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Is it legal to divulge information about a company (kindergarten) online in Austria? The situation is the following: We have made a very bad experience with a kindergarten in Vienna and would like to divulge (make public) the experience we made with this kindergarten. This would involve a website where we share our personal experience in the form of a blog post as well as a FAQ section where information about this kindergarten is provided, most of the information official. Can this in any case be considered defamation or libel? Some people in Austria we've spoken to have told us that this could be illegal in Austria and that we should instead just leave a review on google. Is this true? Then surely most reviews or posts about bad experiences with X company must be illegal in Austria? Worth noting is that we would not spread any false information, just recount our own personal experience dealing with the management of this kindergarten and their employees (no name calling). The blog post would just mention how it was and retell basic things like the management being rude to us, that we were lied about the education of the teachers (montesori), that staff was late or never showed up, we were yelled at when hugging our daughter in kindergarten and told its strictly forbidden on the premises etc. The FAQ section would have entries such as: Q: Can I reach anyone in the staff of KINDERGARTEN_X by telephone in the case of an emergency? A: Unfortunately this kindergarten has a strict no phone policy which means that parents at KINDERGARTEN_X have to write an email in the case of an emergency, a reply can take up to 7 days and might never come. Q: May I pick up my kid earlier than usually on some days? A: No, kids at KINDERGARTEN_X must be picked up at the same time everyday, they are also not allowed to miss out on a day unless they are sick, this also applies to 1 year olds. Q: Am I allowed to talk to the teachers? A: No, apart from greetings please do not speak to the staff of KINDERGARTEN_X and only write to them. The reason for this, as quoting the CEO of the company: "Our staff is not interested to hear about peoples holidays and chatting all day long". Q: Is the food really cooked fresh everyday? A: No, the food is only cooked twice a week. | In Austria they have a law about "Kreditschädigung" (website from the Austrian government, "credit damage") translated by Google as: Because of credit damage, a person is liable to prosecution if he or she asserts incorrect facts and thereby harms or endangers the credit, the acquisition or professional advancement of another person. A prison sentence of up to six months or a fine of up to 360 daily rates is provided for the offense of credit damage. If you setup a webpage which lists things which might harm somebody's business, you have to proof that every single claim you make is correct (not just your individual experience). So if you have solid proof for each of your claims of your Q&A, you might win a probable law suite. The way you wrote it, it might be difficult to proof because it seems to be your personal experience. See also here for details. (in German). | Neither the GDPR, nor the CCPA, nor any other data protection law that I am aware of, requires that when information is deleted on request, that similar information not be collected and stored in future. Under the GDPR Article 6 there would have to be a lawful basis for any processing, including storage, assuming that the GDPR applies to the directory in question. There could be a claim that such processing was lawful under article 6(e) "performance of a task carried out in the public interest". I do not know if any such claim has been adjudicated. Thus there is no need to hold a database of previously erased records to determine if a new record should be blocked as "previously deleted". The Wikimedia Foundation, which runs Wikipedia, I believe takes the position that the GDPR does not apply to Wikipedia, I am not sure of their detailed arguments. But surely articles on well-known people, such as a former US president, would be covered under the same provisions as would cover news reports and historical books about such a person. Perhaps that would also come under article 6(e) | Yes. This is infringement. This infringement might be excused by a "fair use" defense but it probably isn't. At a very small scale tailor to a very specific educational program, for example, for just members of a thirty person English class that they are currently taking, it might qualify as educational fair use. But I get the impression that the contemplated translation project is far more ambitious than that. The underlying content of the events reported in the news are not protected by copyright, but the language used to report those events and any translations of that language, is protected. The only reliable way to solve it is to get permission to do so from the holder of the copyright of the source of the new reports you are translating. | There does seem to be a meme in the UAE of people threatening legal action for negative reviews, as a form of defamation. The police will simply tell them that this is not a crime, go hire a lawyer if you want to sue them. If you block them, perhaps they don't have any other way to contact you (seems that was the point of blocking them), which means that you cannot receive their offer "If you pay us AED 1,000 we will not sue you", which could be a problem if they win their court case. Still, it is perfectly legal to ignore or block them, up to the point that you are actually served with legal papers. When they actually sue you, "blocking" is irrelevant, they will hire a process server to hand you the legal papers that command you to appear in court. | A statement cannot be libel unless it actually identifies the plaintiff to defame him. The identification need not be by name, but it must be specific enough that the public would be able to determine who the statement referred to. You can read more about this concept at Prof. Eugene Volokh on Libel Law Therefore, if nobody other than the plaintiff or defendant learned about the connection before the filing of the case or the publication of discovered emails, the original work of fiction was not a libel. And by telling everyone that the connection existed, yes, the plaintiff was impliedly consenting to any further alleged libel and it would be a defense from liability for the plaintiff. Furthermore, there wouldn't be libel unless whatever the fictional character did was untrue (something the real plaintiff didn't do) and the public would think that whatever the character did was actually an assertion that the real plaintiff did it. I could write a satire about a President Brock O'Bama who is actually a lizardman in disguise, and that's my First Amendment right, not a slander of the President. Disclaimer: only describing the common law and majority rules. State laws may differ. | tldr; the agreement is a mess, one-sided, do not sign. This agreement does little to serve your interests, and a lot to harm them. It is also fairly poorly phrased, I have doubts that someone with legal knowledge wrote it. It states: I agree to not disclose, or discuss with anyone, any matters relating to the investigation You are agreeing not to talk to the investigator. If you do talk to them, you will be in breach of the terms you've agreed to. I'm sure they'll just say "oh, that's not what it means" - but that is not how contracts work, they mean what they say. It also says: which includes but is not limited to: ... All documents created by me or shared with me during the investigation. This applies to documents created during the investigation, not in relation to the investigation, not for use in the investigation, not related to the complaint. And again, you can't share these documents with anyone, including the investigator. It may well be unenforceable, as it gives you nothing in exchange for the rights you are giving up, and the concept of "consideration" is key to the common law of contracts in the USA, and also Canada (stemming from British common law) which means both parties must receive something of value: Here's a wiki article on Consideration in US law and a page on Consideration in Canadian law With all of these flaws and the fact that it may well be unenforceable, it would not be wise to sign it. If it did the following, it might be a more useful agreement: Had time limits, after which the restrictions are lifted Allowed you to acknowledge the case and state that you can't discuss it while it is ongoing Applied only to the workplace, talking to the press and publishing details to the public internet, such as social media - this may already be in your contract of employment (relating to bringing the company into disrepute) if so it isn't really a restriction being applied by this agreement, but a re-iteration of the existing agreement Promised a fair investigation in a timely manner, with a report at the end, and appropriate action is taken if claims are substantiated, and libel has occurred Or, they could offer you money right now for your silence, that would absolutely be consideration, in some jurisdictions, the sum may need to be considered reasonable, but this is not universal. There are also cases where NDAs turn out to be invalid: 11 ways NDAs can be invalidated An actual case where an NDA was found to be too broad | No. In the United States, lying is not a crime. Unless it is done: under oath (in which case it's called perjury) or to a law enforcement agent conducting an investigation (in which case it's called obstruction). There are also the civil torts of slander (oral) and libel (written) if someone lies and damages the reputation or business interests of a person or company. Collectively, and without distinction, these are called defamation. Lying also has a close cousin — the civil tort of fraud — which usually applies to inducement into a transaction or a contract. There are also consumer protection statutes (federal and state) that deal with truth in advertising, truth in lending, lemon laws, etc. But those are primarily civil statutes and the last two are pretty far afield from your question. But none of that applies to the Facebook case you described. So, no. | What would be the most reasonable thing to do? Live with it. Oh, and stop breaking the law with your automated emails. Illegality on their part does not justify illegality on your part. Also, it’s likely that this activity has caused your email address to be blocked automatically which may explain why they aren’t contacting you. From a legal point of view, that’s the only reasonable option. You do have valid grounds for a lawsuit for the value of the watermelon but the cost of filing will be a couple of orders of magnitude greater than the value of the melon so doing so isn’t “reasonable”. If you want to vent, the internet offers a wide variety of social media platforms for which that seems to be their primary focus. But that’s got nothing to do with the law. |
Is there a way to check for patent infringment for free, when selling on Amazon? I have a listing of a chinese wireless charger, compatible with the new iPhones. How can i know, whether the product infringes Apple's patents without hiring a lawyer (which would be more expensive than the whole operation). | Amazon and most similar vendors (e.g. Wal-Mart) requires vendors to warrant to them that the products sold do not violate intellectual property laws and indemnifying Amazon for any harm it suffers if the representation is inaccurate. (I came to learn this in intellectual property litigation involving a Wal-Mart supplier and in separate patent infringement attorney malpractice litigation involving other vendors of different firms.) But it doesn't generally do any independent due diligence to confirm that these representations are true. As a practical matter, determining if something infringes any existing patent is a non-trivial matter, and even in cases where patent infringement lawsuits are brought by lawyers in court who have done due diligence, the validity of the patent is upheld in only about 50% of the cases that go to trial. The basic problem is that there is no definitive way to index patents that isn't vulnerable to an invention which is infringed being described in a different way than you are conceptualizing it for your search. Generally speaking, simply buying a patent infringing good as an end user in the good faith belief that it is not infringing is not a violation of patent law or actionable, and the knowledge that large firms require representations with legal consequences from their vendors probably suffices to show good faith. But if you plan to use the purchased good in some product that will be resold to others that incorporates it, that might be an infringement. If you are a prospective vendor, there are firms that specifically do patent searchers to determine if there is an infringement, but they aren't cheap. Typically the fee would start at $5,000-$10,000 and go up from there, and typically that is for a non-guaranteed search. An opinion letter from a patent practitioner would be necessary to be really sure (assuming that the patent practitioner or non-patent practitioner search doesn't find a clear infringement which could happen quickly and be cheap by comparison) and that would be much more expensive, maybe $25,000-$100,000, if it wasn't a particularly close case. On the other hand, if what you are primarily concerned about is the design of the bit that plugs into the Apple product, rather than all aspects of the product, it is a relatively trivial matter to determine if the connector involves an industry standard which is either in the public domain or widely available for license at a modest price for manufacturers, in which Apple does not itself claim a patent, or a proprietary design, in which Apple claims rights. USB-C connections, for example, are an industry standard connector, discussed here, which would give you some further leads. In contrast, earlier Apple-promoted (and developed) Lightning and MagSafe connectors, are proprietary connectors, which would potentially be infringing and would require more analysis. | Patents are not that relevant in this case. Software patents are unenforceable in most parts of the world anyway. What matters here is copyright. Every work contract has a clause that everything an employee creates as part of their employment is copyrighted by the company. So using company-owned code to build an own project would be a copyright violation. There are also other legal tools in some jurisdiction which can be used against employees trying to misuse intellectual company property. But that's a topic for Law Stackexchange. Also, this isn't really related to a BYOD policy. Being able to bring your own device to work and then back home might make data theft more convenient, but isn't required. There are many other ways to steal sourcecode, like USB drives or uploading them to the internet. To prevent the first you would have to design your software development offices like a supermax prison facility with meter-high walls (so nobody can throw a device over it) and strip searches on everyone leaving the building. This is neither feasible nor reasonable for anything below matters of national security. To prevent the second, you would have to completely prevent internet access from developer workstations, which would greatly impede the productivity of any software developer. So most companies do not even try to physically prevent employees from stealing sourcecode. They rather rely on the legal safeguards and on maintaining a mutual trust relationship with their employees. It might seem counter-intuitive to some, but when you do not treat your employees like potential criminals they are in fact less likely to betray you. | To answer the specific questions you asked: Can I use the publication to perform ECC without being under patent protection? Can an academic publication be under patent protection? The answers are: No, that academic paper does not provide any protection from patent litigation. Yes, an academic paper can publish the details of an invention, and that in no way voids the patent. The issue is the timing of the publication; the patent was filed in 1998; the academic paper was published in 2002. Once a patent is filed, the inventors (or anyone else, for that matter) can publish the patent, and that in no way invalidates the patent. To provide any protection against a patent, the prior art needs to be "prior", that is, earlier than the filing date of the patent. Now, this particular issue is made a bit tricky because there does appear to be prior citations of this invention. The whole reason this invention is called the "Montgomery ladder" (not Montgomery multiplication - that's something else) was because it was first published by Peter Montgomery in 1987. One would think that would invalidate the patent. However, I'm not an attorney; I cannot advise you to proceed under that assumption. Instead, I would suggest you follow the advice of Joao; there are plenty of elliptic curve routines out there; use one of them. | The United States Patent and Trademark Office has a relevant document. As mentioned in the referenced document, the inventor must set forth the best variant of the invention, which would explain using the words "preferably" and "advantageously". But the inventor doesn't want to let someone evade the patent by building a version that isn't the best, but is still better than what was known before the patent was published. So some features are described as "optional", meaning both the invention with the optional feature, and the invention without the optional feature, are covered by the patent. | Anyone seriously planning on doing this or anything like it would be well advised to consult a good trademark lawyer with the specifics. Specifics will matter in such a case. That said: Under US trademark law, the key question is whether a reasonable person would be confused into assuming that there is some connection, and that the new firm could be relied on based on the reputation of the old one. if so, this is a trademark infringement unless permission is obtained from the trademark holder (not likely to be granted). Since "orbitz" is a coined term its protection is stronger, there is no natural object or concept this can refer to. "AppleMoving" is less likely to be confused with "Apple Computers" because apples are real things and need not refer to computers. The likelihood of confusion depends on the specific facts of an individual case. Note also that trademark protection is a matter of private civil lawsuits. If orbitz didn't choose to sue for whatever reason, nothing would have stopped OrbitzMoving. | The audio book would probably be an infringing derivative work because the client could redistribute it once the client received it. It sounds very much like a product that is regularly sold by merchants relying on copyrights. Conceivably, simply reading a book aloud to a client in some sort of streaming context that could't be shared with others or replayed would merely be fair use, much like hiring a baby sitter to read a book aloud to your children would be clearly fair use. If there were an automatic text to sound converter as opposed to an individualized performance, it might not be considered infringing. There are people with programs that do this who haven't been sued, but the boundaries haven't been explored very thoroughly. Honestly, there isn't a lot of guidance in this area from statutory language, and the questions would often not be guided by much case law involving similar facts. Your intuition living in the modern world is probably almost as good as a lawyer's in this situation. | What would be the most reasonable thing to do? Live with it. Oh, and stop breaking the law with your automated emails. Illegality on their part does not justify illegality on your part. Also, it’s likely that this activity has caused your email address to be blocked automatically which may explain why they aren’t contacting you. From a legal point of view, that’s the only reasonable option. You do have valid grounds for a lawsuit for the value of the watermelon but the cost of filing will be a couple of orders of magnitude greater than the value of the melon so doing so isn’t “reasonable”. If you want to vent, the internet offers a wide variety of social media platforms for which that seems to be their primary focus. But that’s got nothing to do with the law. | Update (12/2/16) - Just received the following confirmation from Apple Export Compliance: The [redacted] app presently uploaded into your account CAN BE legally released to US and Canada only, it will not be necessary to go through Export Regulations. They have also rephrased the question "Does your app qualify for any of the exemptions...?" to the following: Does your app meet any of the following: (a) Qualifies for one or more exemptions provided under category 5 part 2, (b) Use of encryption is limited to encryption within the operating system (iOS or macOS), (c) Only makes call(s) over HTTPS, (d) App is made available only in the U.S. and/or Canada. Update (12/1/16) - In addition to the research below, a list of "Sample Scenarios" are given in iTunes Connect Resources and Help, one of which states: A developer chooses to release his app in the U.S. and Canada only. -- No U.S. CCATS or ERN is required. No France Import Declaration is required. The following statement (mentioned earlier in the same page) should also be taken into consideration regarding exemptions: All liabilities associated with misinterpretation of the export regulations or claiming exemption inaccurately are borne by owners and developers of the apps. So it appears the correct answer is likely not: N.B. to Note 3 (Cryptography Note): You must submit a classification request or self classification report to BIS for mass market encryption commodities and software eligible for the Cryptography Note employing a key length greater than 64 bits for the symmetric algorithm ... in accordance with the requirements of § 740.17(b) of the EAR in order to be released from the “EI” and “NS” controls of ECCN 5A002 or 5D002. Furthermore, under Note 4: Category 5 - Part 2 does not apply to items incorporating or using "cryptography" and meeting all of the following: a. The primary function or set of functions is not any of the following: “Information security”; A computer, including operating systems, parts and components therefor; Sending, receiving or storing information (except in support of entertainment, mass commercial broadcasts, digital rights management or medical records management); or Networking (includes operation, administration, management and provisioning); b. The cryptographic functionality is limited to supporting their primary function or set of functions; and c. When necessary, details of the items are accessible and will be provided, upon request, to the appropriate authority in the exporter's country in order to ascertain compliance with conditions described in paragraphs a. and b. above. I suppose there could be clarification under this note, but if I understand it correctly, an iOS app having the sole purpose of performing symmetric encryption with keys greater than 56 bits would have the primary function of: "Information security" Being "a computer" Barring clarification on these points that would qualify for exemption, NLR, etc. self-classification would likely be [any of the following]: 5D002.a.1.a (software) - Designed or modified to use "cryptography" employing digital techniques performing any cryptographic function other than authentication, digital signature, or execution of copy-protected "software," and having ... A "symmetric algorithm" employing a key length in excess of 56-bits Encryption registration may have also been required prior to September 20, 2016 (see linked reference). "Companies no longer are required to submit an encryption registration to BIS before self-classifying and exporting certain encryption items..." (Wiley Rein LLP) References: Commerce Control List: Category 5 Part 2 (Cryptographic "Information Security") - BIS Export Compliance - f5 License Exception ENC (740.17) - BIS Information Security Updates (September 20, 2016) BIS Publishes New Encryption Rule - Wiley Rein LLP |
In Arizona, if someone dies, are survivors legally obligated to post a public notice in a local newspaper? My question pertains to law in the United States. My mother died in the state of Arizona. Some places, the executor of the estate (or someone else) is legally obligated to publish a death notice in a local newspaper. Am I legally obligated to publish an obituary, or death notice, or something like that, in the local newspaper? | The relevant statute is Arizona Revised Statutes Section 14-3801. It states: A. Unless notice has already been given under this section, at the time of appointment a personal representative shall publish a notice to creditors once a week for three successive weeks in a newspaper of general circulation in the county announcing the appointment and the personal representative's address and notifying creditors of the estate to present their claims within four months after the date of the first publication of the notice or be forever barred. B. A personal representative shall give written notice by mail or other delivery to all known creditors, notifying the creditors of the personal representative's appointment. The notice shall also notify all known creditors to present the creditor's claim within four months after the published notice, if notice is given as provided in subsection A, or within sixty days after the mailing or other delivery of the notice, whichever is later, or be forever barred. A written notice shall be the notice described in subsection A or a similar notice. C. The personal representative is not liable to a creditor or to a successor of the decedent for giving or failing to give notice under this section. So, while it is mandatory to do so, the obligation to do so arises only once you have been appointed as personal representative. Also, while the probate court could revoke your letters of appointment for not making a publication as required by statute, there is no legal liability of the personal representative to third parties for failing to do so. And, it might be possible to waive this requirement, if all creditors of the estate were barred anyway, for example, because the estate has no assets that are not exempt from creditor's claims, or because all outstanding claims which might have been brought against the estate are barred pursuant to Arizona Revised Statutes Section 14-3803 with the adjustments to the statutes of limitations of Section 14-3802. | For service by US mail, they will attach a "proof of service" to the mailed document that contains a declaration by the person who placed it in the mail. (I think other jurisdictions may refer to this as an 'affidavit of mailing.') The e-mail notice is an informal preliminary, not the actual proof of service. As to the prohibition on party service, it's to discourage fraud and avoid direct confrontation. It's important to comply because if you don't the court lacks personal jurisdiction and any judgment or order issued is void. Here's a case on it: Caldwell v. Coppola 219 Cal. App. 3d 859 Court of Appeal, 4th Appellate Dist., 1st Div. 1990 The first Practice Act limited personal delivery of the summons to the sheriff of the county where the defendant may be found...Although the Practice Act was amended to permit private individuals to serve notice, the common law rule consistently prohibited an interested person from personal service on the opposing party...In 1872 the Legislature enacted section 410 limiting personal service to a nonparty or the sheriff of the county where the defendant is found...In prohibiting personal service of process by parties, the current section 414.10 continues the intent of section 410. The long-standing prohibition on personal service by the opposing party arises from the adversarial interest present in legal actions and the concern for discouraging fraudulent service. "The common law rule was that an interested party could not serve a summons, the policy behind the rule being that an interested party should not be put in a position whereby he might gain an advantage over his antagonist." (Com. (1929) 3 So.Cal.L.Rev. 129.) Although attorneys are competent to serve process, the prohibition on service by the opposing party is strictly enforced. (See Sheehan v. All Persons(1926) 80 Cal. App. 393 [252 P. 337].) When a party has served notice on the opposing party, the court lacks personal jurisdiction over the defendant. (In re Marriage of Smith (1982) 135 Cal. App.3d 543 [185 Cal. Rptr. 411].) Personal service by a party renders any judgment or order arising from the proceeding void, despite the defendant's actual notice. (Sullivan v. Sullivan (1967) 256 Cal. App.2d 301 [64 Cal. Rptr. 82].[10]) | One approach is to direct their attention to this publication from the NY Dept. of Health. It says "Physicians and hospitals are required by state law to maintain patient records for at least six years from the date of the patient's last visit". There is also a PDF printout which you can hand to them. If they still absolutely refuse, the publication explains about the appeals process and the consequence to the doctor, but it also provides some "rationalizations" that the staff-person might invoke (for example "Yes, but we charge for copying, I thought you meant for free" – they can charge up to 75 cents per page). There is no legal basis for their 2-year conclusion. | Under US copyright law, all works are protected by copyright except for US Government works. The concept of "public domain" is not legally well-defined, and is used colloquially to refer to government works, works whose protection has expired, works available to all, and works not copyrightable (such as scientific laws or old software). Under older copyright law, releasing a work without the copyright symbol effectively put the work in the public domain. One can simply say "I dedicate this work to the public domain", and that is typically taken to be enough. CC0 purports to do this (using more words). However, as far as I can tell, author rights under European law are so strong that it is simply impossible. Releasing works into the public law has to be consistent with other aspects of the law. If you grant an perpetual exclusive right to copy and distribute to a publisher, their right does not go away on your death (a right which they would not have with a real public domain work). A problem is that an author who makes such a dedication (a bare license) could revoke the license and reassert their copyright. They could be estopped from making that argument. As property, your heirs would inherit the copyright and could (try to) revoke the license. Presumably the courts would not allow them to pursue ostensive infringers. Nevertheless, your plan is neither trivial nor bullet-proof. | Murder is definined in Utah as: Murder is causing the death of another person under any of the following circumstances: ... Knowingly engaging in conduct which creates a grave risk of death to another person and under circumstances which evidence a depraved indifference to human life. It's not unreasonable to consider dropping 3,000,000 bouncy balls over a populated area as "depraved indifference", particularly if someone had asked/read the question and would therefore know the potential consequences. Whether the killer would be charged with murder or manslaughter depends on the exact circumstances. | 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. | In this specific case and location, the precise location of the incident was explicitly made a public space via state law not too long before this actual event. They therefore most certainly have no right to privacy. What is interesting to me though is the other side of this, does someone have the right to record others in public spaces, or is it simply not illegal? For instance if I non-destructively and non-violently "jam" your camera by shooting a low-power IR beam at your lens, have I abridged a legal right of yours? I don't think it would be illegal to do this. I am not even positive its against the 1st Amendment. The 1st Amendment relates only to the dissemination of information, not the collection of it. The Constitution doesn't seem to compel the gov't to make information available, or even to make things/events/spaces observable. The various "sunshine" laws after-all had to be enacted, it wasn't part of an interpretation of the 1st Amendment. To put a finer point on it, is recording events in public spaces legal or merely lawful? | An executor executes a will according to the wishes of the will. This involves disposition of the estate. Almost certainly the mental state of humans is not material to the disposition of the estate. I'm unclear what you even mean by executor. The named executor of a will only has power after a person dies. Was the will executed 19 years ago? If so, the executor's power is long long passed. The chance of challenging a will 19 years later is practically zero. Elder abuse will be managed by the state. An interested party may involve the state to create an investigation as to what is going on. |
Why do some people argue that contingency fees increase lawsuits? I've seen this argument from a number of people, such as this New York Times article. Most countries do not allow contingent fees ... Allowing contingent fees increases the number of suits. I have trouble following the logic. Shouldn't the use of contingent fees reduce the incentive to start lawsuits that one is likely not going to win? Shouldn't that reduce pointless lawsuits? | Contingency fees are arguably designed to increase lawsuits; or more accurately, they are designed to increase access to legal representation for those without resources, or whose resources are disproportionate to their legal opponent, which can increase the number of lawsuits. Some of these lawsuits may be "good/valid" lawsuits, and some may be "bad/nuisance" lawsuits. The idea of a contingency fee is that rather than an hourly rate, the lawyer is entitled to a percentage of any award or settlement the defendant receives. Generally, such a percentage converts to a much higher amount than what a lawyer would receive on a per-hour basis. It also aligns a plaintiff and attorney's finical interests together, in terms risk and reward (e.g. accept a settlement for quick and sure cash now, or continue on to trial for a potentially larger award, but risk losing). There is a disincentive for lawyers to take on meritless cases, because they often receive little to no compensation in the event of a loss. However, the contingency fee system can increase the number of lawsuits, including nuisance suits, by incentivizing lawyers to take on "long-shot" cases or just trying to grab quick settlement offers, which can potentially be in the best interest of a legitimate plaintiff, but equally could be abused by lawyers searching for quick settlements, rather than victorious judgements. Lawyers are incentivized to take "weak" cases, regardless of validity, if their portion of the awards are sufficiently large. For example, imagine a hourly-fee case A, and a contingency-fee cases B and C. Case A can be estimated to accrue $200,000 in lawyer fees, regardless of outcome, but cases B and C each have a 30% contingency, and a 20% chance of victory/settlement. Case B is estimated to yield a settlement/judgement of $5,000,000, and Case C is estimated to yield a settlement/judgement of $50,000,000. Case B's "expected return" to the lawyer is $300,000 (5 million * 0.20 * 0.30), a 50% increase, while Case C's "expected return" is 3,000,000, an order of magnitude larger than the hourly-fee case. (Numbers are just for illustration purposes.) For an example of such "fishing for settlements", see the Prenda Law case (with the caveat that those abuses would not be affected by the presence or absence of contingency fees, since the Prenda Law "plaintiffs" were the lawyers themselves). https://www.popehat.com/tag/prenda-law/ https://en.wikipedia.org/wiki/Prenda_Law https://arstechnica.com/tech-policy/2019/07/prenda-law-porn-troll-saga-ends-with-prison-for-founder/ | 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. | Two reasons that spring to mind: The Respondent wanted the appeal to proceed so that they would have definitive case law from a higher court. That is they thought they would win and, quite possibly, the appellant thought they would win too. Rolling the dice on a losing proposition is not so bad if you have no skin in the game so the Respondent is encouraging the appeal. Its a commercial PR decision - it looks bad in the press if you use your money and power to prevent someone from pursuing their legal rights. This way, they can put their hand on their hearts and say "we gave them every opportunity to prove us wrong". | Threat of lawsuit can't be illegal It is a basis of functioning legal systems, that if you have a case, you can sue. However, nothing in any such legal system requires them to sue. Instead, offering a resolution out of court - like arbitration or offering to relinquish a claim for payment - is legal. Adding pressure by saying "This is my offer, otherwise I sue" is not extortion, because after the suit is filed, it is with the courts. Should the claimant file a frivolous lawsuit, then the court will deal with it - dismissing the case and sanctioning the claimant and their lawyer. See also these questions: Why is threatening to sue not considered extortion? Why should one never threaten to sue? What is the point of sending a demand letter? | 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. | There is no legal requirement that a jury be composed of people demographically like the defendant (or the plaintiff), there is simply a requirement that the selection process give all kinds of people an equal chance at being empaneled. So being a different race or gender from one of the parties is not prima facie evidence of a biased jury. The statement that "The jury asked a question because some invoices were not attached to a statement and wanted to impeach the victim's testimony" is somewhat puzzling, since Georgia is widely cited as a state where jurors are forbidden to ask questions. Let us suppose though that jurors manage to communicate an interest in knowing a fact, such as "Do you have an invoice for X?", then the judge could decide whether that is a proper question. At that point, it moves from being a jury matter to a legal judge matter, and if the question was itself highly prejudicial, the case could be overturned on appeal. Alternatively, the way in which the question was framed by the jury could be proof of bias, e.g. "Please ask that lying %@!^* defendant to prove her ridiculous story". The defense attorney has entered an objection (if you don't object, you can't appeal), and perhaps if the question was legally improper then the verdict could be set aside. If the attorney failed to move for mistrial (if the question proves blatant bias) then that's the end of the matter, except for a possible action against the attorney. The implied questions about attorney conduct are hard to understand. An attorney may refuse to engage in a futile legal act, but this does not preclude an individual from seeking another attorney to file a motion or even attempting to file a motion on one's own (which is probably a futile act). However, I also assume that the victim did not have her own attorney and that this was a case between two insurance companies about individuals – a third party claim. In this case, the attorney represents the insurance company, not the victim, and has to be responsible to the interests of the insurance company. The attorney thus is obligated to not cost the insurance company a packet of money if there is no realistic chance of getting anything in return. The alternative would have been be to engage (and pay) your (her) own attorney. | Each side paying for their own litigation costs is called the American Rule. As you noted in your question, it contrasts the English Rule where the losing party pays the winning party's litigation costs. In the United States, there are literally thousands of specific exceptions to the American Rule but they can be divided into these general categories: Contracts that say the losing party pays. This is one you pointed out in your question and is pretty common. Common Fund Doctrine. This is legal principle that courts have applied where it would be unfair for a plaintiff to pay their legal fees because it would be ultimately coming out of their pocket. Some classic examples are: A beneficiary suing a trustee for violating his fiduciary duties; shareholders suing the management of a company; and some types of class-action and antitrust cases where the efforts of the attorneys benefited the "common good". Contempt proceedings. See Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 (1923). This would only apply where one party is asking the Court to hold an opposing party in contempt, not where a judge initiates a contempt proceeding. Today, most states and the federal system have court rules that would likely apply here as well. Bad Faith litigation. As you noted in your question. This would be bad-faith/frivolous lawsuits and action in litigation that needlessly delay or increase the expenses of the opposing party. Statutes. This is by far the largest category. There are too many statutes to list but here is a sample of some broad categories: Civil Rights Cases (Civil Rights Act, Voting Rights Act, housing discrimination, Americans with Disabilities Act, Etc.) Consumer Protection cases (Fair Credit Reporting Act, Fair Debt Collection Act, etc.) Landlord-Tenant cases Environmental Protection Cases Open Records Law cases (Freedom of Information Act and similar state statutes) The statutes that contain fee-shifting provisions are generally ones where litigation is thought to be in the "public interest." The idea is that the legislature wants to encourage the private enforcement of certain laws. Allowing the recovery of attorney's fees provides financial incentives for lawyer to take cases where the ultimate damages award is small and might be less than their legal fees. There is a good law review article in the American University Law Review called The American Rule on Attorney Fee Allocation: The Injured Person's Access to Justice on this topic. While it's 20 years old, the policy considerations and historical perspective remains accurate. | I've never heard the phrase used this way, and it wouldn't make any sense, anyway; "indemnity" is security against a consequence, so the existence of civil and criminal consequences would be a double non-indemnification. Maybe ask the lecturer for a published example of this usage. |
Hypothetical: If a thief gives the stolen money away If a thief gives all the stolen money to their friend/family/charitable organization/etc. who has no idea that the money is stolen, and he gets caught, can the money be taken back? I know that if the prosecution cannot prove the recipient knowingly took stolen money, they cannot be charged guilty. But can that money still be taken away? If not, this could be a huge loophole (e.g. corrupted politician donates to PAC, parents steal money to give their children). But if yes, it's not fair to take money away from someone who's done essentially nothing wrong. My question is also: Has a case like this happened before? I assume giving stolen money away is not uncommon. Edit: What if it's not a gift but a purchase; can the seller be forced to take the item back and return the money? What if the item is not tangible hence not returnable (for example, doing a favor)? Edit 2: Okay, it seems like the seller must give up the money. Then does it mean every seller needs to scan the buyer to suspect whether he or she is a thief? That sounds like a real nuisance. If I sell something on eBay, there's no way I could reasonably know if the money is clean. Is there some legal protection for good faith sellers? | My recollection is there's a big difference between money and property. I found a 1929 law journal article that supports my recollection. The owner of stolen property is entitled to have it returned. If the person who obtained it from the thief didn't know it was stolen, the person didn't commit a crime, but must give up the property and is not entitled to any compensation (unless the person can get compensation from the thief). A person who innocently receives money is the holder in due course, and gets to keep it. The victim's only recourse is to get compensation from the thief. | Reading the examples from the ftc site what they mean is if someone sends you a good (intending for you to be the one who owns it) and asks you to pay for it, then it counts as a free gift If a good was accidentally sent to you but intended for someone else, then you keeping the good is theft. | I think the key word here is "assume". A person, N, who is clearly the next of kin of a recently deceased person D may not assume that s/he is D's sole heir, or indeed is D's heir at all. N must wait until D's will (if any) is known, and an executor or administrator is lawfully appointed. Only the executor may lawfully dispose of D's property, by conveying it to specified beneficiaries, selling it, giving it away, or by any other means. Anyone who does so without the proper executor's authority is probably technically guilty of theft, although in a case like the one in the question, a prosecution would be very unlikely. But N would be liable to any heir H for the value of items properly left to H but disposed of by N. H might not choose to pursue such a claim, but would be legally able to. N should remember that the value, monetary or sentimental, of objects may not be known to N, and may be much greater to H than N is aware of. I suppose that in the case of objects of slight value which must be dealt with promptly, such as perishable food on D's premises, reasonable steps would not be objected to. | If you commit a robbery but then return the money, can you be prosecuted? Yes. Similarly, if you breach copyright and then stop, can you be prosecuted? Yes, however, you will probably not be because: Your offence may not have been noticed by the copyright holder, and/or The damages they would get are probably not worth the effort. | There is usually a law that could be stretched to cover such a case. In Washington, RCW 9A.28.030 says A person is guilty of criminal solicitation when, with intent to promote or facilitate the commission of a crime, he or she offers to give or gives money or other thing of value to another to engage in specific conduct which would constitute such crime or which would establish complicity of such other person in its commission or attempted commission had such crime been attempted or committed. The "intent" of the law is to punish people for saying "I'll give you $5000 to kill Smith". But just looking at the text, if you give someone money to encourage them to engage in a specific kind of criminal conduct (e.g. beating people up), then you've violated the law. So, handing a guy $5,000 and saying "I think you should be rewarded for your act" could easily be construed as promoting the future commission of the same or similar crime. | If someone sends you something that you did not request, that is "unordered merchandise", and under US law, can be treated like a gift meaning that you do not have to return the goods or pay for it. Under the circumstances that you describe, this is not classic unordered merchandise. The vendor simply has to claim (and prove) that you did order the merchandise, which could be done in small claims court. What is unclear at present how any person could, out of the blue, decide to send you the same thing a week later. Innocent error is one possibility (slip-up by either party or some communication error by Ebay), as is fraudulent skullduggery (credit card fraud). The point is that the vendor would have to prove that you did indeed order the goods, so if they want to avoid paying for shipping (if we are still talking about a non-litigious response), they would need to provide compelling proof that you did indeed order the goods. This almost certainly will involve Ebay's tech staff (who would be in the best position to say where the order actually came from). So, yes, you could be sued in small claims court, and it really depends on how strong their proof is that you ordered the goods. | In my opinion, your question is no different from "If I steal money from a bank to pay off my credit card in the same bank, can I be held liable for stealing". I think the obvious answer is yes for both your question and the modified one, for exactly the same reason. | If you are facing felony charges, you need to hire a criminal defense lawyer, not ask for legal advice on the Internet. Do not talk to the police without your lawyer present. Do not attempt to represent yourself in any kind of hearing. Ignore any advice based on what seems fair or reasonable to someone on the Internet unless it is based on a real case in North Carolina or written by a real lawyer. That said, it appears to me that you have at least two strong defenses. First, if you you returned the laptop (It will help if you sent it by registered mail or otherwise kept a receipt, although, remember, they need to prove beyond a reasonable doubt that you kept it), that shows you had no “intent to steal” or “purpose to steal” it, which is a necessary element of the crime. Second, according to the University of North Carolina criminal law blog, you appear to have been charged with the wrong offense (although I don’t think that will actually help you if the prosecutor decides to bring the charge that matches what your former employer alleges you to have done). It cites a relevant North Carolina Supreme Court ruling on the difference between larceny and embezzlement, State v. McDonald, 45 S.E. 582 (N.C. 1903). I would focus on getting yourself cleared of these charges first. You can ask your lawyer if there is any recourse you might have against your former employer. I’m skeptical that suing them would be worth it, but I don’t know the circumstances. If you have proof of what they said to you and about you, hang on to it. |
Pseudo-double jeopardy in the US? Long story short: If you plead guilty to a charge from some specific state (say Alaska) and accept a plea bargain in exchange, can the federal government then come in and charge you separately for the same crimes (perhaps under different federal statutes) then use your guilty plea to the state level charges as evidence against you for a larger case? Long story long, my brother is currently incarcerated in Alaska on drug-related charges awaiting trial and was recently offered a seemingly light plea deal. He tells us horror stories of other people in the penitentiary who've pled guilty to state-level charges with a good plea deal only to be railroaded by the feds with a decades long sentence, using the guilty plea to lesser state-level charges as evidence in a larger case. Can he be prosecuted on both federal, and state level charges for the same crime? If so, can the feds use his state-level guilty plea? | Yes A person can be charged with and possibly convicted of both Federal and State crimes for the same set of events, if they involve violations of both Federal and State laws. Double jeopardy does not bar such a prosecution because they are considers two different crimes, and the double jeopardy clause reads: [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb. This is not considered the "same offense". This is true whether or not a plea bargain is involved. The Wikipedia article linked above says: The government of the United States and of each State therein may each enact their own laws and prosecute crimes pursuant thereto, provided there is no prohibition by the Constitution of the United States or of the state in question. Such is known as the "dual sovereignty" or "separate sovereigns" doctrine In United States v. Lanza, 260 U.S. 377 (1922) the US Supreme Court wrote: The defendants insist that two punishments for the same act, one under the National Prohibition Act and the other under a state law, constitute double jeopardy under the Fifth Amendment, and, in support of this position, it is argued that both laws derive their force from the same authority -- the second section of the amendment -- and therefore that, in principle, it is as if both punishments were in prosecutions by the United States in its courts. ... It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both, and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government, Barron v. City of Baltimore, 7 Pet. 243, and the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority. Here, the same act was an offense against the state of Washington, because a violation of its law, and also an offense against the United States under the National Prohibition Act. 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 It is interesting to note that as late as 1922 this court seemed to think that none of the bill of rights had been incorporated into the 14th amendment and thus made applicable to the states. But that would not have changed the decision in this case. | While this isn't a simple and direct answer, it should point you in the right direction. There are countries which like the United States have parallel national and subnational court system, including Australia, Belgium, Brazil, Canada, Ethiopia, Germany, India, Mexico, Nigeria, South Africa, Spain, and Switzerland. Different rules of procedure for different courts within a larger overall court system for a federal jurisdiction are not that unusual even in nominally unitary court systems. But, the division between them is on something of a continuum with fine shades of differences between them. Only a few are as close to the extreme of power sharing and a "federalist" approach as the United States, however. Also even unitary court systems (in a geographic and federalism sense) often have parallel court systems on subject matter grounds. For example, France has both ordinary civil courts and labor courts whose rulings could overlap, and England historically had courts of law and courts of equity with a complex relationship to each other (and also ecclesiastical courts with jurisdiction of matters now vested in the civil courts of law like inheritance of tangible personal property). Similarly, Northern Ireland has or has had what amount to different parallel legal systems for terrorism and non-terrorism criminal offense. Most countries also have parallel criminal and quasi-criminal legal systems for civilians and soldiers respectively. I've seen this tension between the two systems as a plot point in contemporary English police procedural dramas, for example. On the other hand, systems with a more unitary legal system rarely are so fierce in their defense of protections against double jeopardy as the United States, and the dual sovereignty doctrine in U.S. double jeopardy law can be seen as a safety valve in practice and as applied in cases where the double jeopardy rule as interpreted under the U.S. Constitution is too strong a bar to legitimate second prosecutions. A comparative analysis of double jeopardy concepts can be found here. It is tricky to reduce the subtly differences between the rules in different countries to a clear yes or no kind of answer. A square answer to your question requires detailed examination of a dozen or more court systems that someone felt the need to write a book about to explain. If I can find a more specific answer I will update this one. | Yes. The jurisdiction I am familiar with is England and Wales. Conviction requires evidence (witness testimony is evidence) which proves the case "beyond reasonable doubt". It is open to the jury to find the witness so convincing that they find that they are sure the defendant committed the crime. In general of course, prosecutors prefer to have some supporting evidence (either additional witnesses, or circumstantial evidence - like DNA.) | No. This isn't possible. A judge can only sentence someone after they have pleaded guilty or been found to be guilty, following an indictment or criminal complaint, and multiple advisements of rights. | 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. | united-states He'd be looking at ~6+ more years in prison in the second scenario In the United States, this would be attempted murder in both cases, though in the case of actual physical harm, the prosecutor could charge related offenses such as battery, which is "an intentional offensive or harmful touching of another person that is done without his or her consent." Note that though most attempted murders would likely be state crimes, I'm going to answer the rest of this from the perspective of a federal prosecution for attempted murder. The result would likely be similar for states, though the exact mechanism would be different. Sentencing for people convicted of serious federal crimes is guided by the United States Federal Sentencing Guidelines. An "offense level" is determined, then combined with the offender's criminal history and checked against the sentencing table to determine a suggested sentencing range for the judge. Specifically, for Assault with Intent to Commit Murder; Attempted Murder, §2A2.1. states that: (a) Base Offense Level: (1) 33, if the object of the offense would have constituted first degree murder; or (2) 27, otherwise. (b) Specific Offense Characteristics (1) If (A) the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) the victim sustained serious bodily injury, increase by 2 levels; or (C) the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels. (2) If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder, increase by 4 levels. So in this case, it sounds like Joe suffered a life-threatening injury in the scenario where he got shot. Let's assume that this is Bob's first offense, and that it would have constituted first degree murder. If Bob missed, he'd be looking at 135-168 months (11.25-14 years) in prison. If he shot Joe successfully, he'd be instead looking at 210-262 months (17.5-21.83 years) in prison. | These charges aren't the same offense. They are three different offenses, all of which arise from the same conduct. Imagine throwing a grenade in a building because you saw a police officer about to discover evidence connecting you to a crime. I think most people would agree that there's no reason you could not be charged with murder, arson, and tampering with evidence under those circumstances. Likewise, Chauvin committed multiple distinct offenses when he kneeled on George Floyd's neck -- for instance, murder charges are based on the act of causing a death, while manslaughter charges are based on the act of creating a risk of death -- and the state is free to seek punishment for all of those offenses. Double jeopardy doesn't have any application to the case at this point. The Double Jeopardy Clause doesn't say you can't face multiple charges for the same conduct; it says you can't face multiple trials for the same charges. | Technically, yes: Whoever willfully or maliciously injures, tears down or destroys any letter box or other receptacle intended or used for the receipt or delivery of mail on any mail route, or breaks open the same or willfully or maliciously injures, defaces or destroys any mail deposited therein, shall be fined under this title or imprisoned not more than three years, or both. That said, just because it's technically a felony punishable by up to 3 years in federal prison, doesn't mean you'll actually be punished that way. The Department of Justice's Criminal Resource Manual has a section on misdemeanor offenses that apply to postal crime: Among the misdemeanor dispositions available are: 18 U.S.C. § 1701 (obstruction of mails generally); 18 U.S.C. § 1703(b) (opening,destroying, or detaining mail without authority); 18 U.S.C. § 1707 (theft of property used by postal service); and 18 U.S.C. § 1711 (misappropriation of postal funds). When the charge might best lie under 18 U.S.C. § 1705 (destruction of letter boxes or mail) or 18 U.S.C. § 1706 (injury to mail bags) and in other appropriate circumstances, an applicable misdemeanor may be found in 18 U.S.C. § 641 (theft of government property); or 18 U.S.C. § 1361 (destruction of government property). That suggests (at least to me) that federal prosecutors are supposed to at least consider misdemeanor instead of felony charges for minor cases of mailbox destruction. Under normal circumstances, destruction of federal property only becomes a felony if the damage (or attempted damage) is more than $1,000. This is a pretty good example of how US laws are written with prosecutorial discretion in mind. In other systems, the law about destruction of mail or mailboxes would lay out when it's a serious crime and when it's minor. In the US, it's always considered a serious crime because the assumption is that prosecutors won't charge it in minor cases (in fact, official guidance to prosecutors lays out ways they can charge it without charging the felony). It's also possible to be prosecuted at the state level for this, and if you're actually a juvenile that's much more likely than federal prosecution. The feds don't really like handling juvenile cases; they normally leave those up to the states unless there's some good reason not to. Even if you're an adult, the feds may well leave the issue up to the state for prosecution. At the state level, the threshold for felony vs. misdemeanor vandalism would depend on the state. Whether you're prosecuted at the state or federal levels, there's a decent chance you wind up with at least a misdemeanor on your record. Vandalism is illegal, after all. |
Manipulating Images for Promotion & Potentially Profit Based in UK. I am a graphic designer and during lockdown have been practicing my photoshop skills by digitally manipulating images of some local 'celebrities'. The digital manipulations mostly involve adding tattoos to the person, changing their skin and appearance dramatically but the person is still recognisable. Having shown these image manipulations to some friends they have suggested I setup an Instagram to promote my skills, and potentially take on paid requests and / or sell my existing work. This is just a hobby so I would rather not get sued! I'm not sure if I need to contact the person in the image directly, or the owner of the image, not even sure how to find that out. I've read that as long as I make it clear that the image is not official or linked to the person it should be ok. Also if the image is a parody or a criticism, or something that is highly transformative, that's also ok. Would my image manipulations fall within this category? My questions are, what steps must I take in order to ensure the following is all legal; setup an Instagram and post my photoshop work accept commissions / requests and send this image back to a customer in digital format sell my existing work Any advice would be appreciated! | There are several legal issues regarding this kind of image manipulation. Copyright The first is Copyright. From the description, the modified images are derivative works. Making or distributing derivative works requires the permission of the holder of the copyright on the original (source) work. Some open source licenses (such as the Creative Commons licenses that do not include an ND clause) grant such permission in advance. Otherwise permission must be requested from, and granted by, the copyright holder or the holder's agent. In the absence of permission this is copyright infringement. If advertised widely for a fee, a copyright suit is more likely, and might result in sizable damages. The holder might not grant permission, or might charge a fee. A lack of any answer from the holder must be treated as a "no". Right of Publicity In some jurisdictions a person has a "right of publicity" in his or her own image or likeness. This generally means that photos or images of the person cannot be used commercially without permission from the subject. In some places this right is limited to the use of such images in advertising, not as art subjects themselves. I don't know the extent of such rights in England and Wales, or elsewhere in the UK. In the US this varies by state. But if such rights apply, use of such images without permission can result in a suit and significant damages. Defamation If showing an image of a person with added tattoos would tend to bring that person into disrepute, or make others think badly of that person, for example if the added tattoos were Nazi or gang symbols, then distributing such an altered image might be defamation. This would only apply if people actually thoguht the tattoos indicated that person's choice or attitude, or if reasonable people might think so. Conclusion Before making this a business, even a hobby business, one would do well to consult a lawyer with IP expertise. There are significant legal risks here, which are increased by doing this for profit, and advertising it on the net. It might well be that in many cases appropriate permissions can be obtained free or cheaply, but it is not safe to assume this. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. | The only real recourse you have is to contact the webhost and try to convince them your content is really yours and file a DMCA Takedown request. How you convince them might be an issue; do you have any old screenshots? Original photos? Any proof that the content and photos are yours? The webhost appears to be https://datacamp.co.uk/ , unless the DNS is being proxied, since DNS points to CloudDNS https://mxtoolbox.com/SuperTool.aspx?action=dns:marksmayo.com NZ and UK are members of the Berne Convention and the Universal Copyright Convention, so there don't appear to be any arguments about not applying copyright law. You willingly gave up the domain, so you have no recourse or valid reason to try and regain ownership of the domain. You could try and contact the new owner of the domain by filing a complaint via the abuse email listed by the domain registar at https://www.godaddy.com/whois/results.aspx?&domain=marksmayo.com But they may not do anything, even if you can prove a copyright violation, since they only handle the domain registration and not the webhosting. How they got the content is another question: who was your webhost when you owned the site? Datacamp? Did they not delete it when you closed your account? How did the new owner come to get it? | Check your license from shutterstock what you are allowed to do with these images. They allow you, for appropriate payment, to publish their original images on your website. There is no reason why you couldn't ask them for a license to create an image derived from their original and publish it on your website. Anyway, according to your description, you created a derived work of the shutterstock images. Which is copyright infringement unless your license from shutterstock allows this. You have of course copyright on your modifications, but shutterstock also has a copyright on your work, because it is derived from theirs. If you have no license to create a derived work, then publishing it makes the situation worse. To answer your question: Legally, by getting an appropriate license. Illegally, by creating a work with so little similarity that you are not suspected. | You need permission from the copyright holder(s) to make the prints at all unless it falls under some fair use doctrine or is a work in Public Domain. If permission is granted, it would presumably involve you paying money on some negotiated basis. An artist might flatly refuse to give permission to your plan to use their art as a component of your art. | Posting such a pic and statement may give grounds for a lawsuit, but probably not Overview That is going to depend very much on the the jurisdiction, and on the specific facts. If the statement that the pictured person owes a debt is false, this may be a case of defamation, but that was explored thoroughly in Can you post a picture in your business to embarrass or defame a customer? and its answers. See FindLaw's page "What Is Invasion of Privacy?" for an overview of the classic privacy torts. See also this page quoting the Restatement (2nd) of Torts, § 652 See further the Wikipedia article "Privacy laws of the United States" which gives a history of the four torts. Note that not all US states recognize all, or indeed any, of the privacy torts. Nor do all non-US jurisdictions. In some places these torts have been recognized, or blocked, by legislation, in others by court decision. And in the US they are limited by the federal First Amendment's guarantee of freedom of speech. Right of Publicity,aka Appropriation There is, in general, no right to privacy in one's physical appearance under any of the standard privacy torts, except that if one's likeness is being used to advertise something, or imply sponsorship or approval of a commercial product, many jurisdictions protect a right of publicity (sometimes called the tort of Appropriation of Name or Likeness). But here it does not appear that the image is being used to advertise or promote or sponsor anything, so that would not apply. Intrusion upon Solitude and Seclusion The tort of Intrusion upon Solitude and Seclusion would only apply if the picture were taken on someone's private premises or somewhere else there the person had a reasonable expectation of privacy. Otherwise it would not apply, there is no general right to privacy for a picture taken in public. Private Facts The tort of Public Disclosure of Private Facts could possibly apply if the fact of the unpaid debt had been carefully kept secret, and if its disclosure would be highly offensie to a reasonable person. But nothing that is a matter of public record can be the subject of such a suit anywhere in the US, because under Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) publication of facts derived from public records is protected under the first and fourteenth amendments, even against a specific state law granting protection. This will obviously not apply outside the US. False Light If the statement of the debt were true, but in some significant way misleading, the tort of False Light might apply. This is described by the Restatement of Torts (2nd) § 652E as: One who gives publicity to a matter concerning another before the public in a false light is subject to liability to the other for invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in a reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Note that the standard of (b) above is the same as the "Actual Malice" standard for defamation cases where the plaintiff is a public figure. False light cases are in many ways similer to defamation cases, and some jurisdictions have treated themn as identical tro defamation, while otrhrs do not recognize them at all. Nothing in the facts stated in the question would imply a false light claim, but more context might possibly support such a claim,. Conclusion Nothing in the question clearly indicates that any privacy-based tort would apply, but the facts are stated it a very brief way in the question. Further context and detail might clarify the answer one way or the other. This answer is largely based onunited-states law, althoguh some of it will apply elsewhere. | The "Crabs" game can be legal if it is seen as a form of parody. That is one of the forms of "fair use" that allows copying (within limits). This is to allow the use of limited amounts of copying for critical or "mocking" pieces, which are considered a form of free speech. Two other issues come into play under "fair use." The first is whether or not this is "commercial" (yes) or non-commercial (e.g educational) use. That is mildly negative for "Crabs" but by no means dispositive. The second is the likely market impact, whether the new use tends to compete with the old use in its "home" market, or whether it is likely to open a new market of a very different, perhaps "opposite" audience that might later buy the original as a "crossover." The "Crabs" game seems to address the "green" or at least "pro animal" (PETA) market. If the defendant can show that the "Cards" market addresses e..g., your "inner Nazi," making it "opposite," that would be ideal. It would be less convincing if "Cards" were addressing e.g. human rights, because that might be seen to overlap with the green market in terms of social conscience. | This appears to mean that the author, while retaining copyright, is allowing anyone to make copies without asking permission from the author. This would seem to be similar to a CC-BY license, or perhaps more exactly a CC-BY-ND license, as the author has apparently not granted the right to create modified versions or other derivative works. This does not require one who makes such copies to distribute them free of charge, unless there is another provision not mentioned in the question. Amazon, or anyone else, would be free to sell copies at any price they cared to ask. If the author wanted to limit the sales price, that would take another provision, and might not be enforceable. |
How does the federal mask mandate end? I had thought that President Biden was only going to issue a mask mandate that lasted 100 days, President-elect Joe Biden, who plans to make the coronavirus pandemic his top priority, will begin his presidency by asking Americans to wear masks for 100 days and requiring their use on federal property. His first executive order, the "100 Days Masking Challenge," will symbolize the administration's sharp turn from the Trump era by emphasizing recommendations by public health experts. A president cannot tell states or cities what to do, but a federal mandate will affect federal offices and federal lands and will urge states to do the same. https://www.cnn.com/2021/01/20/health/biden-first-day-health-executive/index.html but in reading the executive order, there appears to be no sunset, and no limitation and if it isn't rescinded the expectation is that we'll always be expected to wear masks on federal lands and in federal buildings. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-protecting-the-federal-workforce-and-requiring-mask-wearing/ So, from a legal standpoint, does this executive order necessarily need to be rescinded, does it go away when the CDC no longer recommends masking or does it remain perpetually? | 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." | As an example, POTUS does not undertake the entire pardon process on his own, instead they are preliminarily processed by the Department of Justice, which makes a recommendation. Only POTUS can "grant" the pardon, and we lack substantive information on how deeply he gets involved (does he just sign documents based on staff recommendations? does he do his own research?). I don't know what physical form Clinton's 450 pardons on January 20, 2001 took, but a president might use an autopen (Obama did use such a device). Questions have been raised and definitive answers from SCOTUS are lacking as to whether hand-to-paper signatures are demanded by the Constitution. DoJ at one point thought it was okay. This article lists the Constitutional functions which cannot be delegated: reporting to the Congress on the state of the Union; convening either or both Houses of Congress and adjourning Congress; signing and vetoing bills; receiving ambassadors and public ministers (recognition); appointing and removing ambassadors, ministers, and certain other public officers; nominating federal judges; and making recess appointments However, the Constitutional function of negotiating treaties or numerous functions as commander in chief of the armed forces is generally delegated, within the executive branch. Numerous statutory functions can be delegated (and Congress may say explicitly that some function can be delegated, in passing the law). The matter of implied power to delegate statutory function is the topic of a couple of centuries of litigation, but as an example in Williams v. United States, 42 U.S. 290 SCOTUS held that a law prohibiting the advance of public money in any case whatsoever to the disbursing officers of government except under the special direction of the President does not require the personal and ministerial performance of this duty, to be exercised in every instance by the President under his own hand. SCOTUS has not established bright lines regarding the extent of permissible delegation. | A question like that is impossible to answer in general, but your question includes some incorrect assumptions. Many countries try to prevent visitors to become de-facto residents through repeated visits. For instance, the Schengen area limits visitors on short-stay visa to 90 days out of every 180-day rolling window, and the UK seems to give their immigration officials more discretion on every re-entry. Many countries give political asylum to people who are persecuted in their home country. A pandemic, or generally bad living conditions, do not count as persecution. Many countries give refugee status to people who have to flee war or disaster in their home country. The default case for these rules is a person who is in danger and wants to travel to a safe country. Then there are rules for force majeure when a person in the country is forced to overstay through no fault of their own. How that is handled usually depends on how cooperative the visitor was at securing a timely return or a visa extension. During the early days of the pandemic, there have been blanket extensions in some countries. As travel re-opened, these have run out. One of the differences between the last three bullet points is how long the stay is permitted. Political asylum tends to be for the long term, refugee status lasts until the end of the disaster, and a force majeure exception might just last a few days. So if this is not just a hypothetical question, contact a lawyer or the immigration authorities where you are now. Generic answers on Stackexchange cannot replace specific, professional advice. | Probably not Now, some US constitutional rights do get interpreted very broadly, and it's possible this might be the case here too. But fundamentally, this situation is not equivalent to the security contractors example you mentioned. The crux is that Facebook already has every right to delete your posts for whatever reason they want. A security contractor does not have any intrinsic right to conduct searches (warrantless or otherwise) on your person, residence or effects. Facebook can choose, at their sole discretion, to delete all your posts, delete none of your posts, or delete some of your posts according to whatever metric they came up with. In this case, the metric is 'did the government flag this as misinformation'. The government isn't censoring you - Facebook is, and Facebook is allowed to do that (they happen in this case to be following the government's advice on what specifically needs censoring, but where they choose to get their advice is also purely their business). A security contractor, by contrast, can't do much of anything to you, except when they have been specifically deputized by the government to do so by some legal process. If this happens, then they are said to be acting 'under color of law', and suddenly First (and Eighth, etc) Amendment restrictions do begin to constrain their actions. Facebook is not getting any kind of state power delegated to them, and thus they aren't considered to be acting 'under color of law'. They aren't doing anything they were not already allowed to do. | The President can nominate whomever he wants; the "advice" is formally post-nomination advice (the motion to confirm appointments is a motion "to advise and consent to" the nomination). In any event, "advice" is by definition non-binding; that's why it's not a command. However, the Senate must consent to the appointment before the officer assumes the office, so pre-nomination advice is relevant. For some nominations (like district judges), the Senators from that state can effectively sink a nomination if they're from the same party as the President and don't like the nominee; that can result in the Senators picking a short list of candidates and the President just picking someone on the list (or asking for a new list, but if he just nominates someone not on the list there's a fair chance they don't get confirmed). The Senate could decide that they will only confirm one particular person for the post. The President can nominate someone different. That's a political fight to be solved by gamesmanship and negotiation, not something that has a legal resolution. | No punishment followed because those policies are not the law, and, even it was found out earlier, no Inspector General would have the authority to dismiss Mrs. Cliton, it's POTUS's prerogative, as I understand it. That is true for maybe 10 people max in a government department. For the tens or hundreds of thousands of employees who weren't appointed by the President to serve at their pleasure, violating policies can lead to suspension, fines, or dismissal. | The US Constitution doesn't say one way or the other how a state's representatives are to be chosen, so until this law was passed in 1841, a state could have all of their representatives elected at-large, without districts. It is only recently that SCOTUS has gotten involved in redistricting questions: here is a summary of leading redistricting rulings. A recurring theme in these rulings has been the Equal Protection Clause, where certain redistricting plans (or non-plans) were found to violate that clause (especially ordering a state to redistrict when it refused to do so with the result being that population changes diluted the vote of those living in certain districts). Wesberry v. Sanders, 376 U.S. 1 held that The constitutional requirement in Art. I, § 2,that Representatives be chosen "by the People of the several States" means that, as nearly as is practicable, one person's vote in a congressional election is to be worth as much as another's thus redistricting is a justiciable question, answerable with respect to the federal government's need to enforce the 14th Amendment. It is not necessary to amend the Constitution further to specify a means of enforcing that clause. | Short Answer Would a federal tax plan that simply took the amount required to run the government and divided that amount across the states based on population and directly charged the states likely to survive a legal challenge? A federal tax plan along these lines is expressly authorized by Article I, Section 9, Clause 4 of the United States Constitution, but the federal government has never actually imposed taxes on this basis. But, this has never actually been done because there is no practical way to enforce an obligation of a state to pay a capitation tax. It has also not been done because it is politically unpopular with members of Congress from states that have a lower per capita income whose support would be necessary to pass such a tax. This is because a tax effectively imposes a higher tax rate relative to ability to pay on poor states than it does on more affluent states and there has always been a significant disparity between more affluent and less affluent states in the United States). For example, Massachusetts, the U.S. state with the highest per capita GDP ($65,545 in 2018) has more than twice the per capita GDP of Mississippi ($31,881), but would pay the same tax per capita, and, the District of Columbia, which would owe nothing under an Article I, Section 9 capitation tax had a per capita GDP of $160,472 in 2018. Instead, until the income tax was expressly authorized constitutionally in 1913, the federal government was financed mostly with customs duties and to a lesser extent some select excise taxes (also here and here), with several exceptions, some direct property taxes from 1789 to 1802; a short lived Civil War era income tax on the very affluent (1861-1872), which was reimposed briefly from 1894-1895 before being declared unconstitutional; and some estate taxes, either on the theory that they were excise taxes, or in parallel to the income taxes, until the 16th Amendment's authorization of the federal income tax was found to extend to authorization for federal gift and estate taxation. As noted here from 1789 to 1860: Customs duties as set by tariff rates up to 1860 were usually about 80–95% of all federal revenue. Thus, customs duties were as dominant a source of revenue for the federal government for roughly the first third of the history of the United States, as income and payroll taxes are today. I have tried to find examples of direct taxation of the states[.] While what you mean is clear, to avoid confusion, it is important to understand that the phrase "direct taxes" is used in the U.S. Constitution to mean taxes that are imposed directly upon individuals, businesses and private property. The "direct taxation of the states" to which you refer is a form of indirect taxation. Long Answer Sources Most of the discussion in this answer which are not specifically referenced with links or citations to the United States Constitution, is based upon a political science textbook entitled "Congress" that I used in college, an introductory federal income taxation textbook I used as a law school student, and an estate taxation textbook that I used to teach estate taxation when I was a professor for a financial planning program for master's degree students. All are hard copies for which no internet link to the materials themselves is available. Applicable Constitutional Law The United States Constitution (which took effect in 1789) has several provisions related to the federal government's power and the power of the states, respectively to impose taxes: Article I, Section 8, Clause 1 states: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; Imposts and duties are taxes on imports into the United States, while excises are “taxes on the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations, or upon corporate privileges[.]" Among the taxes that aren't "imposts, duties or excises" are income taxes, payroll taxes, gift taxes, estate taxes. For constitutional purposes, payroll taxes, gift taxes, and estate taxes are considered forms of income taxes. It isn't entirely clear if a general sales tax of the kind adopted by most U.S. states, or a value added tax, is a constitutional excise tax or income tax, as this question has never been tested (such taxes, when collected in the District of Columbia or Puerto Rico or the Virgin Islands by "local governments" fall under the power of the federal government to govern federal territory rather than the taxation power of Article I, Section 8, Clause 1 and the 16th Amendment). Until 1802 (i.e. for the first 13 years of the current constitution), Congress imposed what amounted to property taxes of various kinds under its excise tax power, but the constitutional validity of these taxes has never been established definitively before they were repealed and those taxes have never been reinstated. Imposes, duties and excises could be imposed directly by the federal government on private citizens, so long as they were uniform, while "taxes" prior to 1913, were subject to Article I, Section 9, Clause 4 discussed below. Article I, Section 9, Clause 1 of the U.S. Constitution which was in effect until 1808 when importing slaves was banned stated that a customs duty could be imposed on imported slaves: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. Article I, Section 9, Clause 4 of the U.S. Constitution states that: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. The only "tax" other than imposts, duties and excises that could be imposed by the federal government at uniform national rates prior to 1913, was a "capitation" tax imposed directly upon state governments, in proportion to the most recent census. But, no such such capitation tax was ever imposed upon the states. Congress clearly had and still does have the power to impose such a tax, but it didn't and it still doesn't, for political reasons and for reasons of the enforceability of such a tax. Wikipedia notes that: The United States government levied direct taxes from time to time during the 18th and early 19th centuries. It levied direct taxes on the owners of houses, land, slaves and estates in the late 1790s but cancelled the taxes in 1802. And, none of these direct taxes were capitation taxes. The main reason that this wasn't done is that even though these kinds of taxes were mandatory under the Constitution of the United States adopted in 1789, unlike the 1776 Articles of Confederation which did not have any enforcement mechanism to make states pay their share, enforcement of a capitation tax on states was still impractical in reality. This is because state governments do not have income or property that is amenable to being seized for payment of taxes in a manner that prevents mass chaos from breaking out (e.g. if the federal government tried to seize a state capitol building or court house for failing to pay its federal capitation tax). Instead, the premise of a capitation tax is that states will use their taxation power to impose taxes upon their citizens, businesses and the private property in their jurisdiction and then would hand over some of those tax receipts to the federal government until the state's quota for the year, set by Congress, was met. But, since there is no really viable democratic way for a federal court to direct a state legislature to impose and collect any particular kind of taxes to raise those funds, this nominally mandatory tax obligation of the states was economically and legally impotent, and was still mandatory in name only. The other problem with a capitation tax is that for almost all of the time period prior to 1913, there was a great disparity between the per capita GDP of the various U.S. states. For the vast majority of that time period, the commerce and industry of the north (powered to a great extent by hydro power prior to the widespread adoption of coal as a fossil fuel) produced much higher GDP per capita than the agricultural economies of the South, particularly because the infamous "three-fifths compromise" that gave the South Congressional representation based in part upon the number of slaves who lived there (30% or more of the population of many states) did not apply to capitation taxes. After the Civil War, what little commerce, industry and infrastructure that the South had had going in the war was massively degraded, and the population of able bodied men of prime working age was greatly reduced, rendering the South even more poor relative to the North. Even in the heyday of Reconstruction, capitation taxes were not imposed because it was obvious that the South could not afford to pay any significant share of its obligations on that basis. Thus, the South was mostly poorer per capita to start with, and had a higher share of capitation taxes than it did of Congressional seats and electoral votes, which was not a recipe for building Congressional support for a major new tax. Because some Southern political support was necessary to impose new taxes for most of U.S. history and because capitation taxes demanded more taxes relative to ability to pay from Southern states than from Northern one (as customs taxes already did to a lesser extent), these taxes never had the political support needed to be adopted by Congress. Article I, Section 9, Clause 5 of the U.S. Constitution states that: No Tax or Duty shall be laid on Articles exported from any State. So custom's duties can be imposed on imports of goods to the United States, but not on exports of goods from the United States. This isn't a big deal today, where only a tiny portion of federal revenues come from customs duties, but it was a big deal prior to the U.S. Civil War. Historically, this limitation was enacted mostly to prevent the North from burdening the export oriented cash crop agriculture (mostly tobacco and cotton) of the Southern states. Article I, Section 10, Clause 2 of the U.S. Constitution states that: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. Many people are surprised to learn that states have a right to impose both import and export duties. But, since they can collect no more than the cost of carrying out their inspection laws and must turn the balance of any such revenues over to the federal government, there is no incentive for states to have significant taxes of this type. The "weigh stations" found on major highways for large trucks, which are mostly used to gather data used to allocate registration fees for trucks among the states based upon economic reality, are the main practical residuary impact of this constitutional provision. The 16th Amendment to the United States Constitution ratified in 1913 states that: The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. The power of Congress to impose federal income and payroll taxes encompasses employees of state and local governments, as well as private sector employees, even though this means that state and local governments have to file federal withholding tax returns on a regular basis. But, state and local governments are not taxed on their own income (just like other non-profits) and state and local governments are allowed to establish state and/or local employee retirement systems in lieu of FICA taxation on its employees for employees who participate in those programs. State and local governments are also not subject to FUTA (federal unemployment taxes). FUTA taxes are in any case de minimis because state unemployment taxes are a credit against federal unemployment taxes dollar for dollar except for a very small minimum per employee FUTA tax (0.6% of the first $7,000 per year of wages for each employee, for a maximum FUTA tax of $42 per year per employee in most cases), because state unemployment taxes are almost always higher than federal FUTA taxes. Historically, some tax policy makers believed that it was unconstitutional to tax interest from municipal bonds (a.k.a. bonds issues by state and local governments) for federalism reasons. But, case law starting in the late 20th century established that the exclusion of municipal bond interest from taxation is strictly a statutory feature of the Internal Revenue Code and does not have a constitutional dimension. In other words, it is constitutional for the federal government to tax all income derived from municipal bonds, even though it declines to do so for municipal bonds that meet a variety of federal tax law tests. The History of U.S. Taxation From 1789 until 1860, the tax revenue of the United States government (as opposed to the states) came predominantly from customs duties on imports and from some select excise taxes (e.g. on alcohol), and in into the mid-1800s with revenues from federal property such as grazing rights and mineral rights, and federal enterprises (mostly the U.S. Postal Service and profits from manufacturing coins and currency). During the U.S. Civil War, the scope of federal government activities grew dramatically and these were ultimately paid for with an income tax and an estate tax were imposed briefly over constitutional objections but were repealed shortly thereafter, with increased customs duties and excise tax rates, and with confiscation of Confederate property. (The timing was financed with Treasury bonds issued to support the war.) After the Civil War the scope of U.S. federal government activity returned to pre-war levels, and only started to ramp up again with the Progressive era in the early 1900s followed by World War I, which were financed with the newly authorized federal income tax and an estate tax, at quite low rates by modern standards. Per the same Wikipedia link referenced above: Until a United States Supreme Court decision in 1895, all income taxes were deemed to be excises (i.e., indirect taxes). The Revenue Act of 1861 established the first income tax in the United States, to pay for the cost of the American Civil War. This income tax was abolished after the war, in 1872. Another income tax statute in 1894 was overturned in Pollock v. Farmers' Loan & Trust Co. in 1895, where the Supreme Court held that income taxes on income from property, such as rent income, interest income, and dividend income (however excepting income taxes on income from "occupations and labor" if only for the reason of not having been challenged in the case, "We have considered the act only in respect of the tax on income derived from real estate, and from invested personal property") were to be treated as direct taxes. Because the statute in question had not apportioned income taxes on income from property by population, the statute was ruled unconstitutional. So, income taxes had been adjudicated by the Courts to be unconstitutional from 1895 to 1913. Federal income tax withholding taxes are younger than the federal income tax which initially applied with any bite only to very high income individuals (rhetorically, if not mathematically, the equivalent of today's "one percenters"), although the income tax base had widened greatly by the end of the New Deal through World War II and its aftermath. The U.S. federal government didn't begin to approach its modern scale of activity until the New Deal following the Great Depression in the 1930s, which was financed with very high income taxes and estate taxes, high customs duties such as the Smooth-Hawley tariffs imposed not long after the crash of 1929 (which were so high that they reduced customs revenue rather than increasing it), and newly imposed payroll taxes. Information tax return reporting (the infamous Form 1099), which dramatically improved income tax collection rates beyond mere wage and salary withholding, was a late 20th century innovation that was adopted based upon the recommendation of free market economist Milton Friedman. Since the 16th Amendment was adopted, the federal income tax (and later federal payroll taxes on certain kinds of income) became the dominant source of income in short order, with customs duties and excise taxes and other forms of government rents and enterprise income (including income from the Federal Reserve also created before the New Deal in the early 1900s) came to be comparatively insignificant sources of income for the federal government. One notable exception was that the excise tax on gasoline and other petroleum based fuels, established as a de facto users fee and significant source of revenue to finance the Interstate State Highway system starting in the Eisenhower Administration, did create a significant source of new excise tax revenues. Federally owned oil and gas mineral interests also became a much more important source of federal revenues after World War II. The automobile had been invented and entered mass production in the early 1900s, but just as the internal combustion engine started to prevail over electric cars at that time and mass production took hold with Ford's Model T bringing some cars and trucks into upper middle class households and into use by businesses and farms, the Great Depression and World War II dramatically reduced private personal consumption, so for the two decades from about 1929 until the several years after World War II that it took to convert factories from war production to civilian peacetime production, the automobile industry's private sector sales were greatly suppressed, domestic civilian road and bridge construction came to a near halt during World War II as government funds were diverted to the war effort, and domestic oil consumption was likewise suppressed. Footnote On Collecting Debts From State And Local Governments In General The same issue comes up at the state level when a court awards a money judgment against a state or local government with taxing power, or holds that a state government has insufficiently funded education as required by a state constitution. Generally, in those cases, a legislative body has to authorize the appropriation "voluntarily" from whatever source of funds it choses to impose, and usually, when push comes to shove, state and local governments do pay the judgments they owe (there are limited federal bankruptcy options for municipalities and states), although there are instances of state governments stubbornly refusing to take the actions necessary to comply with court orders directing that public schools be funded for many, many years. For the most part, however, because enforcing debts against state governments is so difficult, transactions are structured as much as possible to prevent the need to enforce debts in that way through (1) legal limitations on governmental liability, (2) legislative budget rules requiring interest on debt and currently due principal payments to be made first, (3) third-party bonding of state and local governmental construction projects, (4) the creation of publicly owned corporations whose debts can only be collected out of the corporation's assets and revenues, and (5) avoidance of trade credit obligations by paying bills in cash. In connection with the legal limitations on liability, it is also worth noting that, as a general rule, state governments cannot be sued for money damages in any federal court other than the U.S. Supreme Court without their permission, and cannot be sued in the U.S. Supreme Court except by the United States government or another state government or perhaps by another country. So, when a money judgment is entered against a state government (which does not include local governments for this purpose) this happens only with multiple layers of state government consent to the process and the exact source and timing of the appropriation to pay it. When push comes to shove, as they did in California a few years back when it couldn't make payroll, it forced its employees and creditors to accept IOUs in lieu of cash payments, and while they may not have the legal right to do so, they have the economic power to force people to ignore that right. |
How can section 3 of the 14th Amendment to the US constitution be enforced? This arises out of Can state lawmakers who participated in the Capitol riot be removed through the 14th Amendment? The 14th Amendment, section 3, says: No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability. Is a separate law needed to prohibit people to whom Section 3 applies from taking office, or to remove such people from office? What proceedings would be needed to establish that a person had "engaged in insurrection or rebellion"? Can a Congressional resolution or a Federal statute declare that specific people have so engaged? Is a criminal conviction required? Can a private person take steps to enforce this section? | Separate law? Is a separate law needed to prohibit people to whom Section 3 applies from taking office, or to remove such people from office? Griffin’s Case There is some reason to think so. In 1869 there was Griffin’s Case, 11 F. Cas. 7, 2 Am. Law T. Rep. U. S. Cts. 93; 8 Am. Law Reg. N. S. 358. This was tried by Chief Justice Chase, in his role as a Circuit Justice, not as a Supreme Court case. One Caesar Griffin was accused of shooting with intent to kill, tried before a Virginia state court, convicted, and sentenced to two years in prison. He then filed a writ of Habes Corpus claiming that his imprisonment was unlawful, because the jusge before whom he was tried, Hugh W. Sheffey, (in the words of Justice Chase): in December, 1849, [Sheffey] as a member of the Virginia house of delegates, took an oath to support the constitution of the United States, and also that he was a member of the legislature of Virginia in 1862. during the late Rebellion, and as such voted for measures to sustain the so-called Confederate States in their war against the United States; and it was claimed in behalf of the petitioner, that he thereby became, and was at the time of the trial of the petitioner, disqualified to hold any office, civil or military, under the United States, or under any state ... Several other people tried and convicted before Judge Sheffey in the circuit court of Rockbridge county, including some convicted of murder, filed similar Habes Corpus petitions, claiming that Sheffey was prohibited by Section 3 from holding office, and that therefore their convictions were invalid. Judge Sheffey had been appointed to the office of Judge after the end of the US Civil War by the reorganized government of Virginia, the one recognized as valid by the Federal Government. He was appointed before the ratification of the 14th Amendment. There was no dispute that he fit the letter of the group of prohibited persons in Section 3. Justice Chase wrote: The general question to be determined on the appeal from this order is whether or not the sentence of the circuit court of Rock-bridge county must be regarded as a nullity because of the disability to hold any office under the state of Virginia, imposed by the fourteenth amendment, on the person, who, in fact, presided as judge in that court. Justice Chase rejected the suggestion that all official actions by Sheffey and anyone in a similar position were automatically void and of no authority because of sectio0n 3. He wrote that: The proposition maintained in behalf of the petitioner, is, that this prohibition, instantly, on the day of its promulgation, vacated all offices held by persons within the category of prohibition, and made all official acts, performed by them, since that day, null and void. After pointing out that many of the offials of the reconstructed governments of the sothern states were withign the terms of the prohibition of section 3, Chae went on to write: If the construction now contended for be given to the prohibitive section, the effect must be to annul all official acts performed by these officers. No sentence, no judgment, no decree, no acknowledgment of a deed, no record of a deed, no sheriff’s or commissioner’s sale — in short no official act — is of the least validity. It is impossible to méasure the evils which such a construction would add to the calamities which have already fallen upon the people of these states. As a further reason not to construe section 3 as instantly and automatically removing all such officials, Chase wrote: Now it is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, or property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption that the people in the exercise of that power, seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution. ... Is there, then, any other reasonable construction? ... The object of the amendment is to exclude from certain offices a certain class of persons. Now, it is obviously impossible to do this by a simple declaration, whether in the constitution or in an act of congress, that all persons included within a particular description shall not hold office. For, in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress. ... [I]t seems to put beyond reasonable question the conclusion that the intention of the people of the United States, in adopting the fourteenth amendment, was to create a disability, to be removed in proper cases by a two-thirds vote, and to be made operative in other cases by the legislation of congress in its ordinary course. Chase also note that, 2 months after the conviction of Griffin: in February, 1869, congress adopted a joint resolution entitled “a resolution respecting the provisional governments of Virginia and Texas.” In this resolution it was provided that persons, “holding office in the provisional governments of Virginia and Texas,” but unable to take and subscribe the test oath prescribed by the act of July 2, 1862 [12 Stat. 502], except those relieved from disability, “be removed therefrom;” and that this indicates that such people were regarded by Congress as having remained in office and not beign automatically removed. Griffin's Case seems to establish that some proceeding is needed to establish when a person falls under the exclusion rule of Section 3 of the 14th. In 1869 this was done by military order. In 1870 Congress passed a statute providing for criminal proceedings in such cases. This was repealed at the end of Reconstruction. Currently 18 U.S. Code § 2383 makes "rebellion or insurrection against the authority of the United States or the laws thereof," a crime, and provides that anyone convicted of it "shall be incapable of holding any office under the United States." This is not quite the same as the section 3 disqualification. One the one hand, it does not depend on a prior oath to support the constitution, and on the other it does not appear to ban holding a state or local office. But it shows how a similar law could be drafted by Congress. Legislative declaration Can a Congressional resolution, or a Federal statute declare that specific people have so engaged? This is probably prohibited as a Bill of Attainder, that is, a legislative declaration, without trial, that particular persons are guilty of particular crimes. Other Proceedings What proceedings would be needed to establish that a person had "engaged in insurrection or rebellion"? If a person subject to the section 3 disqualification was elected to either house of Congress, that house could refuse to seat such person, or expel him or her, as the Constitution permits. Most state legislatures have similar powers over the seating and expulsion of their own members. If a person is convicted under 18 USC § 2383 or any similar law, that person would clearly be excluded. Congress could pass a law establishing a special tribunal for determining when a person was subject to Section 3 of the 14th. But it has not done so. See also See also: this leglal blog post This article in Constitution Daily 14th Amendment's Section 3 Gets New Look as Democrats Weigh Measures Against Trump from the National Law Journal | 1911-1913 very shady time in USA political history. They could amend the Constitution to make a law Constitutional. There's nothing shady about that in the least. In fact, it is the point of constitutional amendments: to provide a mechanism to change the constitution when it prohibits something that an overwhelming majority of people -- well, of congress and of state legislatures -- think should be allowed. A constitutional amendment can reverse the provisions of Article I; it can reverse a constitutional ruling by a court (or at least reverse the ruling's effect); and it can certainly overcome arguments by Jefferson and Jackson, which have very little legal weight if any. Wasn't the whole point of the revolutionary war ... It doesn't matter what the point of the war was. What matters is that the constitution controls what the government can and can't do, and the constitution can change. The constitution countenanced slavery until it didn't. The constitution required senators to be chosen by state legislatures until it didn't. The constitution forbade income tax until it didn't. | Before the election, can a lawsuit prevent the amendment question from being put on the ballot? No. Generally speaking, the constitutionality of an otherwise procedurally proper ballot initiative is not ruled upon until after it has passed (eliminating the need to rule unnecessarily on the constitutionality of failed initiatives). Of course, if someone tried to put it in the ballot when the existing law conditions for putting it on the ballot were not met (e.g. because a deadline for doing so wasn't met) that could be challenged in court by a party with standing to do so. If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional? Probably not. The constitution as newly adopted doesn't sound like it would forbid doing that. This seems to be the whole point of the constitutional amendment in the first place and it the amendment to the constition is approved, that requirement is gone. | The Supremacy Clause makes Federal laws superior to state laws and even state constitutions, but that is only true for Constitutional federal laws. If Congress passed a law seeking to restore the effect of the now overruled Roe decision, there would be a question as to what provisions of the constitution empowered Congress to do so. Such a law might be challenged, and if no convincing source of congressional authority to pass such a law was cited, it could plausibly be overturned. One supposes that the members of the majority in Dobbs would be reluctant to see that decision superseded by a new Federal law. One hopes that they would take a principled stance, and only overturn such a law if there was good legal reason to do so. Without seeing the text of such a law, and the constitutional arguments for and against it, there is no legitimate way to judge if it would be within the power of Congress. As a political matter, I doubt that the current Congress will pass such a law. | Art. 1 Sect 5 of the Constitution empowers both houses to make their own rules. That means that they can articulate rules regarding what or how you can talk on the floor. It is held that the president of the senate can issue a ruling, and the ruling can be overridden by majority vote. If the Constitution were amended to be more specific about rules of conduct, then some such Senate rules might be unconstitutional and SCOTUS could invalidate the rule. The only specific constitutional requirement on conducting business is that a majority constitutes a quorum. | The most relevant federal Obstruction of Justice type is from 18 USC 1505: Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress— I'm not sure if passed Articles of Impeachment count as an "inquiry", and I'm not sure whether failing to "send" them to the other house is "corruptly impeding". Even if those two conditions are met, members of Congress are immune to judicial process for acts taken while they are in session, as part of the Speech or Debate clause of the Constitution (Article 1, Section 6, Clause 1): ...shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. So, if the person in question is not a member of Congress acting in their official capacity and intentionally endeavors to prevent passed Articles of Impeachment from being sent from the House to the Senate (e.g. a courier intentionally failing to deliver them, or an IT person preventing the electronic form from being copied into the Senate's database), I do not know whether that could be considered Obstruction of Justice, as I doubt such a situation has ever been adjudicated. Given the publicity of the proceedings, such an impediment would probably be found out or overcome so quickly that no one would be inclined to do more than fire the perpetrator. | There is no constitutional provision which grants the President such power. I am not aware of any provision of federal law which grants such power, nor of any case where a real president has exercised such a power. Of course, the President is a citizen, and any citizen may make a Citizen's arrest Particularly for a felony. (See also this FindLaw page on the subject.) And of course, as the head of the executive department, the President could order someone who clearly has powers of arrest to make an arrest, although such an order would not be valid in the absence of legal cause to make an arrest. A comment called atention to 10 USC §252 which provides: Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. The history for this section dates from 1861. A note indicates that a prior version was the basis of Executive order 10730, sending federal forces into Little Rock, AK in 1957 to enforce school integration there. However, this section does not explicitly increase the arrest powers of anyone, and does not grant the President personally any power of arrest. | Your question: "How blatant the circumvention of the Constitution has to be for SCOTUS to act?" indicates some confusion about the big picture of how contesting the constitutionality of a law works. SCOTUS doesn't proactively do anything. The Supreme Court cannot simply review a law that has been enacted and say it is unconstitutional of its own accord, or at the request of someone involved in the political process (some countries allow this, the U.S. does not). The U.S. Supreme Court is not equivalent to the institution of a "Constitutional Court" found in many countries. It is just the last court of appeal for all U.S. Courts. It often ends up resolving constitutional questions, but only after other courts have already done so in cases where there are real tangible immediate consequences to the decision. A lawsuit must be brought by someone who is actually injured for the courts to act In your example, nothing would happen unless a home owner could show that soldiers had actually commandeered his home without consent or compensation, or places him in imminent fear of having this done. If someone can't show that, then no lawsuit to determine the constitutionality of the law is allowed even if it is blatantly unconstitutional and the question of the law's validity will remain unresolved by the courts. This limitation is called "standing" and requires that there be an actual case and controversy with a suit brought by someone who has suffered a legal injury before anyone can bring any lawsuit. In point of fact, there are all sorts of laws in the United States that are clearly unconstitutional, but which are never brought before the courts to declare unconstitutional, because the government agrees that those laws are unconstitutional and makes a point of not enforcing those laws. All cases (with exceptions not applicable here) start in trial courts Suppose soldiers do commandeer Bob's house at the express direction of the President without Bob's consent or following any procedure that amounts to due process. What does Bob do? Bob brings a lawsuit against the soldiers and their commanders up through the President and the United States in the U.S. District Court for the state where the house is located or where the defendants live. Suits against the U.S. and its employees must be brought in federal courts rather than state courts. SCOTUS can hear cases as a trial court, but only in cases involving a state or foreign country or a diplomat as a party (and in practice, even those cases are referred to a temporary judge called a special master for evaluation and SCOTUS only considers the case after receiving a recommendation from the special master). None of those circumstances apply in this case. A federal trial judge hears the case and decides if the law is constitutional or not, and if it is held to be unconstitutional may decide that Bob is entitled to a remedy. There will also be other separate issues to decide in the case. For example: Was the lawsuit brought within the statute of limitations? Are the soldiers immune to suit for damages against them personally, which depends upon how clear it was to the soldier that he was acting unconstitutionally? Were the soldiers violating orders or following orders? Did Bob meet other procedural requirements during the course of a lawsuit (like making the proper disclosures of information and showing up to hearing he is required to attend, and presenting evidence in accordance with the rules of evidence)? If the trial judge finds that the law is unconstitutional, the trial judge can issue an order saying so and that is the law of land that binds the parties (including the U.S. in any other case presenting the same issue under a principle called collateral estoppel) unless someone appeals the case. Every state and federal judge in the United States from small claims court judge to a U.S. Supreme Court justice has the power to declare laws unconstitutional if it comes up in a case properly heard in that judge's court, not just SCOTUS. SCOTUS (with exceptions that don't apply) doesn't hear direct appeals A handful of cases are directly appealed from a trial court to SCOTUS (mostly election law cases). But the vast majority of cases, including this one, would go to an intermediate court of appeals first. If someone does appeal the case, it goes to the U.S. Court of Appeals for whatever circuit the state of the District Court is located in. It reviews the judge's ruling in light of the evidence presented and can either reverse the trial judge's decision or affirm it. Only after the U.S. Court of Appeals has ruled (sometimes with one more layer of decision making within the U.S. Court of Appeals), any party can appeal the case by a writ of certiorari to the U.S. Supreme Court. SCOTUS often declines to reconsider Court of Appeals Rulings The U.S. Supreme Court doesn't have to take the case and 98% of the time that cases are appealed to it, it doesn't take the case. If it doesn't take the case, then the U.S. Court of Appeals ruling is the law and that ruling is binding on any other federal court in its jurisdiction in future case. The U.S. Supreme Court will usually only take the case if it feels the decision was wrong, or there are conflicting precedents that have to be resolved from different courts. Whichever judge decides constitutionality (a power not reserved to SCOTUS) that judge will try to follow the law to make the right decision whether the violation of the constitution is blatant or subtle. If the U.S. Supreme Court does decide to take the case, it can affirm that U.S. Court of Appeals ruling (which is then binding on all U.S. Courts as precedent), or it can reverse the U.S. Court of Appeals. In each case, at the trial court level, at the U.S. Court of Appeals level, and at the U.S. Supreme Court level, the only question is whether the law conflicts with the constitution as interpreted by the case law already decided over time. Only a handful of cases in the history of the United States have ever squarely addressed whether a law violates the 3rd Amendment so there isn't a lot of directly applicable precedent, but the judges would also consider how similar provisions of the constitution, like the 5th Amendment, have been treated and would consider law review articles and historical records about the intent of the Third Amendment as well. Judges have quite a bit of freedom in interpreting the law, but will try to rule in the way that most fairly represents what the total body of the law and interpretative information about the law says in the context of the facts before it. In this case the government would probably lose but you can never be sure In a case as clear as your example, the Government would very likely lose although no case is entirely certain, because it allows action at any time even though it is not a time of war, does not consider the home owner's consent, and does not create any meaningful procedure for exercising the right. But, it really doesn't matter if the violation is blatant or if it is subtle. The court even routinely rules that laws are unconstitutional not because they actually violate a provision of the constitution directly, but because they merely "burden" the exercise of a constitutional right. A law that effectively nullifies a constitutional provision would usually be invalidated. Sometimes lawyers informally and in private call an argument that is technically valid (for example, by creating a procedure albeit a meaningless one) "too cute." Arguments like that usually lose. The U.S. Supreme Court routinely invalidates laws that violate the constitution only in very subtle ways (e.g., requirements that have been interpreted to pose minor barriers to voting could be held unconstitutional), and the U.S. Supreme Court now and then refuses to invalidate laws that seemingly blatantly violate the constitution (e.g., "In God We Trust" on U.S. coins). Often a non-constitutional or settled constitutional law question is resolved purposely in a way that avoids the need to rule on an unresolved constitutional question Often, constitutional cases are resolved on the question of standing, or whether the right person has been sued, or by interpreting a law in a manner that is unnatural, in order to avoid having to address the question of the constitutionality of the law itself. For example, in your case, a judge might say that "at any time" in the statute, really means "at any time during a war", and that "regardless of the objections of the owner" really means "over the unreasonable objections of the owner", and that there is a duty to pay fair market value for the use of the house under the statute because the law is silent on that point, even if none of those things, in a cold plain reading of the statute would seem to be reasonable interpretations of its plain language. And then the judge might say that interpreted in this way, the law is constitutional, but the government violated the law and the court might then award a remedy to Bob, because the government violated the law so interpreted rather than because the government enforced an unconstitutional law. But, if it decides to take up a constitutional question because it isn't satisfied with how the U.S. Court of Appeals resolved the issue, it won't hesitate to do so. |
What distinguishes adverse possession from theft? I understand that, in the United States, adverse possession is a legal (but very rare) way to take ownership of someone else's real property against their will. What I don't understand is how this is materially different from theft, other than that it has to take place over a period of time determined by statute, and then is recognized as legal. Say, for example, I squat in a remote outbuilding on a large rural property, where I'm noticed by the owner at some point but neither evicted nor given permission to be there. Over the course of some period of years, I minimally maintain the outbuilding while living there, and perhaps park my car on the property near the outbuilding, and the owner sees all this from afar but thinks I'll just leave. I don't pay property taxes, I don't have an address for separate mail delivery and for whatever reason—perhaps the owner is non-confrontational to a fault—I'm left alone. After the period of time required in my state for a claim of adverse possession, the title-holder wants to raze the outbuilding and calls the sheriff to have me evicted. I oppose the eviction on the basis of adverse possession, am able to argue my case to the court's satisfaction, and ultimately become the owner of the outbuilding and the land it's on. What makes this different from theft? I know that certain conditions have to be met in terms of what constitutes possession, what makes it adverse and so on. (Someone once told me in casual conversation that "you have to be paying the property taxes for them" but I think this is just one of several ways to demonstrate a de facto claim of ownership?) I'm looking for some insight into the common-law system that explains why the distinction even exists. | The technical difference is that theft is illegal, and adverse possession is not. I'm assuming you're talking about why there's a difference. Historically, there are two basic reasons for adverse possession. First, land lasts for a very long time, and a sale is generally invalid unless the seller has valid title. That means that no property title is secure, because someone could always come out of the woodwork with a claim that your great-great-great-grandfather threw their great-great-great-grandfather off the land 300 years ago. Not only is all land title insecure, but you might not even be able to defend such a claim (do you know the history of your land for the past 300 years?) Adverse possession, then, is a way to let people know no one else can claim title to their land based on something so long ago no one remembers properly. Even with modern public land registries (which did not always exist), this situation can still arise if someone mistakenly believes that they own some land and starts using it. The second reason is that if someone isn't doing anything with the land for a long time, and someone else is doing something useful with it, the government would rather give it to the person doing something useful. People who lose property through adverse possession are unwilling to take the extremely minor steps needed to keep their property. It tends to move land from totally nonproductive users to productive users, and then keeps those nonproductive users from kicking out people who improved the land and keeping the improvements. The notion that leaving something for too long removes your right to claim it is not restricted to real estate. Almost everything in law has a time limit of some sort. | 1.a) Is there any states in the U.S. where stolen property is statutorily (and/or by case law) mandated to be returned to the legal owner from an equitable owner in the above scenario or in cases where the victims’ footings are more balanced? Yes 1.b) Which are they? All of them. The relevant cause of action is the common law tort of detinue: The gist of an action in detinue is that the defendant is wrongfully in possession of personal property which belongs to the plaintiff ... In modern practice, detinue has been superseded almost entirely by statutory actions for the recovery of personal property. 2.a) Is there anything else whatsoever than the law (statutory or decisional) that Alice may plead to bind the court to issue a mandatory injunction ordering Charlie to return the violin to Alice if Alice is willing to forgo any and all damages in return of such injunctions? Alice is not seeking an injunction for the return of the violin; she is seeking a judgement ordering the return. An injunction is an interim order to preserve the status quo. She might seek an injunction that Charlie be restrained from using, damaging or disposing of the violin while the case is ongoing and that might be granted but one ordering the return where ownership is yet to be established would not. However, given that monetary damages are a suitable recompense for Alice's loss in this instance, the court might not issue an injunction. 2.b) If there is, how does it overcome Ebay? Ebay is not applicable to the final judgement. If the violin is found to be Alice's, the court will order its return (not an injunction). If Alice does seek an interim injunction, then Ebay will apply. Hence why I suggest that some types of injunctions might be granted and others will not. 3.) Which states, if any, in the U.S. punish the knowing possession of stolen property as opposed to punishing the knowing receipt thereof? None as far as I know. What is happening between Alice and Charlie is not a state punishment - it is the resolution of a civil dispute about ownership. Most states do have forfeiture laws that might allow them to confiscate the violin irrespective of if Alice succeeds in proving ownership but, again, that is not punishment of Charlie - his loss was at the hands of Bob, not the state or Alice. | No illegal eviction took place, if he wasn't a tenant The term of the room rental was specified beforehand. There was no renewable or extension clause in the rental agreement. Bob also is not a tenant: he is a guest in a hotel. The Hotel offers cleaning services, as the OP specified. By overstaying, his items now were trespassing, the removal was legitimate. However, there is a point at which a short term renting of a hotel becomes living at it. Where this is is often dependant on how long or in what way you stay. Where's the line between a Tenant and a Guest? THAT is the operative question. When does a Guest/Lodger become a Tenant and can get eviction protection? In germany a couple of Hotels actually do have renters with a special rental contract - which is vastly different from the normal room rental. For example, the Maritim in Hamburg has year-rentals. These are actual renters with a rental contract and eviction protection, that give up some tenant rights for services (e.g. room cleaning service for limits in remodeling). However, overstaying at a hotel can actually become a crime: Einmietbetrug - obtaining a room in a hotel or a residency but not wanting to pay or mischaracterizing your ability to do so - is a variant of fraud and thus can be punished under §263 StGB; Under the operating law, a hotel guest is not afforded with all rights of a tenant, unless they are explicitly pointed out like with longstay contracts. In california the line is 30 days, in new-york-state it is the same but they also need to not have a different residency. in england-and-wales, the operative case when someone is a lodger or tenant is Brillouet v Landless (1995) 28 H.L.R. 836: a hotel Guest is not a tenant, even after more than a month of stay. In fact, courts following this case argue, that such a person is only licensed to be on the premises, and the license could be revoked without eviction procedures. In fact, the Brillouet v Landless case is very close to the example. Brillouet rented a room in September, and extended the stay. Then he did not pay (or rather, his accommodation services didn't. In October, Landless sought to get rid of Brillouet for non-payment, just telling him to leave. Brillouet applied for an injunction against the eviction and got a temporary one (to preserve the status-quo) till the hearing. Mere days later, and the first instance court handed out judgement against the application of an injunction to protect Brillouet. The Hotel guest, so the court, was not a tenant under the Housing Act 1988: The Protection from Eviction Act depends on premises having been let as a dwelling. The Court of Appeals affirmed the denial of protection from eviction and seeing no tenancy (emphasis mine): It is an essential prerequisite of any tenancy that the tenant should have, so it is said in some of the authorities, exclusive possession. In my judgment the facts of this case particularly when one bears in mind that Mr Brillouet upon his own assertion avails himself of at least some of the facilities (he goes to the restaurant occasionally for his breakfast) — come nowhere near demonstrating that he has or has had within this room exclusive occupation. At best in my judgment he could conceivably be a licensee. One then has to examine once more the terms of the statute to ascertain whether he is a licensee entitled to protection under the 1977 Act. As the section to which I have alluded makes plain, only licensees who occupy as a dwelling premises which they do occupy are entitled to protection. If, as in my judgment the facts here clearly demonstrate, the occupant is no more and no less than a hotel guest properly so-called, then the accommodation is not let to the licensee as a dwelling. Street v Mountford (1985) AC 809 most likely doesn't apply if any hotel services are offered by the hotel. In the case, Mountford was found a tenant because Street did not offer any services beyond the room and furnishings itself. The presence of any service would change the pattern significantly, as the House of Lords decided: It applies against Bob if the hotel offers cleaning service/room service, and by offering service beyond the room and the furnishing within it, it is lodging, not a tenancy: The occupier is a lodger if the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises. A lodger is entitled to live in the premises but cannot call the place his own. [...] Street provided neither attendance nor services and only reserved the limited rights of inspection and maintenance and the like set forth in clause 3 of the agreement. On the traditional view of the matter, Mrs. Mountford not being a lodger must be a tenant. Mehta v Royal Bank of Scotland Plc (2000) 32 H.L.R. 45 doesn't apply, as that case revolved around a verbal contract with the manager for 6 month exclusive use of rooms. Mehta became a tenant by that contract and eviction protection applied. In contrast, due to how agreements with hotels are generally written, Westminster CC v Clarke (1992) might apply: If the contact specified that the hotel does have unlimited access (which is typical) and that reassignments of rooms (like, another guest in the room) might apply, then there is no tenancy. Could Bob be a tenant? For Bob to be a tenant under the E&W interpretation (following the pattern established by Street & Brillouet), the facts must be such, that several things must be true: Exclusive possession: No services are offered at all beyond the room. For example, there can't be any shared facilities with the rest of the hotel that Bob has access to, and services such as room cleaning or fresh towels or laundry are not offered either. Not using them is not enough, they can't be offered at all. (both Street, Brillout) If in exclusive Possession, Bob still isn't a tenant if he is what Street calls a service occupier. That's an employee who is given a place to sleep in to perform his duties to the employer, like a Butler or Maid. (Street) Bob is also not an owner in fee simple, trespasser or mortgagee in possession, or an object of charity - for which all other rules apply. (Street) In the alternative, one fact makes them automatically one: There was a contract that in its form stipulates they are a Tenant (Mehta v RBS) | The Law The relevant sections of the German Civil Code (BGB) for posession and protection of posession of movable things (not land) are (semi-official translation): Section 858 Unlawful interference with possession (1) A person who, against the will of the possessor, deprives the possessor of possession or interferes with the possessor’s possession acts, except where the deprivation or the interference is permitted by law, unlawfully (unlawful interference with possession). Section 859 Self-help by the possessor (1) The possessor may use force to defend himself against unlawful interference. (2) If a movable thing is taken away from the possessor by unlawful interference, the possessor may use force to remove it from the interferer who is caught in the act or pursued. The posessor (Besitzer) is the one who has the actual control of the thing (§ 854 I BGB), e.g. holds it in his/her hand. (There are also some more complex forms of posession, but they are not relevant here.) Ownership (Eigentum) is totally seperated of that. Often the owner posseses the thing, but also often the possessor is not the owner, but e.g. a tenant. If someone (e.g. a thief) takes away a thing from the posessor, the one acts in unlawful interference with possession (verbotene Eigenmacht, § 858 I BGB). While the thief tries to take the thing away, the posessor may use force to defend himself, § 859 I BGB. After the thief obtained actual control he/she is the new posessor. The old posessor ends to be the posessor. This only reflects on the factual situation, not on legitimacy. The old posessor now may use force to get the thing back from the new posessor (thief), if the thief is caught in the act or pursued, § 859 II BGB. It is controversial which time frame this implies. There is at least one judgement that accepts the discovery after 30 min. If the old posessor gets the (posession of the) thing back through force, he/she does not act in unlawful interference with possession, because it is explicitly allowed in § 859 II BGB. So the thief is not allowed to "steal back" although he/she was posessor (for a short time). If the old posessor acts too late, the new posessor has the full defense rights against force of the old posessor. The old posessor has to begin judical action. He/she has a right of restitution, § 861 BGB. Reasons One of the most important principles of (German) civil law is the Monopoly on violence of the state (Gewaltmonopol des Staates). Normaly only the state is allowed to use physical force (for the enforcement of the law). Only in special cases, e.g. a clear situation or the necessity of immediate action, the affected is allowed to use force for defense. In all other cases he/she has to go to court and in the end let the state use force for him/her. After a theft there are two people claiming to be the legitime posessor and one who has the thing. No one knows (without further investigation) who is right. So everything should stay as it is until a court decides. If a thief is caught in the act or pursued, the situation is much more clear. So the old posessor may use force and has not to wait for a court. If the thougth thief is the legitime posessor, this may be clarified by the courts afterwards. source: Hanns Prütting: Sachenrecht, 2017, § 13 Every German law student learns this in his second year. So there is plenty of teaching literature (and probably websites) on this topic. | Maybe, Hence the Lawsuits In the absence of clear statute law these all circle around tort law. For the scooter companies, trespass to chattels, and for the affected landowners (who hire the removalists) trespass to land and nuisance seem applicable. In essence, I can’t take your stuff (trespass to chattels) but you can’t leave your stuff on my property (trespass to land) or impeding access to it (nuisance). If you do, I am entitled to the reasonable costs of dealing with it. Note that, as owner, you remain responsible for you stuff even if you rented it to someone else. Both sides are pushing hard into unexplored areas of law so we await the judgement with interest. Then we’ll know. | As a legal matter, you need to call or visit your local police station, report that you found some lost money, answer their questions honestly and dispassionately (they don't care about your hate etc. unless it's causing an active situation they have to deal with, and even then they don't much want to hear you go on about it), and then let them deal with it. You can tell your neighbor, if he inquires, that you have handed the matter to the local police and he can inquire with them about claiming it; feel free to ask the police to affirm that's the suitable course of action. You can expect to be given legal possession of it if they are unable to determine the true owner in accordance with local law. You can ask the police for details on that, though they'll probably just tell you as a matter of procedure without prompting. | In general, a properly signed lease is binding. But there are exceptions, and they vary depending on the jurisdiction: country, state/province, and even city or county in many places. You mention a claim that the property should not be leased "because the owner needs it". In some jurisdictions, there is a special exception if the owner personally, or a member of the owner's immediate family, intended to live in the property. It is not clear form the question if such an exception would apply. it might well be that a person in the position described in the question has a valid and enforceable lease, and could simply remain in the property, paying rent, and the owner would have no valid grounds for eviction. But this kind of case will depend on the exact wording of the rental agreement, and on the exact provisions of the applicable laws, which vary widely depending on the location of the property. A person in this kind of situation would b wise to consult a local lawyer who will know local property law, and how the provisions of the agreement and other claims will be treated by local courts. There may also be local tenant assistance organizations, run by the government or by non-profit groups, who will know local law and can assist in such cases. A general answer cannot be gotten from a forum such as this which an individual should rely upon in such a case, particularly when the question does not even state what country, let alone what specific locality, is involved. | I think Dale M is essentially correct. Let me give more detail by quoting the Theft Act 1968: 1 Basic definition of theft (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. (2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit. 3 “Appropriates”. (1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner. (2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property. You assume the rights of an owner by placing a notice offering it to other people. Therefore it is theft. I presume similar laws exist in other juristictions. |
