanding is that the litigation privilege precludes virtually any tort action based on a lawyer's statements in the course of the proceedings. Florida's Fifth District Court of Appeal, for instance, has specifically acknowledged that claims for defamation, extortion, fraud, perjury, forgery, slander of title, injurious falsehood are unavailable: The policy reasons for the privilege have often been repeated: In fulfilling their obligations to their client[s] and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation. Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309 (Fla. 3d DCA 1989). | It depends. The police and only the police decide what are and are not police matters. However, although it might not be a police matter, you still have lots of options at your disposal. For example, does your jurisdiction (city, town, municipality, etc.) have an animal control division? i.e., City dog catcher. Most do. If so, I would call the animal control division and file a report. They might possibly do a field visit and take the animal into custody if the animal is still roaming loose. If you sustained bodily injuries, you should get checked by a doctor and have those injuries documented in a medical report. If possible, you could drive by the property and take photos of the unchained dog roaming loose. Then, armed with your evidence consisting of: police report medical injury report animal control report and photographs of the scene You could (with the help of a licensed attorney) file a civil suit against the pet owner. You might be able to win an award for damages, pain and suffering and possibly punitive damages as well (check with your attorney). Also, your attorney could advise you if you might have a cause to move for an enforcement action against the dog and/or its owners that might or might not include having the animal removed from the owners custody or in extreme cases of negligence and bad behavior possibly "put to sleep." Your suit might focus on collecting from the homeowner's insurance policy of the pet owner and you could potentially collect a lot of money with the right set of facts and evidence on your side. You might want to look for an attorney who specializes in personal injury. Most PI attorneys work on a contingency. Meaning they don't charge an up front fee and will only get paid if you win your case or settle. In which case their fee is typically about 1/3 of what you get awarded in settlement or judgment. | Has friend A got any chance of disputing the cost of the seizure as the police didn't issue the notification? I don't think so (see below for why), but you should pay a lawyer if you need legal advice. The met say A FORM 3708 seizure notice will have been given to the driver where practicable, giving full instructions on the reverse. A notice letter will also be sent to the registered keeper, if they were not the driver. In the meantime, this information will assist you. (my emphasis). Section 165A of the Road Traffic Act 1988 does not, so far as I can see, mention any legal requirement for the Police to issue a paper document at the time of seizure. Here's 165A in full 165A Power to seize vehicles driven without licence or insurance Subsection (5) applies if any of the following conditions is satisfied. The first condition is that— a. a constable in uniform requires, under section 164, a person to produce his licence and its counterpart for examination, b. the person fails to produce them, and c. the constable has reasonable grounds for believing that a motor vehicle is or was being driven by the person in contravention of section 87(1). The second condition is that— a. a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143, b. the person fails to produce such evidence, and c. the constable has reasonable grounds for believing that the vehicle is or was being so driven. The third condition is that— a. a constable in uniform requires, under section 163, a person driving a motor vehicle to stop the vehicle, b. the person fails to stop the vehicle, or to stop the vehicle long enough, for the constable to make such lawful enquiries as he considers appropriate, and c. the constable has reasonable grounds for believing that the vehicle is or was being driven in contravention of section 87(1) or 143. Where this subsection applies, the constable may— a. seize the vehicle in accordance with subsections (6) and (7) and remove it; b. enter, for the purpose of exercising a power falling within paragraph (a), any premises (other than a private dwelling house) on which he has reasonable grounds for believing the vehicle to be; c. use reasonable force, if necessary, in the exercise of any power conferred by paragraph (a) or (b). Before seizing the motor vehicle, the constable must warn the person by whom it appears that the vehicle is or was being driven in contravention of section 87(1) or 143 that he will seize it— a. in a section 87(1) case, if the person does not produce his licence and its counterpart immediately; b. in a section 143 case, if the person does not provide him immediately with evidence that the vehicle is not or was not being driven in contravention of that section. But the constable is not required to give such a warning if the circumstances make it impracticable for him to do so. If the constable is unable to seize the vehicle immediately because the person driving the vehicle has failed to stop as requested or has driven off, he may seize it at any time within the period of 24 hours beginning with the time at which the condition in question is first satisfied. The powers conferred on a constable by this section are exercisable only at a time when regulations under section 165B are in force. In this section— a. a reference to a motor vehicle does not include an invalid carriage; b. a reference to evidence that a motor vehicle is not or was not being driven in contravention of section 143 is a reference to a document or other evidence within section 165(2)(a); c. “counterpart” and “licence” have the same meanings as in section 164; d. “private dwelling house” does not include any garage or other structure occupied with the dwelling house, or any land appurtenant to the dwelling house. Also what consequences could Friend A face for knowingly allowing friend B to drive his (Friend A's) car whilst he was drunk and didn't hold a valid license or insurance? A few random thoughts: B is clearly committing several criminal acts and A appears to have possibly aided and abetted them. I imagine A's insurance company might consider this invalidates A's insurance. I'm just some random bloke in the intertubes, not a lawyer. | If he is still pressuring you for the money even after filing insurance, talk to your city or county prosecutor's office. If you call the police, they may say they're too busy to deal with it and that it's a "he said-she said" situation anyway. But if you go to the local prosecutor, they should be more interested, as this could be a felony, considering the amount of money demanded, and they can instruct the police to help investigate. | You are describing a liability suit. My sense is that based on the facts you describe you will face two serious challenges to making a successful case. Damages and liability. In order to win a liability case, you must first establish that you have been damaged in some way. According to your facts, your damages are at best, the replacement value of a used controller. I'm guessing that's what, $20 or so? That doesn't cover the cost of an attorney's time to even begin to hear your version of the facts, much less give you advice or pursue a case for you. After you establish damages, you must prove the company is responsible or has some share of liability for causing your damages. Again, I think this is going to be an obstacle for you. Not placing a warning that the game will affect you by causing you to throw your controller and be mean to your mom would be unprecedented if you were to prevail. AFAIK. |
Is blacklisting allowed after I have put my notice in and acquired a new job elsewhere? I am a Massachusetts citizen and I am also a disabled vet. I work at a large company as a programmer/developer, and I have decided to put my 2 week notice in after many frustrations and overall unhappiness. All of my bosses tried to keep me by offering more money and less work load etc (I declined). They even offered to let me work on other development teams etc. I am still on good terms with all of my bosses and had no problems getting references for a new job at a different company. There is one person that I work with that threatened to call the new employer and tell them not to hire me (we do not get along all that well). I read that blacklisting is illegal in Massachusetts. Is it illegal for this fellow employee to call the new company and tell them not to hire me? Does this count as blacklisting? I have already signed all of the paperwork at the new company and I am all set to start in a couple of weeks. I would be pretty upset if I were to lose the opportunity (especially where all of my bosses have given good references). | The grain of truth is what you've read is that Mass. Gen. Laws ch. 149 § 19 says No person shall, by intimidation or force, prevent or seek to prevent a person from entering into or continuing in the employment of any person This is referenced in a compendium of state laws loosely subsumed under the notion of "blacklisting". In Arkansas, this would be writing, printing, publishing, or circulating false statements in order to get someone fired or prevent someone from obtaining employment; in Indiana it is using any means to prevent a discharged employee from obtaining employment. The Massachusetts law only prevents use of intimidation or force to prevent a person from getting employed. In other words, "blacklisting" is not the same thing in all jurisdictions. | I found a mention of this issue here, where the case Rhonda Eddy v. Ingenesis was cited. Eddy worked from home in West Virginia, but had signed her contract with a company headquartered in Texas. The link is the decision of The State of West Virginia Supreme Court of Appeals, which upheld the decision of the Circuit Court of Jefferson County, namely, that the Circuit Court did not have the authority to hear Eddy's petition against her employer because she was out of the Circuit Court's jurisdiction. The circuit court found that it did not have personal jurisdiction over respondent under West Virginia’s personal jurisdiction statutes, and that respondent did not have sufficient minimum contacts with West Virginia to satisfy federal due process considerations. The circuit court also found that it did not have subject matter jurisdiction over petitioner’s WPCA claim because petitioner’s employment contract contained a valid choice of law clause that mandated Texas law would govern any dispute between the parties. Emphasis mine. It all depends on stipulations made in the employment contract. This (in the United Kingdom) states 4. Place of Work Allows the employer to specify the location where the employee will work. However, it also allows for the employer to specify any other location in the future. This gives the employer much greater flexibility. That would seem to indicate that (at least in the U.K.) the place is specified in the contract. | I'll assume you are salaried full time exempt in the U.S. in an at-will, right-to-work state and are covered by a standard "employee handbook". This has been developed by you, employee, to assist in doing your job, employment, for your company, employer, using time, materials and information belonging at least partially to your employer. Since creating it, you gave it to other employees and have accepted management directives to continue work on the software as part of your full-time job. This is the company's software now. Your best bet is to support it like crazy, make it a big deal and ride it as high as it will take you in the company. Ask for a raise, ask for a promotion, get references and put it as an accomplishment on your resume. But you can't sell it or take it away from your employer. That ship has sailed. You can still greatly benefit from your work (at your employer's discretion) and learn from it for next time. | Can a district rescind an offer of employment? Yes. Any contractural offer can be withdrawn so long as it has not been accepted. You did not accept it, so the withdrawal is legal. Can they hire someone who is not qualified ... That depends on the particular law that mandates the qualification. As a general principle, anyone is allowed to work at anything unless there is a law that says “you cant do job X unless you have qualification/licence/accreditation/whatever Y.” So you need to actually read that law. Some allow a grace period for a person to do X while they get Y and some are outright prohibitions. And there are some things that people think require a specific qualification because everybody has one but there is actually no legal requirement. For example, I’m a qualified arbitrator, adjudicator and mediator. I need the qualification to work as the first one in australia and I it to work as the second in queensland but not new-south-wales but I don’t need it anywhere to work as the last one - most mediators have qualifications but they are not legally required. I am not a qualified lawyer because I don’t need to be to work as any of the above and, indeed, merely being a lawyer does not allow you to work as an arbitrator. … and rescind my offer of employment? The eligibility of the person they chose to hire has no bearing on their decision not to hire you. If they have hired an unqualified person then that is for the relevant regulator to deal with and has nothing to do with you. Are they not obligated to hire the most qualified applicant? No they are not. Employers have the discretion to choose the applicant they consider the “best”. And they can assess how your better qualifications weigh up against someone else’s past history with the organisation. Provided they do not consider things that they are not permitted to consider under discrimination law and that the process is not corrupt, they can weight the various factors how they wish. However, if an employer has stated that they will weight various applications is a specific way, then they have to do that. | Law (regardless of its type) supersedes contract, provided it has jurisdiction over the persons bound by that contract. Contract provisions that are counter to law are generally held to be void. State law has authority over an employer's policies or hand book. However, there may be exceptions in state law (so I would double check). A frequent exception (at least in California law, which I am most familiar with) is for very small businesses. Another exception, from C.R.S. § 8-4-101(5), is if you are considered a "contractor" rather than an employee, per the government's determination. It is possibly worth your time to let you employer know of this conflict before termination if possible, so that they can adjust their policies, rather than in an adversarial position after termination, if only to avoid the headache. | 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 | The real question isn't whether there is a law, but whether you want to keep your job. If you want to do something that you believe will affect your company negatively, and you ask whether it's legal or not, the question alone should show you it's a bad idea. And another question is whether you can be sued, and what it will cost you even if you can win a case, and the answers to that are "yes" and "a lot". | Normally, an employer can decide whether someone is allowed to go on leave or not. If someone has a covered disability, that must be accommodated, except to the extent that the disability makes the person unable to perform a bona fide job qualification that cannot be accommodated by any practical means. Employers have some latitude and discretion in evaluating this question and a doctor's opinion, while it is relevant evidence that an employer should consider, isn't binding on the employer. This is because physicians can differ in their opinions on a particular case, and because physicians don't necessarily know exactly what is and isn't necessary to perform a job satisfactorily. Business owners are entitled to decide what duties go with a job, and within reason, what kind of performance of those duties meets their standards. As the case summary linked to in the comments explains: "Counseling is a medical appointment and the determination as to whether it can be required for employment is dependent on whether it is “job related” and consistent with a “business necessity” as described in the ADA." Under the circumstances described in the question, it is likely that this requirement would be found to have been met. Also, an employer could place an employee on medical leave without requiring counseling or therapy as a requirement to return, so long as some other performance standard was established for the employee. On the other hand, the employer's discretion is not unlimited. If a judge or jury finds that an employee was clearly capable of performing the job in a satisfactory manner (e.g. by noting that the disabled employee outperforms many non-disabled employees in the same position who are not put on leave), then that finder of fact could conclude that the employer had engaged in illegal discrimination based upon disability, rather than legally exercising an employer's discretion. There are, inevitably, gray areas, and no one doctor's opinion is enough to resolve that question definitively. |
Under what statute can an English judge 'sentence' someone to read classic literature? This story in the Guardian claims that a judge has imposed a suspended sentence on someone convicted of terrorism offences and has also insisted that he read classic literature by Dickens, Austen, Shakespeare and Hardy. I assumed that, under English law, sentences for criminal convictions were tightly specified and not open to imposing such unusual/flexible punishments. Under what statutes or sentencing guidelines can a non-standard requirement like this be imposed? UPDATE The case has been referred to the Attorney General for review (on the grounds of undue lieniency) so we might get more details about this. | Section 277 of the Sentencing Act 2020 provides: 277 Suspended sentence order for person aged 21 or over: availability (1) This section applies where, in dealing with an offender for an offence, a court passes a sentence of imprisonment. (2) A suspended sentence order (see section 286) is available in relation to that sentence if the term of the sentence of imprisonment is (a) at least 14 days, but (b) not more than 2 years. Chapter 5 of Part 10 of the Act contains provisions relating to suspended sentence orders (SSOs). The following are applicable: 286 (2) A suspended sentence order may also specify one or more available community requirements with which the offender must comply during the supervision period. 286 (4) The community requirements are listed in column 1 of the community requirements table (see section 287). 286 (5) Provision about each requirement is made by the provisions of Schedule 9 mentioned in the corresponding entry in column 2 of that table. The community requirements table in section 287 contains the following community requirements which may be imposed as part of a SSO: Unpaid work requirement Rehabilitation activity requirement Programme requirement Prohibited activity requirement Curfew requirement Exclusion requirement Residence requirement Foreign travel prohibition requirement Mental health treatment requirement Drug rehabilitation requirement Alcohol treatment requirement Alcohol abstinence and monitoring requirement Attendance centre requirement Electronic compliance monitoring requirement Electronic whereabouts monitoring requirement Each of these are described in detail in Schedule 9. I wasn't able to find the sentencing judgment for this particular case, but my guess would be that the judge imposed either an unpaid work requierment or a rehabilitation activity requirement (the 1st and 2nd on the list). None of the others appear to be applicable. Part 1 of Schedule 9: 1(1) In this Code “unpaid work requirement”, in relation to a relevant order, means a requirement that the offender must perform unpaid work in accordance with the instructions of the responsible officer as to (a) the work to be performed, and (b) the times, during a period of 12 months, at which the offender is to perform it. Part 2 of Schedule 9: 4(1) In this Code “rehabilitation activity requirement”, in relation to a relevant order, means a requirement that, during the relevant period, the offender must comply with any instructions given by the responsible officer to do either or both of the following (a) attend appointments; (b) participate in activities. 5(4) The responsible officer, when instructing the offender to participate in activities, may require the offender (a) to participate in specified activities and, while doing so, comply with instructions given by the person in charge of the activities, or (b) to go to a specified place and, while there, comply with any instructions given by the person in charge of the place. | 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. | If you're in the USA, this almost certainly falls under fair use, or if you are in another jurisdiction, it almost certainly falls under an analogous exception for educational use. The fact that the excerpt is short contributes to this conclusion. You can also avoid having to rely even on these exceptions by choosing sources that are in the public domain. The specific date before which a work is guaranteed to be in the public domain depends, again, on your jurisdiction, but it's probably sometime in the early 20th century. For example, you're certainly on solid ground if you use Dickens. | The power definitely exists, and it is also said by some (respectable persons) that they have a duty to do so. There are many schools of legal interpretation. One trend is to attempt to discern legislative intent, based on whatever facts there might be such as newspaper articles or legislative committee reports. A contrary trend is to look exclusively at the text enacted by the legislature – this school is known as the Textualist school, and is currently dominant in the US Supreme Court. There are also non-textualist "progressive" trends that seek justice according to some social principle, rather than the text of the law or the definitive intent of the original legislators, which may address the situation that you have in mind. In civil cases, statutory law tends to be rather unclear, allowing a judge to decide on the basis of their beliefs of what is fair, equitable or just. That is because in the common law, close to a millenium old, judgments were supposed to be "just". In the US, much of the common law has been re-coded as statutory law, and in that case, the intent of the legislature is really to "encode the sense of justice implicit in the common law". This does not mean that trial judges have unlimited power to set aside the words of existing laws. Their primary obligation is to apply the law literally, as interpreted by their superiors (appellate courts). When the higher courts are silent and when the legislature is not clear, the trial judge has some leeway to follow whichever jurisprudential philosophy they adhere to. | Probably not. I can't find the new text, but the existing law was probably just amended with a new category: "hate speech" based on race, religion, disability and "homosexual leanings, lifestyle, or orientation" was illegal – this new law seems to just tweak the categories. The Supreme Court has addressed the general law here in a race-based case, stating that expression of contempt is crucial to defining the crime ("to threaten or insult, or promote hatred, persecution or contempt" based on a protected category). The line that would be drawn is between reading the text, versus promoting hatred or contempt using the text as justification. You can't be prosecuted for hate speech in Norway by reporting the existence of racial etc. discrimination. | Any written communication is generally admissible Subject to all the normal rules for admissibility of course. For texts between you and a third party the major issue that springs to mind is relevance. As in, how are they relevant to the dispute between you and this man? If they are not, your lawyer should have objected to them on this basis, however, its too late now. I'm curious as to how he obtained these and whether it was done legally or not. Illegality will not affect their admissibility as the exclusionary rule doesn't apply to civil matters, however, it does speak to the gentleman's character. | 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. | First, while Law and Order should not be taken as an accurate depiction of a New York trial, it especially should not be taken as an accurate depiction of an Australian trial. Australian law, while it has some major similarities with US law (both ultimately derive from the law of England), is not US law. With procedural matters (such as "may jurors ask questions of witnesses"), it can potentially differ from court to court. In general, jurors may not simply ask a witness a question. The jury's job is not to investigate and figure out if the defendant was guilty or not; it's to evaluate the cases presented by each side. US (and Australian, as far as I know) courts use what's known as the adversarial model, where the prosecution and the defense both present the best cases they can and a neutral third party decides which case was stronger. In a US criminal trial, the state is expected to justify why someone should be in jail; the jury shouldn't be helping them justify it. This isn't how all jurisdictions around the world work, but it's how the US does. One concern with juror questions is that it has the risk that the juror will not be impartial. Jurors are not supposed to get into arguments with witnesses, or to go after them to try to prove a point. In your case, the juror might be introducing an entirely different line of reasoning from the one either side is presenting, and that's simply not their job. People have raised the concern that a juror thinking up questions might be deciding the case before they hear all the evidence, and might give too much weight to the answers to their own questions (or read a lot into it if a question is denied). There are also rules on what questions may be legally asked; lawyers know these and jurors generally don't, which is why jurors may almost never directly ask a question to a witness. Where they can ask questions, it's virtually always written questions, which the judge reviews, gives to both sides to see if anyone objects, and then reads to the witness in a neutral tone. |