Seller liability and pre-owned merchandise malfunction The below is 100% hypothetical. No event has occurred. Any reply I receive is not legal advice and I will consult a lawyer if I were to ever need appropriate legal advice. Let's say I own some baby items that my baby has outgrown, but have remaining useful life. Eg: An expensive bassinet. I own the bassinet, and it has been used properly. I then sell the bassinet noting that the prospective buyer is buying "as-is" but the item has been reasonably inspected (to the best of my lay ability) and appears to be in proper working condition and is "like-new". Someone else buys that bassinet and, while the baby is in the bassinet, the baby dies. The. cause of death is SIDS | 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. | 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. | Don't trivialize this because it appears to be minor and inexpensive. If something goes wrong, you could be liable for damage. You should have an idea of what a reasonable cost should be based on the rent and condition of the property. Discuss it with the landlord. If the landlord chooses to fix it, you should have something in writing, signed by both you and the landlord, acknowledging that you aren't responsible for reimbursing the landlord for the cost or acknowledging receipt by the landlord of any contribution from you and a statement that the contribution fulfills your lease requirement. If you're going to fix it, you should have something in writing, signed by both you and the landlord, agreeing to the choice of replacement parts and the choice of anyone you hire to do the work. It might be nice to think you can save money by doing it yourself. But if anything happens and there's damage, you could be liable. You should have renter's insurance. You should check your renter's insurance policy to see what, if anything, it says about tenant responsibility for repairs. Your insurance might pay for it. More importantly, will your insurance protect you if something goes wrong and there's damage? I recommend you copy this and modify it as you see fit or, if you don't this is correct, make up something that you think is correct. Keep an electronic copy on your computer. But also have a notebook in which you keep how-to papers, so you don't have to figure it out all over again at some time in the future and to use the how-tos you accumulate to help you make new how-tos as necessary. Also keep documentation, especially warranties. Scan receipts (receipt ink is notorious for fading over time) and warranties, keep them the electronic copies on your computer and print the receipts and put the printed receipts and original receipts with the warranty papers in the notebook. Keep a manilla envelope with receipts, warranties, instructions, and any papers you receive from anyone you hire to do the work. When you move out, you should give the envelope to the landlord so the landlord will be able to maintain what was installed and obtain warranty service if necessary. | You can read about Magnuson Moss here, but it only applies to warranties on goods, not services. As you note, the warranty on the unit is still valid. As for agreeing, it is not unusual that a consumer is not aware what all they are agreeing to when they buy a house. One of those myriad signatures that you put on myriad documents was your agreement to contract terms in the pile of papers that you were handed. If you trace through the entire pile of pieces of paper, you should find something saying that you agree to "all of the attached conditions", which is where you are supposed to say "Wait, what conditions?". | The fundamental question is whether children can own property: they clearly can. See Cyclopedia of Law and Procedure (I improved the link so it can be more easily read). As a general rule any property acquired by the child in any way except by its own labor or services belongs to the child, and not to the parent McClosky v. Cyphert, 3 Casey (27 Pa.) 220 The right of an infant to be the owner of property is as clear and as well protected as that of a person who has arrived at full age. When anything is given to an infant to be held by him in his own right, he has the title to it, and the parent, guardian or master has in law no more right to take it (for any purpose beyond safekeeping) than a stranger. Wheeler v. R. Co., 31 Kan. 640, 3 P. 297, 300: As a matter of law a minor may own property the same as any other person. He may obtain it by inheritance, by gift, or by purchase; and there is nothing in the law that would prevent even a father from giving property to his minor child. A father may also so emancipate his minor child as to entitle him to receive his own wages. It is probably true that where a minor child lives with his father, and is supported by him, all things given to the child in the way of support, such as clothing, for instance, would still belong to the father and not to the child. But things given by the father to the child, not in the way of support, but with the understanding that they should become the property of the child, would, undoubtedly, become the property of the child. Banks v. Conant, 14 Allen 497, the father has no title to the property of the child, nor is the capacity or right of the latter to take property or receive money by grant, gift or otherwise, except as a compensation for services, in any degree qualified or limited during minority. Whatever therefore an infant acquires which does not come to him as a compensation for services rendered, belongs absolutely to him, and his father cannot interpose any claim to it, either as against the child, or as against third persons who claim title or possession from or under the infant. However, a parent does have the right to prevent their child from using or acquiring a computer, car (also prohibited statutorily in Washington), television, cell phone; they can also prevent a child from spending their savings. Parents do retain their property right in things that they give to their children for general support and maintenance, such as a pair of shoes, or books. There can also be specific statutes such as the Uniform Transfers to Minors Act (Washington version) which partially recognize this right, making it easy for a person to transfer property to a minor, where the property is in the care of a custodian, but not owned by the custodian. | 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). | You had bought product A. That constitutes you offering the seller a contract for you to get product A for your money. They keep the money and send product B - and now are in breach of the contract, as that is materially different from the contract both agreed to. Legal recourse is, depending on the customer protection laws, a refund of the payments or getting the correct product A. If you have a right for the Product A depends on exactly how it was advertized and the exact ToS. | If I may paraphrase the scenario: The customer has a contract with the insurer The customer is contemplating undergoing a certain procedure and is unsure if it is covered under the contract The customer calls the insurer to ask this specific question The insurer says "yes" The customer undergoes the procedure The insurer refuses to pay on the ground that it is not covered under the contract. Let's put aside issues of evidence and what can be proved and assume these facts are not in dispute. There is no question that the contract has been renegotiated; it hasn't. This avoids the necessity of considering if the insurer's employee has the authority to do this or it the customer can rely that they do even if they don't. There are two possibilities: The procedure is covered and the insurer must pay under contract The procedure isn't covered and the insurer must pay under the tort of negligent misstatement. The insurer is vicariously liable for the actions of its employee. The insurer owes a duty of care to a customer who asks such a question to answer it correctly. It is foreseeable that the customer would act on the insurer's advice and incur costs that they may have avoided if the correct advice had been given. Nothing is ever certain in the law but this is as close as you can get. |
When a criminal statute is struck down as unconstitutional, what happens to people who were convicted under it? We just had a question about what happens to convicts if a law is repealed. However, that question's example of homosexual behavior wasn't decriminalized in the US by legislative action, but rather by the Supreme Court ruling the laws unconstitutional in Lawrence v. Texas. Court decisions certainly do have some retroactive effect -- even though Lawrence's actions occurred before the ruling, he couldn't be sent to jail for them. So if you were convicted under some law but that law was later struck down in a different case, do you go free? Does it matter what stage the trial was at (e.g. final judgment with appeals exhausted vs. on appeal vs. in trial court)? Does it matter if you had challenged the law's constitutionality? Please cite answers. | Generally speaking if it is substantively unconstitutional for the government to punish a certain kind of criminal conduct, then this provides a basis for a "collateral attack" on the conviction to set it aside (in a post-conviction motion in state or federal court), even if the criminal defendant serving a sentence has already appealed the conviction directly (i.e. to the court of appeals and all higher appellate court that review that court of appeals) to the fullest extent possible and lost. But this is not self-executing. Someone has to file a court case on behalf of the person incarcerated to make it happen. It does not generally entitle the criminal defendant to compensation for wrongful incarceration or to a return of fines paid, although it would end the authority of the state to incarcerate the individual going forward or the compel that individual to pay the balance of unpaid fines. There might be a right to have the case sealed, but the ruling does not automatically remove the conviction from the criminal record of the defendant. And, getting the case sealed is likely to be harder in the circumstance where all of the sentence for the unconstitutional offense has been fully served. When a past conviction does not meet the standards of current law from a procedural context, in contrast, this may be raised in pending direct appeals, but is rarely something that can be brought up in a post-decision collateral attack on the conviction unless certain other exceptions apply (e.g. sometimes if a collateral attack pending before the decision is still pending at the time of the decision or in certain extraordinary cases involving due process concerns that cast deep doubt on the validity of all convictions obtained by that means), and even in cases where it is set aside, does not pose a double jeopardy bar against a new prosecution for the crime that meets the appropriate procedural standards. The U.S. Supreme Court is currently considering the proper treatment under these rules of its holding that non-unanimous juries were an unconstitutional manner by which to convict someone of a felony, which is a procedural rule, but may fall within the exception that makes the new rule retroactive anyway. For cases on direct review, a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past Justice Harlan's habeas approach was first adopted by a plurality in Teague v. Lane and then by the Court in Penry v. Lynaugh. Thus, for collateral review in federal courts of state court criminal convictions, the general rule is that new rules of constitutional interpretation—those not 'dictated by precedent existing at the time the defendant's conviction became final'—will not be applied. However, [a] new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a 'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding. Put another way, a new rule will be applied in a collateral proceeding only if it places certain kinds of conduct beyond the power of the criminal law-making authority to prescribe or constitutes a new procedure[ ] without which the likelihood of an accurate conviction is seriously diminished. In Montgomery v. Louisiana, the Court extended the holding of Teague beyond the context of federal habeas review, such that when a new substantive rule of constitutional law controls the outcome of a case, state collateral review courts must give retroactive effect to that rule in the same manner as federal courts engaging in habeas review. As a result, at least with regard to the first exception, the Court has held that the Teague rule is constitutionally based, as substantive rules set forth categorical guarantees that place certain laws and punishments beyond a state’s power, making the resulting conviction or sentence . . . by definition . . . unlawful. In contrast, procedural rules are those that are aimed at enhancing the accuracy of a conviction or sentence by regulating the manner of determining the defendant’s guilt. As a consequence, with respect to a defendant who did not receive the benefit of a new procedural rule, the possibility exists that the underlying conviction or sentence may still be accurate and the defendant’s continued confinement may still be lawful under the Constitution. In this vein, the Court has described a substantive rule as one that alters the range of conduct that the law punishes, or that prohibits a certain category of punishment for a class of defendants because of their status or offense. Under the second exception it is not enough under Teague to say that a new rule is aimed at improving the accuracy of a trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. From 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). | They are not given independence from statute. This clause just says that conviction is not the end goal of the prosecutor. If in light of the evidence, the prosecutor comes to believe a person is not guilty, they are not to proceed with the prosecution. They must not hide exculpatory or mitigating evidence in order to get a conviction. | That depends what the issue is. On constitutional issues, and on issues of federal law (which do come up in state cases) , they are binding precedent, at least in that circuit for an appeals court opinion, and in the whole US for a Supreme court opinion. District court opinions are not generally binding unless upheld on appeal. On matters of state law, the state's own highest court is the final word, but a federal opinion could be at least as persuasive as one from a different state. to the best of my understanding one does not use the term "estoppel" to describe the effect of a previous judgement by a different court. If it is in the same case and not on appeal, the term is Res judicata ("A thing (already) judged"). If it is a general matter of adhering to clear precedent, the term Stare decisis (“to stand by things decided.” ) would be used. | Constitutional matters can be, and often are, decided by a single judge in a garden-variety trial court. It's just that the judge's decisions may be reviewed and possibly overturned by a higher court, one of which is the supreme court. Furthermore, district courts are bound by precedent. If a case turns on a new statute, however, the trial judge can indeed find that new statute unconstitutional without a higher court first having done so. If a panel of judges is evenly divided on whether to overturn a lower court's ruling, the lower court's ruling stands, but no precedent is set. The supreme court often has an even number of justices hearing a case, whether because of a vacancy or because a justice has recused him or herself. | If the Supreme Court is the final authority The Supreme court is not the final authority. The Supreme Court is the court of last resort, but that does not prevent its case law from possibly being superseded or invalidated by constitutional amendments or the enactment of legislation. Wouldn't past and future courts be of equal authority No. Whether in the form of statutes or court decisions, laws are supposed to preserve ordered liberty. That entails the need to keep up-to-date with the state or evolution of civilization. If the Supreme Court case law --aka authorities-- were deemed inexorably perpetual, the entire judicial system would become imminently useless due to its inability to respond to new challenges [in the civilization] which are (1) encompassed by prior SC authorities, and yet (2) not properly assessed therein. | You are quoting standards that are applicable during an appeal. So in this case, the defendant was brought to trial, was found guilty by a jury, and is now appealing that conviction. During that initial trial, the evidence was supposed to have been weighed neutrally. In an appeal, the appellate court is not attempting to re-litigate the entirety of the case. That would be costly and slow in addition to burdensome on witnesses that might have to be called again to testify. Instead, it defers to the trial court for things like the determination of facts. The standards you quote show that an appellate court is only going to overturn a lower court's verdict as insufficient if the lower court's ruling is manifestly unjust. The prosecution and the defense presented evidence on a particular element of the crime at trial. The jury determined that the prosecution met its burden, and proved the element beyond a reasonable doubt. The appeals court is not going to substitute its judgement for that of the jury particularly when the jury had the opportunity to assess the credibility of different witnesses that may not be possible from a simple text-based transcript. If the trial court convicted and the appeals court determines that the conviction was reasonable if the evidence was viewed from the standpoint most favorable to the prosecution, then the sufficiency standard would be met and the appeal would be denied. The appeals court would only overturn the verdict as insufficient if no reasonable juror could possibly have concluded that the state met its burden of proof given the evidence presented. | Any court from a municipal traffic court on up can declare a law unconstitutional and the U.S. Supreme Court is almost never the court that does so in the first instance. Also, while the jurisdiction stripping law that you suggest might be unconstitutional, it is not obviously unconstitutional. The relevant language is in Article III, Section 2 of the United States Constitution (this has been modified by the 11th Amendment in ways that are not pertinent to the issue at hand): 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;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 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 such Regulations as the Congress shall make. The key language being the language in bold, who scope and limitations are the subject of hot debate in legal scholarship. For example, both military tribunal law for non-soldiers and the collateral review of death sentences implicate this provision. An issue related to U.S. Supreme Court jurisdiction over military court-martial court composition will be heard this year in oral argument before the U.S. Supreme Court. There is also debate over whether the jurisdiction of every single federal court can be removed from a matter within the judicial power of the United States. In that regard, keep in mind that the United States federal court system did not have direct appeals of criminal convictions at all until the 1890s, although you could challenge, for example, the jurisdiction of a criminal court over your case with a writ of habeas corpus which is a collateral attack on a conviction in a separate civil lawsuit formally directed at your prison warden. That being said, as far as I know, a law is considered in effect until declared unconstitutional. It is illegal to break an unconstitutional law, until declared so. You are wrong. A law that is unconstitutional on its face is, in terms of legal theory, unconstitutional immediately upon enactment and a court simply acknowledges that fact. It is not illegal to break an unconstitutional law even if no court has yet declared it to be unconstitutional (in U.S. jurisprudence). A law that is unconstitutional as applied is unconstitutional in application at the moment it is applied unconstitutionally, and again, a court merely acknowledges that fact. |
Can co-owner of an apartment prohibit tenants to use bathroom (wc). Is it a violation of the right of adequate housing (UN HABITAT)? Can co-owner of an apartment prohibit tenants to use bathroom (wc). Is it a violation of the right of adequate housing (UN HABITAT)? Can co-owner evict tenants without providing an alternative accommodation? Use it's rights to abuse rights of another co-owner who provided a room of an apartment for tenants Please note rooms are isolated and aren't shared property of the two co-owners. Co-owner cannot prohibit to rent an room of apartment Common areas (bathroom, kitchen) are shared property. Can co-owner (who want to evict) refuse of fair compensation? | The right to adequate housing is a political question, the content of which is unclear in the UN's fact sheet. What they say is: All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, clean drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, food storage facilities, refuse disposal, site drainage and emergency services. Sanitation facilities are not completely ignored, so there is a theoretical basis to start from. However, that list of desiderata is not legally enforceable, so it would depends on the laws of the particular jurisdiction. In the state of Washington (US), a rental that lacked any sanitary facility (toilet) would be a violation of the health code: even hot water is required by law. In other countries, esp. where running water is not ubiquitous, there may be no legal obligation for a landlord to provide a toilet with running water. Whether legal action could be taken against the landlord depends on local law. A property owner can evict a tenant, subject again to local law. Usually, it requires a legal process where the owner petitions the court to evict the tenant, and in case the tenant has a contractual right to be there, the owner has to show cause (tenant breached the terms of the lease). A landlord does not generally have an obligation to find alternative housing for a tenant, but perhaps there is such a law somewhere, related to tenant tenure. The mention of a co-owner is a bit confusing. If A is the sole owner of a property, A can exercise landlord rights. If A and B both own the property, either of them can exercise landlord rights. However, if they disagree, i.e. A wants to evict tenant C and B wants to let C stay, the dispute between A and B must be resolved, and if they cannot come to an agreement then B can cause a delay of the eviction until the dispute is resolved in court. Again, the details on this would depend on the jurisdiction, and in part whatever landlord-tenant laws there are. | As Paul Johnson says, this is a planning permission thing. The parking places your landlord has leased you are real; they exist. They just don't have planning permission for all of them. It's no different to if the landlord got planning permission for a building of four flats, and built a block of six flats. Building those two additional flats would illegal, and the planning authority could take enforcement action against the landlord for it; however, letting those two additional flats out is perfectly legal. Similarly letting those parking places is legal; it's just that the planning authority may take action against the landlord to force two of the parking places to be removed. At that point the landlord would have to break the contract with the tenants of the parking places, and would be liable for damages. In practise, unless there are some activist neighbours, the planning authority won't take any enforcement action (spending money on legal action for two parking places is not high on their list of priorities). Even if there are some activist neighbours, they probably won't bother. Finally, any development becomes lawful after ten years, and if the development is used as dwellings, after four years. It is not clear to me whether the parking spaces would be considered as a separate development to the flats (and hence have a ten year limit), or whether they are ancillary to the dwellings (and hence have a four year limit). My suspicion is that the landlord was asked to sign an application for a Lawful Development Certificate (which essentially just certifies that the development is out of time for planning enforcement). If so, that means that ... the development is out of time for planning enforcement, so you have no need to worry. Incidentally, if I am right, your friend doesn't have any need to worry either, and is probably being put off the purchase by an overly cautious conveyancer. (Note: I am not a lawyer, and in particular, I am not your friend's lawyer.) | 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. | From what I can determine, there has not been a legal challenge to the practice that reached a high enough level to get on my radar, so it's not clearly prohibited or allowed. Turning to the relevant federal regulations, the implementation of the Fair Housing Act, the law hinges in part on an Aggrieved person includes any person who— (a) Claims to have been injured by a discriminatory housing practice; or (b) Believes that such person will be injured by a discriminatory housing practice that is about to occur. In order to sue a university because they offer sex-separated halls, floors or rooms, a plaintiff would have to show that they have been harmed by being given such a choice. Reading the prohibitions in §100.50, there is no obvious "Discriminat[ion] in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities", and it does not "otherwise makes unavailable or denies dwellings". Cases like McLaurin v. Oklahoma State Regents, 339 U.S. 637 (a case putting an end to the "separate but equal" doctrine) include reference to the fact that appellant was harmed ("The restrictions imposed upon appellant impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession"). Analogously, the relatively rare black-only residences of UC Davis and Cal State LA might be targeted in a discrimination suit, if plaintiffs can make the required legal argument that there is harm. | There are no squatters Neither Bob nor Sue are squatters: Bob was there with the owner's permission and Sue was there with Bob's. Adverse possession requires possession that is, well, adverse: against the wishes of the true owner. Bob was almost certainly a tenant, paying rent in services rather than cash. Clearly, the terms of that tenancy are unclear and may not be legal but that is more likely to rebound against the landlord rather than the tenant. So long as the rent (whatever it is) continues to be paid the estate’s tenancy should continue. However, the landlord could start procedures to end the tenancy (probably requiring 1 months notice) at any time. | The default rule is that a landlord can refuse to rent to anyone for any reason, in which case the landlord can refuse to rent in this case. There are civil rights laws that limit this discretion in the case, for example, of discrimination based on race, or family status. But, those laws often have exemptions for owners of small amounts of property (e.g. a unit in their own home), which can't easily be determined from the question. If a civil rights law applies, the landlord must choose among potential renters on a non-discriminatory basis - the landlord doesn't have to rent to anyone in particular, but can't use the prohibited reasons to make the choice. If the default rule does not apply because a civil rights law unrelated to immigration bars discrimination against a tenant, someone's undocumented immigrant status probably doesn't provide an absolute defense to the civil rights law, but might be one factor among many that a landlord could consider in choosing among available tenants in much the same way that credit ratings, income, and a prospective tenant's criminal record, and other factors might be considered. | A "limited license housing agreement" may be an interesting attempt to get around landlord-tenant laws, typically associated with official student housing (e.g. this from Queens College CUNY). This facility near WMU is not overtly related to the university, but might be subcontracting for the university. At any rate, there is no special provision under Michigan law that exempts landlords from the provisions of the law in case they declare the contract to be an agreement as opposed to a lease. It is possible that this is copy-and-paste law that erroneously relies on provisions in landlord-tenant laws that exempt university housing agreements from provisions of a state's landlord-tenancy law. You do not need to be informed that you should / could consult an attorney before signing a legal document: this knowledge is presupposed. It is also assumed that when you sign a document, you read the document. It is reasonably likely that the lease contained language like the following (from the above contract): I have carefully read, fully understand and voluntarily sign this Housing Agreement. Once fully signed, this is a binding contract and is intended to be enforceable under its terms. I have had the opportunity to seek independent legal advice The disclaimer "This Housing Agreement is not a lease and no tenancy, leasehold, possessory or other property interest in any specific apartment or bedroom is created" has dubious legal status. The rights given by the landlord-tenant act cannot be waived, under the Truth in Renting Act, so saying "this is not a lease" does not make the lease not a lease. In Michigan there is a duty on landlords to mitigate loses when a premise is abandoned. The case Fox v. Roethlisberger, 85 N.W.2d 73 mentions such a possible duty in the context of tenancy is often cited on the web as establishing such a duty, but I disagree. Froling v. Bischoff, 252 N.W.2d 832 however establishes that there is such a general duty for any breach of contract (and even applies it to breach of a rental agreement). So whether or not you call it a lease, there is still a duty to mitigate losses. In the scenario where you abandoned the unit and the landlord waited until the end of the year to file an action for breach of contract, they could have failed in their duty to mitigate their losses (but see Fox v. Roethlisberger, where landlord did make an effort to re-rent, and simply was not able to for 9 months). | You say that you have a joint lease. This means that you and your roommate are jointly (together) and severally (individually) responsible for fulfilling the terms of the lease. From the landlord's position there is only one tenant - both of you together constitute the tenant. If you want to change this so that the tenant from date X is your roommate and someone else you have 2 options: Jointly give notice, ending the current lease and triggering the return of the deposit. Your roommate and your replacement are then free to negotiate a new lease with its own deposit. The landlord would conduct a final inspection on your lease and an initial inspection on the new lease. With the landlord's permission, substitute the new person for you on the existing lease. This does not end the lease and does not trigger the return of the deposit. The landlord is not obliged to do anything. You can negotiate whatever deal you like about the security deposit with whoever you like. |
Is it ok to set up a private music website without royalties? Suppose that there is a private band. They occasionally record covers for the fun of it, they don't distribute, sell, or perform live so don't require any permission / royalties for their covers. Suppose that they want to set up a music website where they can upload their covers of other people's copyrighted songs. The website will be private and only friends / family will be given a login to listen to their music if they wish. The general public can't register and listen, it's an invite only basis. There's no fee for using the website. They don't want to sell the music or sell any subscription. This is for personal use only and registrations are manually approved to ensure only invitees can log in. Legally, is this ok? The research I've done points to the song author only needing to be paid royalties if the record is distributed or sold to the public. | Technically, this is infringement Overview of US law In the US, Playing copyrighted music in a private setting for personal enjoyment and practice does not require any license or royalty payment. However, uploading recordings in which copyrighted music is played so that others, even a small invited group, could download copies and could, if they choose, distribute them further would be copyright infringement if done without the permission of the copyright holder. In the US such permission could be obtained with a "mechanical" license, which requires payment of a statutory fee. Or it could be requested directly from the holder or holder's agent, in which case the terms would be whatever the holder will agree to. Making recordings of a copyrighted musical work, even if they are not distributed, also requires permission (which can be obtained through a compulsory "mechanical" license or directly). Cites to US Copyright Law 17 USC 101 says: To perform or display a work “publicly” means— (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. 17 USC 106 lists as among of the rights which a copyright holder has: (1) to reproduce the copyrighted work in copies or phonorecords; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; 17 USC 115 covers "mechanical" or "cover" compulsory licenses. Practical Considerations Given that the web site will be on an invite-only basis, it is likely that the copyright holder would never learn of it. Even if the copyright holder does learn, many holders would not consider filing suit, which would involve court fees and legal expenses, in such a case. If no fees are being charged, and the market for the copyrighted work is not harmed. the likely damages even if a suit is filed and won, are relatively small, so a suit might well not pay off. But some holders would sue on principle, and there is no way to know in advance who would or would not. There would be an element of legal risk in putting up such a web site. Other countries The above is all based on united-states law. I believe that the law would be similar in most countries that have signed the Berne Copyright Convention, but the details would differ. | If you used some creative work of mine without my permission (I'm the copyright holder, and you have no license giving you permission) then I can sue you to make you stop using my work, to get payment for damages, and to get payment for statutory damages. If you used my work because someone else told you wrongly that you had a license, that's very unfortunate for you, but is no reason why I wouldn't or shouldn't sue you. Obviously in this situation that third party did something badly wrong. I can sue both of you together to make sure that I get payment from whoever has deeper pockets. You can also sue that third party if you think that their lying, or being mistaken, about a non-existing license caused you damages, or if there is a contract or something that makes them responsible. | In the US, the author would be able to wind an infringement lawsuit against the re-publisher. Title 17, the US copyright law codified, grants the author the exclusive right to authorize republication, and does not require that a person use their real name. The argument "It was on the internet, it's in the public domain" is utterly without legal merit. The same goes for the assertion that a person loses his rights if he is uncontactable. The author has stated the terms of the license, so there isn't even a reasonable argument that the infringement is innocent (unknowing: "I thought it was with permission). There is no requirement that you have to allow a potential user to hassle you about the license terms. The one thing that is special regarding anonymous and pseudonymous works is that under 17 USC 302, "copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first". For a work whose author is identified, copyright "endures for a term consisting of the life of the author and 70 years after the author’s death". This assumes that the host site has not preempted author's license: Stack Exchange, for example, preempts an author's exclusive right, so you can copy stuff from here accorting to the SE terms of usage. | You can put anything you like in a ToS document, but not everything you might put there will be enforceable. By posting something on the web, you are inviting anyone to read it. In some jurisdictions that may include the right to make and store a personal copy, although not multiple copies or a copy for commercial use. You can taker technical measures to prevent automated access and automated downloads (scraping). There was a case (hiQ Labs, Inc. v. LinkedIn Corp, 938 F.3d 985 (9th Cir. 2019)) in which access restrictions were held binding in a US court, but in that case the site owner had notified the would-be reuser (a competitor) directly. The laws on this sort of thing may differ from country to country, and are not as well-settled as older parts of the law tend to be. The question asks: can I list in my terms of service that all users acknowledge I own their posts ... The only way in which the host could "own" the posts would be if the users transferred copyright to the host, or granted the host an exclusive license. Under US law this would take a written and signed document. Clicking an "I agree" box or button might constitute a valid signature. A statement that "by using this site you agree ..." would pretty clearly not. You might prohibit bots copying from your site and posting duplicates, but to prohibit users re-posting their own messages elsewhere is harder, legally, and leas reasonable in my view. Under US law you could not actually file suit for copyright infringement until you had registered the copyright, but that is not true in many other countries. | 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. | Maybe. It might fall under "fair use", which overrides the general requirement to get permission. The way to find out is to do it, get sued, then try to defend your action by using the fair use defense. If they win in the lawsuit, you can't, if you win, you can. There are four "factors" that have to be "balanced", plus a fifth. The factors are "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes", "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", "the nature of the copyrighted work" and "the effect of the use upon the potential market for or value of the copyrighted work". The fifth consideration is "transformativeness". W.r.t. purpose of the use, your use would likely be found to be "fair", except for the Youtube monetization problem. The "nature of the copyright work" question is primarily about "artistic works" versus "factual works", so it would depend on what you are taking from. One second might not be substantial, unless that one second is the only reason people pay to watch the copyrighted work. That interacts with the substantiality desideratum: could people get the crucial amusement content of the paid work for free by watching your video? You can read some case law in the links here, and you basically have to get an attorney to analyze your plans to tell you what your risks are. | The crucial limitation is 17 USC 106(4) which gives the creater of the work the exclusive right to authorize in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly You can play music copyrighted privately, but not publicly, without a license. Look at the definition of public performance in 17 USC 101: (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. | DRM-free is not license free. DRM is just an attempt to enforce copyright licenses via software. DRM will theoretically prevent you from playing the music unless you have a license that allows you to play it. The lack of DRM it doesn't mean you can do whatever you want with the recording. It just means that any violation of copyright rules will have to be settled using the legal system. If the copyright holder finds you offering their music for replay without a license to do so, they can take you to court to make you stop. Bandcamp and other distributors have negotiated a contract with the musical artists and other copyright holders to offer their music for replay on their site. If you want to legally offer music to which you don't hold the copyright for replay on your site, you too will have to negotiate a license with the copyright holders. |
Force neighbor to resolve property line encroachment before selling house My neighbor built a fence that crosses our property line. I had a surveyor come mark the boundary to be sure. (It has only been a few years so no adverse possession possibilities.) This neighbor is now selling the house, and I'd like to force them to fix the fence before they sell so that I'll have good relations with the new neighbor. Is there a way for us to prevent the sale of the house until they have moved the fence? For example, it seems that filing suit against the current owners doesn't necessarily prevent the sale, and that the suit would be pointless after the sale is complete. | Is there a way for us to prevent the sale of the house until they have moved the fence? For example, it seems that filing suit against the current owners doesn't necessarily prevent the sale, and that the suit would be pointless after the sale is complete. You can't prevent the sale, but if you file suit to adjudicate the boundary dispute and file what is called a "lis pendens" giving notice that the suit is filed in the real estate records, the buyer will taken subject to the lawsuit and realistically, won't close in the first place. The prospect of an impending sale is unlikely to be something that would cause the court to take expedited action or issue a temporary restraining order, because you can preserve your rights with a "lis pendens" which doesn't take a court order. The absolute minimum amount of time in which you could get a court order on the merits without a temporary restraining order is perhaps three to four months, which is almost surely too long to prevent a sale of a house. The suit isn't pointless after the sale is complete. You can still enforce the boundary against the new owner. And, often, a new owner, having no ego in the placement of the fence, might settle the case sooner than the old owner would have. But, better practice in terms of neighbor relations would be to file suit first, so that the new buyer, if the buyer goes forwards with the sale, is aware of the defect. The old owner is also more likely to have evidence useful in the lawsuit you bring. Short of filing suit, send a letter to the realtor and the neighboring property owner with a copy of the survey advising them of the problem. If you could somehow figure out who was handling the closing, you could tell them too. This will impose upon them a legal duty to advise the new buyer before closing, and if they fail to do so, they expose themselves to the risk of a fraud lawsuit from the new owner. But, while this is cheaper, it also presents a risk that they won't warn the buyer who will then not have notice and the risk of being sued for fraud may cause the seller and the seller's realtor to resist your suit more aggressively and to be less prone to settle it. If you wanted to be really aggressive, you could give the neighbor notice that the fence is over the line and that you will destroy it if the neighbor doesn't act, and then tear down the fence, which is strictly speaking within your rights if you can do so without a breach of the peace, because it is on your property. I wouldn't recommend this approach, however, as it could lead to violence or police involvement that depending on the policeman who isn't trained in real estate law, might get you arrested which is not good even if the charges are later dismissed. | I would like to give you a clear definitive answer, but there isn't one. This depends entirely on the scope of the easement which is determined on a case by case basis in light of the facts and circumstances. It is frequently ambiguous. These cases come up frequently and usually either get resolved fairly quickly via mediation or negotiation, or escalate into very ugly lawsuits that can last years. I have a case like this that has been pending eleven years, is on a final appeal to the state supreme court, has involved about $800,000+ of legal fees between all parties involved, has been to the court of appeals following about six times so far, and has led to five evidentiary hearings in addition to depositions, motion practice, etc. Obviously, this is an extreme example, but long, costly litigation if a negotiated resolution isn't reached is pretty common. | I would presume that this is legal (without researching the laws in Cali. or Texas). Their contract is an offer to enter into an agreement. You accept that offer by signing. Their pre-requisite for that offer is that you pay the nonrefundable application fee. In other words, they are refusing to make you an offer until you pay a set fee. Now the degree of negotiability, among other factors, would go into determining whether the contract is fully enforceable. I did a little bit of research. (Please note that this is not legal advice. If this applies to a current situation, seek the advice of an attorney licensed to practice in your jurisdiction.) There does not seem to be any indication that the landlord needs to provide a sample lease to you before s/he decides that you are an eligible applicant. The application fee is not a contract to rent the premises; it is an application to be considered a tenant. Pro-Business Perspective: Why would I (the landlord) waste my time going over an application with someone and show them a model unit if they are not even eligible to rent from me? I have better things to do. Pro-Consumer Perspective: Why waste my time and money if I refuse non-negotiable terms in a lease? The application fee is capped in California and must be used to cover screening costs or refunded if not used. The likelihood of success in a claim regarding this might be indicated by the California Dept. of Consumer Affairs: "If you don't like the landlord's policy on application screening fees, you may want to look for another rental unit. If you decide to pay the application screening fee, any agreement regarding a refund should be in writing." It is important to note that you can always try to negotiate with the landlord. Personally, every lease I have had I have negotiated to get more favorable terms. You, as a tenant, have every right to try to negotiate, and should use that right. | In the event of a dispute, the person resolving the matter, probably an arbitrator in the case of a commission dispute between two realtors and either an arbitrator or a judge and jury depending upon what your listing agreement says about that issue, would hear the testimony from both parties and decide. The intent of the parties is supposed to govern in cases of clerical errors, but a signed document has a lot of weight, especially in such a prominent term. It is a little hard from the way the question is posed to determine who is willing to correct the typo and who insists on enforcing the contract containing the typo. | If the tenant were alive, you couldn't stop them from taking away their personal property, could you? No matter how overdue the rent was. Nor could you deny them access to the property, except through formal eviction. AFAIK the estate generally has the same rights that the decedent did. So if the tenant would have had the right to remove their property, then their estate should have that same right. I'd be concerned about legal risks to you if you try to withhold it - I wouldn't want to do so without having advice from my lawyer that it was okay. (Answers on this site are not legal advice and most of the users are not even lawyers.) The decendent's personal property should now be part of their estate, so if it has any value, the representative should have to sell it if necessary to settle their debts. Thus even if you release the property, some of its value may still come back to you. Of course, if the decedent had other debts, and their assets don't cover them all, you may not be able to recover everything you're owed - that's one of the risks you run when you decide to become a landlord. In particular, the personal representative is not obligated to pay off the overdue rent out of her own pocket. | Absolutely not. You have to use the legal system, whereby the sheriff is the one who uses force if it is necessary and ordered by the court. You can file an action at your local courthouse. If you want to do this self-help style, figure out how to file a petition, and figure out what you are petitioning the court to do. First off, of course, you need to figure out what you really want. For example, do you want a squatter to leave your apparently abandoned house; do you want a fence removed from your property; or do you just want to be sure that he can't claim possession of a chunk of your land in 3 more years (but the fence doesn't bother you)? Since you're apparently talking about removing a person from your property, you might start by calling the police. If this is a former tenant as opposed to a stranger who broke in, don't bother (police don't get into civil matters until the court tells them to), just start the appropriate legal process. You might be filing an unlawful detainer action, but it would be a slower eviction if the person is a tenant. | The will further states property shall be sold and offspring are to split the proceeds. However, the will does not specifically designate who inherits the property/deed. This is an instruction regarding who inherits the property. It means that the executor of the probate estate (in an official capacity), who takes title by operation of law upon appointment, is directed to sell the property rather than to distributed it in kind. Will there be legal or financial problems with a foreign executor? Not necessarily. Generally, the main issue is that a foreign executor must sign a document expressly submitting to the jurisdiction of the probate court when appointed in addition to other documents that are signed by all executors. Pre-death, in the will, would it be better to designate the American resident offspring as executor? Not necessarily. Hands on administration of the estate and dealing face to face with a local probate lawyer is easier for a resident of the state where the assets are located and the decedent resides, but in these days of telecommunications this isn't a decisive factor. The relative competencies of the prospective executors is more important. If both offspring agreed, can the overseas offspring easily transfer executorship to the American offspring, or will there be legal or financial consequences? Assuming that they are the only interested parties in the estate, they can do so. You can't be compelled to serve as an executor just because you are nominated by a will to do so. If one person declines to serve, the person with next highest priority which would likely be the other sibling, may apply to the probate court to be appointed. The main financial consequence is that typically, whoever does the job is entitled to reasonable compensation from the estate for their services. Would there be legal or financial deed ownership issues, since neither offspring specifically inherited the property? No. Could a court order the property to be auctioned out from under the offspring? If all interested parties agree, they can defy the will. The normal process, however, is for the executor to follow the will and to sell the property in a commercially reasonable manner, typically by engaging a real estate agent to handle the sale. If the executor fails to take action, and an interested party objects, it would be more common for a probate court to remove the executor and appoint another one, than to order a sale at auction, which would typically be a course of last resort. This said, under appropriate circumstances, the court of probate jurisdiction would have authority to order an auction of the house. Most commonly, a court order to sell a decedent's house at auction would arise when the decedent (i.e. the dead guy) only owned an undivided partial interest in the house (called a tenancy in common interest) and the non-deceased third party co-owner of the house (perhaps a brother or ex-wife of the decedent) declined to cooperate in selling it. If a court determines the overseas executor offspring receives the property deed, the overseas executor wants to remain executor but give deed to American offspring for easier selling of the property, would the property have to go through titling and closing costs for the transfer, and then again for property sale to a third party? This question reflects a fundamental misunderstanding about how probate works. Title to the property vests in the estate by operation of law upon the death of the decedent. The executor has authority, once appointed, to take actions such as signing a deed to a third-party buyer, on behalf of the estate. There is no intermediate closing and transfer of title to vest title to the property of the decedent in the name of the estate before it goes from the estate to the third party. The net proceeds of the sale to the third party (after costs of sale and prorations of things like property taxes and prepaid insurance) are then placed in a bank account for the estate and paid to the heirs after expenses of administration are paid. There is nothing that makes it significantly harder for an overseas executor to close than a domestic one. The title company handling the sale emails the deed (and any other paperwork that needs to be signed) to the executor. The executor prints the documents to be signed, signs the non-notarized documents, and signs the deed in the presence of his friendly neighborhood notary in the foreign country where the executor lives, who notarizes the deed. The executed deed, together with a document called an apostille proving that the notary is really a notary, is sent back to the title company (probably with a scanned copy by email and a hard paper copy following by express delivery). Coordinating time zones may be a pain depending on the location of the particular foreign country in question (but the closing does not have to happen for all parties at exact the same time), and if the overseas executor is someplace primitive and remote with no internet access or computers or printers or faxes and no notaries, that could be a problem. But there are increasingly few places like that in the world. | Sometimes you can't. In Washington, for example, it is possible to disclaim property, because RCW 11.86.021 says (1) A beneficiary may disclaim an interest in whole or in part, or with reference to specific parts, shares or assets, in the manner provided in RCW 11.86.031. and there is a procedure for writing up and filing that disclaimer. However, there is a time limit that you have to do it by nine months after the latest of: (a) The date the beneficiary attains the age of twenty-one years; (b) The date of the transfer; (c) The date that the beneficiary is finally ascertained and the beneficiary's interest is indefeasibly vested; or (d) December 17, 2010, if the date of the transfer is the date of the death of the creator of the interest and the creator dies after December 31, 2009, and before December 18, 2010 and RCW 11.86.051 gives a list of reasons why you cannot disclaim an interest. "Indefeasible" means "you can't get out of it". If you fail to pay taxes on real estate, it can be seized and sold by the county to satisfy the tax delinquency. The county will then attempt to sell the property, perhaps for exactly the amount of taxes owed. That sale "clears" the title so that the purchaser does not have to worry about a could over the title (Sec. 34.01.(n) of the Texas tax code). The city can also separately assess you for violation of whatever ordinance they are concerned with: there will be some procedure for the abatement of the nuisance (weeds, usually), an assessment which is made against the property. Notice is given to the owner (or, the person they think is the owner), but the "risk" is shouldered by the property. |
Could I create doubt of a crime by having multuple people suggest, but not actually claim, that they were the murderer? Let's say hypothetically I'm a member of some gang and just killed a member of a rival gang. I've been accused of murder and taken to trail. My fellow gang members want to help me get off, but not so much that their willing to do anything that could lead to their going to jail instead. It's possible for one of the gang members to claim to be the murderer to sow reasonable doubt in theory ( What prevents someone from claiming to be the murderer in order to get the real murderer off?) However, they would then be guilty of purjury and other crimes which my fellow gangbangers likely don't want to go to jail for. However, instead of one person coming forward and explicitly saying they committed a crime what if multiple gang members all came forward and implied they committed the crime. For instance saying things like "I was planning to kill that man for being on our territory, but I won't say I did it" or "I 'took care of' some of the rival gang members that day" something along the line. Could a half dozen individuals come forward to intentionally sow confusion as to who the murderer was without risking purjury and thus help the actual murder get free? If the inability to plead the fifth when giving testimony makes it too hard to imply guilt of yourself could they instead intentionally point the finger at other gang members (with those member's approval), thus allowing them to imply guilt of another without being put in a position where they had to explicitly say yes they did or didn't commit the murder if asked directly, since they can't definitively know what another person did. Has any situation like this actually occurred in real criminal cases? | So, as you say, these witnesses who try to help their buddy out may be committing perjury. Also, D himself, by lining this up, is probably on the hook for conspiracy to commit perjury and being complicit in perjury. Aside from that, I think your question is: would getting people to testify in a way that implies they did the crime lead to an acquittal for the murderer? The answer is: maybe. The jury will either vote to acquit or to convict. If the jury votes to acquit, then it's over. Double jeopardy protects D from being tried for murder again. But, if the jury votes to convict, the fact that D had his friends testifying in the way you suggest isn't going to get the conviction overturned on appeal because "a reviewing court resolves neither credibility issues nor evidentiary conflicts." People v. Young, 34 Cal.4th 1149, 1181 (Cal. 2005). I haven't done a trial yet, but it strikes me that that might not be the greatest trial strategy. I think generally defense lawyers would prefer to make their client look the furthest thing from gang affiliated as possible. Don't lie to a court or ask anyone to lie to a court for you. | Edit: I didn't notice a that this question was tagged for Canada; this answer is based on U.S. law. "Must you stop walking" and "can the police detain you for leaving" are different questions. Must you stop? I'd expect a lot of variation from state to state, but there are definitely situations in which you must stop. In Ohio, for instance, an officer who "reasonably suspects" that that you have committed, are committing, will commit, or have witnessed the commission of violent felony, is permitted to stop you and ask for your name, address and date of birth, and it is a crime to refuse to provide that information. R.C. 2921.29. But at the moment the officer asks you to stop, you're in a tricky position. If you haven't done anything wrong, you'd be inclined to think that the officer has no basis to stop you and that you're justified in walking away. But if someone just called the police and said someone fitting your description just robbed a store two blocks away, the officer has reasonable suspicion that you committed a violent felony, but you have no way of knowing that. This sort of thing happens pretty much all the time. In the absence of that reasonable suspicion, though, Ohio courts have repeatedly held that it is not obstruction for you to just walk away (or even run!) from the officer. Can the police detain you for walking away? Obviously, if you're in a situation where it is a crime to not answer questions, the police can detain you because they just watched you break the law. But what about when you're within your rights not to answer? The police can still detain you with a Terry stop when they have a reasonable and articulable suspicion that you are committing a crime, or that you just did, or that you're about to. And they can continue that Terry stop until that suspicion is confirmed or dispelled, or until they can't reasonably expect to get anymore information by detaining you. Based on the facts you described, it seems unlikely that they could legally detain you based on your termination of the conversation. Still, I imagine that there could be circumstances where they might stop someone, ask questions, and then reasonably suspect that the person was engaged in a crime based on his decision to walk away, especially if the person hasn't explicitly invoked his Fifth Amendment right to silence. | The double jeopardy clause would prevent you from being retried by the government that tried you for murder (probably a U.S. state). But, you could be tried for fraud and obstruction of justice at the state level, and you could be tried for murder if an appropriate federal offense were located, at the federal level. Often conspiracy to deprive someone of their civil rights is used as a federal offense when there is a state level acquittal, and it isn't impossible to imagine that happening in this case as the victim had a right to the protection of the laws, and the state had a right to enforce the criminal laws, which was deprived in a manner that could be called "under color of state law.' | Laws criminalizing perjury are not about being mistaken or less believable in your testimony. The crime is, very narrowly, stating something which you do not believe to be true, while under oath. If you make a statement that happens to be untrue but you believe it is true (you are mistaken), that is not perjury. In the US, moreover, you have to assert something literally untrue, not simply say something that could be interpreted as being untrue. Rental arbitration hearings are nothing special, except that witnesses may or may not be sworn under the particular state's laws. If a witness is sworn and unambiguously asserts "Jones gave Smith $1,000 at that time", and another sworn witness asserts "Jones did not give Smith any money at that time", that might suggest that one witness testified as to something that they did not believe to be true. It might also show that they were standing in different places. Even if the circumstances show that the two witnesses observed the same facts, you would have to prove beyond a reasonable doubt that one party knew at the time that their statement was false. It is also possible that one witness made mis-remembered or misinterpreted what they saw. They might say or write something else (under oath, or elsewhere) that establishes that they knew better. An example is US v. DeZarn, which clearly established that the defendant could not have believed the statement that he testified to. With no official record of what a party testified to, it may not possible to establish beyond a reasonable doubt that a party committed perjury, since it can be reasonable to doubt claims of what he actually testified to. The defendant's attorney may, however, have to create such a doubt. Some answers could be perjurous if the question and answer are short enough, for example "Did you cash the check?" "No", if witnesses to the hearing testify convincingly that this exchange took place. | Truth is a defense to defamation Bob must prove the truth of his statement if Rob sues - there is a reverse onus for this defense. Because this is a civil trial the burden is balance of probabilities. Provided Bob can prove Rob stole his bike he will win. A conviction for doing so is pretty good (but not necessarily conclusive) evidence. Absent that, Bob would need other evidence. Of course, if Bob has said that Rob was convicted of stealing the bike, he’s going to lose. | The phrase "reasonable doubt" was formed hundreds of years ago, and does not hold any mathematical or probabilistic meaning. It is for each individual juror to decide for themselves what constitutes "reasonable doubt", and whether the evidence presented to them has crossed that threshold. EDIT for extra clarity: As stated above, the definition of "reasonable doubt" is intentionally vague*, and left to be decided by each juror for themselves on a case by case basis; as such there is no single rule that can be applied to jurors (also note barring accepting a bribe, a juror cannot be legally sanctioned for their conduct as a juror, nor their vote, regardless of the evidence before them). So one juror might judge by P(A|B), another might judge by the defendant's appearance, another might judge by the majority of their peers (so that they can go to a ball game that evening, such as in the film 12 Angry Men), another might disagree with the law (see: jury nullification) and so vote not guilty on that basis, and another might bow to social pressure and convict despite overwhelming evidence that the defendant is not guilty (for example, at the end of To Kill A Mockingbird). A prosecutor cares about convincing the entire jury that the defendant is guilty(outside of Oregon and Louisiana, where only 10/12 vote is needed to convict, so the prosecutor only cares convincing 10 jurors). The defense only cares about convincing a single juror (or three in LA or OR), although more can be useful to prevent a mistrial. The defense (in theory) should not care whether or not the defendant is guilty. *The origin of reasonable doubt was in Britain, where certain jurors would refuse to convict, despite any evidence, due to religious prohibitions of "Judge not, less ye be judged". | No. Double jeopardy would not apply. You can't be prosecuted twice for committing the same (or a lesser included crime) arising from the same incident twice. If you commit a new crime you can be prosecuted for that new offense, even if you were acquitted of committing a similar offense at a different time and place in the past. | Can be tried as first-degree murder, actually. See below. felony murder doctrine n. a rule of criminal statutes that any death which occurs during the commission of a felony is first degree murder, and all participants in that felony or attempted felony can be charged with and found guilty of murder. A typical example is a robbery involving more than one criminal, in which one of them shoots, beats to death or runs over a store clerk, killing the clerk. Even if the death were accidental, all of the participants can be found guilty of felony murder, including those who did no harm, had no gun, and/or did not intend to hurt anyone. In a bizarre situation, if one of the holdup men or women is killed, his/her fellow robbers can be charged with murder. |
Sexting and age This question is about sexting (a person sending a sexually explicit image of themself to a recipient by electronic means). When can the recipient get in trouble with the law if the person sending the naked picture is less than 18 years of age (for example 16)? It’s my understanding that if a person randomly emails or texts a naked picture of herself then the recipient isn’t automatically a criminal just because they are in possession of child pornography. If someone requests a nude photo from someone who is beneath the age of 18, does the fact that they requested make it so that they can be charged with child pornography? What if the sender lied about her age? For example: say Jane and Joe are friends. Joe is 21. Jane has told Joe she is 19 but is actually 16. If Jane sends Joe naked pictures of herself through Facebook chat, could Joe get in trouble? Does it matter if Joe asked for them or not? Can Joe do anything to legally make amends? | 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. | Georgia Code § 40-5-24 says: Any resident of this state who is at least 15 years of age may apply to the department for an instruction permit to operate a noncommercial Class C vehicle. What is “age”? According to § 15-11-6, (a) Except as provided in subsection (b) of this Code section, a child attains a specified age the first second past midnight on the day of the anniversary of such child's birth. (b) A child born on February 29 attains a specified age on March 1 of any year that is not a leap year. So, you still have to wait until the 15th anniversary of your birth to apply for a permit. | I am not a lawyer either, though I have been through Pennsylvania a few times. The relevant law is 18 Pa.C.S. 5703, which prohibits recording without consent of all parties (Penna is a "two-party consent" state, like Florida and Washington). Unfortunately, violation of that law is a third degree felony, which has a maximum of 7 year prison. A specific instance of someone getting in trouble for recording their boss is Commonwealth v. Smith (Smith used a cell phone to record his boss, then argued that a cell phone isn't a "device"; the court determined that it is, and that was Feb 16 2016 so who knows the final outcome). An attorney in Pennsylvania might be able to tell you how often people actually serve time for violating the law. You should call one. | The Radiocommunications Agency (now OFCOM) issued some guidance about this in 2001. The specific offence is defined by s5 Wireless Telegraphy Act 1949: Any person who ... uses any wireless telegraphy apparatus with intent to obtain information as to the contents, sender or addressee of any message (whether sent by means of wireless telegraphy or not) of which neither the person using the apparatus nor a person on whose behalf he is acting is an intended recipient ... shall be guilty of an offence under this Act. It's also an offence under s5(1)(b)(ii) to disclose the contents of any such message, so the reception and disclosure of radio messages not sent by or addressed to you are both offences. I don't know if there have been any successful prosecutions specifically for monitoring aircraft communications. I doubt whether a hobbyist listening for his own enjoyment would attract the attention of the authorities, but if he started to publish recordings of the traffic then that might well do it. | We're missing a lot of facts that would help drive the analysis. The first question I'd ask was whether this was part of an actual or attempted sex offense. If that's the case, the suspect could be facing particularly serious charges. Other information is also missing, such as the drug involved, whether it's on the list of controlled substances, her knowledge of the drug, her relationship to the suspect, and so on. Still, based on the information we've got and the inferences we can make from them, I could reasonably see the following charges being filed: Sec. 12-3. Battery. (a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual Sec. 12-3.05. Aggravated battery. (g) Offense based on certain conduct. A person commits aggravated battery when, other than by discharge of a firearm, he or she does any of the following: (1) Violates Section 401 of the Illinois Controlled Substances Act by unlawfully delivering a controlled substance to another and any user experiences great bodily harm or permanent disability as a result of the injection, inhalation, or ingestion of any amount of the controlled substance. (2) Knowingly administers to an individual or causes him or her to take, without his or her consent or by threat or deception, and for other than medical purposes, any intoxicating, poisonous, stupefying, narcotic, anesthetic, or controlled substance, or gives to another person any food containing any substance or object intended to cause physical injury if eaten. Sec. 12-4.5. Tampering with food, drugs or cosmetics. (a) A person who knowingly puts any substance capable of causing death or great bodily harm to a human being into any food, drug or cosmetic offered for sale or consumption commits tampering with food, drugs or cosmetics. Sec. 12-5. Reckless conduct. (a) A person commits reckless conduct when he or she, by any means lawful or unlawful, recklessly performs an act or acts that: (1) cause bodily harm to or endanger the safety of another person; or (2) cause great bodily harm or permanent disability or disfigurement to another person. Sec. 21-1. Criminal damage to property. (a) A person commits criminal damage to property when he or she: (1) knowingly damages any property of another Sec. 11-1.20. Criminal sexual assault. (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and: (2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent; Sec. 11-1.30. Aggravated Criminal Sexual Assault. (a) A person commits aggravated criminal sexual assault if that person commits criminal sexual assault and any of the following aggravating circumstances exist during the commission of the offense or, for purposes of paragraph (7), occur as part of the same course of conduct as the commission of the offense: (2) the person causes bodily harm to the victim, except as provided in paragraph (10); (3) the person acts in a manner that threatens or endangers the life of the victim or any other person; (4) the person commits the criminal sexual assault during the course of committing or attempting to commit any other felony; (7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim without the victim's consent or by threat or deception for other than medical purposes; Sec. 11-1.50. Criminal sexual abuse. (a) A person commits criminal sexual abuse if that person: (2) commits an act of sexual conduct and knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. Sec. 11-1.60. Aggravated criminal sexual abuse. (a) A person commits aggravated criminal sexual abuse if that person commits criminal sexual abuse and any of the following aggravating circumstances exist (i) during the commission of the offense or (ii) for purposes of paragraph (7), as part of the same course of conduct as the commission of the offense: (2) the person causes bodily harm to the victim; (5) the person acts in a manner that threatens or endangers the life of the victim or any other person; (6) the person commits the criminal sexual abuse during the course of committing or attempting to commit any other felony; or (7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim for other than medical purposes without the victim's consent or by threat or deception. Sec. 9-1. First degree Murder (a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death: (2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) he is attempting or committing a forcible felony other than second degree murder. Sec. 9-3. Involuntary Manslaughter and Reckless Homicide. (a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly Sec. 9-3.3. Drug-induced homicide. (a) A person commits drug-induced homicide when he or she violates Section 401 of the Illinois Controlled Substances Act or Section 55 of the Methamphetamine Control and Community Protection Act by unlawfully delivering a controlled substance to another, and any person's death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance. Sec. 9-3.4. Concealment of homicidal death. (a) A person commits the offense of concealment of homicidal death when he or she knowingly conceals the death of any other person with knowledge that such other person has died by homicidal means. Sec. 9-3.5. Concealment of death. (b) A person commits the offense of concealment of death when he or she knowingly conceals the death of any other person who died by other than homicidal means. | This would be illegal in Australia (Criminal Code Act 1995 part 10.7: any unauthorised impairment of electronic communication to or from a computer), the US (Computer Fraud and Abuse Act) and any other jurisdiction that I can think of. There is no exception allowing vigilante action in case a person has a reasonable belief that the material on a website is offensive or illegal. In general, the law does not allow immunization against criminal prosecution in case the victim of an attack is himself a criminal. Only the government has the right to punish criminals. | The central legal question would be whether the minor has the capacity and authority to consent to a search: in the context of search law, the police would have to have a reasonable belief that both are the case. It is not reasonable to believe that an 8 year old can consent to a police search, that is, a child will most likely acquiesce to a request from the authorities to conduct a search. It is as reasonable to believe that a 16 year old can give actual consent as it is to believe that an 18 year old can consent. The law leaves the matter open for those under 18, to be determined by circumstances. The other consideration, applicable to younger children, is whether the child is authorized to open the house to outsiders. So in People v. Hoxter, 75 Cal. App. 4th 406, a 16 year old child invited police in, whereupon polices obtained plain sight evidence of drug offenses by the child's father. The court found that "sufficient discretion certainly exists" by that age. There are similar results in Saavedra v. State, 622 So. 2d 952 involving a 15 year old. In contrast, in Davis v. State, 422 S.E.2d 546, a 10 year old child who was home alone called the police to report drugs in the house. The search was invalidated because although the child's mother had given him permission to call for emergency assistance if he needed help, the child had no right, absent an emergency, to invite anyone into the house while he was alone there, much less into his parents' bedroom See also People v. Jacobs, 729 P.2d 757 involving an 11 year old, for extensive discussion of the question of "joint control" and authority to permit a search, citing US v. Matlock, 415 U.S. 164 there must be some objective evidence of joint control or access to the places or items to be searched which would indicate that the person authorizing the search has the authority to do so. The mutual use of the property must be such "that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched This article has a number of citations of relevant cases, which suggests a line for police searches somewhere around 13-14 years old. But also see Lenz v. Winburn, 51 F.3d 1540 for a permitted case of consent given by a 9 year old to a guardian ad litem: the court found a 4th Amendment issue and and concluded that the search was reasonable, holding that minors can give third party consent. Fourth Amendment rights, unlike rights attendant to due process, do not guarantee a fair and impartial determination of truth; rather, they protect the interest of the citizen "to be let alone". Thus, the subject of a Fourth Amendment-violative search need not be aware of her right to refuse to give knowing and voluntary consent. However, the circumstances surrounding the consent must demonstrate that it was voluntarily given, free of duress or coercion. | I very much suspect she is in right to 1) no receive promotion emails anymore, 2) Have them close the account again and 3) have them delete her pictures. No, she does not have those rights. She agreed to a legally binding contract when she signed up for the service when she clicked "OK" to open the account. That contract outlines her "rights," as you call them, and they can be very different from what you assume to be ethical and moral bounds to a business relationship. What you imagine to be fair business practices could be generally regarded as fair and normal consumer relations; but that's not necessarily what may be in the contract. What she agreed to in the Terms of Service (TOS) could be some form of long term licensing of her photos to the service, and that could be why they won't delete the photos and why she can't delete them in bulk. The TOS states the terms of the promo emails she agreed to receive. Read the TOS; everything will be outlined. The company is in no way obligated to make life easy for her or change the contract to appeal to her; she agreed to everything, including downloading all her photos. If she didn't read the TOS and feels they copied all her photos "without her knowing", that's her fault. It's possible that the company is breaking consumer protection laws with some of their practices, but you'll need to read Canada consumer laws and see if they require ease of use, permanent op-out of emails, etc. I doubt the company would be flagrantly violating consumer law. |
Stochastic legal liability I am trying to understand how do legal systems handle situation where there is no clear causal responsibility of a person, but a well established stochastic relation. I am aware of the "beyond reasonable doubt" standard in some legal systems but I'd welcome any more information of text to continue research. For an example, let us assume that it's proven that certain chemical compound can induce a specific disease - some type of cancer, for an example. It is also well established that exposure to that chemical is not sole cause of this type of cancer, so there is incidence in a healthy population. So, let say that incidence doubles and it is found that a factory upstream of affected population has been dumping this chemical into water source. Person that has this disease sues the factory. There is no scientific way to prove that the person wouldn't get it without exposure, but it can be proven that this is probable (50%) and that the person was exposed. How would such situation be viewed in continental or common law? | As an academic matter, the US system has struggled with this, and law professors spend their lives debating it. As a realistic matter, I'd bet that company in your example gets nailed. On the theory, the issue here is but-for cause. Civil liability requires that the jury find it more likely than not, or over 50% likely, that but-for D's actions, P's injuries would not have occurred. Your hypo puts it at exactly 50, and tie goes to the defendant, so in this case even the theory is clear. But, say you change it a little bit to make it more like 65 or 70%. Now, you're getting into the territory of the classic blue bus case. A man is hit by a blue bus. Two companies in town own blue busses, and one company owns 90% of them. Can he recover against that company with no other evidence? The black letter answer is no, that naked statistical evidence doesn't cut it. The rationale is that if it were the other way, anytime someone got hit by a blue bus, that company would automatically have to pay out unless they had some evidence to disprove their liability. The burden of proof has been shifted, violating a fundamental tenet of our legal system. But, this doctrine obviously poses an issue for plaintiffs like yours. It's one thing to say that someone hit by a bus needs to have more evidence. Theoretically, they could go out and get it: they could find the bus routes and schedules, examine where they were, and show that X company had a bus going by there at that time. They can also canvas for witnesses. It's much harder when, as your excellent hypo touches on, the science is so complicated. One controversial solution that has been debated a lot recently is market-share liability, but that doesn't seem pertinent here because you have mentioned another company. On the legal realist side. As far as I can tell the system usually finds a way to hold the company responsible. One example is the tobacco litigation. My understanding is the science couldn't definitively prove that smoking caused cancer, but it could prove that it raised the risk significantly. Here's some information on that https://www.tortmuseum.org/the-tobacco-cases/ from the American Museum of Tort Law, which, yes, is a real thing. | In the US, it depends on the jurisdiction because each state has its own homicide statutes: but, the defining elements don't differ a lot. Drawing on Washington state law, the first question is whether you intended to kill a person (it doesn't have to be a specific person). If you did, you have committed first-degree murder. It is first-degree murder, because it requires a certain amount of advance planning to kill with a drone. It does not matter that the drone houses the gun that killed the person and a program determines when the gun fires (the "it was the drone, not me" defense gets you nowhere: otherwise, you could always claim "It wasn't me, it was my gun / knife / fist".) If instead this is a badly-designed pig-slaughtering drone, then it could be manslaughter in the first degree, if the act was reckless, or manslaughter in the second degree, if the act was with criminal negligence. To determine which it is, you look at the definitions: A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation. versus A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation. So it would depend on whether you decided that safeguards which would prevent shooting people were too much bother (you know there is a risk and set aside that concern), or it didn't occur to you that a flying gun might hurt a person. | There are both statutes and customs aimed at preventing "Malicious Prosecution" and "Abuse of Process." (In Pennsylvania, for example, the 1980 Dragonetti Act allows the victim of a frivolous lawsuit to counter-sue for compensatory damages.) One can also buy insurance against this type of risk: Umbrella liability policies will generally provide a defense against civil lawsuits and any damages awarded, as will many business insurance policies. Of course, none of this is to say that a skilled legal team can't avoid all of these countermeasures and, in practice, take up a significant amount of your time and trouble. We do not have a perfect system of justice. | Not necessarily. Let's say the victim delivered photos of a harm that were alleged to be done by the defendant. That's a crime in itself. But based on this item the DA orders investigation and finds evidence of a real crime. Discovering that the photo was faked can lead to dismissal (with prejudice), but even without the fake photo, there might be a strong case against defendant. Also, the photo could not even be used as evidence in the actual trial stage. A good defense attorney might manage to convince the judge, that the doctored photo should have been discovered such early in the investigation, but I doubt, that one could manage to make everything else in a proper investigation fruit of the poisoned tree unless police screwed up. | They have the same standard of proof but different onus The legal system places the onus of proving an allegation on the person making the allegation. For your example, this is A if they are suing B or the government prosecutor if B is being prosecuted. The standard of proof is “beyond reasonable doubt” if B is defending a criminal prosecution and “balance of probabilities” if B is defending a civil prosecution or a lawsuit. Courts have historically been reluctant to define these terms further because doing so can lay grounds for an appeal if the judge oversteps so they mean what their plain English formulation means and what they mean precisely in any given case is one of the things the trier of fact has to decide. For A or the prosecutor to win, they have to meet this burden for each and every element of the offence or cause of action; if they don’t, then B wins. So, B doesn’t have to offer a defence at all and will still win if A doesn’t meet their burden. If B does offer a defence then the trier of fact compares the evidence of each side and decides which they prefer and therefore whether A has met their burden. A jury doesn’t have to give reasons for their decision; a judge does. In general, the decisions of the trier of fact are not appealable unless there was no reasonable basis in evidence to support the decision. For example, the evidence of B might not be believed - this is fine, unless the reason for not believing it is that B has a beard and everyone with beards are liars. Options 2 and 3 are simple matters of comparing evidence and deciding which is preferred. Option 1 is different; it is what’s called an affirmative defence. Here, A has met their burden because B conceded. Now B is relying on the position that they had a legal excuse, that is B is alleging a position and B has the burden of proving it. Now, the burden on B is always “balance of probabilities” because B is not alleging that anyone committed a crime so they don’t have to reach the criminal standard. | 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). | What you are describing seems to raise the defense of necessity. I cannot pinpoint the line for you or tell you whether any particular action would lie on one side or the other, but I can describe the test. In Maryland, there are "five elements necessary to consider before applying the defense of necessity" (Marquardt v. State, 164 Md. App. 95, 135-36 (2005), citing Sigma Reproductive Health Center v. State, 297 Md. 660, 677-79 (1983)): The harm avoided — this need not be physical harm but also may be harm to property as, for instance, where a firefighter destroys some property to prevent the spread of fire which threatens to consume other property of greater value. The harm done — this is not limited to any particular type of harm but includes intentional homicide as well as intentional battery or property damage. An illustration is supplied: `[A]s where A, driving a car, suddenly finds himself in a predicament where he must either run down B or hit C's house and he reasonably chooses the latter, unfortunately killing two people in the house who by bad luck happened to be just at that place inside the house where A's car struck — it is the harm-reasonably-expected, rather than the harm-actually-caused, which governs.' Intention to avoid harm — to have the defense of necessity, the defendant must have acted with the intention of avoiding the greater harm. Actual necessity, without the intention, is not enough. However, an honest and reasonable belief in the necessity of his action is all that is required. The relative value of the harm avoided and the harm done. The defendant's belief as to the relative harmfulness of the harm avoided and the harm done does not control. It is for the court, not the defendant, to weigh the relative harmfulness of the two alternatives. To allow the defense the court must conclude that the harm done by the defendant in choosing the one alternative was less than the harm which would have been done if he had chosen the other. Optional courses of action; imminence of disaster. The defense of necessity applies when the defendant is faced with this choice of two evils: he may either do something which violates the literal terms of the criminal law and thus produce some harm, or not do it and so produce a greater harm. If, however, there is open to him a third alternative, which will cause less harm than will be caused by violating the law, he is not justified in violating the law. For example, "[a] prisoner subjected to inhuman treatment by his jailors is not justified in breaking prison if he can bring about an improvement in conditions by other means." Marquardt at 137: in order for the defense of necessity to have been warranted in this case, appellant must have presented "some evidence" that there was a choice between two evils, that no legal alternatives existed, that the harm appellant caused was not disproportionate to the harm avoided, and that the emergency was imminent. | 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). |
As a French citizen owning an Estonian company, can I be sued for that company activity by another French company under French law? Within the following situation: I have the French nationality. I have an Estonian company, created as part of the e-Residency program. This company purpose is doing "web scraping", collecting public data from a French website and selling that data. (Note that this is an example and slightly inaccurate, please don't focus on the legality of scraping in France and Estonia) Web scraping is supposedly legal in Estonia Am I at risk of being sued by the French company under French law ? Or would Estonian law apply here ? | An Estonian company can be sued under French law for violating French law in France, and so can its officers, no matter what their nationality or where they reside. So yes, you could be sued in France as an officer of the company. If you have assets in France, a French judgment against you will be easier to enforce than one against someone who has no assets in France. This is, similarly, not about nationality but about the location of your assets. A suit could also be pursued in Estonia. If the activities in Estonia are contrary to Estonian law then you could also be sued in Estonia as an officer of the company. We frequently have questions about "which law applies" for cases that span multiple jurisdictions. The general answer is that all law applies. An activity in multiple jurisdictions must comply with the law in every one of them. If you are doing something that is prohibited (or even that possibly might be prohibited) in either Estonian law or French law, you should take professional legal advice. Unless you can find a lawyer who is qualified in both countries, you will need two lawyers. | could this mean my employer owns the idea and anything I develop --since I would use the same technology for my idea that I do at work? No, unless by "technology" you mean the employer's materials or resources (see condition 3 of the clause). Your remark that "this is completely and utterly unrelated to [employer's] business model" survives items 1 and 2. Likewise, working on your idea outside hours survives the corresponding part of item 3. Would this also mean that any open-source software I develop outside of work automatically belongs to my employer? No, unless the software you develop is "based on [your] knowledge [etc.] of (COMPANY)". | The specific case depends on whether the foreign brand has protected their name in your country (you have very little chance), or whether the foreign brand is already well-known in your country (you might be up for a major fight and lose). There is the possibility that the foreign brand might grow and wants to expand into your country, in which case you might get involved in a fight with them, no matter who is legally right. For an example how that can end, visit www.nissan.com . It may not be a risk you want to take. | The Adelsaufhebungsgesetz removed “von” and other nobility-related honorifics from names, and made it illegal for Austrian citizens to use such honorifics as part of their own name. It is not illegal for other people to use such nobility indicators, even when addressing no-longer-noble Austrian citizens. Thus, it is not illegal for the English Wikipedia to use this name. Wikipedia also notes the full name without the “von” in the sidebar, although the intro text is arguably misleading. But from a Wikipedia editorial perspective, it would matter by which name he is generally known, even if it isn't the legal name. | The main problem is that there is no court with authority to hear this case outside of China. It may be futile to sue in US courts, since China will not enforce US judgments. You can sue a Chinese company in Chinese court, under their Civil Procedure Law, but this pertains to contract breach. The question is whether there is any law under which the government of China can be sued for negligence – it is unlikely that that is possible (perhaps there is an expert in Chinese law here who can address that issue). This lawsuit is filed in US courts. It is based on the Foreign Sovereign Immunities Act. Supposing that this lawsuit is successful in US courts, then the question is what enforcement actions are possible. Since the defendants are various governments and government agencies in China, execution of the judgment would have to be against those defendants – you can't seize the assets of every person with some connection to China. But given the nature of the Chinese government, it is possible that US courts could find that the assets of Chinese companies are effectively government assets. The short answer is, in fact a lawsuit has been filed, and I expect more. I also don't expect them to succeed in the long run. | Art. 15(4) GDPR says: (4) The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others. If I was the controller in this situation, and I believed that this would endanger the students that have criticised the professor, I would base my argument for not complying on this. In addition, Art. 85 GDPR requires member states to: [...] reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information [...] So you may be able to argue that the students posting messages are engaging in "processing for journalistic purposes and the purposes of academic, artistic or literary expression", depending on the laws of the particular member state. (edit: this could be difficult since you mention it is a private database). The second case seems just like the first in terms of GDPR, but may constitute defamation. Defamation (or libel) laws differ wildly in each country; he Wikipedia article on Defamation explains the situation in each member state in more detail. In the third case: if the professor submits a request based on the rights of a data subject other than himself, they don't need to comply. These requests need to come from the data subjects themselves, not just a random person assuming authority. (although I suppose it's possible for them to give power of attorney to the department head if they wanted to) Personal data and the rights that GDPR provides to data subjects always relate to a natural person, not an institution or a company. | Yes, depending on the local registration laws of the country in question, when you have a residence in that country. You can also be a resident of multiple countries under the same conditions. You can also be considered a non- resident citizen of your own country. In the European Union, Residence Laws are national laws only for periods up to 3 months are there generel EU Laws So to answer the question under what conditions is someone from Belgium, France or Italy considered a resident, you must look at the countries residence laws (if they have one at all). Note: This has nothing to do with residence permits. A resident permit only allows a foreigner to stay in a country. A foreigner must still fulfill the local Residence Laws, where they exist, as a citizen of that country must also do. Belgium: Moving to Belgium | Belgium.be Belgians who are returning home If you were registered at an embassy or consulate, and are now definitively returning to Belgium, it is in your interests to notify them before you leave. In principle, you should report to your new municipality within eight working days of your arrival in Belgium. After confirming your main place of residence you are recorded in the national register. Your new municipality will notify the municipality where you had your main residence before you moved abroad. If this municipality still holds your administrative records, they will forward them to your new municipality. As soon as you have been registered the procedure starts for issuing a new identity card. Foreign nationals The free movement of persons applies within the European Union, making the residence rules for EU citizens much more flexible than those for the citizens of other countries. "Free movement" also applies to countries in the European Economic Area (EEA): in addition to the EU states, these are Norway, Iceland and Lichtenstein. However, there are transitional rules for certain new EU Member States. Registering with the municipal authorities If as a foreign national you wish to stay in Belgium for longer than three months, you must report to the municipality in which you are staying within eight days of your arrival. You must be registered on the National Register; and for that you must have an actual place of residence in this municipality. both Belgians and Foreigners share the common procedure of registering with the municipal authorities France: France residence Wikipedia France utilizes a national identity card (carte nationale d’identité sécurisée or CNIS), an official non-compulsory identity document. The address information on the card is merely derived from other documents like electricity bills. There is no requirement to notify change of address, which leads to the situation that the current address is often verified by showing bills relating to the current home.[citation needed] Registering your residence abroad - France If you are an EU citizen, you don't need to register after 3 months in France. All EU citizens have the right to live and settle in France However, you can get a residence permit if you wish. Registration at their place of residence is voluntary (3rd Country) Foriegners Arrival in France | France-Visas.gouv.fr What you need to do in France Long-stay visa with the obligation to apply for a residence permit If the visa issued to you is a long-stay visa indicating an obligation to apply for a residence permit, you must complete this process within two months of arrival and contact the prefecture of your place of residence. Registration at their place of residence is mandatory Italy: The Immigration Portal (Translated to English) EU citizens who intend to settle in Italy, or in another European Union state, no longer have the obligation to request a residence card but, after three months of entry, it is necessary to register in the registry office of the municipality of residence ; no formalities are required for stays of less than three months. Italy - Residence of individuals An individual who moves to Italy must apply for registration with the Record of the Italian Resident Population in the municipality (comune) where they intend to reside. At the end of the stay in Italy, the individual is required to apply for the cancellation of their name from the Record of the Resident Population. While registered, you are considered to be a tax resident. An Italian citizen who transfers to a foreign country has to cancel oneself with the Records of the Italian Resident Population and has to register with the Records of the Italian resident abroad, the Anagrafe Italiani Residenti Estero (AIRE). Note: The first paragraph is for all persons, where as the second is specific to Italian citizens Italian citizens who fail to register with AIRE while abroad, often face huge tax bills when returning. Conclusions: The conditions can differ radically between countries, depending on the local resident laws (where they exist). In Belgium you are considerd a resident while registered in National Register In France you are considerd a resident when registered at the local prefecture, which is only mandatory for 3rd Country Foriegners In Italy you are considerd a resident while registered at the local Record of the Italian Resident Population in the municipality (comune) Assumptions should never be made, since the non compliance of local residence laws can have consequences. Resident registration - Wikipedia Africa Americas Europe Belgium France Germany Italy Russian Federation United Kingdom Asia and Oceania | The store is, as far as i can see, not using the trademarked image to sell their cake. Your family does not intend to sell anything at all. This photo, from the description, could not reasonably be confused with an official image from the trademark holder. (all of this is based on your description, of course). Therefore, the trademark holder probably won't sue for trademark infringement, even if they somehow heard of this event, and if they did sue, they would quite likely lose. You would be making a copy of a presumably copyrighted image. You might have an active defense, but that is very hard to be sure of in advance. (Note that "fair use" is a very specifically US legal concept, and would not apply in the UK. The roughly comparable concept is "fair dealing" but that is more restrictive, and follows somewhat different rules.) In any case, it is possible that the rights holder would sue, and if the situation were a bit different (the was only one person pictured, making the shirt with the protected image very prominent, for example) there might be a larger chance of such a suit being successful. No business is going to want a bakery department manager deciding whether a particular use of a particular image does or does not infringe IP rights, and whether it does or does not expose the business to significant risk. Just to get an opinion from their lawyer on whether this image infringes would probably cost them several times the price of the cake with image printing. The store has no doubt written its guidelines to err well on the side of caution, because one suit, even if they won, would cost far more than the profits of many cakes, and if they lost, could have a very negative effect on their bottom line indeed. The store is entitled to restrict what business it does to keep itself safe from lawsuits. It is going to keep well on the cautious side, in all likelihood, and so it should. I fear you will have to find a store with a different policy, or use a different picture. |
Can a terms of service include clause indicating payment required for service Is is possible that a website or piece of software to have a clause in their terms of service saying that by using the service you are agreeing to pay a listed fee for the use of the service and then later invoice for using the service? | In general, yes, though there may be a jurisdiction-specific limit. The basic principle is that the website owner offers something of value in exchange for something else of value: Netflix offers content in exchange for money. What is crucial is that the user must have agreed to make a payment, and the website owner has the obligation to establish that the user agreed. Otherwise, there is no contract and no obligation to pay. There is no legal requirement that a person pay in advance, though it is quite traditional. If you have an obscure file called "legal" with some promise-to-pay term buried in it, the probability is low that the simple existence of such a file would be taken by the court to constitute acceptance of an offer. | Yes. A license is a legal form of permission to do something (usually, to use a particular property, whether real or digital or intellectual) and the conditions applied to that use. Different licenses for the same property are extremely common, for example, a free license for hobby or non-profit work and a paid license for commercial usage. Other conditions can include the requirement to make the derivative work also available in some manner or to disallow restrictive conditions should the derivative work be licensed itself, even up to requiring the exact same license be applied to all works. Wording the license exactly so that it achieves the goals you intend is the work of a qualified and registered lawyer, and obtaining their services is definitely recommended for this task. | The fact that the terms and conditions do not mention the word "disable" is significant, but not in the way you seem to think. You state: "...the merchant's T&C which does not explicitly allow the merchant to charge a fee for a disabled account". However, this doesn't mean that the merchant needs to explicitly state that they may. What it actually means is that the merchant does not recognize the term "disable" in the context of terminating the service contract. (Did they use stop, terminate, delete, eliminate, fall into disuse, log off, etc. or any other similar expressions?) You haven't defined what "disable" means, but perhaps it is more like a "pause" in service for which payment is still required? (Like having the post office hold your mail vs terminating all deliveries.) What you need to do is to read the section of the T&Cs that deals with terminating service and payment, understand what is required, and execute the procedures they describe. Whatever words they use, do that. If you have done all the steps and can prove it then you have a case against them, otherwise you are arguing semantics and interpretation... As to the title question, it does not appear that any "law" has been broken, this is just a contractual misunderstanding. P.S. This is the reason why I always set up payments through my bank to "push" money to vendors rather than authorizing them to "pull" money from me. When I am done I notify them and stop paying. I don't need to ask them to please stop taking it from me. | When a platform has the right to kick you out as they deem fit, without any evidence why they did it, does that change if you have a paid? It depends on the purpose of payment and the terms & conditions it triggers. Your description reflects that payment entitles the user to have no ads "and stuff" (?). Payment does not necessarily entitle the user to continued access, diligence from customer service, or other features. Without fully knowing the platform's terms & conditions regarding payment it is impossible to identify what obligations (other than not displaying advertisements) your payment creates on the platform. The information you provide here is insufficient for assessing whether you have a viable claim such as fraud or breach of contract. On the other hand, the platform's apparent arbitrariness and lack of response might support a finding of unfair or deceptive practices if the platform does not honor or proportionally reimburse your payment. Many jurisdictions have legislation prohibiting practices which are unfair, deceptive, or unconscionable (example: MCL 445.903). Oftentimes statutory law establishes an agency in charge of addressing customers' complaints. | Possibly In most contracts, the parties sign in their capacity as people (or agents for other people). However, some contracts are signed in the capacity as the owner of a piece of land and the contract transfers with the land. The liability rests with the current owner and, if unpaid, creates a lien over the property. These are particularly common in contracts with utilities or where the contract involves the a structure on the land. Surprise, surprise, the situation you describe involves both. You need to refer back to your contract for the land as these types of contracts are usually disclosed (unless they are a function of local law because everyone just knows - I don't know anything about Pa. law on this) and the original contract with the gas company. Your settlement may have also involved you paying a figure to purchase the gas in the tank as at the date of settlement. For example, in new-south-wales, council rates and water rates attach to the land as a matter of law and the vendor pays the purchaser for any amount they have paid in advance (or vice-versa if they are in arrears). Electricity and piped gas don't; the vendor ends their account on or before settlement and the buyer opens a new account on or after settlement and each pays for their own use. Propane for portable bottles doesn't but for fixed installations does as a matter of contract with the gas company. | TL; DR: It is possible you might have a binding, enforceable contract. It depends on the facts. A trial court will determine the facts unless there is a settlement. Hire an attorney. 1. Contracts require certain elements in order to be enforceable. This website defines the elements of a contract to include the following: The requisite elements that must be established to demonstrate the formation of a legally binding contract are (1) offer; (2) acceptance; (3) consideration; (4) mutuality of obligation; (5) competency and capacity; and, in certain circumstances, (6) a written instrument. 2. Emails are not the contract. They are evidence of a contract. The emails themselves would not necessarily constitute a contract. However, they could be offered as evidence to prove there was a contract and what the terms were — thereby establishing a rebuttable presumption of a contract. In order to win a rebuttal, the litigating party would need to establish by a preponderance of evidence that one or more of the elements of a contract did not exist. 3. Contracts do not need to be written to be enforceable. Contracts do not always need to be written (or signed) in order to be enforceable. Oral contracts are just as enforceable in many cases as written agreements. The classic exception to this rule is that many (if not all) states require contracts to transfer real estate be written, not oral agreements. 4. Courts consider the behavior of the parties as evidence of a contract. Another category of evidence courts consider when deciding contract cases is the behavior of the parties. There is a legal theory called estoppel which Google defines as: ...the principle that precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination. | You cannot do this through any established public license that I know of, but you could write your own. The model would be any educational use or non-commercial use license, such as CC NC licenses. The main challenge is defining the excluded classes of usage. That is why you should engage an attorney to draft this for you. I don't think there is any point in adding a $5M penalty clause. You offer a separate paid license for individuals who do not want to comply with the particular terms of your license, and set the fee to whatever you want. Saying that you're gonna fine violators is a bad idea because penalty clauses are illegal. Instead, the standard approach is a liquidated damages clause, where you state what a reasonable estimate of your damages would be. In the case of software that is available for purchase, illegal copying of the software obviously results at least in the cost of the software qua lost revenue as damages. Plus shipping and handling. | They certainly can make that a license term and revoke the license if you do not comply. However, revoking the license is all they can do to "forbid". Or they could sue you for damages without revoking the license. That said, you are free to consult how to use their software so long as you do not hold a license so that you are not bound by the terms AND you do not break the law e.g. copyright. How to do it is up to you to figure. Maybe you could simply consult users that do have a license — on their premises and devices. |
is it illegal to publish videos or photos of someone without their consent? It it lawful for someone to publish on social media an audio-video clip of a private conversation without the other party's consent? Does the fact that the clip is accompanied by "nasty" comments make a difference? Similarly, is it lawful to post images showing the inside of a person's private bedroom and/or home? | If you recorded the clip, you have copyright on it, and distributing it (which includes posting it) without your consent is copyright infringement. However that is not a crime. You could sue, but that would be expensive and not quick. You could, if this is in the US, send a DMCA takedown notice. That this clip was recorded in your apartment or other dwelling would only matter if an invasion of privacy claim would apply. That depends on which US state is involved. In most states if it is available at all it applies only if the content would be "highly offensive to a reasonable person". Also, that is again a civil suit, not a crime. | According to the ACLU, in the U.S.: Taking photographs and video of things that are plainly visible in public spaces is a constitutional right—and that includes police and other government officials carrying out their duties. I.e., a law enforcement officer can never lawfully demand that you turn off a recording device. However the ACLU itself acknowledges that this right continues to be broadly infringed by government agencies and agents. The ACLU and other watchdog groups try to document and fight infringements of this right. Infringement is still so widespread that, in practice, there are many areas and circumstances in which you could expect to be detained, harassed, arrested, and even charged with various crimes for recording police, or for refusing police demands to stop recording. (The charges will not be for recording police, since that is not a crime, but will typically be "contempt of cop" type charges like obstruction, failure to obey, assault, resisting arrest, etc.) | Yes, but it’s not in the Criminal Code It’s in the SURVEILLANCE DEVICES ACT 1998. s6 prohibits using an optical surveillance device to record (or observe if the person is not a party) “private activity” without consent. The penalty is a $5,000 fine or imprisonment for 12 months or both. | Copyright almost certainly exists in the images, since presumably someone took those pictures and so they would own the copyright of those images. However, that doesn't mean you don't own the film, you just that don't own the copyright. You can have it developed to see what's there without copying the images. Just tell the developer you only want the film developed and for no prints to be made. If there's child pornography you could end up in a lot of hot water. While you'd be innocent of any crime, if the developer reports the images to the police you'll have to convince them that you had no idea what was on the film. It's extremely unlikely that there's anything untoward on the film however. I'd note however that unless the film is only a couple years old then it's likely the pictures have faded significantly. If it's ten or more years old, there might not be anything recognizable. | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. | Can he name a particalur one, like Linkin Park? Or that would be considered non-allowed type of advertising? Generally speaking, that does not constitute unlawful advertising. Public figures are allowed to broadcast their preferences on issues that are more sensitive than topics of music. There might be few, rare exceptions where something like this would be outlawed, but most likely that has to do with a regime's censorship of specific bands or music styles rather than with a general prohibition. | What a lovely question! US Copyright law is clear: the author of a creative work owns the copyright unless it is work for hire. In this instance, the photographer is not doing work for hire so they own the copyright. However, the photographer does not own a copy of the photograph – that is owned by the owner of the camera. The photographer cannot demand that they give him a copy but the parties can agree on such a transfer on whatever terms they like. As the owner of a “physical” copy they can do what they like with that copy but they cannot duplicate it except as fair use or as licensed. They could sell the memory card to whomever they like but the new owner couldn’t copy it either so it would seriously limit publication. Similarly they could move the file provided there was only one copy. Arguably, they could make a print of it providing they deleted the electronic version without copyright violation. Which brings us to who owns the copyright now. The camera owner can argue that the photographer has gifted the copyright to them. This is quite a strong argument as the parties' intentions at the time of arranging the taking of the photograph is that the photographer would have no further interest in it – after all he probably doesn’t want to hang a photo of some strangers on his wall. However, in many jurisdictions, including the united-states, copyright transfers must be in writing. As a fallback position the camera owner can argue there is an implicit license given even if copyright was not transferred. The scope of the license then becomes an issue. It is probably indisputable that the license is perpetual and royalty free. What is arguable is if the license allows commercial exploitation or only personal use. This is where the battle lines would be drawn and I don’t know how it would play out. Other jurisdictions are different For example, in Australia, copyright in a photo commissioned “for valuable consideration” for a “private or domestic purpose” vests in the commissioning party, not the photographer; even though this is not work for hire by an employee. For the circumstances you describe, the purpose is “private or domestic” but there is no “valuable consideration” so the photographer owns the copyright in this case. However, if there was an agreement to “pay” the photographer (even one as simple as “I’ll take your family photo if you’ll take mine”) then the person who asked for the photo to be taken owns the copyright. | Like many other jurisdictions, in the UK sites like the Daily Mail are liable for the content they host. In other words, the legal issue here is they either do not have the staff available to (or simply do not want to) spend the time moderating the comment sections in order to remove potentially defamatory or otherwise illegal content. As Lag added in a comment below: another legal reason may be liability for publishing something that creates a substantial risk of seriously impeding or prejudicing the course of justice in some ongoing legal proceeding. Far easier to prevent it beforehand than moderate it (and risk missing it) later. Content on Twitter (for example, replies to their own tweets), on the other hand, is not the Daily Mail's problem to moderate. |