"Outrageous conduct"? Is there a cause of action for "Outrageous conduct" that does not depend on the vulnerability to the emotional distress of an individual but might be properly applied to a public official (acting in official capacity) due to the effects on society as a whole? I found California jury instructions regarding the intentional infliction of emotional distress that defined outrageous conduct as: “Outrageous conduct” is conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure. If that definition fits the acts (or inaction) of a public official, might it be applicable under a different cause of action, e.g. mandamus under 28 U.S. Code § 1361? (See for example https://www.judicialwatch.org/documents/jw-v-united-states-capitol-police-121-cv-00401/) Could outrageous conduct overcome allowance for a discretionary duty? (I think there was a hearing, in this case, today, but the results aren't public yet.) Stretching my lack of knowledge of the legal process, could outrageous conduct be used in a class action? | Is there a cause of action for "Outrageous conduct" that does not depend on the vulnerability to the emotional distress of an individual but might be properly applied to a public official (acting in official capacity) due to the effects on society as a whole? No. There is no such cause of action. A public official acting in the official's official capacity is immune from civil liability in tort for intentional acts that do not violate a clearly established constitutional right. There are some narrow exceptions to this general rule. For example, certain employment discrimination lawsuits are allowed. Similarly, for example, embezzlement of private funds held in a fiduciary capacity by a public official in charge of conducting foreclosures would be actionable in many states. But there are no exceptions that are in any way a fit to the fact pattern described. Furthermore, at least in federal courts, there can't be such a cause of action. An action that has an effect on society as a whole is, by definition, an act which no one has standing to sue regarding. Standing to sue, which is a subject matter jurisdictional requirement in federal court, requires a particularized injury to a legally protected interest of an individual that is distinct from the injury caused to the general public, or taxpayers generally, or citizens generally. State law, in principle, can give standing to someone who does not have standing under this federal constitutional law standard in state court, but most states make only the most narrow exceptions to the principle. For example, some states give someone standing to sue for violation of state constitutional budget and tax rules that apply to legislation generally. Often standing exceptions and exceptions from the federal court case and controversy requirement (which is also a matter of subject matter jurisdiction in federal court) are waived at the same time. | Section 4A of the Public Order Act 1986 (which was amended by section 154 of the Criminal Justice and Public Order Act 1994). [F14A Intentional harassment, alarm or distress. (1)A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he— (a)uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b)displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress. (2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling. (3)It is a defence for the accused to prove— (a)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or (b)that his conduct was reasonable. (4)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or both.] | Does IIED (emotional distress) apply to infidelity and if no, why not? Generally speaking, infidelity falls short of liability for IIED. Clark v. Clark, 867 S.E.2d 704 (2021) appears to be one recent exception, but that is because there the defendants' conduct allegedly entailed more than mere infidelity, such as "sen[ding] at least one email to Plaintiff in which Defendant Barrett told Plaintiff she "was a bad mother, that [she was] uneducated... [she] was a bad wife," and that Plaintiff came "from an unsuccessful family"" (quotation marks in original), conduct that the court seemed to associate with elements of Watson v. Dixon (i.e., frightening the plaintiff, humiliation, etc.), cited in the preceding paragraph of the Clark decision. The difficulty for prevailing on a claim of IIED generally lies in proving that "the defendant's conduct was [...] so outrageous that it is not tolerated by civilized society", Rogers v. Louisville Land Co., 367 S.W.3d 196, 207 (2012). The notion that infidelity "is not tolerated by civilized society" is hard to establish. For instance, many people do not very often distance themselves from a co-worker, friend, or acquaintance merely on grounds of that person being known to cheat on that person's spouse or partner. Also the fact that adultery is hardly ever prosecuted despite being prohibited in a jurisdiction's penal code reflects the extent of societal and governmental tolerance to infidelity. | The law is part of a larger bill modifying punishments for various crimes. For example it increases the penalty for vandalizing government property, creates offenses for assault on a first responder carrying out their duties (depending on the severity of the assault), increases the penalty for aggravated rioting, obstruction of highways and so on. It also clarifies that being assembling or being present at the scene of a riot is not an offense. The only new crime created is assault on a first responder. Unauthorized camping on state property was already a crime: this is an increase in the penalty for committing that crime. It does have a requirement for notice and continued violation for 24 hours, unlike vandalism where if you do the deed, you can be arrested. The courts have not held that the First Amendment protects the right to trespass, assault or commit vandalism. The only viable avenue for a legal challenge is that the punishment is cruel and unusual (too severe). A change from Class A misdemeanor to Class E felony is the smallest increment in penalty. The state will argue that the increase in penalty is necessary to maintain public order, and that it is not arbitrary or capricious, because there have been many recent violations of the law. In general, when laws are frequently disobeyed, it is legal for the government to increase the penalty for breaking the law in order to achieve compliance. | The statute in question (which is unusual and not part of the law in most U.S. states) is as follows: (a) A person commits an offense if the person: (1) observes the commission of a felony under circumstances in which a reasonable person would believe that an offense had been committed in which serious bodily injury or death may have resulted; and (2) fails to immediately report the commission of the offense to a peace officer or law enforcement agency under circumstances in which: (A) a reasonable person would believe that the commission of the offense had not been reported; and (B) the person could immediately report the commission of the offense without placing himself or herself in danger of suffering serious bodily injury or death. (b) An offense under this section is a Class A misdemeanor. There is no indication that violation of this section gives rise to civil liability. Notably, the U.S. Supreme Court in the case of Castle Rock v. Gonzalez came to its conclusion that there was no civil liability of a police department or police officers for failure to enforce a restraining order in the face of language in a state statute whose plain language fairly clearly created a mandatory duty to that effect. The offense of unlawful restraint Texas Penal Code § 20.02 is as follows: (a) A person commits an offense if he intentionally or knowingly restrains another person. (b) It is an affirmative defense to prosecution under this section that: (1) the person restrained was a child younger than 14 years of age; (2) the actor was a relative of the child; and (3) the actor's sole intent was to assume lawful control of the child. (c) An offense under this section is a Class A misdemeanor, except that the offense is: (1) a state jail felony if the person restrained was a child younger than 17 years of age; or (2) a felony of the third degree if: (A) the actor recklessly exposes the victim to a substantial risk of serious bodily injury; (B) the actor restrains an individual the actor knows is a public servant while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; or (C) the actor while in custody restrains any other person. (d) It is no offense to detain or move another under this section when it is for the purpose of effecting a lawful arrest or detaining an individual lawfully arrested. (e) It is an affirmative defense to prosecution under this section that: (1) the person restrained was a child who is 14 years of age or older and younger than 17 years of age; (2) the actor does not restrain the child by force, intimidation, or deception; and (3) the actor is not more than three years older than the child. In practice, almost any restraint by a police officer would not obviously be outside the immunity for a lawful arrest sufficient to give rise to the duty to report a felony. Also, the person who decides whether to press charges is the prosecuting attorney who has a strong long term strategic interest in maintain a positive relationship with law enforcement and who often subjectively views law enforcement as his client even though this is the correct as a matter of legal doctrine. Question 1: Are any police on the scene responsible for reporting the crime of unlawful restraint which has become a felony in their presence? In general law enforcement may have a duty under department policy as a matter of employment law, but there is no general legal duty for a police officer to report a crime committed in their presence. Law enforcement officers, like prosecutors have wide discretion over whether they will choose to enforce crimes in the U.S. But, since Texas has a mandatory reporting law, this comes down more to a matter of interpretation and a restraint by an officer would almost never never give rise to a felony due to the privilege for an arrest. Also, it isn't at all obvious that a law enforcement officer has to report the crime to anyone but him or herself to satisfy the requirements of the law, and there is no duty for a law enforcement officer to act upon a report of a felony. Question 2: Would the police in not reporting the crime be implicating more involvement than mere presence and thereby threaten their immunity stance? Generally not. To have liability personally, the law enforcement officer would have to be a co-conspirator. Usually conspiracy liability would require an affirmative action in support of the illegal action and not merely inaction in the form of failing to report a crime. Police have qualified immunity from civil liability for any act that is not a clearly established violation of a constitutional right. If the police do not owe a duty to protect the person being unlawfully restrained, it would seem they still owe a duty to uphold the laws of the state like they would for the crimes of jaywalking, driving without a seat belt, or rape. This is mistaken. Law enforcement officers have no legally enforceable duty to uphold any laws. They may have a moral duty to do so, and they may have a strong employment relationship pressure to do so, but a law enforcement officer faces neither civil nor criminal liability for merely failing to enforce a criminal law when they know a crime has been committed. If the police do not owe a duty to the citizen to arrest another officer for violating the law do they at least owe a duty to the law to make a criminal complaint regarding the violation they witnessed? Arguably, there is a criminal law duty to report a clear felony, but since the duty is only to report the matter to a law enforcement officer and they are a law enforcement officer, it isn't clear that this statute applies at all. A report of a suspected felony is not a criminal complaint. And if so, and if they do not, would they be more accountable than the populace who are required by law to report felonies? No. As noted above, they are arguably less accountable than members of the general public. | No. Causing someone "pain and suffering" is not against the law; it is merely one kind of damages that can be awarded when someone has done something that is against the law. You may, for instance, endure pain and suffering from a car accident or shooting, in which case you could collect damages for your pain and suffering after proving that the other party committed the torts of negligence or battery, which are illegal. But if you were enduring pain and suffering from the last episode of Lost, you could not collect damages for your pain and suffering because it is not against the law to write a crappy finale. So in your case, cannot sue for pain and suffering based simply on the existence of a secret audio recording. North Carolina allows secret audio recordings, and it does not make exceptions for audio recordings that hurt someone's feelings. But to go beyond your explicit question, there still remains the possibility that you could pursue a legal action. If the other party used that recording in a way that violated the law, that might give rise to a tort that would support an award of damages for pain and suffering. If they publicly distributed a recording of themselves having sex with someone, that might constitute the tort of public disclosure of private facts. If they edited the recording to make it sound like someone had said something that they had not and then gave it to someone else, that might be grounds for a libel action. | The case Graham v. Connor, 490 U.S. 386 may help to explain this. In a use-of-force case, "courts must identify the specific constitutional right allegedly infringed by the challenged application of force, and then judge the claim by reference to the specific constitutional standard which governs that right", therefore "The notion that all excessive force claims brought under § 1983 are governed by a single generic standard is rejected". Such claims "invok[e] the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable seizures," and must be judged by reference to the Fourth Amendment's "reasonableness" standard". In invoking the notion of "reasonable", the court is referring to the fact that a person chooses an action being in possession of certain knowledge, and using that knowledge plus reasoning, to judge an outcome. So when a suspect appears to be armed, the officer has to decide whether the weapon is real and whether the suspect is likely to use it against the officer. When one conjectures that a lesser degree of force could have been used because it turns out that the suspected weapon was a plastic toy, one is appealing to knowledge not available to the officer at that time. In Graham, the court held that the legal question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation In other words, the judgment is made by reference to the objective facts of the circumstance, and not the subjective emotional state of the officer. As the court put it, "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight". | Meta Considerations I'm not aware of any such cases and I don't think that there are any, because if there was, the case would have generated more publicity around a "glamorous" issue in the law. Despite the fact that constitutional law makes it much easier to bring defamation cases when one is a private individual suing a non-media defendant in a matter of private concern, any search of the case law reveals that the defamation cases that actually get brought are those against media defendants and those involving matters of public concern. Private individuals rarely suffer enough harm to make it economical to bring a defamation suit, and people whose lives are not a matter of public concern rarely have deep pockets to hire attorneys to bring defamation lawsuits. Only Nominal Damages And No Attorneys' Fees Could Be Recovered First of all, even in a negligence per se case, where an award of nominal damages (i.e. $1 and court costs excluding attorneys' fees) is allowed as matter of law to the prevailing party, I don't think that an award of more than nominal damages would be upheld in the face of affirmative evidence that there was no actual harm to the reputation of the person defamed as a result of the publication of the defamatory statement. In defamation per se cases, nominal damages are awarded when "there is no proof that serious harm has resulted from the defendant's attack upon the plaintiff's character and reputation" or "when they are the only damages claimed, and the action is brought for the purpose of vindicating the plaintiff's character by a verdict of a jury that establishes the falsity of the defamatory matter." RESTATEMENT (SECOND) OF TORTS § 620 cmt. a (1977). This would apply in a case of complete disbelief. Since the American rule applies to attorneys' fees in defamation cases, this would make every such suit an economic loser – which doesn't mean that someone might not act in an economically irrational way to defend their honor or something like that. Suing Increases The Harm Rather Than Mitigating It The publicity of a public trial undermines that approach in the kind of case in the hypothetical as well. Absent a lawsuit, there are one or two people who don't even believe it who heard the defamatory statement. But, if you bring a lawsuit, given the likelihood that the media will cover such a case, millions of people will hear the defamatory statement and they may very well believe those statements because they don't know any better. Even if you are ultimately vindicated at the conclusion of a trial, many people will have heard the defamatory statements after the suit is filed, but will never find out that you were vindicated many months later following a trial. Massively spreading defamatory statements about yourself that nobody would otherwise have heard about is just stupid as a matter of litigation tactics. The Presumption Of Harm To Reputation May Be Rebuttable Secondly, it isn't obvious to me that the presumption of harm to reputation in a negligence per se case is a conclusive presumption as opposed to a rebuttable presumption. For example, one can generally argue in a defamation case that someone's reputation before the defamatory statement was made is so irretrievably bad in the area related to the defamatory statement that it is impossible to damage someone's reputation any further, and so far as I know, that argument is not prohibited in negligence per se cases. For example, an intentionally false defamatory statement (which he can prove is false with an iron clad alibi and which the maker of the statement admits was made up at trial) that Ted Bundy once punched a prostitute in the nose giving her a black eye at the Moonbeam Bar at a particular date in the midst of Ted Bundy's serial killing spree, while constituting negligence per se might not state a claim for relief given that Ted Bundy's reputation for not being a violent criminal is already hopelessly tarnished by his multiple murder convictions for similar conduct. Milkovic Can Be Evaluated In Context Third, I am inclined to think that Milkovich v. Lorain Journal, 497 U.S. 1, one of the holdings is that "statements that cannot reasonably be interpreted as stating actual facts about an individual are protected," together with cases such as the New York Times case reflect an evolving understanding in the law (quite distinct from the British concept of defamation which has a bit of an "if you don't have something nice to say don't say anything at all" to it), that defamation is simply a special kind of fraud claim in U.S. law, and that the tort of defamation is only constitutional in the United States because it is a form of fraud claim. If defamation is and must be merely a special kind of fraud, then the reliance element of a fraud claim is probably constitutionally required in a case where the existence or absence of reliance can be discerned as a matter of fact, without resorting to generalities as the court in Milkovich had to since the statement was published to a large number of people. It would not be unreasonable (and arguably constitutionally mandatory) to read a gloss on the "statements that cannot reasonably be interpreted as stating actual facts about an individual are protected" standard of Milkovich, to include an implied "by the people to whom the statement was published" clause, which would have one meaning when a large number of people in the general public heard it, and another in a context when only one or two people actually heard the statement, or when it was only heard by a group of people who would interpret it differently than the general public would. And, if so, that would be a complete defense and would not just reduce the claim to one limited to nominal damages. This is not a great stretch. For example, in California the words of an alleged libel must be considered "according to the sense and meaning under all the circumstances attending the publication which such language may fairly be presumed to have conveyed to those to whom it was published." Macleod v. Tribune Publishing Co., 52 Cal.2d 536, 546-547; Selleck v. Globe International, Inc., 166 Cal.App.3d 1123, 1132. Libel Per Se No Longer Exists For Media Defendants Absent Actual Malice At one point it looked like the case Gertz v. Robert Welch, Inc., 481 U.S. 323, 349-350 (1974) might constitutionally eliminate libel per se, but this was premature. Gertz does not apply in cases involving matters of private concern to private individuals where the defendants are not media defendants. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (where a defendant's speech concerned a private individual and a matter of private concern, states could allow plaintiffs to recover presumed and punitive damages even absent a showing of actual malice). But, Dun & Bradstreet didn't address the question of whether the presumption of damages in a libel per se case was a conclusive presumption or a rebuttable one, because if it is a rebuttable presumption, then it could be overcome in the hypothetical of the question. And, it also doesn't address the question of whether the Milkovich analysis in a libel per se case must be context specific. In a case involving a media defendant and a private individual plaintiff the U.S. Supreme Court held in Gertz v. Robert Welch, Inc., 481 U.S. 323, 349-350 (1974) that: States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion, rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury. We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define "actual injury," as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury. See also Time, Inc. v. Firestone, 424 U.S. 448, 459 (1976). In the cases where it applies, Gertz requires proof of actual damages and bars the award of punitive damages, as a First Amendment requirement, and since actual damages are entirely absent in the case of the defendants in the question's hypothetical, if Gertz applied to them, they would not prevail. Now, Gertz in 1974 when it was decided, had limitations – it involved media defendants for whom actual malice could not be shown, but it did eliminate the public figure/public concern requirement. But, it isn't obvious to me that the Gertz limitations have not been expanded since then. Libel per se no longer exists in cases governed by Gertz (i.e. media defendants for whom there is no showing of actual malice). From v. Tallahassee Democrat, Inc., 400 So.2d 52 (Fla. App. 1981). Texas has expanded Gertz somewhat and held that even in cases where it does not apply, actual proof of actual damages is required to recover exemplary damages, even in libel per se cases where damages are presumed. Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 755 (Tex. 1984). |