Does the government have to accept cash for taxes? If a government entity assesses a tax, does that entity have to accept cash and/or coins, or can they refuse such payments and demand check or card? Assume that it is perfectly normal to pay this tax in person at a government office. Consider, for instance, property taxes, car tag renewals, income taxes, maybe even licenses and permits. Does it matter whether the government entity is local, state or federal? Are there limitations (reasonableness, exact change, etc.) or must they accept cash payments without limitation? I'm aware private businesses do not have to accept cash, but people also don't have to shop there. If you own a house, drive a car, or work for a living, you can't just take your business elsewhere.* Assuming moving away and renouncing citizenship are not on the table. | According to this Treasury Department web page refers the asker to the : ... Coinage Act of 1965, specifically Section 31 U.S.C. 5103, entitled "Legal tender," which states: "United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues." I take this to mean that taxing authorities must accept cash in payment of taxes. it doesn't say anything about use of coins, say pennies, to pay large tax bills. I had heard that coins were legal tender only up to a limiting amount, but could not find any citation for this. Then I found this Snopes page which says that pennies and nickels were legal tender only up to 25 cents under the Coinage Acts of 1873 and 1879 but the Coinage Act of 1965 (31 U.S.C. 5103) removed this limit, and made all circulating US coins legal tender for any amount. I have not found any source that seems to me reliable that contradicts this. | We don't know the circumstances. It could be that his business didn't owe any taxes, or that he did clever things to avoid having to pay taxes (legal tax avoidance), or that he did illegal things to avoid having to pay taxes (illegal tax evasion). In the UK, it is possible to run a company completely legal without having to pay taxes: You must make no profits to avoid paying corporation tax. You must keep your revenue below £83,000 a year to avoid paying VAT, alternatively only sell things that have 0% VAT tax (I think children's clothing fit that category), You must pay employees less than £11,500 a year each to avoid having to pay income tax on their behalf, and you must pay yourself less than about £8,000 a year to avoid paying tax and national insurance. (The company could pay you dividends to increase the money up to £16,500 tax free, but it can't really pay dividends to yourself without making profits). | You're not directly asking this, but I'm assuming what you're getting at is when do I owe the taxes upon receiving that pre-payment. This depends on your corporate structure as to how you can realize taxes. If you are DBA, LLC, or S-Corp you pay taxes based on your personal income at the end of the year as all earnings go to the owners because the business can't hold onto those. So if you receive those funds in Dec (assuming Dec is the end of your fiscal year), and you haven't delivered your service it doesn't matter you pay on the pre-payment funds which will really hurt you if you have to spend some of that pre-payment to deliver the service. If you are a C-Corp you can defer those taxes until you deliver the service as you can mark that revenue for the next year and several years as you deliver the service. What matters is how you declare your C-Corp's accounting practices for reporting your revenue to the IRS. What you want to do is be an accrual model. That will let you pay for things like salaries, COGS, etc before you know how much you made, and only pay taxes on the earnings at the tax rate of the corporation. Of course if you do this you would do this only if you want to keep that money in the corp to conduct business. You wouldn't want to pay corporate tax then pay personal income tax if you're the owner. So you'd want to pay out any earnings to yourself as a distribution (ie to all owners) or bonus (to individuals) to avoid the double taxation. Keep in mind I'm not an accountant, tax lawyer, but a guy who has been through exactly what you're asking. Consult professionals as needed because you'll be up your eye balls in contracts to build such a business and you'll need their help anyway. | It is common place for major official actions, not just checks but also, for example, governmental buildings, to note the politicians who implemented law or enacted them at the time. This practice is not forbidden by any law or election-related regulation. There is a strong political norm as a matter of political etiquette that checks from the government be signed by a senior official in the Treasury department or a state and local equivalent, such as the Secretary of Treasury, the Comptroller of the Currency, or the Director of the Internal Revenue Service, rather than the President, Governor, or Mayor. But no one would have legal standing to challenge a violation of this political norm in court, because a person receiving a check naming the President as the signer has not suffered an actual injury. | No, the only purpose of a money order is that it's effectively a form of guaranteed cash that only one person can access. There are no additional protections offered by it. However, given that you are amenable to paying a little extra to facilitate your payments, you may want to consider using a credit card in the future. Provided it's not an all the time thing, credit cards will withhold payments on your behalf if a vendor fails to fulfill their obligations. This means that you're not liable for the cost of the merchant sending you the wrong thing or ignoring your order requests. I've personally done this for several things: Hotel reservation that was borderline unsuitable for human habitation. When a vendor failed to send something I'd purchased. When proceeding with this, bear in mind that the credit card company will want you to make such a claim as soon as possible and to provide as much information as possible to support your claim. If you've e-mail chains, save them. If you've been communicating by phone, write down and provide a summary of your communications. If you have an issue, don't wait a month to raise the concern, do it within a week. Probably about once a year I need to do something like this. Generally what this does is it starts a dispute process whereby the credit company will contact the vendor to get their side of the story (usually they don't respond to them either). After 60 days, the charge is dropped from your bill and presumably the credit card company refuses to pay for the disputed item. Ultimately, this gets you the best possible result. You get your money back and you didn't have to go to court to do it. | Are there any restrictions on the taxes or duties a U.S. state can levy? Yes. For starters, states may not use taxes or other means to impede the federal government in its constitutional exercises of power. This precedent stems from a case called McCulloch v. Maryland from 1819. In 1816, Congress established the Second Bank of the United States. Many states were not fans of this action. One of them, Maryland, established a tax on all notes of banks not chartered in Maryland. When the head of the Baltimore branch of the bank refused to pay the tax, litigation commenced and it was eventually appealed to the Supreme Court. SCOTUS held that the Constitution grants implied powers to Congress that allow Congress to implement a national government using its express powers and state action may not interfere with such exercise of power. Taxation, of course, is just one way a state may attempt to interfere with federal power. Can states impose duties on goods that merely transit their territory? Generally no. The Commerce Clause bars states from implementing taxes that discriminate against interstate commerce or that put burdens on it by subjecting commercial activities to numerous or unfair taxation. The Due Process Clause complements this concept by requiring there be a definitive link between a state and the person, property, or transaction which it seeks to tax. This goes back to the SCOTUS decision in Southern Pacific Co. v. Arizona where the state enacted a law barring trains from operating in the state with more than 14 or 70 passenger or freight cars, respectively. The Court held that this was a substantial burden on interstate commerce because trains would need to be broken up before they passed through AZ. Also, you couldn't just stop on the tracks and "break up" the trains, so that had to be done at a stop before getting to AZ. The court determined that with this law, AZ effectively controlled the length of trains as far from its borders as El Paso and Los Angeles. The alternative was to operate all trains at the lowest level allowable by any state, which would lead to AZ dictating train lengths around the country. In determining the validity of the law or regulation, a court uses a balancing test to compare the burden on interstate commerce with the importance of the state interest (the AZ law was purportedly for safety reasons). | 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. | 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. |
Could asking feedback from competing app's users be considered as unfair competition that could result in legal consequences? I developed a chat app. I wanted to develop a good chat app and wanted a perspective from users. But I kind of stepped over the line and asked users of competing app for feedback. I went to their public group chat room on the app and asked users questions on how that app could be improved. I got various feedback about how they should have a 'like' button, GIF, threading, and etc. I decided to add a like button and comment section for social posting. I asked questions to users several times for two weeks. Then the developer of the app intervened and asked me not to do that. Even though the feedback was given in the public chat room and feedback was a good idea but not a game-changer, could this be an example of misappropriation due to the fact the info was obtained from their app? Could the developer also accuse me of unfair competition to Apple? | This is not "unfair competition". You are allowed to ask people for their views and take them into account in designing software, even with the specific intent that it compete successfully with existing software. In the US you have a protected right to do that under the First Amendment. If the chat site where you asked is run by the developer or owners of the app, they can ask you to avoid such question there, and even ban you from the site if they choose, because it is their site. But if you went onto a public site (like Stack Exchange, say, or Quora) the app owners would have no right to insist that you not ask for such opinions. The degree to which the design or interface of an app or other software may be protected against imitation is a complex one, and depends on the country involved. But widely known and used features such as a 'like' button, message threading, or a comment section are almost surely not protectable. Listening to users of existing simile products and getting their ideas on what works well and what is lacking is generally a good idea, and is in no way "unfair". | By clicking "accept" on the software license, you waived your rights to sue for damages. But you can go to the support forums and make an issue of what happened; Apple - like most companies - doesn't like bad PR. Official Apple Support Communities | "There is a free mp3 app from a friend who asked me to publish it in my account, which I didnt check properly." You violated Google's policies by uploading an App that you did not have full control over and/or was not developed by you. As well, the App possibly violated Google's policies in terms of violating licensing for code libraries that were included, had code included in the App that was malicious or violated privacy, or was otherwise not compliant with Google's terms. Google's policies are legal contracts which you agree to when you open an account. You reserve the right to end the contract by deleting your account. They reserve the right to end the contract when their policies are not followed. See https://play.google.com/about/developer-content-policy/ "This sudden termination comes as a shock and Google's decision seem very rude to me." You may think it is rude, but Google is fully within its rights to terminate your account because you violated their terms. It matters little that you did not get the previous warning emails from Google; you are responsible for monitoring the account email for policy updates. If you’ve reviewed the policy and feel this termination may have been in error, please reach out to our policy support team. Try that; you might attempt to explain that it was honest error on your side. | The question of whether they can ask these questions will be left to the trial judge. If the parties can make any kind of reasonable argument that consumers of one product or the other are likely to be partisans, the judge should allow the question, though it would not be error to refuse. For a good comparison, look at Ham v. South Carolina, 409 U.S. 524, 525–29 (1973). There, the defendant argued he was framed for a petty drug charge because of his involvement in the Civil Rights movement. He thought jurors might be prejudiced against him because he was black and because he had a beard, but the trial court refused to let him ask jurors about either possibility. The Supreme Court said it was an error to refuse to ask the questions about race, but not about the beard: The inquiry as to racial prejudice derives its constitutional stature from the firmly established precedent of Aldridge and the numerous state cases upon which it relied, and from a principal purpose as well as from the language of those who adopted the Fourteenth Amendment. The trial judge's refusal to inquire as to particular bias against beards, after his inquiries as to bias in general, does not reach the level of a constitutional violation. Assuming the question is permitted, the mere fact of using an iPhone would not be sufficient to obtain a "for cause" strike, which the court will only grant if the juror does not indicate that he would be able to fairly consider the case. "I like my iPhone" is not enough. "I like iPhones better than Android" is not enough. "I hate Google" is not enough. "I worship at the altar of Steve Jobs" is not enough. Instead, the question will be whether a juror indicates that they can set aside whatever prejudices they might have. The court is not required to strike them "as long as he or she ultimately asserts an ability to be fair and impartial." United States of America v. Abel Martinez-Salazar, 146 F.3d 653, 659 (9th Cir. 1998). Batson prohibits peremptory strike based on "gender, ethnic origin, or race." United States v. Martinez-Salazar, 528 U.S. 304, 315 (2000). Other than that, a lawyer is generally free to strike based on anything or nothing at all (though there remain some questions about whether Batson also applies to other protected classes, such as sexual orientation, disability, age, etc.). So peremptory strikes would be the only permissible means of eliminating iPhone users from the jury. | No, it does not fall under fair use: It is commercial use in nature It is a copyrighted work It is hard to say what portion of the copyrighted work you'd be using based on your description, so test three is inconclusive It could be argued in your favor that the infringement would not have an impact on their potential market, but it could potentially impact the value If discovered the owner of the copyright could pursue action against the company you work for. | Ideally, you would say something like "Compatible with WhatsApp. Not endorsed or affiliated with WhatsApp." If you do that, it would be a valid nominative use of the other company's trademark and would face a very low risk of an infringement action. | Yes, such a site can be created without infringing copyright Facts about the game are facts.They are not protected by copyright. Criticism of, and comment about the game, is an activity protected by the US First Amendment. Making such comments is very likely to be fair use under US copyright law. In general the author of a work, such as a book or a game, or the maker of a product, has no right to grant or withhold permission to discuss or comment on the work. This is true not only under US law, but also in the law of most countries (perhaps of all countries). The name of the game might well be protected as a trademark. But that does not allow the trademark owner to prevent discussion of the game, clearly identified by the name of of the game. As long as nothing is being sold or rented, or advertised for sale or rental under that name, and there is no attempt to claim that the site is sponsored or approved by the trademark owner, and there is no likelihood of confusion, there is no trademark infringement. This is true under US law, and under the trademark laws of most other countries. A wiki is a specific technology. It can be used for community discussion, or for a company's internal documentation, or for any of many other purposes. Wikipedia has popularized this technology. Not all community discussion sites are wikis, however, nor are all wikis for community discussion. Just as not all novels are books printed on paper, and not all books are novels. In any case, setting up a wiki about a topic such as a game, a movie, or a novel does not require permission from the owner or creator of the game or of any trademarks associated with the game or work. The same would be true for a discussion forum about such a game or work that is not a wiki. If a wiki uses excessive quotes from game dialog, or uses the game's logo without permission, or reproduces other game assets, such as character art, maps, and the like without permission, that might be copyright infringement. | 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. |
Are courts obliged to act if they're aware of a violation, even if the parties are no longer interested? (Not sure if the title is good) Hypothetical case: Alice files a lawsuit against Bob, alleging some grievance. During the case it's established that Alice violated the law first, causing Bob to take revenge (and also violating the law in the process). Logically the court would punish both of them, but Alice persists in litigating because she believes the law will be harsher on Bob than on her. However, during the case, Bob dies. Now the court cannot penalize Bob, so Alice is no longer interested and wants to withdraw the case. Is the court still obliged to rule against Alice, or do they dismiss the case? In other words, is the court obliged to issue penalties even though one party is dead and the other is no longer interested? If the country matters, assume the USA. | Alice files a lawsuit against Bob This is a civil suit, it will not lead to any court punishing Alice, or anyone else. If facts come out showing that Alice violated the law, the local prosecutor could, but need not, file a criminal case against Alice. If the prosecutor does not file such a case, Alice's worst possible outcome is to get no damages, with costs and fees awarded to Bob (or his estate). If Bob dies and Alice wishes to drop the case, there is no obvious reason not to permit it, unless Bob or his estate has counter-sued. Bob (or his estate) might ask for costs and legal fees, and perhaps sanctions for a frivolous suit. The court might well asses whether to grand such a costs order before or as it dismisses the case. ; The question seems to confuse the idea of a civil lawsuit and that of a criminal prosecution. In an Civil lawsuit, one person (or company) (the plaintiff) claims that another (or several others) (the defendant) have violated an agreement, or have in some other way caused legal injury. For example, if Alice claims that she had a contract with Bob and Bob violated the terms that would be a civil suit. Or if Alice claims that Bob infringed her copyright, or slandered her, or falsely advertised something or any of many other possible situations. The case would be Alice C vs Bob D. However, if Alice accuses Bob of having stolen from her, or punched her, or raped her, that woulds be a criminal accusation. The police would investigate, and if they found evidence to support the accusation, the local prosecutor could (but need not) file a case, which would be something like State of Franklin vs Bob D IN THE CRIMINAL COURT. Alice would be a witness, but not the plaintiff. If the investigation found that Alice committed a crime also, the prosecutor might file, State of Franklin vs Alice C Or the prosecutor might file both cases, or neither. The prosecutor has wide discretion whether or not to prosecute in any particular case, even when the evidence is clear. Neither Alice nor Bob could insist that either criminal case be dropped. Only the prosecutor, or the Judge, could do that. A criminal court is a different court from a civil court, and in many places a given judge hears only one or the other type of case. In many other places a judge may hear both kinds, but any one case is still either civil or criminal. | 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. | Probably not. Overview You haven't specified a jurisdiction. I will talk about Australia because that's what I'm familiar with. In Australia the most relevant area of law would be tort, specifically negligence. The university would be liable to pay damages if a court found that it owed a duty of care to your friend, that it breached that duty, and that your friend suffered injury ('injury' including loss of property as well as mental suffering) as a result of that breach. Also potentially relevant would be contract law, if your friend and the university had entered into some kind of agreement relating to his security, or equity, if the university had somehow acted to lead your friend to rely, to his detriment, on the university protecting him (promissory estoppel: Walton Stores v Maher). However, I think this is unlikely unless, for some reason, the university had put up signs saying 'Please come onto our land and we will be responsible for your security'. Negligence You have stated that 'it is their responsibility to make sure all students are safe on campus.' It is not clear whether you mean to state that as a fact or whether you are suggesting it as a possible hypothetical basis of liability. I am not aware of a case that establishes the proposition that universities do have such a duty. The judgments in Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254 discuss the liability of the occupier of land (such as the university in your example) for injuries inflicted by criminals upon people present on land (such as your friend in your example). In that case, the defendant ran a shopping centre. The plaintiff worked at a shop in the shopping centre. At the end of the plaintiff's shift at 10.30pm, it was dark outside because the shopping centre switched the lights in the car park off at 10pm. The plaintiff was mugged in the shopping centre car park on his way out to his car. The key question there was whether the defendant shopping centre was under a duty to keep the lights on for workers leaving work (along with the question of how the failure to illuminate the area led to the attack i.e. whether the plaintiff still have been mugged if the lights were on). Therefore the question that we are presently interested in, about an occupier's responsibility to protect visitors, is only dealt with as a side issue in that case. But the principle is pretty well-established that, generally, you are not responsible to protect another person from the criminal acts of a third person. The common law has a strong presumption against imposing liability for 'omissions' as distinct from acts, which is another way of saying that the courts don't want people being liable to run out into the street and help people. See paragraphs 27 and 28 and thereabouts in Modbury Triangle. Particular relationships may exist which create such a duty. One is in relation to school children; the school is responsible for taking such care of the child as a parent would. The relevant features of this the school-child relationship include the child's vulnerability as a child and the way the school controls their movements and enviroment during the school day. I presume that your friend is not a child and the university does not control his or her movements. Therefore a court is likely to be looking at the general principle that the university is not responsible for protecting people from the criminal acts of strangers, and then looking (and probably not finding) any special feature of the relationship between your friend and the university that creates an aspect of vulnerability, reliance or control that makes it reasonable to impose a duty of care. Some people think that there is a general principle that if something bad happens to them, some identifiable person with cash must be responsible for paying compensation, whether that is an insurer, the government or a nearby corporation. The common law has not picked up that principle. The common law would slate the responsibility home primarily to the mugger. Sue them. What does the university have to do with it? Conceivably the university might also be liable along with the mugger, but the fact that an injury occurred and nobody else can in practice be held responsible does not in itself make the university liable. As mentioned by Pat W., there may be some other feature that creates a duty, such as if the university had made some change to the environment that allowed made the attack to occur when it wouldn't otherwise have e.g. moving your friend's dormitory so that the only entrance was through a dark alley, or if the attack occurred inside a university building where the university controlled entry (even then not sure that would get your friend over the line). | The amount requested has little or nothing to do with the amount, if any, eventually awarded. Once can sue "for 100 million dollars" and be awarded 100 dollars, and although it is rarer, one can be awarded more than the amount asked for when suit is field. That initial amount now serves as a peg to hang sensational news stores on, and nothing more. The plaintiff, and the plaintiff's lawyer, may consider that such publicity serves them well. Such inflated amounts are not grounds to dismiss the suit, so there is no downside to including them, except possibly negative publicity if people mock the demand. | The basic option that one has when a contract has been breached is that the harmed party sues the damaging party, seeking compensation. Sometimes, contracts contain arbitration clauses which limits how disputes can be resolved – for example "disputes shall be subject to binding arbitration by Jones Arbicorp". Whether or not such a clause is legal would depend on the jurisdiction. A clause which states that there can be no legal remediation of breach means that the contract would be unenforceable, and is not in fact a contract. Courts generally strive to construe anything that looks like a contract as being a contract, and they can set aside a particular aspect of a contract. If the other party attempted to have the suit thrown out because of a "there is no remedy" clause, the court would most likely find that to not be a valid term in the contract. It does depends on what exactly the clause says. Your attorney would need to look at the language of the contract to advise you as to the best course of action (asking us for legal advice makes the question off-topic). | The appeals court has found that the county court judge made a decision that was consistent with the evidence that was presented at trial. As such, the decision is sound. It appears that the defendant tried to present additional/different evidence or different arguments about the law in the appeal than they did at trial - this is not permitted. As to responsibility, the defendant and their legal team were responsible for deciding how to run their case and what evidence to present and what arguments to run. What evidence to present and how to present it and what submissions to make on the law is a tactical decision for each party. You can get it wrong. That doesn't let you try again on appeal. If your barrister has been negligent, and that directly caused you to lose, you can sue your barrister. In terms of interpreting a particular paragraph of a judgement, the appeals court may or may not make comment on a particular paragraph but the reasons, while important, are not really subject to interpretation other than that. A judgement will give orders, these should be very precise and not open to interpretation - things like "the defendant will pay X to the plaintiff" or "the case is dismissed" etc. | 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. | Judges and justices can file lawsuits like anyone else, but ordinarily the judges who are colleagues of the judge or justice would recuse themselves and it would be assigned to another venue at trial (in the case of a trial court judge), and on appeal would be assigned to judges who don't have a personal relationship with the judge (possibly sitting by assignment from another appellate jurisdiction or by senior judges who weren't on the bench when this judge was on the bench). A U.S. Supreme Court justice's suit would not be considered recusal worth by an unfamiliar lower court judge who is only theoretically in the jurisdiction of the justice and no suit by a U.S. Supreme Court justice has ever been deemed cert worthy. If it did reach the U.S. Supreme Court, the Justice would be expected to, but not required in any enforceable way, to recuse from hearing the case. |
Shooting victim taken off life support. What crime would be charged? About a week ago a girl was shot in a Maryland school. Soon after that, a police officer shot and killed the gunman. The girl was critically injured, and on life support. After a few days, the family decided to take her off life support and she died soon after. Suppose the killer didn't die. What crime would the killer be charged with? The girl has died, but technically she would probably still be alive if her parents didn't take here off life support. I think in some cases, a jury could be convinced that it would be extremely unlikely that a victim would ever regain consciousness. Many would regard this as worse than attempted murder. Do some states have a crime that is appropriate for that situation? | It would be murder (assuming the facts surrounding her getting shot would support a murder charge, of course, and it wasn't something like an accidental discharge.) The fact that she was on life support for a time is irrelevant. Under Maryland law § 2-102 it doesn't matter how much time has elapsed: A prosecution may be instituted for murder, manslaughter, or unlawful homicide, whether at common law or under this title, regardless of the time that has elapsed between the act or omission that caused the death of the victim and the victim's death. It's a Wisconsin and not a Maryland case, but according to State v. Below, 799 NW 2d 95 - Wis: Court of Appeals 2011, it doesn't even matter if life support was wrongly terminated; the defendant is still guilty: [E]ven if the Defendant can establish that the termination of Madison's life support was "wrongful" under Wisconsin Law, that wrongful act would not break the chain of causation between the Defendant's actions and Madison's subsequent death. | Yes, because the crimes are different instances. Let's remove the guilty plea and the fact that it is murder: can a person assault a person, be tried and imprisoned, then assault the same person later – and get off by declaring "Double jeopardy!". No, it's not the same crime. It's the same type of crime, and involves the same victim, but it is still a different crime. The same with your proposed scenario. (Incidentally, your first line is wrong: the woman wasn't murdered, she was thought to have been murdered). | I'm just asking what the legality is for parents to vaccinate their children against rabies if they were bitten by an animal. Also, would legal implications change if the animal that bit the child later tested positive for rabies or if the child insists on getting a rabies vaccine but the parent refuses? Can the parent be charged for a crime if the child develops symptomatic rabies and dies? In this circumstance, while a parent has fairly broad discretion, once the necessity of preserving a child's life comes into play and rabies can be deadly, that discretion ends and the child's life takes priority. Failing to do so could constitute child abuse and result in termination of parental rights and criminal sanctions for child abuse causing death or something similar. Simply failing to treat rabies out of good faith ignorance of the option, however, would ordinarily not be a criminal offense. | germany You have the duty to help others even if they cannot articulate that. There was a case recently where people stepped over an unconscious person to get money from an ATM, thinking it was a homeless person sleeping inside the rather warm entrance to the public bank building. Turned out it was a normal elderly customer who had a medical emergency. Three customers walked around them and did not get help. Only the fourth customer called an ambulance about 20 minutes later. The person died in hospital, doctors said the delay in treatment did not cause the death, the person would have died even if help had been available earlier. Police used the banks security cameras to prosecute all who had just ignored the person and "thought it was okay, they were just sleeping". Newspaper Article: For example Der Spiegel. The actual text of the verdict: AG Essen-Borbeck, 18.09.2017 - 3 Ds - 70 Js 654/16 - 252/17, 3 Ds 252/17 In this case it was monetary fines, but if the person had actively asked for an ambulance, like in your case, and were actively denied instead of ignored, I'm pretty sure that would have made it way worse for the defendants. | This occurred in Hong Kong, so Hong Kong law applies here. Hong Kong law's definition of rape is explicitly male on female (nonconsensual male-male is covered by sodomy laws instead). It is impossible for her to be charged with rape. Assuming you were over 16 at the time, the only offence that could be possible is indecent assault. As far as I can tell, there is no statute of limitations. However, the chance of her being charged is basically zero. | The answer by @Digital fire is not always correct. Some states have passed general-purpose "duty to rescue" statutes. The one I've been trained about is Vermont's (Cite as: 12 V.S.A. § 519) § 519. Emergency medical care (a) A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or herself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others. The statue goes on to provide good Samaritan protection and state the penalty for violating the statute: a fine of not more than $100. Digital Fire does refer to the Wikipedia article about a duty to act/rescue, but the lead of that article says it is referring to torts, that is, whether the person who wasn't assisted (or his/her estate) could bring a lawsuit against the person who didn't help. But the Vermont statute creates an offense with which the suspect could be charged in a criminal trial. | He would be thanked and sent on his way. We don't generally punish people for preventing murders, even if they are rogue cops or soldiers. If you wanted him to plausibly land in legal peril, he'd probably need to do more than simply save someone's life. The most obvious possibility, I think, would be if he were to continue inflicting harm on the attacker after cuffing him. At that point, there's probably no justification for a continued use of force, so he could face assault charges there. Also possible would be that the way he handled the situation -- the amount of force he used, the failure to de-escalate, failing to call for assistance -- just violates some police or military policy. I don't know if that would jam him up in the way you're looking for, though. | 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. |
Can a US president secretly pardon themselves? I've seen quite a few widely-circulated tweets saying that Trump doesn't have to announce pardons, and we might not find out he's pardoned himself (or family members) until/unless they are indicted. (Example tweet) Is this true? How is the record kept of who Trump has pardoned? Is it secret? How is it verified that Trump issued the pardon while he was President and he's not just making it up as a defense at a later time? | There's no settled legal answer to this, but there seems to be a general consensus that this would not be legal under the Impeachment Clause, which says: The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. There would be two main issues here: 1. Can a president pardon himself? It's never been tried, so it's never been challenged, so the courts have never had a chance to say whether it's legal. The main argument in favor of self-pardons is that the constitution grants broad pardon authority for any offense against the United States, making an exception for impeachment, but not for self-pardons. The response to that is that the constitution uses all kinds of broad language that everyone agrees is not as broad as it sounds; Congress is not allowed to abridge the freedom of speech, but perjury laws are nonetheless constitutional. There are several theories as to why the self-pardon would be illegal, but they mostly come down to two main ideas -- that our legal system does not permit anyone to be the arbiter of their own case, and that a person subject to impeachment may not be pardoned. 2. Can a president issue secret pardons? Again, it's never been tried, so it's never been challenged, so the courts have never had a chance to say whether it's legal. And again, the primary argument in favor of secret pardons is that the Pardon Clause grants broad pardon authority without requiring that pardons be publicized. The main arguments against are (1) that presidential pardons are inherently public acts, as they have no effect if the justice system doesn't know about them, and (2) that the Presidential Records Act requires official White House records to be transferred to the National Archives. | In the case you link, this was given as an opening statement by the defense. Opening statements do not contain evidence. The defendant may or may not testify on their own behalf during the trial - this testimony, if given, counts as evidence, even if it is somewhat self-serving. And anything which tends to casts doubt as to the defendant's guilt is evidence that they didn't do it, even if it isn't proof. If there is reasonable doubt, then "he didn't do it" is not illogical. And it would seem unfair to allow the prosecution to say "he did it" but not allow the defense to say "no he didn't". | In short, no, that cant be a pardon for those police officers who would be now influenced to take more violent actions towards those they detain. Pardons are only applicable to past actions. You may be pardoned before charges are filed, but the actions must have already occured. Though I less certain about this, simply because Ive never heard such a thing proposed, I would also note that it is highly improbable that the actual statement he made - generic and during a speech - could everbe interpreted as an affirmative act intending to grant pardons to anyone who may act in that manner in the future. | Once a person is sworn in as POTUS, there are only two legal mechanisms for involuntary removal of that person from the office: Article II Section 4 of the U.S. Constitution provides only that: The President ... shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. The 25th Amendment was passed to establish clear procedures of official succession. Its Section 4 also provides an elaborate mechanism whereby "the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide" can precipitate a process that would allow Congress, within 21 days, to transfer the office to the Vice President. Otherwise, there is no contemplation in the law of a "backsies" mechanism for removing a person from the office because "it should have gone to someone else." (The idea that a person who was in the designated line of succession, but in the wrong order, was sworn into office does not seem nearly as problematic as other events that have happened in real history. For example, in the 2000 Presidential Election it was conceivable – and some people probably maintain in fact – that the "loser" of the election would be sworn into office. The U.S. Supreme Court settled the legal questions before the inauguration. However, the realization at the time was that any legal challenges or decisions after that date would be moot, because "election error" is not a cause to remove a sitting U.S. President.) The question of a previous President reappearing, and his successor refusing to cede the office, takes us to the height of speculation. In this case I would merely note that I can find no law pertaining to Presidential Transition in which an outgoing President is "stripped of authority" or "removed from office." Rather, the acting POTUS is effectively the most recent person sworn to the office, and not removed from it. | As an example, POTUS does not undertake the entire pardon process on his own, instead they are preliminarily processed by the Department of Justice, which makes a recommendation. Only POTUS can "grant" the pardon, and we lack substantive information on how deeply he gets involved (does he just sign documents based on staff recommendations? does he do his own research?). I don't know what physical form Clinton's 450 pardons on January 20, 2001 took, but a president might use an autopen (Obama did use such a device). Questions have been raised and definitive answers from SCOTUS are lacking as to whether hand-to-paper signatures are demanded by the Constitution. DoJ at one point thought it was okay. This article lists the Constitutional functions which cannot be delegated: reporting to the Congress on the state of the Union; convening either or both Houses of Congress and adjourning Congress; signing and vetoing bills; receiving ambassadors and public ministers (recognition); appointing and removing ambassadors, ministers, and certain other public officers; nominating federal judges; and making recess appointments However, the Constitutional function of negotiating treaties or numerous functions as commander in chief of the armed forces is generally delegated, within the executive branch. Numerous statutory functions can be delegated (and Congress may say explicitly that some function can be delegated, in passing the law). The matter of implied power to delegate statutory function is the topic of a couple of centuries of litigation, but as an example in Williams v. United States, 42 U.S. 290 SCOTUS held that a law prohibiting the advance of public money in any case whatsoever to the disbursing officers of government except under the special direction of the President does not require the personal and ministerial performance of this duty, to be exercised in every instance by the President under his own hand. SCOTUS has not established bright lines regarding the extent of permissible delegation. | See the answer to this question. It is remotely possible that it will show up, but the new S.C. law also says that an employer cannot use that information. On the other hand, that law is not yet effective (it becomes effective Dec. 27 2018), so for the rest of the year, the information could be used, if an employer obtains is. There is a law-enforcement exception that arrests can always be used against you if you apply for a law-enforcement related job. Under the current law (has been in effect for a while), the record is "under seal", so revealing the record in the course of a background check would be a violation of the relevant court order. The law specifies a punishment for illegal disclosure: A person who intentionally violates this subsection is guilty of a misdemeanor, and, upon conviction, must be fined not more than one hundred dollars or imprisoned not more than thirty days, or both. however, accidental disclosure is not a crime. You might think that you could at least sue them for accidental disclosure, but the law also says Unless there is an act of gross negligence or intentional misconduct, nothing in this section gives rise to a claim for damages against the State, a state employee, a political subdivision of the State, an employee of a political subdivision of the State, a public officer, or other persons. If the government person who releases the information intentionally does so, you can sue. Perhaps an accidental release could be found to be grossly negligent: that would depend on the circumstances. | This is known as a retroactive or ex post facto law. Such laws are explicitly forbidden by the US Constitution (Wikipedia reference), and are generally frowned on in jurisdictions where the rule of law applies, partly because it is difficult to prove criminal intent when your action was not at the time criminal. | It's never happened so there is really no definitive answer. There are plausible arguments both ways. Many impeachment cases have been dismissed in the Senate before a trial is complete, or before a Senate trial is commenced, because a resignation has made the process moot. |
Is it kidnapping if I steal a car that happens to have a baby in it? Suppose I steal a car, and there's a baby in the back seat. Did I just kidnap the baby? | In colorado, it appears that the kidnapping statutes do not apply if the act is not "knowing" or if the perpetrator lacks intent. § 18-3-301 Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping: (a) Forcibly seizes and carries any person from one place to another; or (b) Entices or persuades any person to go from one place to another; or (c) Imprisons or forcibly secretes any person. § 18-3-302 Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping. 2. Any person who takes, entices, or decoys away any child not his own under the age of eighteen years with intent to keep or conceal the child from his parent or guardian or with intent to sell, trade, or barter such child for consideration commits second degree kidnapping. § 18-3-303 Any person who knowingly confines or detains another without the other's consent and without proper legal authority commits false imprisonment. As @ohwilleke pointed out in this answer, this means that as soon as the hypothetical car thief becomes aware that the child is in the car and doesn't then act to return the child to their parents, it becomes second-degree kidnapping. (It's also possible that CO case law has interpreted the statutes differently than I'm interpreting them here, but the plain language seems to require the actual intent to take and/or confine a person illicitly.) | let's look at the referenced Section 28085 ARTICLE 13. Theft Alarm System [28085- 28085.] ( Article 13 added by Stats. 1977, Ch. 993. ) 28085. Any motor vehicle may be equipped with a theft alarm system which flashes the lights of the vehicle, or sounds an audible signal, or both, and which operates as follows: (a) The system may flash any of the lights required or permitted on the vehicle. (b) The system may sound an audible signal. (c) No vehicle shall be equipped with a theft alarm system which emits the sound of a siren. (Amended by Stats. 1994, Ch. 516, Sec. 1. Effective January 1, 1995.) This tells us what is allowable as a theft alert system. It may use sound(b) and turn the car into a goddamned Christmas tree(a), provided it is not: a siren sound(c) not audible(b) or a non-permitted light like Emergency Vehicle Lights(a). It does not regulate when it may fire, only that the sound alert has to be audible (preventing infrasonic make-your-ears-bleed or dog whistle sounds) and that the lights have to be an allowable part of the vehicle. So you could set the alert to honk or play imperial march or berate the wannabe thief or use painful loud music, all provided that it is audible and does not violate other laws. So, what is the correct operation of a car theft alert? Nothing in the article says, that you may just use the signals and honking for alerting in the case of theft, but that the system may use all the things in A and B under condition C to operate. Operation is "effect brought about in accordance with a definite plan". The definite plan for the alarm system is as follows: initialize alert the owner that it has correctly initialized wait for theft attempt or shutdown in case of theft: alarm everybody in case of shutdown: shutdown How the alertion and alarm are set up is up to the manufacturer's discretion, as long as the Article 13 is not breached. Example: My Ford Fiesta does a double-flash of the turn lights and a low key beep overpowered by the lock operation on locking and a single flash on unlocking. That is the factory setup (for my area) afaik. The manufacturer (or if I wanted to go to a car shop) could under Article 13 set the activation to trigger a short honk or any other audible to signal proper initialization as part of the normal operation. The failure of the sound coming after locking the car would alert me that something is amiss and it is not operating. The top 3 causes are most likely that the car key battery might be dead, a malfunction of the car alert or someone jamming the frequency of the key. As it is clearly part of the operation of the alert system, which is marked as a legal use of the horn of a car in Article 12 under Section 27001 b, yes, the alert may honk. INAL, so only my layman reading. | How come this is viable? Because it’s legal. What if people use their service to commit crimes? What if people use a Ford in a bank holdup? Or a Glock in a murder? Or the US Postal Service in a Nigerian letter scam? If the goods or services are legal and not provided for an obviously illegal purpose, nothing happens. | 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). | Yes But not because they are mandated, just because your car has one. Because there is one factory fitted and it is a piece of safety equipment anyone you pay to maintain your car would be negligent if they didn’t make sure it’s working. | You did not commit any crime, but that does not mean you cannot be charged with a crime. Up to the point where you take the item back out of your pocket, a police officer would have probable cause to believe you were attempting to steal the merchandise, and probable cause is all he would need to charge you. At trial, the government would have the burden of proving that you intended to actually steal the item, but it can satisfy that burden merely by showing that your actions were consistent with such an intention. You would have the option of testifying that you planned to pay for the item. From there, it would be up to a jury to decide whether it believes you. If so, you should be acquitted. If not, you would likely be convicted, and your conviction would likely be affirmed on appeal. | I guess you are interpreting the answer of the officer the wrong way. Minors do have rights. Plenty of them. But using a phone to contact people their legal guardian does not approve, or to consume media their legal guardian does not approve, is usually not a right minors have. And to make those restrictions stick, your mother took your phone away. Ask for it on your 18th birthday. But when one of you has called the police on a family situation like this, both of you have a problem that goes way beyond property rights. Do you have an adult you can talk to? A teacher? An uncle or aunt? A coach? Try talking to them. If they all side with your mother, consider that she might be right and you are wrong. But often both sides talk themselves into a corner, and a neutral viewpoint helps. If you are truly desperate about your situation, call Child Protective Services. But that could backfire if they believe your mother, and make the family situation worse. Taking a phone away is not neglect or abuse. | So for your first question, yelling "Stop Thief" loudly at the thief is perfectly legal (Like Yelling "Fire" in a crowded theater, it's legal if the theater is infact, on fire... the quote implied that it was a prankster who drew amusement from the reaction of the people who took him seriously). This may alert store employees, who have a specific kind of Citizens Arrest Power known as "Shopkeeper's Privilege" and is a reduced liability compared to Citizens Arrest. This is also pretty basic self defense agains people who are not engaged in any physical action against you but are starting to scare you. Suddenly shouting draws attention to you and discourages them from their behavior "I SAID DON'T TOUCH ME" being suddenly shouted in a Wal Mart is going to get notices from the immediate crowd drawn to you, and by poximate location, the person who is making you uneasy. For your second question, maybe, it depends... since the cop is clearly chasing the guy, you meet the qualification to use non-deadly force in stopping the criminal (i.e. you are witnessing a person committing a crime, in this case, resisting arrest or persuit) and it would certainly be reasonably non-deadly force if you were to trip, grab, or push the fleeing suspect. Citizens Arrest doesn't specify a minimum time to qualify, so if the officer is seconds behind, and you detain the criminal in this action until the gap is closed, it still counts. |
Why can multiple companies make wind turbines? Why don't they run into patent violations? I am curious to know that how it can be that so many companies can build wind turbines. Did these companies buy the patent from the inventor of wind turbine? Or is this technology not patentable? Or did no one bother to patent this technology? Suppose, hypothetically, that I am the inventor of the wind turbine. How can I protect my idea to prevent it from being duplicated? | Of course windmills/turbines in general are not new and one would not need a license or permission to make and sell a "generic" wind turbine. But there are new types of wind mills invented and patented all the time. Examples are US7821148B2 Wind turbine and US8441138B2 Wind turbine. Patents are complicated and an inventor of a new type of windmill might need to license other people's patents that are broader in order to be able to make their new invention. Most windmill inventions are to improvements in components. It is a very rich field. As a small example, I helped a client get a patent on a device that is attached inside a windmill tower that prevents maintenance workers hitting their heads on part of the structure as they climb up. The second part of your question was how you can protect an invention you might make. Technology can be protected by patents both design and utility and some things might be able to be kept trade secrets (but not both for the same thing). | If the patent lawyer "hears about" such failed patents from clients, and then uses the client's work and modifies them into successful patent filings, that would seem to be a clear conflict of interest, just as a business lawyer cannot use info learned from a client to make his own business deals, unless the client grants an OK. But if the patent lawyer just hears through shoptalk, or through communication by, perhaps, patent examiners that the lawyer works with, I don't see any conflict of interest, although as the comment by Eugene Styer suggests, there is likely to be enough prior art to make the patent invalid. | The software being free and open source has no impact on whether it infringes any patents or violates any copyrights. Copyrights attach to fixed representations of creative work in a tangible medium (e.g., the actual code and graphical elements of the software in question). As long as you aren't copying the copyrighted work of someone else, you should be in the clear. So, if you write your own code from scratch, or rely on code that you're allowed to use (e.g., "free" software with a permissive license that allows it to be used freely), you should be fine. On the other hand, if you copy a chunk of code that you aren't allowed to use, and then change the variable names so that it's superficially different, you're likely violating someone's copyright. Patents are a much more difficult question. To determine whether you would infringe any patents, you would have to read the independent claims of every patent that might be related. If you perform all the steps of any one of those claims, then you are infringing that claim (and therefore, the patent in which it is found). Unfortunately, this is much easier said than done. First, it may be difficult to search for all the potentially relevant patents, and once you've found them, there may be far too many to read. Second, claims are written in a type of language that is specific to patents, and someone without experience in patent law may not understand them correctly. Finally, the terms in the claims may not take on their plain English meaning, but rather may have been defined by the language in the rest of that patent, so it's possible that you might incorrectly think you were in the clear based on a misunderstanding arising from that. All that said, it may be best to go ahead with implementing an idea and then waiting to see what happens. Chances are that the implementation will arguably infringe some patent in some way, no matter what's done. But chances are also high that there will never be any worrisome enforcement action taken against it by a patent owner, simply due to the difficulty and expense associated with enforcing patent rights. | No Because it’s patented in country A, it is not novel anywhere in the world. That is, the patent in country A is “prior art” that would disqualify it from being patented anywhere else. The original patent holder can patent it elsewhere because patent law has an exception for that. | Provided you are in one of the 170+ countries signatory to the Berne Convention (the current 10 non-signatories are, exhaustively: Eritrea, Marshall Islands, Nauru, Palau, San Marino, Iran, Iraq, Ethiopia, Somalia, and South Sudan), then copyright comes into existence at the moment a work is fixed in a tangible medium, not when it is published. The initial copyright owner is the author of the work. In cases of employment, the "author" might be the natural person who authored the work, or the corporate person who employed the natural author. To clarify your thinking about registration: copyright registration is a public record of authorship (or copyright ownership). Registration does not create a copyright, but is merely a recording of the copyright that was automatically created at the moment of original authorship. Depending on circumstances and jurisdiction, Alan might have a legitimate claim to copyright on his own work. However, he will be quite hard-pressed to find a convincing theory of law that allows him to publish the unpublished copyrighted work of other people without their permission. This leaves him either to admit defeat -- he cannot possibly own the copyright of his coworkers' code, so he cannot have legally reproduced it -- or else make the baldfaced lie that the code has no other authors other than Alan himself. For your company to disprove such a claim, you may employ sworn testimony of your coworkers, you may employ code analysis to show differing coding styles (suggestive of multiple authors), or you may show code backups or version control history showing the progressive authorship of the work over time by many people. (Sure, a Git history is possible to fake, but a realistic history with feature branches, "whoops, undid the typo in the last commit" messages, etc. would lend significant weight to your company being the original authors.) | 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. | could this mean my employer owns the idea and anything I develop --since I would use the same technology for my idea that I do at work? No, unless by "technology" you mean the employer's materials or resources (see condition 3 of the clause). Your remark that "this is completely and utterly unrelated to [employer's] business model" survives items 1 and 2. Likewise, working on your idea outside hours survives the corresponding part of item 3. Would this also mean that any open-source software I develop outside of work automatically belongs to my employer? No, unless the software you develop is "based on [your] knowledge [etc.] of (COMPANY)". | While it is not illegal to own, it may still be illegal to ride on public property. Private property owners can ban them even if they were legal and need to be consulted individually. I have been unable to find out if new laws spoken about have been passed in New York since the beginning of the year. Based on what I have found (as of the end of 2015), it would be best to consider that they are illegal to use on public areas just as any other unlicensed motor vehicle. As of November 2015 Some property owners have banned them for liability reasons, as it is easy to see how a rider could trip on a bump or unexpected curb. And although they have taken the Upper East Side and other parts of New York City by storm, the state classifies them as motorized vehicles that cannot be registered, so riding them in public can incur a steep fine. Earlier this week, the NYPD's 26th Precinct tweeted: "Be advised that the electric hoverboard is illegal as per NYC Admin. Code 19-176.2*." and December 2015 some lawmakers were talking about making them legal. Truth or Fiction Collected on: 12/28/2015 gives the following summary A spokesperson for the New York City Department of Transportation has explained that the law’s definition of “electronic personal assist mobility device” was broad enough to include hoverboards, and that they would be regulated as such. In NYC, because the population is above 1 million people, electronic personal assist device riders must be licensed, and the devices must be registered with the New York State Department of Motor Vehicles. Hoverboards are illegal, the spokesperson said, because the NYSDMV would refuse to register them for legal use: NYSDMV’s position is that these vehicles are likely “Electric personal assist mobility devices.” NYS Vehicle and Traffic Law 114-d defines “Electric personal assist mobility device” as “Every self-balancing, two non-tandem wheeled device designed to transport one person by means of an electric propulsion system with an average output of not more than seven hundred fifty watts (one horsepower), and the maximum speed of which on a paved level surface, when propelled solely by its electric propulsion system while ridden by an operator weighing one hundred seventy pounds, is less than twelve and one-half miles per hour.” NYS VTL 125 generally defines “motor vehicles” as “Every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power.” However, VTL 125 specifically excludes some classes of vehicles from the definition of “motor vehicles.” Under VTL 126(a-1), “electrical personal assistive mobility devices operated outside a city with a population of one million or more” are not considered motor vehicles. However, in NYC, because the city population is greater than one million, NYSDMV considers “hoverboards” that meet the definition of “electric personal assist mobility devices” the same as motor vehicles. Based on that interpretation, it would be illegal to operate a hoverboard in NYC without a valid license to drive a motor vehicle. Beyond that, the motor vehicle would need to be registered by NYSDMV (which NYSDMV will not do), inspected, insured, and otherwise treated as, and subject to regulation like, any other motor vehicle. A person who operates a hoverboard in NYC (or any other NYS city with a population greater than a million) would be subject to arrest and prosecution for myriad NYS VTL violations, including, but not limited to, driving a motor vehicle without valid registration or insurance. |
Can a Power of Attorney nominate a successor/backup? I have my Dad's Power of Attorney, and he is in assisted living and hospice. I was the backup for his wife who died. Since I'm single, can I appoint someone else in case something happens to me? Or if I create a Power of Attorney for myself, can that person step in the shoes of my Dad's Power of Attorney? The concern is that if something happens to me, would the state come in to assign a ward/guardian for my Dad? My Dad can still sign his name, but he wouldn't understand what he is signing. Side note. I'm also the trustee of his trust, and the backup for it is his wife's sister. However, I'm not sure she would want the responsibility of his care. (Located in Texas) | The rules for a Texas power of attorney are summarized in this page from Texas Lawhelp. The actual law is 2005 Texas Probate Code CHAPTER XII. DURABLE POWER OF ATTORNEY ACT Both of these indicate that the agent (aka attorney-in-fact) must be specifically named in the POA document. My experience with a POA in a similar situation in NJ is that multiple agents may be named, or backups in case the primary agent dies or is not available. However the Texas pages do not specifically say that. But in any case the agent or agents must be named in the POA signed by the principal, who must be of sound mind at the time the POA is signed. An agent does not have the power to name a replacement or backup agent. An Agent might be able to give a POA to another person to act in the agent's place, but that POA would lapse if the agent died, and the law does not specifically permit this, so it might not be valid in any case. A Texas court can appoint a Guardian for an incompetent person, and such an appointment takes precedence over an existing POA. That would be a way to deal with the situation if there is reason to think the agent might die or become unavailable while the principal is mentally incapable. | What you quoted does not say "a" director can appoint a director. It says "the directors", plural, can appoint a director. I assume that would be by a vote. Elsewhere in the document it might or might not be made clear if this requires only a majority and/or if this is only in cases to fill a vacancy. | No. This is not a provision that the testator or testatrix (i.e. the person writing a will) may waive in advance. But, the slayer statute does not get invoked unless an interested person invokes it in a probate proceeding after a death, and if no interested party wishes to invoke it, the will would be given effect anyway (just as it would in a case where no one could prove that someone was a slayer). Some states apply the slayer statute to will substitutes, and some do not. Similar laws that revoke dispositions upon divorce are pre-empted for interests in employee benefit plans subject to ERISA, but the U.S. Supreme Court has declined to resolve the issue. See Egelhoff v. Egelhoff, 532 U.S. 141, 152, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (pre-empting divorce revocation statutes, but declining to decide whether ERISA preempts state statutes forbidding a murdering heir from receiving property as a result of the killing) (cited as good law in Kennedy v. Plan Administrator, 555 U.S. 285 (2009) at footnote 14); Wasserman v. Schwartz, 364 N.J.Super. 399, 836 A.2d 828 (2001) (circumventing ERISA pre-emption). But see, Herinckx v. Sanelle, 281 Or.App. 869, (Oregon App. October 26, 2016) (Oregon slayer statute pre-empted by ERISA and reviewing variations in state slayer statutes). A notable comprehensive review of the California and common law rules regarding how the slayer statute applies in murder-suicide cases where the victim and suicidal killer own property in joint tenancy is found in In re Estate of Castiglioni, 47 Cal.Rptr.2d 288, 40 Cal.App.4th (Cal. App. 1995). The murder-suicide scenario is also addressed in depth in the case In re Gleason, 947 N.Y.S.2d 761, 36 Misc.3d 486 (Surrogate's Court 2012). Also, the definition of homicide that qualifies under the slayer statute sometimes covers only certain forms of homicide. For example, it might apply in cases of murder or manslaughter, but not in cases of negligent homicide. Alaska, for example, takes the minority position that unintentional homicides suffice to invoke the slayer statute, subject to a manifest injustice exception. In re Estate of Blodgett, 147 P.3d 702 (Alaska 2006).1 There is unsurprisingly little or no case law on an intentional waiver of these provisions, and assisted suicide would often not qualify as an eligible homicide although this would vary from state to state. But see, Colorado Proposition 106 (adopted by voters November 8, 2016) as it pertains to insurance benefits. A Sample Statute The currently effective section of the Colorado Revised Statutes (modeled on the Uniform Probate Code, which is highly influential to legislative drafters and in courts with common law rules, but is not actually adopted verbatim by a majority of states) which are applicable to this issue reads as follows: § 15-11-803. Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations (1) Definitions. As used in this section, unless the context otherwise requires: (a) "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument. (b) "Felonious killing", except as provided in subsection (7) of this section, is the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter, as said crimes are defined in sections 18-3-102 to 18-3-104, C.R.S. (c) "Governing instrument" means a governing instrument executed by the decedent. (d) "Killer" is any individual who has committed a felonious killing. (e) "Revocable", with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate himself or herself in place of his or her killer and or the decedent then had capacity to exercise the power. (2) Forfeiture of statutory benefits. An individual who feloniously kills the decedent forfeits all benefits with respect to the decedent's estate, including an intestate share, an elective-share, an omitted spouse's or child's share, the decedent's homestead exemption under section 38-41-204, C.R.S., exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed his or her intestate share. (3) Revocation of benefits under governing instruments. The felonious killing of the decedent: (a) Revokes any revocable (i) disposition or appointment of property made by the decedent to the killer in a governing instrument, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the killer, and (iii) nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and (b) Severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common. (4) Effect of severance. A severance under paragraph (b) of subsection (3) of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership. (5) Effect of revocation. Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent. (6) Wrongful acquisition of property. A wrongful acquisition of property or interest by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from his or her wrong. (7) Felonious killing; how determined - time limitations on civil proceedings. (a) Criminal proceedings. After all right to appeal has been waived or exhausted following the entry of a judgment of conviction establishing criminal accountability for the felonious killing of the decedent, such judgment conclusively establishes the convicted individual as the decedent's killer for purposes of this section. (b) Civil proceedings. Notwithstanding the status or disposition of a criminal proceeding, a court of competent jurisdiction, upon the petition of an interested person, shall determine whether, by a preponderance of evidence standard, each of the elements of felonious killing of the decedent has been established. If such elements have been so established, such determination conclusively establishes that individual as the decedent's killer for purposes of this section. (c) Time limitations on civil proceedings. (I) A petition brought under paragraph (b) of this subsection (7) may not be filed more than three years after the date of the decedent's death. (II) Notwithstanding any provision of subparagraph (I) of this paragraph (c) to the contrary, if a criminal proceeding is commenced in a court of this state or in another jurisdiction against an individual for the felonious killing of the decedent, a petition brought under paragraph (b) of this subsection (7) may be filed so long as the petition is filed no later than one year after all right to appeal has been waived or exhausted following an entry of a judgment of conviction, or a dismissal, or an acquittal in the criminal proceeding. However, if the death and the possible culpability of the slayer for the felonious slaying of the decedent is not known to the petitioner within the three-year period of limitations established pursuant to subparagraph (I) of this paragraph (c), the accrual of the action under paragraph (b) of this subsection (7) and the possibility of the tolling of the running of the three-year period of limitation under subparagraph (I) of this paragraph (c) shall be determined according to the principles of accrual and tolling established by case law with respect to similar limitations established under section 13-80-108, C.R.S. (d) Judgment of conviction. For the purposes of this subsection (7), a "judgment of conviction" includes a judgment of conviction on a plea of guilty or nolo contendere, or a judgment of conviction on a verdict of guilty by the court or by a jury. (8) Protection of payors and other third parties. (a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a felonious killing, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party has received written notice as described in paragraph (b) of this subsection (8). A payor or other third party shall have no duty or obligation to make any determination as to whether or not the decedent was the victim of a felonious killing or to seek any evidence with respect to any such felonious killing even if the circumstances of the decedent's death are suspicious or questionable as to the beneficiary's participation in any such felonious killing. A payor or other third party is only liable for actions taken two or more business days after the payor or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this subsection (8) shall not be sufficient to impose liability on a payor or other third party for actions taken pursuant to the governing instrument. (b) The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a claim of forfeiture or revocation is being made under this section. The written notice shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. (c) Upon receipt of the written notice described in paragraph (b) of this subsection (8), a payor or other third party may pay to the court any amount owed or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payor or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payor or other third party shall file with the court a copy of the written notice received by the payor or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payor or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payor or other third party discharges the payor or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court. (d) The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. (e) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section. (9) Protection of bona fide purchasers; personal liability of recipient. (a) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (b) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted. 1 The other four states and District of Columbia arguably adopting the minority position that negligent homicide invokes the slayer statute are as follows, from footnote 5 of the dissent to the Alaska Supreme Court's decision cited above. The District of Columbia slayer statute covers homicide resulting from grossly negligent conduct. See Turner v. Travelers Ins. Co., 487 A.2d 614, 615 (D.C.1985) (explaining that the slayer statute covers "unintentional killing derived from reckless or grossly negligent conduct"). Louisiana's slayer statute covers all criminal homicide. In re Hamilton, 446So.2d 463, 465 (La.App. 1984) (holding that slayer statute "was intended to include situations such as that presented by this case, where a beneficiary does not intentionally and feloniously cause the death of the insured but is nonetheless held criminally responsible for that death"). North Carolina's common law slayer rule prohibits inheritance after any wrongful homicide. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563, 567 (1975); Matter of Estate of Cox, 97 N.C.App. 312, 388 S.E.2d 199, 201 (1990). The continued application of this common law rule has been criticized in light of a slayer statute barring only intentional killers from inheriting. N.C. GEN. STAT. § 31A-3; see also generally Julie Waller Hampton, The Need for a New Slayer Statute in North Carolina, 24CAMPBELL L. REV. 295 (2002). Kentucky Revised Statute § 381.280 bars inheritance from those convicted of any felonious homicide. "Reckless homicide" is a felony. KRS § 507.050. Kentucky defines "reckless" as "a gross deviation from the standard of conduct that a reasonable person would observe." KRS § 501.020. Reckless homicide in Kentucky is therefore equivalent to criminal negligence in Alaska under AS 11.81.900(a)(4). Kansas Statute § 59-513 states that "[n]o person convicted of feloniously killing, or procuring the killing of, another person shall inherit." Involuntary homicide under Kansas law extends to "killing of a human being" committed recklessly, during a misdemeanor, or "during the commission of a lawful act in an unlawful manner." KS ST§ 59-513. This arguably could extend to grossly negligent conduct, especially as KS ST§ 21-3201 explains that "[t]he terms 'gross negligence,' 'culpable negligence,' 'wanton negligence' and 'wantonness' are included within the term 'recklessness' as used in this code." A federal district court has held that Kansas's slayer statute does not apply to negligent homicide, and there appear to be no state cases interpreting the scope of the statute or applying it to negligent homicide. Rosenberger v. Nw. Mut. Life Ins. Co., 176 F.Supp. 379, 382–83 (D. Kan. 1959) (explaining that "the intent of the legislature in enacting the statute must have been to give effect to the common-law rule"). The Kansas slayer statute is essentially unchanged since Rosenberger. | Wills typically handle this by specifying a survivorship period. Such a clause may say, in effect, "I leave all my assets to my spouse, provided they survive me by at least 30 days, and otherwise to beneficiaries X,Y,Z." That way, if your spouse dies shortly after you, your assets go to X,Y,Z, rather than going to your spouse and then to their beneficiaries. Another issue this avoids: suppose you are in an accident together, and by the time rescuers arrive, you are both dead. Without a survivorship period requirement, courts might have to try to determine whether one of you survived a few seconds longer than the other, in order to decide whose beneficiaries get the assets. That could be difficult and error-prone, not to mention gruesome and upsetting to loved ones. But with such a requirement, it's not necessary. The linked article notes that in many jurisdictions, if you don't specify a survivorship period, there may be a statutory period that applies automatically. | For most civil matters the answer is "no". Small claims court is special since there are restrictions on using attorneys, and in that context, it depends on the rules. In Indiana, the answer in their manual is no Small Claims Rule 8 allows a person to appear at trial and, if he or she chooses, represent himself or herself and avoid the cost of hiring an attorney. However, a person is allowed to hire an attorney and have the attorney appear with him or her at the trial. A person who has power of attorney for another person may not represent that person in court. "Have the attorney appear with him or her at the trial" is pretty unclear, since it doesn't say whether the attorney can represent them. Rule 8(C)(1) states that "A natural person may appear pro se or by counsel in any small claims proceeding", which clarifies that they don't just mean "have at your side". In Minnesota, the answer is more emphatic "no": A power of attorney does not authorize a nonlawyer to file a claim, appear, or in any other way “represent” a natural person in conciliation court. As for allowing attorneys in small claims court, Attorneys are only allowed to represent parties in conciliation court with permission of the court (emphasis added). The situation in California is somewhat of a hybrid, but as I read it, it means that the incapacitated person is out of luck, which strikes me as surprising. They say Self-representation is usually required. There are, however, several exceptions to this general rule: If the court determines that a party is unable to properly present his or her claim or defense for any reason, the court may allow another individual to assist that party. The individual who helps you can only provide assistance—the individual’s participation in court cannot amount to legal representation, and the person can’t be an attorney. So this is most unlike Indiana is that you can't have an attorney, and all the person can do is "assist". So unless they just waive the rules, this means that if the individual is incapacitated, they cannot have recourse to small claims court. | The Probate Estate v. Non-Probate Transfers First off, keep in mind that only the "probate estate" is probated at all. Assets held in joint tenancy with right of survivorship, assets held in trust, and assets with a death beneficiary, for example, pass by non-probate transfer. Some states also have a rebuttable presumption that all tangible personal property which is not part of a business owned by someone in a married couple that is not subject to a certificate of title is owned in joint tenancy by right of survivorship in favor of a surviving spouse. The probate estate consists only of property held in the name of the decedent with no beneficiary designation and no joint tenants (although there could be tenant-in-common co-owners or co-owners as part of a general partnership). The Primary Domicile Probate The primary probate is generally conducted in the state and county in which the decedent was domiciled at death. Intangible property, including interests in entities, and the legal rights of the decedent are generally deemed to be located at that domicile for probate purposes. The common law choice of law rule is to have moveable property also governed by the law of the state of domicile. While it doesn't have constitutional standing, it is widely adopted. The unsecured claims (i.e. claims not secured by collateral) of third-parties against the decedent are deemed located at the decedent's domicile at death. A will contest is almost always conducted solely in the primary domicile state, and that resolution has collateral estoppel and arguably full faith and credit clause binding effect in other ancillary probate cases. Almost every state, however, recognizes the validity of a will that was valid where executed at the time it was executed. Estate plans of individuals with property in many states that would be subject to many ancillary probate proceedings are routinely devised so that the property subject to ancillary probate is either not subject to probate at all, because it is in a revocable trust or joint tenancy with right of survivorship or has transfer on death beneficiary, or it at least in an entity whose shares are handled in the primary probate rather than in an ancillary probate, when the decedent was represented by counsel (and it verges on malpractice not to recommend that this be done if estate planning counsel is aware of the facts). Of course, not everyone hires a lawyer to do their estate plan before they die (even if they meant to do so), so ancillary probates still happen. Ancillary Probate Proceedings When there is real property in the estate owned outright by the decedent, and not subject to a joint tenancy or other non-probate transfer (such as a transfer on death deed) and not owned via a trust or entity, then an ancillary probate must be opened up in that state to probate that parcel of real property. One if left in an ancillary probate dealing with real property and debts for which that property is collateral in the ancillary probate. But the ancillary probate is largely a formality and mostly defers to the rulings of the court in the primary probate case. Sometimes closely held business which is a sole proprietorship or general partnership (as opposed to an entity), with a state or local specific license, must be the subject of an ancillary probate. But more often, the closely held business is an entity with a license and tangible personal property held in the entity. In those cases, the stock or membership interest is intangible property that can be probated at the domicile of the decedent, rather than in an ancillary probate where the business is located. In other words, let's say a person lives in Maine, but has property in 20 different states. Various houses, boats, bank accounts, brokerage accounts, you name it. Does the will have to then be probated in every one of the states in which the various property resides? The bank accounts, brokerage accounts, and most of the etc. that are part of the probate estate would be probated in Maine. The houses outside of Maine and possible the cars and boats and sole proprietorship inventory, equipment and license transfers outside of Maine would be resolved in ancillary probate proceedings. Conflicts Of Law Between Primary And Ancillary Probate Laws What happens if the probate laws of the states conflict? The procedural rules of the forum state govern the ancillary probate, rather than those of the primary probate case. Every state adopted the general rule that the directions of a will are valid and enforceable subject to only a handful of exceptions, and in most cases, intestacy rules when there is no surviving spouse are likewise identical. Almost all states would honor a will admitted to probate in the primary probate state (and are arguably required to do so under the full faith and credit clause), even if it would not have been admitted to probate in the ancillary probate state. While it is theoretically possible to have a conflict of law regarding general partnership property, inheritance of general partnership property is largely governed by the Uniform Partnership Act and this model state law is, in fact, a law that has been adopted in every U.S. state and is uniform on this point in every U.S. state. The main circumstances in which there could be conflicts between the state probate laws are: quirky intestate situations (differences between per stirpes and per capita at each generation, or differences between treatment of half-blood or multiple line of descent heirs), exemptions from creditors (e.g. homestead rights, tenancy-by-entirety rights, special legacy property rules in some Southern states), details of slayer statutes (e.g. does negligent homicide count?), divorce revocation laws (not every state revokes will provisions in favor a divorced spouse), community property rights in property, mandatory inheritance rights of disinherited spouses (dower, curtsy and force share laws, some states treat this as a creditor's claim, others don't), and provisions for what happens when a specific devise fails because an asset no longer exists if the will doesn't specifically state what happens. It is fairly rare for this to come up in practice, however, since normally the ancillary probate forum state court defers to the primary state appointed executor's requests, and it is quite rare for that to be disputed by other parties to the estate in the ancillary proceeding. It happens, I've been there, but it is very uncommon. In those cases, there is little formal guidance. The forum state's law is presumed to apply, but that presumption can be overcome by showing that some other state has the most significant connection to the legal issue over which there is a conflict. The analysis is handled by the forum state court on a case by case basis in the rare cases where it comes up. The primary probate court can also sometimes make an end run around ancillary probate court rulings applying substantive ancillary probate forum probate laws to property in the ancillary probate state by ordering a compensatory adjustment in how property in its jurisdiction is distributed to conform to the laws of its state. A recent case from New Hampshire discussed how choice of law works in probate cases: We first address whether the New Hampshire probate division erred in applying Massachusetts’ pretermitted heir statute, rather than New Hampshire's RSA 551:10, to the testator's will. On appeal, the petitioner argues that, despite the language of Article Ninth in his mother's will, RSA 551:10 applies because his mother was domiciled in New Hampshire at the time of her death and her estate consists of only personal property. The respondent argues that “[t]he intent of Marie G. Dow is clear,” (bolding and capitalization omitted), pursuant to Article Ninth of her will, that Massachusetts law should apply and asserts that New Hampshire “give[s] effect” to choice-of-law provisions in wills. We agree with the petitioner. The probate division's findings that the testator's estate consists of only personal property and that she was domiciled in New Hampshire at the time of her death are not challenged on appeal and need not be disturbed. We review the probate division's application of law to undisputed facts de novo. Under New Hampshire law, personal property of a testator generally passes according to the law of the state of domicile. Compare Eyre, 37 N.H. at 120 (“The general principle of the common law is, that the right and disposition of movables is to be governed by the law of the domicil of the owner.”), with Mass. Gen. Laws Ann. ch. 199, § 1 (West 2012) (stating that Massachusetts, when administering the will of a non-inhabitant of the Commonwealth, will dispose of the estate “according to his last will, if any; otherwise ... his personal property shall be distributed and disposed of according to the laws of the state or country of which he was an inhabitant”). Our law comports with Section 263(1) of the Restatement (Second) Conflicts of Laws, which provides: Whether a will transfers an interest in movables and the nature of the interest transferred are determined by the law that would be applied by the courts of the state where the testator was domiciled at the time of his death. Restatement (Second) Conflicts of Laws § 263(1), at 121 (1971). Compare id. (pertaining to transfers of personal property by will), with id. § 239(1), at 48 (“Whether a will transfers an interest in land and the nature of the interest transferred are determined by the law that would be applied by the courts of the situs.”). Because the testator's will disposes of only personal property, i.e., “movables,” the nature of the interests in this property will be determined by the laws of New Hampshire — where she was domiciled at death. Restatement (Second) Conflicts of Laws, supra § 263(1), at 121. The law in New Hampshire is clear, and we are not persuaded that there is a reason to deviate from it in the instant case. The respondent relies upon our decisions in In re Farnsworth's Estate, 109 N.H. 15, 241 A.2d 204 (1968), and Royce v. Estate of Denby's, 117 N.H. 893, 379 A.2d 1256 (1977), in support of her position that Massachusetts’ pretermitted heir statute applies to the will because New Hampshire law honors the testator's intent, as expressed in Article Ninth of Marie G. Dow's will, to have her estate “administered and enforced according to the laws of the Commonwealth of Massachusetts.” This reliance is misplaced. The respondent emphasizes that the court, in In re Farnsworth Estate, “gave effect to the choice of law provision in [the testator's] will.” However, our review in that case was limited to the testator's designation of New York law as the law to apply to her testamentary trusts. In In re Farnsworth's Estate, the testator was a domiciliary of New Hampshire at the time of her death though her will was “drawn and executed in New York City.” The testator's will stated that it shall be administered in the State of New York and shall be construed and regulated by the laws of the State of New York.” We noted that the administration and validity of a “ ‘trust of movables ... created by will’ ” is generally governed by the law of the state of the testator's domicile at death, but explained that there are “ ‘two situations in which the law of another state may be applied to the administration of the trust. The first is where the testator has designated the law of another state as the governing law. The second is where the testator has fixed the administration of the trust in a state other than that of his domicile at death. We determined that the will “created both of these situations” and, thus, held that “these trusts were intended to be and should be administered in the State of New York.” Here, the testator did not establish a testamentary trust. The fact that the will at issue in In re Farnsworth's Estate disposed of the testator's property via testamentary trusts was essential to our reasoning and our decision in that case. see also In re Lykes' Estate, 113 N.H. 282, 284, 305 A.2d 684 (1973) (holding provision of will that testamentary trust be construed according to laws of Texas was “a valid provision which must be respected by this court” (citing Scott, supra §§ 574-75; Restatement (Second) Conflicts of Laws, supra § 268(1), at 143). The pertinent rules to apply to dispositions of property via will are dependent upon the form of the disposition and the form of the property. See, e.g., Haynes v. Carr, 70 N.H. 463, 463, 480, 49 A. 638 (1900) (“There is a wide distinction between a gift to charity and a gift to a trustee to be by him applied to charity.” (quotation and emphasis omitted)); Eyre, 37 N.H. at 120 (a decedent's personal property passes according to the law of the state of domicile, while real property passes according to the law of the state where it lies). Therefore, in the instant case, In re Farnsworth Estate does not support deviating from New Hampshire law as the law governing the disposition of personal property in Marie G. Dow's will. cf. Robbins v. Johnson, 147 N.H. 44, 45, 780 A.2d 1282 (2001) (“The pretermitted heir statute, on its face, applies to ‘wills,’ not to trusts.”). Similarly, the fact that the testator in Royce became a domiciliary of New Hampshire after she had become incapacitated and never regained capacity before her death was essential to our reasoning and our decision in that case. “The Royce holding was limited to the facts of that case, which are distinguishable from those before us.” In Royce, we recognized that, because the testator had no opportunity due to her incapacity to change her will after her move to New Hampshire, it was inequitable to apply the New Hampshire rule that the law of the domicile controls the succession to personal property when the testator had no opportunity to respond to New Hampshire law. Here, the testator had an opportunity to change her will after relocating to New Hampshire approximately a year before her death.3 Therefore, Royce does not support deviating from New Hampshire law as the law governing the disposition of personal property in Marie G. Dow's will. We note that our prior case law, contemplating the applicability of New Hampshire's pretermitted heir statute where the facts implicated more than one jurisdiction, has not expressly dealt with a provision like that of Article Ninth in Marie G. Dow's will, expressing her intent to have her estate “administered and enforced according to the laws” of another state — the Commonwealth of Massachusetts. See, e.g., In re Estate of Rubert, 139 N.H. at 276, 651 A.2d 937 (applying Virginia law to determine whether the plaintiff was a pretermitted heir entitled to an intestate share of the testator's personal property where the testator was domiciled in Virginia). While it is true that we attempt to give maximum effect to a testator's intent, our law does not support the application here of another state's pretermitted heir statute independent of the governing law of the testator's domicile at death with respect to dispositions of personal property. Section 264 of the Restatement (Second) Conflicts of Laws supports a testator's ability, in bequeathing interests in personal property, to select the rules of construction of another state for use in construing the language of her will. See Restatement (Second) Conflicts of Laws, supra § 264(1), at 125 (“A will insofar as it bequeaths an interest in movables is construed in accordance with the local law of the state designated for this purpose in the will.”); id. § 264 cmt. e at 126-27 (“The forum will give effect to a provision in the will that it should be construed in accordance with the rules of construction of a particular state.”). We have not expressly adopted this section of the Restatement, and we need not consider doing so here because even assuming without deciding that Article Ninth designated Massachusetts’ rules of construction for application to the will, neither Massachusetts’ nor New Hampshire's pretermitted heir statute constitutes a rule of construction. As will be discussed in section III, not only is RSA 551:10 not a rule of construction, it is a conclusive rule of law. We, therefore, hold that New Hampshire's pretermitted heir statute applies to Marie G. Dow's will because she was a domiciliary of New Hampshire at the time of her death and her will disposes of only personal property. Accordingly, the probate division erred in applying Massachusetts law to determine that the petitioner is not a pretermitted heir. In re Est. of Dow, 2019-0752, 2021 WL 199619, at *2–5 (N.H. Jan. 20, 2021) (caselaw citations omitted). The Role Of Federal Courts Notwithstanding the fact that parties to probate cases are frequently diverse in citizenship, there is an obscure court created doctrine that provides that probate cases are a matter of state rather than federal court jurisdiction. (The "well pleaded complaint rule" largely prevents federal question jurisdiction from applying.) Part of the legal justification for this is that probate cases are in rem proceedings that primarily adjudicate rights in a particular collection of property (everything owned by the decedent) rather than primarily providing in personam relief between citizens of different states or countries, the way that a lawsuit for breach of contract or a tort or an injunction might. So, unless title to the real property arises under the conflicting claims of two different states (which almost never happens for obvious reasons in the modern era of accurate surveying of state boundaries), diversity jurisdiction is not implicated. | 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. | First, agree w/Dale M re: it would be an egregious and likely career-ending move for an attorney to fake his representation. That said, there is likely no reason why you would be unable to request such proof of representation. Your job consists of protecting the assets of the trust, carrying out any other duties outlined in the trust document, being honest and in communication with the trust's beneficiary, managing the assets, and ending the trust as determined by the trust document. Several of those points (particularly the "protecting the assets" part) argue heavily in favor of your confirming the veracity of any claims involving the trust and/or the identity or true intent of those seeking any information, etc., with respect to the trust. Also, demand letters are letters stating a legal claim and usually asks for restitution or performance of an obligation. It's not entirely clear what constitutes a "demand letter requesting information" unless you have a legal duty to provide that information (and this would - or should - be stated in the demand letter itself). Finally, should you be unable to obtain the confirmation you're seeking, you should consider consulting a trust administration attorney. In most cases, you may use trust assets to pay for expert help (including tax preparers and accountants). |
Do US presidential pardons include the cancellation of financial punishments? https://www.cnbc.com/2021/01/20/anthony-levandowski-pardoned-after-stealing-trade-secrets-from-google.html says: Anthony Levandowski pardoned after stealing trade secrets from Google In August, Levandowski was sentenced to 18 months in prison for stealing trade secrets. In March, Levandowski declared bankruptcy after a court said he had to pay $179 million to Google over his split with Waymo. Do US presidential pardons include the cancellation of financial punishments? | Yes Presidential pardons only deal with breaches of Federal law. So, if the punishment is a fine then that penalty is waived. However, if the fine is punishment for breach of state law, the pardon does not touch it - he would need a pardon from the relevant state Governor(s). But Anthony Levandowski is not being punished with a fine, he was punished with a jail term. What he owes Google is damages for breach of contract or a tort, both civil matters and almost certainly under California law, not a punishment for an offence. This is not something he can be pardoned for by a President (if under Federal law which is unlikely) or a Governor (if under state law). His actions constituted both an offence against the state, which can be pardoned, and caused damage to another person (Google) which can’t. He owes this money as a debt just as if he had bought something from them or borrowed money from them. | Here's a constitutionally plausible answer: he isn't going to threaten to not repay bondholders, thereby not implicating the 14th Amendment. All I said is that if interest rates go up, we'll have a chance to buy back bonds at a discount, which is standard [...] Certainly I'm not talking about renegotiating with creditors. | 26 USC 7206: Any person who— (1) Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter [...] shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 3 years, or both, together with the costs of prosecution. ("Return", as defined in 26 USC 6696, includes an income tax return.) This clause notably doesn't care whose favor the falsification was in, or why you did it. You knew it wasn't true and you put it on your tax return anyway, and you declared under penalty of perjury that it was true and correct. That's a felony, end of story. (Paragraph (4) of this section covers some other types of fraud done "with intent to evade" taxes, but that restriction does not apply to paragraph (1).) The likelihood of actually being prosecuted in such an instance is beyond the scope of this site. But in the given case, the falsification really isn't in the government's favor. The purpose was to become eligible to collect government social security benefits, which you otherwise wouldn't be eligible for. Presumably you would only bother to do this if you thought you'd collect more in benefits than you pay in extra tax, which means the government loses in the long run. This also eliminates any chance you'd have of claiming the falsification was "immaterial": it affected your eligibility for social security, and you knew that - it was the whole reason you did it. | This article sums up the state of the law regarding presidential pardon power. In no case has the court ruled that there are people who are unpardonable. There is no question that a presidential pardon is only available for criminal offenses against the US (not civil contempt of court, but including criminal contempt). Presidential pardons do not require higher approval. | Yes. The absence of immunity for a U.S. President's unofficial acts was established both in the Nixon Administration and later in the Clinton Administration. In practice, a prosecutor would be loath to file such charges absent very, very solid probable cause, and a court would often be very deferential in accommodating the President's schedule and, for example, in allowing appearances by telephone when allowed by law, or by electing not to seize the President's passport as a bail condition to be free pending trial, as would be common for someone facing felony charges pending trial. But, ultimately, the President does not have the right to either defer the charges until the completion of his term, or to any immunity from charges for his or her unofficial acts. | This is a civil case, taking away your freedom is only for criminal offenses. Not paying your bills is not a criminal offense. It is up to the creditor to look for your assets, etc. A court can make you show up and answer questions about your assets and income. While you are in court the judge can make you give your gold watch to your creditor. Outside the parameters of the question there are circumstances like failure to pay child support when you do have the funds that can lead to incarceration. In some places you can be jailed for contempt of court if the court requires your presence to let the creditor have the ability to try to get access to your assets and you do not show up. | Not all illegal things are crimes. Lack of evidence. They are asked to testify, and they say "what I said in my book was a lie". There is no general law against lying, except when under oath. Statute of limitations. Saying "10 years ago I did smoke drugs" means that any offence is no longer prosecutable. Lack of details. Which jurisdiction were they in? When did they commit the act, how many acts? You cannot be arrested for being a "bank robber" or a "murderer". You are charged with "robbing Bank X on 123 Fake Street the Thursday 25 April 2018" or "murdering Jim Thio in January 2017". Otherwise the defendant would have a hard time defending himself (how to prove that you have not killed anyone at any time?) All of the above combined with prosecutorial discretion in the form that any possible prosecutor will most likely determine that bringing charges would be just a waste of time and resources. UPDATE February 2018: Just for the sake of completeness, a reference to the situation of Jacques Cassandri, who did boast about a serious crime(a robbery in a Societe Generale vault in 1976) in a book. Unfortunately for him, he made some kind of mistake/miscalculation and the crime had not yet expired, so he has become an example of someone being prosecuted by confessing a crime in a book. | It depends on what the jury said, and if it's criminal or civil. In criminal cases, the judge may almost never set aside a verdict of acquittal. There is a single case in the US in which this happened, and it was a bench trial (no jury). That case featured the defendant bribing his trial judge; the Seventh Circuit held that he was never in jeopardy due to the bribe. As far as I can tell, that's the only one. There have been no cases that I can find of a jury's verdict of acquittal being overturnable. Judges can poll the jury to make sure they're unanimous (at least in federal court), and if they aren't then it's a mistrial, but that's because the jury was never in agreement in the first place. On the other hand, a judge has several ways to enforce an acquittal. In federal court, for instance, the defense can move for a motion of acquittal either before or after the case goes to the jury. If the motion is granted before the verdict, double jeopardy applies to retrial. If it's granted after a conviction, then the judicial acquittal can be reversed on appeal, possibly requiring a new trial. Before the verdict is returned, the judge can declare a mistrial. After the verdict is returned, it's too late for that. In civil cases, things are more complicated: double jeopardy does not exist there. There, there is a notion of a judgment as a matter of law: the judge determines that, based on evidence presented, no reasonable jury could possibly find the other way. This can happen before or after the verdict, and is appealable. |
Will Naver own all user content on Wattpad when the sale goes through? On January 19, the Naver buy of Wattpad was reported. I am concerned. To my knowledge, Wattpad has allowed users to retain the copyright on their content published on the site, as supported by this Quoara. The linked article says "acquisition expected to close in the second quarter of Wattpad’s fiscal year." More sources: https://www.reddit.com/r/toronto/comments/l0yq3y/toronto_startup_wattpad_to_be_acquired_by_south/ https://www.reddit.com/r/Wattpad/comments/l0uz9e/wattpad_sold_to_south_korean_giant_naver/ https://betakit.com/wattpad-to-be-acquired-by-south-koreas-naver-corp/ https://www.reddit.com/r/Wattpad/comments/l0uz9e/wattpad_sold_to_south_korean_giant_naver/ However, I am highly concerned with the effects of the deal, as I found out from my friends. Reading the Naver terms of service, it seems that when the sale goes through, Naver will now own all user content. Once you delete your content, Wattpad no longer retains it. it is gone permanently, or so I think. Some of my friends have already done it, and fear that I will have to delete all of my content so Naver cannot own it. How will it affect the copyright of user-made content? We already suspect that Naver is probably probing the site, and maybe even cataloging it for "data collection. Also, when exactly is the "second quarter of Wattpad’s fiscal year."? It doesn't help that the Wattpad Help Ceneter has been suddenly and explicitly shut down. The relevant section of Naver services, I think, says all this. We will value all contents provided by you. Naver hopes your posts shared with other users through Naver Services will enrich the lives of all of us. Posts refer to various contents or files composed of signs, texts, voices, sounds, pictures, photographs, videos, links, etc. that you post on Naver Services in order to show them to yourself or others. Naver promises to safely protect the contents that express your thoughts and emotions. Of course, you have your own rights such as intellectual property rights regarding the posts that you create and post. Meanwhile, in order to duly provide the posts that you have posted through Naver Services, Naver needs to have a legitimate right to use your contents such as a license to store, copy, reproduce, modify, publicly transmit, display, distribute, and create derivative works (only limited to translation) of such contents (license without any restriction on term or territory and royalty free). Since you will be granting Naver such license by posting the content, you must have the necessary rights to do so. Pursuant to applicable laws such as the Copyright Act of the Republic of Korea, Naver will exercise such license granted by you, to use your contents, only to the limited extent of exposing the contents within Naver Services, utilizing them for promotion of Services, conducting research and development on service operation, improving and developing new services; complying with legal obligations such as web accessibility; allowing search, collection and links from other sites. If Naver unavoidably needs to use your contents for other purposes, we will explain it to you and receive your consent in advance. Moreover, valuable contents that you provide may be used by Naver and its affiliates for purposes of research and development related to artificial intelligence technology, etc. in order to improve Naver Services and offer new Naver Services. Naver will do its best to provide you with more convenient and useful service through continuous research and development. Naver is committed to providing various means of making it easier for you to manage Naver or other users’ use of or access to the contents that you provide. If management functions to delete or make your contents private are provided within the Naver service, you may directly control others’ use of or access to your contents. Also, you may request measures to delete, make your contents private, or exclude your contents from search results to the Customer Center. However, for some Naver Services, it may be difficult to delete or make your contents private, so please check the details provided by Information and Notice sections under each Service and Help section under the Customer Center. | The Current Wattpad TOS says: When you post content to Wattpad, we need the legal permission under applicable copyright laws to display that content to users of the Wattpad Services. Legally this means you give us a nonexclusive license to publish your content on the Wattpad Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). The wording is different and shorter than the Naver terms quoted in the question, but in both cases the poster grants the service a non-exclusive license to the content. Naver specifies that this includes the rights to "store, copy, reproduce, modify, publicly transmit, display, distribute, and create derivative works (only limited to translation)" while Wattpad gives the more general "anything reasonably related to publishing" and specifically includes "storing, displaying, reformatting, and distributing". The other rights listed by Naver seem probably included in "reasonably related to publishing" with the possible exception of a right to "create derivative works (only limited to translation)". It dopes not seem that the rights claimed by Naver will be very much more extensive than those already granted to Wattpad. Nothing in the Naver terms quoted says that Naver will "own" the content uploaded by users. In addition although Naver will purchase Wattpad, one news story says "Lau confirmed Wattpad will continue to operate independently" which may well mean that its TOS will be unchanged -- it is not unusual for different services of the same owner to have different TOS documents and terms. Moreover, if the Naver terms did grant Naver significantly greater rights in the content uploaded by users, it is not clear that they could unilaterally obtain greater rights in content previously uploaded without some form of consent by the uploader-owners. In short, I think the concerns expressed in the question are overstated. | THE FOLLOWING OPINION IS NOT LEGAL ADVICE Based on your screenshot and description, I don't see anything infringing. If the data you are using is from your own sources, and what you show is not a scan or photo of their guide, and your layout is thus unique in specifics (not a direct copy), it wouldn't be an "infringement" as far as copyright law is concerned. Things you cannot copyright: A font (except as a computer font file but not as used in a document). A concept (a main issue here). A idea for a "way" or "order" to display data. Mere data or facts can not be copyrighted nor can ideas. Anything sourced from the US government (trail data, topos, etc.) Something not in printed, physical, or recorded form. That is, the copyright only extends to those things as they are realized in print, or as a recording for audio or video, or a physical statute, etc. A live performance is not copyrightable for instance, nor are ideas. The Law: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. For instance, an icon of a TENT is the common form (like a font) of indicating a camp ground. They may be able to copyright the specific instance of their tent icon, but they cannot prevent you from using some other triangle to represent a tent for a campground. And in facts yours is completely different. Displaying data a particular "way" like 1e for 1 mile east is not copyrightable when it is common for the type of guide. It's just data. CONCEPTS AND DATA ARE NOT COPYRIGHTABLE, only the ACTUAL specific page or work in total as rendered. More below, but your page seems totally different. OTHER FORMS OF IP PROTECTION Now, just because some intellectual property can't be protected by copyright, does not mean it is a free-for-all. For instance, a "way" of doing something can be PATENTED (process patent). And "ornamental design" can be given a design patent. A logo or brand name can be given a trademark. Here's an interesting court ruling on the subject of data display. Basically it can't be an abstraction/concept. It has to be in a definable, physical, novel form. NOTE: it has been possible to copyright a "look and feel" but that applies to software, not static printed media. And the courts have been reversing on that a lot as time goes on. BUT WAIT...THERE'S MORE So, I am going to GUESS that you are talking about AT Guide by David Miller? It's pretty rich of him to claim copyright over the "manner of the display of data" when APPARENTLY he is using concepts of data display as described by EDWARD TUFT So, LOL. Is this the guide they claim you are "copying"?? THESE AREN'T THE ICONS YOU'RE LOOKING FOR Okay, so let's go one by one and their claims against you: 1. The way of representing distances between shelters "The Way" of presenting something is not copyrightable, only an expressive or final form. Some forms of "organization or selection" that may make a work in total copyrightable, but not on their own in isolation. 2. The sideways orientation of the elevation profile Presenting some elements "sideways" is not copyrightable (WTF LOL OMG RUS) the same as number 1. Turning an element sideways does not, on it's own, rise to the level of "creative or non-obvious." 3. The icons Your icons are completely different. If you copied and used his ACTUAL icons, you might have had some issue, but your icons are not even remotely the same. Using icons to indicate services or features is COMMON. Not copyrightable. http://www.dmlp.org/legal-guide/works-not-covered-copyright In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.) 4. The convention of representing direction/distance for waypoints. Again, "The Way" of doing something is not copyrightable, nor is data or facts. 1.1E or 2.3NW are common are they not? I've seen similar treatments elsewhere. It's "obvious and not novel." FINAL FORM, EXPRESSIVE FORM is copyrightable NOT FORMATTING CONCEPTS. Basically, he is saying something along the lines of "I'm formatting paragraphs with a double space, so you can't." The "actual" icon drawings he used are copyrightable. Your icons are clearly different. I assume your mountain-top profile line is taken from some publicly available survey source? So long as you never used a scan of the actual line he uses (and even then?), because he cannot copyright the mountain top profiles themselves! DOES HE EVEN HAVE A VALID COPYRIGHT? For that question, I'd say yes with limitations. His work is a compilation of data. Data can not be copyrighted, but the unique arrangement can in context of the work in total. These three conditions must ALL be present (from http://www.rbs2.com/ccompile.pdf): The collection and assembly of pre-existing material, facts, or data. The selection, coordination, or arrangement of those materials The creation, by virtue of the particular selection, coordination, or arrangement of an original work of authorship. So It seem to be that his guide meets these, but his copyright is for his work in total. You are NOT using his data. You are using your OWN data. Based on my reading of Key vs Chinatown Today you are not even close to infringing. You are doing your OWN selection, and your OWN arrangement. It does not matter that you may be using some similar typographic or charting conventions. Those cannot be copyrighted. You are doing your own thing, and "similarity is not infringement." SEARCH AND YOU WILL FIND On the subject of the copyright, here's the copyright on AT guide: https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=A.T.+Guide&Search_Code=TALL&PID=FgMjtJ244OxoFULrVoob_CEI8bc_M&SEQ=20190506230418&CNT=25&HIST=1 If the link doesn't work due to expiration or a cookie, it should look like this: It's a matter of using the USPTO search engine "its way" — it's not Google and requires specific search strings. Looks like the assignee or owner is https://antigravitygear.com ? Did THEY contact you or David Miller? Or did they claim to be an attorney? I'd love to see the email. Attorneys don't email dunning letters, by the way (though they may if it was a DMCA takedown request I suppose, but I still doubt it.) If it was an attorney it would be via US mail on attorney letterhead. To the best of my knowledge, you can't file proof of service on an email, it has to be USPS or trackable. This means the guy that made the other PDF is annoyed or whatever. If he claimed to be an attorney, that's VERY illegal if he's not. And one final note: Just being non-profit does not absolve you of copyright infringement. But as I said, I see no infringement here. The other answer that asserted these are covered under "works of art" is not withstanding. There is nothing "expressive" about Miller's guide. Also that other answer cited a source for AUSTRALIAN law, not US. Mere typographic elements do not rise to "an expressive work of art". A mountain profile that is nothing but a illustrative line based on data also does not. | First off: Legally, everything is copyrighted anyway. Licensing is not at all necessary. Hence, even if a court would disagree with # SPDX-License-Identifier: Apache-2.0, that would just make it closed source. Having said that, the law generally doesn't bother with trivialities such as "file headers". Any commonly accepted way to state the copyright and license terms is OK. Your LICENSE is such a common convention. If you want to avoid all doubt what is covered under that license, put a reference to that LICENSE in each header. If you have just five files in one directory that are all licensed the same, I wouldn't even bother with that. Again, the default position is that everything is closed source. | Is that extortion? false advertising? or in any way illegal? Not at all. The owner of the site is simply exercising his right as outlined in the terms and conditions from when the user signed up. And giving users an option for continued use of the site (that is, for him not to exercise a right of which they were always aware) does not constitute extortion. | No LLC or corporate entity exists around or in relation to SoftDAO. That's a bad thing, not a good thing, to those involved. Mr. Founder is obviously liable. When he wrote the DAO, he intended that it compete with IncumbentCo, and thus almost certainly intended that the software would violate the patent. And it doesn't matter that he's not the majority owner - he's still a part owner, meaning he's profiting from the infringement. Furthermore, he promoted the scheme, and according to 35 U.S. Code § 271(b), "Whoever actively induces infringement of a patent shall be liable as an infringer." Mr. Large, and any other identifiable part owner, is liable. Mr. Large did not commit a crime himself and generally is a good citizen. Good for him. But lots of people get sued that never committed a crime. Suing Mr. Large is like suing an Enron shareholder for owning Enron shares. Typically we do not sue shareholders. But he isn't a shareholder, and that's critical. If you want the benefits of a publicly traded company, you need to actually make a publicly traded company. Mr. Large is being unfairly targeted simply because he is a public figure with association with the project due to the Fortune Magazine article. Yes, he's being sued because of the article, but so what? It's like saying the police unfairly targeted you for an underage drinking citation because you were dumb enough to post yourself on Facebook. That argument won't fly in court. IncumbentCo can pick who they want to sue. It is nearly impossible to prove that Mr. Large is the 30th largest owner of SoftCoin. Court warrant allowed the Court to find some of Mr. Large's public keys on the SoftCoin blockchain, but the blockchain says he is actually only the 100th largest owner now. It doesn't matter. He's a part owner, by his own admission and by the blockchain evidence. The developers are also liable, also potentially for the whole amount. They created software that infringed a valid patent, and profited from it. If they can't shut it down, they can't shut it down, but they're going to be paying. I'm thinking this is a case where joint and several liability applies; IncumbentCo can go after any particular one of the owners and developers for the entire amount if they feel like it, and then it would be up to that person to then sue anyone else he thinks is partially liable. If Mr. Large is a billionaire and could pay the entire judgement himself, they might just do that. They'd probably go after Mr. Founder for as much as they thought they could get out of him, though. The users are also liable, since the law provides that using a patented invention without authority is infringing. But they're only liable for their one copy, and IncumbentCo may not bother with them, at least initially. However, the SoftDAO owns no assets No, but IncumbentCo is going to seek injunctions against selling SoftCoins or running the software. Could some people slip through the cracks? Sure. People infringe copyright all the time online, and only some get caught. You could easily imagine someone selling pirated software in exchange for cryptocurrency. This would be little different. | Not only can’t you trademark it, you can’t use it The original logo is covered by copyright which belongs, prima facie, to the original artist. It doesn’t matter that they are based in Russia; Russia and the US are both signatories to the Berne Convention which means they protect each other’s copyright. That means you can only use it if it is fair use (it isn’t) or if you have the copyright owner’s permission (you don’t). Could I still use the logo I bought and trademark it in the US granted that the seller had made some revisions to the stock photo he found? Not if the seller didn’t have permission to make those changes. Creation of a derivative work is one of the exclusive rights copyright gives. The seller had changed up some parts of the stock image, this includes color scheme, orientation, and made the picture look a little low poly. See above. The original artist of the stock photo is based in Russia and as far as I can see there is no registered copyright on it and don't think they could apply for US copyright anyway. They already have copyright. They would need to register it in the US before they could sue but there is no impediment to them doing so. While I'm not sure where the seller (located in Pakistan) officially downloaded the logo, I had nothing to do with the final design of it or downloaded anything from a stock photo website myself, so I'm not sure if I'd be bounded by any terms of the stock photo website Makes no difference. Just because you didn’t steal the car, that doesn’t make it ok for you to drive it. The stock image is very niche and a bit random. Across all the websites the artist has published it on, it has about 5 or 6 downloads altogether. Not relevant at all. As far the copyright of the seller's work goes, the Fiverr terms state that buyers have all the copyright, though I don't know if this is nullified by the use of the stock image. You can’t sell something you don’t own. If the seller had no right to upload the photo (as it seems they didn’t), the terms of the website don’t matter. The true owner never agreed to those terms and isn’t bound by them. | According to the current version of the TOS: You own the rights to the content you create and post on Medium. By posting content to Medium, you give us a nonexclusive license to publish it on Medium Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). In consideration for Medium granting you access to and use of the Services, you agree that Medium may enable advertising on the Services, including in connection with the display of your content or other information. We may also use your content to promote Medium, including its products and content. We will never sell your content to third parties without your explicit permission. This explicitly says you own your content, although Medium has some rights to do some things. And they won't sell it without permission, so unless Medium itself is publishing this book, it would seem to be copyright infringement. (Of course, I don't know what the TOS said when you originally wrote the article.) If what was copied was not copyrightable (like a quote from the Constitution, or a simple uncreative graph of something obvious) then it wouldn't be infringement. But your article was probably more than that. | The length of a literary work doesn't determine if its use is fair use. Copyright does not cover names, titles of works, catchwords/catchphrases/advertising slogans etc. or lists of ingredients (like in a recipe or chemical instructions), however, the procedure can be copyright. The work must also be original. If the tweet copies something that already exists then there is no copyright in the tweet - if the thing that is copied has copyright protection then the tweet itself may be a violation. That said, assuming that the Tweet enjoys copyright protection, the owner will be the author: presumably the owner of the Twitter account. For anyone else to legally use it, the use must be either: Licensed by the copyright owner Fair use (USA) or Fair Dealing (most everywhere else in the English speaking world) For Item 1, the Twitter terms of service say: You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). In case you don't know what that means, Twitter gives you this plain English summary: Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same. So, you can get permission from the copyright holder or from Twitter. Well, Twitter has given permission: Except as permitted through the Twitter Services, these Terms, or the terms provided on dev.twitter.com, you have to use the Twitter API if you want to reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Twitter Services or Content on the Twitter Services. Providing you use their API, you can "reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the ... Content ..." Therefore, fair use/dealing considerations are irrelevant. |
Shoud a company send to customers of its clients notice when getting data about them under GDPR Article 14? A SaaS company (A) provides services, (e.g. web hosting) for its clients, (e.g. web agency B). The clients can create websites for their customers (C) and host them using the web hosting. Web agencies can also create child accounts for their clients in the hosting dashboard (user management). Child user accounts or hosted websites may contain personal data. According to GDPR Article 14, should A send notice about private data to C when B creates child account for C or hosts site of C? | No, The SaaS company should strive to be a Data Processor for the web agency, and the web agency will likely want to be a Data Processor for its customers in turn. A Data Processor processes the personal data only as instructed by the Controller. The SaaS company should not be a Data Controller itself. Being a Data Processor requires a contract that fulfils the condition in Art 28 GDPR. It is the Data Controller's responsibility to provide transparent information to Data Subjects. However, some of the involved tasks can be outsourced to a Data Processor. If the SaaS company deals with customers directly, the company might be a Controller for some and a Processor for others, or possibly both but for different processing activities. This depends on whether the customer is a Data Controller, Data Subject, or both in this context. If the SaaS company receives data from third parties in its capacity as a Controller, then yes, it must inform the data subjects as required per Art 14. But the mere creation of an account would likely not mean that personal data was obtained from a third party. This ultimately depends on the details of the account creation process, though. | GDPR definitely applies. Your scenario seems to raise two questions: What is the legal basis for processing? Are the security measures appropriate? Legal basis Every processing activity of personal data requires a legal basis. Most well-known is consent, but there are six categories in Art 6(1) GDPR including legitimate interests and necessity for performing a contract with the data subject. Conditions on consent are laid out in Art 7 GDPR. You say that data subjects “explicitly agree to the website's privacy policy and GDPR”. The GDPR does not generally expect “agreement” to a privacy policy, as information per Art 13 is an unilateral notice. Such general agreement also cannot constitute valid consent. In the context of certifications, the legal basis would likely be necessity for performing a contract with the data subject: You were contracted to provide this validation service to the data subjects. You should however make it clear which information will be displayed on the validation page (other than a valid/not valid) response. For example, I am concerned that showing the email address would not be strictly necessary for providing the validation service. You should also consider whether this validation service is a core component of your certification service, or whether there should be an opt-in or opt-out here. Security Measures The GDPR requires that you implement appropriate security measures, “taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms” of the data subjects (see Art 32 GDPR). This gives you a lot of leeway to determine what measures are appropriate, but also criteria that you must consider in your determination. A number of security measures are explicitly suggested and must also be considered: pseudonymization and encryption ensuring confidentiality, integrity, availability, and resilience of your systems ability to restore the service (e.g. backups) processes for regularly testing and evaluating your measures Aside from generic IT security measures like backups and providing the service over a HTTPS connection, I would be concerned about “insecure direct object reference” style attacks on the database. If I know that certification no 1234 exists, I could try to get the information for other numbers like no 1233 and so on. This would leak personal data. Basic defenses could include requiring additional information such as the data subject's name to be provided, or using anti-bot measures such as captchas and rate limits. However, the real solution is to avoid sequential IDs, and to generate sufficiently large tokens with a cryptographically secure random number generator. Instead of a “certification number”, it would be better to view this as a “validation code”. | In Germany it's not so clear: https://www.lfd.niedersachsen.de/themen/datenschutz_im_kfz/kfz-und-datenschutz-148981.html The situation is different with regard to personal data collected in connection with the vehicle. Data is personal if it relates to a "specific person" or at least to an "identifiable person". A person is "identifiable" if, for example, he or she can be identified via the vehicle identification number or other additional knowledge. The Federal Data Protection Act (BDSG) therefore applies in these cases. The BDSG in turn contains a clear statement: the data "belong" to the data subject. Related to the motor vehicle: The data "belong" to the driver or owner of the vehicle. | 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 tricky bit from a GDPR standpoint is that the US has a law that says a US-based company must hand over data to US government agencies even if the data is stored outside the US. This is US specific and a case where the US government gives itself jurisdiction outside the US but the EU can't directly do anything against it (outside of international negotiations). As you noticed this means if you store data at a US data processor there is no real difference whether the data is physically stored in the US or the EU. So to avoid transferring EU consumer data to the US several steps are needed. First the servers have to be physically located in the EU and second the company needs to be non-US based, EU based seems the obvious choice. AFAIK constructions of a US-based company creating a fully owned EU-based subsidary are currently used to achieve the second part. Whether this is sufficient may have to be decided in court. | Term 1 isn't going to hold up, but that is not a GDPR matter. It's just a matter of basic consumer protection law in the EU. You can't offload responsibility for your mistakes. Looking at 2, Dale M. already pointer out that it's now how the GDPR works. You are the Data Controller. X,Y and Z are Data Processors. Article 28(1) of the GDPR is in direct conflict with your disclaimer. You accept zero responsibility, the GDPR says you are fully responsible. That's the exact opposite. | Under GDPR article 6 paragraph 1 item (c) one lawful basis for processing personal information (PI) is: processing is necessary for compliance with a legal obligation to which the controller is subject; The obligation to attribute a reused work under a CC license is such an obligation. Moreover, the licensor has the option under any CC license to specify a pseudonym for attribution of that work, or to waive attribution totally. Not doing that while releasing content under a CC license that requires attribution could reasonably be considered consent to publish that name along with each re-released copy of the work, so there are at least two lawful bases for processing that name and making it public. In some jurisdictions the license has the status of a contract, which imposes an obligation to attribute the author properly under GDPR Article 6 paragraph 3, as described in more detail in the answer by amon. Also, usernames are PI if and only if it is reasonably possible to associate them with a specific natural person. If a person chose a user name for a single site, not used for any other, and did not post any info that allows the person's identity to be determined, it is not PI. Often, of course, the person can be determined. | You're misreading the law. You need to keep reading the section you referenced (emphasis added): The disclosure...shall be made in writing and delivered through the consumer’s account with the business, if the consumer maintains an account with the business, or by mail or electronically at the consumer’s option if the consumer does not maintain an account with the business Thus, the option to have the disclosure sent by mail only applies to consumers who do not have an account with the business. Since presumably a large number of sites only maintain personal information for users with accounts, such sites need not provide a mail option. Further, it doesn't say there needs to be a button: you just need the ability to say you'd like it mailed to you in the request somehow, and then they need to comply when you do. |
Paying material and labour costs v. full quote I was given a quote by my contractor (approx. 30K) which included both a labour component (18K) and a material component (12K). However, for various reasons he insisted I pay for the material myself, direct to the retailer. I agreed. In the end, the material costed significantly less (approx. 7K). However, the contractor is insisting on the full amount, claiming that had I not paid the material I wouldn't have known the difference in cost and he was taking the risk with the quote. Is this how it works? Am I supposed to pay the full quote regardless? (No, the quote was not itemized and we didn't agree to an hourly rate. It just listed labour and material. I was fine with the 18K for labour and still am. His final invoice is not itemized either). Location is Canada. Edit to clarify: He's looking for the full 12K for material and then pays me back the 7K. | Is this how it works? Am I supposed to pay the full quote regardless? No. The contractor is plain wrong. Your agreed commitment to obtain materials directly from the retailer supersedes the initial agreement that totaled 30K. In other words, you two amended the contract. Since then, your obligations under the amended contract were to provide the materials he requested and to pay for labor costs. the contractor is insisting on the full amount, claiming that had I not paid the material I wouldn't have known the difference in cost and he was taking the risk with the quote. That is inaccurate. Once he delegated to you the task of obtaining materials directly from retailer, he exempted himself from any and all risks of giving an inaccurate estimate of the cost of materials. In fact, he shifted to you that risk. | No employer has ever the right to withhold your pay check for work you have done. It is strictly illegal. Even if they had 100% evidence that you caused damage and were responsible for that damage, they still can't withhold your pay. They have to pay you, and then they can try to take you to court. The reason for this law is exactly cases like yours, where people try to avoid payment. If the "powerful attorney" tells you that you are not getting paid, then that "powerful attorney" is making a big mistake, because any lawyer would love to take your case to court and see the judge cutting the "powerful attorney" down to size. If you don't want a lawyer now, then you can write a letter by registered mail telling them that you worked for them, how much the payment due is, that they are legally required to make that payment, and that you will take them to court if they are not paying. If there is a conflict between law and a "powerful attorney", the law wins, and the law is on your side. | Is there any sort of implied expiration date for a contractor's completion for medium size contractor jobs (< $10k)? Absent a provable deadline, the question would be whether the delay is reasonable (or habitual) under the circumstances. The contractor's presumption that he can do whatever he wants regarding unspecified aspects of a contract is inaccurate. Those matters can still be decided on the basis of contract law and/or under principles of equity. See also the Restatement (Second) of Contracts, which is frequently cited by U.S. courts, at §235(2) and §243 regarding non-performance of a contract. Will my verbal complete-by date hold up in lieu of any written complete-by date? It depends on each party's credibility. Proving that he essentially ignored your follow-up requests will make it harder for him to credibly refute your assertion about the verbal deadline. In case none of your follow-up efforts (or none of his responses) are in writing or if he denies that you repeatedly called him, you might want to subpoena his phone service provider --if the matter goes to court-- and file as evidence the resulting production of records. | I am not a lawyer. I am not your lawyer. The Labour Program has issued an interpretation on the definition of "wages", and specifically includes commission. In section 166: “wages” « salaire » “wages” includes every form of remuneration for work performed but does not include tips and other gratuities; and in Section 183: “vacation pay” « indemnité de congé annuel » “vacation pay” means four per cent or, after six consecutive years of employment by one employer, six per cent of the wages of an employee during the year of employment in respect of which the employee is entitled to the vacation; And assuming that the employer and employee are, in fact, in an employee-employer relationship, it is likely that he/she will be entitled to 4% of the wages during the year of employment, including commission. | "There's no ... contract" - wrong! The emails are the contract, see What is a contract and what is required for them to be valid? If you didn't agree on which laws will apply then that is a matter for the court to determine. In general, they will tend to look at where the bulk of the work was done - since you are being charged I assume the work was done in the UK so probably UK law applies, noting that the UK is actually 3 different jurisdictions (England & Wales, Scotland and Northern Ireland). That said, many jurisdictions have non-excludable laws around contracts, particularly consumer contracts that apply irrespective of the substantial law applying to the contract. It is therefore possible that you apply English contract law subject to, for example, Australian Consumer Law. Usually any consumer protection law in the vendor's jurisdiction will also apply. General contract law dictates that where a price was not agreed a reasonable price must be paid. If its reasonable that the editing should have been included in the original price charged then you don't have to pay more but if it isn't then you have to pay a reasonable amount for it. There is generally no requirement for estimates or any other method of determining the price - you just have to do what's reasonable. However, consumer protection law generally imposes more obligations on a business than general contract law. It is likely that your contract is ambiguous - courts will endeavor to fill in any ambiguities to make the contract work. techniques include read in implied terms to give "business efficiency", from custom or business usage (e.g. if particular industries typically deal with particular issues in particular ways), from previous dealings (i.e. what the parties have done in the past), from statutes, whatever works to resolve uncertain, meaningless or ambiguous terms, from the express words used or from the nature of the contract or from the common intention of the parties (i.e. the court might ask you what you meant). "Breach of contract" is a very broad term - it simply means that one of the parties hasn't done what they were required to do and allows the other party to sue for damages. | The statement "you don't need to put it in writing" is not an instruction, and should not be interpreted as on in lieu of other evidence (e.g. the follow-up question "you don't want to get fired, do you?"). It is, at best, a recognition that your concerns have already been noted (and at worst, a ham-handed threat). In the context of an at-will non-union position, it is legal for a boss to directly demand "take it or leave it, no back-talk allowed". The reduction in salary can't go below the statutory minimum, or otherwise circumvent any laws, but assuming that the new salary is per se legal, they can demand that you accept it and not argue. If this were a government position, there is a potential (but not guaranteed) First Amendment issue. | What follows is a broad overview. I'm not an expert in this; I just have a bit of experience in this due to a tax situation my wife & I experienced a few years ago. Please do not rely on this advice except as a starting point for more Googling. Your obligations (and your assistant's) will depend on whether the assistant is an employee or an independent contractor. In general, an independent contractor is someone you hire to "get a job done"; you have minimal control over the manner, time, place, tools, etc., that the assistant uses. An employee, on the other hand, is someone you hire to come to work at a particular time and do the job a particular way. (I'm glossing over some details here; see the IRS link above for more details.) If your assistant is an independent contractor, and you pay them over a certain threshold ($600 for 2020), you must provide them with Form 1099-MISC, and file a copy with the IRS as well. Your assistant will then be liable for income taxes on this amount, as well as self-employment tax (see below.) If your assistant is actually an employee, and you pay them over a certain threshold ($600 for 2020), you are required to provide them with a W-2 form, as well as filing a copy with the IRS. In addition, if you pay them more than a higher threshold ($2200 in a tax year or $1000 in any quarter for 2020), you are responsible for withholding taxes from their paychecks, as well as paying the employer's portion of Social Security, Medicare, and/or federal unemployment taxes. How to figure these taxes is complex, but generally the employee must provide you with a completed W-4, and then you must provide them (and the IRS) with a W-2 at the end of the tax year. See Publication 15: Employer's Tax Guide for all the gory details. The self-employment tax is designed to effectively cover the employer's portion of these taxes for self-employed workers. As you might imagine, employers are often tempted to misclassify employees as "independent contractors", since this means that this tax liability gets pushed from them onto their workers, as well as just making the employer's life easier. The Feds will not take kindly to such misclassification if it is discovered. Finally, for the state of Connecticut, consult the CT 1009-MISC filing guide (if your assistant is an independent contractor) or the Connecticut employer's tax guide (if they are an employee). The distinction is pretty much the same as at the federal level. | It's right in the contract In the event I fail to take delivery of the vehicle purchased by me within forty-eight (48) hours after I have been notified by you that it is ready for delivery and pay the total contract price in the manner indicated, my deposit in the amount of $300 may, at your option, be retained by you to compensate you in whole or in part for any loss sustained by you. Your right to retain my deposit shall be in addition to and not instead of any other right or remedy provided by applicable law including, without limiting the generality of the foregoing, the sale of the car or truck I agree to purchase. If the amount of my deposit exceeds actual damages sustained by you, you will promptly refund the difference to me. The car was ready on day 3. As a result, the Customer was obligated to pay and take delivery of the vehicle until day 5. Because the customer did not follow through with the purchase, the deposit is used to compensate the salesman in the amount that covers the costs of preparing the sale and having the car on the lot for those days that the salesman could not sell it to someone else. At the end of day 5, the contractual obligation to hold the car for the customers in exchange for the deposit ended, and the other clauses of the contract (car for rest of payment) become void. The car salesman is in his right to sell the car because the actual sales contract has fallen through and the holding fee/deposit expired, as the very quoted paragraph shows. Based on the final sentence of the quoted portion of the contract, to get a part of the deposit back, one would need to establish that the losses are less than the contractually fixed amount of 300 USD. When I had my car at the workshop and could not get it back on the day it was done with repairs, I was also informed that holding my car for more than a day would incur storage fees of up to 15 € per day. Similarly, the last time I bought a car, I was told that the sale included a fresh inspection and oil. Those are costs to the seller and can be accounted for in the deposit. The inspection costs about ~120 € for a new TÜV certificate and exhaust check and the materials for an oil change come for about 70 €. This leaves about 70 € cover for the mechanic and salesman's wages for about one hour. That's 300 €, or about 330 USD today. As such, costs to prepare a contract and transfer, inspect the car for roadworthiness as well as storage fees most likely are reasonably assessed to be in the 300 USD area. |
What's the legal term for a law or a set of laws which are realistically impossible to follow in practice? As an example, at one point during New York's COVID vaccination campaign Governor Cuomo issued the following rules: If you vaccinate someone who is not eligible, you're getting a huge fine If you don't use up your vaccine doses, you're getting a huge fine So vaccinators were put in a seemingly impossible bind where they had to use up all their doses, but didn't necessarily have enough eligible people at their door to get one. Is there a legal term for these kinds of situations? NB: Please avoid discussing COVID, vaccines, Governor Cuomo or the specific details of his executive orders. This is merely used as an example of what I'm talking about and I'm sure I could look up a lot more examples if I knew the right term. | While less specific than the term mentioned by @DavidSiegel (i.e. an "Antinomy"), "impossibility", "impossibility of performance", and "impracticability" are more frequently used. If the obligation is imposed by contract rather than by a statute or regulation, the term "frustration of purpose" is also frequently used. Even more generally, a situation like this is called a "dilemma." More obscurely, sometimes this gets litigated in the frame of whether non-compliance with the law was a voluntary act, i.e. the actus reus necessary to establish a prima facie case of a violation of a law imposing a criminal or quasi-criminal penalty. The "choice of evils" doctrine could also apply although this is a much narrower doctrine excusing liability than many people believe it to be. There are also a couple of other possible outcomes. Sometimes a court would treat this situations as an implied ambiguity or inconsistency in the law that calls for the court to interpret the true meaning of the statute or regulation. For example, in this circumstance, it is implausible that the statute or regulation was intended to put good faith vaccine distributors in a damned if you do, damned if you don't situation where they would be fined no matter what they did because conforming to the law was impossible. So a court might conclude that the requirement that "If you don't use up your vaccine doses, you're getting a huge fine" contains an implied condition that this only applies if there are sufficient people who eligible to obtain the vaccination to use all of your vaccine doses (which as as matter of practicality is very likely to be true, so it is something of a false conflict as applied in most cases). But it isn't at all uncommon for people to put themselves in situations where their on ill advised or wrongful conduct puts them in a position in which now, after their prior bad acts, anything they do will be a crime or a civil offense, and they are indeed damned if they do and damned if they don't. For example, if you start to attempt to steal a car and see a baby in the back, you can either continue, and face kidnapping charges and car theft charges, or you can stop after you have already done enough to make you guilty of attempted car theft even if you abandon the crime at that point to prevent yourself for kidnapping the child. No matter what you do, you are stuck committing one crime or another. But you actions will determine which crime you will be guilty of committing. The fact that at the final moment of decision that determines which crime you will be guilty of, any choice you make will expose you to criminal liability, doesn't make these laws invalid, because this Hobson's choice (using the term only loosely) is one that you brought that on yourself. | No. The Fourteenth Amendment says: nor shall any state deprive any person of life, liberty, or property, without due process of law; The Supreme Court has determined that this clause incorporates much of the Bill of Rights. The logic is mildly tortured, but it's basically that "due process of law" means "due process of a law that is compatible with the fundamental rights of a free society." This logic is known as "substantive due process," because it reads in to "due process of law" requirements about what those laws can do (as opposed to procedural due process, which is about the actual procedures being used). It's pretty settled that the Bill of Rights, after the 14th Amendment, should apply to the states. There's another possible way to get there: the 14th Amendment says "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," which Justice Thomas recently thought meant that the Second Amendment applies to the states in a concurring opinion. But as of now, substantive due process is the standard logic for it. Virtually all of the Bill of Rights is incorporated against the states. There are a couple things which aren't (like juries in lawsuits, and grand juries), but the Establisment Clause is incorporated (see Everson v. Board of Education, 330 US 1). | There are, as far as I know, no "FDA-approved" vaccines against covid in the US. The FDA has given Emergency Use Authorization to some vaccines. This does not currently include the Johnson & Johnson vaccine. It is impossible for a person to get the J&J vaccine in the US, because it is not authorized, and J&J does not distribute it. One could imagine an unauthorized foreign vaccine being smuggled into the US, but it would be illegal to distribute it. I assume that you specifically mean, can a person refuse to get a vaccination on the grounds that it only has an emergency authorization and is not actually approved: and can one sue an employer for firing you because you refused to get vaccinated? In general, the employer can fire for anything they want, unless you have an employment contract that limits the grounds for termination. There are discrimination-based grounds that they cannot use, such as race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information at the federal level. Mississippi has no specific employment discrimination laws. Other that that, an employer can fire an employee for any reason, or no reason (Mississippi is what's known as an "employment at will" state). There are some state restrictions where it is prohibited for an employer to fire an employee for engaging in a specific required activity such as being called for jury duty or being called to military duty. An employer could not require an employee to break the law, but that is not applicable here. | 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. | You've basically described two of the ends of the pole in theories of jurisprudence (there are dozens of ends). There is no theory of law that relies purely on "spirit" (also no theory that actually relies on the letters uses=d in writing law), instead, everybody interprets the text (the words enacted by the government) and some people supplement their interpretation with consideration of "other factors", such as assumed legislative purpose. Certain scholars and judges are inclined to put most weight on the actual wording of the law, while others are inclined to let purposive considerations dictate the interpretation of a law. Interpreting law by W.N. Eskridge is an informative guide to supplementing a reading of the statute with anciliary considerations. Antonin Scalia is the best-known proponent of the textualist approach. | canada The fact that the chosen means could never have actually killed the target does not preclude an attempt conviction. See United States v. Dynar, [1997] 2 S.C.R. 462: The only relevant distinction for purposes of s. 24(1) of the Criminal Code is between imaginary crimes and attempts to do the factually impossible. The criminal law of Canada recognizes no middle category called “legal impossibility”. Because Mr. Dynar attempted to do the impossible but did not attempt to commit an imaginary crime, he can only have attempted to do the “factually impossible”. For this reason, Mr. Dynar’s proposal that s. 24(1) criminalizes only attempts to do the factually impossible does not help him. An example of a "factual impossibility" cited by the court was "impossibility due to inadequate means... For example, A tries to kill B by shooting at him from too great a distance or by administering too small a dose of poison." That this man’s design is premised on a mistaken understanding of the facts does not make it any less his design. A mistaken belief cannot be eliminated from the description of a person’s mental state simply because it is mistaken. Example 1: the curse In your examples, the person who took steps to kill a person via inadequate or factually impossible means could be guilty of an attempt. Of course, this is subject to proof of the required mental state (intention to kill) beyond a reasonable doubt. Example 2: hanging out However, the actus reus of attempt in Canada is that the accused must have taken "some step towards the commission of the offence attempted going beyond mere acts of preparation." You haven't described anything about the person who hangs out with a militia that would constitute a step beyond a mere act of preparation. | "Rule of law" is one thing, "giving equal rights and obligations to citizens" is another. Qualified immunity, both in doctrinal and statutory form, are statements of law, e.g. saying that a police officer has the power to use force in a manner that others may not. "Equal rights and obligations" are actually "equal, as defined in the law", for example a 6 year old has no obligation to comply with contract that that may have formed – there is an exception to the otherwise general rule, which is recognized by the law. | Could the Federal government say that if you are not vaccinated against Covid then you lose your welfare benefits? Would it be constitutional? What I am asking is, would a federal law (passed by congress) requiring people on welfare to be vaccinated be constitutional? For the most part yes. Arguably, a religious exemption might be required. But the federal government absent other countervailing considerations, generally has the power to mandate vaccination and other responses to a contiguous disease in cases where the vaccination would affect interstate commerce. All manner of things can be established as conditions to federal spending and federal programs. In cases where the program is purely federal, that discretion is almost unlimited (except for individual liberty considerations like freedom of religion). In cases where state cooperation is required, as noted in the answer by user6726, this discretion isn't absolutely unbounded if the state objects. |
Is a teacher playing music in the hallway legal? I am a highschooler in Alabama (USA) in a school of 700 or more (not 100% sure). When walking through the school, there is a teacher playing music into the hallways. The issue is that the songs she plays are just off of YouTube, and as far as I can tell she hasn't paid for license or anything (it's a different song each day). My question is, is this illegal? Keep in mind this is happening in a public school (I don't know if that matters). She is playing unlicensed songs to a large audience, and even if it is technically illegal, should I contact the publisher? Would this be the teacher's or school's fault? | The Youtube terms of service allow you to play music, and they do not impose any condition to the effect that you have to be alone in a soundproof room to play music. The school district might have a rule prohibiting the playing of music on school grounds (presumably with an exception for music classes), but there are too many school districts in Alabama to research that question. You might ask the superintendent of your local district about such rules, if it's important. Copyright law does include a separate requirement for permission to perform publicly, for example the music played in a store requires a performance license. Under 17 USC 106(4), the copyright owner has the exclusive right to authorize a person "to perform the copyrighted work publicly". The definitions section says what it means to perform publicly: (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. It does seem that we're in the realm of a "public performance", since the law does not specifically say "intentionally play so that others can hear it" (we don't know whether the teacher is being unintentionally overheard). However, the purpose of the performance license is to cover businesses that rely on playing music to make a buck, and is not intended to force people to watch out if strangers / co-workers are listening. There is a classroom-use exception, whereby teachers can perform music for instructional purposes, which this probably isn't. However, the Youtube TOS does say that all content-providers also grant each other user of the Service a worldwide, non-exclusive, royalty-free licence to access your Content through the Service, and to use that Content (including to reproduce, distribute, modify, display, and perform it) only as enabled by a feature of the Service. Therefore the teacher has permission to perform: except if the content is illegally uploaded by someone lacking the right to grant permissions (and to upload, in general). If you suspect that someone has illegally uploaded some artist's content to Youtube, you can contact the copyright holder with relevant information. They may or may not pursue a DMCA takedown; if they do, and they are really gung-ho, they could try go to recover lost licensing revenue. It isn't clear that there is a license for "teacher laying music that others can hear". | united-states In the US it is not unlawful to produce and display a video arguing for the Russian invasion of Ukraine, whether the intent is to support that invasion or to document the claims of those who do support it, and argue that they are invalid. Such a video would be protected by copyright, and copying it and redistributing it with subtitles might well be an infringement of that copyright, if done without permission. On the other hand, doing so with the intent of educating others about Russian claims might constitute fair use. If so, it would not be copyright infringement under US law. Aside from the copyright issue (which would be up to the copyright holder to take action on) US law does not really care what the motivation for posting such a sub-titled video might be. Whether or not it is "beneficial for the whole human civilization" is not relevant to US law. It is protected by the First Amendment against government suppression. That would not affect YouTube, as a private actor,, determining not to host it on their site. | 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. | It would be copyright infringement. You had the copyright holders permission to make one copy of the song by downloading it. At that time, if you gave me a copy of that song, it could be argued that very, very little damage was caused because I just had downloaded that song myself with practically the same effect. Today, that argument is not valid anymore. So this is definitely copyright infringement. That's your question answered. I doubt that anyone would take action if you gave a copy to someone and it was found out. Making it available to the world for free download is another matter. That could easily get you into trouble; in the USA there could be a fine up to $150,000 without any proof of actual damages needed. | In the US, your recourse is the school board that governs your high school. Talk to them and find out how to bring the situation to their attention. There will be some sort of complaint or grievance process you can participate in. The school board is bound by state (and federal law), but makes many decisions for the school, among them employee policies and standards for teacher qualifications. Yes, there are possible legal actions you could take, but the first step is the school board. The school board will be obligated to tell you the hiring process and how qualifications play a role. But be aware that they have the option to hire temporary teachers who are not fully certified in order to fill vacancies; it's a common practice when the demand for teachers is much higher than their availability. There is little that is illegal about it, unless the board broke their own rules or state or federal law. | You may have issues if you take their content wholesale. Even if they freely distribute them, they still retain copyright. As such, they absolutely can claim copyright. Whether they will or not is another question. Your best bet around this is Fair Use doctrine. You can take a part of their work (e.g: a single question) and do your video based on how you work out your answer, with your video mainly focusing on the 'working out' part (thus satisfying the 'educational purposes' part) | The RIAA changed their litigation strategy in the late 2000s and it (and its members) generally no longer sue individuals. See https://hbr.org/2008/12/why-the-riaa-stopped-suing If you're just asking for a prediction about whether Tenenbaum or Thomas-Rasset would be sued today if they were to impermissibly make copyrighted music available to the public again, my preduction would be no. But I have to say this is an odd prediction to ask us to make. And I wouldn't have much to argue against somebody who predicts the other direction. | 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). |
In Ohio, If someone has a personal lock which needs to be opened for which they have lost the key, is it illegal to possess lock picking tools? For easier reference, here is Ohio law on the subject: https://law.justia.com/codes/ohio/2011/title29/chapter2923/section2923-24/ It would appear to violate B2, but I am curious how a locksmith would operate legally under the same conditions. | Note that an essential element of the offense here is "with purpose to use it criminally." The specifications in B allow a presumption of such purpose, but such a presumption is rebuttable. The tools of a locksmith are somewhat different from those of a criminal "cracksman", I understand, and would probably not be considered "designed or specially adapted for criminal use". But even if they were, proof of regular employment as a locksmith would tend to rebut the presumption of criminal intent. Possession of tools with the intent of lawfully opening one's own lock would not be criminal intent, but a judge or jury might not be convinced of that. | First off, I wouldn't assume that this is always a prank. This is a rather infamous tactic used by bike thieves. These thieves add a second lock to "discourage" the owner from taking their bicycle, wait a few days, and then remove both locks, thus stealing your bike. Don't wait, get your bike out right away. As long as this is your own bike, you don't have much to worry about. It would generally be helpful to call the police, so that they might make a note of it. They might not be able to help you cut the lock, but they will make a note of the incident. It might also be a good idea to register your bike. Getting into the law part... If you were to ever be charged with a property-related offence (which I doubt would happen), you probably wouldn't be able to be found guilty. In Canada, the relevant section would be §35 of the Criminal Code. To summarize that, it basically means that you can't be guilty of an offence if you believe that another person is about to render your bike inoperative (through addition of the second lock), and that your act that constituted the offence would be preventing or stopping that. Don't forget, the bike has to be yours as well. | I think it would depend on how a jury viewed the "challenge" to her audience. The general rule for self-defense in Texas is that the person needs to reasonably believe that force is immediately necessary to protect herself from someone else's use of force. I think a jury would find it reasonable to believe that someone forcefully attempting to steal your gun was planning to use it against you. More importantly, the law generally presumes that that belief is reasonable if the person is being robbed, assuming that she isn't otherwise engaged in criminal activity. Since openly carrying an AR-15 is -- as far as I know -- legal in Texas, I think she'd probably be fine. But: The law also says that the use of force is not justified when a person consents to the other person's use of force, or if the person has provoked the other person. So now you have the question of whether the student's challenge constitutes a provocation or consent to the use of force. I think you can make a decent argument for provocation, which means that "the defendant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting injury." Neal v. State, No. 12-14-00158-CR, 2016 WL 1446138, at *11 (Tex. App. Apr. 13, 2016). You might also make out a decent argument for consent, which doesn't necessarily seem to require that the parties exactly spell out the rules of engagement, just that there is some kind of agreement between the two parties. In one case, for instance, a defendant tried to argue that a fight had gone beyond the rules because one party used a chokehold and knocked the other out. But the court said that the only actual rule agreed to was that there would be no weapons used. Padilla v. State, No. 03-07-00513-CR, 2008 WL 5423139, at *2 (Tex. App. Dec. 31, 2008). That makes me think that as long as there's consent to some kind of fight, you don't necessarily need rules, though you do need to abide by them if you agree to them. So what's the scope of consent in this case? If we say that she's agreed to the use of force by challenging people to take something from her, and she hasn't said how you can do it, can you do it by any means you choose? I don't think a court would let someone shoot her to get it, but maybe they would be allowed to pry it out of her hands. So all of that is a long way of saying that this is a tricky question, and that any decision would probably depend a lot on the specific facts of who she was talking to, what exactly she was saying, how she was carrying the gun, and so on. | Ark. Code 5-60-120 is very clear that the act of intercepting is a crime. Not just "recording and using", not just "recording", but intercepting in any way. Specifically: It is unlawful for a person to intercept a wire, landline, oral, telephonic communication, or wireless communication, and to record or possess a recording of the communication unless the person is a party to the communication or one (1) of the parties to the communication has given prior consent to the interception and recording. Intercepting is illegal, therefore it is not "okay". Perhaps the "sort of a lawyer" was speaking of the probability of getting caught doing it. | This would be unauthorized access to a computer. The offence is found in Section 1 of the Computer Misuse Act 1990. Note that this is a criminal offence, approaching the police about it might be the best way of handling the situation (if you want to go that route, and also, I'm not a lawyer). | No, you would be guilty of perjury. In order to go through the legal formality, you have to obtain a license, Washington example (King County) seen here. You must swear that you are single, divorced, or widowed. If you leave the box unchecked, you won't get a license. If you are married and check any box, you have committed perjury. | Keep in mind that a warrant doesn't require proof that you stole the property or have the property. Instead, the warrant is just authorization to look for that proof. The standard for securing a warrant is probable cause, which is a much lower bar to clear than people seem to think. It just requires that given everything the officer knows, there's a "substantial probability" that a piece of evidence will be in a given place at a given time. If the officer swore to a judge that a reliable source had told him that the letter was stolen, then seen in your front yard, and not seen since, I wouldn't be at all surprised if the judge gave him a search warrant. | I don't know what you mean by "own a person's DNA", but analogous to owning a car or picture, you can't own a person, which is what would be required to have complete ownership of all of a person's DNA. You can legally own a sample of a person's DNA, for example by buying or bartering tissue, or if you are given tissue. If you grab a handful of hair from a person and pull it out, it is not legally yours, and you can be required to return it. If you lose, misplace or abandon tissue (or a knife), then the finder could end up owning it, depending on the circumstances. Tissue in the trash is more complicated since there may be municipal laws preventing dumpster-diving. Setting aside any such municipal codes, if you abandon your property, someone else can claim it. Hair on the floor of a barbershop, or in the trash, is a good example abandonment: it could also be an example of trespassing, in case the barber objects to you gathering samples from his floor. The 4th Amendment cannot be used to secure your DNA: it could be used to prevent securing DNA, if the intended application is compelled blood drawing. The ruling in Maryland v. King did not say that "your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason", since that was an objection to the majority ruling given in the dissent, not part of the actual ruling. Maybe that will end up being true, but that hasn't been determined to be the law yet. With a warrant, the police can take a tissue sample, and not wait for you to throw a tissue sample in the trash. They can also take a cheek swab from an arrestee just like they can take a photo or fingerprints (that's what Maryland v. King says). Once we've settled the matter of obtaining a DNA sample, the concept of ownership might be relevant if a party could restrict others from using that DNA pattern. But DNA is not subject to patent or copyright, so once I know your DNA pattern, you cannot legally prevent me from using that information. However, you might, if I gave you a sample as part of a contract, and there is a clause in that contract that prevents the other party from ever using that information. |
Does the double jeopardy clause prevent being charged again for the same crime or being charged again for the same action? Suppose I were to kill someone and was charged with manslaughter, found not guilty, and more evidence surfaces, does double jeopardy prevent me from even being charged again for that action (the killing), or does it only protect me from the charge of manslaughter again? | Under U.S. law, double jeopardy prevents you from being charged with the same charge twice, and also from being charged with any offense which is a lesser included offense of the charged offense, or a charge so substantially similar that for constitutional purposes it amounts to the same crime. Basically, the test is whether a prior acquittal would be inconsistent with a new criminal charge. For example, even though there is an additional element of the crime of murdering a postal officer to the crime of murdering someone on federal property, double jeopardy would probably bar a retrial of a murder on federal property case simply because the victim happened to be a postal worker and that element wasn't charged in the original indictment. This is because the acquittal of the first murder charge would almost always imply a jury determination that a murder didn't take place which would be inconsistent with a murder of a postal worker charge. On the other hand, a trial on a murder charge would probably not bar, for example, a trial on a burglary charge (which at common law involved trespassing with an intent to commit a crime), even if the burglary charge arose from the same conduct. This is because an acquittal on a murder charge isn't necessarily inconsistent with the existence of a trespass, or with the intent to commit some crime other than the murder for which the defendant was acquitted. But the exact way that the line gets draw is tricky and while what I have described is a good general summary of the cases interpreting the double jeopardy clause, it isn't a perfect one. This issue has been litigated many, many tines over the years, so there are a lot of cases that are squarely on point addressing specific fact patterns in precedents that are binding case law that are not always a perfect fit to the general principles. In these circumstances, the binding case law is going to control, at least until a court with appellate authority over the court whose case established the precedent in question decided to overrule a prior precedent from the lower court, or in the case of U.S. Supreme Court precedents, until the U.S. Supreme Court revisits one of its own prior precedents as wrong decided or wrongly interpreted, which happens now and then, although it is a rare event. | There are a lot more differences than this, but if your teacher sums up what he/she means by that sentence. Here, specifically, in Civil Law, the decision of the courts must comply with the laws as enacted, which means there are specific statutes required to make something illegal. Common Law features Stare Decisis which basically means that if Case A is decided in one way, and Case B is a similar Case to Case B, Case B must yield the same decision for all cases in that jurisdiction and lower courts below that court. This means that while statutes (laws) can be made by a legislature, the courts can "make law" by deciding cases. For example, some States in the United States and England and Wales only recently (within the past 30 years) adopted an actual law that made murder illegal? Prior to that murder was illegal under Common Law Murder that had been based on precedence from bazillion cases before that said it's illegal. Nobody bothered to write it down in an actual law. There are several other big differences such as Inquisitorial vs. Adversarial nature of courts, how and when punishments are decided (The famous "Just following Orders" Defense was given in part because of this difference and a lack of understanding over it.), who is the trier of fact vs. who is the trier of law, but as far as what is "Law" this is a good single summation of the difference in a single sentence. But it really shouldn't be condensed to a single sentence. | Double jeopardy does not bar him from facing federal charges, although U.S. Justice Department policy reserves such prosecutions for exceptional cases. Also, it depends to some extent upon whether there is a suitable federal crime that fits the conduct. | Charlie may or may not be guilty of murder or of attempted murder. It depends upon his intent and knowledge, which the question doesn't flesh out sufficiently to evaluate. Why did Charlie bodyslam Bob? The reason matters a lot. Did Charlie know that the building was on fire? Was Charlie trying to kill Bob? Was the thing that Bob knocked his head upon an intended result of the bodyslam, or an intervening cause? Did Charlie's initially less culpable act and his knowledge combine to create a duty to rescue and what offense (probably not murder) would it be if a death resulted from a failure to rescue? Alice is likely to be guilty of murder, but on a felony-murder theory, rather than on a transferred intent theory. In most, but not all, states if you are in the process of committing one of an enumerated list of specific felonies that pose a high risk of serious injury or death, such as arson, you are guilty of murder in the event that anyone (even a co-conspirator) dies as a result of your felonious course of conduct, whether or not you intended that a death result. Alice might have been able to purge her felony-murder liability if she had tried to put out the fire and save Bob once she realized that he was in danger, under the exception to felony-murder for renunciation of a course of felonious conduct, but she didn't even try. The doctrine of transferred intent in a murder case usually applies when you intent to kill one person and instead end up killing someone else. But, Alice didn't intend to kill anyway, so this doctrine does not apply. Alice's best defense would be that the death was a result of the attack by Charlie, rather than by the fire, which she would merely have to establish a reasonable doubt regarding. But, ultimately that would be a weak defense for her. | Yes. In a civil case, there are two parties and the case is about finding out who has which obligations to whom. In a civil case, the plaintiff has to prove that they actually incurred damage through the actions of the defendant. A criminal case is the state vs. the defendant. The "wronged party" is the society as a whole, usually represented by the prosecutor. The victim, if there is one, just plays the role of yet another witness to find out if the defendant needs to be punished and how. There are also examples of crimes which are completely victimless but still punished by some societies. For example, in many places sexual intercourse between two consenting adult siblings is a crime (incest), even though there is no victim. Also, for some crimes it is even a crime to attempt to commit it. So one can be punished in a criminal court even though they didn't actually succeed in causing any damage to anyone. Example: I throw a rock at your car. When I hit, you can sue me in a civil court and force me to pay for the repairs. When I miss, I caused no damage to you, so there is nothing you could sue about. But what if I throw a rock at you and miss? That's attempted assault, maybe even attempted murder. When law enforcement finds out about it, I could be arrested, prosecuted and convicted to a prision sentence, even though you are perfectly fine. | As far as I understand, no. In Canada, everyone has the constitutional right to be free from any cruel or unusual punishment, under the Canadian Charter of Rights and Freedoms: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. If you're guilty of a crime, well then, you're guilty. You're either going to be tried in court (and if you were guilty of that crime, then you will probably be found guilty), or you will plead as such. Before being tried, you could try to plea bargain with the prosecutor: plead guilty and be sentenced to a lesser charge. Say you were charged with assault with a weapon or causing bodily harm. You thought that the punishment was cruel or unusual - and thought that the trial judge had made an error in the law. In this case, you can make an appeal to a higher court. There are also other things that can factor this: mitigating and aggravating circumstances. If many circumstances are mitigating, then it may make way for a lower punishment, and vice versa with aggravating circumstances, where punishment may be higher. Again, this is something where if something was erred, you can appeal to a higher court. However, just because you think a sentence is too long won't constitute cruel or unusual punishment. In R. vs Latimer, the Supreme Court of Canada ruled that minimum sentences, even if within special circumstances, will not constitute cruel or unusual punishment, and be upheld. Originally, he had been sentenced only to one year, based on the recommendation of the jury. He had been charged with second-degree murder. The Supreme Court reinstated the default punishment: A life sentence with no eligibility of parole for ten years. | What you are describing is closely related to "acquitted conduct sentencing". On the first point, "Carl's" previous acquittal cannot be considered evidence that he committed a later crime; the subsequent crime must be tried on its own merits, in isolation. However, for your second question, once convicted of that crime, his previous acquittal (rather surprisingly) can be taken into account during his sentencing. Many legal minds have found the practice of "acquitted conduct sentencing" extremely troubling, and there are hopes the US Supreme Court could prohibit the practice in the near future. But for the moment, it is still an allowed practice. Summary article here "This practice allows judges to use conduct a defendant was acquitted of by a jury to increase a defendant’s sentence or punishment for a separate crime. This tool essentially allows judges to veto a jury’s decision when they merely disagreed with their conclusion." Another good article on the topic Of the seven charges, [he] was convicted on two. Under federal advisory sentencing guidelines, the two convictions generally warranted a sentence of 24 to 30 months in prison. The district court, however, calculated a range of 87 to 108 months, based on the charges on which [he] had been acquitted. [he] was then sentenced to 84 months (seven years) in prison. [He] was indicted on seven charges, convicted of two, and acquitted of five. But his sentence was exactly the same as it would have been had he been convicted by the jury of all seven charges — and three times as high as it would have been had the judge considered only the two charges of which the jury convicted [him].” | The constitutional provision quoted in the question has been interpreted to require that a jury trial be available to a person accused of crime by the US Federal Government. Then accused is free to waive this right, and be tried by a judge only if s/he so chooses. The accuse is also free to waive the right to a trial altogether, and plead guilty (or "no contest" which waives a trail without an admission of guilt). The provision could reasonably be interpreted to require that if there is a trial, it be by jury. But I don't see how it could reasonably be read to require trials in all cases, and forbid guilty pleas. |
When someone steals my bicycle, do they commit a higher offence if they need to break a lock? I know that stealing a bike is crime. My question is: can someone who steals a bike get additional charges if they have to break a lock as compared to picking up an unlocked bike? | We are talking about larceny and larceny & destruction of property in the two cases. So at the minimum, there are more laws that apply. But what are the laws? Florida names its Larceny statute... Theft: 812.014 Theft.— (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property. Destroying someone's else property in Florida is in the statute on Criminal Mischief: 806.13 Criminal mischief; penalties; penalty for minor.— (1)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto. So, yes, you would additionally get the criminal mischief charge, but... that only grants monetary damages of 250 USD plus the damages done to the items for first timers, but it can become upgraded to a felony in the third degree - which has a maximum limit of 5 years. Note that damaging items in the course of theft is specifically an aggravating factor for the theft charge, if grand theft is combined with property damage of 1000 USD and more. A bicycle costing between 750 and 5000 USD is grand theft, felony in the third degree according to 812.014.(2)(c)1. This is also the 5 years limit. One could get both sentences... but still only sit 5 years, because often sentences are served concurrently, only rarely consecutively. So, no, you do not necessarily commit a higher offense just for breaking the lock - you'd need to have a 1000 USD damage for that - but you most certainly commit additional offenses that can result in a higher verdict in the end. | It might be illegal, depending on where you are. If it is known to the person who owns the vehicle occupying your space prior to doing so that wheelclamping may be the result, then the common law doctrine of volenti non fit injuria ("to a willing party, harm is not done") would lead to a conclusion that one who knowingly places themselves in a situation where harm may befall them is not entitled to bring a claim of tort against the other party (in the United States assumption of risk is a similar doctrine, but doesn't apply here because wheelclamping is an intentional act). In your situation, this means that the owner occupying your space cannot bring a case in tort against you. While it is generally applied to harm to people, there is precedent (albeit in British case law) for the doctrine to be applied to vehicles, and specifically, to the situation you describe - see Arthur v Anker and Vine v London Borough of Waltham Forest. While cases from other jurisdictions are not binding, I have not been able to find any similar cases in the United States, and so it is possible that such cases will be persuasive. Note that this is highly jurisdiction-specific, and there may be laws in your state that make it unlawful - at least one high-profile case involving a McDonalds and its parking lot operator cites California law authorising only law enforcement to impound vehicles, and considering wheelclamping such an act. However, I have not been able to find the record of a judgement on this matter. It is also likely that if the payment you request is excessive, the owner would be able to seek relief, in the form of reducing the payment owed to a reasonable amount. However, if the parking space was not marked in some way to signal that it was reserved for use, then the owner of the vehicle may be entitled to seek injunctive relief and damages from a court. This would be on the basis of, if you only wheelclamped the car and declined to remove the wheelclamp upon the owner's request, the tort of detinue. But, if you attempted to request payment from them, then as Dale mentioned in his answer, you have committed extortion (wheelclamping is actually listed as a crime of extortion). | I'm confident that there has been no successful breach of contract lawsuit on that basis: that is not the right legal basis. Actions against a shoplifter would either be under tort law or, much more likely, criminal law. Put simply, theft is a crime, encoded in the laws of all nations, and the government will shoulder the burden of punishing a shoplifter. Since the goal of criminal law is to guarantee a well-ordered society (not to restore the victim of the crime), a victim of theft may have to pursue their own legal case against the criminal, if they want to be restored for their loss (let us say that the criminal also ate the evidence). | I think Dale M is essentially correct. Let me give more detail by quoting the Theft Act 1968: 1 Basic definition of theft (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. (2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit. 3 “Appropriates”. (1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner. (2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property. You assume the rights of an owner by placing a notice offering it to other people. Therefore it is theft. I presume similar laws exist in other juristictions. | I have beaten all but one of my traffic tickets just by going to court. In one case, the judge threw out the charge because he couldn't read the officer's handwriting on the ticket. In another, the officer charged that I was parked in a "no parking" zone on a particular street (at night), but gave a cross street where parking was, in fact, allowed. | No, you could not have prevented them from collecting their belongings But you could have sued for trespass Unless those boxes were part of the contract for sale, they remain the vendor’s property and just like you can’t withhold your mate’s trombone that he accidentally left after that great party, you can’t withhold the vendor’s boxes - that’s called “stealing”. What you could (should?) have done is refuse to settle until the boxes were removed. As the vendor was in breach, if you suffered any unmitigated loss as a result of the delay, you would be entitled to recover it. This is one of the reasons why you should inspect on the day of settlement. Given that you accepted the breach, even though the vendor’s boxes were technically trespassing, they could reasonably raise the defense that they had implicit permission- at least for a reasonable time. “A few days” is a reasonable time. | In Germany, there is no statutory offense of “breaking in”. Instead, break-ins are (depending on the nature of the crime) prosecuted as trespassing (Hausfriedensbruch, § 123 StGB), criminal damage (Sachbeschädigung, § 303 StGB) and/or theft (Diebstahl, § 242 StGB). (Some cases may fit additonal statutory offenses, e. g. tampering with an electronic lock can be computer fraud (Computerbetrug, § 263a StGB) and hurting someone can be robbery (Raub, § 249 StGB) and/or personal injury (Körperverletzung, § 223 StGB).) This means: If your brother breaks the lock, then that's vandalism. If your brother walks in (without authorization), it's trespassing and if your brother steals your stuff, it's stealing. On top of that, since your brother is living in the same household as you, breaking into your room may also be considered domestic violence. The violence protection act (Gewaltschutzgesetz) is very harsh when it comes to domestic violence: The offender can be ordered by court to hand over their home to the victim and to stay away from the home. This means that if your brother breaks into your room, your brother may be removed from the house by court order. Non-compliance with a court order issued under the Gewaltschutzgesetz (e. g. your brother tries to show up at your house after he was ordered to stay away), can be prosecuted under civil and(!) penal law. You can read the English translation of the German penal code (STrafgesetzbuch, StGB) here (although I prefer to use German because all translations at gesetze-im-internet.de tend to be low quality): https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html And the Violence protection act is here (unfortunately untranslated): https://www.gesetze-im-internet.de/gewschg/BJNR351310001.html | Is a robbery that includes smashing a car window with the driver inside considered a non-violent property crime? Robbery is classified as a violent crime. Whether or not this fact pattern would count as robbery as opposed to burglary or theft and vandalism would depends upon California's penal statutes. Burglary is sometimes considered a violent crime (e.g. an armed home invasion burglary) and sometimes not considered a violent crime (e.g. an unarmed theft from an unoccupied residence). Theft is generally not considered a violent crime and if small in amount may not even be a felony. So is vandalism (i.e. the malicious destruction of property, rather than the taking of it). Robbery is defined in California Penal Code § 211 as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." There is a very solid argument that this fact pattern constitutes robbery, a violent crime, under California law, but it could be argued either way. The close issues would be "immediate presence" and "by means of force or fear" (which by implication mean force or fear directed at persons rather than things). The OP fact pattern is probably not burglary under California Penal Code § 459 because while theft from a car can be burglary when someone is living in the car, this does not appear to be the case here. So, if a jury did not find that this constituted robbery, it would probably be the crime of theft (for the things taken) and vandalism (for the damage to the car windows), both of which are property crime misdemeanors. If the cars were unoccupied, this would clearly be merely theft. If the police witnesses such a robbery does it have the duty to intervene? No. The leading case for U.S. Constitutional law is Castle Rock v. Gonzales, 545 U.S. 748 (2005). I am not aware of any California law to the contrary. Failure to intervene might be grounds for the chief of police to fire them, but it is not a crime and not a basis for a lawsuit against anyone. The police have effectively absolute discretion to refrain from enforcing the law. Is it true that if the victim fights back in such situation and injures the assailant the robbery victim may be prosecuted for using violence against the robber? No. A victim may use reasonably necessary force in self-defense, so long as the situation continues to be a self-defense situation. Usually, deadly force would be justified in self-defense or defense of others from a violent robbery, although a jury would have to determine that the use of force was actually necessary or that the threatened crime was actually a genuine threat, according to the statutory standard for self-defense and defense of others. The relevant statutes include California Penal Code § 197 which provides in pertinent part that: (1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person. (2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein. (3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed. But, the circumstances under which force can be used to arrest or stop a fleeing criminal are much more narrow, particularly in the case of a citizen's arrest as opposed to an arrest made by law enforcement. The U.S. Supreme Court case of Tennessee v. Garner, 471 U.S. 1 (1985) narrows the scope of the lawful use of force in these circumstances beyond what California's statutes authorize on their face. For example, suppose the robber threatens you with a knife unless you give him his wallet. You or a bystander could probably lawfully shoot him at that point to prevent the robbery. But, suppose that at that point, the robber tosses the knife on the sidewalk and runs away. If someone shot the robber in the back to stop him from fleeing (unaware of any other crimes that the robber may have committed and unaware of any other weapons that the robber may have), the person shooting the robber would be guilty of aggravated assault if the robber lived, and of manslaughter or murder, if the robber died. The facts in this case are a bit muddy on whether self-defense should have been available or not, and different hypothetical uses of force could come out different ways within this fact pattern. |
Should the client be informed every time when more personal data is requested under GDPR Article 13? A SaaS company offers some services, which require registration. Its clients are notified about Terms of Service and Privacy Policy during the registration process. Should the company send to the client an email according to GDPR Article 13 after the registration? If later the client adds some new personal data to her account info (e.g. profile image), should the company again inform the client about obtained new personal data according to GDPR Article 13? | Art 13 GDPR is about information to be provided when data is collected directly from the data subject. This information can be provided directly during/before collection. It is not generally necessary or useful to send the data subject an email with this information. Usually, a SaaS website will provide the information under Art 13 as part of their privacy policy, and link it in easy to find places. Also consider the EDPB guidelines on transparency, which suggests a layered approach: in addition to a detailed privacy policy, summarize key information directly when the data is collected, e.g. next to an input form. | Belgium enacted an implementing law, the Act of 30th July 2018 on the protection of natural persons with regard to the processing of personal data. This, along with the GDPR, are the key legislative references that relate to your question. On 5th September 2017 the ECHR judged that it "considers that States should ensure that, when an employer takes measures to monitor employees' communications, these measures are accompanied by adequate and sufficient safeguards against abuse". This case set a precedent relevant to employee monitoring in Belgium. This is most definitely a data protection or privacy law matter and the DPO should be consulted. If they have to do research, that shouldn't be your concern as that is their job. The company must support the DPO in what they need to do that job, as such is literally written into the GDPR. Furthermore, in this case it would, by my evaluation, be necessary to conduct a Data Protection Impact Assessment (DPIA) for the monitoring activity, and if one has been done, it should document the recommendations and requirements or what is already in place. You as an individual may also ask a question of the Data Protection Authority: (NL) https://www.gegevensbeschermingsautoriteit.be/verzoek-klacht-indienen (FR) https://www.autoriteprotectiondonnees.be/introduire-une-requete-une-plainte You might ask them about your position and liability as an employee, but I would be more concerned, if I were you, with verifying that your actions are above board rather than trying to cover your ass just in case they aren't. Do the right thing, even if that means questioning the direction you've been given. AD logons still identify the person logging on, and may include source IP, which is specifically listed in the GDPR as within the scope of 'personal data'. So while there may be a legitimate need to process such data, it needs to be gone about in the right way. Actions taken by an employee are taken by the organisation in terms of processing personal data, so whatever you are asked or ordered to do, will be done by the company. If you are being offered no legal justification for doing so, you might document the direction you are given and question it respectfully, pointing out that if found to be unlawful, it is the company that would be in trouble, all while knowing that should there be for example an unfair dismissal, you have a record of who asked you to do what, how you challenged or questioned it, and what was the outcome. | Per GDPR Art 12(5), “any actions taken under Articles 15 to 22 and 34 shall be provided free of charge”. The right to rectification is Art 16 and reads in its entirety: The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement. Thus, I think it would be invalid to charge a fee for an address change if that change was made in exercise of your data subject rights. If you didn't invoke this right, it's debatable whether charging a fee would be proper. On the one hand, they can charge whatever service they want (provided that this was part of the contract you entered). On the other hand, they have an obligation to assist you with your exercise of data subject rights. This includes recognising a data subject request even if you didn't explicitly invoke the specific GDPR article. For example, refusing a request for erasure just because you didn't invoke some magic GDPR words would be clearly noncompliant in my opinion. If the company offers multiple customer service options, charging for some of them may be all right. Typically, the lowest-cost solution for a company to deal with GDPR requests is to offer an online self-service option. An email to the data protection officer would typically also be free. Charging for phone support might be fine though. In an insurance context, there could also be a legitimate claim that updating your address is not a mere correction of your personal data, but a modification of the contract (depending on what you're insuring). Another possible counterpoint (which I think is not valid though) would be that the company never stored inaccurate data and therefore doesn't have to satisfy a rectification request. | The data processor is not responsible for complying with the GDPR. You are ultimately responsible, since you are the data controller. The data processor is merely required to assist you, but it's unclear what that means in the presented scenario. Per Art 28(3)(e) GDPR, the DPA must require the data processor to provide reasonable assistance: That contract or other legal act shall stipulate, in particular, that the processor: […] taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III; However, per Art 28(1) you can only engage processors that you deem sufficient to protect the data subject's rights: the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject. Here, it seems that your company failed to ensure that the processor provides the features you need for compliance. Many companies claim to be GDPR-compliant, but that doesn't mean that your use of their services will be GDPR-compliant as well. Depending on how the Art 28(3)(e) requirement was implemented in the DPA you may have a right to assistance even if the processor doesn't implement necessary features in their software, but enforcing this contract could require a lawsuit in a foreign jurisdiction (but that's par for the course for international B2B contracts). It is worth noting that the GDPR right to erasure doesn't always apply. In a processing activity where no erasure right is likely to arise, it would be perfectly fine to use a data processor that doesn't offer any possibility for erasure. Similarly, it can sometimes be legal to use technologies like Blockchain or Git that make erasure difficult or impossible. However, it is the responsibility of the data controller to analyze the impact of such a choice up front, before commencing the processing activities. In some cases, this could require a Data Protection Impact Assessment (DPIA). Note that transfers of personal data into the US are illegal or at least questionable in the wake of the 2020 Schrems II ruling. The Privacy Shield is no longer a legal basis for such transfers. Standard Contractual Clauses (SCCs) are technically allowed, but only “on condition that enforceable data subject rights and effective legal remedies for data subjects are available” (cf Art 46). The ECJ's judgement calls this into question. This could be a further incentive to migrate to a more GDPR-compliant service. | Contacting a business email about a business matter is usually fine, but in this case we have an unsolicited marketing communication (spam), not really a business matter. The client's jurisdiction likely has more specific rules about spam. Also, it is unusual (read: presumably illegitimate) to contact individual employees rather than the company's official address with the offering. From the GDPR perspective, every processing of personal data (such as email addresses that might identify natural persons) needs a legal basis (Art 6). Let's go through them: consent? No. necessary for performance of a contract involving the data subject? No. legal obligation? No. vital interests? No. public interest? No. legitimate interest? Perhaps. The client has a legitimate interest to conduct their business. However, this legitimate interest must not be overridden by the data subject's interests, rights, and freedoms. Such as the interest in not being disturbed by spam mails. It is the Data Controller's (your client's) responsibility to balance the legitimate interest themselves to determine whether they have a legal basis, but I really don't think that they do. In conclusion, your client's idea is a bad idea: They likely do not have a legal basis for this under the GDPR. They are likely violating more specific anti-spam laws in their jurisdiction. They are working hard to get their domain put on spam filter lists. Note that already the step of collecting employee email addresses is personal data processing and needs a legal basis. Of course, the GDPR does not apply when the client is not established in the EU and only processes the addresses of persons that are not in the EU. | When you use other services, the question is whether that service acts as an independent data controller, or as a data processor who only uses the data on your behalf. When engaging a data processor they must be legally bound to only use the data on your behalf, for example with a contract / data processing agreement (DPA). See Art 28 GDPR. Data processor status is attractive because processors are seen as an extension of the controller. In contrast, when sharing data with other controllers you would need a separate legal basis to authorize this sharing. Google offers tons of different services, so this question needs to be considered on a case by case basis. For Google Cloud services or Google Workplace, Google generally acts as a data processor. For other services, Google acts as a controller. Notably, Google Fonts does not offer a DPA so that you cannot claim they're acting as a processor in that context, regardless of what other Google services you use. An equally important problem when using Google services is the data transfer problem. Google is controlled from the US, but the US do not offer an adequate level of data protection (see the Schrems II judgement). Comparatively few Google services allow you to select where the servers are located, as to prevent transfers of personal data to countries where privacy cannot be guaranteed. For example, this is why Google Analytics (GA) is problematic. Google acts as a data processor for basic GA features but makes no promises about the location of servers. Thus, using GA implies a (probably) illegal transfer of personal data to the US. | 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. | I spent a few years working in and around the Energy industry - including a stint working at a supplier, I'm no longer there so unfortunately I no longer have access to the email chains I had discussing this with legal. The consensus at the time was that a "traditional" i.e. non-half-hourly (NHH), non-smart meter reading itself was not considered personal data - they are conceptually tied to a metering point (which may or may not be a physical meter), not to an individual and don't represent an individual's energy consumption (the granularity of the reading is insufficient to tell anything about the usage profile) But this information, while all around the implementation of GDPR it was a couple of years back and to be honest it was bugging me that I might be out-of-date on the current practices so I reached out to a former colleague who was the Data Protection Officer at the supplier I worked at to try and get a more up-to-date take. He's since moved on but was there until recently so has more experience with the topic since GDPR actually went into effect. I asked him whether a) estimated opening reads were considered "personal data" and b) what would happen with a request to change one under article 16 and he had this to say, I've translated industry-speak in square brackets: a) for NHH ["Non Half Hourly" - meters that are read ad-hoc, essentially all non-smart domestic meters will be this] an estimated reading wasn't personal data automatically until the billing flag was set in CRM and those would be the only ones we'd include on an SAR [Subject Access Request], any others are internal data not personal. HH ["Half Hourly" - meters for higher consumption users, typically larger business premises are billed on increments for each half hour so have readings for each] and remote [smart meter] readings are always personal for domestic and microb [micro-businesses are a certain class of non-domestic energy customer see condition 7A] b) erm no! we'd only change it if the value in CRM didn't match the value in the D10 [industry Data Flow used to transmit meter reads] for some reason. if they match it's an accurate representation of what we estimate the reading to be so it's just a vanilla billing dispute not a data protection issue so i'd have punted it to [name of person who was head of metering] From that it would sound as though the estimated read would count as personal data - so long as it's being used for billing purposes, but that doesn't mean they have to accept your read in it's stead. It all comes down to accuracy - GDPR requires that personal data be "accurate" but provides no definition as to what "accurate" means (which makes sense since you can't give a one-size-fits-all answer that isn't an encyclopedia) and while The Electricity Directive 2019 confirms the need for accuracy in billing again it doesn't tell us what that means. The implementation is left to member state regulators. In the UK this is OFGEM and all opening meter readings are validated through third parties (so you don't end up with the foxes guarding the hen house!) and are calculated using the following formula: Last validated reading for the meter point <= supplied reading <= (expected daily usage x number of days since last validated reading x 2.5) where "expected daily usage" is obtained from a database maintained by the regulator - it's calculated off meter type, property type, property use, previous validated reads etc. So if the customer provides a reading that falls outside the above the supplier can (and in practice invariably will) reject it as being inaccurate. Now this is why the when a meter reading is provided matters - reads you provide are always assumed to be the read on the day you give them. With opening reads there's some leeway, I can't remember the official rule on how much but usually they give you up to the next estimated read is generated but more on that later. Now if the reading you're trying to submit is a "now" reading and it's failed the validation criteria and you aren't happy with the rejection you can force the issue by demanding the supplier come read the meter. You don't say how long has passed since the opening read - more than the week from what you've said so presumably at least a month (guessing you've had at least your first bill). Now if they are saying the opening read was X (based on the estimated usage) and you're it should have been X + Y and the current reading is X + Y + Z you want to pay your actual usage Z not Y + Z. What you need to do is dispute the opening read, which you're entitled to do, arguably GDPR of Article 16 gives you this right, but on it's own it's a weak argument. There's established means by which an estimated read's "accuracy" is determined and assuming they followed that they're going to just tell you that as far as they are concerned it is accurate. Any challenge to that accuracy is going to have to be done within the legal/regulatory frameworks for assessing accuracy, that's what they're there for, if they won't accept your reading escalate that to the regulator - and as soon as you can. OFGEM for example allow disputing of opening reads for 12 months - it doesn't have to be resolved within that 12 months it just has to be lodged with them within that time. If you try and use the GDPR angle to pursue this IMHO it's going to muddy the waters and not help you get what you need - pursue this on billing accuracy. |
Commercial Use of Recorded Output made by Speech Synthesis via Web Speech API on Chrome I use the Web Speech API via Chrome to synthesize speech of my original text. I record the output audio using some other software. Do I own the copyrights to that recording? Can I sell the recorded audio file? Can I use it in my commercial YouTubes for instance? According to Chrome's terms (as depicted here: https://www.google.com/chrome/browser/privacy/eula_text.html), it would seem to me - I am indeed the owner of the recording, as Chrome's speech api is given as one of Chrome's services, which I can use to produce my own content. But - I would like to be sure. The closest answer by Google I saw is here: https://lists.w3.org/Archives/Public/public-speech-api/2013Jul/0001.html Which says the web speech api can be used for commercial. My specific question is about the recorded audio file. NEW: We asked Google’s legal team about it, and they asked us to ask a private attorney. So, we asked one of the leading copyrights attorneys - Attorney Rod Underhill from California about it. We published his full answer on http://ttsreader.com/blog/2017/05/10/copyright/ | I presume the input is text: "my original text" is assumed to mean you wrote (created) the text. That means that you hold the copyright to the text, and only you can authorize a derivative work (such as a synthesized recording). Therefore, you hold the copyright to the recordings as well. The crucial consideration governing that right is that you "created" the work, meaning that there is a modicum of creativity. However, if you did not create the text and your only function is to host an automatic process where users can create a synthesized recording, then whoever created the text has the right to the text and derivative works (i.e. the synthesized output). Automated processes like (unassisted) OCR or wav-to-mp3 conversion would not count as being "original", nor would automatic text-to-speech, so you don't gain copyright just from making an automatic work-creating tool available. On the assumption that the conversion involves a component of Chrome, you can use the service per the terms of service, though you cannot "reproduce, duplicate, copy, sell, trade or resell the Services". This might limit the extent to which you could make this conversion available to others, depending on how, exactly, you could do such a thing (does it duplicate the service?). As they say, Google owns all legal right to the Services, but Google obtains no right from you for any content created through their service. There is no restriction in the TOS against using the service for commercial purposes. Even if there were, that would not assign copyright in the recording to anyone else, it would just mean they could sue you for violating the TOS. | Here's where you went wrong legally: Suppose I legally obtain some digital image created by somebody else (e.g., by downloading from a public website). That, right there, is copyright infringement- unless the copyright owner has granted permission or the image is public domain you cannot copy it - this breaches "the right to make reproductions". By posting it on the web (assuming that it isn't itself an infringing copy) they have given implied permission for you to look at it in a web browser but not to copy it into a presentation even if that presentation is never presented. If it is presented then that makes the infringement worse - it adds breaches of "the right to communicate to the public" and "the right to use the work as a basis for an audiovisual work". How is this different from the computer wallpaper? It isn't. If you are using the one of the defaults that shipped with the OS then the license gives you permission. If you are using someone else's copyright without permission then it's a breach. There are defenses to copyright infringement but these are quite nationally variable - search this or other sites for "fair dealing" and "fair use". | The first question is whose law you are concerned with, since in principle you might have violated copyright law in any country, and might be sued under the laws of multiple countries. The US has a concept of "fair use" which is notoriously difficult to apply. When you are sued in the US, you can defend against the allegation by arguing certain things: telegraphically, this includes purpose and character of use, nature of the work, substantiality in relation to the whole, and effect on market. Plus there is a 5th factor to be considered, transformativeness. The court then weighs these factors to decide if the use is "fair". By reading existing case law on the topic (conveniently available from the US Copyright office) you might develop a fact-based opinion of the risk: you would be vastly better off hiring an attorney who specializes in US copyright law to do an analysis for you. Do not hire a programmer to give you legal advice (do not hire an attorney to debug code). You would "fail" on the test of substantiality in that you are copying a highly substantial portion of the original work(s). You would "win" on nature of use (research especially non-profit and commentary are the underlying purposes that drive fair use law). It's not clear how you would fare w.r.t. nature of the work, which is intended to distinguish the extremes "news report" and "literature and artistic work" where copying news is at the fair use end of the spectrum. It is not clear how you would fare on "effect on market", but probably not so badly: are you avoiding some licensing fee? Coupled with the tranformativeness consideration, you are most likely having no effect on the market, since the product that you will distribute is not the original work, but a scientific conclusion about the work. Germany has different laws, and this article would be relevant if you cared about Germany. There was a change in the law that expanded the analog of fair use pertaining to research use. That law allows 15 percent of a work to be reproduced, distributed and made available to the public for the purpose of non-commercial scientific research. That, b.t.w., does not refer to what you are planning to do (unless you also publish quotes); for personal scientific research you may reproduce up to 75 percent. Since this is a new law only a year old, you could become part of the cutting edge in testing the limits of the law. So the standard disclaimer applies: ask your attorney. But note section 60d of the law which legalized data mining, and is squarely on point: (1) In order to enable the automatic analysis of large numbers of works (source material) for scientific research, it shall be permissible to reproduce the source material, including automatically and systematically, in order to create, particularly by means of normalisation, structuring and categorisation, a corpus which can be analysed and to make the corpus available to the public for a specifically limited circle of persons for their joint scientific research, as well as to individual third persons for the purpose of monitoring the quality of scientific research. In such cases, the user may only pursue non-commercial purposes. (2) If database works are used pursuant to subsection (1), this shall constitute customary use in accordance with section 55a, first sentence. If insubstantial parts of databases are used pursuant to subsection (1), this shall be deemed consistent with the normal utilisation of the database and with the legitimate interests of the producer of the database within the meaning of section 87b (1), second sentence, and section 87e. (3) Once the research work has been completed, the corpus and the reproductions of the source material shall be deleted; they may no longer be made available to the public. It shall, however, be permissible to transmit the corpus and the reproductions of the source material to the institutions referred to in sections 60e and 60f for the purpose of long-term storage. | 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. | As far as the CCLI license is concerned, it depends on the source. You can see the requirements in this link. The main points that you might not meet is that the sheet music must be used to assist congregational singing and must be from a source designated as such. If your sheet music meets those requirements, then the CCLI does allow you to: Create digital song files to share with your worship team. However, if it doesn't meet the requirements, then Dale M's answer provides a good overview as to your options. | The first thing that has to be done (in court, or via lawyer-to-lawyer communication) is that The Company has to prove that they own the copyright. If they accomplish that, you can defend yourself by providing proof of a license to download and redistribute. From what I can tell, you cannot directly prove that, since the rights-holder did not give you the license. The issue is that a third party cannot impose a license on a work simply by putting it out there with a file that claims to be a license from the artist. So this brings in the Free Music Archive: they presumably have some evidence that the rights holder did indeed grant the alleged license, and may be able to provide proof. Your argument may be credible, in the sense that you had a good-faith belief that the item was so licensed, and the website would provide a basis for concluding that that belief is reasonable. If the work was licensed, then the some rights holder would know that, but not necessarily the current one. Assume the artist made a recording, transferred the rights to Company A, who later sold the rights to Company B who is now coming after you. Artist may have licensed it when it was his, and forgot to tell A. A may have licensed it when they sold the license to B. Artist may have improperly licensed it after he sold the work to A (under the "I wrote it, I have the right to do whatever I want" non-legal theory). A might have improperly licensed the work after selling the right to B (maybe by mistakenly including it in a package deal, i.e. via bookkeeping error, rather than ignorance of the law). Or, they may simply have forgotten. If this is a DMCA takedown notice, the notice-giver could just be abusing the system. But we don't know how you were contacted, so I'll leave DMCA out of this for now. | It depends on what information you are sharing, how you got it, and what rights the business asserts over the information. For example, if it is content created by the business and they claim copyright protection you can only use it without their permission in accordance with Fair use exceptions. If you obtain the information through some limited/conditional access agreement you would be subject to the terms of that agreement. As always: If you want a legal opinion specific to your use case you need to consult a lawyer in your jurisdiction. | 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. |
Is it legal to sell fan merch based of a group but only uses their name as promotional tags So I was wondering if it was legal to sell fan merch while only using the groups name for tags. The name wouldn't be listed under the product or could i say its xyz inspired. If this is still bad, what about using their actual names instead of the group name because I don't think its trademarked. | Band names usually are trademarks. For Example AC/DC is trademarked in the US for Auto parts (REG: 5849299) Music, Picks and Bags (REG: 86551440) and pretty much any other thing used as merchandize (REG:75982466). Oh, and they are a famous mark with their AC-thunderbolt-DC. Not every band does go out and pay trademarking fees and register their trademark, but in the united-states they are not obligated to! They use their name in the marketplace, they possibly have their own merchandize, so you infringe on their market. Other countries have different rules, for example germany has the "first registered" rule - whoever registers a mark first gets it exclusively, no matter who registers it. | There is no law against a person creating and distributing such a poster, to the best of my knowledge. However such a poster pretty clearly implies that the person shown is guilty of a crime, or at least strongly suspected. If the store somehow made an error, pulling the image of a person who did not use the stolen card or there is some other error, the person pictured might well suffer a significant loss of reputation, and might sue for defamation. Damages could possibly be significant. Such suits have, I believe, happened when surveillance photos were posted but there later proved to have been an error. Mary might wish to double check how sure the store is that the photos are of the person who actually used the stolen card. | It is cl;early not legal to charge for an optional warranty without ever having gotten approval for it. The customer could simply ask for a refund on teh ground that this was an error, and take it to small claims if that was refused. I am sure it is legal to offer such an optional warranty and point out its (alleged) benefits. I do not know if consumer law forbids making this pitch multiple times in the same selling encounter. | Generally you can only use logos (i.e., symbolic trademarks) if you have the trademark owners' permission. You may certainly use the names Cisco and Microsoft nominatively, although they might ask you to provide a disclaimer of any affiliation including sponsorhip or approval, if it gets to them. "Not making any money" is also not the sole determinative factor in proving your defense of "fair use". | A character can not be copyrighted. Only a work (picture, text, movie etc.) featuring that character can. However, a character can be registred as a trademark (more specifically, its name and its appearance). | It may be useful to draw a distinction between the NFT and the Art referenced by this NFT. There is no intellectual property in an NFT itself because an NFT is not a creative work, invention, or trade secret. Ownership of the NFT. As far as I'm aware, no laws recognize the Ethereum blockchain as an arbiter of ownership. However, NFTs and other “crypto” assets seem to be recognized as property. Thus, it can be the case that lawful ownership diverges from the ownership records on the blockchain. In the referenced scenario, someone gained control over an NFT but likely did not receive the property rights in that NFT (i.e. stole it). License to use the Art. The “Bored Ape Yacht Club” terms define ownership of the NFT purely in terms of the Ethereum blockchain, and ignore legal ownership: Ownership of the NFT is mediated entirely by the Smart Contract and the Ethereum Network The blockchain-owner of the NFT is then granted a license to use the Art via these terms. This leads to the following conclusions: There are no intellectual property rights in the NFT. Any intellectual property rights in the Art are held by Yuga Labs LLC, the company behind the “Bored Ape Yacht Club”. Nothing in the terms transfers ownership in the Art. Yuga Labs LLC grants the blockchain-owner of the NFT a license to use the Art. Here, this means that the thief held the license, then after the sale the subsequent buyer. Yuga Labs LLC does not grant the legal owner of the NFT any rights, in case the legal owner and the blockchain-owner are distinct. Of course, nothing would prevent Yuga Labs LLC from also granting a license to the legal owner of the LLC. They can still do so retroactively, as their license grant to the blockchain-owner is probably not exclusive. But I would be surprised if they would do so, since it would shatter the “NFT = Art” and “Blockchain = Ownership” illusion that their business model relies on. | It is not obvious that it violates the TOS (which is a complex wall of text and links to chase). §3 states that "we need you to make the following commitments", followed by some subsections – you can re-interpret this as an agreement on your part to do this stuff. Those subsections relate to "legitimate accounts and users" (not relevant), "what you can do" (potentially relevant), "permissions you give" (granting them license to use your stuff), not infringing on their copyright. The second subsection about what you can "do" says that you can't "violate these or other terms", or do anything unlawful, or infringing, nor may you upload viruses, or scrape Facebook data. So it turns out that there is nothing specific in that subsection, but it does say that you won;t violate "other terms". §5 presents a bunch of other possible terms and policies: Community Standards, Commercial Terms, Advertising Policies, Self-Serve Ad Terms, Facebook Pages, Groups and Events Policy, Meta Platform Terms, Developer Payment Terms, Community Payment Terms, Commerce Policies, Meta Brand Resources, Music Guidelines and Live Policies. Those primarily apply to advertisers, group-pages, developers, commercial use and content broadcast via Meta. Community Standard applies to everybody, and as you should predict there is a long list of specific sub-categories such as "Violence and Criminal Behavior", "Safety", "Objectionable Content", "Inauthenticity" etc. You would have to hire a lawyer to do an exhaustive search and interpretation. However, it appears that using an ad blocking app is not forbidden on FB, and that seems to be what that extension is. But you should read it for yourself. All. Of. It. It may have violated the older TOS, but that clause seems to me missing from the present TOS. | It doesn't make a difference if the product is free or commercial use, if it's initiated by a company or an individual. What you are considering would be a "derivative work" and without explicit permission from the copyright holder, it is considered a violation. |
Clarify section of the Hire Purchase Act can someone let me know if i'm reading this correctly. Is point 2 stating that if I purchase a vehicle from a private seller, and he/she does not inform me that the vehicle is subject to a hire purchase agreement, then the title of the vehicle still goes to me? As I purchased this vehicle in good faith, and wasn't informed. Some of the terminology trips me up: disposition: the act of the sale? debtor: the finance company? Section 27 Protection of purchasers of motor vehicles. This section applies where a motor vehicle has been bailed or (in Scotland) hired under a hire-purchase agreement, or has been agreed to be sold under a conditional sale agreement, and, before the property in the vehicle has become vested in the debtor, he disposes of the vehicle to another person. Where the disposition referred to in subsection (1) above is to a private purchaser, and he is a purchaser of the motor vehicle in good faith without notice of the hire-purchase or conditional sale agreement (the “relevant agreement”) that disposition shall have effect as if the creditor’s title to the vehicle has been vested in the debtor immediately before that disposition. https://www.legislation.gov.uk/ukpga/1964/53 | The new buyer (ie purchaser) gets the car and title, and the seller (ie debtor) retains the HP debt with the finance company (ie creditor). Under a Hire Purchase/Conditional Sale agreement the finance company generally own the car until the end of the finance agreement. If a person has the vehicle on such a finance agreement then sells it to a private and innocent purchaser the purchaser gets good title to the car. The only recourse the finance company has is against the person who had it on finance or any of the trade buyers/sellers in between. http://www.lawgistics.co.uk/legal-article-business-law/motor-trade-advice/special-rights-to-customers-buying-cars-subject-to-hire-purchase | On what grounds would you sue? Contract Well, I think that you would struggle to find the necessary elements (see What is a contract and what is required for them to be valid?) In particular, you would struggle to prove that there was intention to create legal relations on their part and possibly on yours. Are you able to identify in your "back & forth" a clear, unequivocal offer and acceptance? Without knowing the details of the "back & forth": I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works appears on the face of it to be a request for a gift; not an offer to treat. Promissory Estoppel If you don't have a contract then it is possible (IMO unlikely) that they induced you by your actions to commit resources (your time in writing) in anticipation of a reward (them publishing what you wrote). To be estopped they would have to have known that you were writing the article in the expectation that it would have your organisation's name in it, that they did not intend for that to happen and that they allowed you to invest those resources notwithstanding. If you can prove all of that then you can require them to do what they promised. The big difficulty I see in this is did you tell them that a) you were writing the article, b) it would have your name in it and c) you expected it to be published in that form. Copyright If they publish the work or a derivative work without your permission you can sue for breach of copyright. As it stands, they probably have an implied licence to publish and you would need to explicitly revoke that. Options There are two reasons to go to court: Money Principle If you are going to court for money then this is at best a risky investment and at worst a gamble: balance your risk and reward carefully. If you are going to court for a principle then I simultaneously admire your principles and think you're an idiot. Make a deal Explain that the reason that you wrote the article was a) to support their fine publication and the fantastic work it does (even if you don't) and b) to garner good publicity for your organisation. You understand and admire their strong editorial stance (especially if you don't) but the article involved a considerable amount of work and could they see their way clear to give you a significant discount (~80%) on a full page ad facing the article. | The term "The Property" does not intrinsically include or exclude a garage in this situation, so the answer has to come from other considerations. The lease is unclear, so the courts will need to look at other factors (such as the picture) to decide which interpretation is correct. Insofar as the landlord wrote the contract and could have included a clause explicitly excluding the garage, but didn't, the courts may rule in your favor under the doctrine contra proferentem. The physical arrangement does support the conclusion that the garage is part of The Property, in particular the access to the part constituting your yard. This assumes that there actually is access to your yard from the garage. Scouring the entire contract, there may be some subtle indication of how the garage is to be treated, such as a clause presupposing that you have access to the garage ("shall clean the garage..."). Then we come to the matter of the key. You say the landlord changed the key: does that mean you used to have a key that gave you access to the garage? If you used to have access to the garage, using a key provided by the landlord, that would support the conclusion that the garage was not a separate item governed by its own contract. If you have never had and were not given access to the garage (no key), that would support the contention that the garage is separate. Similar questions would be raised about the actual use of the garage: has the landlord been using it to store equipment? That would support his contention. Had you been using the garage previously and now months later the landlord wants to charge rent for the garage? That runs counter to his claim that you didn't rent the garage. In other words, since the wording does not answer the question, the full set of circumstances would have to considered. | Jurisdiction: england-and-wales Preliminary issues Firstly, as some of the comments have highlighted, this could be a scam. I have personally come across such a scam on two occassions. The scammer rents a property short term (e.g. 2-3 weeks) on AirBnB. They then pose as a landlord or letting agent and advertise the same property as a long term let. They collect a deposit and rent from any person who wants to be a tenant. They may even copy the keys and give each "tenant" a set. On move in day, you arrive at the property to find that you are not the only person trying to move boxes in. It has always struck me that landlords are generally very careful to vet their tenants by checking ID, proof of address, obtaining references, and running credit checks. Yet tenants rarely do any vetting at all of their landlords. A very basic and easy check you can do is to purchase the title register (not title plan) for the property from the Land Registry. This costs £3 and will give you the name of the person who owns the property. If the property is an apartment then you will generally want the leasehold title register (not the freehold). Once you have the name, you can then ask your landlord to provide proof that they are that person. Secondly, you've tagged the question united-kingdom, but the UK is actually comprised of multiple legal jurisdictions and housing law varies among them (particularly in Scotland). I'm answering this on the basis of england-and-wales. Third, questions asking for legal advice on real situations are off-topic here. My answer will just address the general issues and shouldn't be taken as advice for your situation. Contract and due dates There is nothing in contract law which prevents obligations from arising before the date that the contract is agreed. It is not unusual for parties to draft contracts which govern past behaviour. In that sense, it is perfectly acceptable to agree a contract on 12 August which requires rent to have been paid on 8 August (albeit it would be inadvisable to agree such a contract as you would immediately be in breach if you had not already paid). On the other hand, a contract which purports to have been agreed on a date which is earlier than when it was actually agreed, can amount to fraud. I would be wary of a subsequent email which purports to allow a later due date which contradicts the contract. Unless there is a clause in the contract allowing for the landlord to postpone due dates, the email is unenforceable and your real due date is still 8 August. The attempt to change the due date is effectively a variation of the contract, and a variation which is not permitted in the contract itself needs to be executed as a second contract. That means you need all the elements of a contract: offer/acceptance, intention to be bound, and consideration. The problem here is the latter. The landlord is providing consideration (a later due date) but you are offering nothing in return. Holding the room "The agent told me they cannot hold my room too long due to the high volume of interest in booking the rooms." "Once you have signed this agreement you will be liable for the full rent set out in the agreement unless released from your tenancy by the Landlord or Management Company." These two positions are contradictory. If you agreed a tenancy (as implied by the second quote), then you have a contract which is legally binding on both parties. The first quote is incorrect - there is nothing to "hold" because the room is already yours. On the other hand, it may be that what you agreed was a holding deposit agreement (rather than a tenancy agreement) which is merely a commitment on the part of the tenant to forfeit a sum of money (which by law cannot exceed 1 week's rent) in the event that the tenant (as opposed to the landlord) decides not to proceed with the tenancy. The wording from the second quote (liability for full rent) implies that it is a tenancy agreement rather than a holding deposit agreement. Or, in the alternative, that it is an illegal holding deposit agreement which asks for more money to be forfeited than is lawful. You'll need to read your full contract to understand what it is. If it's a tenancy agreement, it will be obvious from the wording that you have actually rented the property. Obligation to pay rent "My question is do I have any legal responsibility to pay for the entire rent by the new due date (25 August) for APT1?" Unfortunately, if you have signed a tenancy agreement, then you are legally bound to fulfill your obligations under it (provided such obligations do not break the law). If it contains a clause stating that you must pay 51 weeks's rent, then that is what you must do. "If they told me they cannot hold my booking any longer, do I need them to confirm in writing that I'm released from the agreement?" As a general rule of contract law, nothing needs to be in writing unless (a) the law requires it to be in writing or (b) the contract requires it to be in writing. You agree non-written contracts all the time when you go shopping, use the bus, etc. The same applies to taking actions which are governed by a pre-existing contract e.g. giving your taxi driver verbal directions once you are en-route. The phrase "unless released from your tenancy by the Landlord or Management Company" says nothing about the release needing to be in writing; therefore it can be verbal (provided that there isn't another clause somewhere else in the contract which requires it to be in writing). Be aware however that verbal statements can be difficult to prove. | It depends on whether "person" means "owner" If Bob is liable, it's not under the Impounding Act of 1955. In that Act, the occupier of land is allowed, but not required to impound trespassing animals. This is made clear in s 21 of the Act, which says "the occupier...may seize and impound any stock trespassing on the land." A quick search finds no sections of the Act requiring an occupier to impound trespassing cattle. So it seems Bob is free to send the cattle on their way, at least under the Impounding Act. However, liability for cattle and cars is also covered by the "Animals Law Reform Act of 1989." The two subsections of "Section 5" of that Act appear to broaden the class of people who could be held liable for damage “caused by an animal straying onto a highway.” Neither subsection explicitly mentions the owner. Instead, both talk about the "person" who is liable. The first, s 5(1) says the part of the common law that “excludes or restricts” “the duty that a person might owe to others to take reasonable care” to prevent damage no longer applies in New Zealand. The second, s 5(2), says a court must determine "whether a person is liable...for damage caused by an animal straying onto a particular highway..." Given that Impounding Act explicitly says "owner" not "person," common sense suggests the use of the word "person" rather than "owner" in the Animals Law Act of 1989 means that Act allows others besides the owner to be held liable for damages. Whether New Zealand courts agree, and whether they have interpreted the “Animal Laws Act” in a way that would include Bob is a matter of fact that can only be answered by someone who knows New Zealand law. Added: Something fun to read Law professor Robert Ellickson studied how people actually resolve disputes over wandering cattle in Shasta county in northern California. There's a readable summary of what he found here. (The title of his book, "Order without law," sums up his main finding -- there are rules that are enforced, but those rules have little to do with the formal law or law enforcement.) | As described, this may be a form of illegal bait-and-switch advertising, but not breach of contract. The contract states the specific vehicle to be sold, which does not match the test-driven car. If the dealer had listed the better car's VIN in the contract but supplied a different car, that would be breach of contract. Whether it is illegal advertisement depends on the representations and disclaimers made by the dealer. To the extent that the dealer supplied indications that there was a difference between the test model and the purchase model, or to the extent that the customer should have known that the test car had features not found in the specific model that the customer believed he was buying and paying for, the dealer was being non-deceptive. To the extent that the dealer holds that selling model X instead of model Y is an "honest mistake" on their part, the dealer was being deceptive (or, was plainly in breach of contract). It's hard to see what "honest mistake" the dealer might have made, but perhaps the mistake was "not being clearer to the customer that they had test-driven a fancier model, not the one that they were actually buying". The customer's attorney could pursue this matter and either get the better car, or get a better financial deal, but it really hinges on who said / wrote what (and has a more believable story about what was said). | No, because you are affecting the car's value by selling its parts. The car is collateral to the loan, so if you don't make the payments, the lender has the right to repossess and resell it to recoup their money. If they are unable to recover at least the outstanding balance of the loan through resale, you will be on the hook for the difference. This is called a "deficiency balance". Simply having possession of something isn't adequate basis to decide you can do whatever you want with it. You have physical possession, but the lender is the first lien holder on the title until the loan is satisfied. | That would likely be treated as a preamble. These have been held in some jurisdictions to not have any weight. For example, see Sherbrooke Community Centre v. Service Employees International Union, 2002 SKQB 101: The preamble to a contract is nothing more than an introduction to that about which the parties have actually agreed. It puts the agreement into context. It describes the goals of the agreement. It speaks to what went before and the spirit in which agreement was achieved. On the other hand, it does not contain any promises. It does not contain any restrictions or commitments. It could be removed entirely without in any way altering that which was agreed to and set out in specific terms. [...] this clause in the preamble does not create or eliminate rights or obligations Granted, the introductory phrase in your hypothetical clause is not literally a preamble, but it has the same characteristics cited in the above decision: "it describes the goals", "it does not contain any promises", "it could be removed entirely without in any way altering that which was agreed to". If you wanted the clause to only take effect if toilets overflowed, use an alternative wording, like: Company B may not resell any products purchased from Company A at a discounted price in a manner that causes toilets to overflow. |
Is dry humping sexual assault? Can fully-clothed dry-humping someone without consent count as rape? And if not, what sort of offense is it? If found guilty, what would a typical punishment be in the US? Does it matter whether the victim is under-aged? Does it matter if the perpetrator is in a position of authority? (Say the perpetrator is a high school teacher and the victim is a high-school student.) | Most states have two parallel sets of sexual assault statutes. One set punishes sexual assaults involving sexual penetration that has greater penalties. The other set punishes sexual assaults involving sexual contact without sexual penetration that has smaller penalties but otherwise the same elements of the offense. Usually, almost every offense which is a crime when it involves sexual penetration is also a crime when it involves sexual contact but not sexual penetration, with the fairly frequent exception of statutory rape offenses that cover an adolescent victim who is below the age of consent but post-pubescent (with the statute itself setting specific age thresholds that vary from jurisdiction to jurisdiction). Often, even when statutory rape of an adolescent (i.e. sex with consent by an adolescent under the age of consent) itself is a relatively minor crime, often a misdemeanor, and is rarely prosecuted to the full extent of the law, child prostitution or attempted child prostitution with the same victim is often a very serious offense, and child pornography offenses often also carry serious penalties when the "child" is under the age of eighteen, even when the sexual act filmed or photographed itself is of people who are above the age of consent and are legally having consensual sex. In many states, sex with someone in a position of authority over the victim is a crime without regard to consent, much like a statutory rape offense, but without regard to age. In some states there would be a parallel sexual contact offense, and in some states there would not be one. The name of the offenses varies considerably from jurisdiction to jurisdiction. Sometimes they are different degrees of the same offense, sometimes they are offenses with different names, and the names used varies quite a bit. Also, even when an arguable sexual contact offense is not a sex offense, it would almost always be some form of non-sexual criminal assault offense. For example, Colorado has sexual assault related crimes called sexual assault at Colo. Rev. Statutes § 18-3-402 (involving sexual penetration and including two grades of statutory rape, and including cases where "the victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search" and cases where "the actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices"), a parallel crime called unlawful sexual contact at Colo. Rev. Statutes § 18-3-404 (not involving sexual penetration, including cases where "the victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses this position of authority to coerce the victim to submit, unless the act is incident to a lawful search" and cases where "the actor, while purporting to offer a medical service, engages in treatment or examination of a victim for other than a bona fide medical purpose or in a manner substantially inconsistent with reasonable medical practices"), a crime called sexual assault on a child at Colo. Rev. Statutes § 18-3-405, sexual assault on a child by one in a position of trust at Colo. Rev. Statutes § 18-3-405.3, internet sexual exploitation of a child at Colo. Rev. Statutes § 18-3-405.4, sexual assault on a client by a psychotherapist at Colo. Rev. Statutes § 18-3-405.5, incest at Colo. Rev. Statutes § 18-6-301, criminal extortion at Colo. Rev. Statutes § 18-3-207, second degree kidnapping at Colo. Rev. Statutes § 18-3-302, aggravated incest at Colo. Rev. Statutes § 18-6-302, human trafficking for sexual servitude at Colo. Rev. Statutes § 18-3-504, sexual exploitation of a child at Colo. Rev. Statutes § 18-6-403, procurement of a child for sexual exploitation at Colo. Rev. Statutes § 18-6-404; soliciting for child prostitution at Colo. Rev. Statutes § 18-7-402, pandering of a child at Colo. Rev. Statutes § 18-7-403, procurement of a child at Colo. Rev. Statutes § 18-7-403.5, keeping a place of child prostitution at Colo. Rev. Statutes § 18-7-404; pimping of a child at Colo. Rev. Statutes § 18-7-405, inducement of child prostitution at Colo. Rev. Statutes § 18-7-405.5, patronizing a prostituted child at Colo. Rev. Statutes § 18-7-406, internet luring of a child at Colo. Rev. Statutes § 18-3-306, obscenity at Colo. Rev. Statutes § 18-7-102, posting a private image for harassment at Colo. Rev. Statutes § 18-7-107, posting a private image for pecuniary gain at Colo. Rev. Statutes § 18-7-108, posting, possession, or exchange of a private image by a juvenile at Colo. Rev. Statutes § 18-7-109, prostitution at Colo. Rev. Statutes § 18-7-201, soliciting for prostitution at Colo. Rev. Statutes § 18-7-202, pandering at Colo. Rev. Statutes § 18-7-203, keeping a place of prostitution at Colo. Rev. Statutes § 18-7-204, patronizing a prostitute at Colo. Rev. Statutes § 18-7-205, pimping at Colo. Rev. Statutes § 18-7-206, and prostitute making display at Colo. Rev. Statutes § 18-7-207, public indecency at Colo. Rev. Statutes § 18-7-301, indecent exposure at Colo. Rev. Statutes § 18-7-302, sexual conduct in a correctional institution at Colo. Rev. Statutes § 18-7-701, criminal invasion of privacy at Colo. Rev. Statutes § 18-7-801, harassment at Colo. Rev. Statutes § 18-9-111, hazing at Colo. Rev. Statutes § 18-9-124, cruelty to animals at Colo. Rev. Statutes § 18-9-202, and violations of the Colorado Organized Crime Control Act at Colo. Rev. Statute § 18-17-101, et seq. If found guilty, what would a typical punishment be in the US? In a system in which there are several classes of felonies and several classes of misdemeanors, usually sexual contact offenses are one to three offense classes below the sexual penetration offense with the same elements. For example, if unaggravated sexual penetration without consent is the second lowest grade of felony, unaggravated sexual contact without consent is typically the lowest grade of felony or the highest grade of misdemeanor. A highly aggravated sexual assault with penetration offense is often punishable by decades in prison. An unaggravated sexual contact without consent offense may be punishable by up to six to twelve months in jail or a long period of probation. The offenses are too varied by jurisdiction and crime details to summarize easily. Aggravated rape is a death penalty offense in U.S. military justice although the U.S. Supreme Court has held that the imposition of the death penalty (at least in cases where the victim is not a child) is unconstitutional. Some states declare in their statutes that the aggravated rape of a child is a death penalty offense although the constitutionality of those statutes has not been tested in court and no one has been executed for such an offense since the death penalty was reinstated in the 1970s in the U.S. Most sex offenses in the U.S. of all types, including both sexual contact offenses, sexual penetration offenses, and even offenses involving no contact at all, such being a peeping tom, also require to convicted defendant to register as a sex offender, either for a long period of time or for life, which is a quite severe and separate punishment in addition to the incarceration and/or fine and court costs and surcharges involved. In the case of child sex offenses and some repeat rape offenders, even after a term of incarceration is fully served, the state may seek to have the offender detained indefinitely civilly to protect the public until it is determined that the offender is no longer a threat, which rarely happens in practice. | Keep in mind that there are two kinds of legal consequences. One is criminal liability for violating a criminal statute, in a prosecution that must usually be brought by a government official. Merely causing emotional distress, in and of itself, is not generally a crime. For that matter, inducing someone to have sex with you through lies about anything other than the identity of the person having sex is usually not a crime. But inducing someone to disclose secrets or take actions that they otherwise would not have taken based upon a statement like this could be wire fraud, theft, extortion, or a variety of other crimes, depending upon what the person A was induced to do by the messages. Knowing what was sent, in isolation, doesn't tell you everything you need to know. While practicing medicine or other healing arts without a license is a crime or at least a civil offense, this wouldn't necessarily qualify, because person B is pretending to create someone treating person B, not pretending to practice medicine on person A. No one who wasn't in on the prank had medicine purportedly practiced upon them. But if the text were use to cause someone to act in reliance on a medical opinion (e.g., to get an employer to grant family leave to person A) then it might be illegal practice of medicine. The second is civil liability, in the form of a lawsuit for committing a civil wrong, called a "tort" or breaching a contract, or for other private individual initiated requests for remedies. The conduct in the question, conceivably gives rise to civil liability for intentional infliction of emotional distress, or civil fraud. But to know that it isn't enough to know what was said. One also has to know what happened on the other end of the communication. Did person A believe the text? Did person A suffer extreme emotional distress? Did person A part with money or information that couldn't have been obtained without a false statement of fact? Was person A's reputation harmed somehow? | If I were a DA (District Attorney) looking out "stamp out" statutory rape, I would make the rounds of the hospitals, identify women who gave birth, or were impregnated when underaged, and go from there. But few, if any DAs, do this. No, you wouldn't. First, you have neither the time nor the budget to do this. Second hospitals are not public property, you would need a warrant which the court won't give you because you don't have probable cause to believe a crime has or is being committed. As a DA, I would of course, follow up on any complaints lodged by the victim, or even by her/his parents. And maybe I would prosecute a case where people were "caught in the act, or there were nude pictures, etc. May even an especially egregious PDA (public display of affection). No, you wouldn't. You would follow up on complaints to the extent that you have the time, budget and manpower to do so and you would prosecute cases where you believe that you have a reasonable prospect of getting a conviction and where prosecution is, in your opinion, in the public interest. In the real world, that means where the police hand you a brief of evidence that is a lay-down misere and (for statutory rape) where there is a real power imbalance between the perpetrator and the victim - giving 2 willing 15 year old kids the label of 'sex offender' for life is probably not in the public interest. But suppose there were no complaints or smoking guns. Could someone investigate based on something like a teenager "holding hands" with someone much older? To make the question objective, what has historically caused DAs to prosecute people outside of the above parameters? With some exceptions, it is not the role of the DA to initiate or conduct investigations of criminal actions - that is the role of law enforcement officers, usually for this particular crime, police officers. Notwithstanding, the general rule in western, liberal democracies (which the United States, with a certain generosity of spirit, can still be considered) is that citizens are allowed to get on with their lives without day-to-day interference from the state. That is, law enforcement officers do not 'go fishing' for crimes, they investigate crimes that they have a probable cause to believe have actually happened, either because they themselves saw it happen or someone has reported it to them as having happened. The term for having a law enforcement officer following you around waiting for you to break the law is 'harassment' and may itself be illegal. A law enforcement officer can initiate an investigation based on anything but as no law enforcement agency has unlimited resources, they tend to follow only those investigations that might lead somewhere. For example, it has been known for parents to hold the hands of their children and even to publicly display affection towards them and parents are often "much older" then their children - this would not generally be grounds for initiating a statutory rape investigation. | What is going to happen, could I get fined, placed in jail etc? Your summons should have explained the specific violation you're being charged with, and you could look up the relevant sections of the law. Assault is defined in Chapter 12 of the New Jersey Code of Criminal Justice. There are several types, and again, your summons should explain which one you are being charged with. My guess is it will probably be "simple assault", paragraph (a) (right at the beginning). This is defined as a "disorderly persons offense". Upon conviction, a disorderly persons offense is punishable in New Jersey by a term of up to 90 days in jail and probation, (section 2C:43-2 (b) (2)), and a fine of up to $1000 (section 2C:43-3 (c)). This represents the maximum. I do not know what kind of sentence is actually likely. It could depend on common practice in the state, the prosecutor's opinion of the severity of the crime, and the judge's discretion. A lawyer would be best qualified to help you find out how to contest the charge, or to receive a lesser sentence if convicted. | I am not a lawyer either, though I have been through Pennsylvania a few times. The relevant law is 18 Pa.C.S. 5703, which prohibits recording without consent of all parties (Penna is a "two-party consent" state, like Florida and Washington). Unfortunately, violation of that law is a third degree felony, which has a maximum of 7 year prison. A specific instance of someone getting in trouble for recording their boss is Commonwealth v. Smith (Smith used a cell phone to record his boss, then argued that a cell phone isn't a "device"; the court determined that it is, and that was Feb 16 2016 so who knows the final outcome). An attorney in Pennsylvania might be able to tell you how often people actually serve time for violating the law. You should call one. | Does cybersex count as pornography? The law does not define pornography, so this is up to an interpretation of the courts. However, it appears to be common consent that a depersonalisation of the subjects is an essential aspect. For example, this verdict notes (translations and emphasis mine): Pornographie liegt nach der Rechtsprechung des Bundesgerichtshofs und der Oberlandesgerichte vor, wenn eine Darstellung unter Ausklammerung aller sonstigen menschlichen Bezüge sexuelle Vorgänge […] in den Vordergrund rückt […] (vgl. BGHSt 37, 55 (60); 32, 40 (44 ff); OLG Karlsruhe NJW 1974, 2015 (2016); OLG Düsseldorf NJW 1974, 1474 (1475); ebenso BVerwG NJW 2002, 2966 (2969)). […] Hinzukommen muss deshalb als weiteres Kriterium die sog. „Apersonalität des Geschlechtspartners“ (vgl. Erdemir, MMR 2003, 628 (631)). Die Darstellung muss mit anderen Worten durch eine Verabsolutierung sexuellen Lustgewinns unter gleichzeitiger Entmenschlichung der Sexualität geprägt sein. Pornographie ist danach anzunehmen, wenn der Mensch im Rahmen der Darstellung zum bloßen, auswechselbaren Objekt sexueller Begierde degradiert wird (vgl. S/S/Lenckner/Perron/Eisele, StGB 27. Aufl., § 184 Rdn. 4; MK-Hörnle a.a.O., § 184 Rdn. 15; jeweils m. w. Nachw.). […] According to the Federal Court’s and the state courts’ jurisdiction, a depiction is pornography if it emphasises sexual procedures disregarding all human aspects [references] […] Therefore, a necessary further criterion is the so-called “depersonalisation of the sexual partner” [reference]. With other words, the depiction must be dominated by a absolutisation of sexual pleasure and a simultaneous dehumanisation of sexuality. Therefore pornography has to be asserted if a depiction reduces human beings to mere replaceable objects of sexual desire [references]. (Also see the German Wikipedia for another summary and further references on the subject.) Now, cybersex usually, if not inherently, is a personal procedure, as opposed to a depersonalised one. Therefore I would not consider it to fall under the quoted definition of pornography. What other laws do regulate cybersex? The law governing the age of consent is § 176 StGB (translation), which includes: (4) Mit Freiheitsstrafe […] wird bestraft, wer […] auf ein Kind mittels Schriften (§ 11 Absatz 3) oder mittels Informations- oder Kommunikationstechnologie einwirkt, um […] das Kind zu sexuellen Handlungen zu bringen, die es […] vor dem Täter […] vornehmen […] soll, […] (4) Whosoever […] influences a child with written materials (section 11(3)) or with information or communication technology to induce him to engage in sexual activity […] in the presence of the offender […] shall be liable to imprisonment […]. *Translation adapted from this one to reflect recent changes to the law. Note that Kind (child) was established as Person unter vierzehn Jahren (a person under fourteen years of age) before. I would interpret this to capture cybersex. The only thing about this that may be debatable is whether the sexual activity during cybersex happens in the presence of the offender (i.e., the other person). | If Person A commits a criminal or civil offense on Day 1, which then becomes lawful on Day 2, can Person A be prosecuted or sued on Day 3 (Day 1, 2, and 3 are not necessarily subsequent days, but happen in this order)? As a general rule they can be prosecuted but the exactly language of the effective date language in the statute controls. It might say, for example, "effective for prosecutions filed after Day 2" in which case it couldn't be prosecuted. Also, if Person A is a minor when the offense occurred, but is now an adult, would the person be legally considered a minor or an adult if prosecuted or sued? Generally speaking, a minor. But this is a function of the language of the statute in question in the case of juvenile prosecutions. If a statute of limitations is shortened, then does the new one apply or the one that existed when the person did the crime/tort? Again, it depends upon the effective date language of the statute. Typically, it will apply to suits filed after the effective date. | People aged 19 and 18 are "teens" and legally permitted to perform in pornographic videos. That's how it's legal. |