Can a federal judge impose a higher sentence than the prosecutor proposed in the US? Suppose a US federal attorney/prosecutor brought a case before a US federal court and the defendant is accused of committing a federal crime. The law says that the defendant can be imprisoned up to 5 years for that crime. Can the federal attorney propose to the court/judge that the defendant should be imprisoned only for 2 years (for example), in case the jury agree on a gulity verdict? Is the court/judge bound by this proposal or can the court/judge still impose a higher sentence than the US federal attorney proposed? | After a defendant is convicted at trial in a federal court and when the death penalty is off the table (if it's on the table there's a different process), a sentencing process starts. This process is based around the US Sentencing Guidelines, which is a book of rules to calculate how serious all of the defendant's conduct was (on a scale of 1 to 43) and how to combine that with their criminal history to determine a recommended sentence range. The federal probation office investigates the details of the crime and produces a report applying the guidelines to the defendant; each side can make objections to this report (e.g. the defense might claim the defendant really had a minor role in the crime, while the prosecution might claim that he abused a position of trust), and the report and objections go to the judge. The probation office might also produce a sentence recommendation, which goes to the judge and might or might not go to the parties (it depends on the court). At sentencing, the judge reviews the report and gives each side a chance to comment on it. She has to consider all of this in issuing a sentence, and if there are any disputes she has to resolve them. However, she's free to make her own decisions on applying the Guidelines even if the probation office, prosecution, and defense all agreed on something else. Also, she can depart from the Guidelines range under rules laid out in the Guidelines, or she can set it aside entirely and issue what she considers to be an appropriate sentence between the statutory minimum and statutory maximum. For plea bargains, it can work differently (but doesn't have to). Most plea bargains will say something about sentencing, but it can be either a recommendation or a binding agreement. If it's a recommendation, the judge will consider it but can make her own decisions just like if the defendant was convicted at trial (and this isn't grounds to withdraw the plea). If it's binding, the judge can still choose to accept or reject the plea bargain. If she accepts it, she has to sentence based on the agreement; if she rejects it, the defendant can withdraw his plea. | Yes. The U.S. AG can decline to prosecute an indictment at any time until jeopardy attaches when a jury is sworn in to consider the charges at trial. The AG can also abandon a prosecution mid-trial but then cannot retry those charges later. The AG might abandon charges, for example, because the evidence does not appear to support the charges when presented at trial, or because, for example, a prosecution might damage a diplomatic relationship of the U.S. with another country, or because a new administration has different priorities than an old one and recently had its AG appointed to office while the trial was pending. This said, there are some situations (e.g. when there is a special prosecutor, or after a lower level prosecutor has entered into a binding plea agreement) when the AG does not have the authority to overrule the decisions to prosecute or not prosecute an indictment that is made by a lower level prosecutor. The AG has line authority to give orders to lower level prosecutors in the AG's office 99% of the time, but not always. | How many indictments does it take for Donald Trump to be imprisoned? An unlimited amount. Imprisonment is usually authorized as a result of a conviction rather than from an indictment. Pretrial detention following an indictment but prior to a conviction is permitted, but discretionary in the judgment of the judge. Also, there is a right to post a judicially determined reasonable bond to obtain release from pretrial detention after one is indicted and before one is convicted in the vast majority of cases (including the ones that President Trump is facing). Can a person who is indicted, before running for president, become president? Yes. Indeed, the majority view of legal scholars (it is has never been tested in a real case) is that someone who is convicted and serving prison sentence can still become President if that is who the voters choose. What's the purpose of indicting Mr. Trump if indictments are only an accusation? An indictment is a pre-requisite to trying someone for a felony in federal court. To convict someone of a crime one needs to first indict them, then have a jury trial, and then have a jury unanimously vote to convict a person, before they can be convicted of a crime and sentenced for it. Even after conviction, there is a statutory (but not a constitutional) right to a direct appeal of that conviction to an appellate court. Also, an indictment is more than a mere accusation. An indictment in a determination of a grand jury that probable cause exists to believe that the person indicted committed the crime charged. In the federal court system grand juries are composed of 16 to 23 members and 12 members of the grand jury must concur in a decision to indict a defendant on a charge for there to be an indictment on that charge. This prevents people from enduring criminal prosecutions on charges that a majority of a grand jury finds are so baseless that there is not sufficient evidence to establish probable cause that the defendant committed that crime. The grand jury must base its decision to indict or not on actual evidence in support of the charges in the form of sworn witness testimony and exhibits, not just the allegations of the prosecutor. As a practical matter, the standards of professionalism in federal criminal prosecutions is so high that almost all charges sought by federal prosecutors from grand juries result in indictments on those charges (federal grand juries refuse to indict approximately one in 16,000 times). But, in state courts that use grand juries, which can't pick and choose only the best cases to prosecute, grand juries routinely refuse to indict defendants on a substantial share of charges brought to them by prosecutors (on the order of one in 20). One source notes: Statistical figures showing a higher prevalence of grand jury reluctance to follow the government in ages past are almost nonexistent. However, a table of felony arrests in New York County between 1900 and 1907 found on page 111 of the 1926 book The Prisoner at the Bar by Arthur Train provides some rare illumination. In those seven years, some 5,214 out of 57,241 people were arrested by the police on felony charges whom New York state grand jurors decided not to indict. Grand juries are especially likely to decline to indict defendants in cases involving celebrities, politicians, law enforcement officers, and other high profile cases with political implications. See also Kaeleigh Wiliams, "Grand Juries Should Not Hear Police Misconduct Cases: Grand Juries will Indict Anything, but a Police Officer" SLU Law Journal Online 79 (2021). | The question should not include France and Germany, and should be limited to common law jurisdictions that are similar to India, because the function of judges differs starkly between adversarial vs. inquisitorial systems. The adversarial model pits two parties against each other, with the judge serving as the decider (of law, and perhaps of fact). The parties can offer witnesses, who can be compelled to respond to questions, and the attorney asking the question gets to control the question asked (subject to a possible objection by the other party, to be ruled on by the judge). The judge can rule on requests (which are not questions) i.e. petitions by either party. Otherwise, the judge sits there more or less mute, soaking up the argumentation being presented. Appellate proceedings are somewhat special in that the justices may address questions to the attorney, in order to better understand the logic of the proffered argument. The burden is on the attorney to make the case. There is no direct burden on the justice to "make a case". The "court of public opinion" may be relevant in a jurisdiction where the justice is an elected office or is appointed for limited time. Or, the contrary opinion of a higher court may have some influence on a justice's rulings – this is not the case with a Supreme Court. In other words, it would be highly dysfunctional within the adversarial system for a party to be allowed to interrogate a judge. Formal petitions are allowed, as long as you follow proper form. | The life sentences were based on counts 2 and 4, distribution of narcotics by means of the internet and continuing criminal enterprise. In reviewing the sentencing hearing, all of the evidence indicates that the sentence was based on the nature of his acts, and not anything he did after his arrest. There is no way to know if prosecutors would have been amenable to a plea bargain. | united-states Procedures differ on such things. The closest I know of to an outcome of "not enough evidence" is the classic "scotch verdict" of "Not Proven. In the US, the prosecutor can wait to proceed with a criminal case while s/he does (or has done) as much investigation as s/he thinks is advisable. But once the trial starts, it normally proceeds to a conclusion. If there is not enough evidence to convict, the result should be "not guilty" and that will bar any future trial of the same person for the same offense under the doctrine of Double Jeopardy. Circumstantial evidence, as described in the question, can be enough to convict, if the jury (or judge in a bench trial) is convinced beyond a reasonable doubt that the accused is guilty. Exactly how much evidence it takes to convince a Jury varies, and there is not a clear standard other than the phrase " beyond a reasonable doubt". The judge, or a later appeals court, can set aside a jury verdict for insufficient evidence, but only by finding that no reasonable jury could have convicted on the evidence pre3sented, taking it in the light most favorable to conviction. Judges are reluctant to set aside jury verdicts unless they appear badly wrong. If further evidence is found during the trial, which tends to show the accused is not guilty, the prosecutor can request that the trial be halted. This may or may not bar a future re-trial of the same defendant, depending on whether the dismissal is 'without prejudice", a decision the Judge makes. But once evidence has been started to be presented, dismissals are usually "with prejudice" meaning that double jeopardy applies. The defense can also request a dismissal, most often at the end of the prosecution case. In rare circumstances the Judge may dismiss without a request from either prosecution or defense. These will most often be "with prejudice" It is possible for the trial to be recessed while new evidence is evaluated or sought, but this is rare and usually only for a short time -- a day or two, perhaps. In general a prosecutor is not supposed to schedule a trial if there is any reasonable chance of additional evidence coming to light. It can and does happen, but the system tries to avoid it, and does not easily accept that it has happened. This answer is US-Specific, and different answers may apply in other places. | Is such legislation that effectively overrules a court imposed sentence even allowable? Yes. Amnesty legislation is allowed. For example, the U.S. Congress recently passed such legislation with regard to crack cocaine sentences. Legislation changing sentences for crimes is presumed to be prospective only, but this presumption can be overcome with clear statutory language to the contrary. As a political matter, however, district attorneys usually lobby strenuously against amnesty legislation, feeling that it sets a bad (political) precedent. an existing NH truth in sentencing statute would seem to conflict with the notion that any such change is possible. In the event of a direct conflict between an older statute and a newer statute that can't be resolved by any other interpretive method, the newer statute prevails over the older one, even if this result isn't expressly identified in the legislation. | Canada's local court systems and procedural rules vary, especially at the lowest level, by province. So, I'm just stating some general principals. General speaking legal arguments are limited to closing arguments of the parties after all of the evidence has been presented by both sides (because this limits legal arguments to those with evidentiary support rather than merely hypothetical arguments). Opening arguments are usually supposed to be limited to a recitation of what the facts in the case will show. Presentation of evidence and examination of witnesses is also not a time for this to be done. Some courts in some jurisdictions allow a defendant to make a "half-time motion" at the close of the prosecution's case, arguing that the prosecution has failed to meet their burden of proof to establish grounds for a conviction before the defense presents the defense's evidence. But, such formalities are often dispensed with in traffic court. Some courts allow post-trial motions to be made after a verdict within a certain number of days set by court rule asking the court to reconsider its decision or overturn a jury verdict, although these aren't always available in a traffic court case. Sometimes these issues are also raised in a pre-trial trial brief or in motion practice prior to trial. The amount of time allowed for closing, and discretion to consider arguments at times other than time usually allowed are in the discretion of the trial judge. Usually, courts are more lenient regarding formalities when a non-attorney is arguing a case. Usually, there is less opportunity to raise legal arguments following a trial if the traffic court is not a court of record and appeal is by trial de novo in a higher court, and there is more opportunity to do so if the trial is in a "court of record" in which a transcript is maintained and if the trial is a jury trial (although in a jury trial, the legal arguments are made out of the presence of the jury in a hearing over jury instructions, rather than before the jury). In a traffic case in a court of record, in front of a judge, five or ten minutes, at most, would be typical and trial briefs would rarely be considered, but the judge might listen longer or take the case under advisement and ask for further briefing, if the judge thinks that there is merit to a legal argument and wants to do further research (which would be extremely unusual in a traffic case). |
"For people in Canada" in MS Teams' "Your daily briefing" email The "Your daily briefing" email from Microsoft Teams contains a section called "For People in Canada": For people in Canada This is a mandatory service communication. To set your contact preferences for other communications, visit the Promotional Communications Manager. Microsoft Canada Inc. 1950 Meadowvale Blvd. Mississauga, ON L5N 8L9 Canada What part is mandatory? What is the 'law' behind it? (I'm based in Australia) | Canada's anti-spam legislation (CASL)1 at the time was more strict than the regulations in other countries (e.g. CAN-SPAM Act in the U.S.). Notably, it applied to all emails sent to people in Canada, including those sent from other countries (of course, likelihood of enforcement is another issue). In general, a commercial electronic message can only be sent to users with their consent (express consent to receive messages, or implied consent through e.g. club membership or existing business relationships). Additionally, receivers must be able to unsubscribe or opt out. What part is mandatory? It is not mandatory in the sense it is required by law. But rather Microsoft considers that the communication is essential to its service provided to the user. If you want to opt out this kind of communication, Microsoft is signaling that it can/will end the customer relationship, that is, the only way user can opt out is to stop using the relevant service. The term "mandatory service communication" is and was used in Microsoft's Privacy Statement and other relevant user agreements Your communications preferences You can choose whether you wish to receive promotional communications from Microsoft by email, SMS, physical mail, and telephone. If you receive promotional email or SMS messages from us and would like to opt out, you can do so by following the directions in that message. You can also make choices about the receipt of promotional emails, telephone calls, and post by signing in with your personal Microsoft account, and viewing your communication permissions where you can update contact information, manage Microsoft-wide contact preferences, opt out of email subscriptions and choose whether to share your contact information with Microsoft partners. If you do not have a personal Microsoft account, you can manage your Microsoft email contact preferences by using this web form. These choices do not apply to mandatory service communications that are part of certain Microsoft products, programmes, activities or to surveys or other informational communications that have their own unsubscribe method. https://privacy.microsoft.com/en-CA/privacystatement CASL does not require the sender to signal if it's necessary to its contract or not, but it does require the sender to identify the opting-out mechanism. In this case, the statement informs the user that this particular communication is integral to its service and cannot be opt out separately from the service. Unlike the later European GDPR where a necessity test is used, CASL does not have this requirement and the contractual parties can define if a communication is integral as they want by means of express consent via user agreements (subject to other federal and provincial data protection rules). Or its really long long title: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act | I found a mention of this issue here, where the case Rhonda Eddy v. Ingenesis was cited. Eddy worked from home in West Virginia, but had signed her contract with a company headquartered in Texas. The link is the decision of The State of West Virginia Supreme Court of Appeals, which upheld the decision of the Circuit Court of Jefferson County, namely, that the Circuit Court did not have the authority to hear Eddy's petition against her employer because she was out of the Circuit Court's jurisdiction. The circuit court found that it did not have personal jurisdiction over respondent under West Virginia’s personal jurisdiction statutes, and that respondent did not have sufficient minimum contacts with West Virginia to satisfy federal due process considerations. The circuit court also found that it did not have subject matter jurisdiction over petitioner’s WPCA claim because petitioner’s employment contract contained a valid choice of law clause that mandated Texas law would govern any dispute between the parties. Emphasis mine. It all depends on stipulations made in the employment contract. This (in the United Kingdom) states 4. Place of Work Allows the employer to specify the location where the employee will work. However, it also allows for the employer to specify any other location in the future. This gives the employer much greater flexibility. That would seem to indicate that (at least in the U.K.) the place is specified in the contract. | BC employers are required to give workers three days of unpaid personal illness & injury leave per calendar year. However, this protection only applies to workers who have held a job for more than 90 days. If you have not held the job for that long, it does not appear that any protections apply to you. Note that (as of March 2021) there are separate rules concerning COVID-19 exposure & illness. There may also be protections that apply to you if you are a union member, or if you work in a federally regulated job (banks, national trucking companies, airlines, and some others.) | It probably is infringement, assuming that this is being done by copying parts of a broadcast of the game. It is up to the holder of the copyright on the original broadcast that is being condensed to decide whether to sue or take other action, such as a takedown notice. Perhaps the holder thinks this is good advertising for its business. They have the right to make that decision. Now if a person went to the game, and used a personal camera to film it, and posted excepts of that recording, the legal issues would be very different. The ticket probably includes a provision prohibiting filming and photography, so this would be a breech of contract. But it would not be copyright infringement. (In practice if this were spotted, the person would be required to stop recording or leave, at least.) | This is from a Canadian point of view, but the rules regarding how corporations run is generally pretty standard. I took a few classes in corporate governance, but I'm working mostly from memory, so hopefully most of the information is accurate! A corporation is its own entity, separate from any shareholders, and it can make whatever policies it wants. Unless you are an officer or on the board of directors, your participation in the company usually will be limited to voting in shareholders' meetings and receiving dividends. Refusal of service is a policy matter, so the fact that you are a shareholder (or anyone else, for that matter!) should be irrelevant. In fact, you might be denied service because you're an officer due to conflicts of interest. If the company was unincorporated, you may have more rights, but you'd probably be subject to some sort of agreement. | it would violate law? It would be very dependent of what your jurisdiction is and what the software does. I would expect most software that would be lawful to install at your home would be lawful to install at your company, but there may be exceptions. To put an hyperbolic example, if you work at the CIA and you install some remote access software that allows you to access your workstation from a non-secure PC through non-secure methods, I am pretty sure that would be illegal, even if you had the best of intentions. A recent scenario taken from real life involves some members an organization who are required to use official e-mail servers for FOIA purposes setting up their own private mail servers. Of course, YMMV. can I purchase it for myself, and then use at workplace Even if the software is legal it does not mean that it is ok to use it at the workplace. Most business have rules about what software may be installed in the PCs, who may install it and how to manage it. Your software could introduce security vulnerabilities that your IT team may need to be aware of, or incompatibilities with other software. It may introduce legal liabilities (you install a "home edition" licence in a corporate environment where that licence is invalid). Your company may discipline you if you breaking those guidelines and install software without authorization, even if there is no harm for them for this action. On top of that, if your actions cause some damage to the company, it can sue you to get you to pay for those damages. Before taking any action you should inquiry about your company's IT policy and, if your company does not have one or if the policy is not clear about allowing you to install the software, ask the people in charge (preferably in writting). | In england-and-wales there is no legal requirement, in the private sector, to advertise vacancies and employers can recruit whoever they choose as long as they do not commit unlawful direct or indirect discrimination and follow their own internal HR policies. Re: In the western hemisphere is it quite legal for employers to do things like... Exclude close family/marital relations of existing employees? YES Exclude internal applicants from consideration for jobs for which they have relevant qualifications? YES Hire non-local (here defined as those who can commute to work from their existing home) candidates in preference to local ones similarly qualified? YES Hire foreigners where they have suitable work permits? YES Summarily hire members of the business owner's family? YES as long as they are not "phantom" employees only put on the books soley to evade tax liabilities by, for example, paying a salary when they don't do any actual work. | Does a situation like this constitute breach of contract and/or a violation of advertising laws? No. There is not enough information that would lead to a finding of either. It is unclear how customers would be allegedly affected (if at all) by the release of a product at a different store, let alone where the goods or services at issue are digital and require no physical presence at a venue or premise. Except for very specific factual circumstances, a change of sales venue would hardly be cognizable as deceptive or unfair practice. Also, prior to purchasing or reserving a game, there is no contract between the public and the developer/supplier. Potential customers typically are not entitled to a specific performance by the developer. Even if [Phoenix Point] supporters' decision were provably based on the prospect of release at Steam, your description nowhere reflects that there was a mutually conscious exchange (or promise of an exchange) of considerations involving the parties' support of a game and the counterparty's release of the game at a specific venue. Absent that meeting of the minds, either party's reliance or expectation on the other is irrelevant. Generally speaking, the sole cruciality of either party's motives does not create legal obligations. |
Guarantor liability and e-signatures (UK) I am based in the UK and have a tenant in a property that is not paying their rent. The tenancy agreement was signed in Oct 2020 and there are rent arrears for the last few months. I have a guarantor agreement signed with the tenant's dad acting as the guarantor where he is liable to pay any unpaid rent. The tenancy agreement and the guarantor agreement were both signed using a popular online esignature platform, which as far as I have researched, is a perfectly legal and acceptable way to sign a contract. The guarantor has confirmed the email address to which the guarantor agreement was emailed is his own, personal account. However, the guarantor is claiming the tenant (his son) has access to his email address and signed the guarantor agreement fraudulently - presumably without his knowledge. It might be useful to know the guarantor has claimed the son has also fraudulently set up other forms of credit (e.g. payday loans) this way and the guarantor has allegedly filed a report with the police. It is unclear if the tenant still has access to the guarantor's email account. In this scenario, is the guarantor still liable to pay the unpaid rent arrears? If he successfully claims the documents were signed fraudulently, can he still be liable by means or being complicit or aware of his son's activity, not least by (presumably) seeing the emails coming through after signature over the last 10 months? Any comments are appreciated | If the purported guarantor can prove the facts stated then they are not a guarantor You can rely on the signature and the onus of proving it isn’t theirs on the balance of probabilities rests on the guarantor. However, if they can do that, then they never agreed to be guarantor and you’re out of luck. | I don't know Canadian rental law, but as a general rule in civil cases you don't get to play Perry Mason and bring in evidence at the last minute. If you have evidence that the landlord broke the law then disclose it immediately and use it to pressure him into settling. His later lies to you are less important than the fact that he broke the law in the first place. However you can certainly testify about what he said as evidence that he has acted in bad faith. | she immediately stated that I need to provide 60 days notice She is wrong. See Minnesota statute 504B.135(a). Absent any agreement that supersedes the statute, the landlord cannot unilaterally stretch the notice period to 60 days. Is it legal for a landlord to say my rent is due 5 days earlier than we had verbally agreed? Is it legal for a landlord to do this right after I tell them that I am planning on moving out? No. The lanlord cannot unilaterally alter the implied contract that exists between you two, including the pattern of you paying rent on the 6th of the month. To prove in court that this was indeed the pattern, it suffices to show the receipts your landlord has the statutory obligation to provide to you immediately upon making each one of your payments. See 504B.118. The landlord is just "making sure" you will not recommend her to other prospective tenants. | Am I at fault? Can I get my security deposit back from Landlord? The landlord is wrong, and he should reimburse you the totality of the security deposit. Clauses #1 and #16 would entitle the landlord to deduct from your security deposit only the portion of the 7-day period that is not already covered in the payment you made for 1st week's rent, which according to clause #1 starts on Sunday July 29. If I understand correctly, you signed the contract (and paid) on July 27, and then gave your 7-day notice on July 28. Since you paid an additional amount for Saturday July 28, then your 1st week's rent payment actually covers the entire 7-day period of your notice. Therefore, the landlord should reimburse you the entire security deposit. The contract nowhere indicates that the count of [post-notice] 7 days starts after the current rent-week elapses. But even if it did contain language in that sense, the dates you mention render that hypothetical clause void. Lastly, clause #16 refers to giving a written notice, which is what you did by sending him the text he obviously read and understood. Therefore, his statement that "you did not provide proper notice of moving out" clearly is false. What should I do? If the landlord insists to retain the security deposit, your option is to file a complaint in Small Claims court (I don't know whether this has a different name in PA). Depending on PA procedural law, you and the landlord might be cited for mediation prior to being assigned a court date. A process in small claims court is pretty straight-forward, but only you can determine whether the hassle of attending mediation and court hearing is worth. If anything, it (1) certainly gives you some [minimal] exposure to litigation, and (2) teaches the landlord to abide by the very rules he drafted in the contract. 