Can the President of the US pardon everyone? Can the President of the United States pardon everyone? For example, let's say a criminal organisation is committing crimes, after awhile they get raided by the police, everyone gets arrested and convicted, can the president of the US pardon everyone in that organisation? | Yes. The President can pardon everyone (with the possible exception of himself) of crimes, and can pardon people by category rather than by name. But, the President can only pardon federal crimes that have been committed and are mentioned in the pardon. However, the federal crimes do not have to have resulted in convictions or even charges to be pardonable. Many mass pardons of this type were made after the U.S. Civil War. Another notable mass pardon was of draft dodgers after the Vietnam War was over by President Carter. The President cannot (in the opinion of many, it hasn't been authoritatively resolved) pardon himself. The President cannot pardon a state or local crime or a crime against the law of another country. The President cannot use the pardon power to eliminate the right of one person to sue another person. The President cannot pardon a crime that was not committed at the time that the pardon was issued. | There is no recourse The Pardon results in the pardoned person having no liability for the act, no matter if it was a crime or not, and no matter whether the pardon pre-dates a prosecution. There is no legal or political way to appeal a pardon. There isn't even a way to take back a pardon! As a result, the prosecutor or the next governor can do nothing. | The police (and any other involved public agencies) do not work for Steve. They make their own decisions. You didn't specify a location, and requirements to consent to a search vary by location. It wouldn't be surprising, though, if Steve can't legally consent to a search of someone else's room (but possibly could consent to search of common areas). One possibility you don't seem to have considered is that the police or prosecutor would, if Steve is willing to testify, use Steve's testimony as probable cause to get a warrant. Then they could obtain text messages from Mike's service provider (even if he's deleted them from his phone), search his room without his consent, etc. Details again vary by location. Finally, any jail/prison term is typically up to a judge or jury, not the police. Pre-trial detention is typically up to a judge or magistrate. (Also, outside the scope of your question, but if there is any chance Steve has allowed himself to become involved in the misdeeds, even slightly, Steve would be wise to talk to a lawyer. Or if he suspects the police could believe that.) | He will be thrown out of office (the "except in case of impeachment" clause means the president cannot immunize a person against impeachment); because he was pardoned by POTUS, he will not be charged of the crime that he was pardoned for – the prosecution does not get a chance to argue anything. They might however prosecute him for some other offense not covered by the pardon (if POTUS forgets a sweeping statement like "any and all crimes related to X"). I don't think a prosecutor is likely to try to argue that the Constitution means "the president cannot pardon a person who has been impeached". | 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. | First, there is no definitive correct answer to this question because it has never happened over the course of 45 Presidencies. But, it certainly could come up. If the President purports to pardon himself for a federal crime and is then prosecuted, the judicial branch would have to decide if the pardon was valid. But, I would disagree with the answer from @user6726, and would instead take the position that the concept of a pardon inherently implies that one is pardoning someone else. This is why President Nixon, when he resigned, had Vice President Ford, when he became President upon Nixon's resignation, pardon him, rather than pardoning himself. President Bush, in connection with the Iran-Contra scandal also took the position that he did not have the power to pardon himself. Basically, a pardon is an event that is ordinary conceived of as involving two persons, a giver of the pardon and a recipient. Also, recognizing the power of a President to pardon himself or herself would be to give him or her impunity to disregard the law not just in areas where he or she has Presidential immunity, but in anything that he has ever done in his life. (Also, the President can only pardon federal crimes, not state crimes.) There is, of course, an academic literature on the subject (which none of the answers in the PoliticsSE refer to and which the other answer here does not refer to). The two leading law review articles addressing the question are: Brian C. Kalt, "Pardon Me: The Constitutional Case against Presidential Self-Pardons" 106 Yale L.J. 779 (1996-1997) (obviously adopting my position). An expanded version of this article became a chapter in a book called "Constitutional Cliffhangers: A Legal Guide For Presidents and Their Enemies" by the same author. Robert Nida and Rebecca L. Spiro, "The President as His Own Judge and Jury: A Legal Analysis of the Presidential Self-Pardon Power" 52 Okla. L. Rev. 197 (1999) (closed access). It opens with the following language (in part): [C]an the President pardon himself for criminal acts committed while or before holding office? Article II of the Constitution prohibits a President from using the pardon power to overturn an impeachment.5 The Framers of the Constitution placed only this limitation on the ability of the President to exercise his pardon power,6 and the only sanction for the abuse of the pardon power is the removal of the President through impeachment.7 The Constitution is silent, however, as to whether the President may grant himself a pardon from prosecution and, if so, when such a pardon may be issued.8 In the over 20,000 instances that Presidents have used this exclusive power,9 no President has used this power to pardon himself.10 One viewpoint is that a presidential self-pardon is inherently inconsistent with "natural law," which proclaims that one may not judge oneself.11 This article is cited in Comparative Executive Clemency by Andrew Novak who calls it an unresolved question but believes many legal scholars believe that it is possible. Leading Constitutional law scholar Adrian Vermeule analyzes but does not resolve the issue in his book "The Constitution of Risk". A 2017 Vox review from 15 legal experts is here. Their views are mixed and nuanced. A 2017 op-ed in the Washington Post from a former member of Congress who was involved in the impeachment proceedings for President Nixon says "no." Another review of expert opinion in 2017 can be found here. This also noted a dispute within the realm of academic legal opinion. There has also been debate over whether treason is treated differently for pardon power purposes than other federal crimes, but the precedent of the pardons issued after the U.S. Civil War pretty definitively resolved this question in favor of the power of the President to pardon treason, so the nature of the federal offense wouldn't matter. Note also that the pardon power is not limited to cases where criminal charges have been brought or convictions have been obtained. This issue is irrelevant to a President's self-pardon power. | Impeachment of a president does not on conviction automatically disqualify the convicted party from becoming president again. However, after conviction, the Senate can vote to add to the punishment of removal from office "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." This requires only a simple majority vote. Does impeachment by the House of Representatives, with or without subsequent removal from office by the Senate, actually disqualify one from being re-elected to the same Presidential office? See above. It requires impeachment by the House, conviction by the Senate, and a separate vote by the Senate to impose the punishment of disqualification. It's conceivable that the Senate could disqualify the convicted party only from becoming president, though it looks like in the two prior instances where this punishment was imposed it was the broader disqualification. But if a person disqualified only from being president is in an office that would normally be in the line of succession, that person is simply omitted from the line of succession. This happens routinely with naturalized citizens, and there's no reason to think it would be any different for a former president who had been disqualified only from the office of the president after being convicted on articles of impeachment. | They can’t But they aren’t This is the law (as amended). Section 9 contains the penalties. In any event the police don’t fine people they issue an infringement notice which is an allegation of an offense - police can issue these even if they reasonably believe they took place - they are entitled to be wrong. The person given the notice can admit the offense by paying the fine or contest the allegation by going to court. |
May NH police legally keep secret the number of bullets purchased I asked a few questions of my government and phrased it as an open records request. I got an answer on half of them and a response on all of them. The police claim they cannot answer the question, 'How many bullets did the police purchase for 2010 and 2020?'. Here is the phrasing used in the denial of my public records request: "The release of how many bullets purchased in 2010 & 2020 may not be releasable per RSA 91:A. It could constitute the disclosure of investigative techniques or procedures. " I found, RSA (Revised Statutes Annotated) 91-A. One concern I have is whether or not they may secretly use "emergency" powers and lie about it claiming they can deny requests to discover police procedures. I couldn't find language that allows hiding procedures or general investigations by citizens of the police. Are the police legally allowed to hide basic information like the number of bullets purchased? If they aren't, what legal recourse is open to the citizenry denied such public records? -- UPDATE -- "Your request in the amount of bullets and purchase has not been denied at this time. I was stating that it is possible that it could constitute the disclosure of investigative techniques or procedures." | It is common in state FOI or open access laws to exempt from disclosure records pertaining to police investigations. In some cases police procedures are also exampled. 91-A:5 Exemptions. (included in the document linked in the question) lists 6 exemptions, part of number IV is: Without otherwise compromising the confidentiality of the files, nothing in this paragraph shall prohibit a body or agency from releasing information relative to health or safety from investigative files on a limited basis to persons whose health or safety may be affected. This seem to imply an exemption for "investigative files", although no such exemption is specified in 91-A. However, I find it hard to see how the amount of ammunition purchased by the state as a whole reveals "police procedures" in a way which would compromise security or be reasonably exempt. In any case the state budget is almost surely a matter of public record, and it may well indicate the dollar amount of ammunition purchases, even if it does not give the number of rounds purchased. Or proceedings may be taken under the law. 91-A:7 Violation says: Any person aggrieved by a violation of this chapter may petition the superior court for injunctive relief. The courts shall give proceedings under this chapter priority on the court calendar. Such a petitioner may appear with or without counsel. The petition shall be deemed sufficient if it states facts constituting a violation of this chapter, and may be filed by the petitioner or his counsel with the clerk of court or any justice thereof. Thereupon the clerk of court or any justice shall order service by copy of the petition on the person or persons charged. One might inquire of the office of the court clerk for more details on how this is done, and any fees. | 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 South Carolina for example the law says A permit holder must have his permit identification card in his possession whenever he carries a concealable weapon. When carrying a concealable weapon pursuant to Article 4, Chapter 31, Title 23, a permit holder must inform a law enforcement officer of the fact that he is a permit holder and present the permit identification card when an officer: (1) identifies himself as a law enforcement officer; and (2) requests identification or a driver’s license from a permit holder. In Washington, on the other hand, the law simply requires a permit (or the gun must be locked in the trunk), and you have no obilgation to volunteer such information. Some states allow local options, e.g. NY generally has no duty to inform law but apparently Buffalo, Rochester and NYC do. It's pretty complex, because there is variation in exactly what laws say depending on whether the gun is loaded, or whether it is concealed, or in the trunk. | Here is an excellent (and extensive) explanation of jurisprudence regarding the "good faith exception" to the admissibility of evidence found due to an error. In short: Yes, the contraband found in Unit B would be evidence admissible in court. (Of course, evidence found in Unit B would only support charges against whomever had a nexus to that property. If the owner of Unit C had no access to Unit B, then evidence in Unit B would not per se implicate him in a crime.) Law enforcement will not return seized property if it believes the property is "contraband." As an example, in Pennsylvania a person can petition a court for return of property seized by law enforcement: Rule 588 requires the petitioner to establish entitlement to lawful possession of the property, but the motion will be rejected if the State successfully argues that the property is contraband, or "derivative contraband" (which has been defined in case law to mean there is "a specific nexus between the property and criminal activity"). | The general story is that one state does not have jurisdiction over an act carried out in another state. The Wiki on state gun laws claims that ownership in Illinois requires a permit, but the law is here, and in fact the law addresses possession and acquisition, but not ownership, for example 430 ILCS 65/2: No person may acquire or possess firearm ammunition within this State without having in his or her possession a Firearm Owner's Identification Card previously issued in his or her name by the Department of State Police under the provisions of this Act It is legally immaterial that the word "Owner" is in the name of the card. It is likewise claimed that Massachusetts requires a license to own a gun, but from what I can tell the requirements pertain to licenses to possess or purchase, and not just to own. So there seems to be no impediment to actual ownership in the US. | ORS 166.220 suggests this would be illegal - specifically its "unlawful use of a weapon" if a person (emphasis mine): Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge. So what's "within range"? With a homemade bow of unknown construction, draw weight, and unknown arrows I'd say it's pretty much going to be something you find out when an arrow goes that far. I wouldn't expect it to match the range of high-end bows and arrows (I've seen 40lb recurves cover ~250 yards) but 100 yards plus doesn't sound ridiculous - more if it's got some elevation to it. The point is you really don't want to find out the hard way when a shot goes astray giving your neighbours the old King Harold treatment. | None No law requires police to keep people apart when making statements. Doing so is good police practice. In some police organizations internal regulations or procedures may specify that officers should do so. But those are not laws. In some cases witnesses may have had a chance to confer and agree on a story before police arrive, the police cannot prevent that. The trier of fact can take into account that witnesses had a chanc to agree on a false story. | Yes In New York Times Co. v. United States, 403 U.S. 713 (1971) (aka the Pentagon Papers case) The court specifically permitted public disclosure in national newspapers of information that had been officially classified. This was, of course a request for an injunction, not a criminal proceeding, but it is hard rto imagine that a criminal proceeding could have succeeded after the decision, and in fact no prosecution was attempted. At the start of the unsigned opinion, the court wrote: We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy." (emphasis added) This makes it clear that the content of the "papers" wa officially classified. In concurrence, Justice Black (joined by Douglas) wrote: I adhere to the view that the Government's case against the Washington Post should have been dismissed, and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. The question asks: I am wondering if everyone who leaks classified military documents are going to be charged criminally by the U.S. government Even when such charges are constitutionally permitted, the government has the authority not to proceed with them, if it so chooses, for whatever reason it sees fit. Specific laws 18 USC § 793 prohibits conveying various information about the national defense, military equipment, or preparations for war: with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation § 793 does not refer to classification status at all, and it has no explicit excptions, but it would not apply where ther is no "intent or reason to believe" the information will harm the US or help another country. 18 USC § 794 has an intent requirement simialr to that of 793, but covers different kinds of information. Some of its provisions apply only in wartime, and then the required intent is that the information "will be communicated to the enemy". Again classification is not mentioned. 18 USC § 795 Covers making images of "vital military and naval installations or equipment" protected by order of the President. Permission of the relevant military commander is required. No exceptions are listed. 18 USC § 796 is similar to § 795 but limited to images obtained by use of aircraft. No exceptions are listed. 18 USC § 797 prohibits publication of images taken in violation of § 795, unless approved by a censor. It is in form a prior restraint. No exceptions are listed. 18 USC § 798 Prohibits disclosure of information about cryptographic systems. No exceptions are listed, but I think there is caselaw limiting the coverage of this section. 18 USC § 799 prohibits violation of NASA security regulations. |
I murder someone in the US and flee to Canada. If Canada refuses to extradite do they then try me in Canadian courts The murder is committed on US soil. the fugitive flees to Canada. The US requests Canada arrest the fugitive, which they do. US requests extradition. Canada refuses because US has capital punishment. Does Canada now try the fugitive for murder in Canada or is the fugitive simply released? | Absent exceptional circumstances like war crimes, Canada would not try the suspect for murder. It might incarcerate the suspect, however, while engaging in negotiations with U.S. officials to try the defendant for murder in a state court or federal court with jurisdiction over the case and an agreement not to seek the death penalty. | Any duty that exists is not legally enforceable in the courts in the U.S. (there are one or two cases in Canada imposing a similar duty in extraordinary rendition cases). Also, the arguably legal duty to provide diplomatic assistance to one's citizens doesn't apply in countries like North Korea where the U.S. has no diplomats. In practice, the U.S. government will do everything reasonably within its power to secure the release of a U.S. citizen held by a hostile foreign power (even a U.S. citizen who has behaved badly), because that's in the DNA of how the U.S. State Department always acts. But, at this point, short of an extreme Special Operations mission to abduct a prisoner that voluntarily defected from the U.S. while stationed in South Korea, there really isn't anything that the U.S. could do even if ordered to do so. | You cannot stop the claim. But the good news is that claims of jurisdiction by many countries are routinely ignored by many other countries. So enforcement attempts might fall short. I've written things here that might get me into real trouble with the authorities of North Korea if I ever traveled there and if they were able to match my real-world identity with this account. But I don't plan to travel there. Likewise, before I went to Turkey I should probably review what I've written about their government, and then wonder if it is worth the risk. Probably yes, it wasn't very incendiary. But my home country and those I tend to visit (if there is no pandemic ongoing) would not extradite me for what I wrote. | 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. | Is A or B subject to Canadian employment law? Canada and the relevant province(s) will decide in their courts if Canadian or US law applies. The USA and the relevant state(s) will decide in their courts if Canadian or US law applies. It would be open to the employee to bring an action in any relevant court; the court will then decide what law applies and if they have jurisdiction - that is part of what sovereignty means! A Canadian court can decide a matter using US law and vice-versa. Things that the court would take into consideration are if the company did business (outside this single arrangement) in Canada or was US exclusive, the number of other trans-national interns, if the arrangement was seen as a device for avoiding employment obligations in either jurisdiction. If one is subject to Canadian law then they both are. Will either party get into trouble with the Canadian government? Assuming that the arrangement is subject to Canadian law then the company would be obliged to pay wages and may be subject to fines for not having done so. If so, what enforcement (and/or punishment) mechanisms does the Canadian government have at their disposal to enforce their employment laws against A or B? B - nothing; they have not broken the law. A - an order to pay wages and fines. Enforcement may require a judgement in a US court; either by bringing the case in one the first instance or applying to have a Canadian judgement given effect in the US. Edit The OP has added the proviso that the document states that it subject to US law and jurisdiction. If it just says that, it is prima facie invalid - a contract cannot exclude the jurisdiction of any court and an attempt to do so renders it unlawful. However, if it said that it was subject to the non-exclusive jurisdiction and law of, say, Wisconsin, then a Canadian court would consider the parties intent and the relevant Canadian national and provincial law and might decide that the proper forum is a Wisconsin court and refuse to hear the complaint. Things they will consider are that there will be Canadian and provincial laws that cannot be excluded by contract, the hardship changing the forum will have on the plaintiff or defendant, if the result (assuming the facts are proven) would be demonstrably different in a US vs. a Canadian court etc. | It may simply be a case of which extradition order is deemed valid first - extradition to Sweden and to the US involve two different parts of the Extradition Act 2003, and involve different timescales. Extradition to Sweden under the European Arrest Warrant solely involves the judiciary - once all appeals have been heard and ruled on, if the extradition warrant is still deemed valid by the judiciary then the extradition must be carried out within 10 days of the final ruling. Extradition to the US involves a decision by both the judiciary and the Secretary of State - once all appeals have been heard and ruled on, if the extradition warrant is still deemed valid by the judiciary, the Secretary of State must make a determination on whether or not to allow the extradition. If the Secretary of State does determine the extradition must go ahead, then the extradition must ordinarily be carried out within 28 days of that determination. Government guidance on extraditions Thus, if both the US and Sweden put forth extradition requests, it may simply come down to which one clears all hurdles first. | You can be tried again for the same offence; double jeopardy only applies if you are found "not guilty". It is not uncommon for appeals courts to invalidate a guilty verdict and require a retrial. Similarly a mistrial can result in a new trial at the prosecution's discretion. In addition, some jurisdictions have abolished double jeopardy for crimes like murder (e.g. New South Wales, Australia). New evidence coming to light can be grounds for appeal - in the case of the Fugitive where there have been no appeals this is one avenue open to Kimble. Where appeals have been exhausted; this is more problematic. One of the principles of justice is that there should be finality to the verdict. Kimble has gone from presumed innocent to presumed guilty - enough evidence would need to be gathered to demonstrate a clear and unambiguous miscarriage of justice. This may not be within the purview of the judicial branch of government - he may need a pardon from the executive. In real life (as opposed to Hollywood) Dr. Kimble is still in serious trouble. In some jurisdictions there may be some "innocence" laws that can allow review of convictions outside the appeal process. Notwithstanding, Dr. Kimble is going away for a long time for "escaping lawful custody" anyway. | Edits added below to outline Florida's laws based on OP's comment Jurisdiction does matter but here is a general answer regarding "stand your ground" laws. States that have so-called "stand your ground laws" each have their own language concerning the law. "Stand your ground laws" are often misunderstood but, generally, just mean that a person has no duty to retreat when using deadly physical force for purposes of self-defense or the defense of others. Your examples are more akin to "castle doctrine" laws which I touch on below. Note that all of these laws vary by jurisdiction. I've provided partial examples from Arizona, New York and California. Using deadly physical force for purposes of self-defense or defense of others is complex law and even a complete example from any particular jurisdiction will not be able to cover all circumstances. Each case will be determined by a judge or jury based on the facts of that particular case. Arizona's "stand your ground" statute, as an example, states: B. A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act. "Stand your ground" simply means that a person doesn't have to first attempt to retreat before resorting to the use of deadly force. Arizona's statute regarding justification for self-defense states (emphasis mine): A. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force. B. The threat or use of physical force against another is not justified: In response to verbal provocation alone; or To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or If the person provoked the other's use or attempted use of unlawful physical force, unless: (a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and (b) The other nevertheless continues or attempts to use unlawful physical force against the person. Note the phrase, "extent a reasonable person." This means that the actions of a person using deadly force will be measured against what a "reasonable person" would do in similar circumstances. Some states have a duty to retreat, particularly when in a public place, before using deadly force. New York, as an example, has a "duty to retreat" before using deadly force except in specific circumstances (emphasis mine): A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor; or (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or (c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20. Castle Doctrine Laws typically refer to what one may do in their own home when it comes to the use of deadly force. Some states have extended the "castle doctrine" to include personal automobiles as well. California's "castle doctrine" statute, as an example, states that if one is in their own home and someone "unlawfully and forcibly" enters the home one can presume that the person in his or her residence "held a reasonable fear of imminent peril of death or great bodily injury": Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. As used in this section, great bodily injury means a significant or substantial physical injury. In California's statute both the resident and the person using force to gain entry have to know or have reason to believe that an unlawful and forcible entry occurred. If a person simply entered an unlocked home then the resident would have to have some other reasonable reason to believe that they were in imminent peril of death or great bodily injury. Wikipedia has a reasonable entry on the adoption of "stand your ground" and "castle doctrine" statutes and gives a state-by-state breakdown of both. Note that these laws have seen a lot of change recently and any particular entry for a state may not be accurate. Florida's self-defense laws Florida's "Use or threatened use of force in defense of person" states: 776.012 Use or threatened use of force in defense of person.— (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. (2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. Florida outlines the cases where use, or threatened use, of force is justified. Notice that in the law Florida specifically states that the person threatened does not have a duty to retreat. Florida also specifically states that a person has a "right to stand his or her ground" if the person is in a place where he or she has a right to be and is not engaged in criminal activity. Florida statute also specifically outlines the right to use self-defense within one's home and vehicle. Florida has a "castle doctrine" similar to what was outlined above and similar in nature to New York's and California's laws: The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; Florida has a longer list of exemptions related to who may have used force to enter a home including ownership interest in the property or vehicle, children and grandchildren, the person who engaged defensive force was involved in criminal activity and law enforcement officers. Florida's Justifiable Use Of Force is chapter 776 discusses when force can be used. There was an attempt by the Florida legislature in 2019 to change the standard by which use of force could be justified from "reasonably believes" force is necessary to "a reasonably cautious and prudent person in the same circumstances would objectively believe" force was necessary. The bill was withdrawn in May, 2019. |
Is it illegal to take home a lost phone? I experienced a common scenario today: I was walking along and found someone's lost phone on the ground. It was out of battery, so what I wanted to do was take it home, charge it, and then see if we could call someone to get the phone back. In fact, I have lost my phone before and this is exacttly what some stranger did. However, it was pointed out to me today that I could be legally responsible if I take an item home that isn't mine, even if my intention is to return it to its owner. Is it true anywhere in the United States that I could face legal consequences for taking home someone's lost item, intending to get it returned to them? What if I don't intend to return it? Finders keepers? To be safe, I dropped it off at a police station instead, but the police there did not respond very well. They seemed annoyed that we brought the phone in, and did not have a designated lost-and-found. Given their response, I would be more confident that the phone would be returned if I had taken it home myself. Related (not duplicate) questions Is it legal to stop somebody taking your stuff if you've left it somewhere? Most of the things here are about what you can do to someone who is trying to take your item. However, the answer does state this: The phone in question has been mislaid and anyone who finds it has a duty to deliver it to the owner of the bench for safekeeping pending the true owner's return: if the owner does not return within a reasonable time the phone becomes the property of the bench owner (e.g. the city that owns the park). Perhaps this applies here and it is not allowed to take it home, only to return it to the owner of the property on which it was left. Can a store sell merchandise I've left in the store? The answer explains that there is a distinction between lost, mislaid, and abandoned. This distinction probably applies here, but I do not know whether it is legal to take a lost, mislaid, or abandoned object home in order to try to identify its owner. | There are two issues, one is the legal issue of whether what you are doing is a crime, and the other is the evidentiary issue of proving that that is what happened. If you take the phone home with the intention of keeping it ('finders keepers') then you have committed larceny (sometimes called 'theft', sometimes correctly). This specific type is called 'larceny by finding'. If you take the phone home with the intention of finding the owner then you have not committed larceny because you have not committed the mental element ('mens rea') of the offence: you don't intend to permanently deprive the owner of their rights. However, and this is the evidentiary issue, if hypothetically you were found in possession of the phone then the police might not believe your explanation and a court might well convict you of larceny. P.S. Firefox has marked 'evidentiary' as a spelling error and suggested 'penitentiary' instead. :s | This depends on the nature of the "ban" ---i.e., who issued it, what legal power they have, and what it actually requires you to refrain from doing. You say it is "their ban" so I am going to assume that this is just a decision that the store has made not to allow you entry. If it is indeed the store itself that has "banned" you, this would not prevent you from calling them to apologise for whatever you did. Calling a business on the phone cannot generally be considered a trespass --- at most, if you were to repeatedly call and harass a business over and over again, it might give rise to a nuisance suit. Unless you have extremely strange laws in your jurisdiction, it is almost certainly not against the law for you to call a business that has banned you, a fortiori if this phone call is made for the purposes of apologising for whatever you did that led to the ban. Although it does not appear to be the situation in this case, if this ban was an actual restraining order of some kind issued by a Court, then it might indeed prevent you from contacting the business (in which case breaching it would lead to an action for contempt of court, not trespass). If a Court were to issue you with an injunction or restraining order of some kind to ban you from a business, then that instrument would specify what you are prevented from doing. You would then need to be very careful to comply with that order. In short: there is a great deal of difference between a "ban" made by a store as the owner of property, and a ban issued by a court through an injunction or restraining order. | In general As Dale M explained, if you give the money to someone who is not obviously authorized by the business to accept money and sell stuff in exchange, you have not entered into a valid sales contract. That means you are taking things without permission. Therefore the shop could sue you for any damage this causes (maybe you took something the shop did not want to sell, or the person at the information desk was not an employee and ran away with the money). However, whether this constitutes a crime such as theft will depend on jurisdictions. Germany In Germany, for example, it would probably not, because by definition a theft requires "intention to take posession in violation of the law" (StGB §242). You could argue that you did not intend to violate the law, because you paid the required amount, and only gave the money to the wrong person by mistake. Of course, I cannot guarantee that will convince the judge... England and Wales Similarly, the law in England and Wales defines "theft" in section 1 of the Theft Act 1968: A person is guilty of theft, if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; [...] Furthermore, section 2 says: A person’s appropriation of property belonging to another is not to be regarded as dishonest— [...] (b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or [...] So, similar to the situation in Germany, you could argue in court that you intended to buy the item legally, and believed that the shop would be okay with that. | What is the legality of someone putting a virtual hot spot on your property without permission? I know we are in uncharted territory but how would this compare to setting up a contest that would require going on your property without permission? The existence of a game does not authorise entrance to private property, barring some agreement with the owner. That is - if it is trespassing without Pokemon Go (or, for that matter Ingress), then it is trespassing while playing them. That being said, the creators of the game are free to place their in-game targets anywhere they please, and it is hard to imagine a scenario where they would be liable for their users' actions, unless they have not taken reasonable steps to prevent their users from doing so - Niantic clearly instruct their users to respect the law and also, only require that their users be within a certain distance of these points, not actually be at them. Is it currently legal to say Go to person X house and touch a tree? If not, does the current law extend to augmented reality? Nope, unless it can be done without entering private property (which includes the airspace above the property, to some extent). And there are no special cases for augmented reality. Now, there is some possibility that if they create a private nuisance - by being too loud, or by otherwise interfering with the use of the property - owners of a property could bring a claim in tort against players for doing so - or charges for a public nuisance, when done in a public area. | You have an agreement with the store that allows you to use scan and go technology. Part of that agreement a bit that says we may ask you to help us confirm that the service is working effectively by allowing us to check your goods against the scanner or to re-scan your shopping They also say that they are entitled to withdraw your right to use the Scan and Go service at any time if you do not comply with these Terms and Conditions. If we do that, the legal agreement created between ASDA and you under these Terms and Conditions will come to an end immediately, although any relevant statutory rights that you may have will not be affected. More generally, ASDA reserves the right to withdraw the Scan and Go Service at any time, at its sole discretion You have implicitly consented to a brief stop for a rescan. I don't see any implication that they assert a right to search your person. You can refuse a re-scan and they can process you like an ordinary customer. As for shoplifting, as this article summarizes, security can make a citizen's arrest if they suspect that you have committed a crime (theft). They have to have reasonable grounds for thinking that an arrest is necessary to prevent the loss. Hence they can detain you until the constable arrives. | Probably not. Theft generally involves an intent to permanently deprive someone of property, or knowledge that one is taking actions that have the very likely probability of permanently depriving them of property. Here, there is an intent only to hold possession of the keys during the shift and to return them. Also, while the surrender of keys is contingent upon the incentive of further employment, it is still a voluntary surrender of the keys. The place where theft issues could arise is if the keys are not returned by the person holding them, either at the end of the shift as punishment, or in mid-shift, if someone insists upon their return, either in an emergency or because they are sick of this manager and want to quit. If keys were retained in those circumstances upon a demand for their return, there might be a problem. This is because continuing to refuse to surrender possession of property permissively given to someone when that permission is revoked, in the absence of a legal right to impose a possessory lien, would generally constitute theft. While the purpose for the manager holding keys in this particular situation don't seem very valid, I can imagine circumstances (e.g. MRI technicians, jail guards, underwater divers, the site only has tandem parking), where retaining keys during a shift might be reasonable and appropriate. | Hypothetically speaking, if a program doesn't come with a EULA, does that mean someone in possession of it (who isn't the owner) would be breaking the law if they used it? If the copy on the stick was lawfully made with permission of the copyright holder, then you can lawfully use the software. Someone who lawfully comes into possession of a lawfully made copy of the software (that was not a backup) has the right to use that software in the ordinary way. For example if someone found a USB stick lying on the ground and it had software on it but no EULA, could they use the software? Maybe, but it would be hard for them to know whether they could or not. It might be a backup. It might be an unlawful copy. There was a case where a person found a CD in the trash that was clearly an original. The package had a shrink wrap agreement, but he found the CD without the package. The court held that he had every right to use the software on the CD (since it was a lawfully-made copy and not a backup) and was not bound by the EULA (since he hadn't opened the package). But he was very fortunate in being able to demonstrate these facts. | You are conflating the crime against the state of possession stolen goods with the common law tort against the owner for conversion. To your questions: How would this proceed? It seems like it would be very difficult to prove (short of getting public surveillance footage) that I even bought the item. If you read the second paragraph of the page you linked it says: In many jurisdictions, if an individual has accepted possession of goods or property and knew they were stolen, then the individual is typically charged ... If the individual did not know the goods were stolen, then the goods are returned to the owner and the individual is not prosecuted. Proof of the crime involves a "beyond reasonable doubt" standard of evidence of both the fact that you have the goods and that you knew they were stolen. If you become aware that they were stolen (e.g. the police tell you) and try to keep them then you have just committed the crime. Proof of the tort requires a "balance of probabilities" standard of evidence that you have the goods and that they belong to someone else; your knowledge that they were stolen is immaterial. In the first instance, the police would probably knock on your door, tell you why they were there and ask if the version of the story they have from the thief is essentially true. What happens next depends on your response: "Yes, I knew it was stolen; you better arrest me and I will plead guilty." This will play out as you expect. "Yes, I didn't know it was stolen, I will go and get it for you." You return the goods, give a statement and may have to act as a witness in the prosecution of the thief. You are down $1,000 but are now older and wiser. "No, I have no idea what you are talking about." Well, you have now committed the crime of hindering a police investigation and have also committed the crime of possessing stolen goods - you can no longer claim that you didn't know the goods were stolen; the police have told you they are. What happens next depends on if the police believe you or the thief. Surely they couldn't/wouldn't get a warrant to search my house? Want to bet? They certainly have enough to get a search warrant if they want one (probably). Whether they seek one probably depends on the value of the goods, how busy they are and how much you pissed them off. Could I be prosecuted if I didn't know it was stolen? Not if you return it as soon as practicable after being made aware that they were. The scam This seems like a lot of work for a very small return - spend your time worrying about things that are more likely to happen. Good Title All of this is tied up with the concept of good title. Basically, you cannot gain good title to property from someone who does not have good title themselves; if you buy goods from a thief you do not own them. For example, if A has good title to the goods, B steals them and sells them to C who sells them to D then A still owns them and can demand their return from D, D could demand the return of their money from C and C could do likewise with B but as far as A is concerned it doesn't matter that C & B have lost money; that is simply too bad for them. |
Is it legal to print pirated pdfs? I mean if someone pirated some books and print them and then sold them to us (without informing us that these books were pirated printed books), is there any lawsuit threatening us? | Your title and your question are totally different. If someone pirates a book, makes printed copies, and sells them for profit, that's the point where it switches from plain copyright infringement to being criminal copyright infringement. Which means jail instead of paying damages is possible. If you buy one of these printed copies, not knowing that they have been created illegally, and not being willfully ignorant that the printed copies were created illegal, then you didn't commit copyright infringement yourself. Since you are asking the question, it's obvious that you now know that there was copyright infringement, and buying any more copies would be encouraging copyright infringement with no excuses for you. You can be sued for damages. It is unlikely to happen since suing takes likely more effort than getting any damages from you is worth. The correct thing to do is ask the seller for your money back and destroy the copies. If they don't refund your money you can inform the copyright holder. | You automatically have a copyright in any copyritable things you create. So you own copyright over the pictures you sent him (as long as you created them) | A few years ago, there was a trial in the USA about some short sound on some music CD: One party claimed that one piece of music on the CD contained a sound of less than one second length which is copied from another CD without the permission of the copyright owner of the other CD. It could never be found out if this claim was really true. The court's decision was: If it is not possible to distinguish between a copy and a work that does not depend on the other work at all, it is not a copyright infringement - even if the sound has been copied from the other CD. For this reason, I'd guess that a 4x3 image would not be a copyright infringement, yet, while 60x45 would definitely be one. Just for reference: The same image as 3x4 and as 45x60: | This may well be infringement, but I agree that you should start by reaching out to the instructor. You don't want to pay a lawyer if the matter can be be adjusted peacefully. In the US there is a special limited exemption to copyright for "use in classroom instruction" which might apply in such a case. I am not sure if there is a similar provision in Canadian copyright law. But the instructor is likely to change his practice if you notify him of your objection, even if he has the technical right to use the photo. At least it is worth finding out. If he won't, then you can always consult a lawyer. | 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. | are there any safeguards you could take to preemptively block such behavior, such as a disclaimer inside the book cover that reads something like The safeguard you outline would be overridden as soon as the author enters any contract that requires assignment of copyright. (I would not delve in the differences between licensing and copyright assignment because that hypothetical author is dealing with a contract of adhesion which readily requires assignment; the author has no option to change the ToS to allow for licensing only) Under contract law, one of the essential prerequisites is that the conditions of a contract be entered knowingly and willfully. By deliberately clicking on a ToS page to move forward with the uploading a copyrighted work, the author is signaling his awareness and acceptance of the ToS. The fact that the author chose not to read the ToS is irrelevant and very unlikely to strike whatever entitlements the website owner formulated in the accepted ToS. For the same reason, the author's safeguard disclaimer does not bind the website owner: It cannot be said that the website owner was aware of that disclaimer at the time of the formation of contract between the author and the website owner. That is, the website owner did not knowingly and willfully accepted the author's safeguard. The website owner is not even expected to know about any safeguards which one of its potential user intends to establish. The length of a ToS document is also irrelevant because the website owner has the valid argument that "the user-author could have skimmed through the ToS or do a search (via Control-Find) of keywords such as 'copyright' or 'property', whence any allegation of 'inadvertent' assignment of copyright is untenable". Is there a way to protect your IP from inadvertently being licensed/stolen/assigned via TOS "agreements", without having to waste your life reading huge one-sided online "contracts" that are "subject to change without notice" anyway? Yes. That consists of not uploading one's works in such platforms. In contract law that would be expressed as "declining an exchange of considerations". There are many other alternatives for an author to promote his work without being required to assign copyright. | It is legal to rewrite a book that is out of copyright, although ethical considerations demand that the original author and source be credited. You need to derive your rewrite from a version that is out of copyright, however, rather than a translation whose incremental innovations due to the transformation arising from the translation is still under copyright. Certainly, the 16th century original would be out of copyright, and in all likelihood, so would many of the later editions, but probably not the one from 1971. | Physical content The main consideration with physical content is that reading it does not require making a copy, so uncomplicated copyright law is what’s relevant. Copyright law is about making copies (also distributing). Purchase a novel (a physical book which was legally obtained). There is no copying involved (you do not in fact make a copy in your mind, if you're a human). Under the First Sale doctrine, once a copy is sold by the rights-holder (e.g. the publisher, initially to the bookstore or distributor), that owner can do whatever it wants with that specific copy, including reading or re-selling (and anying thereafter can likewise). Books are sold, not licensed. Copyright relates to copying, not reading. It’s true that all (legal) rights are reserved, but the power to prevent resale is not a right. Book (or anything else) on the ground. As above, with the complication that you aren’t at least immediately the rightful owner. But, you don’t have to be the owner of a protected work to read it (otherwise libraries would not exist). The rightful owner might unsuccessfully try to sue you for reading their property, but reading does not cause damage, and your act is innocent (not even negligent), and not wrongful. Eventually (depending on jurisdiction) you may become the owner if the original owner does not reclaim the book. Reading a copy made by someone else. See above about the relationship between reading and copyright. The teacher might maybe be liable for infringement, but you are not culpable (assuming you didn’t encourage the teacher to make an illegal copy). Digital content However, every item of digital content has to be copied many times, in order to actually be read. E.g. a copy is made to video display memory from RAM, which is copied some number of times from RAM to RAM as the program formats and sizes, ultimately reading a copy stored on disk storage (which is installed from.... using N temp files) Typically what happens is that you acquire a copy of a license to use the content. Some number of copies may be statutorily permitted, e.g. the myriad transitory copies created across the internet as you download the work, or on your computer as you install it. The law addresses this matter in part at 17 USC 117, saying that it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. Since Congress chose the word “program” rather than “file”, the plain reading of this is that permission is always required to read digital content. One may assume, when you purchase an electronic book at the store (you thus own the recording medium), that the work also comes with specific permission to make those automatic copies required to actually read the book on a computer. In order to read the book you must make some number of copies. Seeing stuff on a web page. Let’s also assume that the material is on the page without permission, but you don’t know that, and it just jumps out at you. This raises an interesting question regarding statutory language and web pages. The statutory language is not at all clear about link-clicking (the statutes don't say anything about "links"), and I don't know of any relevant case law (probably because it would be ludicrous to go after an innocent link-clicker) Infringement is defined in 17 USC 501(a): Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright and if you infringe, you may be liable. 17 USC 106 spells out those rights: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; … (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; … When you go to a web page and click a link, are you reproducing the protected material? Or is the website owner reproducing the material, and pushing it onto you? I don’t know of any decisions that address this kind of technical question. There is no question that the person hosting the infringing material is liable, the question is whether you would be as well? It would be highly unjust to hold the innocent link-clicker responsible. There is a bit of protection for innocent infringement in 17 USC 405(b) Any person who innocently infringes a copyright, in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, incurs no liability for actual or statutory damages under section 504 for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408, if such person proves that he or she was misled by the omission of notice. In a suit for infringement in such a case the court may allow or disallow recovery of any of the infringer’s profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require, as a condition for permitting the continuation of the infringing undertaking, that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the court. (c) Protection under this title is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords. (You could be prevented from further use of the infringing material, and liable for specific lost profit). Infringement is not defined in terms of what you know or believe about the copyright status of work. Nevertheless, I would expect that in addressing the question of whether a person had in fact made a copy that they would look at the mental state of the individual, looking for mens rea. This could distinguish clicking a link that unexpectedly pushes protected material onto you, versus attempting to obtain protected material by clicking on a link. |
Imaginary potential murder situation My friend and I were discussing moral and legal aspects of an interesting hypothetical situation, but since neither of us are lawyers we would like to ask somebody here how it would be treated from the legal perspective. So here is our imaginary situation : A person is driving an SUV, and suddenly sees somebody lying on the road and not moving, as if he is either dead or passed out or drunk sleeping. It is too late to break. The driver could make a split second decision : either to immediately turn the steering wheel to the side to avoid running over the person on the ground, in which case he would damage his SUV by going off-road and hitting various obstacles, (but the speed is not so high to threaten the life of the driver himself), or - simply run over the person believing he is already dead, so why not at least save the damage to the SUV. The driver (who is kind of scumbag), loving his SUV, decides that the guy on the ground is already dead and runs him over. Now I will give some important "rules" in this case that I would like you to take as facts and answer as if they were true : Once the person is run over with SUV, he is definitely dead now. There is absolutely no way to establish forensically (or by any other means) whether the person was dead or passed out or drunk before he was ran over. (Lets forget that there is toxicology that could establish alcohol level and all that stuff - imagine simply that we just can't know whether he was dead already). At the moment the person was ran over, he did not react in any way (in a sense that he did not scream or something similar, so we again, can not know whether he was already dead). There are no any kind of clues that suggest anything - how long has he been lying on the road, there are no alcohol bottles nearby, nobody knows him - he has no family/friends or anyone he called etc. - in other words again - we absolutely cannot establish or even guess in any way whether the person was already dead before being run over. Driver explained perfectly honestly what happened, so the court/police/prosecutor know exactly what happened as I have described - they know everything you know reading this :) So how would the driver be prosecuted for this "potential murder" ? If the court can not in any way establish whether the person was already dead or not, can driver be charged with murder ? Is there such thing as "potential murder" in law ? Or will the person be considered dead already, in which case the driver "just" mutilated the dead body of a man ? Edit : some additional explanation about the question Thank you all for great and detailed answers. Just if you were curious, this question relates to some thoughts of my friend and myself, related to abortion actually. This is how we were thinking : if science can not give us a definitive answer (the definite scientific proof that is universally agreed upon) when the fetus becomes alive (at what week), and it is allowed for us to perform abortion at 12th week, then the abortion is like running over a person on the road in the above question, because : Once the abortion is performed, the fetus is definitely dead (or not alive). We cannot in any way be sure (universally agree - beyond reasonable doubt as you professionally put it) whether he was alive or not before the abortion. Therefore there is no crime in performing abortion while not knowing whether the fetus was alive before the abortion. We were interested whether this would be something like "potential murder" as I called it in the question. Thanks to your answers I conclude that if it so happens that fetus was actually alive right before 12th week, than I guess something like "unproveable involuntary manslaughter" was committed since it can not be proven that fetus was actually alive (although it was) before abortion. This is equivalent in the question to running over alive person, who either passed out or was drunk, killing him, but without knowledge or evidence of him being killed. On the other hand, if fetus was not alive right before 12th week, that is equivalent to running over a guy that is already dead (or not alive), so no damage or crime whatsoever was done anyway. | No. I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter. So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it. Civil suit for wrongful death Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him"). Reckless driving charge In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law: [In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit. http://manassascriminalattorney.com/2015/10/can-reckless-driving-in-virginia-be-a-felony-charge/ In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor. Misc links https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412 | It is certainly possible for the same action to break multiple laws, and be chargeable as multiple crimes. For example, shooting and killing someone may be assault, assault with a deadly weapon, and murder all at the same time. For a different example a person who simply omits to file an income tax return may be guilty of both failure to file a required return, and failure to pay tax due, and in some cases failure to par required estimated tax due as well. For yet another example, driving well above the speed limit may be a violation of the speed limit law, and also careless driving, and possibly also reckless driving. In the first case the assault etc may be lesser included offenses in the charge of murder. That means that they are automatically available to a jury (or judge) trying the accused, who can convict on one of the lesser included charges if they do not convict on the primary count. For the more general case, I don't know of any special term for the situation. It is not usual to have law A which says "do not do X", and also law B which says "you must follow law A". There is no general principle against having such redundant laws, nor is there, in the US, any Constitutional rule against such laws. But legislatures do not normally bother to enact such redundant laws. Laws which will sometimes overlap in their coverage, but in some cases do not overlap are common. | If I were a federal prosecutor (which I'm emphatically not), I might try to charge you under 18 USC § 32 (a) (5): a) Whoever willfully— [...] (5) interferes with or disables, with intent to endanger the safety of any person or with a reckless disregard for the safety of human life, anyone engaged in the authorized operation of such aircraft or any air navigation facility aiding in the navigation of any such aircraft; [...] shall be fined under this title or imprisoned not more than twenty years or both. Since you clearly know, or believe, that this has the potential to interfere with piloting, which would obviously be a serious danger to people on board the aircraft, I'd argue you would be acting with "reckless disregard for the safety of human life." If your conduct results in anybody's death, then life imprisonment and/or the death penalty are also on the table, under 18 USC § 34. | 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. | Hit and run, with no injury, is subject to Vehicle Code 20002. A person who fails to stop and notify has committed a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. The description of the crime is that The driver of any vehicle involved in an accident resulting only in damage to any property, including vehicles, shall immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists. Moving the vehicle in accordance with this subdivision does not affect the question of fault. The scary language of the statute notwithstanding, one element of the crime is missing, namely knowingly doing so. The corresponding jury instruction incorporates the full law including caselaw requirements, in particular To prove that the defendant is guilty of this crime, the People must prove that: While driving, the defendant was involved in a vehicle accident; The accident caused damage to someone else’s property; The defendant knew that (he/she) had been involved in an accident that caused property damage [or knew from the nature of the accident that it was probable that property had been damaged]; AND The defendant willfully failed to perform one or more of the following duties: (a) To immediately stop at the scene of the accident; OR (b) To immediately provide the owner or person in control of the damaged property with (his/her) name and current residence address [and the name and address of the owner of the vehicle the defendant was driving] This means you either need to learn how to defend yourself in court against an experienced lawyer (if you didn't know this aspect of the law, you probably shouldn't assume you can carry off this defense), you give in and plead guilty and take your chances, or you hire an attorney. Just saying "I didn't know" is not good enough, so lawyer up. | Deliberately causing an accident is illegal. However, in some (probably many) jurisdictions there is a "necessity" defense against criminal charges. In Washington it goes like this: Necessity is a defense to a charge of (fill in crime) if (1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm; (2) harm sought to be avoided was greater than the harm resulting from a violation of the law; (3) the threatened harm was not brought about by the defendant; and (4) no reasonable legal alternative existed. The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge]. It is possible, if B is attempting to kill the pedestrian, that you have defense of others available as well. | Law enforcement sometimes use "pacing" as a speed enforcement tool. The basic idea is that they consistently drive a certain speed - which is at or above the speed limit and notice that the "alleged speeder" is either keeping pace or exceeding the pace. The details are complicated and a police officer would know them much better than me. But basically They have to calibrate their speedometer - because if their speedometer is broken pacing is obviously worthless. They need to bring the calibration results to court. Not having those calibration records for your speedometer means that many police departments will be reluctant to issue a speeding ticket to the other motorists. They rely on the fact that most state laws allow law enforcement leeway to exceed the posted limit. Not being a lawyer or a police officer, I do not know the exact circumstances, but if they were not allowed to slightly exceed the limit for pacing then logically every pacing enforcement should result in 2 tickets - one being for the officer. If you can swear that your speedometer is good then they can use that evidence to write you a speeding ticket, because whatever allowances the law allows law enforcement for pacing are not granted to you. I am sure they can overcome the calibration issue with regard to a ticket issued to you by your certification that the speedometer is correct. If they issued a ticket to me based on your certification that your speedometer was correct, I would call bullshit. Talking to the police can only hurt you. | Although the assailant (or their estate if they are killed) could lodge a claim for damages it does not necessarily follow that they would win - they would have to show that the shooting was not legitimate self-defence but rather was unlawful by, for example, negligence or use of excessive force - say by shooting them when they didn't pose an immediate and unjustified threat. The Federation rules, as far as I can see, are not actual legislation. Although they should be adhered to in normal circumstances, this shooting would be, in the given circumstances, legitimate self-defence according to Article 122-5 of the Code Pénal which says: N'est pas pénalement responsable la personne qui, devant une atteinte injustifiée envers elle-même ou autrui, accomplit, dans le même temps, un acte commandé par la nécessité de la légitime défense d'elle-même ou d'autrui, sauf s'il y a disproportion entre les moyens de défense employés et la gravité de l'atteinte. N'est pas pénalement responsable la personne qui, pour interrompre l'exécution d'un crime ou d'un délit contre un bien, accomplit un acte de défense, autre qu'un homicide volontaire, lorsque cet acte est strictement nécessaire au but poursuivi dès lors que les moyens employés sont proportionnés à la gravité de l'infraction. Which Google translates to English as: The person who, in the face of an unjustified attack on himself or others, performs, at the same time, an act ordered by the necessity of the self-defense of himself or of others, is not criminally liable, except 'there is a disproportion between the means of defense employed and the seriousness of the infringement. The person who, in order to interrupt the execution of a crime or an offense against property, performs an act of defense, other than intentional homicide, when this act is strictly necessary for the aim pursued, is not criminally liable. provided that the means employed are proportionate to the gravity of the offense. |
What are the legal violations and criminal penalties likely to be for the protesters that entered the Capitol on January 6, 2021? I'm curious to know what sort of legal ramifications there can or will be for the Trump supporters who entered the Capitol building on January 6, 2021. I've seen it being called an "assault" in the news, but there is a video circulating that shows a police officer waving people in beyond the barriers. Is it trespass if the protesters were invited in? Will there will be charges of vandalism for some people? What other charges are likely? What are the penalties? Are accessory to murder charges possible given a police officer and a protester died? Numerous protesters have gone on YouTube and posted videos bragging about their activities. Some of these people give their names and where they're from, and even seem to actively admit guilt, to the point of being specific about their crimes. What sort of trouble are these people realistically looking at? | It is hard to know what to call the people who entered the capitol and its grounds without biasing the answer by the selection of terms. I am going to call them "intruders" because I must call them something to make an answer. If police or other authorized people actually invited the intruders in, then some otherwise possible charges go away, at least for those so invited. But the videos and other news coverage I have seen do not appear to include any such invitation. Some do include police or security shouting at intruders to "stop" or "stay out". Some show intruders breaking doors or windows to gain access, and others coming in through such broken openings. I don't see how anyone who entered in such a way could plausibly argue that s/he was invited in. Documenting exactly who said and did what during the hours that the intrusion lasted, would be a huge effort. I doubt it will ever be fully accomplished. But it seems clear that many laws were violated by at least some of the intruders, both Federal laws and DC laws. These might include: Criminal tresspass DC Code § 22–3302 Unlawful entry on property. Penalty: fine and up to 6 months imprisonment DC Code § 22–3211 Theft. Penalty: Up to 10 years, depending on circumstances and value of property. Up to 180 days for 2nd degree. See § 22–3212. DC code § 22–404 Assault or threatened assault in a menacing manner Penalty: fine and up to 180 days; up to 3 years if "serious bodily injury to another" results (defined as requiring prompt hospital treatment) DC Code § 22–405.01 Resisting arrest. Penalty: fine and up to 6 months. [DC code 18 DCMR 2000.2] Failure to obey police officer. Penalty: fine up to $1,000. DC code § 22–2101 Felony murder, for those who can be proved to have engaged in robbery, housebreaking or any of the other listed felonies (most of which would not apply). 18 U.S. Code § 1752 "Restricted building or grounds" Possible penalty: fine or imprisonment for not more than 10 years for those using or carrying firearms or dangerous weapons, up to 1 year otherwise. Several subsections of this were probably violated by many of the intruders. 18 U.S. Code § 1361 "depredation against any property of the United States". Penalty: Fine plus up to 10 years if value over $1,000, up to 1 year if under $1,000. 18 U.S. Code § 2112 Robbing personal property of the United States. Penalty: up to 15 years. Some intruders were seen in videos carrying off fixtures and property from the capitol. 18 U.S. Code § 930 - Possession of firearms and dangerous weapons in Federal facilities. Penalty: fine and up to 1 year; up to 5 years if there is intent to use the weapon to commit a crime. Some intruders are seen carrying guns. 40 U.S. Code § 5104 Restricts various activities on the Capitol grounds including: "A person may not step or climb on, remove, or in any way injure any statue, seat, wall, fountain, or other erection or architectural feature, or any tree, shrub, plant, or turf, in the Grounds." and "may not carry on or have readily accessible to any individual on the Grounds or in any of the Capitol Buildings a firearm, a dangerous weapon, explosives, or an incendiary device". Also, "may not knowingly, with force and violence, enter or remain on the floor of either House of Congress." also a person may not "parade, stand, or move in processions or assemblages in the Grounds; or display in the Grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement." without authorization. 18 U.S. Code § 231 A person who transports a firearm for use in a civil disorder, or obstructs a law enforcement officer in the course of a civil disorder. Penalty: Fine and up to five years. 18 U.S. Code § 2384 - Seditious conspiracy. Discussed at length in the lawfare blog article Penalty: fine and up to 20 years. Which, if any, of the above laws might actually be charged against one or another intruder there is no way to know yet, and there way well be other provisions which would apply that I have not thought of or found. | The Secret Service is primarily concerned with protecting the people and information they oversee, not enforcing laws. They have the power to arrest someone for any unlawful conduct, but unless a drug user is presenting as a threat to a protectee, they are unlikely to be arrested by the Secret Service. More likely the Service would simply escort the person off the premises and refer the matter to the DC Metro Police to handle. Edit: Such a case would not be turned over to the US Capitol Police (as originally written) It would most likely be referred to the DC Metropolitan Police Department.Corrected my answer above. | So I'm fascinated with the OJ trial and I've read a ton about it. I'll try to answer your question both accepting your premise as true, and then also going into what actually happened. First of all, jury nullification cannot be overturned in the US. The double jeopardy clause forbids it. This is such a powerful tool, in fact, that there are strict rules that prevent defense lawyers from mentioning or even hinting at jury nullification, in front of the jury, in almost all circumstances. It doesn't mean D is safe from all legal liability. OJ, obviously, was found liable in the civil trial. Sometimes other jurisdictions can prosecute. For example, after the officers in the Rodney King beating were acquitted in state court, the federal government got them for violating federal hate crime statutes. Second, looking at your premise. If jurors think D is guilty, but also being framed, that's not necessarily jury nullification. Remember, a criminal defendant must be proved guilty beyond a reasonable doubt. That means that 'probably guilty' means 'not guilty.' That said, there may be times when a jury is convinced beyond a reasonable doubt of a defendant's guilt, but is so disgusted by the police tactics used in the case that they acquit. This would be jury nullification. What actually happened in the OJ case: Mark Fuhrman perjured himself on the stand. He lied and said he'd never said the N word, and the defense produced tapes of him saying it a ton. The defense recalled him to the stand. Because perjury is a serious crime, this time he came in with his own defense lawyer, and did nothing but take the fifth on the stand. In a genius move, OJ's defense team asked him whether he planted any evidence in the OJ case. He didn't deny it, instead he took the fifth (again, as he was doing to every question). This was enough to sow reasonable doubt about OJ's guilt based on the evidence in that trial (there's obviously no actual doubt, in real life, that he's guilty). So, what actually happened wasn't jury nullification. | They can’t But they aren’t This is the law (as amended). Section 9 contains the penalties. In any event the police don’t fine people they issue an infringement notice which is an allegation of an offense - police can issue these even if they reasonably believe they took place - they are entitled to be wrong. The person given the notice can admit the offense by paying the fine or contest the allegation by going to court. | There’s some truth in it When a matter, particularly a criminal matter, is before a court or sub judice, public comment is forbidden and may be contempt of court unless they are “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.” Technically, it only applies to media reporting (probably including social media) and only while the proceedings are active. Proceedings become active when there is an arrest, oral charge, issue of a warrant, or a summons. Notwithstanding, there is nothing preventing an organisation having a “no comment” policy on any matter once there is police involvement. | These charges aren't the same offense. They are three different offenses, all of which arise from the same conduct. Imagine throwing a grenade in a building because you saw a police officer about to discover evidence connecting you to a crime. I think most people would agree that there's no reason you could not be charged with murder, arson, and tampering with evidence under those circumstances. Likewise, Chauvin committed multiple distinct offenses when he kneeled on George Floyd's neck -- for instance, murder charges are based on the act of causing a death, while manslaughter charges are based on the act of creating a risk of death -- and the state is free to seek punishment for all of those offenses. Double jeopardy doesn't have any application to the case at this point. The Double Jeopardy Clause doesn't say you can't face multiple charges for the same conduct; it says you can't face multiple trials for the same charges. | I feel that a person, not the subject of arrest, should be protected by the 4th amendment if they choose to remain in their vehicle, even if “ordered” to exit the vehicle by an officer. The intuition is fine, but is basically incorrect. I’m most interested to know: How would a driver (1) Politely (2) determine if a given instruction to exit the vehicle must be complied with, and (3) decline the instruction without giving the officer “cause” or otherwise damaging a potential case? From a practical perspective the only workable response is to comply. There are times when this is done without a reasonable suspicion (or in some cases probable cause) or other legal basis, but it is pretty much impossible for you to dispute this one the spot. Most of the time, the officer will have the legal authority to order you to leave the vehicle. If they order you to exit the vehicle despite not having the legal authority to do so, the right course of action is to comply and then to file a complaint with the agency employing the officer or to bring a civil lawsuit against the officer. There are good answers to a basically duplicate question at How can you tell if you have to follow a police officer's instructions? | It seems to me that some commentators/articles have inadvertently conflated different legislation and a recent event involving the seizure of equipment from protester Steve Bray in Parliament Square. Some articles about Steve Bray have named or otherwise referred to the Police, Crime, Sentencing and Courts Act 2022 without an explanation of any link between that person and this law - to me there is no link in the context of Bray's equipment seizure (the police may have mentioned other newer powers to Bray). Among other things, section 143 of the Police Reform and Social Responsibility Act 2011 (as amended) explicitly prohibits the unauthorised use of "amplified noise equipment" (including but not limited to loudspeakers and loudhailers) within Parliament Square and (the amendment) "the Palace of Westminster controlled area". Westminster Council provides a map in pdf format of the respective areas: Appendix to Protocol for enforcement of provisions in relation to noise nuisance in the vicinity of Parliament. Before the PRSRA 2011, sections 137 and 138 of the Serious Organised Crime and Police Act 2005 gave the Home Secretary the power to prohibit the unauthorised use of "loudspeakers" in "designated areas" no more than one kilometre around Parliament Square. Part 3 of the Police, Crime, Sentencing and Courts Act 2022 amends the Public Order Act 1986 in relation to "public processions and public assemblies", including clauses related to "noise". Section 78 of the Police, Crime, Sentencing and Courts Act 2022 abolished the common law offence of public nuisance and created the statutory offence of "intentionally or recklessly causing public nuisance". This more recent legislation has been criticised in relation to protests generally (not solely those that involve megaphones), e.g. by the Joint Committee on Human Rights its witnesses in their scrutiny of the-then Bill. Quote: The Bill introduces a new statutory offence of “intentionally or recklessly causing public nuisance” which was previously an offence at common law. There is a wide range of non-violent conduct that may be caught by the statutory offence, which potentially criminalises some forms of peaceful protest. The offence carries a maximum sentence of 12 months if tried summarily and 10 years if tried on indictment. A person can also be issued with a fine.77 A number of our witnesses raised concerns about the impact of these changes and its compatibility with Articles 10 and 11 of the ECHR. We share some of those concerns. In summary the explicit prohibition of "amplified noise equipment" is limited to Parliament Square and "the Palace of Westminster controlled area" but one can easily imagine the police claiming that a protester's use of a megaphone is a public nuisance. |
Could Trump be charged with inciting the actions of 6th January 2021? The Daily Mail claims in a recent article about the incident on January 6th: And he [Trump] could face prosecution in state court in Washington DC for inciting the mob to violence. Could Trump be charged with inciting the actions of 6th January 2021? | Charged: yes. Another answer has mentioned incitement to riot in 18 USC 2101. There is also incitement to insurrection in 18 USC 2383. This carries with it upon conviction a prohibition on holding office under the United States, both in the federal law itself and also via Amendment 14 of the Constitution of the United States. There are laws under which charges could be brought, and there is certainly no impediment to bringing them after M. Trump's term of office ends. Bringing them before then raises questions of presidential immunity, but I strongly doubt that speaking at the start of a "Save America March" can be construed as an action in any official Presidental capacity. Convicted: only maybe. M. Trump's statements have to extend beyond what is protected by Amendment 1 and actually be incitement to insurrection. Although there is a strong case that seeking to kill the Vice President of the United States ("Where's Mike Pence?" as people shouted) and the Speaker of the House of Representatives ("Tell Nancy we're coming for her!"), seeking to obstruct the function of the Congress, and seeking to remove the Electoral College certificates, are indeed insurrection; as possibly is whatever the woman who refused to stop brandishing a knife at the door of the building was intending to do; reading the transcript of the whole speech given at the start of the "Save America March", it is difficult to point to where M. Trump specifically incited any of those things. One can make circumstantial arguments, but the words actually uttered then and there merely encouraged marchers on a "Save America March" to march to the Capitol and cheer people on, "demand" that congresspeople "do the right thing", and "make your voices heard". This is in contrast to M. Trump's son and daughter in law who explicitly mention "fight", "fighter", and "fighting", 7 times by Eric Trump by my count and 4 times by Lara Trump. And of course Rudy Giuliani not only said "fight" but also proposed "trial by combat". In more potential criminal trouble than even them is lawyer and prominent Trump supporter, L. Lin Wood, who explicitly called, without equivocation, several times over a period of days, on Twitter and on Parler, for the Vice President of the United States to be executed by firing squad. There will certainly be mixed fortunes in the Trump family from this. Whilst there may be a case against Eric and Lara, and possibly Donald Sr.; Ivanka Trump did not speak beforehand that I know of, and is reported afterwards to have asked her father to go and speak to the mob about stopping, which she also did directly, albeit ineptly ("American Patriots — any security breach or disrespect to our law enforcement is unacceptable. The violence must stop immediately. Please be peaceful."), herself via Twitter for a short while. | There’s some truth in it When a matter, particularly a criminal matter, is before a court or sub judice, public comment is forbidden and may be contempt of court unless they are “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.” Technically, it only applies to media reporting (probably including social media) and only while the proceedings are active. Proceedings become active when there is an arrest, oral charge, issue of a warrant, or a summons. Notwithstanding, there is nothing preventing an organisation having a “no comment” policy on any matter once there is police involvement. | In short, no, that cant be a pardon for those police officers who would be now influenced to take more violent actions towards those they detain. Pardons are only applicable to past actions. You may be pardoned before charges are filed, but the actions must have already occured. Though I less certain about this, simply because Ive never heard such a thing proposed, I would also note that it is highly improbable that the actual statement he made - generic and during a speech - could everbe interpreted as an affirmative act intending to grant pardons to anyone who may act in that manner in the future. | US troops deployed to Germany would be covered by the Status of Forces Agreement, which governs jurisdiction. Your question also ignores the nature of the prosecution services in Germany, which do not allow a rogue junior official to file charges at a whim. You would have to assume that at least a state government, if not the federal government, actively pushes the case. (And the federal government could probably take the case away from any state which had such ideas.) If you look for precedents of legal jeopardy, look at the case of Anwar Raslan, a Syrian official convicted of torture in Germany. It is also a closer parallel to the Pinochet case. Finally, the principles underlying such prosecutions were established in Germany but not by Germany. I'm talking of the Nuremberg trials. If German courts were to find the US Army to be a criminal organization, then individual members would be at risk. But as a political scenario, that is absurd. | The general rule is that force may be legally used in defense of self. I will draw on RCW 9A.16.020, other jurisdictions say essentially the same thing. The relevant parts are: (3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary Curated internet videos don't tell the whole story, but for the sake of argument I will assume that Mr X chucked a bottle at Tyson, and Tyson proceeded to punish him with his fists. Both parties thus committed a crime. The new report indicates that there will be no prosecutions "based on 'the circumstances surrounding the confrontation'", which I take to include all of the available evidence. Prosecution for a crime is discretionary. There is no requirement at a prosecutor file charges in every instance where (in the prosecutor's professional opinion) a conviction can be secured. The abstract law is clear: both parties committed a crime. The abstract law is also clear that a prosecutor has discretion to decide whether to prosecute. | The definitive answer to the question "could I be charged" is always YES. I refer you to the Manassas City teen charged with child pornography. Child pornography laws were put in place to protect children and prevent them from being exploited by having sexual pictures of them taken and distributed. In this case, the picture in question is of the young man’s own genitals, which would make him both the perpetrator and the victim. Apparently the lead detective in the Manassas City teen's case was himself a pedophile and just wanted an excuse to use force to photograph the teen's erect penis. Why would you assume this "girl" is a "17 year old girl" or a "15 year old girl" and not a 39 year old pedophile Manassas police officer? | It is not a crime to say, "The people want to bring down the regime." This specific tweet is almost certainly not illegal. Even if this guy is subjectively trying to overthrow the government, this would probably be an impossible prosecution for a lot of reasons. First: 18 USC 2385 deals with "overthrow or destruction of the government." Does "regime" mean the government or does it just mean the Trump administration? I'm guessing it just means the administration, and if that's the case, you're dealing with a matter of public concern rather than a true threat of overthrow. Especially because this comes right after the election, you've got strong arguments that this is commentary on a matter of public concern, e.g., "the people want to end the Trump regime," or maybe "the people wanted regime change and therefore voted for Trump, or that you need a change in the constitutional form of government to do away with the Electoral College." Whatever it means, commentary on a matter of public concern cannot be punished under Section 2385. Rankin v. McPherson, 483 U.S. 378 (1987). Second: 18 USC 2385 deals with overthrow by "by force or violence." To say you want to bring down the regime says nothing about how you want to bring down the regime. Third: The invocation of the Arab Spring could sort of cut in either direction, as it involved regime changes effected both through nonviolent protest and violent revolution. Fourth: Even if we interpret this as Ayloush saying that regime change would be good, that he personally wants regime change, or that other people should want or work toward regime change, that's still not enough to get you into the conduct prohibited by Section 2385, which does not prohibit "doctrinal justification of forcible overthrow." Here's some relevant language from Noto v. United States, 367 U.S. 290 (1961): [T]he mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material. This seems like pretty solidly First Amendment-protected political speech. | 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. |
What was the first instance of a US State striking down a law as inconsistent with that state's constitution? Marbury v Madison has international fame (to this English lawyer at least) as establishing the federal courts' power to strike down statutes inconsistent with the federal Constitution. However, I do not know and I cannot find the basis and origin of US state courts having the power to strike down state laws as inconsistent with state constitutions. What was the first instance of this occurring, and was it before or after Marbury? | The earliest I know of is Bayard v. Singleton, 1 N.C. 5 (N.C. Super. 1787), which dealt with a North Carolina statute that confiscated land held by British subjects and required the courts to dismiss any lawsuits attempting to reclaim confiscated property. The North Carolina Superior Court held that because the state constitution conferred a right to a jury on questions of property ownership, the legislature could not require the courts to dismiss lawsuits requesting such a resolution to property disputes: By the Constitution every citizen has a right to a decision in regard to his property by a trial by jury. The act of Assembly, therefore, of 1785, requiring the Court to dismiss on motion the suits brought by persons whose property had been confiscated against the purchasers, on affidavit of the defendants that they were purchasers from the commissioners of confiscated property, is unconstitutional and void. So the British subject was entitled to a trial, but the admission that he was a British subject meant that he was an alien and enemy of the government, and therefore not permitted to hold property. | This is called "judicial notice." In federal court, it's covered by Rule 201 of the Federal Rules of Evidence: (b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (c) Taking Notice. The court: (1) may take judicial notice on its own; or (2) must take judicial notice if a party requests it and the court is supplied with the necessary information. States mostly have similar rules for state courts. | First law An act to regulate the time and manner of administering certain oaths First law containing a crime via Wikipedia: The renewal of the Northwest Ordinance, which authorized the executive to adopt state law within the Northwest Territory i.e. An Act to provide for the Government of the Territory North-west of the river Ohio (1 Stat. 50). However, as best I can see this gives the Governor of the territory and, initially, judges (later a legislature) the authority to make laws, without specifying any crimes. First solely criminal law An Act for the Punishment of Certain Crimes Against the United States (1 Stat. 112) First law containing a crime, still in effect Possibly the above. Certainly, this article on U.S. Law Enforcement Abroad: The Constitution and International Law describes (in reference 11) "18 U.S.C. §2381 (1982), adopted originally as Act of Apr. 30, 1790, ch. IX, 1 Stat. 112." The wording of 18 U.S. Code § 2381 does seem to closely mirror that of the 1790 Act: Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States. versus That if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be thereof convicted, on confession in open court or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death. | The Queen (or King) is not the government; she represents the State. The difference is often ignored by ministers, but is important particularly in constitutional cases. Miller began as Miller v Home Office, a judicial review case. When it became clear that the question was what powers the government actually had in a certain situation, the Supreme Court decided that constitutional points should be argued by, effectively, an amicus curiae on behalf of the state, with government lawyers defending their own viewpoint (and other interested parties intervening). This made it, in their view, a case of the state versus the government, with 'Miller' being either an acknowledgement that the applicant remained a party or a means of distinguishing this case from all the other "R. -v- Government" cases over the years, depending on your point of view. | Indian Constitution provides for a Federal government in which power of states and centres are clearly enunciated. If there is a dispute over any issue Supreme Court can decide whether State government is correct, or whether Central government is correct. Any law of Parliament affects the entire population of India, and so all states are affected by that law. If any state government considers that the law is not as per constitutional norms, it can easily go to the Supreme Court for decision. So, the observation of the Supreme Court that a state is bound by the law of Parliament, is incorrect. If an individual can file such a case, a state is also entitled to file it. The Supreme Court should decide it on the basis of merit. So I think the observation of Supreme Court in this case is not correct. | Trivially, yes The First Amendment was adopted on December 15, 1791. Every time there has been a dispute about what it means that has gone to court since then, the judgement of that court has established, overturned or clarified precedent - that's what common law courts do. The government can limit your speech The Supreme Court has recognized categories of speech which receive lesser or no protection from the First Amendment. For example, inciting lawless actions, fighting words, true threats, obscenity, child pornography etc. They have also determined that it doesn't limit the government's power to impose reasonable time, place or manner restrictions on speech. As Justice Holmes put it in Schenck v. United States (1918), "Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic." It applies to parts of government which derive their power from Congress Which is, in most cases, all government. The executive actually has surprisingly little power granted by the Constitution (Article II, Section 2). All the other powers of the executive are technically delegated powers of Congress and are therefore subject to the First Amendment. Similarly, only the Supreme Court draws its mandate without going through Congress Article III, Section 1) - all other courts are subject to First Amendment restrictions. It only restricts government The limitation is a negative one on the US Congress (and through incorporation, the states). It does not, of itself, restrict private actors who are free to restrict speech however they want within their own property, including both physical and online spaces. It is open to the government to enact laws that would extend an affirmative right to free speech onto non-state actors (see Pruneyard Shopping Center v Robins (1980)), however, the Federal government has not done so and neither have most states. | Choice of law (also called conflict of laws) arises when a legal dispute occurs across legal boundaries. For example, suppose I live in New York, and sign a contract to buy computers from you, a company headquartered in California. If we have a dispute about the contract, we need to decide which state's law and which courts (and juries) will be used to resolve the dispute. The law that applies to our dispute is called the applicable or governing law. In many cases, it doesn’t matter which law or court we use. But in some cases, it matters a lot. For example, the California law may be friendlier to customers, or a jury in New York may be friendlier to me than to a California companies. Since we know that the choice of law and court may matter, we may specify in the contract which laws and courts will be used to resolve any disputes. (These may not be the same. The contract could say that our case will be heard in the SDNY using CA law.) The clause that says which laws apply, and which courts will apply them, is called a governing or applicable law clause. Here’s an example many of us have used, probably without realizing it: APPLICABLE LAW By using any Amazon Service, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Washington, without regard to principles of conflict of laws, will govern these Conditions of Use and any dispute of any sort that might arise between you and Amazon. | Why does the one country that promotes constitutional democracies above all others not have a judicial branch specifically for those matters? I know SCOTUS will hear these matters . . . I have had it mention that SCOTUS hears less than a hundred cases a year. Something which sounds incredibly low. A constitutional court profoundly limits the extent to which relief for violations of the constitution are judicially reviewable relative to the U.S. status quo. All courts from traffic court on up hear these matters and adjudicate constitutional issue in the status quo. It is also helpful to recognize that the U.S. Constitution regulates government conduct, not necessarily only though the device of determining that legislation is or is not constitutional. If a police officer stops you without having reasonable suspicion to do so, he has violated the U.S. Constitution, without regard to what the statutes of the state in question say. If evidence is seized without probable cause and this evidence is introduced in court over your objection in a criminal case, the government has violated the constitution and you are entitled (unless it was harmless error) to have your conviction vacated. If a tax collector seizes your property for unpaid taxes without first affording you due process to dispute their right to do so, the government has violated one of your constitutional rights. The Constitution imposes affirmative duties and obligations on the government, it does not merely invalidate laws enacted as unconstitutional. Most instances of constitutional adjudication involve government conduct and not the validity of government enacted statutes. |
How can I stop someone I know from harassing me online? My ex partner keeps making new accounts on Instagram and Facebook to message me. I’ve sent them a text with a read receipt that states clearly: don’t contact me on any platform, don’t text me, don’t call me etc. They even had a mutual person call me when they were with them. I’ve blocked every single account and I haven’t replied to any messages since telling them not to contact me again. I have proof of everything. The messages are not threatening and this has been going on for less than a month but they have done similar to their previous partner for 9 months and I suspect that they may not leave me alone for the next year. I want to do something that will force them not to contact me online- and force them not to have other people contact me on their behalf if possible. How can I stop this from happening? I’m happy to accept an answer that requires them to voluntarily sign something. | Citizens Advice in the UK has some great advice pages on dealing with harassment, but your options are limited - you can't actually stop someone from contacting you, but you can make their actions have consequences. Try contacting the police, who may speak to the individual in question and that may be enough to stop the harassment, or you can try applying for an injunction against the person in court (commonly called a restraining order). If the person breaches the injunction, then it can become a criminal matter. | By which law I am enforced to share my personal details (such as my full name) on forum publicly to on-line people which I even don't know (when commenting on random posts)? Contract Law. Google have made it a term of the contract that you use your full name. You can: contact Google and negotiate a change to that term, accept that term, choose not to enter the contract. so I can enforce on my privacy rights without removing my Google Plus account? As a person subject to UK law, your privacy rights involve limiting who and in what circumstances Google can divulge personal private information to. Your name is not personal private information; things like your medical history and bank balance are. Aside from that, you do not have a right to privacy. Anything you do or say that is visible or audible from a public place (like the internet) or a private place where the person in control of that place does not insist on your privacy (i.e. almost everywhere that you are not in control of) is public! | This may not be the answer that you're looking for, but my mother always told me the best way to take control of a conversation is to ask a question. Am I under investigation? Did you just try and interrogate me without reading me my Miranda Rights? I'm not contracted with your organization, so what are your intentions? | No. You need to actively be given permission for you to have permission. If they don't reply you don't have permission and are violating their ToS. | In the united-states, those actions would be fully protected by the First Amendment. Andy has a constitutional right to speak freely about essentially whatever he wants -- including Mary's criminal conduct -- unless his speech falls into one of several narrowly defined categories, none of which would apply in this case. And because Mary has already put this information out on the Internet, it is likely not sufficiently private to support an invasion-of-privacy claim. However, the unfortunate reality is that complainants, police, prosecutors, and judges frequently ignore First Amendment protections. Indeed, many states have laws against "cyberstalking" and "telecommunications harassment" that are incredibly broad, and that clearly apply to conduct protected by the First Amendment. For instance, Ohio's telecommunications harassment statute makes it a crime to send an e-mail "with purpose to abuse, threaten, or harass another person." This means that many people who engage in First Amendment-protected speech end up getting prosecuted anyway. If they pay for a good lawyer who knows how to properly raise a First Amendment defense, they may escape any penalties. But because most defendants do not have those resources, and because many lawyers are unaware of the First Amendment implications of such prosecutions, most defendants in such situations likely end up being convicted despite behaving perfectly legally. In the united-kingdom, though, the situation is very different. Even if Mary is breaking the law, and even if Andy limits himself to strictly factual information about what's he's learned about her conduct, he may still be held civilly liable. Mary may also be able to pursue Andy criminally for harassment if his e-mail causes her substantial emotional distress, and civilly for "harassment by publication." The fact that this information is already public is likely not going to go very far in changing the analysis. Andy's best course of action is therefore to play it safe by keeping his mouth shut. Doing so has both legal and nonlegal benefits: He avoids exposure to the hassles of defending himself from criminal charges and he gets some time to examine the resentment, jealousy, paranoia that makes him want to humiliate his "friend." | An individual does not have authority to "issue" a restraining order. In the U.S. only judges can issue such orders. The guidelines and policies for obtaining a restraining order vary by jurisdiction, although in the end a judge can issue any order he wants. So in theory you might be able to find a judge who will issue an order for any or no reason. In practice I'd be surprised if many judges would abuse their office to gratuitously harass people in this fashion, though there are probably a few amusing/disturbing examples out there to the contrary. | The purpose of that disclaimer is not to prevent reprimands or legal action. It's really as simple as it appears -- it's to inform the readers that the tweets in fact contain the opinion of the person who wrote them and are not intended to be understood as the official position as that person's employer. This is especially important for people who occasionally or frequently convey their employer's official position. It's not supposed to be some kind of magic word that causes something to happen. It's just an attempt to convey accurate information and avoid misunderstandings. | The title asks about double jeopardy, but the the body seems to be asking about statute of limitations, which is a separate issue. If an argument regarding timeliness is made by John, it likely will not be based on a statute of limitations. If Jane is asking for a restraining order, she will have to show a high likelihood of harm. If further actions have occurred recently, then any statute of limitations would not apply. If four years have gone by without any further actions by John, then Jane is unlikely to convince a judge that harm is imminent. Restraining orders are not supposed to be punitive, but preventative, thus the concept of statutes of limitations generally does not apply; as they are supposed to be used to prevent imminent harm, only the current situation is considered. Long-past actions are relevant only as to interpretation of current facts. One does not get a restraining order "for" violent acts done against one; one gets a restraining order to prevent future acts, and uses previous violent acts as evidence of the likelihood of those acts. Asking a court to protect oneself from someone who has not been in one's life for four years is unlikely to go over well. |
Which countries' inheritance laws apply? My mother, a German national with a green card passed away recently. Her husband (my dad) of 59 years is an American citizen (born in US). My mother spent the majority of her adult years in the United States. She kept a bank account in Germany. The German cousin who has access to the bank in Germany has informed us that German law requires that 50% goes to the surviving spouse and the other 50% is divided amongst the surviving children. None of my siblings or I would contest it, in any way, if all the funds went to my father. But my father, good man that he is, wants to follow the applicable laws. The questions are: which laws are applicable? U.S. laws? German laws? Some mix thereof? My mother did not leave a will; the U.S. based assets are in a trust. What kind of an attorney should we seek out to make sure that things are done in accordance with the relevant laws? What questions should we be asking of such an attorney? The total value of the funds in the German bank account are not so large that attorneys are clamoring for the business. :-) | German law applies As your mother was a German national, German law applies to all her property worldwide. US state law applies As your mother was a permanent resident of a US state, its law applies. Conflict of Laws It is unlikely (read impossible) that you will be able to comply with both laws simultaneously. You, therefore, have a conflict of laws problem that can only be resolved by the courts. In most cases where this particular conflict occurs, the local courts will accept that they have jurisdiction, and will also accept the court of nationality's determination that the applicable law is that where the property is - i.e., they will ‘accept the renvoi', and apply their own law to the inheritance of the property. You will need to apply to the German court who will probably decide that the US portion be dealt with using US state law and the German portion be dealt with using German law. You then need to take that decision to your state court who will probably acquiesce. Probably. Fortunately, as the US and Germany have a tax treaty, you will only need to pay inheritance tax once. | Choice of Law The place where you get married is irrelevant to the question of whether or not you need a pre-nuptial agreement. What matters is where you intend to live once you get married. A pre-nuptial agreement exists to change the default rules of law upon death and divorce. These rules differ from state to state, so the default rules you might modify depend upon where you intend to live after you get married, and so does the extent to which you need to modify those rules. Generally, a divorce will be governed by the law of the place where the couple resides when the divorce is commenced, and generally inheritance is governed by the laws of the place where the decedent (i.e. the dead person) was domiciled (which means something close to, but not the same as where the decedent resided) at death. Why Get A Pre-Nuptial Agreement? If you and your bride are happy with the default rules of law regarding divorce and inheritance in the place that you intend to live, there is no need for a pre-nuptial agreement. If the two of you are not content with the default rules of law regarding divorce and inheritance in the place that you intend to live, then a pre-nuptial agreement can change some, but not all, of those rules. Generally, a pre-nuptial agreement can change rules regarding property division, alimony and attorneys' fees, but not matters related to children or related to the grounds upon which you can get divorced or related to whether fault can be considered in a property division or alimony determination. What the pre-nuptial agreement would say would depend upon your objectives for entering into it. To answer your question it is necessary to know "what harm are you afraid of that a pre-nuptial agreement could prevent?" This has more to do with your expectations and values than it does with the law. Some reasons that people enter into pre-nuptial agreements include: preventing a spouse from inheriting or receiving in a divorce wealth that you inherited or might inherit in the future, because the donors might decide not to leave you inheritances otherwise; preserving wealth acquired by the spouse's respectively during life for one's adult children in a late in life marriage (e.g. during retirement) that is unlikely to produce more children. The Formalities Any pre-nuptial agreement should be drafted with both spouses represented by lawyers, and any competent lawyer should know the details of executing the document that are necessary to make it valid. If the agreement is drafted in English, which would make sense if she was moving to the U.S. to join you, she would need to have an interpreter in addition to a lawyer to help her evaluate and negotiate it, unless she was already fully fluent in English enough to understand advanced legal concepts (which would be very uncommon unless, for example, she went to school for many years in the U.S.). Immigration Considerations In the immigration process, U.S. immigration officials are skeptical that international marriages are legitimate and have the power to determine that an international marriage was a sham. One factor among many that immigration officials use to determine that a marriage was a sham entered into for immigration purposes is the existence of a pre-nuptial agreement that favors the citizen spouse. The more strongly the agreement favors the citizen spouse relative to the default rules of law, the more likely it is that immigration officials will determine that the marriage is a sham. It is not necessarily a factor that will cause the marriage to be found to be a sham, in and of itself, but it is an important factor that would be considered. If you enter into a pre-nuptial agreement, you are making it harder for your bride to become a U.S. citizen, and the more it favors you, the harder it will be for her to become a U.S. citizen. | There are only a few areas of law of which I am aware that U.S. law treats people who are engaged to be married differently (although perhaps with more thought I could expand the list). Fiance(e)s come under a special immigration status when applying for a visa. There is a body of law related to whether an engagement ring is an absolute gift or is conditional upon being married (this is not uniform from state to state and I don't recall what the majority rule in those cases is under the common law). In South Carolina, ownership disputes over engagement rings are litigated as breach of promise to marry actions. Pre-marital agreements governing a future marriage can be made by people who are engaged (although a post-nuptial agreement is also equal in effect in most cases). People who are engaged, like spouses, are generally considered to be in a "confidential relationship" with each other which imposes higher duties with respect to fairness in their dealings with each other than strangers, but generally less high duties than fiduciaries. While not strictly arising from the status of being engaged, adult cohabitants are generally agents for service of process of each other at their shared home, and are often considered to have a legally significant relationship for purposes of domestic violence statutes (usually related to either domestic violence crimes or temporary restraining orders). I am not familiar enough with the law of France to fully answer the balance of the question, which someone more familiar with that law can expand upon. But, there is similarly a special immigration status in French law for a fiance(e). And, French law, in a flourish so romantic it could scarcely be any other country's law, also allows people who are engaged a right to marry after one of them has died in certain circumstances: "The legislation that allows posthumous marriages stems back to when a dam burst in 1959 and killed 420 people in southern France." It was most recently invoked in 2014 when a grieving French woman was granted permission by the French President to marry her former fiancé, who tragically died in 2012, just a month before they were due to wed. To be eligible the bride to be had "to convince the President of France that her’s was a special case and that her love for Michael went beyond the grave. It took four letters to the president and 20 months of waiting, desperately hoping for a positive response." The President's discretion in this matter is somewhat similar to the pardon power in U.S. law. This French law was also invoked in 2009. The law in question is set forth at Articles 171 of the French Civil Code. In English translation this states: Article 171 The President of the Republic may, for serious reasons, authorize the celebration of the marriage if one of the future spouses is dead providing a sufficient gathering of facts establishes unequivocally his consent. In this case, the effects of the marriage date back to the day preceding that of the death of the spouse. However, this marriage does not carry with it any right of intestate succession to the benefit of the surviving spouse and no matrimonial regime is considered to have existed between the spouses. I am aware of one documented case where a court entered a post-humous marriage in the United States between people who were engaged, but I am not familiar with any legal authority actually authorizing that action. | 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? | It is not necessarily a crime to do this, but the gift to you and from you to Betty would be disregarded and treated as if gift directly from Alice to Betty, if the IRS knew all of the facts. A gift implies a donative intent directed at you. When there is an understanding that you are acting at Alice's direction, you aren't receiving a gift, you are acting as Alice's agent. This said, this scheme, or the alternative it seeks to prevent, has no impact on Betty, because gift taxes are imposed on the donor rather than the recipient of the gift. And, in most cases, a gift in excess of the $14,000 per person per year gift tax exemption will have only a minimal impact. This is because each person is entitled to make a combination of gifts in excess of the exemption during life and transfers to non-spouses and non-charities at death of $11,200,000 per lifetime (adjusted annually for inflation). Usually, all that is necessary if the limit is exceeded is for the donor to file form 706 (a federal gift tax return) at the same time as the donor's income tax return, and this form is very simple if the only gifts given are cash gifts. Transfers to a U.S. citizen spouse are gift and estate tax free, as are gifts to foreign and domestic charities. Spouses who file a Form 709 in a year may treat gifts given by one spouse as actually given half by each spouse. If someone dies not having used their entire $11,200,000 (adjusted for inflation) lifetime exemption, their surviving spouse, if any, inherits that unused portion and can use it at their death in addition to their own lifetime exemption. So, Alice and Betty are trying to evade a tax law that is easy and trouble free to comply with, and may provide future benefits by documenting the intent of the parties with respect to a large gift (so that someone doesn't later try to characterize it as a loan or contribution to a trust estate, for example). While it isn't a crime, it is ill advised and won't benefit them materially in the end. | While the state, or a creditor, can initiate a probate if no one else does (if the state does so, the official in charge of this is called the "public administrator"), neither are required to do so. Also, sometimes a guardianship is converted to a probate, but this doesn't appear to have happened. This is a thankless job that probably doesn't make sense to bother with if estate liabilities exceed the assets of the estate, but most states have a "non-claim statute" that bars creditors claims, other than liens including property tax liens, after a certain amount of time after the death. So, even if the estate may have been insolvent at death, if enough time has elapsed, many of the potential claims may now be barred, making the estate solvent again. Siblings generally have priority for appointment over a nephew, so to be appointed yourself, you would ordinarily have to receive a renunciation of their right to serve as executor before applying to do so yourself, but some states disregard that priority if no one has taken action after a certain period of time. You would initiate probate by contacting an Alaska lawyer in the vicinity of the place he was domiciled at death. The lawyer can review the guardianship court file, determine if an executor was appointed, and determine if there are assets that could justify opening an estate relative to lien debts including Medicaid liens. If there are not, letting the assets be lost to a property tax lien may make more sense that spending money to transfer his property in an orderly fashion to his creditors with nothing in it for any of his family. | united-kingdom To extend on @ohwilleke's answer about US inheritance tax, I can answer the UK side of things. UK inheritance tax does not apply to inheritances from abroad, unless that person was domiciled in the UK or some of their assets were in the UK. If you are not a UK resident for tax purposes (which, from the context of your question is unlikely), then you wouldn't even have to pay tax on the interest you earned from depositing the inheritance. If the deceased were taxed for being domiciled in the UK, and the US taxed your inheritance, you'd actually qualify for tax relief from HMRC based on what you'd already paid the IRS. If you are not domiciled in the UK for tax purposes, and neither was the decedent you would owe precisely zero to HMRC in the UK. More info can be found here: https://www.taxoo.co.uk/uk-resident-receiving-inheritance-from-abroad/ | 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. |
Is the individual right to bear arms disproven by the deleted conscientious objector clause of the 2nd amendment? As an individual, is the notion that an American has the right to a firearm per the 2nd amendment disproven based on the deleted clause of conscientious objectors? Proposed by James Madison upon the first draft of the amendment, it read: “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.” If the second amendment was solely referring to the individual rights of a private American citizen, why would there be a mention of “render[ing] military service” in the original draft of the amendment? Doesn’t this imply that the amendment only pertains to the military or collective militias? | No. The intent of the draft was to protect those who objected to bearing arms for religious/moral reasons from being forced by the government to bear arms against their will (essentially making any draft that didn't have consciencious objector allowance from being Constitutional). The line was removed at drafting because it was redundant: The First Amendment protects the free exercise of religion and barrs the government from declaring religious tennents illegal without a very compelling government interest... the government making war was not compelling enough of an interest to force religious pacifists to take up arms for the government... better that the U.S. should suffer military defeat than violate the beliefs in individual liberty. It does not imply that the 2nd amendment was intended for military purposes, but rather for self-defense purposes (at the time, militia meant the able bodied men of a community who could muster to defend from attackers. While we think of the "Wild West" in terms of the Modern West of the U.S., in 1789 when the Bill of Rights was being drafted, the "Wild West" were the western most parts of the states that we today think of as the "East Coast" the French and Spain/Mexico and the British controlled much of what is West of the Appalachian Mountains today. The "wild west" was closer to home than we tend to think of it and people did live far enough into the wilderness that the "community" that could form the militia might just be the patriarch of the homestead. It was so important that not only did the founders think to make sure that the right to weapons was essential, not only did they draft this having just exited a sucessful war where their troops were just that and an armed rebellion that was even fresher in their mind, the match that ignited the powder keg of the Revolutionary war was the British attempting to sieze weapons from Lexington and Concord that the people in those towns needed for survival. The "Shot Heard 'Round the World" was shot over the right of the colonists to keep and bear arms and the founders were well aware of what they were fighting for. To further validate the individual right to the people, President Thomas Jefferson, who had a hand in writing the Bill of Rights, when asked about if this allowed a merchant to place cannons on his ship, responded with essentially "That's the reason I wrote the Amendment in the First Place." | In most states, the answer would be less clear, as First Amendment protections begin falling away quickly when you enter private property. In California, though, there is some strong precedent indicating that this behavior would be protected. In Robins v. Pruneyard Shopping Center, 23 Cal. 3d 902 (1979), the California Supreme Court held that "the soliciting at a shopping center of signatures for a petition to the government is an activity protected by the California Constitution." That case adopted the reasoning of a dissent in a previous case where the court had rejected such an argument: It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations ... would not markedly dilute defendant's property rights. I'd bet there is case law addressing religious leafleting, as well, but I don't know California law well enough to cite to it. Even if there isn't, though, the First Amendment's requirements of content-neutrality in government decisionmaking would probably require that the same protections be extended to religious speech. Of course, the answer to these kinds of questions always depends on the specific facts, requiring you to engage a lawyer to get a reliable answer. For a lower cost, you could also just ask the local police if they would enforce a request from the property owner to have you removed. | Probably not Now, some US constitutional rights do get interpreted very broadly, and it's possible this might be the case here too. But fundamentally, this situation is not equivalent to the security contractors example you mentioned. The crux is that Facebook already has every right to delete your posts for whatever reason they want. A security contractor does not have any intrinsic right to conduct searches (warrantless or otherwise) on your person, residence or effects. Facebook can choose, at their sole discretion, to delete all your posts, delete none of your posts, or delete some of your posts according to whatever metric they came up with. In this case, the metric is 'did the government flag this as misinformation'. The government isn't censoring you - Facebook is, and Facebook is allowed to do that (they happen in this case to be following the government's advice on what specifically needs censoring, but where they choose to get their advice is also purely their business). A security contractor, by contrast, can't do much of anything to you, except when they have been specifically deputized by the government to do so by some legal process. If this happens, then they are said to be acting 'under color of law', and suddenly First (and Eighth, etc) Amendment restrictions do begin to constrain their actions. Facebook is not getting any kind of state power delegated to them, and thus they aren't considered to be acting 'under color of law'. They aren't doing anything they were not already allowed to do. | So can Congress itself just declare someone guilty of insurrection and bar them from standing in elections, without that being considered a bill of attainder? No. Even if it isn't a bill of attainder, the Congress can't do that. Or do they have to delegate the finding of fact (in re insurrection) to another body, e.g. to the judiciary? The issue would be presented when someone ran for public office and their qualifications were challenged, and would be resolved by state and local election officials, subject to judicial review. If that was not done, Congress could nonetheless refuse to recognize a state certification of someone's election on these grounds. | Wooden made two arguments to suppress the evidence, first that he had not consented to the officer entering his house (the officer and the court disagreed) and the second that even if the officer's entry had been legitimate, the evidence wasn't legitimate because of the Fourth Amendment: Much of Wooden’s challenge turns on the fact that Mason was neither in uniform nor identified himself as a police officer. Both are true. But generally speaking, neither amounts to improper deception in the Fourth Amendment context. United States v. Baldwin , 621 F.2d 251, 252–53 (6th Cir. 1980) (citing Lewis v. United States , 385 U.S. 206, 211, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966) ). Nor did Mason take any affirmative steps to attempt to deceive Wooden regarding his identity. Mason was silent as to his official position; he did not hold himself out to be anything he was not. He merely asked to speak to Harris and then asked if he could come inside, to get out of the cold. Probably relevant also is that the officer didn't "search" for the rifle that prompted the arrest. Wooden picked it up in plain sight, the search of Wooden's person that revealed the second firearm was done as the officer arrested him for the rifle and the subsequent search of the house was carried out with the consent of the other resident Janet Harris. | 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). | In Grosjean v. American Press Co., 297 U.S. 233, SCOTUS held that A corporation is a "person" within the meaning of the due process and equal protection clauses of the Fourteenth Amendment Citizens United v. FEC, 558 U.S. 310 and numerous preceding cases find that "the First Amendment applies to corporations". Corporations also enjoy the right to contract (protected by the Contract Clause), meaning that the government cannot willy-nilly invalidate a contract because one of the parties is a corporation, see Trustees of Dartmouth Coll. v. Woodward, 17 U.S. 518. (But, of course, any government can regulate any contract by process of law). In general, under 1 USC 1, In determining the meaning of any Act of Congress, unless the context indicates otherwise...the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals We know that corporations do not have the right to vote. Second Amendment corporate rights are district-specific at present: Seventh Circuit courts view firearms sellers like booksellers — as holders of constitutional rights. While gun sellers are subject to much stricter regulation than are booksellers, they are both protected by the Bill of Rights. Conversely, in the courts of the Fourth Circuit, gun sellers have no Second Amendment rights. Third Amendment rights are unknown. Engblom v. Carey, 677 F.2d 957 which is binding only in a few states, is the entirety of 3rd Amendment case law and does not enter the relevant legal territory. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, the court held that The Fourth Amendment protects a corporation and its officers from compulsory production of the corporate books and papers for use in a criminal proceeding against them when the information upon which the subpoenas were framed was derived by the Government through a previous unconstitutional search and seizure, planned and executed by its officials under color of a void writ, provided the defense of the Amendment be seasonably interposed, and not first raised as a collateral issue at the trial of the indictment. The article "A Corporation's Right to a Jury Trial under the Sixth Amendment", 27 U.C. Davis L. Rev. 375 explores the question of Sixth Amendment rights of corporations esp. the right to trial by jury – the summary is that this has yet to be clearly determined. US v. Troxler Hosiery Co., 681 F.2d 934 finds such a right as does United States v. R. L. Polk and Co., 438 F.2d 377 A corporation does not have the same right not to incriminate itself as does a natural person, but it does enjoy the same rights as individuals to trial by jury. However, corporate trial-by-jury rights are buried deep in questions about the "seriousness" of the prosecution. Muniz v. Hoffman, 422 U.S. 454 held that "Petitioners are not entitled to a jury trial under 18 U.S.C. § 3692", but this is about a specific statute and a question of whether the offense is petty, and the broad constitutional question remains. The right to an attorney seems to be secure, see this opinion by Merrick Garland, and citations therein. | Yes, A First Amendment defense would apply. This is no longer a crime. Schacht In Schacht vs. United States, 398 U.S. 58 (1970) the US Supreme Court held the final clause of 10 USC 772(f) unconstitutional on just this ground. In that case anti-war protesters rehearsed and performed a skit in which soldiers shot and killed a character dressed as a member of the Vietcong, only to discover and proclaim that the character was a pregnant woman. One of them, Daniel Jay Schacht, was indicted in a United States District Court for violating 18 U.S.C. 702, ... He was tried and convicted by a jury, and on February 29, 1968, he was sentenced to pay a fine of $250 and to serve a six-month prison term, the maximum sentence allowable ... In the opinion by Justice Black, the Court held; This clause on its face simply restricts 772 (f)'s authorization to those dramatic portrayals that do not "tend to discredit" the military, but, when this restriction is read together with 18 U.S.C. 702, it becomes clear that Congress has in effect made it a crime for an actor wearing a military uniform to say things during his performance critical of the conduct or policies of the Armed Forces. ... ... it follows that his conviction can be sustained only if he can be punished for speaking out against the role of our Army and our country in Vietnam. Clearly punishment for this reason would be an unconstitutional abridgment of freedom of speech. The final clause of 772 (f), which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment. To preserve the constitutionality of 772 (f) that final clause must be stricken from the section. Hamilton In United States vs Hamilton (2012) the US Fourth Circuit Court of Appeals limited 18 U.S.C. § 702 (wearing a military uniform without authorization), and 18 U.S.C. § 704(a) and (d) (wearing military medals and other insignia without authorization). Hamilton had, among other actions, appeared at a Vietnam Veterans’ Recognition Ceremony in the dress Uniform of a Colonel of US Marines, wearing numerous medals and awards including two Navy Crosses, four Silver Stars, one Bronze Star, and seven Purple Hearts. He had in fact been medically discharged years earlier with less than 1 year of service, after an accident to his hand, with the rank of Private First Class (PFC). He had not been awarded any of the medals or decorations that he wore. (He had previously been apprehended on military bases three times wearing the uniforms of a colonel (once) and a lieutenant general (twice), but was not charged on those occasions.) The Fourth Circuit wrote: We observe that the Ninth Circuit applied such a limiting construction to Section 704(a) in United States v. Perelman, holding that the statute created a criminal offense prohibiting the unauthorized wearing of military medals only when the wearer "has an intent to deceive." (658 F.3d at 1137-38) In our view, the imposition of a limiting construction requiring an "intent to deceive" is appropriate with respect to both Sections 702 and 704(a). ... Accordingly, we hold that persons violate the insignia statutes if they wear a military uniform without authorization, or wear military medals or imitations of such medals, respectively, only when they do so with the intent to deceive. The Fourth Circuit went on to hold these provisions constitutional when so limited, and to uphold the convictions under them, quoting Schacht is support of this holding. |