8/30/2018: Edited to address OP's follow-up question of whether section 250.512 of the Landlord and Tenant Act precludes recovery of security deposit (see comments) After analyzing the statute you found, Pennsylvania courts have still held that a tenant's failure to provide a new address does not preclude recovery of the security deposit. See Adamsky v. Picknick, 412 Pa.Super.Ct. 544, 549 (1992): we find the lack of notice argument is tenuous at best since appellant's reason for withholding the deposit was not because he did not have appellees' new address, rather, he withheld it because he maintained there were damages for which he should be compensated. That conclusion is squarely applicable to your situation. The landlord's only pretext for withholding your deposit is his inaccurate statement that "you did not provide proper notice of moving out", and for that matter he refers to nothing else than the rental agreement. The rental agreement nowhere requires you to provide your new address. One decision that does not constitute legal precedent but still might help persuading Small Claims court in your situation is Back v. Taylor, 19 D. & C. 3d 606, 609 (1980). After citing section 250.512(e) of the Landlord and Tenant Act, the court states: That section sets forth certain guidelines as to when tenants can obtain double recovery. Defendants have only sought recovery of the deposit and therefore, the above cited section does not apply. (emphasis in original) Unless you were pursuing double recovery (see item (c) of the statute), it would be very questionable --to say the least-- why a [Small Claims] court should decide your dispute any differently than in Back. Another non-precedential decision analyzing the same statute is Shoemaker v. Henry, 35 D. & C. 206, 209 (1984). Also in the context of double damages, the court stated: We cannot believe the only purpose [to require a tenant to provide his new address] was a negative one, that is, to cancel a right to double damages for failure to comply. A more rational explanation is that its purpose was to provide a landlord with an address to which the damage list could be sent. (brackets added) The statute apparently was enacted well before the prevalence of electronic communications. If your landlord has any way to send you a "damage list" (as it seems to be the case insofar as he replied to your text), then the rationale in Shoemaker should apply in your situation. If you are not even pursuing double recovery, then it would be unavailing for the landlord to cling to the language in item (e) of that statute. Therefore, you are definitely entitled to your deposit even if you did not provide to the landlord a new address. It is up to you whether you want to go for double damages, in which case the decision in Shoemaker might or might not be persuasive in Small Claims court. Beyond that, the Adamsky opinion constitutes legal precedent which favors your position. | I have read that Assured Shorthold Tenancies of less than 6 months are allowed, but you are not allowed to evict a tenant before 6 months. That applies only to section 21 ("no fault") evictions. Specifically, according to section 21 of the Housing Act 1988, a notice can't be served in the first 4 months of a tenancy (section 21(4B)), and can't take effect in the first 6 months (section 21(5)). Section 8 evictions, which require one or more of the reasons listed in Schedule 2 of the Act, do not have this restriction - though only some of them can be used during the fixed term part of the tenancy, and they must be listed in the tenancy agreement in order to be used in that way. Will I have to wait until he has actually left before I can arrange an AST with new tenants? Yes, but that's always true. It's very unwise for a new tenancy agreement to be signed until the previous tenants have moved out, because if they don't leave before the new agreement takes effect, the landlord is now committed to finding accommodation for the new tenants. This is why tenancy agreements are often only signed on the first day of the tenancy. | 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? | If I don't attend the hearing, can I get evicted? Yes. Never ignore a court hearing date. The Tribunal could otherwise impose an outcome without hearing your side of the story. If you ultimately paid the rent and the late fees, and the Tribunal didn't know that, you could be unjustly evicted if you don't present your side of the story. It could simply be a case, for example, where the landlord confused your non-payment with someone else's. But after the Tribunal rules, fixing that mistake is much more difficult than fixing it at a hearing. It could be that making two late payments that are cured later is still grounds for eviction under the lease, although I very much doubt it. In that case, it still pays to show up to make sure that the Tribunal has all of the facts favorable to you before it makes its decision. | If it's not in the lease agreement, then you did not agree to it. Even in the absence of the law prohibiting the late fee, the landlord would not be able to impose it because it is not in the lease. It is of course up to you whether you want to test it. It may be more trouble than it is worth. Then again, it's probably not worth the landlord's trouble to begin eviction proceedings over a late fee. Paying late and refusing to pay the fee would probably sour your relationship with the landlord, which is usually something you want to avoid. If you do pay late at some point, you may want to point out to the landlord the relevant provision of Massachusetts law. The matter would probably end there: either the landlord doesn't know about it, or the landlord is hoping that you don't know about it. Pointing it out in a polite manner will inform the landlord of the law and that you are acquainted with the law. Unless the landlord is quite unreasonable, that should take care of it. Whether there is any law prohibiting landlords from announcing an intention to take a prohibited action is indeed a different question. Is there any legal reason for me to bring this up and get the landlord to formally acknowledge that they will not in fact charge illegal late fees? No. You have a contract with the landlord that already says you are going to move in. He cannot modify that contract simply by sending you a letter. |
Is it possible to enact legislation eliminating life without parole without first repealing an existing truth in sentencing statute? I would like to advocate for legislation within my home state of New Hampshire which would allow for a parole hearing for anyone having served 25+ years. Such a law would eliminate life without parole for present and future such convictions. Is such legislation that effectively overrules a court imposed sentence even allowable? (I realize there have been supreme court actions to constrain the death penalty but perhaps that's different because it's a constitutional matter(??)) To complicate matters further, an existing NH truth in sentencing statute would seem to conflict with the notion that any such change is possible. | Is such legislation that effectively overrules a court imposed sentence even allowable? Yes. Amnesty legislation is allowed. For example, the U.S. Congress recently passed such legislation with regard to crack cocaine sentences. Legislation changing sentences for crimes is presumed to be prospective only, but this presumption can be overcome with clear statutory language to the contrary. As a political matter, however, district attorneys usually lobby strenuously against amnesty legislation, feeling that it sets a bad (political) precedent. an existing NH truth in sentencing statute would seem to conflict with the notion that any such change is possible. In the event of a direct conflict between an older statute and a newer statute that can't be resolved by any other interpretive method, the newer statute prevails over the older one, even if this result isn't expressly identified in the legislation. | You'd be confessing to committing a crime. I'm not a lawyer, but I wouldn't recommend trying it. Sure, if this trick worked, you might be able to clear yourself of civil remedies, but there's a much bigger problem with this: with the repeal of Roe vs Wade, Texas once more criminalised abortion, and so this tactic would, by necessity, require confessing to a crime in a court of law. While that law expressly prohibited the levying of penalties against the pregnant woman, the law allowing for lawsuits against people who "aid and abet" abortions didn't seem to apply to them either. As such, you'd be opening yourself up to fines of tens of thousands of dollars and a maximum prison sentence of life in jail. | An example is that a person eventually convicted of a crime has made a false statement in pleading "not guilty". 1001a would compel confessions, because you cannot legally conceal a material fact. In a judicial proceeding, the analog that prevents certain kinds of "lying" is the law against perjury, which is much stricter than the broad language of 1001. | There are a number of specific limitation on what can be made criminal in US law, derived from constitutional protection. Specific Rights Expressions of free speech, for example, cannot be made criminal, although there can be laws which regulate or impact speech to a degree. Similarly, the establishment clause of the First Amendment prohibits a law requiring people to attend a particular church, and he free Exercise clause prohibits any criminal penalties for any religious practice or lack of practice. Most of the other provisions of the Bill of right would impose similar limitations. The legislature cannot criminalize what people have a constitutional right to do. Thre are also specific limitations not in the bill of rights, such as the prohibition of Ex Post Facto laws, the right to trial by jury, and the constitutional limitation of Treason laws. Rational Basis Beyond that the Due Process clause of the 5th and the parallel clause of the 14th impose limits on criminal law generally. Criminal laws must have (at least) a rational basis. The legislature cannot just prohibit picking up papers because they felt like it, they must have articulated a problem and a plausible reason why a given law would address it. If they don't the law may be overturned as unconstitutional. If a law is challenged as being unconstitutional, it will currently either be subject to rational basis analysis, or to one of the stricter levels. However a law which cannot pass rational basis analysis will not survive intermediate scrutiny or strict scrutiny either. Laws which appear to invade one of the enumerated rights, or a right that the Court has deemed "fundamental" are normally tested under either strict or intermediate scrutiny. According to the the Wikipedia article: Courts applying rational basis review seek to determine whether a law is "rationally related" to a "legitimate" government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. ... laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review. ... In modern constitutional law, the rational basis test is applied to constitutional challenges of both federal law and state law (via the Fourteenth Amendment). This test also applies to both legislative and executive action whether those actions be of a substantive or procedural nature. The rational basis test prohibits the government from imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end. ... A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur. (See Killian, Johnny H., George A. Costello, & Kenneth R. Thomas, co-eds., The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, by Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) and specifically Romer v. Evans, 517 U.S. 620 (1996) at 635) Rational Basis analysis became accepted after the demise of "substantive Due Process", mostly in a civil, rather than criminal context. A version of it was suggested in Lochner v. New York 198 U.S. 45 (1905), in the dissent by Justice Holmes. It was adopted as governing in [*Nebbia v. New York * In United States Department of Agriculture v. Moreno 413 U.S. 528 (1973) The Court overturned, on a rational basis scrutiny, a law excluding households consisting of unrelated people from the Federal Food Stamp program, writing: [A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Specific cases In Eisenstadt v. Baird 405 U.S. 438 (1972) a law that criminalized the distribution of contraceptives to unmarried persons was overturned on a rational basis review. Similar cases are now generally treated with intermediate scrutiny. In James v. Strange 407 U.S. 128 (1972). a Kansas law reclaiming payments for public defenders was overturens on rational basis review as “an impermissible burden on the right to counsel established in Gideon v. Wainwright." In Bowers v. Hardwick 478 U.S. 186 (1986), rational basis analysis was employed to sustain a statute criminalizing homosexual activity. However, this was later overturned.. Vagueness Also under Due Process, vague laws are prohibited. If a reasonable person cannot tell from the law what is or is not illegal, the law can be overturned for vagueness. Procedural protections Then there are procedural limits, also largely derived from the Due Process clause(s). A law cannot automatically convict people without a genuine hearing, in which a person can present a defense to an independent, impartial judge or jury. A law cannot impose duties which are flatly impossible to perform. A law cannot impose punishments which are considered unreasonable for the seriousness of the crime (as evaluated by judges). Other Limits There are other limits as well, it would take a book to list them all in detail. But those are some of the more frequently applied ones. | This is interesting because things get extremely different on state and federal levels. Quoting this, Under modern U.S. law, suicide is no longer a crime. Some states, however, classify attempted suicide as a criminal act, but prosecutions are rare, especially when the offender is terminally ill. The "some states" part is much more important than was emphasized there, however. A case that reached the Virginia Supreme Court, Wackwitz v. Roy (referred to in Wikipedia) pivoted about the legality of suicide. From the decision: We are aware of only one legislative enactment that addresses suicide as a crime. Code § 55-4 provides that "[n]o suicide ... shall work a corruption of blood or forfeiture of estate." Thus, although the General Assembly has rescinded the punishment for suicide, it has not decriminalized the act. Suicide, therefore, remains a common law crime in Virginia as it does in a number of other common-law states. See, e.g., Southern Life & Health Ins. Co. v. Wynn, 29 Ala.App. 207, 194 So. 421 (1940); Commonwealth v. Mink, 123 Mass. 422 (1877); State v. Willis, 255 N.C. 473, 121 S.E.2d 854 (1961); State v. Carney, 69 N.J.L. 478, 55 A. 44 (1903); State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1891), overruled on other grounds by State v. Torrence, 406 S.E.2d 315 (S.C.1991). To constitute suicide at common law, however, a person who takes his own life "must be of years of discretion, and in his *865 senses." 5 William Blackstone, Commentaries *189; accord Plunkett v. Supreme Conclave, 105 Va. 643, 646, 55 S.E. 9, 10 (1906) ("`To constitute suicide at common law the person must be of years of discretion and of sound mind.'"). This common law rule comports with a contemporary definition of suicide. Suicide is defined as "the deliberate and intentional destruction of his own life by a person of years of discretion and of sound mind." Webster's Third New International Dictionary 2286 (1981). I believe that the "only one legislative enactment" refers merely to Virginia state law, not nation-wide law. Thus, in Virginia, and other states, suicide could be treated as a common-law crime. However, in United States v. Hudson, it was ruled that such common-law convictions are not allowed at the federal level. I'm not always a fan of Google Answers, but the last one here provides a fairly well-documented section on common-law rulings about suicide. Note that in many states, this is not enforced, as common-law rulings are increasingly rare. | Criminal conviction by a judge after acquittal by a jury would violate the Double Jeopardy Clause of the 5th Amendment. A criminal conviction involves both a finding of fact and the application of the law, and a judge (unless this is a bench trial) doesn't find facts, he makes judgements of law. Overturning an acquittal after a jury trial would thus be in essence a whole new trial (moreover one where the defendant was not given a renewed opportunity to defend himself). | In general, yes. 1 USC 109 states that: The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. Translated into plain English, this means that if you were to smoke marijuana in a Yellowstone National Park campground today, and Congress were to pass an act saying "28 USC 841 is repealed" tomorrow, you could still be arrested and convicted for possession of a controlled substance next week. However, if the act instead stated "28 USC 841 is repealed and no retroactive prosecutions shall take place", then you can't be convicted. (The other half of 1 USC 109 is basically the same thing, applied to temporary laws: if a temporary law expires, you can still be prosecuted for actions taken while the law was in effect, unless the law states otherwise.) | Can the prosecutor and/or the judge be sued for dereliction of duty, and for non-uniform application of the law? No. Judges and prosecutors have absolute immunity from civil liability for their actions in the course of their duties in connection with the court process. Prosecutors have effectively absolute discretion in their charging decisions and in their decisions to reduce the charges sought against a defendant (prior to jeopardy attaching when a jury is sworn in). Can the outcome of a bench trial be appealed on grounds that the judge did not inform the defendant of his rights Yes. or that his rights were taken away by unwarranted modification of the charges? No. Incidentally, there is no federal constitutional right to a jury trial in a case where six months or less of incarceration is sought as a penalty, and there is no federal constitutional right to counsel unless incarceration is a possible penalty. The Utah State Constitution distinguishes between criminal matters and non-criminal matters in several respects mostly found in the state's bill of Rights (Article I of the State Constitution) in Sections 8, 10, 12, 13, and 19. But, it is fundamentally the right of the state through its prosecutors to decide what charges to press against someone, and they are well within their rights to change their minds. Often, this will be in your favor because reducing an offense to a civil infraction rather than a misdemeanor will have far fewer collateral consequences related to having a criminal record. |
Ashli Babbitt: manslaughter vs. deprivation of rights under color of law Note if you wish to discuss the following questions, rather than make a constructive criticism of the question or answer, I've setup this stack exchange chatroom for discussions. If you have an independent answer, please create a new answer In a recent press release: Department of Justice Closes Investigation into the Death of Ashli Babbitt, the focus of inquiry seemed to be under a civil rights law, rather than the more clear-cut concept of homicide. Months earlier, the DC medical examiner established that Ms. Babbitt's death was a homicide. In the investigation of a homicide, committed by a known person, isn't the normal focus on whether or not the homicide was justified or not? The DOJ said that "The investigation revealed no evidence to establish beyond a reasonable doubt that the officer willfully committed a violation of 18 U.S.C. § 242" (Emphasis mine.) Why would the U.S. Attorney focus on civil-rights law, rather than laws specific to homicide? For example, why not focus on 18 U.S. Code § 1112 - Manslaughter, where the concept of willfulness is not applicable? Why not focus on the statutory use-of-force standard, which requires not only that an officer's belief be reasonable, but that his actions are reasonable and that the officer has exhausted other options. DC Code, § 5–351 states (b) A law enforcement officer shall not use deadly force against a person unless: (1) The law enforcement officer reasonably believes that deadly force is immediately necessary to protect the law enforcement officer or another person, other than the subject of the use of deadly force, from the threat of serious bodily injury or death; (2) The law enforcement officer's actions are reasonable, given the totality of the circumstances; and (3) All other options have been exhausted or do not reasonably lend themselves to the circumstances. It goes on to state definitions of factors to be considered by a trier of fact, such as what the "totality of circumstances" means, including: Whether the subject of the use of deadly force: (i) Possessed or appeared to possess a deadly weapon; and (ii) Refused to comply with the law enforcement officer's lawful order to surrender an object believed to be a deadly weapon prior to the law enforcement officer using deadly force; Judicial Review (expanding scope) Some comments have pointed out that the decision not to charge under manslaughter is prosecutorial discretion. I agree, but find the motives for the decision questionable. How can it be subject to judicial review? @Fizz captured my concern very well in chat, saying "One intersting consequence of that arrangement is that since 242 charges are usually brought when the state fails to do its job prosecuting something, the feds would have had to somewhat implicitly accuse themselves of that if they went for a 242 in DC". | This reflects a typical division of labor. Normally, the Department of Justice investigates civil rights violations, which it has a division set up to do, while local authorities handle ordinary homicide charges arising (in this case) under the D.C. Code (as another answer notes, this instance didn't obviously fall under Congressionally enacted federal criminal homicide statutes, although there may be some room for ambiguity in that determination, but see Coleman v. United States, 334 F.2d 558 (1964) ("The [District of Columbia] area by no tenable construction can be said to have been within 'the special maritime and territorial jurisdiction of the United States.'")). Certainly, the DOJ investigation, itself, did not exonerate the officer of a homicide charge, which remained open to be resolved. An internal Capitol Police inquiry subsequently cleared the law enforcement office of homicide charges: An internal investigation has cleared a U.S. Capitol Police officer of any wrongdoing in the fatal shooting of Ashli Babbitt during the siege of the Capitol on Jan. 6, the law enforcement agency announced Monday. The Justice Department previously said the officer would not face criminal charges in the killing of the 35-year-old California woman, who was shot as she tried to force her way through a set of doors deep inside the Capitol. . . . The probe by the U.S. Capitol Police exonerated the officer for his use of force. The department said in a news release outlining the investigation that the officer’s actions were within department policy, which allows deadly force only when an officer reasonably believes they are protecting themselves or others from serious physical harm. The departmental policy described in the news article above closely tracks D.C. Code § 5-351.01 governing when the use of deadly force by a law enforcement officer is justified, which is an affirmative defense to criminal homicide and battery charges. The D.C. Code also expressly recognizes the authority of the Capitol Police as a law enforcement force in the District. A recent general federal law analysis of use of force considerations is described in a July 10, 2020 report of the Congressional Research Service, in light of pending legislation. Of course, Babbitt's next of kin could bring a wrongful death action under the civil rights laws for money damages seeking to second guess the DOJ determination. | You are asking a different question The title to the earlier question -- "Do the police have a civil duty to do their job" -- is slightly misleading. The question is not whether the policy have an abstract "civil" duty to enforce the law, but whether they have a specific "constitutional" duty to do so. If they do have such a specific duty, then, as they OP says, they could "be sued for not doing their job." As ohwilleke explains thoroughly, the answer to this question is "no." The Supreme Court has consistently held there is no constitutional right to police enforcement of the law. In particular, the SCt has held that police aren't violating the 14th Amendment when they don't "do their job." According to the Court, someone who is hurt when the police don't enforce the law, is not deprived of "life, liberty or property without due process of law." This in turn means that the people who are hurt can't sue the police under §1983, which allows people to sue state or local officials who violate their constitutional rights. As you point out, the Nevada statute clearly requires officers to make an arrest in some cases. However, this requirement is not absolute; the statute also creates an exception to the requirement: a peace officer shall, unless mitigating circumstances exist, arrest a person when the peace officer has probable cause to believe that the person to be arrested has...committed a battery upon his or her spouse.. The statute goes on to explicitly exempt the officer and her department from liability if she decides not to make an arrest: Nothing in this section shall be construed to impose liability upon a peace officer or his or her employer for a determination made in good faith by the peace officer not to arrest a person pursuant to this section. Thus, the statute sends mixed signals to police officers. On the one hand, it requires them to make arrests in some domestic violence cases; on the other hand, it says they are not liable if they ignore this requirement. Taken together, the Nevada statute and the SCt's decisions mean people who are hurt if police don't make an arrest under 171.137 cannot sue the police under either state or federal law. | What they teach in self-defense courses is legally irrelevant, though has a practical basis. Under the law, options 1 and 2 are "preferred" because those actions cannot be considered criminal. Shooting a person is potentially a crime (assault or homicide): but it can be legally excused under those circumstances deemed to be "self defense". If shooting a person is justified in self defense, it isn't assault or murder. It is legally "better" to main than to kill, because maiming is less force than killing, and the general rule is that one should use the least force necessary to defend yourself. That is because on the one hand you should not use force against another person, but on the other hand you have a right to live and if a person attempts to deprive you of your life, you are justified to use force to stop them. The degree of force allowed is related to the threat posed. Every legal system encourages putting "shoot to kill" in last place – no jurisdiction favors using maximum possible force in self defense. I think what is confusing you is that as a practical matter, shooting to maim is riskier, and the consequences of erring in favor of less force may be your death. It has nothing to do with killing witnesses (which is illegal), even if that is what they taught you in your self defense class. Brandishing a weapon is also illegal but involves even less force, and is even less effective as a means of self defense. | This is currently untested but the U.S. Supreme Court did leave the door open to allow someone to plead the 5th amendment in order to hide their identity. In Hiibel v. Nevada the U.S. Supreme Court held that the petitioner did not have a 5th amendment right to withhold his name from a questioning police officer. The Supreme Court held that Mr. Hiibel could be arrested for failing to identify himself because Nevada's statute requiring identification was narrowly tailored and was not vague. The police officer who stopped Mr. Hiibel had reasonable suspicion that a crime had occurred and Mr. Hiibel could have satisfied Nevada's statute by simply stating his name; there was no requirement to turn over any papers or other documentation. The final paragraph of the opinion speaks of the importance of the narrow scope of the disclosure requirement and then goes on and states: ...Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances...Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We do not resolve those questions here. While the court is leaving unanswered the question of whether there are circumstances where one may refuse to identify themselves, they are making it quite clear that such a situation would be very different than the case decided in Hiibel. There is a strong hint that they would uphold Fifth Amendment privilege in the situation you posit. | When the LEO violently assaulted the citizen on the easement is he out of his jurisdiction? No. Federal law enforcement officers' jurisdiction generally* includes the entire US. Federal and state jurisdiction are said to be concurrent with one another. If the federal law enforcement officer has a lawful basis to effect an arrest, the arrest can be effected on a state† highway easement. Is there any immediate or long term consequence for an officer committing crimes or doing so egregiously (with or without qualified immunity) out of his jurisdiction as opposed to doing so in his jurisdiction? If the officer were outside his jurisdiction (which isn't the case here) then the officer is generally treated as any other private individual. In this case, "outside his jurisdiction" means "in another country," which brings up all sorts of additional complications that aren't really in scope here, largely because the laws and legal systems of other countries are different from those in the US. Are there any nuances to jurisdiction and law enforcement by LEOs that a first amendment auditor should be aware of? There are plenty, but perhaps the most prominent one, if the internet is any guide, is that an officer is not required to articulate the basis for reasonable suspicion or probable cause at the time of a Terry stop or an arrest. The time for this is much later, after a judge is involved. Arguing with an officer on this score is just going to make things worse. Instead, one should cooperate while stating one's objections clearly and calmly, especially making it clear that cooperation does not imply consent. * Some categories of officers do have more limited jurisdiction: thanks to cpast for the example of park rangers, whose jurisdiction is essentially restricted to national parks. The officers in this case are CBP field officers. There is a wide misconception that CBP officers' jurisdiction is limited to within 100 miles of the border, but that 100-mile limit only applies to their power to board and search vessels and vehicles without a warrant in order to prevent illegal entry into the US. Their power to make warrantless arrests "for any offence against the United States" committed in their presence is not geographically restricted. † The original video was filmed in South Portland, Maine, and the roadway is a municipal street, Gannett Drive, to be precise. The point remains, however, that it is a public right-of-way, and federal officers are not "out of their jurisdiction" simply because they've left a federal facility and entered a public place. | The answer is somewhat similar to the "corollary" question, in that this wouldn't be the only information taken into account at a motion to suppress and one would need know why the officer requested (in your scenario demanded) to search you in the first place. There are scenarios whereby he could search you without benefit of a warrant. Was he chasing you from a crime scene? Were you attempting to flee? Did he see something illegal before demanding the search that may have made it legal despite you thinking it not? The analysis is different if you are in the car versus in your house. That said, regardless of where, a consent search is just not likely to happen in this way. In your car, the officer has the right to take your keys to "secure the scene," or if there is a reasonable suspicion that you may attempt to flee. Typically, the officer will say "turn off your car" without taking your keys. Despite what's typical, though, they certainly can take your keys if circumstances make it necessary and that (the mere taking of keys) does not constitute a search. Keep in mind that the police can search a car without a warrant in a number of circumstances, without your consent, that would not be available to them with a dwelling. Courts will typically give police much more latitude to search a vehicle than a home. Under the "automobile exception" to the search warrant requirement, individuals have less of an expectation of privacy when driving a car and there is also a much greater chance of losing the evidence in a car vs. a dwelling, since it's mobile. Generally, the police can search your car if: You have given the officer consent (in this scenario you've not – unless you hand them the keys without protesting – and then this would be considered implied consent); The officer has probable cause to believe there is evidence of a crime in your car; The officer reasonably believes a search is necessary for their own protection (e.g., they can search for a weapon, if they have reasonable suspicion); You have been arrested and the search is related to that arrest (such as for drunk driving or for drugs, they can search for alcohol or drugs). There are tons of contextually specific rules that dictate when each of these situations is OK, and when they're not, as well as where they can search under what scenarios. It is not a one size fits all analysis. In fact, warrantless and consent searches may be some of the most variable analyses criminal attorneys and judges undertake to explore. The law on these topics is voluminous. Searching your car after you've given the officer the keys, assuming there was no basis and you actually said "you're not consenting," can result in suppression, but not necessarily as the fight is a lot tougher when it comes to a car. (E.g., if you said no earlier, but then handed the cop the keys later without renewing the objection, this could be considered an implied consent.) Similar to the other question, there is also going to be a whole other side to the story, with evidence aside from your testimony dictating what the ruling will be. A dwelling is different from a car, although your question makes some assumptions here that I would find very hard to see happening in real life (having represented both police, municipalities, and defendants to criminal searches).... It would be highly unlikely for an officer to threaten to break in like this ... especially in a dwelling where neighbors and passersby can see what's happening and would not only watch, but would probably video it. This is not to suggest that threats and actual wrongdoing doesn't happen, it's just not typically in this way. Police know the law. They rarely do things so blatantly unlawful that not only will nearly ensure that any evidence is inadmissible, but (in a case like this) where they will also probably lose their job. Short of a pursuit where the police are chasing someone into a house, I have never heard of a forced entry in a situation like you're describing. While we don't know the circumstances leading to the encounter, I am assuming that the search isn't pursuant to a chase, since you're having a discussion with the officer and if you're chased from the scene of a crime and run into your house, they're coming in. They are not having discussions. However, since we don't know what the circumstances are that lead to you being approached in the first place, it's difficult to analyze whether he has the right to enter warrantlessly. What we do know is that with a dwelling, it is much less likely to be lawful. As with the other question, the analysis as to whether consent was given or not is far from simple. Suspects are much less likely to give consent to search a dwelling as they are a car, and if they do, the search is often limited to a certain area, so chances of suppression are much better. That said, others will often give consent to the police when requested of them (spouses, kids, landlords, hotel owners, etc). Just imagine ... there are literally thousands of warrantless searches done every single year in the U.S., nearly all of which are alleged to be based on some form of consent. Assume every one of those people has a lawyer; that means nearly every one of those cases is arguing the consent was bad, some way, some how. Duress is one of the most common arguments when someone gives permission; either explicitly (like what you are proposing), implicitly (they came with 10 grimacing cops, so the guy thought he didn't have a choice). Most of the time, however, there is no duress, people just simply didn't know they can say no, or they think the cops won't find what they're hiding. Cops can do a lot of things to get you to allow for a warrantless search. They can even lie to people to get them to consent, and officers are not required to notify the suspect that he has a right to refuse to consent (however, telling the suspect they have the right to refuse is helpful to rebut the coercion argument). In United States v. Mendenhall, "The fact that the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive." Keep in mind, a big part of the reason why these scenarios are unlikely is not just that the police can find a way in that won't be so challengeable, if they really can't get a legitimate warrant and need to find a deleterious way in. It's also because 9 in 10 times when a police officer does a consent search, the suspect signs a consent form. That's not to say that people don't get coerced or get searched due to duress, they do. But typically not in so blatant a way. There are shades of grey in most of these cases. So, to answer whether you can get the search suppressed if it leads to an arrest under these facts; the only answer that is definite, is that nobody can be sure. If consent searches, their exceptions, and all ways the evidence gets in and the evidence is kept out interests you ... read these two law review articles. There are probably 200 cases footnoted between them! http://www.bu.edu/law/faculty/scholarship/workingpapers/documents/MaclinT011508.pdf http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-81-6-Sutherland.pdf | There is pretty much never a right to retaliate against harm to oneself, even blatantly unlawful harm. There is a right to defend oneself and others. One can use force to stop someone from inflicting unlawful or unjustified harm, or to prevent someone from inflicting such harm when the harm is imminent. One is not permitted to use more force than is "reasonably required" under the actual circumstances. This is true in pretty much every jurisdiction that i know of. The details on how much force will be considered "reasonable" will vary. In some jurisdictions there is, under some circumstances, a s"duty to retreat". This generally means that if a person attacked can avoid the harm by fleeing with reasonable safety, that person must do so rather than using force in self-defense. In some jurisdictions this "duty to retreat" applies id the victim is attacked in public, but not in the victim's own home. The right to self defense does not apply when the "attacker" is an agent of the state acting lawfully. For example, a prison guard taking a condemned prisoner to a death sentence cannot be attacked on the grounds that the prisoner is engaging in self defense. In theory a police officer engaging an excessive force, particularly unjustified deadly force, may be resisted in self-defense. But courts are quite reluctant to find such resistance justified in practice. There generally must be very clear evidence of egregious misconduct for the court to rule for the non-police person in such a case. Note that "self" defense can equally be defense of another person. Pretty much all the same rules apply. Self defense applies no matter who the attacker is, but that force is reasonable may vary depending on the attacker. Only such force as is reasonably required to stop or prevent the harm may be used with a justification of self-defense. | There is a good amount of case law addressing this question going back two centuries. Legally, as soon as you are subject to "excessive force," you are allowed to defend yourself as you would against any assault, even if that force is being used in the course of an otherwise lawful arrest. Furthermore, in some states you are still allowed to resist unlawful arrest. Unfortunately, the matter is no longer as clear as it used to be. (There is a lot of material on this subject; just search for resisting unlawful arrest.) For example, police reflexively invoke a virtual safe harbor by shouting, "Stop resisting!" while battering arrest subjects. Video evidence has uncovered a plethora of examples in which this was done to subjects who were not only not resisting, but even later determined to have been incapable of resisting. If you intend to defend yourself against police, even when justified by law, you need to realize that the system is stacked against you. Police carry the means of escalating to lethal force. So, for example, if you are being beaten but you are potentially able to physically overpower and restrain an officer, you will likely then be met with baton blows or tasers. Since a baton is a deadly weapon, you would be (in theory) justified in shooting an officer attacking you with one. But as soon as any officer shouts "gun!" you will be shot, and most likely killed. Police seem to be given the benefit of the doubt by prosecutors and grand juries when they claim, "I feared for my life." You (even if you survive) will likely have any such claim subject to a full criminal trial. So even though you can legally defend yourself against excessive police force, these days you will almost certainly be unable to in practice. |
Is Apple scanning user content for child abuse a violation of GDPR? According to this article Apple is scanning all the photos users have on their devices to detect possible child abuse. The article explains that a NeuralHash of each image will be uploaded to Apple servers. It also claims that the NeuralHash is only a fingerprint of the image. But that is not true, a hashing made by a neural network is reversible, the reconstructed image will not be as good as the original, but it can be compared to a lossy compression with high loss. Is this compatible with the European GDPR? Can a corporation upload user content to their servers without asking the user permission? Related question: https://politics.stackexchange.com/questions/68507/can-countries-prevent-foreign-corporations-like-apple-from-acting-as-private-pol Update: Thanks to the pointer from @Fizz I found the reference to the exception for child abuse recently voted. It is a bit ambiguous because as a law it should be immediately applicable, but member states should anyway update their legislation to avoid conflict. And the news reporting the laws mention some constraints. https://ec.europa.eu/commission/presscorner/detail/en/IP_20_2463 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52020PC0568 | According to a Politico article from July this year EU Parliament lets companies look for child abuse on their platforms, with reservations The European Parliament on Tuesday approved a controversial law that would allow digital companies to detect and report child sexual abuse on their platforms for the next three years. Tuesday's vote was the final hurdle for the bill, and will allow companies to scan their platforms for explicit material without fear of violating Europe's strict privacy laws. The bill pitted the European Commission, who proposed the bill, and children's rights activists against the Parliament and Europe's privacy regulators, who fear the bill could undermine the EU's privacy rules. The results showed 537 MEPs voted in favor of the bill, with 133 against and 24 abstaining. Despite the result, [some] European lawmakers warned that the rules are "legally flawed" and could crumble in front of a court. [...] MEPs also said that the blanket scanning of private messages of European citizens to look for evidence of child grooming could clash with another set of privacy rules protecting personal data, the GDPR. To allay the Parliament's concerns, EU countries agreed to modify the Commission’s law to add additional safeguards, including bringing in Europe's network of privacy watchdogs to advise on what technologies should be used to do the scanning, and how they should be used. They also left out audio messages from the bill. The changes prompted Sippel, who was negotiating on behalf of the Parliament, to sign off on the bill. So YMMV, but insofar it looks pretty legal unless a court decides otherwise. It seems Apple went public with their plan after this EU law was passed, so they probably took it into account. For what's that worth, there's an analysis from someone at Cambridge (in the Compliant and Accountable Systems Group, Department of Computer Science and Technology) that: EU law would require that Apple obtain the consent of individual iPhone users for on-device scanning. This consent would need to be opt-in, rather than opt-out; there would need to be a real possibility for users to refuse consent; users’ access to iCloud could not be made conditional on giving consent to CSAM Detection; and users must be able to withdraw consent without suffering loss of iCloud service. This may place a welcome brake on the deployment of on- device CSAM detection in the EU. However, these barriers may be removed by future EU or Member State legislation – just as similar potential barriers for automated CSAM detection by certain messaging services have already been removed by EU legislation. So it seems that there would be a way for Apple to do this "device scanning" even in the EU with user (clickwrap) agreement... The paper enumerates the things than can be made implicit (bundled) in a GDPR agreement, and then goes on to argue that probably none of these apply to Apple's CSAM on device, and so they'll probably need a separate checkbox for CSAM... which the paper's author is pretty sure the users would not check. Importantly, because consent must be specific, consent to one purpose (such as processing to detect CSAM) can’t be presumed from consent to another purpose (such as processing for cloud backup). Nor can consent to processing to detect CSAM be ‘bundled’ with consent to cloud backup. GDPR strongly indicates that ‘bundling’ – the practice of making access to a service conditional on giving consent to processing that is not necessary for that service – is not permitted. [...] It is unlikely in the extreme that even minimally informed holders of CSAM would give consent to Apple’s CSAM Detection system. The paper more tenuously (IMHO) argues then that Apple needs do the same for their server-side scanning in the EU, i.e. get explicit consent, because it's somehow tied to the on-device scanning via the iCloud account. (The author also makes their personal disapproval of CSAM in all forms more explicit towards the end of the paper.) But still that someone who disapproves of CSAM entertains that it might be deployed via clickwrap user consent (albeit with a separate checkbox) is noteworthy. In this context I'll note (even though the paper doesn't), that there is a 2019 CJEU decision that pre-checking certain kinds of checkboxes (like for "nonessential" cookies) is not legal. I suspect CSAM will fall in this kind of category... so they won't be able to have the checkbox for it pre-checked, unless Apple does something more devious and make it so that image hashes become "essential" to something else that the user would more readily like to agree to... Also, looking at a current (August 1) Apple description of their system, it seems they only plan to run the image hashing on the device (and upload a threshold-encrypted version of the result, so that only multiple, cumulative "hits" on several images would be detectable/decryptable on the server), which would basically make their system (as currently envisaged) inoperable without the local hash step. I've also looked at Commission's 70-page impact assessment for their most recent proposal (the one discussed at the beginning of this answer), but it only discusses things like PhotoDNA and server-side hashing. So I guess they were unware that someone might plan to do [only] client-side hashing as part of a CSAM design. If this goes to an EU court, I guess an issue will be when and why iOS would create those (threshold-encrypted) vouchers that contain the images hashes, e.g. if they'd be considered an essential part/step of an otherwise approved purpose... | Privacy against publication of criminal convictions has been considered in the High Court in NT1 & NT2 v Google LLC [2018] EWHC 799 (QB), if I may run the risk of posting a legal citation myself. But note that the claimaints there are anonymized, as often happens in criminal trials as well. In some cases, the court may give an injunction against disclosing names or details, and can hand down both a public and a private judgement, with the latter being a restricted document that does have the identifying details. So this question could only apply to mentions of criminal process where the accused is actually identified. (And I think just saying "R v Smith" is not enough - the posted or linked text would have to give some identifying detail about which Smith it is, the nature of the crime, etc.) I have no qualms at all about talking about NT1 and NT2. The claimants brought a case against Google for making available information about their long-spent convictions, including on GDPR grounds although it took place just before the implementation of GDPR in UK law. Dealing with that argument under the prior legislation, the judge found that of the various exemptions claimed by Google, the condition The information contained in the personal data has been made public as a result of steps deliberately taken by the data subject. (found in the Data Protection Act 1998, Schedule 3, paragraph 5, implementing the Data Protection Directive that preceded GDPR) applied, because of a longstanding principle for criminal conduct. The idea is that (paragraph 111): A person who deliberately conducts himself in a criminal fashion runs the risk of apprehension, prosecution, trial, conviction, and sentence. Publicity for what happens at a trial is the ordinary consequence of the open justice principle [...] The same must be true of the details of the offending, and other information disclosed in open court, including information about himself which a criminal reveals at a trial or in the course of an application. The core principles are the same as the carve-out from defamation law for the fair and accurate reporting of criminal proceedings (paras 44-49). That "made public" condition can now be found in a slightly different context in the Data Protection Act 2018, Schedule 1, Part 3, paragraph 32, which mirrors Article 9(2)(e) of the GDPR for the purpose of Article 10: This condition is met if the processing relates to personal data which is manifestly made public by the data subject. Since this is virtually the same condition of European provenance, in the same context of surrounding rules, I think the precedent is a good guide. For courts themselves, law reports, and journalism or scholarship, there are other specific grounds to rely on. Individual Stack Exchange posters are surely covered under the general exemption for posting on social media in a private capacity, GDPR 2(2)(c) as interpreted through its Recital 18. For the site itself, as in the case of NT1 and NT2, there could well be a legal claim made about the inclusion of criminal conviction information in a posted answer. (In general, such a post, being free text, could contain all sorts of defamatory statements or other objectionable content.) The court would have to look at the competing interests and the level of harm. NT1 was not successful but NT2 was. The example scenario, where we are talking about a very brief mention of a criminal case, cited because it illustrates a legal point rather than because there's anything relevant about the person mentioned, is quite far from the grounds complained of by NT2. For NT2, there was a newspaper article in which he was "quite inappropriately, portrayed as one of a rogues' gallery of serious criminals" (para 188), eight years