Could parents sue a school district to force them to improve their teaching methods? Is it possible for parents of public school students to successfully sue School District to demand certain improvements in online education? It seems that some school districts abuse their monopoly and use Covid-induced online education to drastically reduce the number of hours they teach, including "self-study" days with no instruction whatsoever. Town halls with district superintendent and board is useless: the parents' comments that must be submitted in writing are sometimes ignored and sometimes answered with provable misinformation. Could a class action against a school district succeed? An action aimed at forcing the school district to either improve substantially the quality of education or to compensate parents forced to enroll their kids into private schools? If this is a no-go, what other means are possible to influence the school district? | It is possible: McCleary v. Washington is an example. Ground zero was the 2012 ruling McCleary v. State, 173 Wn.2d 477, which then took 6 years of further scuffling to resolve. That opinion is full of useful legal tidbits, but the argument boils down to a constitutional obligation (art. IX) for the state to provide an education. If your state has no constitutional provision mandating that the state provide an education, you may be out of luck. I should point out, though, that the issue reduced to funding and not content / method: that the state used to use a "local pots of gold" model rather that a "big pot of gold" model, and even then came up short of the funds required to do what they were supposed to do. The "argument" was, simply, "We can't can't agree on an affordable means of implementing this system", and subject matter or instructional methods were not debated. A lawsuit will be completely ineffective over a dispute about best methods. Since at least in Washington, school policy is set by an elected set of school officials, the only solution is to pick better individuals next time. Recall is not an option, except in the case of misfeasance or malfeasance – improper acts, not errors of judgment. But I would not totally discount the skills of a clever attorney to make the case that so-and-so is a violation of a constitutional duty, depending on what your constitution demands w.r.t. education. The constitutional provisions of Washington vs. California are significant. In Washington, It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex. and the Supreme court found that The State has not complied with its article IX, section 1 duty to make ample provision for the education of all children in Washington. Most of the education article is about the funding obligation, which is the legal point on which the Legislature was held in contempt. The California Constitution imposes a weaker duty on the legislature: A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement. The vast majority of the constitutional provisions in California are about electing and paying administrators, so there is little basis for arguing that a California school district has not encouraged such improvements. There is no "quality" requirement, just a desideratum to encourage improvement. | 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. | General Resource: the U.S. Department of Education puts out a nice compendium of the various state laws. Below are my jurisdictions. Illinois: (105 ILCS 5/10-22.6) In brief, school administrators may be delegated the authority to suspend students for gross disobedience or misconduct without consulting the board or the parents. In this case they must notify parents of the suspension, forward a full statement of reasons for the suspension, and notify the parents of their right to have it reviewed by the board. Expulsions, on the other hand, require a hearing at the board. Much of the due process for suspensions came frome Goss v. Lopez, 419 U.S. 565 (1975). Of interest, language changes took effect in 2011 authorizing suspension for gross disobedience or misconduct using electronic means. North Carolina: (NCGS 115C) In particular, Article 27 deals with discipline. The law distinguishes between short-term, long-term, and 365-day suspensions (...the latter is for firearm possession). This is a fairly good summary of NC School Discipline Laws and Regulations (prepared by ed.gov), while this is a good summary of the governing case law. | 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). | This page sums up the state of federal law regarding sex segregation and schools. There are various "separate but equal" provisions under the law, for example Boys State or Girls State are not outlawed, there is no requirement for co-ed PE class. But as far as I can see, a school field trip to hear the Petaluma Symphony Orchestra could not be limited to only females (or only males). It's not clear what you mean by "host", or whether the event is educational (the law doesn't say that everything a school does has to be sex-neutral, it prohibits "discrimination under any education program or activity receiving Federal financial assistance"). | Is there something in the language of the act that makes sexual harassment a civil rather than a criminal offence? Yes. Laws that create criminal offenses have to have language to the effect of "violation of this law is punishable by up to X years of imprisonment or a fine of up to $Y", or "violation of this law is a Class Z felony." Sometimes it is not entirely clear if violation of a law can form a basis of a private civil lawsuit, or if it can only be enforced by government officials, from the language of the statute alone. When it is unclear the courts have to resolve that ambiguity. In rare instances, it may be clear that some parts of a statute have criminal penalties, but due to unclear wording and punctuation in the statute, it is hard to tell precisely which parts of the statute these criminal penalties apply to, and in those cases, courts also have to resolve that ambiguity. There is also some conduct that it is constitutional to punish with a civil penalty, but not as a crime that can result in incarceration. For example, it is unconstitutional in most states to incarcerate someone for failing to pay a debt, but there can be a civil penalty for failing to pay a debt. Courts decide if these constitutional limitations are violated. Similarly, while Congress can enact both crimes and civil penalties, there are some governmental bodies, like school districts or water boards, that have the power to enact certain civil penalties, but do not have the authority to create new crimes. Was that up to the lawmakers to decide, or is that just something that evolved out of the ways the courts and prosecutors responded to sexual harassment claims? And who decides such things in general? Generally, this is decided by lawmakers. Obviously, however, anyone can lobby legislators to take one position or another. Also, the fact that something has a civil penalty does not necessarily mean that prosecutors aren't the people who enforce the law. Sometimes violations of the law prosecuted by prosecutors have civil rather than criminal penalties. For example, many tax law violations are prosecuted by government lawyers with civil penalties, but only a small minority of tax law violations are prosecuted criminally. Further, it isn't uncommon for a type of offense, like securities fraud, to have both civil penalties and criminal charges available as remedies that can be enforced by prosecutors. And, when that happens, prosecutors get to decide which tool to use. For example, even if exactly the same conduct could be prosecuted with either a civil penalty or a criminal charge, prosecutors might prefer a civil penalty because the burden of proof is much lower, the 5th Amendment protection against self-incrimination does not apply (you can refuse to testify but that fact can be used against you in a civil penalty case), and a defendant in a civil penalty case doesn't have a right to a lawyer at government expense. Also, enforcing a civil penalty generates net revenue for the government most of the time, while criminal punishments normally cost the government more money to carry out than any revenue the government may receive from the person found guilty for fines and court costs. On the other hand, trying to enforce a significant enough civil penalty to discourage misconduct against someone who has no money or property may be a futile effort, while criminal sanctions could discourage misconduct from other similarly situated people in the future. | Leonard's law says that the school can restrict speech if it is against the religious tenets of the organization. Now I don't think school uniforms fall are part of the tenets of Catholicism, so why can private schools enforce dress codes? I see there's a misunderstanding of the Leonard's law. But I fault the California legislators (not you) for that confusion, since the statutory language is ambiguous and leads to the reasonable interpretation your inquiry reflects. The statute reads: (c) This section does not apply to a private postsecondary educational institution that is controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization. It is not that a religious school is allowed to restrict speech if it contravenes the tenets of that religion, but that the statute altogether is inapplicable to religious schools because it is considered an infringement of fundamental liberties to which religious institutions are entitled in the US. The [religious] school would prevail on the basis of the ecclesiastical abstention doctrine. See Dermody v. Presbyterian Church (U.S.A.), 530 S.W.3d 467, 474 (2017): The ecclesiastical-abstention doctrine prohibits courts from deciding cases "dependent on the question of doctrine, discipline, ecclesiastical law, rule, or custom, or church government[.]". (Please note that I strongly disagree with the application of that doctrine in the Dermody case and I consider it impermissibly outdated for the controversy litigated therein, but that is a separate issue). A religious school could convincingly argue that the judicial review of its uniforms policy infringes matters of ecclesiastical discipline/rule/custom, aspects which ultimately "involve an internal church dispute over religious authority or dogma" Roman Cath. Archbishop of LA v. Super. Ct., 32 Cal.Rptr.3d 209, 220 (2005). Infringements of ecclesiastical abstention and akin doctrines would be outweighed only in "compelling" [cases] because "the duty to prosecute persons who commit serious crimes is part and parcel of the government's `paramount responsibility for the general safety and welfare of all its citizens'" Roman Cath. Archbishop of LA v. Super. Ct. at 225 (brackets added in this answer). A free speech controversy such as the school's uniform policy simply does not meet that threshold. | In the US, detention does not add anything: we can generalize the principle to any time when a student is in the custody of the teacher (classroom, field-trip, sporting event...). One question, for the scenario that you describe, is whether the injury was foreseeable. Suppose the injury is an abdominal aortic aneurysm – this is not foreseeable. The question that the court would ask is whether a person exhibiting reasonable caution and care would know that there is a possibility that the child has some condition. The details regarding this condition "not being easily noticeable" are essential to the outcome of the case. A child coughing up blood should be immediately treated medically, it is not reasonable to assume that a child who sneezes (once) is in imminent danger. The teacher's response is also important, and again this is a very fact-intensive inquiry. A child who has a heart attack should not be told "go talk to the nurse" (let's assume that the teacher correctly notices that this is a heart attack happening), 911 is the correct (minimal) remedy. Perhaps using the auto-defibrillator also part of the reasonable standard of care for a teacher (assuming there is one, and that the teacher has been trained how to use it). Then finally, the teacher is not liable if their actions / inactions don't cause the injury. In the case where a student suddenly dies, the fact that the teacher didn't somehow prevent the death doesn't make the teacher liable. But if the child is bleeding and the teacher decides "We can deal with this when detention is over" and the child bleeds to death in the interim, we would conclude that the teacher's lack of care caused the child's death. The school might also be liable on various grounds, for example if the school has no nurse and has no practical way for the teacher to contact emergency medical services. Some school policy which unreasonably restricts the teachers exercise of reasonable care could make the school liable. At any rate, "the child died" does not cause absolute liability, what confers liability is the actions and inactions of a party. |
Does a state Department of Revenue typically have access to your property / home? Here's an interesting one, the Department of Revenue (Montana) shows up on your property. They seem nice, and they want to measure your house / walk around in it etc. It's still under construction. This happens several times when I'm not around and I hear from my contractors; "some guy is here measuring, should we make him leave?" I validated the individual. He is from the state department of revenue. I'm not trying to avoid taxes, but I guess I would have expected the typical process to be a bit different. When I called and asked, they claimed that because there are no building codes in my area, and thus no filing of permits etc., they have field agents who simply drive around and check out material changes. I let them know it is private property and they blatantly stated they would enter without my permission, anytime they see something of note. Now, I live where I live for a reason: Privacy being a very big chunk of the reasoning. My question: I realize this might be state constitution specific, but can I deny entry to the State Revenue Department? Mainly, I would prefer that they work a time out. I can even send them building plans and pictures. However, being told that they have unfettered access and rights to my private property seems insane. When this individual was here last, there were crews working over-head setting trusses. I cannot guarantee their safety and I see no reason I should have to. Is this just one of the many areas where our property rights no longer apply and we have zero expectation of privacy? | MCA 15-7-139 says (1) Subject to the conditions and restriction of this section, the provisions of 45-6-203 do not apply to property valuation staff employed by the department and acting within the course and scope of the employees' official duties. (2) A person qualified under subsection (1) may enter private land to appraise or audit property for property tax purposes. (where 45-6-203 is the law against trespassing). There are some additional subsections about giving notice. You can prevent them from entering, and then (6) If a landowner or the landowner's agent prevents a person qualified under subsection (1) from entering land to appraise or audit property or fails or refuses to establish a date and time for entering the land pursuant to subsection (5), the department shall estimate the value of the real and personal property located on the land. which then makes it (mildly) harder to correct an over-estimate: (7) A county tax appeal board and the state tax appeal board may not adjust the estimated value of the real or personal property determined under subsection (6) unless the landowner or the landowner's agent (a) gives permission to the department to enter the land to appraise or audit the property; or (b) provides to the department and files with the county tax appeal board or the state tax appeal board an appraisal of the property conducted by an appraiser who is certified by the Montana board of real estate appraisers. The appraisal must be conducted in accordance with current uniform standards of professional appraisal practice established for certified real estate appraisers under 37-54-403. Nothing in the law sanctions unfettered repeated access. | I suspect that the statute in question may be Section 11-104(1)(F) of municipal ordinances of the Town of Bloomsburg, PA, a university town (home to Bloomberg University of Pennsylvania, a public college) that purports to have special need for regulation based upon the large number of student rentals in the town and apparently applies primarily to house rentals to students. (If not, the ordinance in question may be modeled on this one, or this one may be modeled on the ordinance in question.) This ordinance imposes the following duties on people who have been granted landlord licenses, which the town requires of most landlords renting to students (a landlord is called the "owner" in the ordinance): The owner shall maintain a current and accurate list of the occupants in each regulated rental unit or dormitory unit which shall include their name, permanent address and permanent telephone number which shall be available to the Town for inspection upon reasonable notice. The owner shall notify the Town of changes in the occupancy within 10 days of the change and shall provide the name of the person who is not longer residing in the premises in the event a person departs and the name, permanent address and permanent telephone number of new occupants in the event a new person is added. On its face, this is probably valid. There is not a constitutional right to keep your own contact information or address, or your tenant's identity. Indeed, very similar requirements are routinely imposed upon operators of hotels and motels. And, I strongly suspect that in Pennsylvania, that towns of any reasonable population have more or less plenary authority to adopt ordinances that aren't specifically prohibited by other state or federal laws or constitutions or the town charter. I do not believe that there are any federal statutes that prohibit a town from imposing such a requirement, barring extraordinary circumstances like a duty to cooperate with national security measures, witness protection programs, or a federal organized crime investigation that don't benefit the average tenant. The kind of privacy policy and privacy disclosure laws in place at the national level apply mostly to health and financial information (and far more in Europe), but not generally to legally mandated disclosures of landlords to local governments. The requirements of a privacy policy don't apply here. The main federal privacy laws and some of the most notable state privacy laws are: The Children's Online Privacy Protection Act (COPPA) which affects websites that knowingly collect information about or targeted at children under the age of 13. Any such websites must post a privacy policy and adhere to enumerated information-sharing restrictions COPPA includes a "safe harbor" provision to promote Industry self-regulation. The Gramm-Leach-Bliley Act requires institutions "significantly engaged" in financial activities give "clear, conspicuous, and accurate statements" of their information-sharing practices. The Act also restricts use and sharing of financial information. The Health Insurance Portability and Accountability Act (HIPAA) privacy rules requires notice in writing of the privacy practices of health care services, and this requirement also applies if the health service is electronic. The California Online Privacy Protection Act of 2003 – Business and Professions Code sections 22575-22579 requires "any commercial websites or online services that collect personal information on California residents through a web site to conspicuously post a privacy policy on the site". Both Nebraska and Pennsylvania have laws treating misleading statements in privacy policies published on websites as deceptive or fraudulent business practices. But, most of these laws apply only to Internet sharing of information by private firms, and the Nebraska and Pennsylvania laws don't require anyone to actually have a privacy policy. Those laws certainly don't pre-empt local ordinances. There is at least one state law that should supply an exemption to this statute in Pennsylvania pertaining to confidentiality for domestic violence victims that should override contrary town ordinances. Address Confidentiality Program (ACP): Victims can get a legal substitute address (usually a post office box) to use in place of their physical address; this address can be used whenever an address is required by public agencies. First class mail sent to the substitute address is forwarded to the victim's actual address. Probably the most fruitful means by which an ordinance like this one could be challenged would be to argue that the true intent of the ordinances when adopted or as it has been subsequently applied, is to use it for a purpose that the town is not allowed to engage in, such as enforcing immigration laws, suppressing voting rights, imposing a de facto poll tax, or engaging in discrimination against a protected class in violation of state and federal fair housing laws. College students, however, the expressly stated and plausible target of the ordinance, are not generally a protected class under fair housing legislation. There are precedents upholding zoning regulations discriminating against households of "Dwelling units presently being used by three or more unrelated individuals" aimed at students and other kind of populations whom municipal busybodies often find to be undesirable against federal constitutional challenges. See, e.g., Moore v. East Cleveland, 431 U.S. 494 (1977) and Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). California's courts have been more hostile to this kind of legislation. See, e.g. City of Santa Barbara v. Adamson, 27 Cal. 3d 125 (Cal. 1980) (an op-ed arguing that this was wrongly decided in the L.A. Times in 1990 is here), but that isn't very helpful in Pennsylvania, and California rather than Pennsylvania is the outlier nationally on this kind of issue. The general issue over free association and privacy rights in connection with housing and unrelated individuals is discussed in an up to date manner in a 2016 Florida Law Review article. Proving an improper purpose in an as applied or legislative intent based challenge to a facially neutral statute is very, very difficult in all but the most blatant cases (e.g. when town council members openly proclaim their improper purpose is that true purpose of the law). No doubt recognizing the possibility of such a challenge to the ordinance, this particular ordinance has a particularly lengthy and detailed legislative declaration regarding its purpose that no doubt is an effort to take a position that it has a proper purpose in the event of future litigation. This states: It is the purpose of this Part and the policy of the Town Council of the Town of Bloomsburg, in order to protect and promote the public health, safety and welfare of its citizens, to establish rights and obligations of owners and occupants relating to the rental of certain dwelling units and dormitory units in the Town of Bloomsburg and to encourage owners and occupants to maintain and improve the quality of rental housing within the community. It is also the policy of the Town that owners, managers and occupants share responsibilities to obey the various codes adopted to protect and promote public health, safety and welfare. As means to those ends, this Part provides for a system of inspections, issuance and renewal of occupancy licenses and sets penalties for violations. This Part shall be liberally construed and applied to promote its purposes and policies. In considering the adoption of this Part, the Town of Bloomsburg makes the following findings: A. While the Town Council of the Town of Bloomsburg acknowledges the significant contribution that Bloomsburg University, its students, faculty and staff makes to the culture and economy of the Town of Bloomsburg, in recent years, adverse effects of student housing on residential neighborhoods have increased and there has been an increase in destructive student behavior that threatens the health, safety and welfare of the student citizens and non-student citizens of the Town of Bloomsburg. B. Accordingly, the Town Council of the Town of Bloomsburg makes the following findings relating to student housing and its effect on the residential neighborhoods of the Town of Bloomsburg and the effect of student lifestyles on the health, safety and welfare of the student citizens and non-student citizens of the Town of Bloomsburg: (1) When compared to other unrelated cohabitating individuals and traditional families, groups of students have different hours, work and social habits and frequently cause noise, disturbances and problems in residential neighborhoods. (2) There is a greater incidence of violations of various codes of the Town at residential properties where owners rent such property to students. (3) There is a greater incidence of problems with the maintenance and upkeep of residential properties where owners rent such property to students than at owner-occupied residential properties, family-occupied residential rental properties or residential properties that are occupied by unrelated persons who are not students. (4) There is a greater incidence of disturbances which adversely affect the peace and quiet of the neighborhood at residential properties where owners rent to students than at owner-occupied residential properties, family-occupied residential rental properties or residential properties that are occupied by unrelated persons who are not students. (5) A concentration of student homes changes the character of a neighborhood from one with traditional family values to one that cannot maintain those and approximately 90% of the Town's student homes are concentrated in two areas of the Town which displaces middle and lower income housing by absorbing housing units and rendering the remaining units less desirable for more traditional residential use. (6) Since 1994, nine students have died as a result of fires in houses occupied by students; two students have died of alcohol overdose; one student has died as a result of exposure when he fell from a porch at a student party. (7) Since 1997, 155 reports of disruptive conduct under the Town's Regulated Rental Unit Occupancy Ordinance involving student behavior have been filed. (8) Since 1996, 73 prosecutions for unlawfully occupying premises while smoke or fire detectors were not operational have been filed against students. (9) Since 1998, 295 prosecutions for underage drinking have been filed against students and 11 prosecutions were filed against non-student residents of the Town of Bloomsburg. (10) Since 1998, 43 student parties have been raided where arrests were made for underage drinking and furnishing alcohol to minors. (11) There are sufficient differences between student housing and nonstudent housing and the behavior of students and non-student residents to justify different regulations for each class of resident. (12) Dwelling units presently being used by three or more unrelated individuals are being modified for occupancy by two students requiring the relocating of bearing walls and the modification of utilities, sanitation facilities, means of ingress and egress and smoke and fire detection systems. (13) Inspections of dwelling units occupied by two students have revealed little or no life protecting equipment in the dwelling units such as smoke and fire alarms and detectors and fire extinguishers, over-loaded electrical services, heating systems needing servicing and the use of supplemental heaters, all of which create a dangerous living environment. (14) There is a significant occurrence of disruptive behavior in dwelling units occupied by less than three unrelated students as compared to dwelling units that are occupied by owners, traditional families or unrelated persons who are not students. (15) Students who remain in the occupancy of the premises for periods of time after they are no longer students contribute to the above-described problems. (16) Because of the demand for student housing in the Town of Bloomsburg, developers have expressed interest in developing properties for use as dormitories where students live in rooms without fixed kitchen facilities. (17) Dormitory type uses are not covered by the Regulated Rental Unit Occupancy Ordinance which applies only to dwelling units. (18) The Town Council of the Town of Bloomsburg is desirous of providing the same protection and standards for students who reside in dormitories or dwelling units. (19) The Town Council of the Town of Bloomsburg is desirous of imposing the same responsibilities upon owners of dormitory units and dwelling units where students reside. (20) The Town Council of the Town of Bloomsburg finds that Bloomsburg University has sufficient resources and interest to properly manage dormitories owned by it and there is no need to regulate such dormitories. Even though it probably isn't inherently invalid, it is unusual, so it is likely to be challenged if someone can find an angle to do so. And, I suspect that its purposes are not as pure as those formally identified in the text of the ordinance. In conclusion, while I would totally hate to have an ordinance like that one in my town, it isn't obviously invalid and would probably survive a facial challenge in the absence of evidence that is was being applied in an illegally discriminatory manner. | 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" | There is no mailbox-specific law. You can take pictures in public, and you can put a camera to take pictures on your property. Whether you can install a camera in a particular place depends on who owns that place. Of course, you also can't aim it to peer into a nearby residence; and it has to be a video-only camera (unattended recording of audio is illegal without the consent of the thief). In some cases, mega-boxes are owned by the USPS so you would need USPS permission. There is a widespread false narrative that the USPS owns all mailboxes, but the USPS does not say that nor does the US Code. USPS describes two kinds of cluster-boxes, private and USPS-owned. The USPS offers no statements on permission or its denial to install a cameras inside a USPS-owned box, so you would have to ask the local post office in case your box is USPS-owned. | 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. | Not a lawyer, but: In many countries, a purchased item is your property once you removed it from the premises of the seller. In practice, this rarely makes a difference. You have entered a contract with the seller where the seller has to deliver the product, and you have to pay the money, you did your part, they have to do their part. There would be a difference if the item was stolen while in the store, or damaged by fire, or if the store went bankrupt and bailiffs took the item. If these rules apply in your country, then what they did is not theft, otherwise it would be theft (in all countries, if the store removed the door from your home after it is installed, that would be theft). You paid for a door, the store owes you a door. You have a legal contract. Both sides are bound by that legal contract. They have to do what the contract says (delivering the door that was displayed in the store), if they can't, then they have to do the nearest thing that isn't to your disadvantage, like delivering a new door. Or possible a different door that was on display. They can't just declare your contract invalid because it suits them better. That wouldn't be the case if this would put the store at an unacceptable disadvantage. For example, if thieves had broken into the store and stolen ten doors, including yours, the store might get away with returning your money. Since they intentionally sold your door again to someone else, I don't think they could use this as an excuse. I'd go once more to the store and ask them whether they want to deliver a door to you, according to your contract with the store, or if they want you to get a lawyer. A letter from a lawyer might work wonders. (Or of course the lawyer might tell you that I'm completely wrong, but they don't know that, so telling them that you will hire a lawyer might be enough). | Suppose I live in State A, but am on vacation to State B. While on vacation, suppose someone living in State C, but currently in State D, accesses my bank account to take money out illegally. The bank has a central headquarters in State E, although my branch of the bank is in State F. In which of these states could I file a lawsuit? Any of them? All of them? The thief would be the defendant in a lawsuit brought by you. The fact that you are on vacation in State B is irrelevant. You can always sue someone where they are domiciled, so State C is one forum where you could sue the thief. You can also always sue a natural person (as opposed to an entity) in a State where they are physically served with process, so if a summons from the courts of State D were served upon the thief while the thief was in State D, then State D could handle the case. You could also probably sue in State A on the grounds that intangible property is deemed to be located where the owner is domiciled and the theft of intangible property was a harm directed a State A. But, there is an argument that if the thief has no way you knowing that you lived in State A as opposed to State F where your branch is locate, that the thief's actions were targeted at State F. State E would not be a very plausible state to argue that there is jurisdiction. A federal district court has geographic jurisdiction only over cases that could be heard in the state courts of the state where it is located, so a federal court case would be brought only in the states where a state lawsuit could be brought. A federal court cases would either have to seek at least $75,000 (since there is diversity of citizenship between you and the thief), or would have to state at least one theory arising under federal law (which might or might not apply to this case). The you can choose which state to file in from those that are available. Which of these states could file charges against the person? A state can prosecute if the crime happened there, or if the crime caused a harm there. In this case the answer to both of those questions could be muddy. Basically, State A or F is probably where the crime caused harm, and it isn't clear from the OP facts where the crime was committed by the thief (we only know where the thief is now). These acts would also probably violate some federal crime that could be prosecuted in federal court, mostly likely the federal courts in State A or State F. Which of these states could file charges against the person? Could the federal government file charges as well? Would more than one prosecution violate the double jeopardy clause of the Fifth Amendment? What if these were countries instead of states? The double jeopardy clause applies to prosecutions within a single U.S. state, and in addition to any state prosecutions, a single prosecution can be made at the federal level. Likewise, prosecutions in different countries do not count against each other for purposes of a double jeopardy clause. Many U.S. states have a binding or non-binding policy of not prosecuting crimes that have already been prosecuted by another U.S. state or by the federal government, the U.S. Justice Department likewise has a non-binding policy of not prosecuting cases which have already been prosecuted by a U.S. state or another country. But these policies do not have constitutional dimensions and are not required by the 5th Amendment. if I use a Canadian Wi-Fi network without authorization from within the United States, would US or Canadian law apply? In criminal cases, choice of law and jurisdiction over the case are the same thing, because a state or country can only apply its own criminal laws. In civil cases, choice of law is a question distinct from jurisdiction. A court applies the law with the most significant connection to the disputed legal issue in question (sometimes more than one set of laws in a multi-issue case), even if it is the law of a different state or country, which is a standard that affords a judge considerable discretion. Either U.S. law or Canadian law could be plausible to apply in this case depending on the detailed circumstances and the legal issue that is disputed. | Give the contract language now included in the question, it seems that payment is not due until after the invoice is submitted. I don't see any obligation on the homeowner's part to prompt the contractor to submit the invoice, nor to pay until it is submitted. It might be well to keep a sum reserved so that a late invoice will not find the homeowner with a cash flow problem leading to a default, which could allow the contractor to claim damages or file a lien. But I don't see how a lien can be field before the invoice is delivered, because the payment is not due until 30 days after the invoice date, and no lien can be field until payment is overdue. It seems that the warranty on the work is not in effect until after final payment is made. If there is any reason to consider a warranty claim, it might be desirable to get and pay the invoice. |
GDPR: What data am I allowed to keep after a user requests deletion? I struggle to find an insightful article on what, specifically, I have to delete and what I don't have to delete when a user requests deletion of their data. Some things are obvious to me: personal information like name, email and any text/images/content they added etc. What's less obvious to me: Do I have to delete our internal user ID (never shown to anyone on the platform, except possibly to the user themselves)? Do I have to delete statistics about how this - after deletion anonymous - user used the platform, e.g. which pages they visited? They're on our own server. | Art. 17 GDPR, Right to erasure (‘right to be forgotten’) requires “erasure of personal data concerning him or her”. That’s all personal data. However, this only applies when this article applies. Section 1 details when this is and sections 2 and 3 detail limitations and exceptions to the right of erasure. For example, you would be allowed to keep financial records that you're legally obligated to keep. So, if they have the right, you have to delete all their personal data that is not exempted. Aggregate statistics and other anonymous data in the sense of Recital 26 are not personal data and don't have to be deleted. Whether the kinds of data you have mentioned would be sufficiently anonymous would require further analysis. | The intention of the GDPR is to minimize the amount of personally identifiable information (PII) you store. So the GDPR never tells you that you have to log certain events. The simplest way to make sure you comply with the GDPR is to simply not store any PII at all. But that might of course conflict with legitimate business interests and with other legal obligations you might have. So when you do store PII, then the GDPR regulates under which conditions you are allowed to store PII, for how long and what you are allowed to do with that PII. So when you receive a GDPR request from a customer to see their data, then you can say that you only have that one timestamp of their registration, because you didn't log their subsequent logins (assuming this is the truth). I hope your privacy policy says that you store all that PII on registration and that you have some good arguments why storing that information is a "legitimate interest" of your organization. | Artice §12(5) GDPR limits the right to access: Information provided under Articles 13 and 14 and any communication and any actions taken under Articles 15 to 22 and 34 shall be provided free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may either: (a) charge a reasonable fee taking into account the administrative costs of providing the information or communication or taking the action requested; or (b) refuse to act on the request. The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request. A request to request the filing that you acted on their request is already excessive, repeated and frequent requests could be acted upon by taking the not-acting steps or sending an invoice before any action is taken. Also, very frequent requests with overlapping times might be answered jointly. It would be good to inform the customer in the last answer granted for free, how often they requested information and that any further answer might incur such and such fees for compiling the information. | I think that one cannot answer a question such as "Will the personal use exception in the GDPR apply to personal blogs?", because it is unclear if you refer to: personal information published on the blog pages personal information collected from the Website, by way of forms, cookies, server logs, strictly collected and processed for the purpose of operating the Website for your own personal purposes as a blogger (by yourself of through a subcontractor in the sense of GDPR) and not personal information collected from the Website's operation, transferred or provided to third parties for their own purposes (this would include cookies used to identify and track users across multiple domains) Regarding 1., a personal blog wanting to benefit from the exemption should not publish third party's personal information without their consent or another legal basis, and C-101/01 certainly applies here. About 2., if the information is strictly collected and used for the own personal purpose of the operation of the blog, I would tend to agree that it should benefit from the exemption. I feel that C-212/13 would not necessarily be an indication that because the blog is publicly accessible it is then "directed outwards from the private setting" in the sense of this ruling, and should not be considered as "purely ‘personal or household’ activity". C-212/13 case was relating to a camera installed by an individual on his family home for its own security purposes which was also monitoring a public space. The persons filmed on this public space had absolutely no direct connexion with the person collecting their images. In case of a blog, the visitors of the blog interact with the blog for fulfilling the own personal purpose of the operation of the blog of the publisher of the blog. Another argument is given by the Recital 18 which you quote: a personal blog can be viewed as a type of social networking or related online activity. Finally, about 3., there is no doubt for me that, in this case, the publisher of the blog is engaged in an activity which is not personal, since it willingly provides personal information to third parties which they use for their own purposes (and not as subcontractors in the sense of GDPR). There may be other approaches apart from these 3, but that's a start for your considerations. | There’s no definitive list of what is or isn’t personal data, so it all comes down to properly interpreting the GDPR’s definition: ‘[P]ersonal data’ means any information relating to an identified or identifiable natural person (‘data subject’). — Article 4(1) In other words, any information that is clearly about a particular person. But just how broadly does this apply? The GDPR clarifies: [A]n identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. — Article 4(1) This means that because you say that coordinates and anticheat logs are linked to the cheaters ingame username and unique id, if there is a record of who that username and/or unique id belongs to, even if it is just an IP or email address, it is considered personal data because the information relates to an identifiable natural person. Personal data includes any data which can be linked to information where a person can be identified From CommentsIf the online username and unique id is not linked to the actual human (no stored real name, no home address, no IP), can the natural person actually be identified? The records and anticheat logs are linked to the unique id and username, however the unique id and username are (from my POV) not actually linked to the real human Only you can answer that question as it stands because we have no access to your data. From what you have told us, even though the coordinates and anticheat logs are linked to the cheaters ingame username and unique id, that alone doesn’t fall under the GDPR’s scope of personal data, as, in all likelihood, the usename and unique id could relate to anyone in the world. The issue comes if elsewhere you have a record of the person's name, IP, date of birth etc. which when combined with the anticheat logs could link that data to identifiable people. You might think that someone’s name is always personal data, but it’s not that simple, as the UK’s Information Commissioner’s Office document what is personal data (PDF) explains: “By itself the name John Smith may not always be personal data because there are many individuals with that name. However, where the name is combined with other information (such as an address, a place of work, or a telephone number) this will usually be sufficient to clearly identify one individual.” Note: A name which is much less common could be personal data as the likelihood of it relating to others deminishes. John Smith is a common name all over the UK, but what about a particular polish/czech/hungarian/french.... name (let's say) living in Nottingham, UK? What is the likelihood of another person of the same name in Nottingham, UK? Add a middle name or double barrelled surname, and it becomes even more likely that it is personal data. If you’re unsure whether the information you store is personal data or not, it’s best to err on the side of caution. This means making sure data is secure, reducing the amount of data you store, collecting only as much data as necessary to complete your processing activities, keeping data for only as long as it meets its purpose, and ensuring only authorised people are able to access the data. | Well actually... I think you'll just need to wait a little more. I monitor the situation quite closely and I can tell you that it's just a matter of time. Microsoft was one of the first (if not the first) to communicate openly about the GDPR and the changes that follow. From the blog post: If your organization collects, hosts or analyzes personal data of EU residents, GDPR provisions require you to use third-party data processors who guarantee their ability to implement the technical and organizational requirements of the GDPR. To further earn your trust, we are making contractual commitments available to you that provide key GDPR-related assurances about our services. Our contractual commitments guarantee that you can: Respond to requests to correct, amend or delete personal data. Detect and report personal data breaches. Demonstrate your compliance with the GDPR. Microsoft is the first global cloud services provider to publicly offer you these contractual commitments. We believe privacy is a fundamental right. The GDPR is an important step forward to further clarify and enable individual privacy rights and look forward to sharing additional updates how we can help you comply with this new regulation and, in the process, advance personal privacy protections. Microsoft has set up an informational site on GDPR here. If your eyes are on any other provider, I think the only way to learn more is getting in touch and inquiring about their progress and process. Hope this helps. | Overview The GDPR requires data controllers (DCs) to exercise reasonable care when responding to an access, modification, or deletion request, to ensure that it comes from the actual Data Subject (person whose data is involved, here a DS). The GDPR does not specify just what methods must or may be used to ensure that an access (or other) request comes from the DS. It does say, in Article 12, that "additional information" may be requested from the DS by the DC for this purpose that is "necessary to confirm the identity" of the DS. If a DC receives data for identification purposes, it must be used only for those purposes, and retained no longer than needed. Personal Data (PD) in general must be limited according to article 5, so that data is used only for the purposes it was collected for, retained for no longer than needed, adn appropriately secured against unauthorized use or access. The DC is responsible for adhering to these limitations. Recitals 57, 59, and 77 (quoted below) confirm this, and discuss identification. If a DC violates these restrictions, it is subject to the same enforcement as it would be for violating any other GDPR provision. If a DS thinks the data requested to support identification of the DS is excessive, the DS may first complain to the DC, and then to the relevant supervisory authority if the response from the DC is not acceptable (allow at least 1 month for a response). But perhaps knowing that the GDPR forbids the DC from distributing or using this data except for the purpose it was collected, that is, to identify the DS, and from retaining it longer than need be, might offer some reassurance. A DS could also ask the DC what is the minimum data needed for identification, and redact data beyond this. The DC might need more than name and address, but not all that is on a bank statement or other ID document. GDPR Sources Article 12 (section 6) of the GDPR reads: Without prejudice to Article 11, where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 15 to 21, the controller may request the provision of additional information necessary to confirm the identity of the data subject. That includes access requests. Paragraph 1 of Article 11 reads: If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation. Paragraph 1(b) of article 5 specifies that personal data shall be : collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; Paragraph 1(c) of art 5 specifies that such data shall be: limited to what is necessary in relation to the purposes for which they are processed ... Paragraph 1(e) of art 5 specifies that such data shall be; 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; [emphasis added] Paragraph 1(f) of art 5 further specifies that such data shall be: processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing Recital 59 reads: Modalities should be provided for facilitating the exercise of the data subject’s rights under this Regulation, including mechanisms to request and, if applicable, obtain, free of charge, in particular, access to and rectification or erasure of personal data and the exercise of the right to object. The controller should also provide means for requests to be made electronically, especially where personal data are processed by electronic means. The controller should be obliged to respond to requests from the data subject without undue delay and at the latest within one month and to give reasons where the controller does not intend to comply with any such requests. Recital 57 reads: If the personal data processed by a controller do not permit the controller to identify a natural person, the data controller should not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation. However, the controller should not refuse to take additional information provided by the data subject in order to support the exercise of his or her rights. 3Identification should include the digital identification of a data subject, for example through authentication mechanism such as the same credentials, used by the data subject to log-in to the on-line service offered by the data controller. Recital 77 reads: Guidance on the implementation of appropriate measures and on the demonstration of compliance by the controller or the processor, especially as regards the identification of the risk related to the processing, their assessment in terms of origin, nature, likelihood and severity, and the identification of best practices to mitigate the risk, could be provided in particular by means of approved codes of conduct, approved certifications, guidelines provided by the Board or indications provided by a data protection officer. The Board may also issue guidelines on processing operations that are considered to be unlikely to result in a high risk to the rights and freedoms of natural persons and indicate what measures may be sufficient in such cases to address such risk. | No, a company cannot suspend your GDPR rights – contracts can't override the law. Your rights as a data subject apply as long as your personal data is being processed. However, there is no requirement in the GDPR that they fulfill your data subject rights through a self-service mechanism like a “download my data” button. They can require you to use another support channel. (But Google offers infamously bad support.) In some cases, the service may legitimately decide that they cannot give you access to the data, for example if they believe that you are not the actual data subject (e.g. if they think that you hacked the account). The right to access must not adversely affect other people (Art 15(4)). If they have doubts about your identity, they can require further information to verify you (Art 12(6)). If your requests are excessive or unfounded (if you are spamming them), they can also turn down the requests (Art 12(5)). |
How do conditional pardons at the end of a president's term work? Looking at the list of Trump's final pardons, I notice that two of the pardons are conditional. My question is, what happens if the conditions for a conditional pardon either aren't met until during next president's term, or they are broken during the next president's term? Could the new president decline to execute the pardon even if the conditions were met? Could he maintain the pardon even if the conditions were broken? I'm interested in the mechanics in general, not just Trump's pardons. | For example, Stephen Odzer is a recipient of a "conditional pardon". Mr Odzer is a convicted fraudster and received an 18-month sentence and a restitution order. However, he has already been released from prison. The pardon requires Mr Odzer to pay the remainder of his restitution order. But the pardon does restore civil rights to Mr Odzer, such as voting rights, posession of a firearm or allow him to be considered for jobs that require a position of trust. If Mr Odzer breaks this condition then the pardon is void and he would lose those rights. The pardon is now granted and is effective unless Mr Odzer breaks the conditions. Biden can't reverse it. | (assuming United States law here, though I'd be surprised if it were significantly different in other jurisdictions with such restrictions) Your friend is incorrect: that would be a new offense, for which Person A could be prosecuted anew. If your friend's logic were correct, once a person is convicted of robbing a store, they'd be free to rob that store without repercussions for life. It's worth noting that the conviction isn't relevant: the prohibition of double jeopardy in the United States prevents even multiple prosecutions (except, in some cases, for separate state and federal prosecutions or foreign prosecutions). | Section 11302 of the California Elections Code makes it crystal clear - as soon as an office becomes vacant, the recall election proceeds anyway, unless as of that moment there are not enough signatures to proceed to the vote. So the resignation tactic can only be used to stop a recall election while they are still in the signature-gathering phase - it will not work if they have already gotten enough signatures. California's recall law as it applies to statewide elected officials is, frankly, idiotic (it should be like an impeachment, next officer in line gets the post), but it is designed specifically to stop a shenanigan like you describe. The Lieutenant Governor would become Governor if Newsom resigned, but only subject to the results of the Recall - if Newsom is recalled (despite already having resigned), the person with the plurality on part two of the ballot would become the next Governor. | Actually this is the only SCOTUS ruling on Impeachment because of what it legally means with respect to SCOTUS and impeachment. Namely, Impeachment is a congressional power and not a judicial one that has no punishment beyond the removal from office upon conviction and that therefor it is not a matter that is Judicial. That is a fancy way to say that SCOTUS or any lower court may not hear appeals rising from the outcome of Impeachment. Because of this, it's unlikely to hear any SCOTUS case as to the matter of impeachment and the only outstanding question they could likely hear is "Who can hear an Impeachment Trial for the Vice President?" but thus far none of the 19 impeachment trials have heard involved a vice president. Nixon v. United States basically held that in matters of impeachment it is the court's position that it is likely to respond to this hypothetical with the legal ruling of "not my monkeys, not my circus" (note: not legal jargon). With that said, this makes the U.S. senate the highest court in the land when it comes to precedents set by impeachment cases. The very first person ever impeached was a U.S. Senator, who was expelled by the Senate the same day the House voted on Articles of Impeachment. The decision not to have the trial did establish some notable precedents: first, Impeachment and conviction are all about removing an officer from office and if at anytime before conviction the officer is removed by other means, the process is stopped as it is moot. Second, and more important, is that members of Congress are not "impeachable" officers as both houses have methods that allow them to expel members by vote. This means that the only people who can be impeached are executive officers (the person who is currently president, vice president, and cabinet secretaries, any other office that is appointed by the president and confirmed by the senate, and federal judges) and that a conviction of impeachment does not bar one from holding another federal office unless the senate enacts an additional punishment after the conviction barring that person from federal office. They cannot bar one from state office. Finally, House and Senate Rules have instructions for procedures in their part in impeachment. The commonality between both is that impeachment takes precidents over all regular buisness so once articles are put to the floor, there speaker must hold the vote with in a certain window of time (three days, I think) and the Senate must hold the trial as soon as possible, though will honor reasonable delays as per the impeached officer's right to delay. As a final note, and because it wasn't clear in the question Nixon v. United States is often confused with another case (United States v. Nixon). The latter one did indirectly relate to impeachment in that it was related to President Nixon handing over evidence to the comittee investigating possible impeachment articles against Nixon, and because of that ruling, Nixon handed over the evidence and later resigned to avoid the Impeachment. The former one not only didn't involve anything related Watergate, it also wasn't related to President Nixon at all, but a (former) Federal Judge Walter Nixon, and specifically was heard because Judge Nixon happened to be the first Judge impeached by a Senate commitee as the jury rather than the full Senate, following a rule change that only held full senate as jury for the President and Vice President and a committee for anyone else. The final rule is that only the President is constitutionally mandated to have the Chief Justice of the Supreme Court act as the judge in an Impeachment trial, while the presiding officer for all other cases is either the Vice President (acting in his role as President of the Senate) or the President pro Tempore of the Senate (acting in his role of "Guy Keeping the Vice President's Seat in the Senate Rotunda Warm" (not technical Jargon)). Which is why the question of "who is the judge in impeachment of the Vice President?" a noodle baking question, and the answer differs from the Chief Justice to the Senate pr Tempore to the rarely serious argument of the Vice President himself. The best answer is that "It has never come up." | The potential problem is if there is a form which you had to sign which says "I am a US citizen", and you signed the form (who reads the fine print, anyhow?). Unfortunately, that statement is false, and there are consequences for making a false statement. However, that law penalizes false statements with the intent to deceive, not mistaken statements. Nevertheless, this is a matter that a professional really needs to deal with. If there was no form and they didn't verbally ask you to assert that you are a citizen, then there is less of a problem (for you), but still one needs to be extremely cautious in dealing with the court. [Addendum] It is highly likely that the form contained wording like "swear" or "certify" and mentions "perjury", so the error would be in the ballpark of perjury. Perjury is making "a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath". Aggravated perjury is perjury which "is made during or in connection with an official proceeding and is material". The term "material" means "matters; is not inconsequential". The consequence of a non-citizen improperly serving on a jury is that a mistrial has occurred, which is not inconsequential. Aggravated felony is a third degree felony. The penal code says that An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years. (b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000. I must emphasize that an essential element is "intent to deceive and with knowledge of the statement's meaning", an element that cannot be present if there is no awareness of such a statement. Thus an innocent mistake could be legally excused. When you become aware that a statement made under oath was false (assuming such a statement was made), then in maintaining the falsehood, that would be intentional deceit. This is why it is necessary to consult with a lawyer. On the Houston form, you would have to check the "are a US citizen" box. The Fort Bend county form has you certify and sign on the front page: it does not require you to certify that you are a US citizen, only to certify (and sign) if you are not – so if you failed to read the back side, that isn't a literally false statement. I can't locate an online form for Tarrant county, so dunno if that out is available. | 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 | The best course of action for Barr would be to file an objection to the subpoena in the proper court (probably the U.S. District Court for the District of Columbia) under or by analogy to Federal Rule of Civil Procedure 45(d) (which governs disputes over subpoenas in civil cases in the federal courts), if he thinks that there are matters he cannot lawfully divulge or thinks it is improper to divulge even if they are not privileged, and to let a judge decide. Generally speaking, in a civil action, you can only object to a subpoena by following this process and Congress has increasingly used the civil lawsuit discovery process as a benchmark. Failure to file an objection with the proper court, or at least in a response to Congress by the date required in the subpoena to produce the materials, will generally constitute a waiver of the objections that might otherwise have been asserted to the subpoena. Simply not responding without explanation by the due date would be a pretty clear case of Contempt of Congress which is the basis for both a civil action and criminal contempt charges. For example, in the Lynch case, cited below, the Court stated with respect to information that was withheld without any claim of privilege: Failure to provide any grounds for withholding particular records does not comply with the order or enable the Court to resolve defendant’s privilege claims as to those documents. Accordingly, defendant must produce the material withheld without any proffered justification. This said, in any dispute between Congress and the Executive Branch there is always some uncertainty, and the courts strongly favor negotiation and conferral between the parties before bringing these matters to a head. A general discussion of Congressional subpoenas can be found here, recognizing, however, that while there are a variety of grounds for redaction asserted in the Mueller report case, "Executive Privilege" is not among them and so the special considerations that apply to an assertion of executive privilege do not apply. The authority of the judicial branch to resolve these issues has been upheld, for example, in the cases of United States v. Nixon (U.S. 1974) and Committee on Oversight and Government Reform v. Lynch (D. D.C 2016) (both of which involved the more difficult scenario of an assertion of executive privilege in addition to the more ordinary assertions of privileges like the grand jury privilege). Not infrequently, the judge will review the unredacted material in camera (i.e. privately in chambers without showing it to the requesting party) to determine if the claim of privilege or other basis for redaction is really valid (e.g. maybe something that was redacted under the label grand jury testimony is not, in fact, grand jury testimony). But, there is case law to support the notion that Congress would have to demonstrate some specific reason why it doubts the accuracy of the assertions of the executive branch regarding redactions in this particular case to make it necessary for there to be an in camera review. In the Lynch case (which is a non-precedential opinion itself) the Court said: As for whether the redactions are what they purport to be, the Court notes that counsel for even the most disputatious parties are often called upon to trust each other, and that the judiciary relies regularly on declarations by the executive branch that matters redacted from FOIA productions are what they are described to be in the Vaughn index. See Loving v. U.S. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (holding that district court had not abused its discretion by relying on agency’s Vaughn index and declaration in determining whether a disputed document contained segregable portions); Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, 60 F. Supp. 3d 1, 13 (D.D.C. 2014) (“The reviewing court may rely on the description of the withheld records set forth in the Vaughn index and the agency’s declaration that it released all segregable information.”). The Court has been provided with no reason to believe that its assistance is needed to verify for counsel for one branch of government assertions made in pleadings by an officer of the court representing another, equal branch of government. If in the end, a neutral is required to read each individual redaction and confirm that what the Department claims is simply a name or a telephone number is in fact a name or a telephone number, the parties can arrange for that on their own. These discretionary issues are likely to be influenced by the partisan leanings of the particular judges involved. Another question is to whom a subpoena could be directed. While attorney-general Barr is one possible person to whom it could be directed, Mueller himself is another possible person to whom a subpoena could be directed and that might lead to a more tractable counter-party in the lawsuit and might simplify some of the conflicts of interest present in a subpoena of the attorney-general himself that in criminal contempt cases is enforceable by his subordinates, i.e. U.S. attorneys, who are required by law to bring such charges. | Sort of The 25th Amendment is crystal clear that the VP and a majority of the cabinet can declare in writing to the president pro tem of the Senate and the speaker of the house a presidential inability, whereupon the VP becomes the acting president. The president can then immediately transmit in writing his declaration that there is no inability, and then he resumes his position as president until the VP and majority of cabinet (not necessarily the same members) again declare a disability, within 4 days. If that happens, then Congress decides the matter. There is a 28 day period for a super-majority of Congress to make that decision, plus 48 hours for assembling of Congress is not in session. The problem is that the amendment says that the president resumes his powers unless something happens within 4 days. It does not say that he must wait 4 days to see what the VP response is. If the VP does not counter-respond immediately, then it is possible, but not guaranteed, that the president regains power until the VP reaffirms the disability. This is a question that would have to be decided by SCOTUS. In the presumably short interim, there would be serious constitutional questions as to the legality of the actions of either POTUS or VPOTUS. |
Resale lemon laws A truck is sought with the express intent of plowing (in RI). A truck, with a plow attached, is offered (in RI). The owner states that to the best of his knowledge, the truck plows and is in good condition. A standard bill of sale is produced for the truck at a cost. (The truck was purchased for $5k, above the cost of small claims.) A verbal agreement is offered that if there are any issues with the truck, it may be returned and the deal may be nulled. A third party was present during the sale, witnessed this, and is able to attest to it. The truck was taken immediately to 2 mechanics, and later a third, for inspection. All three mechanics independently determined: • Front chassis is rusted through. • Nothing can be performed to fix it, aside from purchasing a brand new frame, which is not cost practical. It has only been used for transit to these local mechanics for inspections. The seller has refused all phone conversations. The seller has stated textually that he has no intent to negate the deal, that the truck was inspected by a mechanic of his choice prior to the sale. . Are options available to negate the deal, as the truck remains in the original condition and is not what was originally verbally agreed upon: a truck in working condition without issues capable of plowing and trailering for heavy work use. | "Lemon laws" are about new cars and manufacturing defects. Used vehicles are sold "as is", except that dealers are obligated to offer a 30 or 60 day warranty that the vehicle will continue to function. Using the term "owner" suggests that this is not a dealership sale. Generally speaking, you are out of luck, except for the verbal add-on to the sales agreement. If there is no written agreement, just a verbal contract and exchange of money for truck, you may be able to enforce the contract in regular court. The prospects decrease if there is a written agreement that does not include the money-back guarantee, and become effectively zero if there is a clause that says "This is the whole agreement, the car is sold as-is". Assuming there is no written agreement, then you and perhaps the third party would testify as to the money-back guarantee, the seller would testify that there was no such guarantee (or that you misunderstood what he said), and the court would decide which version of the story is more believable. | It may be legal, depending on surrounding circumstances. Under MCL 257.904b(1) When a person is convicted of an offense punishable under section 904(1)(b) or (c) or a local ordinance substantially corresponding to section 904(1)(b) or (c) for operating a motor vehicle while his or her license to operate a motor vehicle is suspended, revoked, or denied, the court shall order the motor vehicle, if it is owned in whole or in part or leased by that person, impounded for not less than a period the court orders but not more than 120 days from the date of judgment Under the assumption that there was a violation of the law, a conviction and license suspension (for the relevant crime), then the vehicle shall be impounded. It would not be legal for the police to spontaneously decide to impound the vehicle without a court order (which the court must issue). The statute does require that the vehicle be owned or leased at least in part by the person who violated the law. You might then argue that this does not allow impoundment for a vehicle borrowed with permission, and if the judge rejects that argument you could try to argue it up to the Michigan Supreme Court. | It might be illegal, depending on where you are. If it is known to the person who owns the vehicle occupying your space prior to doing so that wheelclamping may be the result, then the common law doctrine of volenti non fit injuria ("to a willing party, harm is not done") would lead to a conclusion that one who knowingly places themselves in a situation where harm may befall them is not entitled to bring a claim of tort against the other party (in the United States assumption of risk is a similar doctrine, but doesn't apply here because wheelclamping is an intentional act). In your situation, this means that the owner occupying your space cannot bring a case in tort against you. While it is generally applied to harm to people, there is precedent (albeit in British case law) for the doctrine to be applied to vehicles, and specifically, to the situation you describe - see Arthur v Anker and Vine v London Borough of Waltham Forest. While cases from other jurisdictions are not binding, I have not been able to find any similar cases in the United States, and so it is possible that such cases will be persuasive. Note that this is highly jurisdiction-specific, and there may be laws in your state that make it unlawful - at least one high-profile case involving a McDonalds and its parking lot operator cites California law authorising only law enforcement to impound vehicles, and considering wheelclamping such an act. However, I have not been able to find the record of a judgement on this matter. It is also likely that if the payment you request is excessive, the owner would be able to seek relief, in the form of reducing the payment owed to a reasonable amount. However, if the parking space was not marked in some way to signal that it was reserved for use, then the owner of the vehicle may be entitled to seek injunctive relief and damages from a court. This would be on the basis of, if you only wheelclamped the car and declined to remove the wheelclamp upon the owner's request, the tort of detinue. But, if you attempted to request payment from them, then as Dale mentioned in his answer, you have committed extortion (wheelclamping is actually listed as a crime of extortion). | Disclosures are prescribed by state law. Fair housing, which is a federal concept, pertains to issues such as using prohibited personal facts to determine whether to accept an offer. (Hazardous materials disclosures are also mandated at the federal level, but are are included in state requirements which can get pretty broad). If you are buying in Washington state, RCW 64.06.020 says what and how you must disclose. The list of disclosures is very detailed, covering title and covenants, water, sewer, structure, systems and fixtures, environment, and mobile home related. The only one of the 86 questions about smoke is whether smoke alarms are present. Thus smell of smoke is not a legally material fact that must be disclosed, in this state. The California disclosures, even longer, are here, and there is likewise no "smells bad" disclosure. It is unlikely that any state in the US mandates such a disclosure, since it is somewhere between a subjective evaluation and a self-evident fact. Some people are very sensitive to certain smells while others do not care. The burden is on the buyer to pursue matters of personal concern (in writing!), such as whether any dog has been present in the house in the past 5 years (some people care). You have to look carefully at the response. "Don't know" is usually a safe bet, unless you actually have factual knowledge. From what I can determine, Massachussetts is on the opposite end of the spectrum from California. There are some requirements imposed on real estate agents, and there is the federal lead paint disclosure, but otherwise it appears that nothing is mandated by law. This form seems to be used by the real estate association, and there is a question about "history of smoke/fire damage to structure". The reasonable interpretation of that is "has the house caught fire and suffered damage", so "no" from a cigar-smoker would not be fraudulent. If the intent of the question were to reveal if someone has smoked frequently in the house, that would he the question they'd ask. You can check whether you have this form and see what it says, but "smoke damage" would not normally be interpreted as meaning "smells a bit funny". | The simple answer is, get a lawyer and explain your case, and pay him to solve the problem (or tell you that it's hopeless). The two main questions would be whether the appraiser have any duty to you, and whether his action was within the scope of what he is supposed to do. If you hired the appraiser, he has a duty to you. I will assume it was you that hired the appraiser (if it was the bank, that's a different matter). Then the question is whether his action or non-action is within the scope of the job. If the place is infested with termites, that is probably irrelevant because an appraiser is not a termite inspector. On the other hand, if he failed to measure the structure, or erred substantially in the measurement, that kind of negligence could be legally actionable. The seller (not the appraiser) is required to "disclose", so it's not obvious that there is any thing that an appraiser could disclose that relates to a map. | The law says don't drive an unsafe vehicle on the road. You disobeyed the law. There were methods of having your tyres fixed without driving on the road (e.g. taking the tyres to the mechanic in a different vehicle, calling a mobile mechanic etc.) so you have no defence of necessity. In all likelihood you will be convicted and penalised. You need legal advice. Whether it's fair or not is a philosophical consideration, not a legal one. | You paid a higher amount so you got to drive the latest model for a year. I can buy a lower amount right now, but I only get to drive last year's model. Or I can pay a higher amount to drive the latest model again. That's life. I have a Wii. I didn't buy it when people queued up for it, but when the shop was selling them off for half the price. That's life. You pay more for the latest and greatest, and then it gets cheaper. The protection you are talking about is this: If the shop advertises a motorbike for £8,000 and when you go into the store the price is suddenly £10,000 then there is some protection in place. The protection means the shop will get a major telling off from trading standards if you complain, and possibly a fine. It doesn't mean you get the motorbike for £8,000. And it most definitely doesn't mean you get money back when they reduce the price a year later. | The statute in question is section 26708 (13)(B): A vehicle equipped with a video event recorder shall have a notice posted in a visible location which states that a passenger's conversation may be recorded. It doesn't require it be visible to all passengers and doesn't make any provision for visually impaired passengers. I am not licenced to practice in California but know of no cases clarifying how "visible" the notice needs to be. I wouldn't suggest trying to hide the notice, though. |
How can I request an ISP to disclose their customer's identity? As far as I know, breaking the law online in Germany (such as sharing copyrighted content) often results in a fine from a private law firm which gets your personal data from your provider by sending them some sort of "cease and desist" letter mentioning the violation. I understand that this process doesn't involve an actual lawsuit. I wonder what kind of proof of the client's wrong-doing is actually required for the ISP to disclose their personal data. For instance, I have an open SSH port in my home network, and there are regular attempts to login using default usernames/passwords, which AFAIK is just as illegal as sharing copyrighted files. If I see a German IP in the logs, what kind of proof do I have to send to the ISP in order to get the offender's identity from them? | Hacking into a computer owned by someone else and accessing the data stored on it without permission is a misdemeanor according to StGB 202a (de|en). But only if it's successful. So a failed attempt isn't a misdemeanor yet. When you notice that someone might have committed a criminal offence (regardless of whether you are a victim or just a witness), then the usual procedure is to report it to the police. If they consider the crime serious enough to investigate, then they will request the identity from the ISP. But the copyright lawsuits which are filed in bulk by law firms working with media companies are not crime reports. They are civil lawsuits. A civil lawsuit is when someone had a tangible damage because of something someone else did, and now they want money in compensation. When there is no damage, then there is nothing to sue for. So when you want a judge to file an injunction to force an ISP to give them the identity of one of their users, then you would first have to explain to them how much financial damage you had because of that person and that this is enough damage to make it worth everyone's time. That might be quite challenging for nothing but a failed SSH login attempt. But it might be possible if a single person made so many login attempts that it incurred you non-negligible bandwidth cost or even caused a denial-of-service. | This question needs more detail. As a cybersecurity professional I can provide some technical context around what I believe to be the situation. While I do not know the legal precedence, technically, IP addresses cannot typically be attributed to an individual person. There are a number of reasons for this. In a local network, IP addresses are not unique. Rather, they are distributed by the DHCP server, and are reassigned at intervals. Forensic attribution to an individual in most environments would require a DHCP log linking the IP to the machine’s MAC address, with time stamps that correlate to the individual’s logon to that machine at the same time. If the IP correlation involves a VPN, it gets more difficult. I would need to know where the log/evidence was obtained to determine what the IPs in question actually correlate to. If the evidence was obtained in local area network of the suspect, the IP addresses are likely assigned by the DHCP server (see previous). If they are obtained after encryption in transit to decryption, then very little can be determined. If they were obtained at the VPN server log, these IPs likely belong to an ISP which in turn may or may not be able to show what machine initiated the conversation. Digital photos often contain EXIF data, which is metadata about the photo. This data can contain details like, device make and model, sometimes location, time and date... If the defendant owns a Nikon such and such and the photo was taken with a Nikon such and such, and was uploaded using a VPN the defendant has an account with, and the defendant was in that location at the time and place of the photo... there may be enough there... but I’m not a lawyer. I believe the discovery should include any EXIF metadata and logs to be used as evidence. You may need a special technical whiteness to educate the court on what can and cannot be determined (technically) given the evidence. Things to consider for such a witness could include: EXIF, forensic certification, network administration experience, VPN, TCPIP, OSI Model, Network Address Translation (NAT). Again, nothing here should be considered legal advise. Seek professional legal counsel. | Great question - I work for a London based company who use a large amount of location data. The process for deletion of data is not as simple as it first sounds. We recently had a deep dive with our legal team and as a result actually created a product to process deletions. Personal data from users/customer is carried for lots of reasons, not just marketing. What if you're asked to delete data that is needed to bill customers, information that may be relevant to a legal case or information that needs by law to be retained for the purposes of audit? GDPR does not make it illegal to carry personal information, it simply needs you to justify why you are keeping the information - inform the named person about this and provide them with a timescale for deletion. For example if you are required by law to store a record of emails to document the work done, but the user asks you to delete that information. You would be entitled to keep that information but only for the purposes of maintaining that audit trail. You would delete all associated customer data that was unnecessary such as CRM info, payment details etc.. but could keep the audit trail. The proper way to respond to the user's deletion request would be "your data will be kept in a secure server for the purposes of maintaining an audit trail for x amount of time. Once this time has elapsed it will be deleted. If you are unhappy with our use of this data please contact our data officer". GDPR isn't designed to catch you out - if you have a legitimate reason to keep that information then you are entitled to. The law was designed to stop marketers and advertisers hoarding huge amounts of information, as well as undermine Google/Facebook's duopoly on our personal information. | The conditions for lawfulness of processing are spelled out in Article 6 of the GDPR. As for it being legal for website operators to log the IP-addresses of visitors, this is covered by the following paragraph (also pointed out by phoog in a comment). The paragraph says it is legal to process personal data if processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. (my emphasis) You are not the only web site that logs IP addresses for the purpose of security. Every web site I've ever worked on - from those controlled by large corporations to tiny NGOs - do this. This security practice will not be impacted by the GDPR (if it were, I am sure we would have heard about it by now). there is the EU cookie law too If your website are going to be accessible to European citizens and not only accessible by your friends and familiy, you have to comply with the EU cookie directive of 2002 (a exemption for "personal websites" does not exist). | Of course it is illegal. You are attempting to access somebody's data without their knowledge and certainly without their consent. In the U.K. it is a crime under the Computer Misuse Act 1990, the Police and Justice Act 2006 and the Serious Crimes Act 2015. The clue here should be in the term Serious Crimes. The Human Rights Act, and indeed the ECHR, should never come into it unless it was state sponsored or corporate spying. And even then certain states have given themselves Orwellian totalitarian authority to do as they please. | Yes, there would still be an obligation to comply with erasure requests – if the data subject can be identified, and if the GDPR applies. This is a case for Art 11 GDPR: processing which does not require identification. The pastebin site is not required to collect identifying info just in order to facilitate later deletion. If the site is unable to identify the data subjects, then the data subject rights (like access, rectification, erasure, restriction, or data portability) do not apply. Other rights like the right to be informed and the right to object do remain, though. But if the data subject provides sufficient additional information that makes it possible to identify their records, then the data subject rights apply again. In practice, this is likely going to mean that anyone with access to a paste will be able to request deletion, since the site would have no ability to verify the identity of the data subject beyond the information in the paste. None of this absolves the site from implementing appropriate technical and organizational measures to ensure the security of this data. Even though the pastes might not be directly identifying, they are personal data and are far from anonymous. Common practices like numbering pastes with a sequential ID or showing recent pastes on a homepage have to be viewed critically. My go-to recommendation is to assign a cryptographically random UUIDv4 ID to the post, so that it is practically impossible for anyone to find the paste unless they were given a link by the uploader. Your idea to delete pastes after a fairly short retention period is also good. This helps with security, and it is in line with the GDPR's data minimization and storage limitation principles: data may only be kept as long as necessary for its purpose. On the other hand, quick deletion might not be in line with the purpose of these pastes – it all depends on context. You mention that this is an US-based site. If so, there's a question whether GDPR would even apply. GDPR will apply per Art 3(2) if the data controller is offering its services to people who are in Europe. Here, “offering” does not mean mere availability of the website, but that the data controller intends the service to be used by such people, in particular if the service is somehow targeted or marketed to such people. | Yes If you are in the EU, or your players are in the EU and your service is targeted at some part of (or all of) the EU, then this pretty clearly falls within the scope of the GDPR. Such a service would be collecting data associated with natural persons. At least some of it would be made public along with an online identifier, and other parts would be processed and stored, even if disclosed only in anonymized form. (By the way it is a non-trivial task to anonymize data well enough that it is no longer persona data under the GDPR. But let's suppose yoru methods are good enough.) Under GDPR Article 6 the DC must have a lawful basis for such processing. If the basis is "consent" then the consent must be freely given, whch means giving consent may not be a condition of using the service. Under GDPR Article 13 a notice must be sent to the Data Subject (DS) when the data is collected from the subject, including some 11 items or categories of information about the collection process, the Data Controller (DC), the purposes of processing, the legal basis of processing (which the DC must define), who will receive the data, the data retention period, and various rights of the DS. Such a service must be prepared to respond to data access and data erasure requests, under articles 15-17, and data restriction requests under article 18. It must provide a method for a DS to easily make such requests. Other GDPR provisions may well apply in addition to these, but that is enough to show that such service is very likely to be within the scope of the GDPR, unless none of the DSs are present in the EU or the related market area. | DMCA applies as long as the the website is being hosted inside the U.S. The location of the copyright holder is irrelevant. For step-by-step help drafting a valid DMCA notice, see Step 2 of https://nppa.org/page/5617. If the site fails to comply with a valid notice, they lose the benefit of DMCA's safe harbor provisions and become themselves liable for continuing to host the infringing work, and you can sue them. (Prior filing suit, though, I imagine a letter from a lawyer that says, "Hey, my client sent you a valid DMCA notice a while ago; kindly comply at once, or we will actually sue you," should be sufficient.) The requirement to submit a photo appears to be totally unnecessary. A valid DMCA notice includes a signature (electronically including your name in an email is sufficient) and an assertion, under penalty of perjury, that the writer is authorized to control the copyright work and that the work is being used illegally. Beyond a signature and contact information, no further identity verification is necessary. The DMCA handles this by opening the submitter to perjury charges if the takedown was submitted illegally. Of course, any site might choose to ignore your DMCA takedown, at their own peril. They might bet that you won't actually hire a lawyer and follow through on your legal right to file suit, or they might not understand that identity verification is not a legal requirement listed in 17 U.S.C. § 512(c)(3). Your options are either: follow the law as written and file a valid takedown notice, and then hire a lawyer when they don't don't comply with the rules written in 17 U.S.C. § 512 follow their additional rules to get them to comply, which may be more difficult but might not require hiring a lawyer |
Is a verbal agreement to start the hiring process (i.e., "preparing the contract") binding? Is a verbal agreement to start the hiring process with a German company in Germany binding by the German law? In other words, does one have to sign the contract once it is ready? | If two parties agree to the terms of an exchange, then there exists an enforceable contract. A signature is not needed to create a contract. However, an intent to negotiate a contract is not, per se, a contract. Absent some specific and explicit measures (which for major deals may be codified in an MOU or LOI that itself contains contractual terms), if you can't reach an agreement on terms then there is no contract. It's up to the particulars of "the verbal agreement to start the hiring process" whether an agreement on exchange has been reached, or merely proposed. E.g., "You and I agree that I will pay you $X in exchange for Y due Z" is a contract. "You and I agree that we'd like to work together, and we'll hammer out the terms X, Y, and Z by the end of the week" is merely a proposal to contract, not an actual contract. Of course, this doesn't mean you're immune to liability for failing to reach a contract in this hypothetical: you can always be sued! | To form a contract, you must have: Intention to create legal relations Agreement Consideration Legal Capacity Genuine Consent Legality of Objects On the face of it, Alice and Bob's agreement meets these criteria so it is a legally binding contract and Alice would have every prospect of success in a legal action for breach of contract. Specifically: by writing out and signing the agreement they are showing an intention to be legally bound what they have each agreed to do is vey clear; more than many I have seen both parties have provided consideration: dog walking and money there is no suggestion that either was legally incapable of forming a contract genuine consent refers to them actually agreeing what they though they agreed, for example if Alice asked Bob to walk her dog (meaning the Great Dane) and Bob agreed (meaning the Jack Russell) there has not been genuine consent dog walking and paying money are both legal | This is not an NDA (non-disclosure agreement), it is a non-compete agreement. An NDA would tell you that you cannot disclose anything you did or saw at your old employer's place. A non-compete agreement is what you have here, an agreement that limits your ability to get work. If what you say is correct, then your employer is not exactly the brightest. You stay that you haven't been given a written notice, and your contract says that a "Notice of termination will only be valid if it is given in writing". So you haven't been given valid notice. There is no reason why you would sign the non-compete agreement. If they plan to fire you without notice if you don't agree, they have a problem: Your contract doesn't allow them to do that. And they have apparently not given any written notice yet. So what they can do is as soon as they decide that you are not signing, they can give you one month written notice. | In general, "making a reservation" does not create a contract, except when it is obvious that you have a contractual agreement. That would be the case with an airline reservation, and one clear sign is that you have to pay for the ticket when you make the reservation; or, it you don't, then there is no contract, and they can cancel or change the price. You would look for clear signs of an agreement, such as a "agree to terms" button that you have to click. Paying a deposit is another clear sign. Then you would simply look at the terms of the contract to see what their obligation is, and what yours is. They may have strongly committed to providing service in which case you might have a cause for legal action if they break that commitment, or they might have made no specific promises about service in case of intervening events (such as if the chef has a heart attack, or the power goes out). If we do think of this as a contractual matter, you breached your duty as a customer, to be there by 7:30, so even if there is a contract, they didn't break it. The note that you added renegotiating the arrival time was insufficient – it is outside of the contract, and possibly something that they didn't see (they only look at the names and official time blocks reported by the web page). In lieu of a contract, there could be some statutory obligation, i.e. a specific regulation in Sweden saying "if a restaurant accepts a reservation, they absolutely must hold the space available for the entire reserved time", which is an unreasonably onerous business practice that no nation requires. | The written document is given very high priority, so parties will be held to what is in the document. Both parties sign at the bottom, as a way of signalling their agreement with the terms specified in the document. If conditions are added or subtracted (by crossing out), especially with pre-printed forms, the "customer" (person who didn't write the contract) can initial such modifications, as a way of clearly signalling that they indeed agree to the deletion of such-and-such clause. Since both parties have a copy of the signed agreement, this is not strictly necessary. The potential issue would be that an unscrupulous person could cross out a clause after the contract was signed, and claimed that they aren't bound by that clause. A comparison of the two copies would then reveal that the unscrupulous person was attempting fraud. There is nothing special about handwriting in or crossing out conditions, except that it poses a potential evidentiary problem as to what exactly was agreed to, if for example one party threw away their copy and then maintained that the crossed-out clause had not been crossed out. (So, keep your copy). In case you are proposing a scenario where one party is unaware of a change, i.e. at the very last minute Smith crosses something out and signs it, and Jones did not see that happen, then both copies would be the same and Jones would be legally bound to what's in the paper. Smith should announce to Jones that a clause was being deleted. We might suppose that there are innocent reasons why Smith made changes without making an announcement to Jones, in which case the parties do not have an agreement. There may be amicable ways to deal with that situation, but push could come to shove, in which case the written form of the document is generally taken to be the most important piece of evidence (though not always the only admissible evidence, unless you're in Colorado, Florida or Wisconsin). | In other words, what is the difference between signing "for" a company and signing "on behalf of it"? Nothing. Companies are famously illiterate - they can't read or write and need someone with fingers to do it for them. In fact, everything that a company does is done through an agent. There is no difference between a document signed "for" a company, "on behalf of" a company, "for and on behalf of" a company, or one that's just signed. Modern usage is far less formal than it used to be and what you are seeing here is a holdover from a time when people used to put rhetorical flourishes on legal documents for no good reason: https://books.google.com/ngrams/graph?content=for+and+on+behalf+of&year_start=1800&year_end=2019&corpus=26&smoothing=3# | I don't think so. When it comes to wages, there may be a Tarifvertrag (union-negotiated wage schedule), which may apply even if the employee in question is no union member. It is enough if the employer is member of the employer's association negotiating the schedule, or in certain other cases. (Clever, really, by extending union benefits to non-members they weaken the unions ...) The Tarifvertrag stipulates minimum wages for certain positions, and it may define those positions implement that. An employer could not underpay a skilled machinist by calling her a 'gadget specialist' or similar non-scheduled position. But the deputy department head is likely paid above the highest bracket of the wage schedule, called außertariflich (AT, beyond the schedule). At this level, it comes down to individual negotiations between the employee and employer. | As far as your visa is concerned, both, France and Germany are in the Schengen area, so a visa in one of those countries will give you access to both. As for as your work permit is concerned, at least in Germany you will need some participation of your new employer. They will have to prove that they can find nobody else in the EU. So they'll probably want you to sign the employment contract. As far as getting out of such a contract in Germany, you have to differentiate between a fixed-term contract (e.g. for 2 years) and an indefinite contract. Once you sign a fixed-term contract, it is difficult to get out of it before its normal end. Unlimited contracts in Germany usually come with a 6 month probation period, where both, the employer and employee can end the contract immediately. In this specific case you might be able to get out of the German contract. I don't know though if the employer would go through the trouble of obtaining a work permit for you without binding you for a fixed amount of time to them. |
How can I verify that a uniformed cop is a real cop? In the state of Connecticut, when a uniformed officer or officers approach, are they required to provide identification showing they are police officers upon request? Anyone can buy a uniform off the internet and say they are a cop. My question specifically pertains to safety. | 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. | 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. | Edit: I didn't notice a that this question was tagged for Canada; this answer is based on U.S. law. "Must you stop walking" and "can the police detain you for leaving" are different questions. Must you stop? I'd expect a lot of variation from state to state, but there are definitely situations in which you must stop. In Ohio, for instance, an officer who "reasonably suspects" that that you have committed, are committing, will commit, or have witnessed the commission of violent felony, is permitted to stop you and ask for your name, address and date of birth, and it is a crime to refuse to provide that information. R.C. 2921.29. But at the moment the officer asks you to stop, you're in a tricky position. If you haven't done anything wrong, you'd be inclined to think that the officer has no basis to stop you and that you're justified in walking away. But if someone just called the police and said someone fitting your description just robbed a store two blocks away, the officer has reasonable suspicion that you committed a violent felony, but you have no way of knowing that. This sort of thing happens pretty much all the time. In the absence of that reasonable suspicion, though, Ohio courts have repeatedly held that it is not obstruction for you to just walk away (or even run!) from the officer. Can the police detain you for walking away? Obviously, if you're in a situation where it is a crime to not answer questions, the police can detain you because they just watched you break the law. But what about when you're within your rights not to answer? The police can still detain you with a Terry stop when they have a reasonable and articulable suspicion that you are committing a crime, or that you just did, or that you're about to. And they can continue that Terry stop until that suspicion is confirmed or dispelled, or until they can't reasonably expect to get anymore information by detaining you. Based on the facts you described, it seems unlikely that they could legally detain you based on your termination of the conversation. Still, I imagine that there could be circumstances where they might stop someone, ask questions, and then reasonably suspect that the person was engaged in a crime based on his decision to walk away, especially if the person hasn't explicitly invoked his Fifth Amendment right to silence. | The question that you pose can't be answered in the abstract and the conceptual framework you introduce in the section entitled "Resume" is largely unsound from a legal perspective, even if it may have some political theory usefulness. Indeed, even the framework of "relative power" doesn't really work. The question almost always presents itself in a binary fashion. Either a law enforcement officer has authority to do some particular thing, or the officer doesn't. Frequently, there are multiple law enforcement officers in different agencies who all have the authority to do a particular thing, and whoever gets there first may do so. In U.S. law, law enforcement is highly decentralized. There are hundreds of distinct federal law enforcement agencies, dozens of distinct law enforcement agencies in every single state, and almost every local government (sometimes even school districts, water boards, and park districts) have their own law enforcement agencies. All told, the number of independent law enforcement agencies in the U.S. is in the low tens of thousands. Something on the order of 90%+ of those law enforcement officers report to local governments like cities and counties and have no direct chain of authority that goes up beyond that point. The remainder are split roughly equally between the state level and the federal level, but highly fragmented within each such level between different agencies within each state and with the federal government. The most common kind of law enforcement officer in the federal government is not the stereotypical F.B.I. agent. Instead, it is a federal park ranger. A few small states are more centralized (e.g. Hawaii), but massive decentralization is the norm. The law enforcement officers in every single one of those agencies has a statutorily defined jurisdiction. Rather than being a neat hierarchy in which one law enforcement agent is always superior to another law enforcement agent, one has to analyze the circumstances in light of a particular grant of jurisdiction. There are general trends in how these grants of authority are made, but they are far from uniform. Most grants of authority include both territorial and subject matter elements. State police can typically arrest anyone for a violation of state law within their state, but not for violations of federal law or the laws of another state under circumstances where a citizens arrest is not authorized and where there isn't a warrant outstanding. A state game warden can arrest you for violating hunting laws in his geographic area, but not for violating state tax laws or federal immigration laws. A village constable in a tiny hamlet in rural Tennessee can arrest the chief of police for the Tennessee Valley Authority's law enforcement agency (the TVA is a federally charted independent government agency), for drunk driving in that constable's village. In contrast, an F.B.I. special agent doesn't have the authority to make that arrest, but could arrest either the village constable or the TVA chief of police for taking a bribe contrary to federal anti-corruption laws. There are law enforcement officers who specialize in investigating crimes by other law enforcement officers (often in the same agency). In state and local police agencies these are usually called "internal affairs officers", with a unit in the state police or state bureau of investigation that works closely with a unit of the state attorney general's office having a secondary role in this task. In the federal government, the Inspector General's office in each cabinet department is typically charged with primary responsibility for these kinds of investigations. In the military, improprieties by active duty soldiers in connection with their implementation of the Uniform Code of Military Justice would usually be investigated by the criminal investigation service in each cabinet level department (i.e. the Army, the Navy (including the Marines Corps), and the Air Force) within the Department of Defense. But in neither case is the conceptual issue one of authority. Usually any law enforcement officer in a particular agency has authority to arrest any other law enforcement officer from the same agency (with the possible exception of their direct superiors). It is a question of focus and job responsibilities, not of legal authority. There is a notion of federal supremacy under the U.S. Constitution. In a bald showdown of authority between federal law enforcement officers and state law enforcement officers, say, over who is entitled to custody of a non-law enforcement officer criminal who has been arrested, the federal law enforcement officers will prevail. But, these showdowns are rare, and interagency conflicts within state governments and the federal government respectively, if not reconciled sooner, are more often resolved by a Governor or President, through a chain of management command authority within that governmental entity, than in the courts. Even when there is no one shared chief executive between law enforcement officers, usually these disputes are resolved by negotiation between the chiefs of the respective officers, rather than through legal channels. This is much less true in most countries other than the U.S. Most countries have far fewer independent law enforcement agencies, and have more clear and hierarchical lines of authority between them. This distinction is illustrated by your professor's example: If the Queen of England pointed a gun at the President of America and the President of America pointed a gun at the Queen of England, could you prosecute and/ or charge any of them? In the U.K., nobody has the authority to arrest the Queen, and the authority to arrest the U.S. President would be highly limited by diplomatic treaties relating to the treatment of foreign heads of state. In the U.S., the question is tricker and quite fact specific. The President has immunity for his official acts, but not for his private acts. If this standoff with guns breaks out on the floor of the U.N. in the context of a breakdown of negotiations, the President hasn't committed a U.S. crime. On the other hand, suppose that the President and the Queen have been having a private tryst at a bed and breakfast at our small village hamlet in Tennessee where they have managed to escape their respective security details. (Pardon me for bringing such an icky vision into your head, this is purely for educational purposes and you should censor your own thoughts as you imagine it. I blame the questioner's professor for presenting a scenario that has this possible aspect to it.) The village constable can arrest the President for this crime in violation of Tennessee law (assuming that the President doesn't have legal justification for his acts such as self-defense) since this act was conducted in an unofficial capacity. But he probably can't arrest and charge the Queen under diplomatic treaties that the U.S. has with the U.K. In contrast, a U.S. Secret Service agent would have authority to seize the Queen sufficiently to disarm her and prevent her from being a threat to the President, even if he couldn't charge her with any crime. | Answering the question title, a Texas law enforcement officer can certainly make arrests in Louisiana these days under the right circumstances (I'm not about to look up the laws as of 1934). For starters, Louisiana law grants any person the authority to make an arrest when the person being arrested has committed a felony, whether or not that felony was committed in the presence of the person making the arrest. This is normally a legally risky thing to do (the arrest is illegal unless the person actually committed a felony, while a cop's felony arrest is legal as long as the cop had probable cause), but in this case the pair had been involved in a kidnapping and a robbery in Louisiana. Any person could have made a lawful arrest, and could have used necessary force to effect that arrest. But suppose the gang turned out to be innocent of the Louisiana crimes. In that case, a citizen's arrest would be illegal. But the Texas lawmen weren't at the ambush alone. They were there with the parish sheriff and a deputy, who were Louisiana peace officers with the authority to make an arrest on probable cause. And under Article 219 of the Code of Criminal Procedure, A peace officer making a lawful arrest may call upon as many persons as he considers necessary to aid him in making the arrest. A person thus called upon shall be considered a peace officer for such purposes. Neither of these things depends on the Texas officers' status as Texas officers. There are some arrests which are legal based on that (e.g. hot pursuit), and a Texas officer has some extra powers in Louisiana based on federal law that make an arrest easier (e.g. cops in the US can carry concealed firearms nationwide without needing a CCW permit), but under normal circumstances a Texas police officer has no special authority to make an arrest in Louisiana. However, it's not at all uncommon for police agencies in different states (or at the state and federal level) to cooperate on something, and there are ways to make it work out. With more planning, there are normally formal ways to do it instead of needing to rely on "we'll ask you for assistance" (for instance, officers could formally be appointed as deputies in the appropriate agency; this happens a lot on federal task forces, where a deputized state or local cop gets nationwide jurisdiction). If Bonnie and Clyde existed these days but the feds wanted to involve state cops, they'd just set up a federal task force, make Hamer a special deputy US marshal, and go from there. | What are the reasons/ legal requirements that the police might need my personal information, given that I had not been able to provide any further information/ witness testimony to the incident that they were investigating? The police in england-and-wales have a duty to undertake reasonable lines of enquiry and to carry out a proportionate investigation in to allegations of crime. No-one is legally obliged to answer house to house questions but, notwithstanding the honesty and integrity of the majority of members of the public, any information held by the police may need to be corroborated to identify or eliminate suspects, witnesses, evidential opportunities or other lines of enquiry. Also, if it is established that someone has no information that may assist the investigation this is recorded to prevent duplication of effort thus enabling the police to focus their resources accordingly. All the while complying with the relevant privacy and data retention legislation. | The legality of the stop may be somewhat up in the air, but it would seem that the vehicle is not in the Texassure database, so it is reasonable to think that the person driving is not insured, and therefore is breaking the law. And that is all that is required: that the suspicion is reasonable. Until someone makes a sufficiently persuasive legal stink about this, it is probably a legal stop. This article gives some legal discussion. One applicable case is US v. Broca-Martinez, a Texas case where a person was pulled over for being "unconfirmed" w.r.t. the insurance database: the court held that this was a reasonable suspicion. Thereafter, a charitable interpretation is that you misunderstood the request in providing your sister's information when he asked for your license and insurance: but you are expected to understand that when they request your license and proofs of insurance, they mean you the driver, and not the car owner. That they is even more suspicious, although I understand your confusion. At your hearing you cane explain why you didn't comply with the first officer's request, and the judge may they chalk this up to a simple misunderstanding rather than intentional deception. The problem is that you are expected to know – whether or not you've ever been pulled over before – that you have to provide license, registration, and proof of insurance. You will have a hard time making it believable that you didn't understand what the officer told you and what the law requires. | The role of the 101 call handlers is to assist with enquiries and to progress reports of non-emergency incidents - not deceive. They are not (usually) police officers do not (routinely) have access to PNC. Even if they did, they are under no obligation to divulge potentially operationally-sensitive and/or personal information over the phone; especially as the caller's identity cannot be verified. In response to comments and the OP edit on 09/03/2022... The police will not confirm if you are wanted on warrant over the phone. You must attend your local police station and bring some form of identification with you such as a passport, driving licence or birth certificate. Source1 You can find your local police force here 1A random example taken from one of the 43 territorial police forces in england-and-wales |
Client demanding refund I'm a freelance programmer from Belgium and I have developed an application for an American client. We agreed on 800USD for the completed project. I finished the application and met all his requirements. We only had a verbal agreement about the project and we discussed payment dates for the project. I received 4 200USD payments over the course of two months, after which I sent him the completed product. After I sent him the finished product everything seemed good. However after some days he said that it was unusable because switching between pages was "too slow". He demanded a refund because he said that he was unable to use it. In my opinion it was fine and I didn't see what was wrong with it. Now he's threatening me with 'legal action' if I don't refund him the full amount, but legally speaking what can he actually do. Can he even sue me, since I'm 17 and live in a different country? And is it likely that he would be successful, since we never made any form of contract? Any help is very appreciated, thanks! | Since you are 17 years old, any contract that you sign is according to US law voidable by you or your guardian until some time after you are 18. So if he tries to sue you, you can just void the contract and he has no leg to stand on. The money he paid you is just bad luck for him. He won’t have any copyright or license to use your code in that case. BTW. You have a verbal contract which is quite valid. With no other evidence, any court would assume that the contract was that you delivered what you delivered, that he has a license to use the code, and he paid the money that he paid. If you void the contract, he has nothing. | I am not a lawyer: If they sue you it will probably be for fraud, then the DA will investigate and can easily find out who you are. If they can prove that you signed the contract is another story. If the clause in the contract is valid yet another. Getting a lawyer might be wise, especially if your visa depends on a clean legal record. Have you talked to them yet? If you can afford it, you or your new company could pay off he months salary to the old company. In my opinion it's fair, they probably turned down a lot of other applicants an will either need to search again or find a good temp to replace you. Think there was something that you cannot quit a contract before it starts, but another option would be to start working for them and then realizing during the test period that it's a bad match. However, best lawyer up! Search for "Kündigung vor Beschäftigungsbeginn" (Cancellation before the start of employment) Quick google suggests that they might be right if they have it in the contract, but the lawyer will know for sure. Look for someone who does "Arbeitsrecht". | It is certainly possible to transfer a copyright or other IP without an explicit charge, indeed it can be a pure gift, and normally would be when it is left by will, as is common enough. From a paid consultant it might be clearer to include a statement that the transfer is part of the consulting assignment, rather than putting a price of zero in a blank. But one could instead convey a permanent non-exclusive license, granting permission to use or modify the work in any way desired, ans saying that this is provided as part of the consulting process. Then there would be no question of what rights the consultant retained, or that the same or a very similar solution could be provided to different clients. Indeed such a license would not be so very different from a CC-BY license, or any of several open source licenses, although I would not use one of those by name. But the legal effect would be much the same, and the wording could be similar. Otherwise there could be a later claim that the right transferred precluded the consultant from using the same solution for other clients. Even if such a claim was not legally sound, and was not upheld, it could be a distraction and costly of time and energy at least. | No The contract is created at the moment that an offer was accepted. In normal circumstances: You accepted an offer that they made to the general public by sending a purchase order for specific items at specific prices, or They accepted your offer by communicating their acceptance to you (being advised that the goods have been dispatched counts). However, in this circumstance, the company has been explicit that the contract is only created when either: You checkout and pay, or They “supply an invoice to you.” It appears that neither event happened so there is no contract. Their specific terms have overridden the common law rules on offer and acceptance (as they are allowed to do) and the offer has not been accepted until you receive their invoice. Specifically, it cannot be accepted by performance (dispatching the goods) and the requirement for the invoice to be supplied overrides the postal rule. Note that, in this case, you got lucky. 99 times out of 100 there would have been a valid contract and you would have breached it. In future, cancel orders specifically, don’t make assumptions. | Your understanding of the GPL is a bit off. GPLed code doesn't generally force you to GPL the output of the program, but that's just because the output of the program is normally not a derivative work of the program. For instance, if you write a novel in Emacs, your novel is an entirely original work. The fact that you used Emacs as a tool doesn't mean that your novel is somehow based on Emacs. This generator is different. It generates sprites by putting together art assets made by the program's creator. That means that the output contains a substantial amount of content made by the program creator, which means that it would likely be covered by the program creator's copyright. If the content was licensed to you under the GPL, you normally have to abide by GPL restrictions when you redistribute the content or incorporate it into your own program. Copyright holders can, if they want, grant additional permissions to their content and allow you to incorporate that content into nonfree software. For instance, the GCC compilers have an additional permission for their runtime libraries to let you use them in any GCC-compiled code; without that permission, GCC could only be used to compile GPL-compatible code. But unless the copyright holder has granted those permissions, when program output contains large amounts of their copyrighted content you're bound by the GPL when using it. In this case, the program specifically says that the art is dual-licensed under GPLv3 and CC-BY-SA-3.0. Since the generator's output is a combination of premade art assets (the buttons just let you tell the program which art assets to combine), the output is a derivative work of those assets. You can't use it unless your use is compatible with the GPL v3 or CC-BY-SA-3.0 (either works, since dual licensing lets you pick either license). | Let’s work it through Is the work copyright? Yes. Are you making a copy or a derivative work? Yes. Do you have permission? No. At this point, it is prima facie copyright violation. However, various copyright laws have defences for breach. You don’t say where you are but as the USA is the most permissive in this regard we’ll use the USA. If it’s not legal there, it’s not legal anywhere. If it is legal there, it’s still likely to be not legal everywhere else. is it fair use? Almost certainly not. Wizards of the Coast (the copyright owner) already do this. While this service is free for creatures from the Monster Manual, it does drive traffic to their web site where they sell stuff. They also licence (presumably for money) others to do the same. Your usage would negatively affect the copyright owners market. This counts against fair use. Because it’s already being done, your work has virtually nil transformative value. This counts against fair use. You are copying a substantial part of the work. This counts against fair use. You are not using it commercially but neither is it for educational use. This is unlikely to matter. On balance: not fair use. TL;DR This is copyright violation. | What does your contract with your client say? What does your contract with your sub-contractor say? Typically the client contract will not specify HOW the work gets done, just the deliverable(s), the price and the liability. Unless your client contract says otherwise, it's perfectly legal for you to farm out the work. It's also perfectly fine for you to deduct the cost of the sub. As long as that's profitable the IRS will have no problem for that at all: that's a perfectly normal business practice. Things are a bit more complicated if you farm out at a loss since that could be interpreted as a tax evasion scheme. However, as long as it's reasonable, that's fine. If there are defects in the work product, the client will come after you, regardless of who did the work. It's generally your responsibility to fix the issues, cover damages etc. You, in turn, can try to recover your damages from the sub, but that depends on the nature of the contract you have with the sub. | IANAL, just a programmer with an interest in legal rules. Due to the very permissive nature of the MIT license, no, it does not appear that anything illegal has been done. Specifically, the section to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software (emphasis mine) grants everyone the right to modify your code and share those modifications, provided one includes the license. Since this person has included your license (including your copyright notice), they have followed the conditions of the license and are able to share your stuff. Legally. Ethically, I still think its ****. This might be a good starting point in selecting a license (note the Modification column). https://en.wikipedia.org/wiki/Comparison_of_free_and_open-source_software_licenses The CC-BY-SA license family, as mentioned by Ron Beyer in comments is on this list, for example. TL;DR: You unfortunately granted a more permissive license than what you wanted/needed to. This was a BadThing(TM), analogous to giving too broad of access rights to a method or class. Determine your desired permissions, then select a license that matches what you'd like to grant. |
Can an estate be a beneficiary? My uncle was one of 4 beneficiaries of a large insurance annuity held by my recently deceased grandfather. My uncle passed away unexpectedly and tragically before Christmas leaving behind his wife whom is not a direct beneficiary. The family decided not to inform my grandfather as he was far gone with dementia and the news would probably cause him to suffer even more. Before any estate or beneficiary changes could be established however, my grandfather passed away a week later of natural causes. The estate lawyer said that my uncles wife is not entitled to any inheritance as she is not on the will or as the beneficiary of the above mentioned annuity being by far the largest asset in the estate. This is an uncomfortable situation now as it is not clear what the surviving three children of my grandfather will do. My father, stated he was going to give a quarter of his inheritance to my uncles wife but was concerned about double taxation as he would have to pay income tax on his distribution of the annuity and then my aunt would then pay income tax on her portion as it would greatly exceed the allowed gift exclusion of $15k. It is also not clear if my other aunts and uncles plan to be as generous as my father. Since the deaths were only a week apart, my uncles estate is still in full force so why exactly does his quarter of the annuity not go into possession by his estate then? Why cant my uncles estate just take the payout and pay he income tax on it directly, then get distributed to my aunt and closed out? The location is Pennsylvania, USA. | No Pennsylvania law § 2104 requires: (10) Requirement that heir survive decedent for five days.--Any person who fails to survive the decedent by five days shall be deemed to have predeceased the decedent for purposes of intestate succession and the decedent's heirs shall be determined accordingly. Now, a will can provide contingencies for if an heir predeceases the testator such as flowing to the heir's spouse or children but if it doesn't then the heir is treated as non-existent and what would have been their bequest is dealt with by the other provisions of the will. The life annuity is not a part of the grandfather's estate and the funds will be distributed in accordance with the terms of its own contract, not the will. Usually, this means at the discretion of the trustee and nominations of beneficiaries are usually non-binding on the trustee; that is, they can distribute the funds as they believe the decedent would want. Your aunt should seek proper legal advice quickly. | If the parents left the brother, let's call him Bob, full or partial ownership of the house in a will, or a long-term right of tenancy, then he has a right to live there. If they left no will, their property will be handled according to the local law on intestacy. The details vary from one Australian state to another, but if neither has a living spouse, their children will probably split the estate. This will probably include a share of the house, and so Bob will have a right to live there, unless a different division is made. Or the house could be sold and the proceeds split. Bob would not have a right to live there merely because he had been living there for some years, or even all his life. Nor would Bob have such a right if he had been caring for his parents, not for that reason alone. Everything depends on who winds up owning the house. Generally the owner or owners get to decide who may live in the house. A person could also be given or left a right of occupancy. A co-owner normally has a right to live in a house. But there is no automatic right of a child to live in his or her parents' house. | What would be an appropriate legal classification? A trust. How could this entity be structured so it could manage multiple estates? As a trust. Could this entity choose to keep, say, 30% for internal use e.g. resuscitation research? If that’s what it says in the trust deed, yes. How could this entity be made "recession-bulletproof," such that it could survive collapse of civilization? It can’t. Could it be given autonomy under the direction of a single person, or even sovereignty along the lines of a Mars colony? A trust is managed by its trustee(s) for the benefit of the beneficiaries. A trustee can be an individual or a corporation and there can be one or more of them. It couldn’t be given sovereignty - only nation states are sovereign. Could it be immune from legal jeopardy if it chose to accept clients who volunteer to be frozen before they die? No. What might happen to the estates if the economy is radically altered, e.g. a scarcity-free system where money is obsolete? Beats me - you’re the science fiction writer, you make it up. | Legalese is not required You can and should write a will in plain English. However, you need to ensure that your simple wishes can: Actually be understood, Actually be implemented, Don't have unintended consequences, Cover all bases. Use a lawyer I suggest that you write your simple wishes out as you have done and take them to a lawyer. A good lawyer will be able to: Draft a will and have it executed so that it complies with the law, Keep a copy of the will so that your executor can find the damn thing without having to tear your house apart, Consider the contingencies that you haven't. My lawyer charged me and my wife $150 each - 20 years latter the estate has twice as many children and would be worth several million dollars; I consider it one of the cheapest pieces of insurance I have ever bought. Contingencies Who is the executor of the will? This is the person who administers the estate until it is finalised. As written, you haven't named one: in most jurisdictions this makes the government's Public Trustee the executor. How and how much will the executor get paid? Executor's are entitled to be paid for their services. What happens if you and your wife are separated or divorced at the time of your death? Wills are not automatically terminated by these events. What if Bob is dead before you die? Or has emigrated? Or is insane? What if Bob dies in the same car crash that kills you and your wife? What if Bob dies after he becomes the trustee of the trust? Who will be your child's guardian? As written, Bob is responsible for the finances but he is not the guardian. The child would be reliant on kinship guardianship or become a ward of the state. For what purposes can Bob use the trust money? Education of the child? Vacations for the child? His own gambling problem? Can the trust borrow money? What types of investments can the trust make? Bolivian palm tree futures anyone? Does Bob need to get professional financial advice about this? Who will audit the trust to ensure Bob is behaving appropriately? Your wife falls pregnant tomorrow. Do you want to write a new will or have one that works no matter how many children you have? What if all 3 of you die in the same car crash? Who gets the estate then? Only people with no assets or dependants have a simple estate | Until the estate is settled and the interest in the house is definitively resolved, the estate has to pay property taxes. There is no requirement for the house to be insured, unless there is a mortgage and insurance is mandated by the lender. The duties of the personal representative generally include taking reasonable steps to protect the assets of the estate, which would include reasonable insurance coverage -- which the estate would pay for. Necessary maintenance would also be included in the things that are to covered by the estate, for example the cost of repairing a broken water pipe (which can cause serious loss, if not repaired). Freshening up the paint in preparation for selling the house, assuming that the house is to be sold and the assets divided, would also be covered by the estate. Utilities, on the other hand, are not within the realm of things that need to be done to protect the interests of the beneficiaries: that is a benefit to whoever lives there, making it their responsibility. The question is foot-dragging is a separate issue, one that should be resolved with the aid of your lawyer. I do not understand why he would maintain that the estate is responsible for paying the utilities. | No. As long as it is owned by him he is free to do as he likes. The wife / children do not have any claims as it is ancestral property and they can have a claim only after his demise. Until then, he is free to do as he likes legally. | Shareholders own the company There may be different classes of shares in a company with different rights (voting, dividends, preferential distribution etc.) but if you own a share you own (part of) the company. Just as a side note, there are companies that are not limited by shares - their ownership structure is different. Similarly, there are unit trusts where ownership of a share entitles you to distributions, making you a beneficiary but the owner is someone else (usually a holding company). | Not necessarily The laws of each country will apply to the assets held in that country. In some jurisdictions, inheritance is mandated by law and there is no freedom for a testator to determine who inherits what: Pakistan is one such jurisdiction. In Pakistan, if the deceased is a Muslim, then inheritance proceeds according to Islamic law and the will is irrelevant. If they are not a Muslim, then the law of their domicile jurisdiction applies - so for a resident of say, California, Californian succession law applies including following a will if one exists. South African law recognises freedom of testation (subject to certain limits) so a foreign will will generally be followed. |
Can Congress declare someone guilty of insurrection and bar them from standing for elections, without that being considered a bill of attainder? A Q&A to a related question on Politics SE quoted the 14th Amendment of the Constitution that: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. [...] The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. While that is true, it's also true that Congress cannot pass bills of attainder, declaring someone guilty of something and then punishing them. So can Congress itself just declare someone guilty of insurrection and bar them from standing in elections, without that being considered a bill of attainder? Or do they have to delegate the finding of fact (in re insurrection) to another body, e.g. to the judiciary? N.B. I'm aware that following a successful impeachment, Congress has declared some persons ineligible for office, e.g. judge Archbald in 1913. So maybe Congress can actually issue that kind of finding of fact outside an impeachment... because barring someone from standing for office might not be considered a punishment. (I vaguely recall reading that whether a measure is or isn't considered a punishment is fairly central to whether something is or isn't a bill of attainder.) | So can Congress itself just declare someone guilty of insurrection and bar them from standing in elections, without that being considered a bill of attainder? No. Even if it isn't a bill of attainder, the Congress can't do that. Or do they have to delegate the finding of fact (in re insurrection) to another body, e.g. to the judiciary? The issue would be presented when someone ran for public office and their qualifications were challenged, and would be resolved by state and local election officials, subject to judicial review. If that was not done, Congress could nonetheless refuse to recognize a state certification of someone's election on these grounds. | Impeachment is unique in that it is a question of politics, not a question of law, that is being discussed at trial. The other exception is that the Senate, not the Supreme Court, is the High Court of Impeachment (that is, legal precedence is based on what the Senate says, not what the Supreme Court or any other appellant court says). There are a few minor details, but the main part of the trial will play out like a criminal trial, with the Managers (people named by the house to argue the case) taking the role of the Prosecution and the Senate as the Jury. Because the trial is purely political in nature, a jurist decision to on the matter before evidence is presented at trial is entirely legal. It's actually perfectly legal to have your own opinion prior to trial start in a normal criminal jury and to vote on that ground... but the attorneys will dismiss you from the pool if they find even a hint of this. Unlike the judicial system, the jurists of Impeachment Trial are the same 100 people (presently) and cannot be dismissed for any reason, including comments about how they will find in the trial. Jury Fixing or tampering is when the decision a jurist makes is colored by some outside motivation to the jurists own convictions (i.e. the crime boss has your family and won't kill them if you find his hired goon innocent.). It could be an issue if a senator was given some pork to vote against his/her choice, but Impeachment is incredibly rare in the U.S. system and there hasn't been any case where this was an issue (If Articles of Impeachment are brought, this will be the 20 case to reach the trial stage since the adoption of the Constitution, and the 3rd for a President.). | 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 Constitution states the only possible restrictions on presidential power, thus a president can exercise the powers of the office except if dies, is impeached, or the 25th Amendment becomes relevant. If the VP decides to can can get a majority of the relevant principal officers to agree, POTUS can be deemed unable to discharge his duties. Congress has not designated any body other than the executive departments for satisfying that requirement. After the disability is communicated to the President Pro Tempore of the Senate and the Speaker of the House, the Vice President immediately assumes the powers of the president. However, the declaration of disability is revoked when the president informs the Senate Pro Tempore of the Senate and the Speaker of the House in writing that no inability exists, and he resumes his powers. Then, if within 4 days the VP and a majority of the cabinet again vote that the President is incapacitated and communicate that decision as above, then POTUS does not resume his powers. If and when this comes up, there will be some discussion about the timing of the re-vote. The amendment says, specifically Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Assuming that the inability is not instantly re-certified, then there are at least two ways to interpret this. One is that the president temporarily re-assumes power until 4 days pass or the disability is re-affirmed. The other is that the president must wait 4 days before re-assuming power (and the VP remains in power). Then SCOTUS will have to decide what the amendment "means". Assuming that the inability is re-certified within 4 days, then by a vote of 2/3 of both houses of Congress, Congress decides if POTUS is disabled. Specifically: If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office. In this case, the language of the amendment makes it clear that the VP becomes acting president. The unclarity is limited to whether, between declarations of disability, actions of POTUS are legal. | Article IX, Section 5 of the constitution says: Removal by impeachment or address. Every person holding any civil office under this State, may be removed by impeachment, for misdemeanor in office; and every person holding any office, may be removed by the Governor on the address of both branches of the Legislature. But before such address shall pass either House, the causes of removal shall be stated and entered on the journal of the House in which it originated, and a copy thereof served on the person in office, that the person may be admitted to a hearing in that person's own defense. This provides at least some mechanism for removing an AG. A subcomittee of the Judiciary Committee of the Maine Legislature reports here on the broader question of tenure of office. p. 5 opines that "Many members of the executive branch of Maine government hold their offices at the pleasure of the Governor and may be removed from office by the Governor's direction to vacate". p. 6 then holds that "For civil officers whose tenure is set by the Constitution, removal from office may only occur through impeachment or address," and the Attorney General is enumerated as one of those Constitutional Officers (referencing Article IX Section 11). The State of Maine web page says that there are three branches of government plus three constitutional officers (state, treasurer, AG) and one statutory officer, thus the AG is not part of the executive branch (and thus the AG does not serve at the pleasure of the Governor). | UPDATE: There is now a definitive answer. There Is No Binding Judicial Precedent Adjudicating The Key Standing Issues Raised That Are Factually Squarely On Point This is a novel argument. To my knowledge, this is the first time that any state has ever sought judicial relief arising from another state's election administration, so it is a case of first impression not directly governed by a factually similar precedent. Thus, rather than being governed by a precedent that resolved the exact standing question presented, we must result to more general principles. Because it is a novel argument, it is impossible to be completely sure how it will be resolved. General Considerations In Standing Law The General Rule Standing requirements require that there be a particularized actual injury to a legally recognized interest of the person suing. Standing is a subcomponent of subject matter jurisdiction. Standing is one of the things that must be present for a court to have subject matter jurisdiction. Standing is evaluated with reference to the merits. It exists if there is a recognized legal theory which, if proven, there has been a particularized injury to the person bringing the claim. Most standing cases involve legal claims for relief that it is clear that someone validly has and the question is whether this particular person can assert them. But a minority of standing cases involve the question of whether there is a recognized legal claim of the type asserted at all. No one has standing to assert a non-justiciable claim (i.e. a claim beyond the jurisdiction of all courts), or a claim for relief for which the courts do not legally recognize a remedy (e.g. a claim for not being chosen by a particular person to marry). As a result, standing can overlap with the argument that someone has failed to state a claim upon which relief can be granted. Generalized Grievances Don't Impart Standing Even if the law is perfectly clear that a law has been violated, that doesn't necessarily mean that anyone has standing to seek a remedy from a court for that violation of the law. To the extent that one has merely a generalized grievance shared in common with everyone (e.g. an interest in a correct outcome of a Presidential election, or a desire to have the government follow the law) that would not ordinarily suffice to establish standing. Texas does not have an interest in the outcome of a Pennsylvania or Georgia Presidential election that is any different from the interest of a citizen of Texas or me, a citizen of Colorado. But citizens of a state other than the one in which the election was conducted who aren't candidates in that election clearly don't have standing to challenge the outcome of an election in another state. If the Texas argument for standing is accepted, any voter in any state would have standing the contest the election results of every other state in every Presidential election (although not in the original jurisdiction of the U.S. Supreme Court). The Argument For Standing Offered By Texas And Its Flaws The Texas Argument For Standing The Complaint argues for standing as follows in paragraph 18: In a presidential election, “the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.” Anderson, 460 U.S. at 795. The constitutional failures of Defendant States injure Plaintiff States because “‘the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’” Bush v. Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds v. Sims, 377 U. S. 533, 555 (1964)) (Bush II). In other words, Plaintiff State is acting to protect the interests of its respective citizens in the fair and constitutional conduct of elections used to appoint presidential electors. The Bush v. Gore Precedent Doesn't Establish Standing Here But Bush v. Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds v. Sims, 377 U. S. 533, 555 (1964)) (Bush II) relied upon in the Complaint is not on point. Indeed, Reynolds v. Sims (which established a one man, one vote principle for state and local legislative redistricting) expressly recognized that the federal constitution would be illegal if a parallel system like the electoral college or U.S. Senate were enacted at the state level, but declined to hold that the 14th Amendment invalidated this portion of the U.S. Constitution (in part, because a valid constitutional amendments can't alter the equal representation of a U.S. state in the U.S. Senate without its consent). Bush v. Gore likewise was an intrastate election dispute alleging that the equal protection rights of voters in one part of a state were abridged by the voters in another part of the state having different election rules applied to them in a lawsuit between two candidates in the race who clearly did have standing (although not original jurisdiction standing in the U.S. Supreme Court, which is limited with other exceptions inapplicable here, to lawsuits between two states). The Claim That Texas Has A Legally Cognizable And Justiciable Interest In The Overall Result Of A Presidential Election Is Unprecedented And Dubious The Complaint's assertion that in a presidential election, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States, citing Anderson, is also problematic. First of all isn't technically true. The United States has 51 elections for Presidential electors, it doesn't have a "Presidential election" of ordinary voters. Perhaps an elector has standing to assert vote dilution, but an elector voting in that election, or a candidate, but they are not U.S. states and as a result, they can't bring lawsuits in the U.S. Supreme Court's constitutional original jurisdiction. In the same way, Texas can't sue Florida alleging that a U.S. Senate or U.S. House election in Florida was conducted incorrectly, because every U.S. Senate or U.S. House election impacts which party has a majority in that house of Congress. Instead, the Constitution, recognizing that the courts offered no national judicial election remedy to people outside a state with a disputed election, created a legislative one by vesting resolution of disputed Congressional elections in Congress, rather than the Courts. Hundreds of disputed Congressional elections have been adjudicated that way. Indeed, the only case of a genuinely disputed Presidential election outcome, the election of 1876, which is the closest precedent, is one in which Congress, rather than the Courts resolved the dispute regarding the overall Presidential election result based upon allegations of irregularities in a particular state. One of the leading U.S. Supreme Court bar members concurs with this analysis: Texas has no legal right to claim that officials elsewhere didn't follow the rules set by their own legislatures. The United States doesn't have a national election for president. It has a series of state elections, and one state has no legal standing to challenge how another state conducts its elections any more than Texas could challenge how Georgia elects its senators, legal experts said. "This case is hopeless. Texas has no right to bring a lawsuit over election procedures in other states," said SCOTUSblog publisher Tom Goldstein, a Washington, D.C., lawyer who argues frequently before the court. Second of all, it is irrelevant. Anderson didn't authorize one state to sue another state over its administration of an election. Even if the outcome of elections in other states have a de facto impact on other states, this doesn't mean that Texas has a legally cognizable interest in how another state selects its electors which is reserved to the legislature of the other state under the constitution. There are no precedents for one state having a legally recognized interest in the outcome of another state's election. It did not participate in the election as a voter or an administrator of that election or as a candidate. It doesn't even cast a vote for President in any case, the electors that it elected do that. The votes of the Texas electors are not diluted by the existence of electors in other states beyond the status quo expectation with no wrongdoing. Texas gets the same number of electoral votes relative to the total number of votes cast, regardless of who the electors of four other states cast their votes supporting. There is no allegation that another state got too many electoral votes. In contrast, Texas might have standing to sue if it was allocated just 12 electoral votes, when, the census results showed that it was actually entitled to 38 electoral votes. Being denied the right to cast the full number of electoral votes that Texas gets to cast probably is an actual injury and does not hinge on how another state administers its election of its Presidential electors. Links to the briefs filed by each of the four defendant states found here further detail the standing analysis in addition to other arguments. For example, Michigan summarizes its standing argument as follows: Texas lacks standing to bring its Electors Clause claim where its asserted injury is nothing more than a generalized grievance that the Clause was violated. The standing section in the Georgia brief explains that: Texas lacks Article III standing to pursue its claims. Texas alleges two types of injuries—a direct injury to the State and a supposed injury to its Electors, whom Texas seeks to represent in a parens patriae capacity. Neither is cognizable. A. Texas argues that it has suffered a direct injury because “the States have a distinct interest in who is elected Vice President and thus who can cast the tiebreaking vote in the Senate.” Mot. for TRO 14–15 (emphasis in original); see also id. at 15 (arguing that a “Plaintiff State suffers an Article III injury when another State violates federal law to affect the outcome of a presidential election”). Under governing precedent, that is not an injury in fact. A State—like any plaintiff—has standing only if it alleges an injury that is actual or imminent, concrete, and particularized. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560); see also id. (injury in fact is the “[f]irst and foremost” of the standing elements) (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 103 (1998)). But Texas has no cognizable interest specific to Texas in how the Vice President votes. Texas’s interest is in its own representation in the Senate; Georgia has not impaired that interest. Texas still has two Senators, and those Senators may represent Texas’s interests however they choose. Even by its own logic, Texas has suffered no injury. In any event, Texas’s speculation that the Vice President may one day cast a tie-breaking vote is not a cognizable injury. . . . Indeed, certain Vice Presidents—Mr. Biden, for example—never cast a tie-breaking vote during their tenure. Texas’s alleged injury is not the type of imminent, concrete, or particularized injury that Article III demands. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013) (a “threatened injury must be certainly impending to constitute injury in fact” (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990))); id. (standing theory that “relies on a highly attenuated chain of possibilities[] does not satisfy the requirement that threatened injury must be certainly impending”). Texas’s alleged injury is also not cognizable because it is a generalized grievance—the kind of injury “that is ‘plainly undifferentiated and common to all members of the public.’” Lance v. Coffman, 549 U.S. 437, 440– 41 (2007) (quoting United States v. Richardson, 418 U.S. 166, 176–77 (1974)); id. (The only injury plaintiffs allege is that the law—specifically the Elections Clause—has not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.”); see also Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018) (the alleged injury must be “distinct from a ‘generally available grievance about government’” (quoting Lance, 549 U.S. at 439)). The injuries that Texas alleges on behalf of its citizens are injuries that would be common to not only every citizen of Texas, but also every citizen of every state. Cf. Lance, 549 U.S. at 440 (“To have standing . . . a plaintiff must have more than a general interest common to all members of the public.” (quoting Ex parte Levitt, 302 U.S. 633, 633 (1962))). And in all events, by Texas’s logic any State would have standing to pursue the alleged claims because every State purportedly “suffers an Article III injury when another State violates federal law to affect the outcome of a presidential election” (Mot. for TRO 15). So Texas’s injury is specific neither to its citizens nor to Texas as a State. An injury unique to no one is not an injury in fact. Texas cites no case supporting its assertion that it has suffered an injury in fact. Texas cites Massachusetts v. Envtl. Prot. Agency for the proposition that “states seeking to protect their sovereign interests are ‘entitled to special solicitude in our standing analysis’” (Mot. for TRO 15 (citing 549 U.S. 497, 520 (2007)), but Texas strips that language of its context. The Court there explained that Massachusetts was entitled to “special solicitude” in the standing analysis because a State has a quasi-sovereign interest in “preserv[ing] its sovereign territory” and because Congress had afforded “a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” Massachusetts, 549 U.S. at 519–20; see also Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 182 (D.C. Cir. 2019) (explaining context of the Court’s reasoning). Neither thing is true here. In any case, Massachusetts involved a State’s loss of coastal property from rising sea levels, which is nothing like Texas’s alleged injury (a speculative tie-breaking vote by the Vice President). Texas has not alleged a direct injury in fact. B. Nor does Texas have standing to raise claims for its electors in a parens patriae capacity (cf. Mot. for TRO 15). A State may sue parens patriae only if it proves that it has Article III standing (see, e.g., Bernhardt, 923 F.3d at 178), which Texas hasn’t done. But even if it had, Texas would lack parens patriae standing because that concept applies only when a State seeks to vindicate the interests of more than a discrete and identifiable subset of its citizens (most often in the health and welfare contexts). See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982) (“[M]ore must be alleged than injury to an identifiable group of individual residents . . .”); Pennsylvania v. New Jersey, 426 U.S. at 665 (a State may not sue parens patriae when it is “merely litigating as a volunteer the personal claims of its citizens”). Here, Texas purports to represent the interests of only thirty-eight people (its Electors). But Texas’s problems run even deeper. This Court has explained that “[o]ne helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue as parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers.” Alfred L. Snapp & Son, 458 U.S. at 607; see also Bernhardt, 923 F.3d at 178 (same). That is not the case here. Under our federalist system, Texas could never “address through its sovereign lawmaking powers” how another State elects its Electors. Texas lacks parens patriae standing. C. Texas also lacks standing because it asserts the rights of third parties. A plaintiff generally “cannot rest his claim to relief on the legal rights or interests of third parties” unless the plaintiff establishes (1) a “close” relationship with the third party and (2) a “hindrance” preventing the third party from asserting her own rights. Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004). Otherwise, the plaintiff fails to present a “particularized” injury. See Spokeo, 136 S. Ct. at 1548; see also Warth v. Seldin, 422 U.S. 490, 502 (1975) (“Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”). . . . The Eleventh Amendment bars Texas citizens from bringing such claims against Georgia in federal court, so Texas cannot circumvent that bar when asserting such individual rights in a parens patria capacity. See Georgia v. Pennsylvania R. Co., 324 U.S. 439, 465 (1945) (“By reason of the Eleventh Amendment the derivative or attenuated injuries of that sort are not enough for standing. See, e.g., Hollingsworth v. Perry, 570 U.S. 693, 708 (2013) (“It is, however, a ‘fundamental restriction on our authority’ that ‘[i]n the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.’” (quoting Powers v. Ohio, 499 U.S. 400, 410 (1991)). The Pennsylvania opposition brief's section on standing explains that: Article III, Section 2 of the United States Constitution limits the jurisdiction of the federal courts to resolving “cases” and “controversies.” U.S. CONST. art. III, § 2; Raines v. Byrd, 521 U.S. 811, 818 (1997). That same jurisdictional limitation applies to actions sought to be commenced in the Court’s original jurisdiction. Maryland v. Louisiana, 451 U.S. 725, 735-36 (1981). To establish standing, the demanding party must establish a “triad of injury in fact, causation, and redressability.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103 (1998). More specifically, that the plaintiff has suffered injury to a legally protected interest, which injury is “fairly traceable to the challenged action and redressable by a favorable ruling.” AIRC, 576 U.S. at 800; see also Maryland, 451 U.S. at 736. This Court has “always insisted on strict compliance with this jurisdictional standing requirement.” Raines, 521 U.S. at 819. For invocation of the Court’s original jurisdiction, this burden is even greater: “[t]he threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence.” People of the State of N.Y. v. New Jersey, 256 U.S. 296, 309 (1921). Texas fails to carry this heavy burden. First, Texas cannot establish it suffered an injury in fact. An injury in fact requires a plaintiff to show the “invasion of a legally protected interest”; that the injury is both “concrete and particularized”; and that the injury is “actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). According to Texas, the alleged violations of Pennsylvania’s Election Code undermined the authority granted to the Pennsylvania General Assembly under the Electors Clause.8 Motion at 3, 10-11, 13-15. But as the text of the Electors Clause itself makes clear, the injury caused by the alleged usurpation of the General Assembly’s constitutional authority belongs to that institution. AIRC, 576 U.S. at 800 (legislature claimed that it was stripped of its responsibility for redistricting vested in it by the Elections Clause). The State of Texas is not the Pennsylvania General Assembly. See Virginia House of Delegates v. Bethune-Hill, __ U.S. __, 139 S.Ct. 1945, 1953 (2019) (noting the “mismatch between the body seeking to litigate [the Virginia House of Delegates] and the body to which the relevant constitutional provision allegedly assigned exclusive redistricting authority [the General Assembly]”). Second, Texas’s claimed injury is not fairly traceable to a violation of the Electors Clause. As discussed above, each of Texas’s allegations of violations of Pennsylvania law has been rejected by state and federal courts. Third, Texas fares no better in relying on parens patriae for standing. It is settled law that “a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.” Pennsylvania, 426 U.S. at 665. The state, thus, must “articulate an interest apart from the interests of particular private parties.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Baez, 458 U.S. 592, 607 (1982). In other words, “the State must be more than a nominal party.” Ibid. That, however, is exactly what Texas is here. Texas seeks to “assert parens patriae standing for [its] citizens who are Presidential Electors.” Motion at 15. Even if, as Texas claims, the presidential electors its citizens have selected suffered a purported injury akin to the personal injury allegedly sustained by the 20-legislator bloc in Coleman v. Miller, 307 U.S. 433, 438 (1939), which they did not, that does not somehow metastasize into a claim by the state rather than those presidential electors. The 20-person bloc of legislatures in Coleman sued in their own right without the involvement of the State of Kansas. Ibid. Texas has no sovereign or quasi-sovereign interest at stake. It is a nominal party, at best. 8 In its motion, Texas disclaims a “voting-rights injury as a State” based on either the Equal Protection or Due Process Clauses. Motion at 14. Rather, Texas claims that its legally protected interest arises from “the structure of the Constitution” creating a federalist system of government. Ibid. As discussed infra, to the extent Texas relies on the Equal Protection and Due Process Clauses, those “Clauses protect people, not States.” Pennsylvania, 426 U.S. at 665. Wisconsin's standing arguments are as follows: At a minimum, to invoke this Court’s original jurisdiction, Texas must demonstrate that it has “suffered a wrong through the action of the other State.” Maryland v. Louisiana, 451 U.S. 725, 735–36 (1981). But Texas is unable to allege that Wisconsin itself did anything to directly injure Texas’s sovereign interests. Instead, Texas advances a far more attenuated theory of injury—that the other States’ supposed violations of their elections laws “debased the votes of citizens” in Texas. Mot. for P/I at 3. This speculative logic is not nearly enough to carry Texas’s burden to prove, by “clear and convincing evidence,” a “threatened invasion of [its] rights” “of serious magnitude,” New York, 256 U.S. at 309. Indeed, Texas’s allegations fall far short of what would be required by Article III in any federal case—that is, a showing that a plaintiff has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant[s], and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). It is well settled under the Court’s original jurisdiction cases that “a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.” Pennsylvania v. New Jersey, 426 U.S. 660, 665 (1976). Apart from attempting to rely on the “personal claims of its citizens” as electors or voters, Texas struggles to identify any traditional sovereign injury to support its claim under the Electors Clause. Instead, Texas proposes that this Court recognize a new “form of voting-rights injury”—an injury premised on the denial of “‘equal suffrage in the Senate’” somehow caused by the election of the Vice President. Mot. for Prelim. Inj. at 14 (quoting U.S.Const. art. V, cl. 3). Texas makes no freestanding constitutional claim to this effect. In any event, this argument makes no sense. Texas does not (and cannot) argue that it now has fewer Senators than any other state. By definition, therefore, it maintains “equal suffrage in the Senate.” Texas’s attempt to garner standing for its claims under the Equal Protection and Due Process Clauses fares no better. These “Clauses protect people, not States.” Pennsylvania, 426 U.S. at 665. If Texas’s theory of injury were accepted, it would be too easy to reframe virtually any election or voting rights dispute as implicating injuries to a States and thereby invoke this Court’s original jurisdiction. New York or California could sue Texas or Alabama in this Court over their felon-disenfranchisement policies. . . . . This case does not satisfy the direct-injury requirement. Texas speculates that Wisconsin’s facilitation of mail-in voting during the pandemic may have increased the likelihood that third parties would engage in instances of voter fraud in Wisconsin. Texas does not offer a shred of evidence that any such fraud occurred. And Texas does not allege that Wisconsin directed or authorized any individual to engage in voter fraud. Nor would any such allegation be plausible. In any event, this Court long made clear that its original jurisdiction does not extend to “political disputes between states arising out of [the alleged] maladministration of state laws by officials to the injury of citizens of another state.” Stephen M. Shapiro, et al, Supreme Court Practice 10-6 (11th ed. 2019); see Louisiana v. Texas, 176 U.S. 1, 15 (1900)) (“Jurisdiction over controversies of that sort does not embrace the determination of political questions, and, where no controversy exists between states, it is not for this Court to restrain the governor of a state in the discharge of his executive functions in a matter lawfully confided to his discretion and judgment.”). It is hard to imagine a case that more clearly runs afoul of that principle than a dispute over the outcome of the presidential election, premised on the alleged maladministration of state election law. The Existence Of A Legally Cognizable Interest Needs To Be Evaluated In The Context Of The U.S. Constitution As A Whole The question of first impression concerning whether a state has a legally cognizable interest in the administration of an election in another state needs to be evaluated in the context of the U.S. Constitution as a whole. The Constitution says a fair amount about election administration and disputed elections that in context disfavors the notion that one state has a legally cognizable interest in how another state administers an election administration. All federal elections in the United States (outside the District of Columbia) are administered by the states and by the local governments and agencies created by the states. State election laws must conform to federal requirements, and candidates participating in elections or voters in that state have standing in many cases to litigate whether those state and federal laws were conformed to by state election administrators. Each election of electors is separate and prior to 1852, Presidential elections weren't even held on the same day even though the Congress had the authority to mandate a single Presidential election date. The process of determining a total outcome of the election by aggregating state electoral college votes is vested in Congress by the constitution, not in the judicial branch, and so there can be no legally cognizable interest in this non-justiciable issue. Therefore, not only does Texas lack standing to bring this suit on the theory asserted that Texas is injured by an aggregation of electoral votes including votes allegedly made by improperly certified electors. No one has standing to do so in any court of law. | First, the practical answer is no: even if they ordered the President to go to war, the President can just refuse. The military is generally in the habit of listening to orders from the President, particularly if the question is "do we or do we not go to war;" the courts do not have the power to command the armed forces. They could try issuing an injunction instructing the military to go to war, but the injunction would be ignored. They could try holding people in contempt, but the President is in charge of almost all federal law enforcement (and can pardon criminal contempt), so that's not going to work. And even if the President could be punished for contempt, if he thinks intervening will result in the annihilation of the human race in a thermonuclear war, he will not issue the orders. But that's assuming the courts would even try to intervene. They wouldn't. Courts don't generally want to issue orders that they know will be ignored. In this case, the relief being sought (i.e. an order to do something) is a kind of relief that is up to the discretion of the court. So even if a court would be legally justified in issuing that order, they have an easy out. (For damages claims, Congress can just refuse to appropriate any money to satisfy them; no federal money can be spent unless Congress appropriates it). There's an even earlier out, though. Courts are not political branches of government; one of the basic rules of jurisprudence is that courts should not get involved in deciding something that's really up to the elected branches. Baker v. Carr had a list of factors to consider: a textually demonstrable constitutional commitment of the issue to a coordinate political department; a lack of judicially discoverable and manageable standards for resolving it; the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; an unusual need for unquestioning adherence to a political decision already made; the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Foreign relations in general is very often grounds for deference, as is military strategy. Courts are utterly unqualified to determine proper diplomatic or military actions to take, or to evaluate whether the President's actions were enough to meet the requirement of "do what's necessary to restore security;" foreign policy is a case where a country needs a unified face (because other countries aren't particularly willing to deal with US internal politics), and where the courts could easily screw up what the government is doing; and whether to send Americans to war is a question that is clearly a matter for those accountable to the people. So, federal courts cannot analyze this question to decide whether or not the government has done anything wrong; it's for the other two branches to decide. | It is not the case that treason must be tried by a military tribunal. See for example US v. Kawakita, which was an ordinary civilian jury trial. I cannot even imagine why one would think that there is any such requirement. Here is the federal law against treason, and nothing says "offenses must be tried in a military court". Perhaps that misconception was based on the use of military tribunals during the American Revolution, which preceded the creation of a US legal system. |
How can someone sell their car in California whilst overseas? How can someone sell a car in California without being present to sign the required documents (title etc)? Selling a car in California requires the seller to sign documents such as the title, when selling the car. If the seller is not present, but has someone available locally who is looking after the vehicle, how can they deal with the legal requirement to be present, if they are not able to physically be there (e.g., COVID-related travel restrictions)? For the purposes of this question, the current owner owns the vehicle outright, with no liens etc, and the seller's local contact is able to print out required documents etc. | You can give your friend limited power of attorney in respect to selling your car, if you trust your friend enough with managing this transaction. Basically this is just a legal form you sign telling anybody who questions that you give your friend the legal right to stand in your place (in legal matters) and act as if they were you. The limited part is important as you don't want to give unlimited power of attorney (not sure you even can without more involved work), but you need to spell out exactly what your friend can do, like sign your title, sign and deliver a bill of sale, and complete a transaction in your name. Your friend would be signing their name to the title and submitting it with the power of attorney paperwork. In California, the DMV has a specific form for exactly this. You should print out, sign, and mail that form to your friend. | Parents do not have the right to their child's property. See this question. The parent cannot sell the house as they don't own it. The minor does- there is no law that says they cannot own real estate. There are limits on what minors can and can't do with it but this simply means that the legal guardian would be involved in selling it. Even if the parent was the legal guardian they would be selling it on behalf of the child. Depending on the age of the child this would involve either their consent or this being in their best interests. The contents are more complicated. In theory, if they were also inherited by the child, no. In practice it would be difficult to prove ownership. The most reliable way to prevent this would be taking physical possession of any important items by removing either the item or the parent from the house. | TL;DR: You have to do something to accept a document; a signature is often used because it is simple and permanent; signature alone is often not enough (e.g. wills); claiming a false signature annuls the contract for both parties and you cannot keep the accrued benefits. Signing something means you accept it and it becomes legally binding. Many things can become binding without signature (including your usage of this website) and signatures alone are not considered trustworthy in many circumstances. Important documents (e.g. wills, marriages, real estate transactions) in many jurisdictions require a public official (notaries, marriage commissioners etc.) or a trustworthy person (lawyers, doctors, professional engineers, etc.), who will often require rigourous identification documents, and/or witnesses to be involved for the documents to be legally effective. Some high-value commercial transactions will also involve witnesses for signature, or require witnesses for executions of certain articles. Otherwise I can always claim that I didn't really sign that document when it becomes convenient for me. You can and people do. Then the parties go to court or other dispute resolution mechanism, and the judge will consider all relevant evidences to decide (often on a balance of probabilities, i.e. more likely than not) if you consented to a document. Particularly, "when it becomes convenient for me" is often after some elements of the contract having been executed, which is evidence in favour of the existence of the contract and nonexistence of a contract removes obligations and rights for both supposed parties, as such the executed part could be undone. If for a sales contract the other party has sent you a computer, you cannot claim that you did not sign that contract and keep the computer they sent. Without the contract, the computer is not rightfully yours. Also, claiming false statements for benefit or under oath is fraud/perjury and can be criminally prosecuted. So, why are they used everywhere? You have to do something to affirm your consent to a document. It is symbolic but symbolic does not mean meaningless and a symbol of your consent is often desirable. A signature is simple and: affirmative of your intention, unlike a simple visual inspection of document (perhaps eventually someone will argue your eye movement can be used, e.g. for VR) permanent, unlike oral declarations (which can still be legally valid, even if hard to prove)1 which is enough for most purposes. As a bonus, it is also somewhat unique and can be compared to certain extent. For purposes demanding higher level of confidence, ID documents can be demanded and more complex procedures (e.g. with notaries and witnesses) can be undertaken. Of course, you could make an audio recording for oral declarations, but audio recorders were not commonly available and it would be too complicated if the entire contract is not read aloud in that recording. | You have the right to notify the owner of the car of their vehicular trespass and the consequences of that. You do not have the right to damage the car in giving said notice. You have the right to offer to clean the gum off whatever part of the car you stuck the notice to. If you succeed in cleaning it,the other party will not have a legal cause of action, in all likelihood, since there is no damage (though with a bit of imagination they might come up with some 'missed business opportunity' loss). The court would probably find your choice of sticker to be negligent (put the notice under the wipers? use painter's tape -get some if you don't have any). The rationale 'we had no other choice' holds no water: there are alternatives. 'Criminal Damages' is a concept in UK law, but it relates to willful damage such as vandalism, not accidents. It would be an issue if you had planned to cause damage, but that seems not to be the case here. | 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. | When a person dies intestate, California law (or the law of any other state) does not allow a presumed heir to unilaterally legally take over the estate, or part of the estate. This most likely involves a court procedure to decide who gets what. However, if all parties agree, it would be possible for one or more heirs to occupy the house without them owning it – this creates a legal mess that can be difficult and costly to untangle, so presumed-heir squatting is not a good idea. Ultimately, the property will have to go through probate in order for it to be sold to someone else. Obviously, property taxes and other assessments must be paid, but the state does not care who writes the check. There are also liability issues, if the property damages other property (example: the underground oil tank ruptures and pollutes the neighbors' property). If one of the heirs disputes the arrangement, they can sue to force proper disposition of the estate. Creditors may also have a legal claim against the estate. A person can petition the court (here is the form) to be appointed as the personal representative of the deceased. If someone else has "taken" the property, this petition triggers questioning as to who is entitled to a share of the estate, and the court will assure that it is distributed according to law, and if this is an adversarial process, each interested party may need to hire their own attorney (thus it is best to reach an agreement beforehand). | When you buy a company you acquire all its assets and liabilities If the vendor wishes to retain some assets they need to buy them from the company; before, at the time of, or after the sale. The value of a company is its assets less its liabilities plus the present value of its future cash flows all adjusted for risk. If the company owns a fleet of motor vehicles then their market value is part of the assets (and any finance on them is part of the liabilities). If the managing director wants to keep their company car then they need to have it transferred to them and it won’t factor into the valuation That said, its usually only public companies (or large private companies on the verge of going public) that are bought. Because private companies have variable levels of management skill, there could be contingent liabilities no one knows about and a new owner is unlikely to want to take these on. Private companies usually sell their assets (including the “business”) to insulate the new owner. | It is not legal in the case of a company. They must also accept communications by post. In the UK, "a company must at all times have a registered office to which all communications and notices may be addressed." (s 86, Companies Act 2006). It must display the address of its registered office on its website, business letters, and order forms (r 25, Company, Limited Liability Partnership and Business (Names and Trading Disclosures) Regulations 2015). It must also disclose the address to you if you ask for it in writing (r 27). A failure to do either of these is a criminal offence (r 28). As a practical matter you can also look up the address yourself on the Companies House register if you know the name or registered number of the company. The company must provide you with its registered name on all forms of business correspondence (r 24) (this is a wider definition than that for disclosure of its registered office address). A company cannot rely on the fact that the registered office address it has given to Companies House is out of date. It must continue to accept communications at any address on the register for 14 days after it notifies Companies House of any change. (s 87, Companies Act 2006). |
Howey Test for Real Estate Business vs. Farm Land? I have no education in legal matters and was only thinking about some investments. I stumbled on something called the Howey Test and tried to read a little about it. I still don't understand it, and will demonstrate my confusion with a scenario. Scenario Renzo owns a house. Renzo sells the house to Samir. Samir wants to generate rental income with the house. Samir has no experience in the rental business. Samir pays Renzo $2k per month to perform the following services: find suitable tenants for the house by performing marketing services, background checks of tenants etc... maintain the property (eg. cut the grass, fix toilet, re-shingle root etc...) manage any financial issues such as paying taxes, etc... Based on the above points, does this scenario pass the Howey Test? Do any of the following points (or combination of points) affect the scenario's ability to pass the Howey Test? Samir and Renzo are siblings Samir and Renzo agree to split any profit/loss generated from the rental income Samir owns all the profit/loss generated from rental income. Renzo does not make any other income beyond his $2k per month. The value of the house at time of transaction was under $100k USD The value of the house at time of transaction was over $100k USD Note I don't fully understand the term common enterprise. I was hoping someone can give an example of common enterprise based on the points I mentioned in the scenario. When trying to read wikipedia's article on SEC v. W. J. Howey Co., I couldn't confirm why anyone would want to buy land from W. J. Howey if both of these conditions are true: they have no agricultural experience they have "no right of entry and no right to any produce harvested" (is this the same as saying you own nothing but the land? If you don't own the produce harvested, then how do you sell it for money/profit? What use is the land then? Buyer's of the land only opportunity to profit is based on capital gains appreciation?) | In the Hovey case, the purchasers would get the profits from the agricultural operations, less a service fee. They would not operate the farms themselves, nor get the produce. Instead they would hire the associated company "Hovey in the Hills" (HH) to run the farms, and get only money. HH had the "sole right" to run the farms and sell the produce. Consider a somewhat similar situation. I want to build and operate a mall. I don't have enough money to do this on my own. So I sell shares of the enterprise. By contract, I retain "sole right" to build and operate the mall. The investors will not do any part of the work of running the mall, and their skill and knowledge will not be used and will have no effect on its success or failure. All that they get is a share of the profits from my work, in return for providing the money which lets me create the mall. The mall is the common enterprise here, and the money provided by others is an investment. Suppose instead I want not investors but partners. Each of the partners will pout up money, but they will also co-operate in creating and running the mall. Decisions will be made jointly, after consultation. Partners will be expected to some part of the work, and it is our joint skills and efforts will will lead to success or failure. That would not be an investment in the sense of Hovey, because the profit would not derive solely from the work of others. In the scenario in the question, Renzo does all the work, Samir only puts up money. The amount of profit will depend on the skill and efforts of Renzo in maintaining the house, finding tenants, and collecting rents. As described, this would seem to pass the Hovey test, and be classed as an investment. This would be true whether Renzo gets a share of the profit or a fixed fee, and whether the value of the house is over or under $100,000. | However, he wants a new security deposit and a month's rent for the time we will use it in March, claiming that the sale process makes us new tenants. What are the legal rights and legal obligations of an estate in a month-to-month rental situation? The estate is just starting the probate process, and I am unclear on whether the landlord is a "traditional" creditor or in a unique situation since the money he is owed for rent continues to accrue after death. The decedent's security deposit, less valid deductions, is property of the estate, so if the landlord takes a second security deposit he is double dipping. Generally speaking, after someone dies, money judgments that have not been reduced to judgment liens, and unsecured debts (i.e. debts not supported by collateral) only have a right to be paid via submission of a claim to the probate estate in the probate process with claims made paid according to a priority schedule set forth in the probate code. But, generally speaking, death does not impair the property rights of third parties, so the fact that a debtor's estate is in probate is usually not a basis upon which a foreclosure or repossession of collateral for a default on a secured debt, or an eviction due to the termination of a lease, may be postponed while the probate case runs its course. Probate does not have the equivalent of the "automatic stay" in bankruptcy that prevents any creditors, secured or unsecured, from engaging in any collection activity against an estate, and probate estates are not allowed to file for bankruptcy either. If you really wanted to play hardball and only needed the apartment for a few days in March, the estate could simply continue to occupy it for that period of time and they pay the landlord the extra month's rent but not the additional security deposit when it was done. The landlord can't begin a foreclosure proceeding until there is a default which can't happen sooner than the last day of February. Even if the landlord is really on his toes, the landlord will be hard pressed to get a notice to vacate served on the estate and then to prepare and serve an eviction lawsuit on the estate and get that case in front of a judge before the estate will be ready to move out anyway. The estate might incur some attorneys' fees in the process if it did that, but the attorneys' fees would be an unsecured claim of the landlord that would have to be collected through the claims process in the probate proceeding which is usually a fairly favorable forum for the estate, instead of the usual court where small landlord-tenant disputes are handled. The probate estate could simply deny his claim for attorneys' fees and then, if the landlord wanted them after making a claim, the landlord would have to bring a lawsuit on fairly tight deadlines in the probate court to have the disallowance of the claim overturned. If you wanted to be even more aggressive, rather than paying the last month's rent, the estate could just holdover into March without paying rent or a new security deposit (vacating before the eviction process can run its course), effectively forcing the landlord to use the security deposit for March rent, and then forcing the landlord to use the probate claims process for both damages to the property claimed and for an attorneys' fees. If the estate is insolvent, or if the claim wasn't filed by the landlord (who may not even know that it is necessary to file a claim in probate) within the short deadline for probate claims arising after death, those expenses just wouldn't get paid at all. | Michigan law say nothing about landlord entry, so whatever it says in the lease is what is allowed. Various sources like this comment on the lack of such statutory regulations. There does not appear to be any relevant case law for Michigan which impose restrictions on a landlord's right to access a rental. Since there is no statutory or case law restriction on landlord's right to access his property, landlord's agent would have the same right to access. That would mean that if the listing agent were authorized by the landlord to enter, then the agent could enter, and it would not be necessary for the landlord to accompany this agent whenever entry was needed. That does not mean that a "listing agent" that happens to work with a landlord has an independent right to enter the landlord's property. The same would go for repairmen. It is actually not clear to me whether there could be blanket permission for any and all with access to the lock box to enter, since pretty much any realtor can enter a house for sale, subject to whatever the stated limitations are, and they don't call the owner for each entry. I suspect that one would not have legal grounds for imposing a particular additional restriction on a landlord's right to access and permit access to the property, since there's no overriding statute, and restrictions on landlord access mainly derive from statutes. | "Public space" is not a relevant criteria when considering trespass or other crimes/torts against property. The relevant criteria is who owns it and what they allow you to do on it. All land in the USA is owned by someone. That someone may be a government; that does not make it a public space - Camp David is owned by the US government; it is certainly not public. The owner of the land can decide (subject to the law) who has access to their land and in what circumstances. If they erect a fence then they are saying "You cannot access my land here" - if you ignore this then you are trespassing. This is true even if there are legitimate ways to access the land i.e. there is a place where there isn't a fence; to avoid trespass you would have to access the land from there. If you think of this in terms of a public building like a courthouse you are free to enter through the unlocked front doors but not by climbing through a window. The trespass is in the act of crossing the fence - that is the act that you have been implicitly denied permission to do. Being on one side or the other is not trespass. For the specific image that you show it is quite likely that those roads are owned by different people - the highway is probably owned by the state while the cul-de-sac is a local government road. | user662852 has a good point -- whoever own the property has the right to make the rules. Is the property, land+construction in fact your's or does it belong to the HOA who just grant you access as a lease holder? Different states has different rules, but in my state it is illegal to maroon a property and there must be a access to public streets even when this necessitate passing over somebody else land. However that is irrelevant if the HOA owns the land your house is build on. I think you will have to look at your HOA agreement and see what it says. | This is a context where you need to lawyer up. There are two issues, his share of the costs, and his permission to construct in part on his property. You mother has the same rights, so she likewise can refuse to sign off on his scheme (the lawyers negotiate a resolution). Assuming both parties are insured and (to make it more complex) have different insurance companies, the companies limit how much they will contribute for their part of the damage. Normally, you find a contractor who will do it for a given price, let's say $10,000, and the parties split the cost. Both parties have an interest in the choice of contractor because of cost issues, and quality of product and service (though the insurance company cares about the cost). If one of the parties is a contractor, they too can legitimately submit a bid, and then the parties can decide which is the best bid. It is not fraud if a contractor, who is an insured, submits a bid and makes a profit on the job. It would be fraud if that party withheld material facts from an insurance company. In the context of massive disaster insurance claims, the insurance companies may not perform a rigorous investigation (e.g. may not ask for multiple bids). It would then be a material fact that one of the insureds stood to profit from this arrangement, so the insurance companies would likely wish to see evidence that the costs were not unreasonably inflated. If the neighbors bid is in line with industry standard (and the insurance companies know who the contractor is), there is nothing fishy about the arrangement. This assumes that both parties are being cooperative with each other. When that is not the case, lawyers are good at getting cooperation (not letting the other party push their client around). | Non-residential tenancies are subject to Fla. Stat Ch. 83 Part I. This is statutorily a tenancy at-will unless a contrary agreement is in writing signed by the lessor: the duration of the lease is yearly, quarterly, monthly, weekly as determined by the periodicity of rent payments. There are various legal conditions related to rent default and causes for removing tenants, also conditions about premises that are wholly untenantable. Unlike residential leases, there are not any special statutory conditions surrounding the landlords presentation of leases. Florida law contemplates and allows the possibility that there are no written documents, and for non-residential tenancies has very little to say about it (only pertaining to the distinction between at-will vs not at-will leases). Therefore, the matter follows the general rules for contractual disputes: whoever makes the best case for their claims wins. If Bob has a scanned copy, that is excellent proof. If Alice alleges and proves that the scanned copy was modified, that disposes of Bob's evidence. If Alice presents a copy of the contract that says otherwise (I do mean copy), then this anomaly has to be explained. Bob can claim that they tore up Alice's original and renegotiated the deal, but he needs to prove that claim. If Alice presents the original contract, Bob's story becomes much less plausible. There are millions of variants of what might happen: the point is, there is no requirement to present the original signed document to support a claim in a contractual dispute. | If the owner of the intellectual property leaves property subject to the jurisdiction of the state of Washington, and it is determined that the owner is dead and has no heirs, then per RCW 11.08.140 it is designated escheat property. Then the following sections specify that title to the property vests in the state. The Department of Revenue has jurisdiction over that property, which has the duty to protect and conserve the property for the benefit of the permanent common school fund. There is no general answer to the question of what would best benefit the school fund. Any form of giving it away would not benefit the school fund, at least if there was an viable option for sale / licensing. There are provisions that relate to the possibility that an heir is eventually uncovered, but I will assume that no heir ever appears. Ohio law is similar. The decendant's property escheats to the state in case there is no heir. Then under ORC 2105.07, the prosecuting attorney of the county in which letters of administration are granted upon such estate shall collect and pay it over to the county treasurer. Such estate shall be applied exclusively to the support of the common schools of the county in which collected. |
Can one use already said sentences as examples on a language lesson? Suppose I teach English (at school or I'm a private teacher, or I'm writing a book, or I'm creating an app - the point is that people pay me). In my teaching materials I give examples of correct sentences written in English. In the world there are correct English sentences which are already said or written: in books, in songs, in vlogs, in the comments on StackExchange. Can I use such sentences (in the written form) in my teaching materials without asking permission to or paying anyone? If so, must I put the source of the sentence? Let's assume I'd just take one sentence from one context (1). I'd like to spread my teaching materials internationally. Are there any catches? (1) I mean that, for example, I wouldn't write "We are the champions, my friend. We'll keep on fighting till the end", I would write at most one of these sentences. | 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. | Yes, if the book was published in 1913, the copyright has expired. You can freely scan it in and publish it. But note you have NO copyright to the material. You didn't write it. Copyright law gives rights to the AUTHOR of a work. It doesn't matter how much effort you went to scanning it in and formatting it. Nothing in copyright law says that that gives you any rights. If you add anything creative of your own, you would own the copyright to the new material. Like if you drew new illustrations and added them to the book. Or if you included your own commentary. Or you added explanatory footnotes. That still wouldn't give you rights to the original text, but you would own the new material. But in the same vein, if the book was originally published in 1913, but the copy you have includes material added by a later editor, that later material might still be protected by copyright. Just a side thought, it occurs to me that if I was going to republish a public domain book, a good idea would be to add footnotes. If my footnotes appear on almost every page, then no one else could just take my electronic files and sell them himself. He'd have to go through page by page and purge out all the footnotes. Make it hard for someone to "borrow" your work and you might scare them off. | This kind of quotation, for commentary, criticism, or reference, is generally allowed without obtaining permission. In the US, this falls under fair use (see 17 USC 107. In the UK and most commonwealth countries, it falls under fair dealing. In other countries there are various exceptions to copyright that will probably cover this. Even answers that do not directly quote the rule books often use information from those rulebooks to write an answer. Facts and ideas are never protected by copyright, so this is not going to be an issue. See 17 USC 102(b), which provides: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. As a comment by user Trish reminds, game rules are facts and are not protected, although their exact wording may be. | There isn't to the best of my knowledge, any single document that tells courts to follow precedant or when and how to do so. Each State, and the Federal government, has a set of court rules of procedure. These will indicate, among many other things, the form that should be used in citing previous cases, but that is about form, not content -- about how to cite a case, not about when a court should or should not cite one. Some precedents are what are called persuasive. These are from other court systems: say a different state, or even another country. These also include rulings from other courts at the same level, say from a different district, or even from lower courts. Other precedents are binding. These are from a superior court to the one where the case is cited. In a state's lower court, rulings of that state's supream court are binding. In Federal district courts, rulings of the Court of Appeals for the same Circuit, and of the US Supreme Court are binding. In Federal appeals courts, rulings of the US Supreme Court are binding. They are also binding in state courts on matters where the US constitution is involved, or where Federal law supersedes state law. Prior rulings of the same court are strongly persuasive, but not strictly binding -- a court can overrule its own precedents when it thinks the law or justice requires this, although most courts are reluctant to do so. Or more often it can distinguish a previous ruling, saying, in effect: "that previous ruling is still valid, but this is a different case in such and such a specific way, so the result is different". Students in law school spend a good deal of time learning how precedents are cited, and how they should be used, learning what sorts of things are controlled by precedents, and how to find the precedents that apply to a particular case. When they become lawyers and then judges, they taken this body of learning with them, and use it in writing decisions, and opinions that explain those decisions. New law from the legislature can reverse previous court decisions, except in the case of decisions interpreting the constitution (federal or state). Amendments can change the constitution. Judges must adapt to such changes in the law. To a significant extent our system of precedent is a matter of tradition, going back largely to the common-law courts of England, although it has been modified by specific legislation in many ways, as well as by more recent court decision and practice. It is passed on in law schools, in legal apprenticeships of various kinds, and in individual court decisions. | Course assignments, like practically every other piece of written content created in the past 100 years or so, are copyrighted. You cannot copy or redistribute them without the permission of the copyright holder. In most cases that would be the course instructor, but it could also be the university, or the publisher of a commercial book or other resource where the questions came from. The instructor might be happy to give you permission if you ask - many professors would be pleased to have their creations reach a wider audience. In any case, it is perfectly legal to talk about the assignment you were given, as long as you do not copy or replicate the text of the assignment itself. Reading it verbatim or with trivial alterations would be a problem, but describing it completely in your own words doesn't infringe copyright. A separate issue is what is allowed by your university rules. University rules aren't laws, but you can still be punished academically if you break them (grade penalties, suspension, expulsion, etc). The university might have a policy against sharing, or even discussing, assignments without permission. This might include forbidding actions that the law itself allows. In particular, they might forbid you from talking about your solutions to the assignments, which copyright law would have no problem with (your solution is your own creative work, and the copyright on it belongs to you). So again, ask your instructor what they would allow. Also, academic ethics (which again is not a law, but might be enforced by your university) would generally require that you give proper attribution to the author of the assignment you are discussing. Note that there are plenty of online collections of so-called "open courseware", where the university deliberately makes their course materials public, under some sort of open license such as Creative Commons. MIT's repository is one of the most famous. So if you can't get permission to use the materials from your Penn State courses, you could always make videos about MIT's assignments instead. | There is no particular mention in the OSCOLA guidelines for how to refer to laws of England and Wales. In academic papers it is common to see both "English Law" and "English and Welsh Law", usually depending on whether the particular point relates directly to England, Wales or both. However, in the case of Welsh Measures and Statutory Instruments of Wales then it would be correct to only describe the laws as "Welsh Law". | In the example given, both elements must be established. This is the most common meaning of the word "and" in a statute or rule or contract or other writing, but there are times when "and" does not have that meaning. One must always determine the meaning from context on a case by case basis. Words do not have a single universal meaning in all contexts for legal purposes. This variation by context in the meaning of words for legal purposes is especially frequent in countries with common law legal systems based upon the English legal system such as the U.S., Canada, New Zealand, Australia, and India to have situations where a word often means one thing in one legal context and another thing in different legal contexts. This is because the governing statutes and case law are written on a piecemeal basis by many different people with no one in charge of maintaining stylistic uniformity, over a very long period of time (often centuries). In countries like those of Continental Europe, Latin America and much of Asia and Africa, which have what are called "civil law" systems, that are based on European civil codes, there are comprehensive codifications of the basic laws of the land that are drafted by experts all at the same time, and amended only with great deliberation and care, and these codes tend to use a word more consistently in most contexts than common law legislatures and judges do, although even then, this principle is not absolute. | Yes, there is legal precedent against this that would only apply to a government employee. First, let's discuss the private sector. In this case, you are a private employee that comes to your place of work and accuses you of "stealing the cookies from the cookie jar" which is a serious criminal offense. They wish to talk and your boss is in the room. You plead the 5th, but your boss says you're fired if you don't talk to the cops. This is legal because you still have the right to refuse to talk, you just lose your job. A private employer has the right to free association, and wants nothing to do with cookie thieves, alleged or actual. However, in the government employ, your boss is an agent of the government. This same situation is different because the government pays the boss and the agent... so in essence the government is saying talk or be fired. This is unconstitutional as the government cannot retalitate against you for your refusal to talk. Generally, in order to talk to you, the investigator would need either a signed Garrity Statement or a Signed Kalkines Statement. The former is a statement saying that they are investigating a wrong doing but you cannot lose your job if you refuse to speak to the investigators, where as Kalkines says you must talk but you are granted immunity for your part in the wrong doing, so long as you make truthful statements. For more on this, check this legal blog. There is also the matter that a false accusation (and let me be clear... this is academic, I'm not saying the accusation in the real life topic is false, nor am I saying that the defense is false... we're merely discussing a possibility) is made to your employer and they do not offer the job on the basis of the accusation alone, this is grounds for defamation actions... and in certain jurisdictions, it's criminal defamation, so there could be jail time. It's interesting you mentioned teachers, because this happens alot. Kids do know that there are certain things that get a teacher fired quickly, so teachers do get the occasional false accusation of sexual assault (I know one teacher who has had multiple accusations over the course of her career). One of the few good things I can say about the Teachers Union is they cover the legal defense of accused teachers. The accusations do get the teacher removed from the class for sometime, but they don't lose their jobs over this matter. It's followed up but the accusation doesn't immediately lead to the teacher getting fired.. |
Murder by dropping 3-million bouncy balls? What If... #52: Bouncy Balls stipulates: If you wanted to be sure of killing someone, you'd need a lot more balls. 3,000,000 of them—enough to fill a large room—would be be enough to guarantee that the target would either be crushed to death by the impact or buried too deep to dig themselves out. To your last question, if someone just happened to walk underneath when you dropped the bouncy balls, and they were killed by the impact, you'd most likely be guilty of some form of manslaughter. However, by asking this question, you've shown your intent to cause harm to the victim, demonstrating clear malice aforethought. By writing in to this blog, you've probably upgraded your charge to murder. Assume we are in Utah and repeat their Geekweek experiment with the calculated 3-million bouncy balls, set up to fall in a way that it could do what Randall calculated and lead to the death of a passerby. Did we satisfy murder by having read his calculation? What if we had sent in the question in the first place? | Murder is definined in Utah as: Murder is causing the death of another person under any of the following circumstances: ... Knowingly engaging in conduct which creates a grave risk of death to another person and under circumstances which evidence a depraved indifference to human life. It's not unreasonable to consider dropping 3,000,000 bouncy balls over a populated area as "depraved indifference", particularly if someone had asked/read the question and would therefore know the potential consequences. Whether the killer would be charged with murder or manslaughter depends on the exact circumstances. | Yes. The principle caselaw is R v Hayward (1908) 21 Cox 692 A husband and wife had an argument that led to the husband chasing his wife out into the street. The wife collapsed during this altercation and died. Whist the husband did not physically touch her, he did shout threats at her. The wife was found to have been suffering from an abnormality of the thyroid gland that neither was aware of that meant that fright or shock could cause death if combined with physical exertion. The husband was charged with manslaughter. [...] The husband was found guilty of manslaughter. No actual proof of violence was necessary as long as the defendant’s unlawful act, which was the threat of violence, caused her fright leading to her death. The criminal law acknowledges that an assailant must take their victim as they find them... Source And... The defendant chased his wife out of the house shouting threats at her. She collapsed and died. He did not physically touch her. She was suffering from a rare thyroid condition which could lead to death where physical exertion was accompanied by fright and panic. Both the defendant and his wife were unaware she had this condition. Held: The defendant was liable for constructive manslaughter as his unlawful act (assault) caused death. The egg shell (thin) skull rule applied. He was therefore fully liable despite the fact an ordinary person of reasonable fortitude would not have died in such circumstances... Source | 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.) | This is going to vary based on jurisdiction. In Wisconsin, the attempt statute covers all felonies, but it doesn't cover all misdemeanors. The statute says: Whoever attempts to commit a felony or a crime specified in s. 940.19, 940.195, 943.20, or 943.74 may be fined or imprisoned or both as provided under sub. (1g), 943.20 is in that list, and it just so happens to be the theft statute, which includes theft via fraud. So Eve is out of luck - her attempted theft is a crime, even if she doesn't try to steal the $2500.01 needed to trigger a felony. The penalty listed for attempts is half the sentence you'd get for the completed crime. But even if this wasn't covered by the attempt statute, once the police start investigating Eve, they'll likely find a victim, or some other crime to charge her with. People who do this sort of thing tend to have a pattern of doing this sort of thing. And I notice she's using the Internet to commit the crime; that means she's involved in systems affecting interstate commerce, and she may be breaking all manner of federal laws in addition to state laws. | 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. | 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. | Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception. | Most likely, they chose enough victims to ensure a long prison term while having plenty of additional victims to charge if something went wrong at trial. Plus limiting the number of victims limits the amount of repetitive testimony and evidence the prosecutors had to introduce proving the death of each victim. If you charge with 19 counts when there are 492 victims and something goes wrong at trial, whether you think but can’t prove that the mob paid off a juror or whether you just get an oddball juror that votes to acquit, you can always pick some of the remaining 473 victims to bring charges. The prosecutors could have failed in 24 straight trials for 19 charges of manslaughter and still been able to bring charges a 25th time (though that would have been highly unusual). If you charge a defendant with manslaughter, you have to prove the death of a particular person. So there has to be evidence that Bob Smith went to the club, Bob Smith’s body was recovered and identified, Bob Smith was autopsied and the cause of death was smoke inhalation, etc. That gets repetitive after a time and jurors start thinking of the victims as numbers rather than people. Limiting the number of charges makes it much easier to make the victims seem like distinct humans to the jury. You can show pictures of the victims at trial and jurors can recognize particular individuals not just “1 of 492 dead people”. |
Growing hot chilis in private but accessible garden I own a few acres of land in a community garden were I plan to grow some of the hottest chilis in the world. The community garden is clearly marked as private property and fenced in. However the gates are not locked and can be opened by anyone. As a matter of fact the community garden plots are near a popular hiking and jogging track and it is a well known "secret" that random people regularly walk through the gardens - which is not a big deal. However it is sadly also known that a good amount of people seem to think we dont mind if you pick an apple or two, some strawberries or whatever - this is a whole different topic. The chilis I am growing - in terms of hotness - can cause damage to ones health (sensitive body parts like eyes, heart attacks, ...) if handled improperly. According to the description above it seems to me that the trespassers that are just walking through can be considered innocent without criminal intent and in that role will also not be affected by the chilis. As far as I know it is also not an "attractive nuisance" for animals (chili plants evolved to be a literal unattractive nuisance) or children (fruits, vegetables and so on are not a primary target) running around unaccompanied. Which leaves me with the people stealing fruits from my garden. Is picking fruits/vegetables from private property already enough to be considered criminal intent which would mean I am not liable? While my location is Switzerland I think this might also be interesting for other countries. Therefore some common law or US interpration would also be interesting to hear. | At common law and in the majority rule in U.S. law, the obligation one owes to a trespasser or thief is to refrain from setting deadly traps. In this case, where the product is not inherently dangerous, it probably wouldn't count as a deadly trap, but best practices would be to post a conspicuous sign along the lines of "warning: consumption of these peppers could cause deadly health complications" near the peppers and to document (e.g. with a dated photograph) that this was done. The bigger liability would not be to a trespasser, but to someone in the next plot over which accidentally mistakes a ghost pepper for the cool Bell pepper that they put in their own plot, especially if the harm if foreseeable because the person planting the hot pepper knows that a frail elderly person with poor vision maintains the next plot over and grows similar looking peppers. | There appears to be no "oppressive child labor" occurring and therefore no breach of labor laws. The definition of oppressive child labor expressly excludes employment by "a parent or a person standing in place of a parent" except in identified hazardous occupations; gardening not being one of those. Notwithstanding, schooling in California is compulsory between the ages of 6 and 18 subject to a number of exemptions which the person concerned may or may not have. If you are concerned about this you should contact the Department of Education. | I don't know what you mean by "own a person's DNA", but analogous to owning a car or picture, you can't own a person, which is what would be required to have complete ownership of all of a person's DNA. You can legally own a sample of a person's DNA, for example by buying or bartering tissue, or if you are given tissue. If you grab a handful of hair from a person and pull it out, it is not legally yours, and you can be required to return it. If you lose, misplace or abandon tissue (or a knife), then the finder could end up owning it, depending on the circumstances. Tissue in the trash is more complicated since there may be municipal laws preventing dumpster-diving. Setting aside any such municipal codes, if you abandon your property, someone else can claim it. Hair on the floor of a barbershop, or in the trash, is a good example abandonment: it could also be an example of trespassing, in case the barber objects to you gathering samples from his floor. The 4th Amendment cannot be used to secure your DNA: it could be used to prevent securing DNA, if the intended application is compelled blood drawing. The ruling in Maryland v. King did not say that "your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason", since that was an objection to the majority ruling given in the dissent, not part of the actual ruling. Maybe that will end up being true, but that hasn't been determined to be the law yet. With a warrant, the police can take a tissue sample, and not wait for you to throw a tissue sample in the trash. They can also take a cheek swab from an arrestee just like they can take a photo or fingerprints (that's what Maryland v. King says). Once we've settled the matter of obtaining a DNA sample, the concept of ownership might be relevant if a party could restrict others from using that DNA pattern. But DNA is not subject to patent or copyright, so once I know your DNA pattern, you cannot legally prevent me from using that information. However, you might, if I gave you a sample as part of a contract, and there is a clause in that contract that prevents the other party from ever using that information. | A private venue normally has discretion over who may attend their premises, as long as it is not because of membership in a protected class under anti-discrimination law. Note that the communication, as quoted, did not say that the banned person was a threat, but only that one of the performers felt uncomfortable. I do not think that the banned person has any legal recourse, unless they can plausibly assert that this is a case of unlawful discrimination, which the question does not suggest. | Actually, neither the council nor a private owner are responsible for illegal actions by unauthorised people on their property. This is obvious: if an intruder enters your property and, while there, shoots someone you cannot be held responsible. However ... Since you have made them aware that there are intruders on their property acting illegally and causing a nuisance to the neighbours and they have done nothing they are quite likely negligent, even recklessly negligent. Rather than sue them, consult a lawyer and get them to write a letter that if they do not take action by X date you are going to sue them. | There is, as far as I can see, no legal definition of picnic in England and Wales. In the absence of such, the convention applied by the UK courts is to use the normal meaning of the word; usually by reference to the Oxford English Dictionary (which is behind a paywall so I've used its free online version here)... An occasion when a packed meal is eaten outdoors, especially during an outing to the countryside. (My emphasis) | There appears to also be bribery of local officials as well. Not to mention, He operates with impugnity out of "The North Pole" which is I believe a TRADEMARK of a certain (now aging) USA male porn actor. I'm SO guessing that Santa is gonna appear out of nowhere, when the arctic oil drilling rights are being carved out among the abutter nations...and he's going to sit his fat tuchie all over those rights. Yaw, biotches! SANTA be in da hous! EDIT: it's almost certain that if Santa delivered a "My Little Pony" doll to little Elise in Akron, Ohio, USA...he violated a bevvy of Bern convention laws around intellectual property. Come to think of it..."Santa" is somewhat of a MODEL for "China" when it comes to IP law... | In the UK, no offence is committed, however many public locations cite the Data Protection Act 1998 as a reason to stop people taking pictures. DPA does not mention this topic at all, and is a red herring (however informing the location of this is unlikely to help, I have discovered) In fact, in the UK, the only laws that appear to exist cover either specific locations and properties (eg military installations) or using photography to take pictures of individuals in areas where they have an expectation of privacy. The Photographer's Rights Guide published by digitalcameraworld in 2012 is still current as far as I can see. It has this specific guidance: Photographers Rights: Taking Pictures of People in Public Are you breaking any law when you’re taking pictures of people in public? Probably not, but the position under UK law is uncertain. There are currently no general privacy laws under UK law, but the UK courts must take into account the European Convention on Human Rights, which gives everyone the right to respect for their private and family life. As this is an area of law that has been developing rapidly over the last few years, it is hard to be certain what will constitute an infringement. The key issue is whether the place the image is taken is one where a person would have a reasonable expectation of privacy. For example, it has been suggested that the right of privacy of a child could be infringed by publishing a photo of them with their parents in a public street. It is therefore advisable to be careful when taking photos intended for publication, even where the subject matter is in a public place. Failure to obtain a model release for the use of an image will certainly make it harder to sell the picture to stock libraries. Photographing children The same laws apply to adult and child subjects, but a child does not have the legal capacity to consent and a parent or guardian must therefore do so on their behalf. Be aware that schools, leisure centres and places where children and adults gather usually have their own photography restrictions. Although decent photos of children (see our tips for better pictures of babies, children and teenagers) taken in a public place may be fine for non-commercial use, seek permission from the child’s parents or guardians and don’t shoot covertly with a long lens. For commercial images, you’ll need to get a model release signed by the parents. Also read the section on the powers of police and security guards. |
Would a possible pardon of the US Capitol rioters stand if President Trump is convicted At the time of asking this question, President Trump has been impeached by the US House, but no trial date set by the US Senate. However, if Trump were to grant blanket pardons to all those who participated in the US Capitol riot today (Jan 15 2020) and he himself was convicted of inciting the same insurrection, would the pardon stand or would it be null and void? | The pardons would stand and continue to be valid. There is a minority view that the "except in cases of impeachment" language in the pardon clause of the U.S. Constitution deprives a President of the pardon power after impeachment until there is a U.S. Senate non-conviction. But the majority view is that this clause merely states that the loss of political office and prohibition on seeking future political office resulting from a U.S. Senate conviction in an impeachment trial cannot be removed via the pardon power. In the majority view, a President has all of the powers and authority of the office, including the pardon power, until the moment of a U.S. Senate conviction following a impeachment by the U.S. House (or the end of his term of office due to resignation or expiration of the President's term of office). Neither view, of course, has ever been resolved authoritatively in the courts because it has never come up before historically. Also, a group pardon would not absolve the President himself of criminal liability. The majority view (again never tested because no President has ever attempted to do so) is that a President may not pardon himself at all. But all other persons who benefit from the pardon would be relieved of criminal liability as a result. | In short, no, that cant be a pardon for those police officers who would be now influenced to take more violent actions towards those they detain. Pardons are only applicable to past actions. You may be pardoned before charges are filed, but the actions must have already occured. Though I less certain about this, simply because Ive never heard such a thing proposed, I would also note that it is highly improbable that the actual statement he made - generic and during a speech - could everbe interpreted as an affirmative act intending to grant pardons to anyone who may act in that manner in the future. | Yes... whether the judge will grant the subpoena is another matter and one that it is to premature to speculate on. With what I have seen of the indictment, Pence was not named as a witness in the investigation, which will call into question why he is being asked to testify to events that were not used to indict Trump (if he saw something, that should come out in the investigation prior to trial.). Without some show that the testimony was material to the investigations findings and the charge I doubt it would be granted... but there's nothing stopping the prosecution for requesting the subpoena. | It is hard to know what to call the people who entered the capitol and its grounds without biasing the answer by the selection of terms. I am going to call them "intruders" because I must call them something to make an answer. If police or other authorized people actually invited the intruders in, then some otherwise possible charges go away, at least for those so invited. But the videos and other news coverage I have seen do not appear to include any such invitation. Some do include police or security shouting at intruders to "stop" or "stay out". Some show intruders breaking doors or windows to gain access, and others coming in through such broken openings. I don't see how anyone who entered in such a way could plausibly argue that s/he was invited in. Documenting exactly who said and did what during the hours that the intrusion lasted, would be a huge effort. I doubt it will ever be fully accomplished. But it seems clear that many laws were violated by at least some of the intruders, both Federal laws and DC laws. These might include: Criminal tresspass DC Code § 22–3302 Unlawful entry on property. Penalty: fine and up to 6 months imprisonment DC Code § 22–3211 Theft. Penalty: Up to 10 years, depending on circumstances and value of property. Up to 180 days for 2nd degree. See § 22–3212. DC code § 22–404 Assault or threatened assault in a menacing manner Penalty: fine and up to 180 days; up to 3 years if "serious bodily injury to another" results (defined as requiring prompt hospital treatment) DC Code § 22–405.01 Resisting arrest. Penalty: fine and up to 6 months. [DC code 18 DCMR 2000.2] Failure to obey police officer. Penalty: fine up to $1,000. DC code § 22–2101 Felony murder, for those who can be proved to have engaged in robbery, housebreaking or any of the other listed felonies (most of which would not apply). 18 U.S. Code § 1752 "Restricted building or grounds" Possible penalty: fine or imprisonment for not more than 10 years for those using or carrying firearms or dangerous weapons, up to 1 year otherwise. Several subsections of this were probably violated by many of the intruders. 18 U.S. Code § 1361 "depredation against any property of the United States". Penalty: Fine plus up to 10 years if value over $1,000, up to 1 year if under $1,000. 18 U.S. Code § 2112 Robbing personal property of the United States. Penalty: up to 15 years. Some intruders were seen in videos carrying off fixtures and property from the capitol. 18 U.S. Code § 930 - Possession of firearms and dangerous weapons in Federal facilities. Penalty: fine and up to 1 year; up to 5 years if there is intent to use the weapon to commit a crime. Some intruders are seen carrying guns. 40 U.S. Code § 5104 Restricts various activities on the Capitol grounds including: "A person may not step or climb on, remove, or in any way injure any statue, seat, wall, fountain, or other erection or architectural feature, or any tree, shrub, plant, or turf, in the Grounds." and "may not carry on or have readily accessible to any individual on the Grounds or in any of the Capitol Buildings a firearm, a dangerous weapon, explosives, or an incendiary device". Also, "may not knowingly, with force and violence, enter or remain on the floor of either House of Congress." also a person may not "parade, stand, or move in processions or assemblages in the Grounds; or display in the Grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement." without authorization. 18 U.S. Code § 231 A person who transports a firearm for use in a civil disorder, or obstructs a law enforcement officer in the course of a civil disorder. Penalty: Fine and up to five years. 18 U.S. Code § 2384 - Seditious conspiracy. Discussed at length in the lawfare blog article Penalty: fine and up to 20 years. Which, if any, of the above laws might actually be charged against one or another intruder there is no way to know yet, and there way well be other provisions which would apply that I have not thought of or found. | If President Trump refuses to execute the war, does that become an act of treason on his part? Probably not, but it depends on the definition of treason. Congress could decide that it is, impeach him, and remove him from office. They could also remove him from office without using the term treason. Is he required to act on such a resolution? Not really. As chief executive, he has discretion to prioritize the tasks assigned to him by congress. Furthermore, there is plenty of precedent in international affairs for countries being legally in a state of war without any actual combat or other hostilities. If he doesn't, is there any recourse other than impeachment to force US armed forces to attack RF interests at home and abroad? There's always political pressure. But there's no way to relieve the president of his command of the armed forces without relieving him of his office. Aside from impeachment by the congress, this can be temporarily achieved by the cabinet, as specified in the 25th amendment. POTUS is the commander-in-chief, but, at the same time, he is not allowed to unilaterally decide who may or may not cross the border into the United States. The president's ability to make immigration policy and the fact that such policy is subject to judicial review are unrelated to his powers as commander in chief. Immigration is a civil and criminal matter, not a military one. The president's powers in this regard are delegated to him by congress, not specified in the constitution. On the other hand, the president's role as commander in chief of the military is explicit in the constitution. Do the judges also have a power to compel armed forces to take actions which a sitting President is refusing to take? The judiciary does not have the power to order military operations. | The consequences for the US are perhaps better addressed at Politics; if you're really interested in those consequences, you can re-post this question there. For the police officer shooting a diplomat, the officer may be charged under state law, whatever is normal for an incident of this type; it doesn't matter whether the person is a US citizen or a diplomat or any other kind of alien, regardless of immigration status or lack thereof. If the person is a diplomat, however, the officer is also liable to be prosecuted under federal law, namely 18 USC 1116, which makes it a crime to kill, among others, a "foreign official"; the definition of that term includes any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States on official business, and any member of his family whose presence in the United States is in connection with the presence of such officer or employee. The characterization of the response "just been revoked" as "clearly legal" is inaccurate; a police officer has no power to revoke diplomatic immunity. In fact, only the diplomat's own country can waive this immunity. The United States cannot do so; it can only expel the diplomat. | To start, for this hypothetical to happen, a whole bunch of decisions contrary to sanity have to happen: The Vice President and President Pro Tempore do not invoke the 25th Amendment to temporarily remove the President from office Congress does not issue Articles of Impeachment The President does not pardon himself The District Attorney decides to prosecute the sitting President rather than waiting for his term to be over There are probably more I'm missing. With that out of the way, in theory there's no law that says a President cannot serve while in prison, and simply being a felon does not disqualify him from the Presidency. The judge might order that while he was still serving as President, he serve his time under house arrest - he'd constantly be surrounded by police officers, so it would be pretty difficult for him to run, and it would keep him as as able as possible to keep performing the official functions of the office. The judge could also just defer his sentence. Putting him in regular prison would have serious national security implications, both in terms of protecting his person and in allowing him to effectively serve as Commander-in-Chief, so the government could probably make a compelling case against putting a sitting President in prison. According to this Senate Report, the President will also continue to receive Secret Service protection once he leaves office, so long as he is not removed by Impeachment. There doesn't seem to be a provision against that protection if the President is in prison, so the Secret Service would be obliged to find a way to protect him while he is in prison. Most likely this would mean he would be put in an isolated prison wing, possibly with Secret Service protecting his section. | No punishment followed because those policies are not the law, and, even it was found out earlier, no Inspector General would have the authority to dismiss Mrs. Cliton, it's POTUS's prerogative, as I understand it. That is true for maybe 10 people max in a government department. For the tens or hundreds of thousands of employees who weren't appointed by the President to serve at their pleasure, violating policies can lead to suspension, fines, or dismissal. |
Is blurring a watermark on a video clip a violation of copyright law, or is it legal? We own a list channel on YouTube, we make videos such as “7 Biggest Houses in the World” everything is under fair use (we have a voiceover over the clips and we use minimal footage as possible) and sometimes there are watermarks on video clips, are we allowed to blur the watermarks on the clip? I know for a fact that cropping a watermark is a direct violation of copyright law, as stated on “Section 1202 of the U.S. Copyright Act” but what about blurring a watermark? One of my competitors that has 3 million subs on YouTube and he always blurs watermarks on video clips, really confused on if blurring a watermark is a direct violation of copyright law or if it’s ok to do and legal? If you search on YouTube "the finest 15 biggest trucks in the world" and if you go to 2:27 - 2:29 of the video, they’re blurring the watermark on the video clip and they do this for every video, so is this legal? Because news channels do that as well where they blur watermarks on video clips. | 17 USC 1202(b) states: Removal or Alteration of Copyright Management Information.—No person shall, without the authority of the copyright owner or the law— (1) intentionally remove or alter any copyright management information, (2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or (3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title. In the suggested sample, it is impossible to judge whether the blurred SE corner is “copyright management information”, defined in para (c), because it has been, well, blurred. For example, if the blurred portion says "Call now, operators waiting" or "Don't do this at home!", that is not copyright management information. Assuming that this is the manufacturer's name (the video being a work for hire so Terex holds the copyright), then blurring that label without permission would be a violation of this section of copyright law. | NOTE: This answer assumes jurisdiction in the US. No. Length does not determine whether or not something is fair use or not. There was a court case (Harper & Row v Nation Enterprises, 471 U.S. 539 (1985), all credit to Dawn) where it was determined that just a few paragraphs from a 300+ page biography were infringing content, due to them capturing the "heart of the work". As user6726 said, in your example the clips you mentioned are most likely licensed. Also, courts tend to look poorly on things that are simply "shared" claiming fair use against copyright claims. Now, if you were to use a short clip as an example of something you were explaining, teaching, or critiquing, that would be different and would more likely be fair use. It is important to note that there is (by design) not a clear cut line if something is or is not fair use. There is a set of guidelines, but determination is made on a case by case basis There are a couple of cases that it is out and out NOT fair use, but none for fair use. This is because fair use is an affirmative defense, which is to say, you admit to the offense, but claim an exception to the rule. Self-defense as a defense to charges of homocide, assault, etc. works in a similar manner. | Assuming the USA, since that's where they appear to be located. Spreading misinformation is not illegal- it is protected by the first amendment. There are exceptions but I can't see how any would apply here. You haven't mentioned any that you think apply. If some of the videos on the site guaranteed results or made medical claims, maybe that could be considered false advertising. However, I see no evidence of this. Users are advertised that paying for access to a bunch of hocum videos will get them access to a bunch of snake oil and this appears to be the case. | Such an image is copyrighted, as part of the movie. You cannot legally use it without permission from the copyright holder, unless the use of the image falls under fair use (note that fair use is a strictly US legal concept. It does not apply anywhere else) or a similar exception to copyright, such as "fair dealing". There are multiple factors which must be considered in making a fair use judgement. No one factor ever totally controls the decision. It is a case-by-case decision. But several things about your proposed use suggest to me that it will not qualify as a fair use. The image is part of a creative work, not a work of non-fiction such as a news report or a textbook. That weighs against fair use. You seem to be using the whole image, although it is only part of the movie. That probably weighs against fair use to some extent. A use in "a social media post regarding a sales vacancy" sounds commercial to me. If so, that would weigh against fair use. The copyright owner might well wish to market images from the film. If so, and if many people used images from the film as you propose to use this one, that might harm the market. This weighs against fair use. You don't seem to be making any comment on the image, or using it in any significantly transformational way. That weighs against fair use. Use of the image does not seem vital or even important to the message you intend to communicate. That also weighs against fair use. In short, I think you would be wiser to use an image that you have or can get permission to use in this way. If you use this image, it is possible that the copyright holder would sue for copyright infringement, or issue a DMCA take-down notice, or both. | The author of that work owns its copyright. Barring a licence that gives you the right to use it, you are infringing copyright. (I'm assuming no fair use in this case; i.e. the YouTube clip isn't actually about the audio track.) If you pay for licences, make sure the licence allows for the purpose you intend to use it for. | In general, a gameplay video would be either a partial copy or a derivative work, and in either case an infringement if created without permission. Such a video might be covered under fair use in US copyright law, particularly if made for the purpose of commentary on a game or instruction in how to play or design a game. In general, a fair use defense is more likely to succeed if only the minimum amount of the work required for the purpose is used, and sound tracks might not be required for such a purpose. Thus a maker of such a video might choose to omit the sound to improve the fair-use case. Moreover, when the sound track contains licensed popular music it would be subject to a separate copyright, and many music publishers are notoriously litigious, so prudence would advise omitting the sound. All that said, fair-use is a case-by-case determination, and if the makers of such videos have not been sued, they (and we) can only guess how a case would turn out. As to why game makers refrain from having such videos taken down (if they in fact do refrain) one can only speculate. Game publishers may consider the videos good advertising. Questions based on the absence of legal proceedings are inherently speculative, unless a copyright holder has announced a policy of not taking action and the reasons for it. | Video would not be transformed in any way, and discussion would take place on reddit or other discussion platforms. So you are copying someone else's video and reposting it verbatim and in full in vimeo, without adding any additional content of your own? What is even the need for it? If you want to discuss the video in Reddit or similar, you can link to the original video instead of your copy. The usual way that fair use is used is when you include the relevants parts of the work being criticized as part of your video. There are other points to take into consideration; IP lawsuits are very specific of the details of the works involved (for examples it could be easier to consider fair use the inclusion of the full original work if it were a short one that if it were a long one) so it is difficult to give an absolute "yes" or "no" answer. But what you attempt to do seems highly problematic. If your argument were valid, what would prevent me from setting an URL to download the latest Hollywood blockbuster because I am commenting about it on Reddit? Imagine that I start selling copies of "The Avengers XXII: A day at the Park"1 adding just a note at the end saying "I like this movie, but they played frisbee a lot too much" as opinion/commentary/criticism... do you think that it would qualify as "fair use"?2 Coupled with the fact that it seems that copying the video seems not necessary for commenting on it (again, just link to the source) I would consider more prudent3 not copying it. 1Well, technically I would say that I were selling my opinion (which is perfectly legal), with the film included only as "fair use" to provide context to my opinion. 2Answer: No, it would not. 3I am not a lawyer, I am not your lawyer, and this site does not provide legal advice. | If users were to copy dictionary definitions, for instance Oxford or Cambridge) and make the word lists public, is it a copyright infringement? If the dictionary entries are protected by copyright then your user has infringed that copyright by posting the dictionary entries. Am I responsible for this activity? No. But you may be responsible for removing it if you get a request. Can dictionary owners charge me against copyright issue? If you follow the procedures outlines in the DMCA you can be protected from liability. |
Are open air cremations illegal in most of the US? Almost all cremations done in the US are done at crematoriums where bodies are put inside an incinerator. The only open-air cremation service in the US is the non-profit Crestone End-Of-Life Project, which does a handful of open-air cremations every year in Crestone, Colorado. But my question is, are there specific state laws that prohibit open-air funerals everywhere else in the country? Maybe environmental laws, fire safety laws, or body desecration laws? | I'll give you the situation in Washington, which is probably similar to the situation elsewhere. RCW 68.50.130 say that you have to follow the law in disposing of a body. To perform a cremation, you need a license. The regulations established by the Department of Licensing say that cremations take place in a crematory, and the facility must be licensed. We turn to the definition of crematory, which is a building or area of a building that houses one or more cremation chambers, to be used for the cremation of human remains This applies to hydrolysis facilities as well, but not composting facilities (which can simply be "real property"). | This is quite common across jurisdictions For example, people who mine uranium are often made responsible for disposing of the waste product at the end of life. More generally, most mine licences require remediation of the land at the end of the mine’s life. Another common one is to make tyre manufacturer’s responsible for their disposal. Governments can pass laws that make a business responsible for dealing with the use and disposal of their products. In practice, these schemes usually require the company to pay the remediation cost to the government or into a trust at the time the product is made or sold. These funds are then invested and drawn down on to deal with the actual disposal. Which is exactly what the article says: A recycling and anti-waste law passed last year requires them to take care of the whereabouts of their products after their "end of life." The tobacco industry will contribute 80 million euros (93.8 million dollars) per year which a newly approved institution will allocate to projects aimed at eliminating cigarette butts and raising awareness, the ministry said. | This is still common practice in most, if not all, of the mountain west states in the United States in rural areas, although, obviously, nobody rides horses from court house to court house these days. I don't know if it is done in rural areas in other states. Typically, general jurisdiction trial court judges in these areas are assigned to a multi-county district, but there are court houses in each county. Judges in the district rotate between county court houses to preside over court cases on a schedule worked out with court administrators. | The COVID restrictions are new enough that there are few court decisions on how to interpret them. There are frequent requests for court injunctions seeking temporary relief. Some pass, some are denied. The website might accuse locations listed there of breaking the restrictions. Making such an accusation in public sounds like a very bad idea, especially if there is no solid documentation. But the aggrieved party would be any location falsely listed. The site may or may not be hosted in Germany. If it is not, it becomes a really interesting question which law applies. You might inform the authorities, but beyond that, forget it. | It is mandatory for the employer to provide sufficient restrooms (“cabinets d'aisance”), as per article R4228-10. Other provisions regulate evacuation, ventilation, heating, disabled access, etc. There is no provision regarding when employees are permitted to use the restrooms. There can't be a single rule that works for every profession: some jobs don't let you leave your post whenever you like (e.g. machine operator, driver, guard, teacher, etc.). The most common dispute regarding restroom use is whether employees should be paid during that time. Some employers want to count restroom use as unpaid pause time. Strictly speaking, that's legal: an employee who is in a restroom is not at the employer's disposal, therefore this doesn't count as work time. However enforcing this is often logistically difficult and wildly unpopular, so in practice it's only done in places where employees must clock out to reach a restroom. I could only find one case with actual jurisprudence. In 1995, an industrial butchering company (Bigard) decided to limit restroom breaks to three fixed times a day. This was, as you might expect, unpopular; the employees went on strike, and eventually the labor court struck down this measure. That's a precedent, but it doesn't seem to have made its way to the appellate court. Your case is also slightly different in that the restrooms would only be inaccessible for an hour, which is shorter than in the Bigard case. So legally speaking, it isn't clear who will win. You'll have a better chance of success by banking on the unpopularity of the measure. Talk with your colleagues and your representatives and shop stewards. Point out that employees who are trying to hold it in are unlikely to be at the top of their productivity. | Quite the contrary. In most European countries, shechita is - at least under certain conditions - legal. Only in the blue-marked countries is it generally forbidden; in the green-marked countries prior anaesthesia is required. That is, pre-cut stunning is required in Sweden, Belgium and Denmark (and Iceland, Norway and Switzerland, but these are not in the EU). Simultaneous stunning is required in Finland. Post-cut stunning is required in Austria, Slovakia, Lithuania, Estonia and Greece. Only in Slovenia is ritual slaughter banned. Map source: https://commons.wikimedia.org/wiki/File:Ritual_slaughter_laws_Europe_map.svg | The main relevant bit of constitutional law is Employment Division v. Smith, 494 U.S. 872, where it was held that a general law against use of peyote does not violate the Free Exercise clause, though in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 a law specifically designed to restrict Santeria animal sacrifices is an undue burden on religion. The Employment Division court cites Cantwell v. Connecticut, 310 U.S. 296 and Wisconsin v. Yoder, 406 U.S. 205 as the only cases where the First Amendment prevents a generally applicable law from applying in a religious context, which the court notes "are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections". The TRO doesn't go into detail about the reasoning: Based on the materials presented and the arguments of counsel, the court finds: (1) Plaintiffs are likely to succeed on the merits of their claim alleging a violation of their First Amendment right to the free exercise of religion So it is hard to say on what grounds the plaintiffs are likely to succeed. The governor's order is a bit peculiar, because it initially looks like a neutral 10-person limit on gatherings, but on the one hand makes an exception for religious events by allowing any number of people "officiating" so sets the limit on participants (advantage to religion, not constitutional), but then also includes numerous exceptions to the order, including schools, day-care, food pantries, detox centers, shopping malls, restaurants and so on. The set of exceptions is large enough that one might conclude that this is an undue burden on the exercise of religion. The breadth of the number of exceptions undermines claims of "necessity" which are crucial to any order that closes churches. | It is not obvious that is it illegal in Washington state. Everett WA has local ordinances against "lewd conduct" (there are versions of this at the state level and in most municipalities). Having sex and masturbation are included in the class of "lewd acts", and are also included in "sexual conduct". An activity is "obscene" if three things are true. First, the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest and when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political or scientific value. I think having sex or masturbating could pass these two tests. The third condition is that the act explicitly depicts or describes patently offensive representations or descriptions of... [sex, masturbation, or excretion] The prohibition is more narrow: A person is guilty of lewd conduct if he or she intentionally performs any lewd act in a public place or under circumstances where such act is likely to be observed by any member of the public. If lewd conduct were completely illegal, you could not excrete or have sex withing the city limits. Now we have to turn to the definition of "public place": an area generally visible to public view, and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), buildings open to the general public, including those which serve food or drink or provide entertainment and the doorways and entrances to buildings or dwellings and the grounds enclosing them, and businesses contained in structures which can serve customers who remain in their vehicles, by means of a drive-up window Focusing not on the probable intent but on the words, it is primarily defined as "an area generally visible to public view". Your house qua building is probably generally visible to public view, as is a public toilet or hotel. The inside of your bedroom is probably not generally visible to public view, nor is the inside of a toilet stall. While the building is probably a public place, a closed stall within the building does not meet the definition (nor does a hotel room). It might however qualify under the clause "or under circumstances where such act is likely to be observed by any member of the public". The statute does not give a definition of "observe", but under ordinary language interpretation, observation may be seeing or hearing. Silent sex, masturbation or defecation might not qualify as being public. Obviously, excretion in a stall of a public bathroom cannot be a lewd act, presumably because the average person does not generally consider ordinary excretion as appealing to the prurient interest: but there could be contexts where it does. Another avenue for prosecution is the Indecent Exposure state law which is when one intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. It is totally non-obvious that sex or masturbation in a toilet stall is "open". There is a slippery slope regarding quiet sex or masturbation w.r.t. knowing that the conduct is likely to cause reasonable affront or alarm. Because the contexts where sex and masturbation are not clearly spelled out by statutory law, the matter would depend on how courts had interpreted previous cases. There have been arrests in Washington of people having bathroom sex, but I don't know if anyone has ever or recently-enough been convicted for having quiet sex out of view in a toilet stall, or similar place. There is a potentially applicable case, Seattle v. Johnson, 58 Wn. App. 64, which seems to involve public sex, and the conviction was overturned because the complaint was defective, in not including the element "that the defendant must know 'that such conduct is likely to cause reasonable affront or alarm'". It is not clear from the appeal what the act actually was – it probably was for public nudity. There is also an decision by the state appeal court division 3 (not publicly available) in Spokane v. Ismail which, in connection with a charge of public urination declares that "A toilet stall is not a public place. The center of Riverfront Park during the lunch hour is a public place", in connection with an ordinance just like the Everett one against public lewd acts. |
Presidential pardon: What does "except in Cases of Impeachment" mean? Article II, Section 2, of the United States Constitution establishes the presidential pardon power as follows. The President shall ... have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. This question is about the caveat "except in Cases of Impeachment". Consider the following hypothetical sequence of events. Vice president Smith commits a federal crime. Smith is impeached and removed from office for this crime. President Miller pardons Smith for his crime. Miller leaves office at the end of his term. Smith is charged in federal court over the crime he committed (event #1). Now presumably Smith will argue that since he was pardoned, the charges should be thrown out. However, the prosecution can argue that the presidential pardon power does not apply in cases of impeachment and, since Smith was indeed impeached and removed from office because of this crime, it does not apply here. My question: Would this argument succeed? That is, could Smith be convicted despite the pardon? To be clear, the question is not whether Smith can remain vice president due to the pardon. It is only about whether he can face criminal consequences for the crime he was impeached and pardoned for. Perhaps a less hypothetical version of the question would be "If Nixon had been impeached and removed from office (rather than resigned), would Ford's pardon still protect him from criminal prosecution?" I don't expect that it is possible to definitively answer this question, since it is entirely hypothetical. However, I would like to know if there is any relevant precedent or legal analysis. | He will be thrown out of office (the "except in case of impeachment" clause means the president cannot immunize a person against impeachment); because he was pardoned by POTUS, he will not be charged of the crime that he was pardoned for – the prosecution does not get a chance to argue anything. They might however prosecute him for some other offense not covered by the pardon (if POTUS forgets a sweeping statement like "any and all crimes related to X"). I don't think a prosecutor is likely to try to argue that the Constitution means "the president cannot pardon a person who has been impeached". | There is a legal doctrine of executive privilege, where the executive branch can resist subpoenas, but that privilege is limited (US v. Nixon). Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. SCOTUS pointed to the kinds of cases where such privilege would be valid Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. But otherwise, when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice Decades later, Harriet Miers claimed executive immunity (as White House counsel) to a subpoena to testify before the Committee on the Judiciary, and the district court ruled rebuffed that claim There are powerful reasons supporting the rejection of absolute immunity as asserted by the Executive here. If the Court held otherwise, the presumptive presidential privilege could be transformed into an absolute privilege and Congress's legitimate interest in inquiry could be easily thwarted. if the Executive's absolute immunity argument were to prevail, Congress could be left with no recourse to obtain information that is plainly not subject to any colorable claim of executive privilege. However, executive privilege has been invoked dozens of times since Nixon – there are no other SCOTUS decisions. We should set aside current political posturing. POTUS might claim executive privilege, and then the question is whether the courts would order Banon to testify. We don't know the basis for such privilege, but we can assume that it would involve national security issues (thus might be within the penumbra of the Nixon ruling). Traditionally, executive privilege has involved the person who is president, not the person who ended up becoming president, so it would be extremely surprising if the courts upheld immunity in a pre-election matter. | In the United States, a contempt finding can be wiped out by: The judge who issued it. United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973) (“[S]o long as the district court has jurisdiction over the case, it possesses inherent power over interlocutory orders, and can reconsider them when it is consonant with justice to do so.”) An appellate court with juridiction over the judge who issued it. This was what happened with several of the contempt orders in the case depicted in The Trial of the Chicago 7. In re Dellinger, 461 F.2d 389, 401 (7th Cir. 1972) (“Therefore, the contempt convictions of appellants are reversed and remanded for further proceedings not inconsistent herewith.”) For convictions on charges of criminal contempt in federal courts, the president of the United States may issue a pardon that nullifies the conviction. This was what happened in the case of Maricopa County Sheriff Joe Arpaio, who was convicted of defying a court order to stop harassing Hispanic people. For convictions in state courts, a governor may be able to issue a pardon. | Yes. In 1872 President Grant was stopped for speeding (on horseback, mind you). The officer, observing that he had stopped the President of the United States, initially let him go with nothing but a verbal warning. Later the same day, the same officer stopped Grant again speeding in the same place. The officer then informed Grant that he would have to be taken in, to which Grant gave a reply encouraging the officer to do his duty. Grant was then taken to the police station where he was charged with speeding, and held until he paid a $20 fine, at which point he was released. In summary, POTUS was: Charged with an offence Deprived of his liberty for committing said offence Held until he served his punishment (paying $20) ... all without impeachment. Now, this was a long time ago. I think that today, this is unlikely, since Secret Service would (legal or not) shield the President from arrests (national security reasons). However if a state level authority did manage to arrest the President for a crime and refused to let him go, then the Vice President and cabinet would invoke the 25th Amendment (on the grounds that the President is unable to discharge his duties due to imprisonment), so that the imprisoned person would now be a former president. | First of all, there is a distinction between being impeached and being convicted. Trump was impeached when the House voted to adopt an Article of Impeachment. That happened while he was still in office. He will not be convicted until the Senate votes to convict him by a 2/3rds vote, if it ever does. In the case of Nixon, the House had not yet voted to adopt Articles of Impeachment when he resigned. They had been introduced and debated, but not yet finally approved. Moreover, we don't know what would have happened if the House had proceeded to pass such articles after Nixon had resigned. The House of that time did not choose to proceed. There was no court ruling saying that they could not do so. There are some precedents saying that the Senate can proceed with a trial after an official resigns or is expelled after impeachment. None of these are at all recent, none are clear cut, none involved an official whose term had ended, none involved a President, and none that I am aware of led to a conviction. And this issue has never been tested in a Federal court. Specifically, there is the case of William Belknap. Belknap was Secretary of War under US President Grant. He was accused of improperly profiting from military contracts. The House started impeachment proceedings. Grant interviewed Belknap, who confessed to Grant and resigned on the spot. The house none the less pass five articles of impeachment after Belknap resigned. When the Senate took up the case, there was a motion to dismiss on the ground that the Senate did not have jurisdiction because of Belknap's resignation. By a vote of 37–29 the Senate held that it had jurisdiction and that a trial should proceed. The vote to convict Belknap was 35 for conviction, 25 against it. This was five votes short of the required 2/3rds to convict. Most of the Senators voting against conviction were on record as doing so because they did not agree that the Senate had jurisdiction. Thus a majority vote of the Senate held in that case that such a trial was proper, but less than 2/3rds. (Most also indicted that they thought the charges true.) There was also the case of William Blount. Blount, a Senator, was impeached by the House in 1798. (In fact this was the first impeachment ever under the US Constitution.) The Senate voted to expel him. When the articles of impeachment came up in 1799, the Senate voted to dismiss the impeachment, on the ground that the impeachment process did not extend to members of the Senate, but not on the grounds that the expulsion rendered the proceedings moot. Should Trump be convicted by the Senate (which now seems unlikely) he might bring a court case claiming that such a conviction was unconstitutional. There is no knowing how a court would handle such a case. And if Trump is not convicted, no such case will be brought this time, either. This Washington Post opinion piece by two Constitutional scholars claims that such a trial would be constitutionally proper. It also claims that it would not have been proper had the vote to adopt articles of impeachment occurred after Trump had left office. Others have taken different positions. Whether a Senate trial of an impeachment is constitutional after the person impeached has left office is a hotly debated question at the moment. There has never been a court ruling on the point, and neither of the precedents is of a situation quite matching the current impeachment of Trump. No court has ruled on the matter. The Senate did not vote for a motion to dismiss the impeachment on those grounds, although if every senator who voted for the motion voted to acquit, Trump would not be convicted. From the comments I wish that any downvoters would leave a comment indicting what thy think is wring with this answer. In the absence of a comment, I cannot improve the answer, others cannot use the reasons to write better answers, and readers have no idea why someone objects to the answer. Such a downvote seems pointless. I have updated this answer with a discussion of the Blount and Belknap precedents. In neither case did the Senate actually vote to dismiss the articles because the accused was no longer in office, although that seems to be a major reason why 25 senators voted against convicting Belknap. | With regard to subpoenas, the Supreme Court's recent ruling in Trump v. Vance makes it clear that states can issue subpoenas to sitting presidents. (The case in question involved a subpoena to a third party for the president's records, not to the president himself, but the opinion makes it clear that the court would apply the same reasoning in either situation.) The questions of what actions a state may take to enforce such a subpoena if it is not complied with, or of arrest / indictment / trial by a state, have never arisen and thus have not been resolved by courts. | How would this scenario play out in the legal system? Prosecutor brings charges against EQM or tries to use that conviction to enhance a subsequent conviction. Defendant EQM raises the pardon as a defense. Prosecutor responds that the pardon was intended to cover EQM Prime, not EQM. The Court holds an evidentiary hearing to determine whether the President intended to pardon EQM Prime or EQM. The Court decides who the President intended to pardon based upon the evidence presented at the hearing, and rules accordingly. The burdens of proof are tricky. Usually affirmative defenses have a preponderance of the evidence burden on the proponent of the defense, but sometimes the defense must be disproved beyond a reasonable doubt. I don't know that part of the law well enough to know without lots of research and the outcome might not be uniform across the U.S. To my knowledge, there has never been a case that got this far in which the true identity of the beneficiary of the pardon was ambiguous. It is possible, but a vanishingly rare possibility. Almost always, someone gets a pardon by asking for it and determining whether EQM or EQM Prime asked resolves it, or a reference to the crime resolves it. If the Court concludes that both asked the same President to be pardoned for the same crime (e.g. if the same crime was committed jointly by father and by son who is named after father and doesn't use Jr. day to day) and the Court concludes that the President was probably confused and didn't realize that there were two requests from different people and not one, the judge would probably give them the benefit of the doubt and treat both as pardoned as that would still reflect the President's intent. | No. The Pardon Clause only extends the power to pardon "offenses against the United States," which essentially means that the president can only issue a pardon in a federal criminal case. A contract claim is civil rather than criminal, and governed by state law rather than federal, so the Pardon Clause would not affect the president's liability. |