after the end of his sentence, and it was this that he wanted removed from search results. In particular, the academic exemption (para 13) seems strong, in the same way that it would be for a publisher of legal academic content. The test of "substantial public interest" does not apply, because this exemption comes through paragraph 36 in the case of criminal convictions; it's enough to show a reasonable belief that publication would be in the public interest. Google was not able to rely on the "journalism" version of this exemption (again, under the prior law) because they are a totally generic search engine for all kinds of data and purposes (para 100 of the 2018 judgement). The public interest test, and the accompanying "legitimate interest" for the data controller, do not seem too difficult in this example. | The Facebook Pixel analytics solution does not seem to support access or erasure for data subjects. While there are some GDPR compliance features, these focus on collecting consent prior to collecting data. The relationship between the pixel user and Facebook is also murky. For certain kinds of data, Facebook acts as the data processor only, and the user has all the responsibility as the data controller. For other kinds of data, Facebook and the Pixel user are joint controllers, and therefore jointly responsible. This lack of features doesn't necessarily mean that Facebook Pixel is in violation of the GDPR, since the GDPR Right to Erasure only applies under certain circumstances. However, it is really difficult to argue that a website or app that integrates Facebook Pixel would be compliant. It is also rather dubious that Facebook could be compliant themselves, since their pixels will also collect data about persons who are not Facebook members. While these problems are most apparent with the Facebook Pixel since it's explicitly intended for tracking, this problem also applies to any other embeds provided by Facebook, such as like buttons. This was the subject of the Fashion ID case, in which the ECJ determined (in 2019) that the site operator is a joint controller with regards to data collection on the website by the Facebook embed. This effectively means that third party embeds can only be loaded after the website visitor has given consent for sharing data with Facebook. The tracking of non-users by Facebook was seen as especially problematic in Belgium, where Facebook had been banned from collecting such data already in 2015 (which was upheld in 2018). Since this was pre-GDPR, FB is currently litigating whether Belgium can continue enforcing their ban. I expect that Belgium will prevail with their ban. While this has no immediate consequences for Pixel users, this would make it more likely that Pixel users could be sued or fined successfully. From an advertiser perspective, Facebook does have valuable data that make the integration of Facebook Pixel an attractive proposition. However, other analytics solutions are much easier to bring into compliance. This is ultimately a business decision: will the better understanding of your ad spend on Facebook outweigh the risk and effort of integrating the Pixel? | It depends. Can the data controller or another person, with "means reasonably likely to be used," (see clause 26 of the preamble of the GDPR) use that data alone or in combination with other data to identify a natural person? If yes, it is personal data within the meaning of the GDPR. If no, it is not personal data within the meaning of the GDPR. Anonymous data is not subject to the GDPR. "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." Assigning an unique alphanumeric code to a thing does not necessarily make the code and/or the thing "personal data". But if you have a set of data that is or can be linked by the unique alphanumeric code (e.g. as a primary key in a set of tables) and you can use it to identify a person, then it is personal data. Either way, to be GDPR-compliant / to mitigate risk you should make some kind of record to reflect that process of thinking and what you decided. And if the answer is Yes, it is personal data, then you should record your "lawful basis" for processing the data and how you decided that. | GDPR does not cease to apply because of the location of data storage. It applies based on the location of the data processor, data controller, and data subject. If you are in the EU, you are a data subject covered by GDPR. It does not matter where the data are stored. Note that you are asked to confirm that you're aware that US laws may be less protective, but you're not asked to acknowledge that anything about the arrangement causes the "laws of your country/region" not to apply. The company also does not seem to be claiming that they don't apply, although it seems that they want you to think so, and it's not clear whether they think so. You are correct that GDPR doesn't allow its protections to be waived. A data subject may always consent to certain processing, and some processing may be performed without consent, but it's not possible to waive the right to withhold consent for processing that does require it. | It is illegal in Scotland. There is currently no law specifically against it in the rest of the UK. If you find this is unbelievable, yes it is. There are attempts now to change the laws. PS. There are no photos taken "of the act". Taking the photo is the act. The pervs use a selfy stick or just get down on the floor to take photos, or take photos on stairs. PPS. News on Jan 16th 2019: "A new law will now be introduced in the next couple of months. It could mean that perpetrators might face up to two years in prison and are added to the sex offenders register." | The GDPR gives controllers a lot of latitude. They must decide on the correct course of action taking into account the possible risks to data subjects. Specifically, no notification of the authority is necessary if “the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons.” In your scenario 1, you suggest that there is no breach because there is no evidence that the data was improperly accessed. This analysis is faulty: the controller is aware that the data was not properly secured, and cannot rule out that the data was improperly accessed. I would argue this fits the description of a “breach of security leading to the accidental or unlawful … unauthorised disclosure of … personal data” (compare the definition of a data breach in Art 4(12)). Thus, a data breach has happened. The question whether the supervisory authority has to be notified of that breach is more debatable. The controller must assess the likelihood of risks to the data subjects. Here, they can perhaps argue that the risk of disclosure is low. However, the nature of the breached data would also be relevant. If in doubt, the controller should make the notification. The goal of the GDPR is not to punish unlucky companies that suffer a breach, but to protect personal data. Thus, fixing mistakes and cooperating with the supervisory authorities is likely the best approach for most companies. In your second scenario, the data is sensitive – its disclosure has a high risk for data subjects. However, the risk of someone intercepting this data is debatable. Does the risk of interception balance out the sensitivity of the data? That's the data controller's call, but I don't think so. A notification would seem appropriate here. As a technical remark, simply offering HTTPS is not sufficient to prevent MitM attacks – users must be forced to use encrypted connections. If a controller sees MitM as a risk, they are required by Art 24 to take appropriate technical measures. Here HSTS and HSTS preload would prevent the connections from being downgraded to HTTP. Instead of offering insecure connections, the site would become inaccessible. A complementary strategy is to not serve content over HTTP, but have the HTTP server only issue a permanent redirect to the HTTPS URL. | Per GDPR Art 79, you can sue data controllers if you consider your rights to have been violated. Where you have suffered damages due to GDPR infringements, you also have a right to compensation per Art 82. However, your rights may not have been violate as far as the GDPR is concerned. Under the GDPR any kind of personal data processing needs a clear purpose, and that purpose needs a legal basis. One possible legal basis is consent, but there also are others (such as legitimate interest). Just because you didn't consent doesn't mean that your rights have been violated. Where processing is based on legitimate interest, you can object to that processing of your personal data – but your rights must be balanced against that legitimate interest (Art 21). If your friends post a photo and you only appear in the background, your friends' legitimate interest to post that photo likely outweighs your rights. In practice, suing Facebook because of GDPR infringement is not a sensible way to achieve the outcomes that you likely want. First, this is expensive. Second, it is arguable whether Facebook or your friends should be the defendant. Third, removal of existing data won't prevent the processing of new data in the future. It would be more sensible to treat this as an interpersonal rather than a legal problem, and to talk with your friends so that they don't include you in their photos that they would like to share online. I've focussed on photos because their situation is fairly clear. Voice snippets might not count as personal data when you are not identifiable in them. Personal assistant apps should not be listening continuously, but only start recording when a wake-word is recognized. |
Why TVs / laptops etc. do not warn about too brirght screen whereas many smartphones warn about too loud sound amplification? I'm trying to comfortably use my laptop at night and now could not find an answer by web-search to the following: Why TVs / laptops etc. do not warn about too bright screen whereas many smartphones warn about too loud sound amplification? I'm asking on law site cause I suspect there were a number of successful lawsuits for impaired hearing from headphones but none for impaired vision from TVs. Am I right here? Digging down - has it happened because there are studies proving impairment for one and none for the other? Added: I actually doubt my second guess cause there are a lot of enhancements in screen brightness - auto-brightness, night mode. | Because there is no evidence that screens damage vision There is copious research on this phenomenon and while screens can cause short term problems like eye irritation and headaches, these are self-evident and temporary. There is simply no evidence that screens cause long term damage to the eyes (for example). There is strong evidence that loud noise can damage hearing Hearing loss is a function of the volume of the noise and the duration of exposure (for example). Headphones are often worn for prolonged periods and can easily be louder than 80dB which is generally considered the threshold for hearing loss risk. | Invasion of privacy and false light torts would probably not be applicable here. Very few states have adopted the false light tort because of its conflict with First Amendment principles and there was no agreement or even request to keep the text private. The copyright issue is trickier. First all, the TOS may provide that the copyright belongs to the text service provider or that there is a license. But, even in the absence of an express license, sending someone a message which is equivalent to sending them a letter, probably gives rise to an implied license that the person to whom it is sent can use the message that arises merely from the act of sending it without restriction or qualification. Implied license and fair use also heavily overlap. Publishing the text exactly as it was sent to you protects you from defamation liability because it is true. On the whole it would be extremely unlikely for there to be any legal liability for publishing a text from someone that they sent to you. Of course, one can imagine exceptions. If the person receiving the text was in an attorney-client relationship, or priest-parishioner making confession relationship, or was communicating regarding classified national security matters, or there was a non-disclosure agreement in place, among other possibilities, an evidentiary privilege and duty of confidentiality could apply and disclosing the material without the permission of the privilege holder could breach a duty of confidentiality and give rise to liability. If the picture was a nude picture of a minor, there could be a criminal and/or civil liability issue, and some states have also made posting "revenge porn" a criminal offense and/or a basis for civil liability. If the disclosure was effectively a way to facilitate insider trading that could be a problem. If the contents of the text were accurately transmitted but known to be false and were disseminated without disclosure of its falsity for the purpose of defrauding a third party, that could be a problem. But, no facts that obviously flag any exception are identified in the question. The mere fact that the posting may be embarrassing, or hurt someone's reputation, or was made without someone's express consent, in general, would not be a basis for liability. | These are the limits in Boston: 50 decibels from 11 p.m. to 7 a.m. and 70 decibels at any time. If it is annoying you then it is probably greater than 70 dB, you can buy a sound meter if you want to be sure. The advice is: Car alarms, loud parties, or loud amps: Call the Boston Police Party Line at 617-343-5500, or contact your local police station. | What a statute means can be difficult to determine. There are several approaches to statutory interpretation that could be helpful: Textual: The plain meaning doesn't confine "use" to a few particular types of uses. The plain text provides an expansive prohibition on any use of an electronic communication device. Legislative history/legislative intent: The previous version of the subsection did limit prohibited uses to only composing, sending, or reading electronic messages. Given the amendment, it seems that the legislature no longer desired that limitation. When the bill was introduced, Rep. D'Amico stated the purpose of the bill was to "[expand] the prohibition on driving while using an electronic communication device to include uses beyond composing, sending, or reading an electronic message." During debate, when asked what a person should do that doesn't have Bluetooth, Rep. D'Amico suggested "You put it on speaker phone". When asked, "Where would you place the phone?", Rep D'Amico replied, "Wherever you feel like; just not next to your ear." During the same debate, D'Amico described the bill: "What House Bill 1247 does is ban handheld cell phones while driving a vehicle." In my opinion, the declaration of the bill's sponsor, and the debate surrounding the bill treated it as expanding the prohibition from including only texting and email to also include voice conversations. As far as I can tell, the full scope of "using" under this statute hasn't been tested in court, but I could see this going either way. The plain text provides an expansive prohibition on any use of an electronic communication device. However, a court might also be convinced by the legislative intent that only aims to add handheld voice communications to the previous list of prohibited activities (or it least it could be argued that this is the case). Further, under a purposive construction, a court could even look beyond the explicit legislative intent and find that the core purpose was to prevent distraction, in which case "using" could include any activity on your electronic device that distracts you as if you were texting, or making a phone call (eg. selecting the next song to play in your music app). | The rules about use of lights, and keeping hands on the steering wheel are not new, but they may have been rephrased. It has always been the case that you should be in proper control of the vehicle (both hands on the wheel), and not to use the lights for thanking, or for inviting. Here are two extracts from the 1999 edition of The Highway Code. Flashing headlights. Only flash your headlights to let other road users know that you are there. Do not flash your headlights in an attempt to intimidate other road users. If another driver flashes his headlights never assume that it is a signal to go. Use your own judgement and proceed carefully. Once moving you should keep to the left, unless road signs or markings indicate otherwise. The exceptions are when you want to overtake, turn right or pass parked vehicles or pedestrians in the road keep well to the left on right-hand bends. This will improve your view of the road and help avoid the risk of colliding with traffic approaching from the opposite direction keep both hands on the wheel, where possible. This will help you to remain in full control of the vehicle at all times The recent changes concern vulnerable road users, and their priority. | Just at the offset this does not constitute legal advice, just some opinions I have on this point. Technically, you would not be prohibited to generate speech and use it however you like. Under normal circumstances any output generated by the system that does not contravene the service agreement would be your intellectual property. This would include the text and speech generated. Once you go about the request limit you would naturally be required to pay, but until that time you can use the service as a paying customer. Just to clarify this point I would like to make reference to the service license agreement, clause 3, which make reference to the following prohibitions: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services (subject to Section 3.4 below and except to the extent such restriction is expressly prohibited by applicable law); (b) use the Services for High Risk Activities; (c) sublicense, resell, or distribute any or all of the Services separate from any integrated Application; (d) create multiple Applications, Accounts, or Projects to simulate or act as a single Application, Account, or Project (respectively) or otherwise access the Services in a manner intended to avoid incurring Fees or exceed usage limits or quotas; (e) unless otherwise set forth in the Service Specific Terms, use the Services to operate or enable any telecommunications service or in connection with any Application that allows Customer End Users to place calls or to receive calls from any public switched telephone network; or (f) process or store any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the Department of State. Unless otherwise specified in writing by Google, Google does not intend uses of the Services to create obligations under HIPAA, and makes no representations that the Services satisfy HIPAA requirements. If Customer is (or becomes) a Covered Entity or Business Associate, as defined in HIPAA, Customer will not use the Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless Customer has received prior written consent to such use from Google. Similarly, as specified here: Customer will not, and will not allow third parties to: (i) use these Services to create, train, or improve (directly or indirectly) a similar or competing product or service or (ii) integrate these Services with any applications for any embedded devices such as cars, TVs, appliances, or speakers without Google's prior written permission. These Services can only be integrated with applications for the following personal computing devices: smartphones, tablets, laptops, and desktops. In addition to any other available remedies, Google may immediately suspend or terminate Customer's use of these Services based on any suspected violation of these terms, and violation of these terms is deemed violation of Google's Intellectual Property Rights. Customer will provide Google with any assistance Google requests to reasonably confirm compliance with these terms (including interviews with Customer employees and inspection of Customer source code, model training data, and engineering documentation). These terms will survive termination or expiration of the Agreement. You should also take a look at this and this. However, as per the terms of the agreement the speech generated would be your intellectual property, unless otherwise specified. Good luck! | 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. | Is it true that there has never been a single case It is tough to prove a negative. I am not going to completely parse the quote but please notice that the quote states "we couldn't find" and concludes that "it doesn't happen." Given these two pieces of information I do not conclude that there has never been a single case. Rather I conclude that the speaker in your quote could not find a case therefore he concluded that there has never been a single case. It's largely impossible to determine that there has never been a single such case. We can search published opinions but that barely scratches the surface of lawsuits that are filed. It is entirely possible that someone filed a suit which was quickly dismissed. The Act provides a defense, it does not bar lawsuits. Someone might get sick from food and not know where the food came from so they sue the provider. If this happens the provider may raise the Emerson Act as a defense and escape liability to the extent applicable. But again, we will never know because it's impossible to examine every lawsuit filed in this country. |
Does Alice have an implied covenant of good faith and fair dealing duty towards appointed counsel, Bob? Alice is charged under a criminal accusation, and counsel is appointed for Alice under the Sixth Amendment. Alice gives written notice to Bob (the appointed counsel) that Alice will always have at least one friend or family with the objective to aid the cause of the defendant and advising the defendant (Advisor) overhearing any remote communications they may have over the phone, but will not interrupt or otherwise even announce their presence just listen, and Bob acknowledges that fact. [EDITED] **Alice will not disclose the name or other identifying information of the Advisor to Bob other than the general relationship of and role of Advisor to Bob, and Alice will please the Fifth if compelled to provide information any further information on Advisor. Alice’s secondary objective is to meet her burden of proof of inadequacy of counsel which she is unable to without the audio recording. Alice might have a similar interest protected by the First Amendment to the recording that is supported in connection with recording the police. Under California case law, announcing to all parties that a call may or will be overheard shall be treated as if it is announced that it may or will be recorded which rebuts an objectively reasonable expectation of privacy or confidential communications and communication thereafter implies consent as well. Does Alice have to expressly announce if she or friends or family would be recording and obtain therein the implied or an express consent due to a covenant of good faith duty — or since they don’t have a contractual relationship, and Bob acts out of a statutory right of Alice imposing in particular a duty on Bob — she does not have to do that? Is Alice, for any of the above reasons and under the above circumstances, privileged to recording Bob without expressly announcing it to Bob and can Alice do so while evading a finding that she obviated her privileges to the confidential advice of Bob as counsel? | Does Alice have to expressly announce if she or friends or family would be recording and obtain therein the implied or an express consent due to a covenant of good faith duty or since they don’t have a contractual relationship, and Bob acts out of a statutory right of Alice imposing in particular a duty on Bob, she has no such duty? Alice and her counsel have some reciprocal duties. The duty of good faith and fair dealing, while in principle applicable to any contractual relationship, is not a good framework in which to analyze those duties. It is more fruitful to consider this specialized situation as a relationship arising at law which is not predominantly contractual in character. It is an attorney-client relationship primarily, not a contractual one, particularly in the case of appointed counsel who is not voluntarily selected or paid by the client. There are rules of professional conduct that specifically govern the allocation of responsibilities between an attorney and a client, some of which are particular to criminal defense clients and their attorneys. These rules of professional conduct would be controlling, not the duty of good faith and fair dealing. Further, it bears noting that the proposed arrangement would result in a forfeiture of the attorney-client privilege which is not a condition that any reasonable attorney engaged in a criminal defense case would agree to allow, for the client's own good. The main rules of professional conduct that are applicable (all U.S. jurisdictions use the same numbering system for their rules of professional conduct although not all of them are identical in content) are Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), Rule 1.4 (Communications), and Rule 1.6 (Confidentiality of Information). Of these Rule 1.2 is most important. It states: [A] lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. It also prohibits a lawyer from allowing his or her services to be used in furtherance of an ongoing crime or fraud. Rule 1.4 provides that: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 3.1 (Meritorious Claims & Contentions), Rule 3.3 (Candor Towards The Tribunal) and Rule 3.4 (Fairness to Opposing Party & Counsel) would also often be pertinent (as this defines what communications an attorney can and cannot have with others ethically, primarily prohibiting an attorney from knowingly using false testimony or faked evidence). There is some variation from state to state in the exact details of these rules, but the general thrust and the general scheme of organization is the same. In a nutshell, the clients has a responsibility to determine ends, and the lawyer is charged with deciding means, although in practice, it can get more complicated than that when the ends and the means are intertwined. The main exceptions in criminal cases to this division of labor are the means involved in electing a jury trial and choosing to have the client testify as a witness. A lawyer could reasonably insist, as a condition of ongoing representation by the lawyer of the client, that communications between lawyer and client not have someone else listening in. | The issue is more one of what an attorney is ethically authorized to disclose pursuant to professional ethics rules (Rule of Professional Conduct 1.6 as enacted locally) more than one of attorney-client privilege. Attorney-client privilege governs what someone can or cannot be compelled to disclose without their consent (usually by subpoena). Attorney confidentiality, in contrast, governs what an attorney can disclosed when not compelled to do so by something like a subpoena. Generally, disclosure of confidential client information is allowed if it is in furtherance of the representation or authorized by the client (there are also other exceptions but those aren't really any different in a two lawyer v. one lawyer situation). Often when two attorneys represent the same person (and the disclosure won't waive the privileged nature of the information vis-a-vis third-parties under a joint defense theory), disclosures from one attorney for a person to another attorney for a person will do that. In practice, however, the analysis could be quite fact specific and there isn't really a bright line rule governing when it would or would not be allowed. | Is an attorney permitted to ask questions like those in either paragraphs two and three? Yes. That does not mean that they will be considered relevant or even appropriate, though. Is the witness allowed to decline to answer such questions for reason of irrelevance, or other grounds? Yes. In general, though, it would be safer for the witness to state an objection (be it on the basis of irrelevance, confrontational, asked & answered, as to form, etc.) and answer the question nonetheless, rather than simply refusing to answer it. By simply declining to answer a question regardless of the basis for refusal, the witness risks affording a crooked lawyer the opportunity to falsely generalize that the witness was uncooperative. One exception to the idea of "object-and-then-answer" is where some privilege is the alleged basis for the objection, since the substance of the answer could be such that it amounts to waiving the privilege even where that privilege is legitimate. The witness may also opt to answer the lawyer's irrelevant questions even without stating an objection. Some questions are so obviously irrelevant, dull, or stupid that a failure to raise an objection will be inconsequential. In such scenarios, raising objections can only lengthen the deposition transcript and make it harder to read. For a real-life example of deposition with plenty of dull questions, take a look at the transcript (which I split in parts one, two and three) of the 4-hour deposition where I myself was the witness (you can download the case file, almost in its entirety, from this page). You will notice that I did not raise objections during the deposition, the main reason being what I explained above: To avoid giving the opposing counsel an opportunity to falsely accuse me in court of being uncooperative during deposition. Furthermore, addressing the crook's futile questions (1) projects transparency and helps on the witness's part, and (2) precludes a false & misleading impression as if the witness had something to hide. After all, wrongdoers are the ones most interested in eluding testimony in ways very similar to this other deposition. The reason of being of objections is precisely that the law "is aware" that, as a matter of fact, lawyers indulge in all kinds of abusive questions when taking sworn testimony --be it in trial or at deposition-- of a witness. | Can the communications between Barbara and Amy be subpoenaed, or are they protected by Attorney-Client privilege? The communications remain protected by the attorney-client privilege. People Ex Rel. Herrera v. Stender, 212 Cal.App.4th 614 (2012) describes a pattern of unauthorized practice of law by a former lawyer who allegedly kept giving legal advice without informing his clients about his disbarment. The opinion nowhere suggests that their attorney-client privilege was invalidated or waived. Quite the contrary. For instance, the court reiterates the intent to "protect individuals in need of legal advice from seeking assistance from Martin R. Guajardo in the mistaken belief that he is a licensed attorney", Id. at 628. That intent is palpable also in the mention of "ad hoc measures from the court's equitable arsenal" to preserve the clients' privilege, Id. at 647, 650 (quotation marks omitted, brackets added). See also In Re Grand Jury Proceedings, 219F.3d 175, 183 (2000): [W]hen waiver occurs as a result of inadvertent [...] disclosure, courts have limited the scope of that waiver based on the circumstances involved and overall fairness. (citations omitted). Your premise that Amy concealed her disbarment and made intentional misrepresentations about being authorized to practice law implies that Barbara's disclosures to Amy were inadvertent. U.S. v. Warburg Pincus LLC, U.S. Dist. Court, Vermont (June 2022) reflects that "the attorney-client privilege can remain intact despite a one-time leak of privileged information" (citing cases). A multiplicity of communications between Amy and Barbara seems unlike to defeat Barbara's privilege as long as the premise of Barbara's [reasonable] unawareness holds. | A lawyer is obligated to protect his client's interests and to carry out his client's directions in these matters. Not doing so would violate multiple ethical rules applicable to lawyers. Some of the relevant provisions of the American Bar Association's Model Rules of Professional Conduct which are the template for every state's ethical rules (some with local variation) are: Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Rule 1.7 Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. Rule 1.13 Organization as Client (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law. (c) Except as provided in paragraph (d), if (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. (d) Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law. (e) A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal. (f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. Rule 1.16 Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. A lawyer is certainly within his rights, and indeed his duty, to inform a client that his proposed course of action is unwise, and can withdraw from representing the client. But, in general, in a transactional matter, unless the proposed conduct constitutes a crime or fraud, the lawyer may not defy a client's directions. Of course, while there are general rules in the law, there are also almost always fact specific exceptions to those rules. For example, while ordinarily, writing a tough contract when dealing with a minority counterparty would not be a crime or fraud. But, if an easy contract was used with all non-minority counterparties, but not with minority counterparties and the client's instruction was intended to discriminate on the basis of race, it might very well be unlawful or even a crime, in some circumstances to do so, which would alter the lawyer's obligations. Even then, however, a lawyer would almost never be authorized to affirmatively draft a contract contrary to the client's instructions as opposed with declining to do that work at all. | In California, all parties to a conversation (people being recorded) have to agree to a recording. There are no special rules pertaining to husbands and wives. It is sufficient that the parties are aware that the recording is being made and they continue to talk, knowing that fact. There are exceptions, under Cal. Penal 633.5, in that surreptitious recordings are allowed in order to gather evidence of "extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m". To be used as evidence, there are also "predicate rules" to the effect that you have to prove who the voices are from, that the recording hasn't been altered, and that the recording is reliable (e.g., there isn't a mysterious 18 minute gap). | The general rule is that in the opening statement, the lawyer may describe what he expects the evidence and testimony to show: We will present Mr Smith, who will tell you that he saw the defendant miles away at the time of the crime But cannot make statements of fact as such. I don't see why this rule would be different for a pro se defendant. In a closing argument, as i understand the rule, the lawyer may and often will say things like "As witness X testified, there was no time to stop" but is not supposed to introduce new alleged facts not supported by the evidence. However, in a closing, a lawyer can and often does draw conclusions from facts supported by testimony. "My client was proved to have been in the next town 20 minutes earleri, so obviously he could not have committed the crime." Again, i don't see any reason why these rules would be different for someone acting pro se. | It may not be libel, but it may violate other statutes and may support a judgement against the person publishing this information as long as there is an injury-in-fact ("an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical"). A recent case, Spokeo, Inc. v. Robins 578 U.S. ___ (2016) considered the case where a company created a profile for a person. That profile stated "that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree". The plaintiff asserted that all of this was incorrect. The plaintiff made a claim under the Fair Credit Reporting Act because the information was false. However, mere violation of statute is not sufficient to meet the "injury-in-fact" requirement for standing. Congress can't create standing via statute. Injury-in-fact still requires a "concrete" injury. This does not need to be a physical, tangible injury. But, it does need to be concrete. On its own, publication of false information, even when statute prohibits it, does not create standing. There must be an injury-in-fact. |
Legal response to vaccination misinformation? With Dominion's defamation suit against Lindell et al, I got to thinking that companies making vaccines should have similar standing to sue prominent disseminators of vaccine misinformation. They can demonstrate that vaccine hesitancy is directly harming their bottom line. Would they (Pfizer, Moderna, J&J) have standing in the US to pursue such a suit? If so, why don't they? Many of the misinformation claims are easily proven false. | In the US the first amendment protections given to free expression make defamation claims significantly harder to pursue than in some other countries. o-called 'product defamation" claims are generally harder yet. In the case of Dominion Voting Systems some of those sued seem to have made fairly specific allegations, which, if true, would involve probably criminal wrong doing. And please note that none of those suits have yet had a trial on the merits, to the best of my knowledge. We don't know if the statements complained of will be held to be defamatory or protected. Claims that a vaccine is not as safe as it should be, or the regulators were too quick to approve it, are harder to frame as defamatory of the drug companies. Since the government contracted in advance for enough vaccine to give a dose to everyone in the US (as I understand it) damages would be hard to prove. And there would be a risk of a PR backlash. It is not as if any of these companies has tried to file a suit and had it dismissed. They have not chosen to file, for which there could be many reasons. | Businesses are not required to do what the card says, they are required to do what the card-holder says, to the extend that what the card holder says relates to giving or denying consent to be vaccinated. Since they don't vaccinate people who are unconscious, consent will always be directly obtained from the patient and the card has absolutely no effect. Also, control subjects are selected at random and the subject does not know what group they are in. Possession of such a card therefore has zero scientific effect. | No one can give you a meaningful answer unless you specify what jurisdiction you're in. Assuming you're in the United States: There's no liability for defamation. The company using your picture isn't saying anything about you. Whatever you might feel the implications are, the reasonable reader would not view the ads and conclude that you are actually sick or struggling financially. Even if they would, it is not defamatory to say that someone got sick or that they are struggling financially. As you indicated, those implications would merely be unflattering, and there is no liability for saying something unflattering about someone. There's potential liability for "misappropriation of likeness." One of the four commonly recognized privacy torts covers the misappropriation of a plaintiff's likeness. The classic case would involve the use of a celebrity's name or picture to sell a product that she has not endorsed. Some states allow lawsuits for misappropriation; others do not. Even among the ones that do allow it, there is some variation as to the facts you must prove to win the case. As I recall, some states require that the defendant use the name or likeness for commercial purposes and some require that the plaintiff's likeness already had some meaningful value outside the context of the misappropriation in question. If you're interested in pursuing the case, contact a lawyer with experience in privacy torts in your jurisdiction. | So-called AI software does not enjoy a special legal status (at present: one never knows what new law might be added). The question of whether any software can be distributed "safely" or "responsibly" is also not a legal issue. Nor is "true sentience" a relevant consideration, and nothing is guaranteed. When you distribute software of any kind, there is an implied warranty that the product is "fit", and if software kills you, you may be able to sue the creator for negligence. A software creator may then want to disclaim liability, by saying "WARNING: THIS PROGRAM MAY KILL YOU. OCP IS NOT LIABLE FOR ANY INJURIES ARISING FROM USE OF THIS PRODUCT". This may or may not actually remove liability. In the UK "liability for negligence occasioning death or personal injury cannot be excluded", so such a disclaimer will not prevent a suit against the manufacturer. In the US, the issue is determined at the level of the state – here is a summary of the law in the states. Probably the primary question would be whether such a disclaimer is an unconscionable term, and the second question is whether the act constituted gross negligence (not simply "negligence"). Mississippi exceptionally does not allow disclaimers, but even then, it does allow disclaiming liability when it comes to computer hardware and software. A software disclaimer is not inherently unconscionable, though perhaps some specific disclaimer would be found to be. Courts typically disfavor disclaimers in the case of gross negligence, and again determining what constitutes "gross negligence" is determined on a state by state basis. If the act shows "reckless indifference to the rights of others" and "failure to use even slight care or conduct that is so careless as to show complete disregard for the rights and safety of others", then the act might be grossly negligent. | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | 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. | What legal options do I have here? I don't think I can sue for defamation of character since the email was sent to me only. Your rationale about defamation is accurate with respect to the establishment (henceforth "company"). But you may sue the person(s) who approached the company to falsely accuse you of that crime. Being banned certainly qualifies as special damage (that is, concrete damage), whence you have a viable claim of defamation per quod. If the crime that was falsely imputed to you is a felony or serious crime, then you additionally have a viable claim of defamation per se. I was thinking that I may have some legal recourse since the email clearly threatens to defame my character if I re-enter the establishment You have legal remedies, although not necessarily from this angle. The company can credibly argue that it sought to discourage you from contravening the "safety measure" it adopted in response to the accusations made about you. If it turns out that the company fabricated any false accusations it divulges, though, then you could sue the company for torts related to --and in addition to-- its defamatory falsehoods. So far the information you share here shows no signs of company's involvement in inventing the false accusations. What legal options do I have here? You need to ask the company for source and details of the information. In line with this comment, you should also ensure the company is aware of the mistaken identity. If the company declines to listen to you --and ideally see any proofs you have--, that could evidence some sort of tortious conduct on the company's part. Beware that in Florida a defamed person is required to demand a retraction of the false accusations prior to filing a defamation suit. Absent that request for retraction, it will be very easy for the sued defamer(s) to have your complaint dismissed. If the company refuses to disclose the source of the false information, then you need to seek injunctive relief in court. That means suing the company so as to (1) compel the company to identify the person(s) who accused you, and perhaps (2) strike the ban that the company put in place as a result of the false accusations. Even if you don't prevail in striking the ban, the court proceedings would give you the occasion to set the record straight and prevent the company from defaming you if you legitimately expose (to the public) the arbitrariness of its ban. To be clear, the company can always indulge in defaming you for the sake of justifying its ban, although that would be dumb in light of what you will have proved in court by then. In jurisdictions where a request for retraction is not mandatory, a plaintiff who does not know the identity of his defamer(s) may (1) file suit against "Doe defendants", (2) subpoena the non-party company so as to obtain records related to the false accusations (obviously ensuring that these reveal the authorship thereof), and (3) upon production of subpoena records and requesting the identified defamer for a retraction, amend the complaint to properly identify the defendant. This would be more efficient than filing two suits (one for injunctive relief against the company, and another against the defamers). However, I am uncertain of whether this would work in Florida, given its pre-suit requirement of request for retraction. | I don't know of any law, state or federal, that would prohibit the disclosure of these facts. Such a law would almost certainly be unconstitutional under Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, (1976). In that case, consumer groups sued to invalidate a Virginia law prohibiting pharmacists from disclosing the prices of their products to the general public. The state argued that "purely commercial" speech did not enjoy First Amendment protection, but the Supreme Court disagreed, holding that unless it is deceptive or misleading, commercial speech enjoys normal First Amendment protections: Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. ... But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering. In this sense, the justifications Virginia has offered for suppressing the flow of prescription drug price information, far from persuading us that the flow is not protected by the First Amendment, have reinforced our view that it is. Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 770 (1976). I'd therefore assume this is just a matter of store policy. From the pharmacy's perspective, advertising its inventory of controlled substances probably makes as much sense as putting up a sign advertising how much money is currently in the cash registers. |
General Foundation for Understanding IP Law? This seems to be a recurring problem, both on this site and elsewhere, and including my own questions. Lots of specific-detail-type problems that may seem like that's all they are on their own, but their proliferation and aggregate theme suggest to me a fundamental misunderstanding. For example, my question of How far does a Creative Commons Non-Commercial restriction reach? assumes monolithic ownership of a derivative work, with no distinction of ownership between parts, even if some of those parts are unchanged from the original. This leads to a general theme of, "How much do I have to change it to make it mine, and thus disregard a license that I received it under?" According to that monolithic understanding, a restrictive license for the original ends up controlling something that I own. That is, someone else controls something that I own, and that smacks of a moral problem. So my underlying, technically-unstated concern in the above-linked question is whether the law really says something immoral. (morality can be a pretty powerful driver, even if the legal and penal systems aren't supposed to care about it, not to mention the more religious persuasions having a field day with that conflict, real or not) But a different understanding - one that allows granular ownership instead - doesn't have that problem. In that case, I only own the parts of my thingy that I actually invented. The parts that I left unchanged, no matter how small, still belong to the original owner(s) and not to me, and so the original license still applies to those parts. According to this granular understanding, someone else is no longer controlling something that I own, but something that they own, because I only own the parts that I actually made and not the whole thing. That makes all the difference in the world! It completely changes the mindset from "How can I avoid these immoral people, and perhaps 'do my part' in some cases to rid our society of them?" to "How can I not hurt someone who is practically just like me?" In other words, it makes me want to follow the law, when I understand the reasoning behind it. The law itself, alone, doesn't do that. Am I on the right track with the above description? Is that the right way to think about intellectual property and everything that the law says about it? Are there still problems with that understanding that I missed? Don't be afraid to go into the weeds on this one. The more detail, the better, so long as it's still easy to follow. I'm essentially trying to use an educational site to do what wasn't done in an outdated school curriculum. (it can't avoid being outdated if the administrators don't understand the near-instant transition from relative impotence to empowerment that the internet has caused, and so a whole new class of technically-old legalese has suddenly become important to the common people...and doesn't seem to match the culture that grew independently and organically from that sudden empowerment) | What you are missing is that the original copyright holder can give permission to make derivative works with strings attached. There is no automatic right to derive something from a copyrighted work. Those strings could include constraints on what you create in the process of making the derivative work. Yes it is a string limiting what you can do with something you own, but you would have been warned in the license and had the choice to start from scratch. People do create work-alike software with no copyright strings using two teams and a "clean room" design process. It is a lot harder than modifying something another person has developed. Also, law and someone's understanding of morals need not be aligned at all. And, in patent law, just creating something all by yourself from scratch does not give you ownership. If someone else did it first and got a patent you can't make the item you might think you own. IP law is complex and looking for "fundamentals" may not get you anywhere. | The basic principle about copyright protection is that the expression of an idea is protected, but the idea itself is not. So wholesale copying without permission is infringing. But the abstract algorithm is not protected by copyright (and let us assume that it also isn't patented). By way of analog, an insertion sort is a pretty easy concept to grasp, and once you understand it, you can re-create it, independent of how the original example (where from you learned about the sort) is expressed. So the question is whether it is necessary for you to copy that code (copyright protects against copying), or can you independently re-express the algorithmic idea (ideas are not protected)? | Yes, this is a valid concern As written, every piece of IP you produce while employed belongs to the employer. This includes your hypothetical game. It also includes your weekly shopping lists, your Christmas card to your Great-Aunt Nellie, the … a-hm … private video you make of you and your significant other. As written this is overly broad and probably unenforceable. However, it’s always better to have clear and legally enforceable clauses in your agreements because unclear, arguably unenforceable ones lead to disputes. To be fair, the employer has probably lifted some (bad) boilerplate and hasn’t actually thought through what it means. Get it redrafted. | No, this is not true. Copyright can be enforced selectively. You are confusing copyright with trademark. Company can lose its trademark if they aren't protecting it. All the meanwhile they can choose to ignore some copyright infringement while enforcing their rights on others with no legal problems what-so-ever. In order to illustrate the difference: for example, if someone would make a clone of Super Mario and would call their clone as well "Super Mario" and maybe even would call themselves "Nintendo", even if they have programmed the whole game by themselves from scratch and the art and music would be all different, they wouldn't be infringing the copyright but challenging protected trademarks. In your case, the naming was identical, the art and everything was too similar to the original and therefore the clone was challenging the trademark that needs constant protecting. | This answer to a related question sums up the relevant concepts regarding work for hire. Since, according to your description of your relationship to A, you are not an employee (Commun. for Non-Violence (CCNV) v. Reid 490 U.S. 730), and you do not a written agreement, under US law, this would not be a work for hire: thus you hold copyright to something. I presume Company A gave you the source code and you are rewriting it to fit some technical requirement, so you have been given permission by the copyright holder to create a derivative work. You do not gain copyright to the original code: you only hold copyright to what you wrote. You would therefore need the permission of the copyright holder (of the original program) to sell copies of the modified program (currently A, company B in the future once the transfer is complete). There isn't a special "signing-over" ceremony for permission to copy, but the situation you describe is very messy. Even without a written agreement, you do understand that they intend to make multiple copies of the resulting program which includes your contribution, and you have received something of value in exchange for your contribution. So, one would argue, you have at least given permission to copy your stuff, even without a piece of signed paper -- in hiring you, you have given them an implied license to use what they paid you to create. The unclarity would be in whether you transferred your property rights, or simply licensed them to use it. Hence the recommendation to get an IP attorney. | We can't really know until the ruling is made. The Supreme Court might issue a ruling that encompasses all software APIs, or may predicate its ruling on this more specific situation, e.g. that because Oracle's library is so extensive its structure can be copyrighted even if that does not necessarily mean that any individual function signature can be copyrighted. They could also decide based on something unrelated to the heart of the copyright question - skimming through the petition for a writ of certiorari, they could make a decision based on the original implied license from Sun, for example. Hopefully their decision will answer the copyright question of function declarations completely, but it isn't required to. | Such clauses are called "copyright assignment", "invention assignment", and/or "works for hire" clauses, partly depending on the clause's intent and wording. They're pretty common in employment contracts for software development and some creative positions. Frankly, the clauses don't actually do much, at least in the US -- copyright law already recognizes the concept of works made for hire (which belong to the employer), and claims too far beyond that are often rejected if they aren't obviously related to company business. With that said, your hypothetical programmer's painting is safe unless it depicts, say, the contents of an email from the CEO. :) Even if the clause technically entitles the employer to claim ownership, the employer has no legitimate interest in doing so. Likewise, that app created outside work is safe as long as it is created using no company resources and is unrelated to the employer's business. If the app is obviously related, that's where things get hairy. | Short Answer The kind of lawsuits you could end up being involved in simply from owning a copyright are similar to those you could end up being involved in for receiving shares of stock in a publicly held corporation that never actually pays any dividends - i.e. only those that are inherent in any kind of property ownership. There Would Be No Criminal Or Tort Liability If by "can I get in legal trouble just for the simple fact of owning these copyrights? . . . please give legal precedents where people have been somehow punished for just owning a copyright[.]" Normally, when you use the term "punished" you are thinking about criminal or tort liability. If, by "legal trouble", you mean can you have criminal liability or civil liability for wrongdoing in tort (i.e. for a civil wrong), the answer is that you probably can't get in "legal trouble." I can't think of any way that mere ownership of a copyright could give rise to that kind of liability in the way that you might have to be concerned if, for example, you owned real estate that wasn't maintained and caused an injury to someone. You Could Still End Up In A Lawsuit But if, by "legal trouble", you mean that you can't be legitimately made a party to, or involved in, a lawsuit that doesn't allege that you are personally at fault, the answer is that you probably can get in "legal trouble." I'll provide some examples, although not necessarily specific cases where these things have happened, because they are largely self-evident. Instead, I indicate what my personal experience as a lawyer has been with each kind of situation. For the most part, the legal principles involved would be general to pretty much any kind of property interest in anything and are not really specific to a copyright in particular. But, because it is a copyright rather than another kind of property, in the U.S. at least, the lawsuits would have to be brought in federal court, rather than in state court, in some of these cases, because the federal courts have exclusive jurisdiction over cases related to the validity, registration, and enforcement of copyrights. You could also be subjected to a subpoena because as a copyright owner you have access to, or might have access to, information that is relevant for some other lawsuit or criminal prosecution. The cases where you could get into a lawsuit basically fall into the following categories: Disputes Over Who Owns Or Should Own The Copyright Or A License To Use It The author leaves you the copyright in a Will, but the author's heirs are convinced that the author was mentally infirm and sue to have the Will invalidated. You have to be involved in the lawsuit because you were one of the beneficiaries of the allegedly invalid Will. (I've handled half a dozen Will contests). The Will could also be invalid because the author had a contract or divorce settlement requiring the author to leave the copyright to someone else and the author violated that contract. (I've handled a case with this fact pattern, although involving real estate rather than a copyright.) Unbeknownst to you, before the author's death, the author sold the copyrighted work to someone else and they sue you in a lawsuit intended to establish that they own it and not you. (I've handled cases similar to this involving water rights.) Unbeknownst to you, before the author's death, the author licensed the copyrighted work to someone else and they sue you in a lawsuit intended to establish that their license is still valid. (I've handled cases like this involving leases to real estate.) Unbeknownst to you, the author obtained the copyright for a work that was actually written by someone else (or for work that was done "for hire" while working for someone else whom they had agreed would own the copyright). As the current owner of the copyright you could be sued in an action to have the author's copyright invalidated. In a variant of this scenario, the author could have omitted a co-author of the work when filing for a copyright and the co-author could sue to be legally recognized as a co-author. (I am handling a lawsuit like that right now involving a copyright.) Suppose that the author got divorced shortly before death and didn't disclose the existence of the copyright in the divorce action. The author's ex-spouse could sue you to recover all or part of the copyright that might have been awarded to the ex-spouse in the divorce if the existence of this asset had not been concealed, perhaps under a legal theory known as "constructive trust" (which would mean that the legal fiction that you were holding this copyright in trust for the true legal owners of it to be determined in the future, as a result of the author's wrongful conduct, would be utilized). (I've represented a client in a divorce where this remedy was obtained by a party.) Suits To Gain Ownership Of The Copyright As Part Of Debt Collection Suppose that the author was subject to a tax lien before the author died for unpaid income taxes, and the author's estate does not pay off that tax lien in the probate proceeding in which you receive the copyright. The taxing authorities could sue you to enforce their tax lien to collect the author's unpaid taxes. (I've represented people in income tax lien cases, although never one where someone ended up dying before the collection could take place.) Another kind of taxes that could give rise to a tax lien on a copyright would be those arising as a consequence of the author's death. In the U.S., that would usually involve estate taxes. In Canada, this would often involve capital gains taxes on increases in the fair market value of the copyright that arose during the author's lifetime. (When I handle probate cases, I consider this possibility and have published a couple of articles on liens in probate cases.) Similarly, if the copyright were used as collateral for a loan that was unpaid at the author's death, the lender could sue to seize the copyright in partial payment of the loan. (I've handled cases like this involving real estate and ownership interests in companies.) Suppose that the copyright had genuine economic value and the author gave it to you at a time when the author was insolvent (i.e. had debts greater than the total value of the author's assets and the author was not paying the author's debts as they came due). A creditor of the estate could seek to set aside the transfer to you in what is known as a "fraudulent transfer" lawsuit in order to seize the copyright in order to collect a debt. (I've litigated fraudulent transfer lawsuits involving other kinds of intellectual property, although never a copyright.) Subpoenas You could end up being involved in some sort of "legal trouble" because you could be subpoenaed to provide information that you have as a result of being a copyright owner. Still, this is really no different from the risk you can have of being subpoenaed to provide information related to all many of things that you know about in your daily life that could be relevant to a court case, for example, knowledge you involuntarily obtain when you witness a car accident, or run a credit card transaction for someone that could provide the customer with an alibi in a murder case. (I issue subpoenas all the time in civil cases and routinely represent people who have received subpoenas.) In these situations, you could be required to provide records or show up to a deposition or trial to testify at a witness, with only minimal compensation, even though no one is trying to impose civil or criminal liability of any kind on you personally. Still, this legal obligation could be a significant economic burden to you that you can do nothing about but suck up and comply with. But, if you failed to respond to the subpoena, a warrant could issue for you arrest for contempt of court and you could be incarcerated or fined until you complied with the subpoena, and of course, if you lied while you were testifying (or at least, a prosecutor and judge believed that there was probable cause to believe that you were lying during your testimony), you could be prosecuted for perjury. Obviously, in these cases, the civil or criminal consequences would be due to your own personal misconduct in connection with a court case and not your ownership of the copyright itself, of course. For example, suppose that the author's son was getting divorced. He or his wife might subpoena you to produce records such as the copyright transfer document, to prove that the son didn't inherit that asset, to prove that it isn't an asset of the son in the divorce. (I've had cases where issues like this are litigated, although not yet involving a copyright.) As another example, suppose that the federal government suspected the author and daughter of being part of a money laundering scheme and was prosecuting the daughter for this crime (the author, being dead, wouldn't have to worry about that prosecution). The daughter's defense attorney might subpoena you to testify in court regarding the fact that you received the copyright as a gift rather than purchasing it, and that you weren't collecting royalties on it, in order to prove that the copyright wasn't being used as part of the alleged money laundering scheme; or the prosecution might call you to testify to the same information because the author had been reporting royalties from the copyright on his tax returns when in fact he hadn't been receiving any royalties and the money he received was really from a cocaine dealing cartel. (Creating paper trails to make it possible to disprove money laundering allegations if they were ever made is something that lawyers involved in business and estate planning and asset protection planning matters, like me, spend a lot of time worrying about, even though we rarely end up actually litigating it in the end.) Footnote: Some Extremely Unlikely Extreme Privacy Cases There are extremely rare cases in which the mere public acknowledgement of the existence of the copyright could have national security or trade secret implications, and you could be sued, or subject to legal action or threatened legal action of some kind in order to suppress public knowledge of the existence of the copyright. For example, suppose that the name of the work was "A User's Guide To Cracking The Chinese Military's Nuclear Weapon Control Codes." Furthermore, suppose that the author was a former employee of the National Security Agency (N.S.A.) which is the spy agency that secretly cracks foreign government's codes. In this situation, you could probably be subject to secret legal action to put a gag order on the existence of this work. This is because if China knew that someone in the U.S. had cracked their nuclear weapon control codes, they would change them and this would impair U.S. National Security. (As a mathematics major in college I discovered that a significant number of PhD mathematicians in certain specialities related to cryptography end up being basically coerced to work for the NSA because their research is classified for national security reasons, so they have to get paid a decent salary to work for the NSA or never publish their work which deprives them of an ability to make a livelihood (e.g. as a professor or business consultant) using their knowledge - its a running source of dark humor among advance math students contemplating graduate school studies. I also have many estate planning clients who work for intelligence agencies, i.e. for spies, who have to keep certain information secret for national security purposes.) Similarly, suppose that the name of the work was: "A Computer Program Designed To Utilize Backdoors To Encrypted Fortune 500 Company Databases Pursuant To Section 324(b) Of General Software Corporation's Service Contract Which Nobody Ever Reads", and the author was a former employee of General Software Corporation that used this backdoor for its own selfish business advantage contrary to the client's financial interests, which was legal because corporate software clients authorized this in an obscure clause of their standard service agreement. Perhaps access to this backdoor is actually the source of most of General Software Corporation's profits as it actually barely breaks even on its code writing and maintenance work. In this situation, General Software Corporation could probably take legal action to put a gag order on you to protect their trade secret, because if this trade secret became public, its value would be destroyed because the companies affected would shut down this valuable back door. (In my practice, most of the trade secret disputes involve living people in the legal marijuana industry, but if one of them died, this kind of thing could come up.) |
Can I use the government's seals and logos without its permission? Is it permissible to use a governmental seal for editorial purposes in a magazine? For example, in a news story about the Bureau of Alcohol, Tobacco and Firearms, could I use ATF's logo to accompany the story? | Yes. The First Amendment permits you to use the seal of a government agency to illustrate a story about that government agency. The government can no more prohibit you from displaying its seals for expressive purposes than it can prohibit you from displaying its flag. The questions raised about possible trademark violations and implied endorsement are red herrings. Section 2(b) of the Lanham Act prohibits registering a trademark that "consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality," so the government therefore may not trademark its seals. In re City of Houston, 731 F.3d 1326, 1331 (Fed. Cir. 2013) ("As the nature of the mark is not disputed in this appeal — Houston admits that its city seal is an insignia under § 2(b) of the Lanham Act — the Board properly affirmed the examining attorney's refusal to register Houston's city seal.") Even if the seal were a protected trademark, the context of its use -- in an editorial setting rather than for commercial purposes -- is protected by the First Amendment. For instance, in Renna v. Cty. of Union, N.J., 88 F. Supp. 3d 310, 323 (D.N.J. 2014), a county tried to stop a television host from using its seal in advertisements for a show about community affairs. The court noted first that the seal was not protected by trademark law, and that even if it was, the county's efforts to limit the host's expression would run afoul of the First Amendment: Consider that the First Amendment prohibits a State from criminalizing the desecration of the United States flag as a form of political protest. ... Should a county, by means of an artful extension of trademark law, be permitted to quash political expression that uses its Seal? I think such an extension would be both unwarranted and Constitutionally risky. The same is true of implied endorsements. The First Amendment does not permit the government to limit your expression because it thinks people might mistake it for government speech. For instance, Rothamel v. Fluvanna Cty., 810 F. Supp. 2d 771 (W.D. Va. 2011), a county government adopted a law "prohibiting the display of the Fluvanna County seal unless expressly authorized by the Fluvanna County Board of Supervisors." The law was prompted by concerns about a blogger who had been using the county's seal in stories about county government, and there were reports that some people thought the seal indicated that the stories were official county publications. When a blogger challenged the law, the federal court entered a permanent injunction against enforcing it: The County takes the position that the showing of the seal by private citizens is not a form of expression at all; rather, the seal is government property, like a government vehicle or other form of personal property. ... While the County is correct that Rothamel does not have the right to take possession of a physical seal owned by the County, the County cannot control all privately-owned images or representations of the seal simply by declaring an interest in managing its own property. The First Amendment requires a more specific and substantial interest in restricting speech than the broad desire to safeguard government property. | Yes, if you do not use the trademarked name. In the U.S. the graphical shape of fonts are not protected by copyright. See 37 CRF section 202.1 Typefaces are specifically excluded. Excluded are under (a) "mere variations of typographic ornamentation," and (e) "Typeface as typeface." The computer code that a font/typeface program uses to produce the shapes can be copyright. Importantly, fonts are protected by their trademarked names. | Not with that license Your post makes clear that you have a sports license, not a hunting license. In that case, it was delivered in accordance with R312-40 of the code de la sécurité intérieure: Peuvent être autorisés pour la pratique du tir sportif à acquérir et à détenir des armes, munitions et leurs éléments (...): 1° Les associations sportives agréées (...) 2° Les personnes majeures (...) Sauf dans le cadre des compétitions internationales, ces armes ne peuvent être utilisées que dans les stands de tir des associations mentionnées au 1° du présent article. A license to acquire and own arms, ammunitions and related elements (...), can be granted to: 1° Accredited sports associations (...) 2° People older than 18 (...) Except within the framework of international competitions, those weapons can only be used in shooting ranges of associations mentioned at 1°. | One big hole in any scheme that relies on copyright is that it could not preclude people talking about the previous content or talking about you. This is well established First Amendment law. For example, see Near v. Minnesota 283 U.S. 697 (1931), which holds that except in rare judicially established exceptions (relating to military information, obscenity, and inciting acts of violence), government censorship is unconstitutional. Thus, no statutory scheme could be used to prevent third parties who happened to have seen the material while it was freely available from re-iterating what they had seen, or talking about it, or talking about the author (you). People could even reproduce portions of the published content. Some types of reproduction would be protected as fair use in the US, especially if the reproduction is for the purpose of criticism. (17 USC 107, and this previous Law.SE answer) The closest approach would be to protect your work as trade secret, making sure that anyone that you share it with agrees to non-disclosure. But, if you "publish unique content under this pseudonym" there is no way to "arbitrarily or wholly revoke discussion about that content". If the cat gets out of the bag, while you may have remedies against the person who violated the non-disclosure agreement, you would not be able to prevent third-party discussion or reproduction. | I know of no legal restrictions on using the title of Doctor in the United states. I know next to nothing about Canadian law and can't speak on that. Falsely claiming to have a license to practice medicine is probably illegal, depending on circumstances, and practicing medicine without a license is most certainly illegal, and there a numerous federal and state laws that would apply. But simply styling one's self as Dr. is unlikely to be held by a court as a claim to hold a medical license, or a particular degree. It's, of course, misleading and generally frowned to use the Dr. prefix unless one has earned an MD or PhD. Some holders of honorary doctorates use it as well, though some debate whether that's acceptable or not. | It depends. Symbols which are not entitled to trademark protection in a market, usually because they are merely descriptive or generic or functional, are in the public domain and may be used by anyone, but a person using a descriptive or generic symbol can't prevent someone else from using the same symbol to promote their own business. For example, I can use the scales of justice symbol to promote my law practice on my law firm website. But, since that symbol is a generic one in the law firm market, I can't sue a competing law firm from using the same symbol on their website. The essence of a protectable trademark that an owner of can legally exclude competing firms in the same market from using, is that your firm manages to infuse into the distinctive affectation for which trademark protection is claimed with what is called "secondary meaning" to the words or image or other manifestation of the trademark when it is used in the market where the owner of the mark wants to obtain trademark protection. For example, descriptive trademarks are not eligible for trademark protection and are instead in the public domain and can be used by anyone in a market where the mark is descriptive. You can't gain a legally protected right to use the word "liquor" to describe a business that is engaged in selling liquor, and you can't gain a legally protected right to use the words "doughnut shop" for a business that sells doughnuts. But, if you use the words "doughnut shop" to describe a business that sells liquor or bras, rather than doughnuts, and those words come to be associated in the mind of the public with your particular chain of liquor stores or lingerie stores, then the words "doughnut shop" have acquired a "secondary meaning" which can be legally protected by trademark law allowing you to deny other businesses the right to use that trademark in the economic market where it has acquired a secondary meaning. (The scope of an economic market can be both geographic and conceptual related to the nature of the products sold. The manner in which an economic market is determined for a mark is beyond the scope of this answer or the original question.) The analysis with respect to symbols is analogous. You can't gain legal protections for using a common symbol in a manner that merely conveys its pre-existing common meaning. For example, if you use the hashtag sign # to mean "number" or "pound", that probably cannot be legally protected by trademark law. But, suppose that one particular firm (e.g. Twitter) uses the hashtag sign in a novel sense associated exclusively with a service that this particular firm provides, in a manner that is not semantically derived from its pre-existing meanings. In that situation, the firm might very well be permitted to claim trademark protection for the use of that common symbol in this new sense that has a "secondary meaning", which associates that symbol in a certain context exclusively with that firm, in the market where that firm does business. Similarly, you could probably not gain trademark protection for the common highway "yield sign" design to mean "yield" or be careful or some other similar semantic meaning. But, if you used the common highway yield sign to sell spaceships, and people came to associate that symbol with the spaceships sold by your particular firm, rather than with spaceships in general, you might be able to secure trademark protection for the yield sign symbol in that marketplace. It is easier to develop a "secondary meaning" for a distinctive and particular stylized presentation of either words in a particular script, or a variation on what would otherwise be a common symbol, than it is to develop a "secondary meaning" for generic words or a generic symbol that is has an existing meaning in other contexts. For example, while Apple could probably not have claimed trademark protection for an image of a clock spinning clockwise while the user has to wait while the computer is thinking about something, Apple's distinctive variant of this image (which some people call the "pinwheel of death") might very well be eligible for trademark protection.' The AppleOS pinwheel of death | Yes. This is legal and it is done routinely. It is called executing a document in counterparts. To be clear, however, as the language of the question is ambiguous on this point, each signature would have to be contemporaneously notarized by the person notarizing that particular signature. In each case that a notarization took place outside the country where the Power of Attorney is to be utilized, normally, it would be necessary to also obtain an apostille for that notarization. An apostille is an official declaration of a designated official in the country of notarization that the notary of the signature in question was, in fact, a notary in good standing at the time that the notarization was done. | Generally speaking, it is illegal for you to do this. Copyright gives the creator of the image the exclusive right to copy it, and just making copies to send to other people is probably not going to be fair use. Making copies without a license from the copyright holder would therefore be copyright infringement. Are there likely to be any consequences for doing this? Probably not. |
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