Buy a computer/phone from Apple, disagree to the terms of service after purchase; what's the legal perspective My question and premise are very simple, but the legal perspectives on the answer are unclear to me. A person purchases an Apple computer/phone product directly from Apple (any device requiring agreement to terms of service, end user license agreement, etc.) During purchase of the product, there is no discussion about what the software legal terms will be -- however, Apple hardware requires the use of Apple software, thus it can be claimed one is purchasing an integrated hardware/software system. After making the purchase, the customer starts the Apple operating system and diligently makes their way thru every poetic sentence of legalese. Upon reading the contracts (ToS, EULA, etc.), the user decides they in fact do NOT agree with these terms, and do not proceed. At this point, they have purchased a hardware device which requires using a certain specific software, but they don't agree to the software terms, and are thus unable to use the hardware they purchased for the intended use. Have I made any incorrect assessments of the situation up to this point? It seems to me if a hardware company is selling an integrated hardware/software product, which can only run on specific software, the selling party would need to complete the contractual agreement terms with the buyer before the purchase is completed. Or at the very least communicate this situation with the user. I'm sure this contradiction has no gone unnoticed, so I would appreciate the legal perspective on this situation. | Return it If you are unwilling to enter the contract then you can return the device for a refund. | In the US, "insider trading" includes both legal and illegal versions. When a corporate employee buys or sells shares of their company, they are insiders and they are trading (there is a requirement to report to the government). The illegal version involves breach of fiduciary duty or confidence. The relevant section of the federal regulations is 17 CFR 240.10b on "Manipulative and Deceptive Devices and Contrivances", and you will note that the section does not rely on the term "insider" in the law part, instead it directly characterizes what acts are illegal. Thus it would not matter, from a legal perspective, if someone considers you an insider. It is illegal to trade in securities using a “manipulative, deceptive, or other fraudulent device or contrivance”. This relates to what is commonly known as insider trading via rule 240.10b5-1, by defining as manipulative and deceptive trading on the basis of material nonpublic information about that security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or derivatively, to the issuer of that security or the shareholders of that issuer, or to any other person who is the source of the material nonpublic information (emphasis added to focus on the core requirements). Whether or not you have a "duty of trust or confidence" is determined by common law standards, that is, it depends on how courts have ruled on similar matters. For instance if the CEO of Apple tells you "Our computers explode and it's gonna be on the news tonight, the stock is gonna tank, but it would be illegal for you to act on that information", then it would be illegal, because you are aware that the CEO has a duty to not use that information (thus you "inherit" the duty). This also holds if he doesn't tell you that acting on the information, since it is expected that you know that the CEO of Apple could not legally act on that information (even if in fact you are unaware of the law -- ignorance of the law doesn't get you anywhere good). However, if you are unaware and could not know that the person making the factual disclosure is divulging information that he has a duty to shut up about, then you might not get prosecuted. | You are not bound by any contract. You bought a physical good that the seller was barred from selling outside of the listed countries by his supplier. You did not enter a contract with the seller's supplier. Let's look the stream of commerce: Supplier of the item (Printing press) offers it. Sale with a sales limiting contract to resellers. Sale by reseller to customer without limiting contract. The first sale doctrine says, that without a form of contract, the rights of the supplier are exhausted in step 2. Even with a contract limiting the reseller's rights, step 3 exhausts any right the supplier has in the item, unless he too explicitly signs a contract. Selling an item in normal commerce is not satisfying this requirement. There already were no rights in the physical copy of the book when whoever bought the book first sold it to the second-hand seller you bought it from, and there can't be any more rights in the selling of this book gained by the original supplier unless he bought the book back from you. | The section you quote as clearly saying a thing is not clearly saying the thing. However: you cannot pass on or resell any license keys seems to say a thing clearly. However, one could argue that it's the sharer of the account who is in the wrong, and not the person receiving and passing on the account. I'd say that that piece of the agreement, combined with this: must not... let other people get access to anything we've made in a way that is unfair or unreasonable says that, yes, they are out of bounds. | Do you have a contract? It depends on the website’s terms but almost certainly not. It is standard practice in e-commerce terms and conditions that your selecting “buy” and giving the vendor money does not create a contract; you are merely making an offer that the vendor can accept or reject. For example, Amazon’s terms are clear that the contract only comes into existence when they dispatch the goods, until then they are free to cancel your order and return your money. Here the vendor rejected the offer. Is this false advertising? Maybe. It would depend on the specifics of the ad and whether, overall, a reasonable person would be mislead or deceived. It’s possible you misunderstood but that doesn’t necessarily make it misleading or deceptive. I misunderstand a lot of things; that doesn’t mean they were objectively misleading or deceptive. Notwithstanding, a business does not have to make good on false advertising. An incorrect advertised price does not force the business to anccept offers of that price. It may force a correction and may require the item to not be sold until the price is corrected and it may expose the business to fines, but it does not give anyone the right to buy at that price. | The person getting the item by fraud didn't get any ownership. Therefore when you bought it, you didn't get ownership either. It's still the company's property, and they can do with it what they like (within reason, they wouldn't be allowed to make it blow up in your face). If you sent back the item, good on you, because the item is now with its rightful owner. If you don't like it, you can sue the person who sold the item to you. | The EULA is in most jurisdictions a legally binding contract; there is plenty of case law that supports this. You can only be liable under a contract for breaching its terms and only to the extent that the other party suffers harm from that breach. Clearly, if you haven't read the terms then you are greatly increasing the chance that you will inadvertently breach them but not reading them would not, of itself, be a breach and I can't see what harm could flow anyway. | There are two common approaches. The first approach is simply to let copyright law apply. Under the default terms, the IT provider has no rights to copy your software. Running software is allowed, of course, and not a problem that you need to deal with vis-a-vis the IT provider. You still can sue them if they copy your software, even in the absence of a contract. That is the chief function of copyright, after all! The second approach is to allow the customer to subcontract third parties to act on behalf of them, while acknowledging that such subcontracting does not dissolve them from any responsibilities towards you. In other words, if the 3rd party would do something unauthorized, you have a claim towards the customer and they have a distinct but related claim towards their IT supplier. |
Using Images from the Web for personal use I would like to include images from the web on my personal website(non-profit & non-commercial use), how do I say that the images are not mine and they belong to their respective owners? does this relate to this "Copyright Disclaimer Under Section 107 of the Copyright Act 1976, allowance is made for 'fair use' for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of fair use." | Simply admitting that the images are not yours does not give you the right to use them. The fact that you are not profitting from them does not change this. There is no magical statement or disclaimer that will change this. If your use of the images constitutes Fair Use (since you're not mentioning how you're using them, it probably doesn't), you can include a fair use disclaimer. Sample dislaimers can be found online. A disclaimer should include the following: A statement that the work in question is not yours That the use falls under Fair Use and why Section 107 of the copyright act | Wikipedia has two kinds of pictures: Reusable pictures, most of them stored at http://commons.wikimedia.org Copyrighted pictures under fair-use, stored on the local Wikipedia (in your case, the Russian Wikipedia) but not on Commons. To know what case it is, just click on the Wikipedia picture, click on the blue "Description" button, and see whether it redirects you to Commons or not. Pictures on Commons are reusable if you include the author and license (see the full requirements). Commercial use is OK. Fair-use pictures can not be reused. Unfortunately, https://ru.wikipedia.org/wiki/Файл:Tschedrovitsky.jpg is in the second case, so you can not reuse it, even in a non-commercial setting, unless you can justify that your usage qualifies as fair-use in your country. Hopefully one day someone will find a legally reusable picture of Shchedrovitski and upload it to Commons. | 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. | It's not fair use. Fair use is when you do something that normally only the copyright holder can do. Playing a video game is the ordinary, intended use of the work. In the United States, ordinary use is not protected by copyright. 17 USC 106 sets out the rights protected by copyright. The include copying the work, producing derivative works, distributing the work, and so on. None of these are ordinary use. Someone could perhaps argue that you are creating a derivative work. I doubt that argument would work because you are not taking any protectable elements from the work. But if anyone did argue that, it would make sense to also argue that if that's so, your use would still be covered under fair use because it's transformative, does not substitute for the original work in any way, and takes very little of the work. | I agree that you have a very strong copyright fair use case. Although the logo is creative and you're using the entire thing, your use is for a nonprofit educational purpose and does not affect the value of the work. The logo is also probably trademarked. But you aren't using the mark in commerce, so I don't think that will be a problem for you. | There doesn't need to be any copyright claim for there to be copyright protection. The protection is given automatically whenever someone authors a work. If you make money off of your improved version, the owner of the page may sue you for royalties. The only way to avoid this is to ask him for permission, or to create your page without using any of the source code of the original page. | Written down computer code is subject to copyright. If you do not have the permission of the owner to copy it you are breaching their copyright unless your use constitutes fair use/dealing. | THE FOLLOWING OPINION IS NOT LEGAL ADVICE Based on your screenshot and description, I don't see anything infringing. If the data you are using is from your own sources, and what you show is not a scan or photo of their guide, and your layout is thus unique in specifics (not a direct copy), it wouldn't be an "infringement" as far as copyright law is concerned. Things you cannot copyright: A font (except as a computer font file but not as used in a document). A concept (a main issue here). A idea for a "way" or "order" to display data. Mere data or facts can not be copyrighted nor can ideas. Anything sourced from the US government (trail data, topos, etc.) Something not in printed, physical, or recorded form. That is, the copyright only extends to those things as they are realized in print, or as a recording for audio or video, or a physical statute, etc. A live performance is not copyrightable for instance, nor are ideas. The Law: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. For instance, an icon of a TENT is the common form (like a font) of indicating a camp ground. They may be able to copyright the specific instance of their tent icon, but they cannot prevent you from using some other triangle to represent a tent for a campground. And in facts yours is completely different. Displaying data a particular "way" like 1e for 1 mile east is not copyrightable when it is common for the type of guide. It's just data. CONCEPTS AND DATA ARE NOT COPYRIGHTABLE, only the ACTUAL specific page or work in total as rendered. More below, but your page seems totally different. OTHER FORMS OF IP PROTECTION Now, just because some intellectual property can't be protected by copyright, does not mean it is a free-for-all. For instance, a "way" of doing something can be PATENTED (process patent). And "ornamental design" can be given a design patent. A logo or brand name can be given a trademark. Here's an interesting court ruling on the subject of data display. Basically it can't be an abstraction/concept. It has to be in a definable, physical, novel form. NOTE: it has been possible to copyright a "look and feel" but that applies to software, not static printed media. And the courts have been reversing on that a lot as time goes on. BUT WAIT...THERE'S MORE So, I am going to GUESS that you are talking about AT Guide by David Miller? It's pretty rich of him to claim copyright over the "manner of the display of data" when APPARENTLY he is using concepts of data display as described by EDWARD TUFT So, LOL. Is this the guide they claim you are "copying"?? THESE AREN'T THE ICONS YOU'RE LOOKING FOR Okay, so let's go one by one and their claims against you: 1. The way of representing distances between shelters "The Way" of presenting something is not copyrightable, only an expressive or final form. Some forms of "organization or selection" that may make a work in total copyrightable, but not on their own in isolation. 2. The sideways orientation of the elevation profile Presenting some elements "sideways" is not copyrightable (WTF LOL OMG RUS) the same as number 1. Turning an element sideways does not, on it's own, rise to the level of "creative or non-obvious." 3. The icons Your icons are completely different. If you copied and used his ACTUAL icons, you might have had some issue, but your icons are not even remotely the same. Using icons to indicate services or features is COMMON. Not copyrightable. http://www.dmlp.org/legal-guide/works-not-covered-copyright In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.) 4. The convention of representing direction/distance for waypoints. Again, "The Way" of doing something is not copyrightable, nor is data or facts. 1.1E or 2.3NW are common are they not? I've seen similar treatments elsewhere. It's "obvious and not novel." FINAL FORM, EXPRESSIVE FORM is copyrightable NOT FORMATTING CONCEPTS. Basically, he is saying something along the lines of "I'm formatting paragraphs with a double space, so you can't." The "actual" icon drawings he used are copyrightable. Your icons are clearly different. I assume your mountain-top profile line is taken from some publicly available survey source? So long as you never used a scan of the actual line he uses (and even then?), because he cannot copyright the mountain top profiles themselves! DOES HE EVEN HAVE A VALID COPYRIGHT? For that question, I'd say yes with limitations. His work is a compilation of data. Data can not be copyrighted, but the unique arrangement can in context of the work in total. These three conditions must ALL be present (from http://www.rbs2.com/ccompile.pdf): The collection and assembly of pre-existing material, facts, or data. The selection, coordination, or arrangement of those materials The creation, by virtue of the particular selection, coordination, or arrangement of an original work of authorship. So It seem to be that his guide meets these, but his copyright is for his work in total. You are NOT using his data. You are using your OWN data. Based on my reading of Key vs Chinatown Today you are not even close to infringing. You are doing your OWN selection, and your OWN arrangement. It does not matter that you may be using some similar typographic or charting conventions. Those cannot be copyrighted. You are doing your own thing, and "similarity is not infringement." SEARCH AND YOU WILL FIND On the subject of the copyright, here's the copyright on AT guide: https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=A.T.+Guide&Search_Code=TALL&PID=FgMjtJ244OxoFULrVoob_CEI8bc_M&SEQ=20190506230418&CNT=25&HIST=1 If the link doesn't work due to expiration or a cookie, it should look like this: It's a matter of using the USPTO search engine "its way" — it's not Google and requires specific search strings. Looks like the assignee or owner is https://antigravitygear.com ? Did THEY contact you or David Miller? Or did they claim to be an attorney? I'd love to see the email. Attorneys don't email dunning letters, by the way (though they may if it was a DMCA takedown request I suppose, but I still doubt it.) If it was an attorney it would be via US mail on attorney letterhead. To the best of my knowledge, you can't file proof of service on an email, it has to be USPS or trackable. This means the guy that made the other PDF is annoyed or whatever. If he claimed to be an attorney, that's VERY illegal if he's not. And one final note: Just being non-profit does not absolve you of copyright infringement. But as I said, I see no infringement here. The other answer that asserted these are covered under "works of art" is not withstanding. There is nothing "expressive" about Miller's guide. Also that other answer cited a source for AUSTRALIAN law, not US. Mere typographic elements do not rise to "an expressive work of art". A mountain profile that is nothing but a illustrative line based on data also does not. |
What will happen if a legally dead but actually living person commits a crime after they are declared legally dead? What will happen if a legally dead but actually living person commits a crime after they are declared legally dead? I wonder whether they will have a normal or posthumous trial. Or will they be tried only after their death status got overturned (which may take between a few months and never). Or they will not be tried at all because it is impossible for them to commit crime after death. | The same thing that happens to everyone else Being declared legally dead does not mean that you are dead; it simply allows your assets to be distributed as if you were. If you turn up alive, you go through a bureaucratic procedure to have the record of your death removed, get a new driver's licence, etc. You usually don't get your assets back. If you happen to commit a crime during this period you get arrested, charged and tried just like everybody else. | While the point made by user6726 is not wrong with respect to this particular statute, it doesn't address a more basic point about how the supremacy clause works. Federal criminal laws govern punishments for federal crimes in the federal criminal justice system. Federal prosecutors bringing federal criminal charges against criminal defendants in the federal criminal justice system can and do secure death penalty sentences against criminal defendants in states where there is no state death penalty. One recent case where that happened was the Boston Marathon bombing case where a defendant was sentenced to death in federal court for the crime for violation of a federal criminal statute, despite the fact that Massachusetts has no death penalty of its own. This is not a supremacy clause issue. No state law had to be changed or invalidated because of the existence of the federal law. States law governs how the state criminal justice system works, not the federal criminal justice system. When we say that a state has abolished the death penalty, we mean that it has abolished it in the state criminal justice system. This doesn't absolutely foreclose the possibility that the death penalty will be imposed in that state on federal charges, although it does make it far less likely that the death penalty will be imposed. Partially, this is because "blue collar" crime is handled by the states. Partially, this is because out of comity and a concern that juries in states without a death penalty are less likely to vote for a capital sentence, federal prosecutors are less likely to seek the death penalty in a state without capital punishment than in a state with capital punishment. For example, there are 2,902 people on death row as of 2016, in the U.S. Almost 98% of death penalty convictions that have not yet been carried out were obtained in state courts. Only, 62 involve civilian death penalties imposed in federal courts (mostly in states that have the death penalty) and another 6 involve death penalties imposed in military courts (mostly in states that allow the death penalty or abroad). All of the other cases arose in state courts. | In England and Wales, under section 2 of the Suicide Act 1961 (as amended by section 59 and Schedule 12 of the Coroners and Justice Act 2009) it's a criminal offence to do an act capable of encouraging or assisting someone to commit suicide. I think that applies to Scotland too, and there is similar law in Northern Ireland. Encouraging suicide is also a criminal offence in some other common law jurisdictions, e.g. in Australia. While in other common law jurisdictions, if there isn't such a law, the person might instead be prosecuted for manslaughter - or not at all. The minimum, maximum and recommended penalties may well differ between jurisdictions. I don't know what you mean by "vengeance rampage" but I'm not aware of any jurisdictions where it is lawful for a person to cause harm to someone for revenge. States tend to reserve for themselves a monopoly on the use of force. | A dead body alone does not tell who did it A cop can only arrest someone if it is clear that they either committed a criminal act the cop witnessed or for which there is clear and compelling evidence or if they have a warrant. Finding a dead body on someone's land does on itself not give enough clear and convincing evidence to tell who did it. It might have been the old lady, it might have been the previous owner, someone random on the street or even a tenant who placed the corpse there. It needs further evidence for the warrant, for example, "We found the body and the coroner says, the corpse is a year old and the owner was the only person that had access to the backyard in the last year." | Is there any state where someone doing this would potentially face manslaughter or murder charges, due to some variant of a 'life starts at conception' anti abortion law? Not really. Those laws are currently unconstitutional. A state could certainly prescribe some criminal punishment in a case like this one, but punishing under existing manslaughter or murder laws would almost surely not be upheld under existing law (subject to change without advanced notice by the U.S. Supreme Court). If someone knowingly and intentionally destroyed an embryo conceived via IVF but not implanted yet what kind of consequences do they face? Is the potential life treated differently or is this just destruction of property? This is a tough question that probably doesn't have a uniform answer under the law of all U.S. states. For one thing, it isn't clear who, if anyone, has property rights in the embryo. It is certainly conceivable that a state might instead conclude that the donor receiving the IVF treatment has only contract rights in it (and breach of a contract is not a crime). It might be viewed as a property destruction case. There might be a specific statute on point. There might be a civil lawsuit remedy. In most states, this would be an issue of first impression and a court would look a competing ways that cases had been handled in other jurisdictions to decide what to do in its case. | Note: The answer to the question is not the same in every U.S. state and territory. I have provided definitive answers only when there is unanimity or near unanimity. Did the deceased's family obligate themselves by not returning the the first service, that of the Notice of Appeal? No. Unless they expressly agree to do so in writing to be responsible for a decedent's debts (which almost never happens in the U.S.) next of kin of have liability regarding the debts of a decedent (at least by virtue of being next of kin, obviously, if they were, example co-defendant in a case who participated in the wrongful conduct, that could be another matter), except that it may result in a claim against the probate estate which reduces the size of their inheritances (potentially to zero), if timely asserted in the probate estate. As the next of kin are they obligated to receive the mail addressed to the deceased? No. Also, counsel for a decedent are terminated as counsel as a matter of law upon the death of a client. It is customary for a lawyer in the case (often, although not necessarily, the lawyer for the decedent if the decedent was represented by counsel at the time of death) to file a document usually entitled "suggestion of death" in the pending case when someone dies. But, no one is obligated to do so, and if the party is self-represented in the case (a.k.a. pro se), or that party's lawyers have withdrawn from the case, neither the decedent's former lawyers, nor anyone else in the case, may even be aware of that fact that the party to the case has died. What would be a possible remedy to keeping the claim active against this defendant albeit deceased defendant? File a claim in the estate of the decedent if the deadline for filing claims has not lapsed (which two years later, it may very well have). Normally, either a claims deadline that functions by operation of law (e.g. a state law non-claim deadline one year after the date of death), or a claim deadline arising from publication of a notice to creditors in the legal section of a newspaper in the area where the decedent died in a manner prescribed by state statute, would bar the claims, especially if the status quo was that they had been dismissed at the time of the decedent's death, even if there were still undistributed assets left in the probate estate after the deadline for filing claims has expired. It may also be possible to do a substitution of parties of the decedent's probate estate for the decedent in the pending case, if a probate estate has been opened and the deadline for filing claims has not yet lapsed. If a probate estate has not been opened, usually, after a certain amount of time, a creditor may open up the estate without the consent of the next of kin, or a public administrator will be appointed if there are no next of kin who have done so, and there are assets left to be managed in the probate estate. The law governing exactly when a probate estate has liability for the debts of a decedent incurred during life is a matter of state law that varies in significant detail between different states within the United States and is quite technical. I've written a couple of Colorado Bar Association journal articles on that subject applying Colorado law (Andrew Oh-Willeke, "Creditor's Rights In Probate - Part I and II", The Colorado Lawyer, May 2015 and June 2015). Note that the general rules may not apply in all cases to lawsuit brought "in rem" (i.e. adjudicating rights in a particular piece of property) although those kinds of cases aren't very common in federal court and would rarely involve the fact pattern set forth in the original post. Footnote Re Federal Civil Procedure For many years there was a lack of clarity, and/or a split of authority between U.S. Court of Appeals Circuits, over the proper time to appeal a ruling dismissing a party entirely from a case as a matter of federal civil procedure in various circumstances. It was resolved a few years ago, but I don't recall the outcome of that case. The general rule, expressed in Federal Rule of Civil Procedure 54(b) is that the dismissal of a party in a case cannot be appealed unless the trial court certifies that decision as final for purposes of appeal which is a discretionary decision for the trial court judge. | Why should they? If a person is accused of a crime, say murder, why should more evidence be needed to convict them if they are a high ranking government official than if they are just an ordinary person? Why should their trial be conducted differently? If convicted, why should their punishment be different? Yes, you can run societies that way and people have and do but it isn’t very fair is it? Equality before the law does not imply any other sort of equality People high up in the government have more power and authority than others but if they are alleged to have broken the law they are treated the same as anybody else. | Possibly negligent homicide or involuntary manslaughter. Really dependson the state where this happens and the exact elements that need to be proven. Lester has asked his wife to do something that he knows might result in her death and does not warn her. He probably has a duty to warn her. |
Can your ToS ban law enforcement? Researching something I stumbled over the following Terms of service for a website: Notwithstanding any other part of these Terms of Service, and notwithstanding any other express or implied grant of permission, the following persons/entities are expressly forbidden from using, accessing, or obtaining any information from [the site] for any reason: Federal and state law enforcement agencies operating within or under the authority of the states of New Jersey, New York, Connecticut, Pennsylvania, and Washington. Agents of the offices of the Attorneys General of New Jersey, New York, Connecticut, Pennsylvania and Washington. Agents of the offices of Consumer Affairs or Consumer Protection in the states of New Jersey, New York, Connecticut, Pennsylvania, and Washington. Is such a Term of "non service" legal and hold any water? The website claims that the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (the “CFAA”) would give their blanket ban force. | One way in which it holds legal water is that if you use the website in violation of the terms, then you may forfeit your right to take civil action against the company. Analogous language especially regarding the age of the user may protect the site against actions by third party governmental entities (COPPA-like laws), though nothing patently obvious springs to mind (insofar as this deals with firearms and there is also an age 21 restriction both on the web site and in terms of US firearms law, this is not a totally crazy idea). The citation of 18 USC 1030 non-probatively points to an issue which may be disposed of by SCOTUS in US v. van Buren, that knowingly violating the terms of service is a crime (a proposition rejected by lower courts, see US v. Valle). Facebook v. Power Ventures in particular clarifies how "being put on notice" may make such unauthorized access indeed "unauthorized access" in the statutorily-relevant sense. This does not prevent a legally-authorized law enforcement investigation, pursuant to para (f), but if the "violation of TOS = unauthorized access" theory is upheld, it limits how LEOs can legally access the website (and the limitations extend past LEOs). It is a separate and potentially interesting question whether there actually are any legal limits on the investigative powers of the government – if any law enforcement officer has the liberty to investigate anyone they want, with no supervision or requirement of justification, then this would be a rather gaping loophole in their legal strategy. Web pages involve massive copying of copyright-protected data, and the function of terms of use is in part to conditionally grant access to that copyright-protected content. When a person copies protected material from someone's web page having been explicitly denied permission to copy, they run the risk of an infringement lawsuit. | This is a complicated question because adblockers have grown increasingly complex in recent years. What it means to "block ads" from both a legal and technical perspective is more complex than it was just a few years ago. First the broad strokes: It's not illegal to block ads. Multiple court cases have defended users' rights to control the information that enters their computers / devices. You have the legal right to view or not view whatever you like. But... that doesn't mean your use of an adblocker isn't in violation of US law. The crucial issue with legality when it comes to adblockers is less about blocking ads, and more about circumventing a websites measures to defeat adblockers. The US DMCA has strict wording regarding 'circumvention of access controls'. If a website has taken active measures to prevent access by adblocking users, and your adblocker circumvents those measures -- this is very likely a violation of the DMCA. The important point here is that the legal transgression isn't blocking ads. It's the circumvention of access controls which in attempt to limit access to adblock users. There's a good write-up on this topic here: https://blockadblock.com/adblocking/adblockers-dont-break-the-law-except-when-they-do/ Additionally, a website's "Terms of Use" agreement may address adblocking. As we all know, website ToU's are not always legally binding on the site visitor. But sometimes they are. There's a good exploration of how to implement a ToU that addresses adblocking here: http://blockadblock.com/adblocking/addressing-adblocking-terms-use-agreement/ | Like many US legal questions, there is a Congressional Research Service report about this. It is not generally a violation of US law to do things in another country where the only connection with the US is that the offender is a US citizen. However, there are a number of general situations where the US has jurisdiction over federal crimes if either the victim or offender is a US citizen: if a place isn't within the jurisdiction of any country (e.g. Antarctica); a place used by a US government entity (like an embassy or airbase); crimes by American soldiers and those employed by or accompanying the military; etc. These are considered to be within the special maritime and territorial jurisdiction of the US. Other laws apply if they say so. For instance, any US national committing war crimes inside or outside the US can be punished under US law; ditto for treason. The Foreign Corrupt Practices Act makes it illegal for a US national to bribe a foreign official anywhere outside the US for business reasons (if it's inside the US, there are more requirements). For instance, you aren't allowed to pay kickbacks to a foreign government's acquisition officer to buy your product. The CRS report has more (it doesn't include the FCPA, but that appears to be an oversight). Note that extraterritorial jurisdiction doesn't just apply if the person is a US national. US laws can also confer it if the victim is a US national, if the offense has a significant US component, if it's directed towards the US, if it's in violation of international law and the offender later turns up in the US, etc. For your scenarios: Dual citizenship doesn't matter. A US citizen is a US citizen, and is required to obey all laws that apply to US citizens, unless those laws explicitly exempt dual citizens. A dual citizen isn't treated differently by the government; as far as the US government is concerned, their US citizenship is all that matters (except for certain specific purposes like security clearances). In Kawakita v. United States, a US-Japanese dual citizen was convicted of treason against the US for aiding Japan in WWII. Depends. Plenty of these laws have no requirement that anything related to the crime actually happen in the US; for sex tourism, the subsection about traveling in foreign commerce for the purposes of engaging in illicit sexual conduct is followed by a subsection about engaging in illicit sexual conduct in foreign places. "Travel with the purposes of X" or "with intent to X" means you must have intended to do X at the time you traveled, but most extraterritorial laws don't control travel with intent to X (they cover X directly). Depends on the law. Some laws (like child sex tourism) apply to any permanent resident of the US as well as any citizen. Some apply to anyone, because they're based on a conspiracy started in the US. Others apply just to US nationals; a noncitizen isn't bound by them (for instance, no one but a US national can be charged with treason against the US, for obvious reasons). Still others apply to anyone who later turns up in the US, even if that is literally the only connection between the US and the offense (this is basically reserved for crimes against international law, like genocide). | The clause you highlighted has an "or" in front of it: "..., or in such pretended character...". It's only one alternative. Demanding or obtaining money, etc, is sufficient to violate the statute but not necessary. Looking at the previous clause, it is still a violation if the pretender merely "acts as such", which I suppose is what people allege this person is doing. She can be guilty without having demanded or obtained anything, so the question about whether it's a "thing of value" is moot. As to the "nonexistent agency" issue: a useful source for information about how federal criminal laws are interpreted and enforced is the Justice Department's Criminal Resource Manual. (The link may be a past version; they seem to have reorganized their documents and I can't find a version not marked as "archived", but I think the information is still valuable.) 18 USC 912 is discussed in sections 1469-1477 of that version. Section 1474 examines the meaning of the "acts as such" element, and includes this note: It is not necessary that the act be one which the pretended officer would have authority to perform if he were in fact the officer he represents himself to be. Lamar v. United States, 240 U.S. 60 (1916); United States v. Hamilton, 276 F.2d at 98. Nor is it necessary that there be in fact such an officer as the defendant pretends to be. Caruso v. United States, 414 F.2d 225, 227 (5th Cir. 1969). Caruso in particular was a case in which the defendant, as part of a scam, claimed to be the Administrator of a Veterans Hospital. He was convicted, and appealed on the basis that the government had not proved that the office of administrator existed. (Just as in this case, the government certainly could not prove that the Freedom to Breathe Agency existed, since it does not.) The Fifth Circuit found that his point had "no merit" and, citing Brafford v. United States (6 Cir. 1919, 259 F. 511, 513), that it was "immaterial whether or not there was any government officer or employee with the precise title [the defendant] assumed". I realize that claiming to be a nonexistent officer is not exactly the same thing as claiming to represent a nonexistent agency, but I would expect that courts would treat it the same. | 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. | The United States has a very liberal attitude when it comes to free speech. Short of materials that are: child pornography, restricted under the International Traffic in Arms Regulations (ITAR), Libelous/Fraudulent, encourage or aid others in breaking the law, or seditious/treasonous/ terroistic/other credible threats there is almost nothing that can't be published. There is another example where supposedly The Golden Book of Chemistry Experiments was banned by the US Government, but I cannot find any evidence or action against the author to support the claim. The Political Mofia by Schiff was not neccessarily banned, but an injunction from publishing was issued against the authors in US v. Schiff, 379 F. 3d 621 - Court of Appeals, 9th Circuit 2004 per 26 U.S.C. 7408 on grounds that the books was fraudulent. Essentially it is the Federal courts that can ban a book from commerce with cause. Schools, libraries and other institutions may ban it from their collections, but not from public commerce. Wikipedia has a list of Books banned by governments that you may want to look at to find examples. | Mongolia apparently has a list of banned words (list is NSFW) that websites can't use. And according to this State Department report: Additionally, the regulation requires Web sites with heavy traffic to use filtering software that makes the user Internet Protocol addresses of those commenting or sharing content publicly visible. The report also says: The law places the burden of proof on the defendant in libel and slander cases, and both defamation and insult are criminal charges. NGOs reported that these laws were used more frequently than in previous years to control the press. Canada is probably a better choice, even if it isn't perfect. | 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. |
How do these no name companies get rights to use copyrighted characters? I see ads for these companies all the time, they seem like tiny companies and all they have going for them is that they make use of major copyrighted characters in their products. Examples: https://lampsity.com/ https://lewdskate.com/ (NSFW) Is there some legal loophole these companies are exploiting that allows you to use these characters? Are they just blatantly violating the law? Or is getting these rights just simpler than I'm picturing? | Licencing agreements The company producing these has successfully negotiated a licencing agreement with the IP holder to use the IP. These are extremely common. Subcontracting They have actually been commissioned by the IP holder to make these things for the IP holder e.g. for the IP holder to sell in their own outlets. As part of that agreement, they are also allowed to sell on their own behalf. Piracy They are breaking the law and hope they will be undetected, not worth prosecuting or operate out of pirate jurisdictions which will not enforce foreign judgements. | The details of this specific matter are not clear because it appears that Mane6 relented in response to a cease and desist letter, rather than be dragged through court. Since we are not privy to the letter from Hasbro, the best we can do is guess based on the degrees of freedom that exist under the law. The claim that this game was a "parody" is an affirmative defense that Mane6 would have to raise in response to a copyright infringement claim (we don't know if there were also trademark infringement claims in the letter). Then the jury would look at the arguments of the two sides to determine whether this was really "fair use", performing the "balancing act" to see how much of the original work was copied, how transformative the derived work is, what the effect on market would be. The lines drawn for making these judgments are not bright. A quick scan of a successor product Them's Fightin' Herds suggest that someone thought the artwork was too substantially similar to the Hasbro product, that is, the fighting pony version was judged to not be transformative enough. Since it didn't go to court, we'll never know. | Their code, their rules A copyright holder is free to offer their work under none, one or many licences. They can, at the same time, use their own work however they see fit without regard to the licences they have given/sold to others (except, they can only give one person an exclusive licence). As an analogy, let’s say I own a fleet of cars. I can drive my cars anytime I want. I can let Jim drive my cars anytime he wants for free. I can let Mary drive a specific car on Thursdays and only within 10km of the depot. I can let Joe drive my cars providing he pays me $50 a day. And I’m not going to let Fred drive them at all because Fred’s a jerk. Each of those is a different licence. | I take it that you intend using the logos of the various companies to show that you do business with them? That would be "nominative use" and would be legal even without permission, but it would be better practice to ask for permission. You would need to make it clear that these companies do not endorse or recommend you (unless they do and say so in writing). If you get permission, ask about any color variations they are OK with. Would it be possible to put a black or dark color undercard below any logos that are white on transparent? this would make them visible and be a minimal change to the standard form of the logo. Again, the key thing is to make it clear that you are not claiming to be any of those companies, nor to be endorsed by them. And yes, a short consultation with a lawyer knowledgeable in trademark law would be a very good idea, and might not be very expensive. | Names cannot be copyrighted at all, in any country. They can, however, be protected as trademarks. The general idea is that if one uses a name to identify a product or service, or a creator of products or services, others cannot use the same or a similar name to identify their products or services in such a way that a reasonable person might be confused into thinking that the two came from the same source, or one was endorsed or approved by the other. Trademarks are limited in scope to a particular country, A name that is protected in Canada, say, will not be protected in the US unless steps have been taken to protect it there. In some countries a trademark must be officially registered to get any protection, In others, such as the United States, merely using the mark can give a degree of protection, although registration give more protection. Each country maintains a trademark registry which can be searched for existing marks. There are search firms that will do such searches for a client, and also search for marks in use but not registered, for a fee. Trademark protection is generally restricted by the type of product or service involved. An anti-virus program, say, called "Guard dog" would probably not interfere with a fantasy game called "Guardog". A private security service of the same name would pretty surely not interfere. The range of protection depends on how widely known the product is, but "software related" is a very wide area, and except for famous marks, a mark protected in connection with one area of software will not be protected in a very different area of software. Names that a purely invented, such as Kodak, are more strongly protected than descriptive marks such as "Best Pizza" Particularly famous names such as "Microsoft" get additional protection even outside their usual areas, so "Microsoft Pizza" might be a problem. Logos and other graphic marks can also be protected as trademarks, but that is not what the question asked about. The styling of a trademark, such as a particular font, choice of colors, and so on, can also be protected. This is called "trade dress". A disclaimer making it clear that a somewhat similar name is not related, and the is no affiliation can help avoid avoid an infringement suit. For example: Pear brand kites are in no way associated with, sponsored or approved by the makers of Pear smartphones. On this site we cannot give specific legal advise, so we cannot evaluate whether a specific proposed trademark would or would not infringe an existing mark. It might be well to consult an attorney with trademark experiences before finally choosing a name and doing marketing under it. | All your work is yours. They've made it very clear it wasn't a work for hire, so it's yours. They can't copyright any of their ideas. You can't copyright an idea. Only specific creative elements authored by them and present in your work could be covered by copyright. You didn't use their block diagrams. I don't see how references to other sites to look at would constitute a creative element they authored. That said, you probably want to talk to a lawyer and get a written legal opinion that you can rely on. | You cannot use a trademark in a way that may cause confusion that your goods and services are associated with or endorsed by the trade marked goods and services. If you are clear that they are not then you shouldn't have any problems on that front. You also cannot defame the brand: that is make derogatory comments that are not true. On a practical note, when Pepsi (for example) sends you a cease & desist notice, what are you going to do? They can go to the petty cash tin for $2 million to make your life a legal hell for 18-36 months: how much do you have to defend your rights? | The name can not be copyrighted, but they don't own the rights to the songs and they are telling you they will perform them. They don't want to put it in writing that they are performing songs they legally can't. |
Faking your own death for taunting purposes Suppose you cause it to be falsely reported that you have died, and your purpose is only to see your enemies gloating over your demise at your funeral and then being disappointed to learn that you are alive. During the rite, you sit up in your coffin and sing an aria. (Suppose the aria is not subject to copyright.) Would there be legal consequences? (A character in a certain novel claimed to have done this. I think he said the aria was from the opera Jesse James. I don't think that opera exists in reality.) | I'll use Wisconsin as a jurisdiction. If you file a false death certificate, that's a felony. But you probably wouldn't go that far. It could be disorderly conduct. In Wisconsin disorderly conduct is described as follows: Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor. There's also a statute prohibiting "Disrupting a funeral or memorial service" but it won't apply in this case unless disorderly conduct applies. It would raise the penalty to a class A misdemeanor (or a class I felony if you somehow did it again after being convicted once.) On the civil side, there could be an action for intentional infliction of emotional distress, either for the false report of your death, or for a "corpse" suddenly coming to life. This kind of lawsuit requires "extreme and outrageous conduct", but if this isn't, I don't know what would be. | I can’t think of any laws against pretending to commit a crime, per se. For example, undercover police officers often pretend to buy or sell illicit goods, to see who will take them up on the offer. However, pretending to commit some crimes could be a crime. if you intentionally pretend to be violent or unstable, and this “puts another person in reasonable apprehension of imminent harmful or offensive contact,” that could be common assault. | §145d StGB makes it illegal to pretend that a crime did happen or will happen, but only if one deceives the police or a similar agency. It is also a crime to deceive about the participants of a crime. Pretending to have been sentenced and presumably to have been released after serving a sentence does not quite fit that law. | Here's where you went wrong legally: Suppose I legally obtain some digital image created by somebody else (e.g., by downloading from a public website). That, right there, is copyright infringement- unless the copyright owner has granted permission or the image is public domain you cannot copy it - this breaches "the right to make reproductions". By posting it on the web (assuming that it isn't itself an infringing copy) they have given implied permission for you to look at it in a web browser but not to copy it into a presentation even if that presentation is never presented. If it is presented then that makes the infringement worse - it adds breaches of "the right to communicate to the public" and "the right to use the work as a basis for an audiovisual work". How is this different from the computer wallpaper? It isn't. If you are using the one of the defaults that shipped with the OS then the license gives you permission. If you are using someone else's copyright without permission then it's a breach. There are defenses to copyright infringement but these are quite nationally variable - search this or other sites for "fair dealing" and "fair use". | The site's owners would likely be immune from any civil action based on its users' conduct, under Section 230(c)(1) of the Communications Decency Act: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. The users, though, could still face liability. Although it would be libel rather than slander (because it is published rather than spoken), any damaging falsehoods could be actionable. The emotional distress component would also be a possibility, but it would probably be a tougher case. The laws vary from jurisdiction to jurisdiction, but generally speaking an emotional-distress case requires really outrageous behavior and and very serious emotional damage. | Definitions A brand name is not a "character". Neither is a real person, unless that person is being used as a character in a work of fiction. I will answer what I think the question intends. One can't really parody a real person, but one can use a person fictitiously. I am using here a narrow definition of "parody", that one parodies a work by imitating it so as to comment on it, often but not always negatively. I exclude from "parody": cases where the events of a work are imitated to tell a different story, or the same story in a different setting -- that is "retelling". (West Side Story is a retelling of Romeo and Juliet, not a parody, in this sense.) I also exclude cases where the form or style of a work is imitated to make a different point, or for general humorous effect. That would be satire but not parody. I am using this narrow sense of parody because it is my understanding that only parody in the narrow sense has been held to be fair use. Satire or retelling is not generally fair use under US law, at least not because of the satire or retelling. Copyright The US Supreme Court has held in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) that a commercial parody can be a fair use. The US Eleventh Circuit court extended this holding to novels in Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001), in which it held that Alice Randall's 2001 parody, The Wind Done Gone, was not an infringement of Gone with the Wind But it is important to note that the definition of "parody" used in those cases is significantly more limited than the use sometimes made of the term in artistic circles or by average people. The courts held that a parody was fair use specifically because it commented on the original. A reworking of a story which did not particularly comment on the original, such as West Side Story based on Romeo and Juliet would not be fair use, at least not because it was a reworking/parody. (Of course Shakespeare is not protected by modern copyright, but if it were, West Side Story might be an infringement.) The use of the name or description of a real person in a work of fiction would not be an infringement of copyright, as no copyright covers a real person. Trademark Use of a variant of a protected trademark in such a way that reasonable consumers might be confused into thinking that it was created, approved, endorsed or sponsored by the trademark holder would normally be a trademark infringement. On the other hand a trademark may be used to talk about a product, using the trademark as the name of the product. This is known as nominative use. Thus a character in a book or movie could say "I bought a Ford" or "I looked it up on Google" and it would not be trademark infringement, usually. However, authors and particularly movie-makers do not want to risk a possibly expensive trademark suit and so they often invent product names to avoid any possible risk of trademark infringement claims. The names of people are less often protected than trademarks, although some are. Some fictional characters have their names or images protected as trademarks, but most do not. Use of the name of a real person could not be trademark infringement, unless that person's name was a protected trademark (rare but it sometimes happens). Even then, use would probably be nominative use unless the public would be likely to be confused into thinking that the person had approved or endorsed the work. Defamation If a person is used as a character in a work of fiction, and the character is portrayed in a negative way, this might give rise to a claim for defamation. For that claim to hold up, reasonable people would have to think that the description in the work of fiction also applies to the actual person. The work would have to make false factual statements about the person, that harmed the person's reputation. If the suit were in the US, and the person defamed was a public official or a public figure, the plaintiff would have to prove actual malice. That means proof that statements of fact were made knowing that they were false, or with reckless indifference to the truth. Proof of actual malice is often hard to obtain. Note that a work of fiction can be defamatory if a person is readily recognized, even if the name and some details were changed. For example the movie Citizen Kane was clearly based on the life of William Randolph Hearst, and Hearst is said to have considered a defamation action. | The reason is 17 USC 106: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following... (2) to prepare derivative works based upon the copyrighted work The original picture is the underlying protected work. The ASCII reproduction is a derivative work. If you get permission to make the derivative work, it is okay. Otherwise, it is copyright infringement. There is an escape clause, "fair use", which amounts to taking a chance that you won't be sued and then arguing that you didn't do them any prohibited harm. If you make any money off of the game, you have a major strike against you. I suggest reading the fair use FAQ; basically, it is really hard to know how a fair use defense will fare, but based on prior cases, I'd say it's infringement, not fair use. | 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. |
How is it legal for the US President's name to appear on aid checks? Apparently, (soon-former) US President Donald Trump's name appeared on the stimulus checks sent out last year. I guess this is a late question to ask, but - how can this be legal? It makes it appears as though it is a personal gesture by Trump rather than a federal state action, which if anything is credited to the congress. Obviously it has a significant (and perhaps huge) effect on people's personal support for Trump as a candidate if "he sent them checks". Is this kind of practice really not forbidden by some law or election-related regulation? | It is common place for major official actions, not just checks but also, for example, governmental buildings, to note the politicians who implemented law or enacted them at the time. This practice is not forbidden by any law or election-related regulation. There is a strong political norm as a matter of political etiquette that checks from the government be signed by a senior official in the Treasury department or a state and local equivalent, such as the Secretary of Treasury, the Comptroller of the Currency, or the Director of the Internal Revenue Service, rather than the President, Governor, or Mayor. But no one would have legal standing to challenge a violation of this political norm in court, because a person receiving a check naming the President as the signer has not suffered an actual injury. | 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. | He can, to the extent that there is a federal charge involved. There is no limit to the power to "grant reprieves and pardons for offenses against the United States", but there is no power to grant reprieve or pardon against a US state or foreign country. In other words, a presidential pardon would prevent the person from being tried or punished by the US federal government. It would not prevent them from being tried or punished by a state or foreign government. | Sure Obama can sue Trump for defamation. Libel is a civil offense and committing libel is not a part of Trump's role as president. Regarding official acts, the President is immune. But not for personal acts. See Is the US President immune from civil lawsuits? But a libel action would be difficult to win; they're both public figures, which makes the defamation threshold higher: Public officials and figures have a harder time proving defamation. The public has a right to criticize the people who govern them, so the least protection from defamation is given to public officials. When officials are accused of something that involves their behavior in office, they have to prove all of the above elements of defamation and they must also prove that the defendant acted with "actual malice." Defamation Law Made Simple | Nolo.com The "actual malice" part is interesting: In the landmark 1964 case of New York Times v. Sullivan, the U.S. Supreme Court .... acknowledged that in public discussions -- especially about public figures like politicians -- mistakes can be made. If those mistakes are "honestly made," the Court said, they should be protected from defamation actions. The court made a rule that public officials could sue for statements made about their public conduct only if the statements were made with "actual malice." "Actual malice" means that the person who made the statement knew it wasn't true, or didn't care whether it was true or not and was reckless with the truth -- for example, when someone has doubts about the truth of a statement but does not bother to check further before publishing it. (same link above) Could malice be proved? Was Trump reckless with the truth? Could be. But would Obama sue? What's the cost/benefit analysis to him and his legacy, politically and personally? Trump was taking a political or personal risk - or he's being stupid - with such accusations, since he may feel invulnerable. He has sued and been sued and settled many times: see Legal affairs of Donald Trump I think both would not want to be in court; because once in court, they (and their lawyers) both have subpoena power and both would have to answer nearly any question put to them about their public (and possibly private; but not official) lives. Trump has interestingly enough talked about "opening up the libel laws" so he can more easily sue people. But if he did that, it cuts both ways: he would be easier to take to court. See Can Libel Laws Be Changed Under Trump? In my opinion, Obama is much better off ignoring Trump and letting the FBI, DOJ, Congress and the Intel Community do their jobs - have the facts fall where they may - and and not become a right-wing talk radio subject for the rest of his life, as well as risk being deposed himself in court. Edit 3/21/17: From a timely piece in The New Yorker: http://www.newyorker.com/news/news-desk/how-the-first-amendment-applies-to-trumps-presidency While it is unlikely that former President Barack Obama would sue Trump for libel, he very likely has a strong case. The First Amendment scholar Geoffrey Stone wrote in the Chicago Sun-Times http://chicago.suntimes.com/opinion/opinion-trump-could-lose-lawsuit-for-libeling-obama/ that “there seems no doubt that Trump’s statement was false, defamatory, and at the very least made with reckless disregard for the truth.” That is the test for damaging the reputation of a public figure or official: Trump either made his assertions with knowledge of their falsity or with disregard of a high degree of probability that they were false. Obama, Stone is confident, could prove that Trump made his false charge, as the Supreme Court defined the standard, with “actual malice.” | There's also the matter of admitting its over is not admitting he lost. Trump could be saying privately that he thinks all possible attempts to contest were blocked, but that since almost all were blocked for non-evidentiary reasons, he can still hold that had the cases progressed to the evidentiary portion the outcomes would have been different. From an apolitical example, just because someone cannot be tried because of statute of limitations, doesn't mean they didn't do the crime... just that the prosecution didn't charge them in a timely manner. The prosecutor, upon getting the decision from the judge that the trial won't even happen, could say to himself or a client "It's all over" while still believing they had the guy they accused dead to rights for the crime. There is further issues with the Politico report that could negate this as evidence of Mens Rea (the first matter is for some reason the link to the report is not working for me, so pardon my ignorance of the details in the article). I'm supposing that Donald Trump did not tell the reporter this story himself, but rather a likely unnamed source that is close to Trump. Here the problem in court would be a matter of evidence (Trump would say he never said this... Politico can't refute that claim by saying we know a guy who says you did... the guy who said Trump said it could testify, but as of yet, we don't have any identity at this stage in the game... the burden of proof is on those who say Donald Trump said something that He himself says he never said or doesn't recall saying. The net result is that the statement attributed to Donald Trump would not be evidence to Mens Rea in any prosectuion right now because there is no specific person attributing the hearsay statement to Trump when Trump denies saying it (it is not hearsay to introduce statements agains opposition's intrest at trial, but the testimony to such evidence needs to be made by a person who was privy to the statement when it happened (they don't need to be the party that the comment was made to... just had to have a valid way of hearing it first hand). With all verbal statements, the larger context also applies, so access to the larger conversation as well as Trump's state of mind in the moment he said it to help infer ultimate meaning. Did Trump think he actually lost because he accepted the results OR did he think lost because he was cheated and denied a chance to be heard in court or have his evidence considered beyond pretrial determinations? The quote could be said in either context and mean totally different things as evidence to the two specific crimes you accuse him of. It's not something to dismiss off hand, but at this stage it is also not a smoking gun. Remember the classic Twilight Zone episode "To Serve Man" and that a single lone statement can have multiple meanings... assuming the most appealing meaning can have disasterous results when the statement is put into a broader context. | Yes The relevant Swiss law is known as the FATCA Agreement and has been in force since 30/6/2014. FATCA stands for the Foreign Account Tax Compliance Act, a unilateral set of US regulations that applies worldwide for all countries. It requires foreign financial institutions to disclose information on US accounts to the Internal Revenue Service or levy a high tax. At the moment, Switzerland uses the "Model 2" agreement with the USA, which requires the consent of the US taxpayer or an administrative request by the IRS. There are plans to move to the "Model 1" arrangement, which uses automatic data sharing, but the timeline is uncertain. The bank is required to verify that your friend is not a US tax resident, and the visa is one of the pieces of evidence they need. Your friend can, of course, refuse to produce it. The bank can then either refuse to do business with them, or treat them as though they are a US tax resident and withhold the required tax until such time as they prove they are not. | One does not lose legal rights by becoming a government official, so POTUS retains the right to sue for defamation, hold copyright, sue for trespass or breach of contract, and so on. The standards for defamation change when one becomes a "public figure" (you have to show "actual malice"), but this is much broader than being a government official. Anything that is a "work of the US government" is not protected by copyright, so presidential decrees, as government works, are not protected by copyright. I do not know of any state where one legally loses publicity rights as a function of being famous, or being an elected official. California Civil Code §3344 spells out the right of publicity in that state, which says that anyone who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent can get sued. However, there is a "fair use" escape clause: For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a). The law doesn't say exactly what constitutes a "political campaign" or "public affairs broadcast or account", but since politicians get caricatured in the papers all the time, with no requirement for consent, it is highly likely that the use you point to would be found to be part of a "political campaign" or "public affairs account". Additionally, under the First Amendment, you can criticize a government official, and that right is not limited to just critical words. It is obvious that the things on sale are basically criticism of POTUS, and you can't use the law to suppress such criticism. Accordingly, one could also criticize Tom Cruise (not a government official) using his likeness on such an object. However, one cannot exploit his image to sell perfume. | The linked Bloomberg story quotes the rule as: The recipient is allowed to keep the funds if they [the funds] discharge a valid debt, the recipient made no misrepresentations to induce the payment, and the recipient did not have notice of the mistake. If the recipient, or somone acting on behalf of the recipient, hacked the sender to induce the payment, that sounds like a form of misrepresentation to me. If the hacker is unconnected with the recipient there seems no way that the hacker benefits financially, although I suppose a hacker might simply want to cause an amusing disruption. As I understand it this rule only applies when the sender in fact owes a debt to the recipient that the transfer pays off. If the hacker were working for one of a large group of recipients, most of whom are innocent, and subsequent analysis establishes that there was a hacker, but not who the hacker was or which of the many recipients the hacker was working for, I suspect, but cannot prove, that the doctrine would not apply, because the transfer was not a valid but incorrect act by the sender, but was a fraudulent intervention in the sender's procedures. |
How to determine what frequency of GDPR SAR is not excessive? Repeat Subject Access Requests are limited in frequency by the Manifestly unfounded and excessive requests rules. The critical bit seems to be "A request may be excessive if it: repeats the substance of previous requests and a reasonable interval has not elapsed". This is clarified "how often the data is altered – if information is unlikely to have changed between requests, you may decide you do not need to respond to the same request twice." The actual legislation says even less, but does say that it up to the controller to show that it is excessive. I was in the process of setting up a cron job to make an SAR to the DVLA requesting a list of organisations that have received my data. This is to know about claims such as parking fines being made under the Protection of Freedoms Act 2012 when something goes wrong with the letters sent. I thought I had read that every 3 months was considered "not excessive" but I cannot find that now. I can think of 2 ways to make this decision, depending on what factors are important in the definition: If the important factor is the use to which the data is to be put, then there is timing defined by the act, and this gives 14 days for a letter to be posted, received, acted upon than the response posted and received. I would say in this context 7 days would not be excessive for a process that could be completely automated. If the important factor is "information is unlikely to have changed between requests" then I would take the distribution of information sharing events in the response to the 1st request, put them into a bayesian model and make requests at the frequency of the low end of the 95% credible interval of getting a change in the time period. It is quite possible, depending on the frequency of information sharing events , the time period for which information is provided as well as the model and prior, that this would be less than 7 days. I either case I would provide this rational in the initial data request, as well as informing them of my intention to make these follow up requests. It would then be up to the data controller to demonstrate that my rules are manifestly excessive. As well as the DVLA, a similar argument could be made for many other organisations such as credit reference agencies. Many people may be interested in making these requests if it was demonstrated useful. As a data subject, what aspects should be considered when making these decisions? | There are no specific criteria for deciding whether a request is manifestly unfounded or excessive, because this depends very much on context. The ICO has given some clarifications, but they still won't tell you an allowed frequency of requests. We (as data subjects) should not invent particular criteria because they would be only our opinion. In any case, the data controller would have burden of proof to show that a request was indeed manifestly unfounded or excessive. That means that a data controller will generally err on the side of caution and allow repeated requests. But that doesn't mean you won't get pushback on your proposed frequency. I think your proposed approach is likely to be both unfounded and excessive. A controller has one month to respond to your request. Sending off a request while a previous request is still pending would likely demonstrate an excessive frequency of requests. Even if the data controller responds more quickly, it is doubtful whether that would entitle you to more frequent updates. Since the data controller will inform you about important events with a letter, this weakens your need to make frequent requests. Your “Bayesian model” is also flawed, both in content and application. As your prior, you expect a very high rate of events. However, a normal citizen would expect to receive a parking fine approximately never. Your model should more correctly be based around the probability of missing an event, while also accounting for letters (which generally do arrive in time). It might also be incorrect to use your circumstances as the basis for determining a reasonable frequency. The ICO suggests multiple factors (nature of the data, purposes of processing, how often the data is altered, relationship with other GDPR rights). These factor's generally relate to the controller's processing, but not to your individual circumstances. Next, your requests seem unfounded: the purpose of your requests is not aligned with the GDPR, and automated requests raise doubt about whether the request is valid. Your motivation to make the requests is “to know about claims such as parking fines […] when something goes wrong with the letters sent”. This is a fairly speculative reason since letters generally do arrive well. In contrast, the GDPR provides for the right to access “in order to be aware of, and verify, the lawfulness of the processing” (Recital 63). You are not claiming the right to access for the purpose of verification and to obtain information about the processing, instead you're abusing the GDPR rights to create a kind of API that auto-updates. So, is three months a hard and fast rule? Definitely not, but it seems like an unobjectionable, reasonable frequency. If a data controller thinks a request every three months is excessive, you'll likely be able to push back successfully. But with more frequent requests, you're entering a grey area. Here, it becomes increasingly likely that the controller is able to demonstrate that your requests are invalid. | These are only tangentially related to the GDPR A government entity processing data in accordance with a member state law is ipso facto in compliance with the GDPR. That’s because lawful government data processing is a legitimate reason for processing data under the GDPR. If Germany, for example, passes a law saying German police can record every phone call in Germany, then that would be a lawful basis for processing under the GDPR. There may be constitutional or other legal limitations on such a law but as far as the GDPR is concerned, they’re fine. | See Art. 17(2) GDPR: Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. So the controller must tell all other controllers (like google) to delete the data. The privacy policy must include the fact that data is made public. | Term 1 isn't going to hold up, but that is not a GDPR matter. It's just a matter of basic consumer protection law in the EU. You can't offload responsibility for your mistakes. Looking at 2, Dale M. already pointer out that it's now how the GDPR works. You are the Data Controller. X,Y and Z are Data Processors. Article 28(1) of the GDPR is in direct conflict with your disclaimer. You accept zero responsibility, the GDPR says you are fully responsible. That's the exact opposite. | 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 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. | Q1. Is there a requirement under GDPR for data processors to disclose sub-processing arrangements and the names of the organisations involved in this? "The processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes." -- EU General Data Protection Regulations (GDPR) Article 28 Paragraph 2 This clearly states that the processor would need to make clear that they are subcontracting the services and get permission for this as part of the contract, but doesn't specify whether the subcontractors must be named and identified. Perhaps there is other prior existing subcontracting legislation that requires them to be named? Some procurement contracts as supplied by controllers may specify a list of nominated (allowed) sub-contractors or require the full identification of sub-contractors though I've not found anything in law that requires they be named other than as part of a specific contractual obligation. Q2. Is there a requirement under GDPR for data processors to disclose the country or countries where data is stored and processed? "Processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller. That contract or other legal act shall stipulate, in particular, that the processor: ... (h) makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller. ..." -- EU General Data Protection Regulations (GDPR) Article 28 Paragraph 3(h) This clearly states the data processor must make available to the data controller all details required to demonstrate compliance. It's quite likely larger organisations may choose to make this simple for data controllers by supplying this information in the form of a completed Data Privacy Impact Analysis document. "Each controller and, where applicable, the controller's representative, shall maintain a record of processing activities under its responsibility. That record shall contain all of the following information: ... (e) where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and, in the case of transfers referred to in the second subparagraph of Article 49(1), the documentation of suitable safeguards; ..." -- EU General Data Protection Regulations (GDPR) Article 30 Paragraph 1(e) This clearly states the data controller must maintain a record of the country or countries involved if any of these are outside the EU, and so this information must be made available to the controller as stated above. | It's hard to prove a negative, and I'm not sure which specific part of the quoted Terms you object, to, but it specifically states that content access may be done to: Comply with the law Protect its customers; and Protect the security of its business; and Protect its business interests. It's unlikely that access of information to comply with the law is illegal. At least one EU directive, Directive 95/46/EC, sets limits on the collection and use of personal information. We're concerned with the first condition for lawful data processing, and the second principle of data quality. Data processing is only lawful if the data subject has unambiguously given his consent; or processing is necessary for the performance of a contract to which the data subject is party; or processing is necessary for compliance with a legal obligation to which the controller is subject; or processing is necessary to protect the vital interests of the data subject; or processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party; or processing is necessary for the purposes of the legitimate interest pursued by the controller or by the third party, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection. The principles of data quality, which must be implemented for all lawful data processing activities, are the following: personal data must be processed fairly and lawfully, and collected for specified, explicit and legitimate purposes. They must also be adequate, relevant and not excessive, accurate and, where necessary, kept up to date, must not be stored for longer than necessary and solely for the purposes for which they were collected; special categories of processing: it is forbidden to process personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. This provision comes with certain qualifications concerning, for example, cases where processing is necessary to protect the vital interests of the data subject or for the purposes of preventive medicine and medical diagnosis. So, let's say that someone has given their consent. It'd be at least a little questionable whether the inspection of private information could mean that they access personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. I'm a bit less clear on US laws, but you'd probably look for laws around Personal Identifying Information, as that's where a lot of focus has been. |
Why do lawyers tend to be very conservative in making suggestive predictions? Lawyers tend to be very conservative. For instance, clients often ask them for an assessment of "the chance of X going through". While clients can make it clear (in writing) that lawyers will not be held legally liable for giving "pure advice", lawyers often still refuse to give any guidance (even when they clearly do have one in mind). This can be inefficient because clients often need to rely on imperfect expert assessments to make judgments. What make lawyers so conservative? The "obvious" answer is that they do not want be sued. However, the same should apply to consultants, but consultants are much less conservative. Further, this shouldn't explain why lawyers are so conservative even if clients make clear that they cannot be held liable (assuming that such client statements are legally binding). Given this, one more possibility is that this is purely due to the legal sophistication of lawyers. That is, even consultants should also be afraid to be sued, they failed to avoid it due to not being very sensitive about legal matters. | For instance, clients often ask them for an assessment of "the chance of X going through". While clients can make it clear (in writing) that lawyers will not be held legally liable for giving "pure advice", lawyers often still refuse to give any guidance (even when they clearly do have one in mind). I do this on a regular basis. This said, lawyers are ill equipped to evaluate cases in these terms, because they don't see a full and unbiased sample of cases that they study academically, because there are too many distinctions between cases to make apples to apples comparisons of them, and because most lawyers went into law because they don't like thinking about things in mathematical terms. Lawyers will not infrequently say that a case or argument is strong or weak, or very strong or virtually frivolous, but evaluating the strength of a case is difficult and there are good academic studies that show that lawyers systemically overestimate the strength of their own cases. So, humility about the likelihood of a particular outcome is a good professional norm to have in place. Basically, law contains lots of uncertainty and the known unknowns and unknown unknowns predominate over what is known, most of the time. | A self-represented person, as a practical matter, has no choice but to engage with the court when an oral argument is conducted. A person present in a courtroom likewise has an obligation to acknowledge a judge addressing them. Usually it wouldn't be contemptuous to fail to appear at oral arguments of a fully briefed matter (e.g. a motion for summary judgment, or an appeal), but it would generally be viewed negatively. One could respond to a question from the court with "I don't really have anything more to say, my brief speaks for itself." And, sometimes a court would leave it at that, but if the court insists there is really no other option than to clarify and explain yourself. Most often, this helps more than hurts a pro se party, although I've certainly seen cases with ghost written pleadings (which are authorized if disclosed in many jurisdictions) where this isn't the case. A fairly common tactic in civil litigation is the take a deposition of a party, or to call a party to the witness stand, and to ask them if they really want the relief that their filed legal documents says that they do, as a way to narrow the scope of the claims brought against the questioning lawyer's client. But, this is less of an issue with a pro se party when the person who drafted the legal documents and the person engaging in oral arguments are the same person. This can't be done in criminal litigation, but I could see a prosecutor trying to do something similar in oral argument, although usually in that context, the judge and not the prosecutor, is asking the questions. | Good decision-making may take some time. During the hearing the judges will hear/see what the parties say, and may: Come up with a decision and voice it right away; or Tentatively come up with a decision, but wish to deliberate/research it further to be sure; or Find it difficult to figure a decision. Extensive deliberations/research will be required. Those are the official reasons. In practice, if the court is not so independent or is corrupt, the judges may secretly consult whoever they see fit before reaching a decision (politicians, parties to the case who bribe them, and so on). | You can jointly hire a lawyer Yes, they can jointly hire a lawyer, coming at the lawyer essentially as one single entity: a partnership. The lawyer will research both sides of the question, and give the partnership a fair report. The fee you pay may not deliver to one definitive answer, but it'll discuss all the likely angles. However, if one of them needs a lawyer in an action against the other, that jointly hired lawyer will be "conflicted out". So Bob should identify the best lawyer in town in that particular area of practice, and retain that lawyer privately without telling Rob. Then, identify the second best lawyer in town, and recommend to Rob to use that lawyer for the "joint" lawyer. Now, when we come down to Bob vs Rob, Bob has the best lawyer, and Rob's is third best. Facts and circumstances will decide the matter The biggest problem with floating a hypothetical question is that the actual facts and circumstances in your genuine flesh-and-blood case are likely to be different. Understand that litigants are especially stupid about this. There's a huge bias to believe matter X is relevant/on-point to their own case, when a neutral judge may not see it that way at all. Likewise, there's a huge bias toward presenting your hypothetical in flattering terms, on the hopes of getting a more favorable ruling. Then, when the real case comes up, the facts and circumstances differ too much, and the judge says "these facts don't fit your declaratory judgment". And now it's a new ballgame. Your best bet, in areas of doubt, is to obtain legal advice and pay heed to it. | Because your legal fees and contract damages are not "in addition to" your risk; they are your risk. If you pay the retainer and lose, you don't lose anything more than the retainer and damages. If you pay the retainer and win, you don't win anything more than the retainer and damages. The only kind of argument I can see here is that you're incurring some kind of psychic cost by enduring the uncertainty surrounding the litigation, but I can't remember ever seeing a case -- in Florida or elsewhere -- in which the court recognized taking on risk as a compensable harm, especially in a contract case, where damages are much more limited than in other kinds of cases. Risk is just a necessary feature of an adversarial legal system. | Short Answer The concern raised is a real one, but it is much less serious than one might naively expect. Long Answer Precedents Apply Only To Resolve The Legal Arguments Presented On The Facts Found To Exist At Trial A Bad Lawyer's Failure To Develop Facts At Trial Isn't A Serious Problem A precedent determines the law as applied to a particular set of facts found by the trial court and confirmed as properly in the trial court record by the appellate court, as to a particular legal issue. Failure to prove facts at trial due to the fault of counsel for a party in the trial court changes the scope of the precedent. Failure to establish facts in one case that sets a precedent, doesn't prevent a similarly situated party, in a case with essentially the same actual facts, from doing a better job and thus presenting a set of facts that are not governed by the same precedent. The precedent from the ill argued case would not apply because the facts as found by the trial court would be different. A Bad Lawyer's Failure To Present Legal Arguments Isn't A Serious Problem if a someone lost a case merely because they did not come up with an argument which, should they have come up with, would convince the judge to rule in their favour, and that case has become a precedent, the fate of any following cases in lower courts with comparable facts will be decided by that unluckily slow-thinking litigant/lawyer. Likewise, suppose that due to incompetence of counsel, a key legal argument isn't made. When a trial court lawyer makes that mistake, the precedent will merely resolve the legal arguments that were resolved by the trial court. This won't preclude a future litigant from making different legal arguments that are stronger in the same circumstances since the precedent won't resolve those legal arguments. For example, suppose that a trial, a lawyer for one side fails to argue that the statute of frauds (which requires certain contracts to be in writing) bars the claim, and the judgment in favor of other other side on an oral agreement is upheld on appeal. A lawyer in a new case with the same facts can move to dismiss the other side's claim based upon the statute of frauds, because the precedent upholding the oral agreement didn't resolve the question of whether the statute of frauds could be used to dismiss the claim arising under that agreement. There Aren't Better Alternatives To Sift Through Legal Arguments No lawyer can make every argument. The incentives of the system and the professional regulation of lawyers, however, increases the likelihood that the strongest arguments will be made to the court setting the precedent and in the trial court before an appellate court considers the issue, relative to pretty much any other means of clarifying ambiguous issues in the law, where the advocates for different legal rules usually don't have the same strong incentives to argue their cases as well as they possibly can. The Risk Posed By Ineffectual Rhetoric In Favor Of Good Rules Of Law Is Real But Limited This doesn't mean that bad lawyering doesn't give rise to bad precedents. But when this happens it is usually because for a given argument and set of facts, the lawyer for one side is so much more rhetorically effective in making a legal argument than the lawyer for the other side which is proposing a "better rule" of law. But the exclusion of people who can't finish law school and pass the bar exam from the process makes a truly decisive advantage for one party over another in rhetorical effectiveness fairly rare. To the extent that rhetorical failure in appellate briefing is the cause of a bad precedent, the long term systemic effect of this problem (some would call it a feature of the system rather than a flaw) is that the side with more resources that can afford to hire better lawyers will tend to produce legal results that favor similarly situated parties going forward. Thus, it produces a sort of diluted "natural selection" effect (a bias that is equally, if not more concerning, in the duel of lobbyists for all sides of an issue in the legislative process). The other safeguards discussed below, limit this risk, although not completely. Other Safeguards Subject-Matter Jurisdiction The requirement of an actual "case and controversy" for subject-matter jurisdiction, and the requirement of "standing" for subject-matter jurisdiction are designed to prevent someone from intentionally making straw man arguments on appeal that produce precedents that are bad law. Thoughtful Appellate Judges When Opinions Are Published Also, appellate court precedents are made by a panel of multiple (usually three at the first direct appeal level) experienced and esteemed judges who are acutely aware that the decisions that they are making in precedent setting cases influence the law in other cases which causes them to look beyond the arguments of the parties to resolve the dispute. It isn't at all uncommon in such cases for an appellate court to resolve a case on appeal on the basis of arguments not made by either party in their briefs, or precedents or statutes not mentioned by either party. Furthermore, most appellate court decisions are unpublished opinions that expressly determined by the panel making the decision not to make a binding precedent, which allows panels of judges in these cases to take less care to run afoul of the risk of making a bad decision due to bad lawyering by a party. So, in the minority of cases that are published and create binding precedents, judges are especially careful to consider this risk. Five More Safeguards The other main safeguards in the case law system against bad precedents due to poor lawyering by a party are: (1) the ability of uninvolved third-parties to file amicus briefs in connection with an appeal presenting perspectives on legal issues not presented by a party, (2) the ability of a state supreme court or the U.S. Supreme Court (or both) as the case may be, to overrule intermediate appellate court precedents that were wrongly decided, (3) the ability of legislatures to change non-constitutional legal rulings by statute, (4) the procedural requirement that the relevant state or federal attorney general be given notice and an opportunity to intervene in cases challenging the constitutionality of a law, and (5) the ability of the political process to amend the relevant constitution to address a bad binding precedent by a highest court on a constitutional issue that the legislature cannot fix. Collectively These Safeguards Help Somewhat None of these safeguards are fool proof. But, collectively, these safeguards reduce the risk of a bad precedent being established due to bad lawyering in an adversary system, that the inherent limitation of a precedent being limited to particular facts and particular legal arguments provides as a primary means of preventing. Other Causes Of Bad Precedents Are More Of A Problem In general, once all of the considerations above are taken together, the risk of a bad precedent being made due to bad lawyering, while it is real, is significantly smaller than the risk that a bad precedent will be made because the appellate judges rendering the precedent making opinion are bad judges. Bad judges usually end up as judges with appellate precedent making power because they were selected more based upon political considerations, as they are in many states, and in the federal system, rather than primarily based upon the soundness of their legal judgment. When one risk factor that can lead to a bad decision is much larger than another risk factor that can lead to a bad decision, further improvements in the smaller risk factor will rarely make all that much of a difference in the overall likelihood that the system will produce a bad precedent. So, the adversary system, is, on balance, good enough make the risk of bad precedents arising from bad lawyering a not very troubling problem with the system, even though it is a real risk that sometimes does produce bad precedents. | 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. | My lawyer answers my question, thinking he is giving legal advice to a non-client when he is actually answering a client's question. But if you read the FAQ, posts at law.stachexchange are not legal advice. In fact, questions that are so specific as to risk becoming a request for legal advice are routinely closed. But let's go further: The issue at hand is not the one your lawyer is hired to help you with. He is not your lawyer for that issue. Even if we considered the relationship through law.stackexchange legal representation, the conversation would not be privileged. You are posting in a public forum, and expecting reply in the same way. You are free to waive the privilege of communication with your lawyer, and you are doing that by using this way of communicating with him. At this point, the only thing your lawyer would have done would be voluntarily giving for free some info that he could have billed you for. What exactly would be the issue here? It is exactly what pro bono is for. The only way to breach confidentiality would be if your lawyer were to convey things that you said to him confidentially to the public, but here it would not be relevant if the OPs author were already his customer or not. |
How large is the difference in the amount of reading needed to become familiar with the law in common vs civil law countries? Common law relies more on previous rulings while civil law relies more on written code. Therefore, one would expect it takes more work to become familiar with the law in the former case. Please estimate: what is the difference in amount of work needed in these two systems to become familiar with an area of law? Please estimate for a well-educated person (with a college degree or higher) but is not a lawyer and does not plan to become one. For instance, suppose a person needs to learn about a specific crime (e.g. robbery). If she needs to read for X hours in a common law system and Y hours in a civil law system, please report your judgment on what is the ratio of X/Y. The answer clearly will depend on the specific area and the specific country. If possible, please compare countries with relatively well developed legal systems, such as U.S. vs France. | Legal Education Compared In the U.S., the customary way that one learns about the law for purposes of being admitted to practice as a lawyer is by completing three years of course (with no thesis or dissertation) at the graduate level, after completing a non-law related undergraduate degree (customarily four years but including non-legal studies), and then taking a several week bar exam preparation course and passing the bar exam. In many other common law countries, the customary way that one learns about the law for purposes of being admitted to practice as a lawyer is by completing a three or four year preprofessional undergraduate degree, with a primary concentration in law but also including other general education requirements, followed by preparation for and sitting for a bar exam, and sometimes a period of apprenticeship or internship. In most civil law countries, the customary way that one learns about the law for purposes of being admitted to practice as a lawyer is by completing a bachelor's level undergraduate degree which is taken by both people who want to become practicing lawyers and also by people who want to go into business with legal knowledge, followed by very extensive bar exam preparation in the context of an internship or apprenticeship somewhat similar to that of a U.K. barrister. This is complicated somewhat by the fact that the U.K. and most civil law countries have multiple different legal professionals rather than a unified legal profession like the U.S. The U.K. has barristers (trial advocates) who have more education through the "inns of court" and solicitors. Civil law systems typically have more kinds of legally trained professionals with legally trained notaries with transactional law practice infused with the keeping of public records, prosecutors, judges, trial advocates, sometimes specialist public law lawyers, and legally trained non-lawyers (typically in business) all belonging to separate professions with different roles in the legal system. No entry level lawyer who has been admitted to practice knows the whole of the law in the country where that student has studied, and generally, even very experienced lawyers will be experts in some parts of the law, and have only a vague notion of where to learn the law in other areas where the lawyer practices only infrequently or not at all. In common law countries, legal education focuses on "edge cases" and the way that edge cases are argued, and leaves instruction to many "black letter" rules of law to be learned in bar exam preparation and after entering the practice of law to learn on the job. In civil law countries, legal education focuses on providing students with a comprehensive outline of the "black letter" law rules of law in the area of private law and criminal law and a few bits of public law, and learning methods of argument, advocacy and edge cases is reserved for learning on the job in practice. In both systems, the primary way that one learns the law as a future lawyer in the first instance is from textbooks, rather than primary authorities, although common law country law school textbooks have a heavier mix of excerpts from court cases selected by a professor, while civil law country law school textbooks have a heavier mix of statutory language excerpts and exposition form the professor writing the textbook. Lay Understanding Of Particular Areas Of Law Please estimate: what is the difference in amount of work needed in these two systems to become familiar with an area of law? Please estimate for a well-educated person (with a college degree or higher) but is not a lawyer and does not plan to become one. A well-educated person with a college degree or higher but is not a lawyer and does not plan to become one faces a very steep learning curve in either system to become familiar at a functional level with an area of law. Most of what a lawyer learns in school is the larger context and method of analysis, research skills and an ability to identify legal issues. In common law countries, a lot of this is learning how the case law making system works and having an unwritten outline of key issues in areas of law that would be codified in civil law countries. In civil law countries, a lot of this is learning how general parts of civil law codes interact with more specific provisions, and being aware of the "gloss of interpretation" (often in scholarly work by law professors) that is given to a superficially very vague and short provision like the section of a civil code imposing tort liability, and also how to research legal issues in that system. You really need to know all of this general material to have a competent and comprehensive understanding of specific legal issues, whether you have one that you are investigating or twenty. So, it is extremely inefficient for a non-lawyer to master a single legal issue. The difference in the learning curve between civil law systems and common law systems from pure primary sources is greatly reduced because both are intermediated by secondary sources that explain them in a more efficient and pedagogically sound manner. Rather than largely being a difference between say, the French system and the Colorado system, for example, the biggest difference in the learning curve involved the nature of the particular legal issue that you want to know about within a particular system. For example, in both the U.S. and in France, the body of law that governs child custody and child support is very self-contained. If you master the legal principles and authorities in that area of law, you can fairly swiftly know all of the substantive law issues and research issues involved. On the other hand, in both the U.S. and in France, the body of law that governs a property division in a divorce is absolutely sprawling. This is not because the law of property division itself, in sensu stricto, is terribly vast, but because applying the relatively simple law of property division to any set of facts, presupposes and requires a comprehensive knowledge of the private laws of property, contracts and other legal obligations, and associated tax laws, which can be quite vast over the full range of legal and property rights the might need to be divided in some divorce, sometime. It is the opposite of being self-contained. Similarly, immigration law or patent law questions can often be resolved and understood almost entirely within the four corners of a small number of statutes and regulations, while tax law questions, like property divisions in divorces, interface with a vast expanse of property, contract and legal obligations that might arise. As a general rule, laws pertaining to personal status tend to be self-contained, while laws in areas implicated property ownership and legal rights more generally, tend to require an expansive knowledge of many areas of law. Starting From Scratch While codification v. case law doesn't make much of a difference in the amount of work needed to become a lawyer or to understand a particular legal issue, codification does provide a decisive advantage in the case of a country seeking to adopt a new legal system from scratch, and many former European colonies have done, which is why civil law systems are so much more common globally. From the perspective of a legislature and judiciary starting from a more or less clean slate, it is much easier to adopt a mildly edited set of civil codes as the starting point for the law of your country, than it is to incorporate centuries of case law from some other country into the law in a country that has never used a common law system case law system "organically" prior to adopting its own set of laws. Even then, it is much harder for legislators to be clear on precisely what laws it is that they are adopting at the outset in a common law case law based system where many legal rules are implicit in decisions that are only imperfectly indexed, rather than explicitly codified. And, from a legislator's perspective, adopting a comprehensive new legal system without any clear delineation of what laws you are actually adopting in your new country, is very undesirable, unless you are merely grafting onto a common law legal system that has already long been in force in your country prior to starting its new legal system, with which all prospective legal practitioners in your country are already intimately familiar. | Different jurisdictions have different attitudes and histories. The difference is probably more cultural than legal and both leases are quite likely legal in both jurisdictions. In general, US jurisdictions tend towards laissez-faire capitalism and contracts have a buyer beware slant. Civil-law European countries are much more collective and have very strong consumer protection. Canada and other Commonwealth countries fall somewhere in the middle. | Yes it affects them. Judges are pursuing their vocation as a career and there are career paths within the judicial system just as there are in every other career. Screw up too many times and your career ends at your present level. Judges are also professionals and most take professional pride in doing their jobs well. Having a decision overturned is professionally embarrassing. As a matter of public policy, there is no sanction that is directly applied to the judge otherwise judges would be too cautious to make decisions. Anyone who makes professional decisions will get them wrong from time to time - they generally are not punished. That said there are judicial errors that stem from making the wrong judgement (so to say) call and judicial errors that stem from royally screwing up. The former are far less damaging than the latter. For an example of the former, a judge is applying a relatively new statute for which there have been no other decisions and interprets the legislation in a reasonable way but one the appeal court disagrees with. For an example of the latter, deciding the matter on a basis which neither party put before the court and which the judge did not draw to the parties attention during the trial - as a common law country, the New Zealand legal system is adversarial: the court exists to decide the dispute between the parties on the basis the parties argue, not to go on a "frolic of its own". In addition, appeal courts can only overrule a decision if the judge has made an error of law, not if they have made an error of fact. A judge is allowed to be wrong about the facts but not about the law. In practice, the distinction is not trivial. In a jury trial, the jury decides the facts, the judge decides the law - appeals can only be on the basis of what the judge did, not on the basis of what the jury did (barring egregious misconduct by the jury). In a judge only trial the judge decides both but an appeal can only be on matters of law. | This appears to be a complaint about lawyers using the legal process to achieve what their client wants. Forgive me, but this seems to be like complaining that doctors only want to cure the client's disease, architects only want to design the client's buildings and generals only want to kill the client's enemies. Your lawyer is not your business strategist or your life coach! A civil case is always about the money. If you are pursuing a civil case over a principle then you are going to spend a lot of money and probably lose. The use of a lawyer should always be part of your wider negotiation strategy in the same way that your armed forces are part of your diplomacy; in both cases the threat of use is usually better than the actual use. A civil case always follows a failure to successfully negotiate. Not all by any means, but most, civil cases would be better settled by agreement than litigation by all parties. If you believe that your objectives can best be served by a social media campaign, political pressure, etc. then go for it. Your lawyer can advise you what the risks are wrt to defamation etc. but ultimately how you choose to pursue your goal is up to you. Lawyers, understandably, look for legal solutions. A public relations professional is far better placed than a lawyer to inform your media strategy. | If you want to study the basics of law, where should you start? Don't try memorizing individual laws. That would be a waste of energy, in part because --as you rightly point out-- laws change. There are many introductory books. Law 101, by Jay M. Feinman, is an excellent starting point. The next step --broadly speaking-- consists of reading court decisions (aka court opinions). Opinions released by upper (aka reviewing) courts are available online for free. If you are interested in jurisdictions in the US, Leagle.com is one of many very good resources; EU cases are available here; and so forth. Acquainting yourself with court opinions is quite beneficial. First, court opinions [collaterally] teach how to formulate one's legal positions. Rather than merely being formulaic and a copycat, a litigant is to convey that his legal position is more consistent (compared to the adversary) with the laws and underlying doctrines. His points are easier to get across by adapting his presentation thereof to how courts are used to handle the legal principles involved. Second, court opinions identify the statutes that are relevant to the type of disputes that arise between parties. This is indicative of importance that a statute or procedural rule entails in relation to other laws. Third, court opinions reflect how statutes, rules, and doctrines are interpreted. Oftentimes the way how legislation is worded leads "laypeople" to have misconceptions on the interpretation of laws and rules, when in reality these are construed usually in a much narrower way. Law journals are a good source once you have gained some background in law and are interested in a sort of monograph about a topic that is new to you. But, as explained above, court opinions also serve that purpose (perhaps less scholarly). Having a legal dictionary is always a good idea. Courts in the US oftentimes quote definitions from Black's Law Dictionary for crucial terms which statutory law does not define. What is most applicable to real life? Without knowing whether you are interested in a particular field, it is safe to say that contract law is the most applicable. Entering contracts is part of our everyday life even if laypeople don't notice it when they purchase goods & services, reach an agreement, or engage in a course of conduct which reasonably fosters expectations. And good news is that the principles of contract law are largely similar among modern jurisdictions, including the America (the continent, not just the USA), many member states of the EU, and Asian countries. The Restatement (Second) of Contracts is a very useful formulation of contract law. Courts in the US very often cite the Restatement for premising their decisions on contract disputes. In countries with a civil law system, the principles of contract law are usually formulated in one or multiple sections of the [countries'] Civil Code. Procedural law (aka rules of criminal or civil procedure) is also highly applicable: Large portions thereof apply to all disputes which are brought to court. To a great extent these rules are very similar across the jurisdictions of one same country, but the litigant ought too ensure his compliance with the rules lest he loses the case for a technicality. Lastly, procedural law can be remarkably boring unless the person anticipates he will be involved in litigation. | When? There are basically several times to look at when you want to look at the text, and then in what language. The Codex Iustinianus itself is part of the Corpus iuris civilis and contained only laws given by the previous emperors, while other older laws were in the Digesta/Pandecta and the Novellae contained any new imperial laws after 534. The whole CICiv, was given an introductory text right from inception: When it was compiled, back around 528, one of the books of the CICiv was the Institutiones Iustiniani, which was the prescribed legal education basis - the study book for the aspiring lawyers of his time. It contained how to practice law and cases that were to be discussed. On this basis, a glossa marginalis commentary has survived in Turin, which was made from a copy of the Institutiones. The commentary is dated to be contemporary to the CICiv and was made by adding comments around the real text, making researchers believe this was a work by a teacher, so he could answer or explain parts of the text, or reference earlier parts of the book easier. Around the 7th century, the Pandekta/Digesta were pretty much forgotten in big parts. In the middle ages, it took about till late 1000s, early 1100s, to re-compile the CICiv, when Irnerius of Bologna did manage to collect a sizeable portion of it by rediscovering the Littera Florentina and added to this collection by referencing earlier glossae. The Florentina alone is more than 900 pages long, and his littera vulgata/bologniensis (a german edition's Bibliography an Italian edition's bibliography), a new commentary on the re-compiled laws, including large parts of the Digesta. This book became the new introduction and teaching text about the CICiv and leading teaching bok for all lawyers in Europe at that time. This text is, what defined the roman tradition of law In the 19th century, legal scholars that studied a lot of the CICiv and argued along those lines - a style predominantly Existant in Germany - were known as Pandectists. One of the more central books of them was the Lehrbuch der Pandeketen by Karl Ludwig Arndts von Arnesberg (Stuttgart 1877). The praxis that developed in these circles greatly did influence the style of how the German Bürgerliches Gesetzbuch BGB was organized and written, and this systematic was exported. Later, books such as Paul Koschaker: Europa und das römische Recht (4th edition Munich 1966) did recept the whole roman legal body, giving the CiCiv a very thorough look, and how it influenced the modern Code Civil and Germanic tradition of law, while Franz Wieacker: Privatrechtsgeschichte der Neuzeit unter besonderer Berücksichtigung der deutschen Entwicklung (2nd Edition, Göttingen 1967) did look at the Pandectists and how they were influenced by the CICiv. As more scholarly works I want to point to three that were referenced in the notes of the page when my ancient history Professor mentioned Roman Law being "verklauselt, kompliziert und voller sonderfälle" (~complicated and with many exceptions) in passing. A Short History of Roman Law by Olga Tellegen-Couperus (1993) does spare the last 8 pages on the CiCiv. The more thorough Herbert Felix Jolowicz; Barry Nicholas: Historical Introduction to the Study of Roman Law (Cambridge 1967) does spare the last chapters on the CICiv. Adolf Berger, Adolf: Encyclopedic Dictionary of Roman Law (The American Journal of Philology 1953) is taken still one of the main shorthands and (sometimes outdated) bibliographies under historians. Large parts of the Latin CICiv (as #12) can be accessed in "the Roman Law Library" by the Grenoble University, together with edition scans. | The main impediment is identifying exactly what "a law" is. When people talk (casually) about "the law", that can refer to statutes enacted by Congress, regulations set forth by administrative agencies to articulate specifics of those statutes, and Supreme Court rulings as to what "the law" is or says. The canonical example of "a law" is a statute passed by Congress. Under that understanding, you could point to the US Code and ask the question "how many", though you may have to also subtract things ruled unconstitutional by SCOTUS (they aren't removed from The Code, unless actually repealed by Congress). In the US code, there isn't an enumerable element "a law". Title 17 pertains to copyright; Title 18 pertains to crime. There isn't just one law about crime and one law about copyright. There are 12 chapters in Title 17; Chapter 1 has a couple dozen sections. Sections can get fairly minutely subdivided: there is no clear point at which you can say "this is one law, this is another". However, it is legally irrelevant how many there are – unless Congress passes a law that counts likes ("must repeal two laws for every new one passed"). The immediate product of congressional enactments is the US Code; the immediate product of administrative rule-making is the Code of Federal Regulations. Supreme Court decisions are also published in United States Reports, though I don't if there is an exhaustive online compendium of all rulings. Also note that things passed by Congress are "Laws" (some public, some private). Things in the US Code originate in such acts of Congree, but not every act of Congress affects the US Code, for example PL 118-81. When new subject matter is first introduced it is usually entirely contained in the corresponding law passed, but subsequently it can be amended, and an amendment to copyright law could be snuck into a bill generally about terrorism. I think that the stuff in the US Code corresponds to what most people think "a law" is, but it's better to look at the US Code as a single thing – "the law" – rather than try to count individual laws. If you are armed with access to all of these resources, you would also need to know where to find relevant law. Once you find all of the applicable text, you simply apply general legal principles to reach a conclusion, then hire a lawyer to determine where you went wrong, then hire another lawyer to determine where he went wrong. At least in difficult cases. Fortunately, although enacted bills often glue stuff together in crazy ways, when it is assembled into the US Code, it is organized more sensibly. Still, not all crimes are defined in title 18 (there 1re 52 other titles to search to find crimes). | The core principle of stare decisis is that the law should not depend on what judge you got; two cases with the same facts should have the same outcome. In the common-law tradition, there weren't really written statutes; there was only "what's been done in the past," and so the only reference you'd have to what the law should be in some situation is past court decisions. If judges didn't have some constraints to rule similarly to before, there really wouldn't be any legal standards (because there was no written law to go back to; in civil-law countries, there always has been a written law, so precedent isn't so important). Stare decisis doesn't actually directly stop a judge from entering a decision that goes against binding precedent. However, judges are expected to obey precedent, and for the most part do what they're supposed to do. If they don't, the case will likely be reversed on appeal. Binding precedent only applies within the area a court serves; a court doesn't have to listen to precedent from a different court that has nothing to do with the case. The rule is that precedent from any court up the appeals chain is binding; federal district courts are bound by their circuit court and SCOTUS, state courts are bound by higher state courts and SCOTUS (but not other federal courts, as the case can't be appealed to them). A court can sometimes overrule its own precedent, but the cases where it can do that are rare (and so applying a higher court's precedent can also be viewed as "if you appeal to them they'll say X, so we're saying X.") |
In Breaking Bad, how strong would Hank Schrader's case be if he had lived and Walter White had gone to jail? Yes, Hank has definitely put together that Walt had been manufacturing methamphetamine and committed several other crimes to protect himself, and he'd fight tooth and nail for a conviction. However, even at the time of the arrest, all the concrete evidence he has linking Walt to the crimes is Walt's knowledge of the location where $80 million is buried, not necessarily that the money belongs to him. I'm not doubting Walt would face some kind of conviction had he actually stood trial, but I was curious to hear people knowledgeable with law weigh in on how messy such a trial might get. | Hank would certainly have a case that Walter White was the "Heisenburg" cook as Walter had the motive (he needed lots of cash fast), means(Access to chemicals, strong chemistry knowledge, and connections to distribution networks) and opportunity (Walter had time to do the steps required of the operation). Notably, the money doesn't need to be there to show evidence of the crime (Possession with Intent to Sell being the driving one). Hank was, from early in the series, well aware of a list of crimes attributable to "Heisenberg," but didn't have a person to charge with these crimes. What blows Walter's cover to Hank was the book of poetry Leaves of the Grass by Walt Whitman. The Handwritten dedication inside the cover is "To my other favorite W.W. It's an honour working with you. Fondly, G.B." written by Gale, who's death had previously led to a raid on the Meth Lab where Walter White and Gale had worked together and was no known to have been run by Gus Fringe (also deceased). Other evidence in Gale's office were notes regarding the cook operation at the Fringe Lab, with the quotes attributed to then unknown to Hank, "W.W." and his own notes attributed to him as "G.B." (I believe Gale did have Whitman books in his home). Walter had previously told Hank he had no idea who Gale was, so seeing a book that Gale personally dedicated to Walter and attributing him as the other favorite W.W. would be as easy as comparing handwriting samples from Gale's notes to the snippet from the book, thus linking Walter White to the Heisenberg ring. Hank also discusses that he believes Gale is not Heisenberg as Gale was taking extensive notes from another source in meth production and did not have any ties to the known distribution chain outside of Gus Fringe. What complicated Hank's ability to prosecute was that Marie (aka Jesus Christ-Marie) had knowingly accepted dirty money from Hank and Skylar, believing it was from illegal high stakes poker and not drug money... but reporting Walt's source of income meant implicating them in the crime, which Walter and Skylar use as blackmail against them by creating a confession tape that would implicate Hank as the Mastermind of the operation who forced them to perform their illegal actions. This would have cost Hank his career and would have netted the Whites a not guilty plea as too much doubt would have existed to convict (The Schraders would not be convicted by the same reasoning, but Hank was the primary breadwinner and out of a job... and likely not hireable by other LEO organizations as the controversy of the matter would make him untrustworthy to have on, and the inability to realize a close family member was a drug lord made him look incompetent. I call this last part "The Spycatcher's Dilemma" as if there is no evidence of a Spy, the spy catcher is criticized for not finding spies. When a spy is caught, the spy catcher is criticized for not catching the spy sooner.). | No. As the defendant's lawyer, they will have been privy to privileged communications. As such, it would be unfair to the defendant if they now started prosecuting. Also note that a victim very rarely has their own lawyer in a criminal case. The prosecution lawyer is acting for "the Crown" (essentially, "society as a whole"). (There are exceptions, if the victim is bringing a private prosecution - but this is very rare for serious cases such as rape). | Yes. In 1872 President Grant was stopped for speeding (on horseback, mind you). The officer, observing that he had stopped the President of the United States, initially let him go with nothing but a verbal warning. Later the same day, the same officer stopped Grant again speeding in the same place. The officer then informed Grant that he would have to be taken in, to which Grant gave a reply encouraging the officer to do his duty. Grant was then taken to the police station where he was charged with speeding, and held until he paid a $20 fine, at which point he was released. In summary, POTUS was: Charged with an offence Deprived of his liberty for committing said offence Held until he served his punishment (paying $20) ... all without impeachment. Now, this was a long time ago. I think that today, this is unlikely, since Secret Service would (legal or not) shield the President from arrests (national security reasons). However if a state level authority did manage to arrest the President for a crime and refused to let him go, then the Vice President and cabinet would invoke the 25th Amendment (on the grounds that the President is unable to discharge his duties due to imprisonment), so that the imprisoned person would now be a former president. | The term "lawyer up" usually refers to a person asserting their right to silence and counsel, which means that police interrogation must stop. A lawyer would "lawyer up" in that sense if he was being interrogated by the law. Michael Cohen, on the other hand, retained an attorney because of the threat of legal interrogation. As a general rule, absolutely everyone who is the subject of a legal investigation should seek legal counsel, to protect their rights. Although lawyers are broadly trained in many aspects of the law, they aren't experts in all such aspects, so it would probably not be wise for a tax attorney to defend himself in a criminal trial, and a family law expert might not be the best guy to hire to advise you on a complex real estate matter. Since the particular case is highly political, added insulation in the form of an attorney between you and the investigators is to be expected. | Was This An Egregiously Lenient Sentence? Yes. Did he get lighter punishment than he "should have" (in some sense)? Yes. A six month sentence for a non-negligent homicide was virtually unprecedented then and remains extremely low. Even a six month sentence for the rape of an adult woman (which is generally a comparable or less serious offense than manslaughter) by a privileged white offender generates immense controversy today as it did in the case of the sentencing of Brock Turner for that offense in 2016 (something that ultimately cost the judge imposing that sentence his job). There is no way that intentionally hitting someone is negligent homicide. It is at a minimum reckless, and honestly, is hard to see as anything other than intentional conduct. While it wasn't premeditated and hence wouldn't qualify as first degree murder eligible for the death penalty, this would be a fairly straightforward case for a second degree murder charge and a sentence of a decade or more. The intentional part apples to the act of hitting someone, not the result of causing their death. This intent was present here. Where Did The System Fail? in what way did the legal process fail? Or do you think that there was any failure at all in the legal process? Was the substantive law at fault? No. The substantive criminal law in 1963 was very similar to what it is now and would have authorized a much more severe sentence on the crime of conviction and would have made a more serious charge of murder viable. Arguably the substantive law should have had a mandatory minimum sentence for homicide, but since judges very rarely impose such lenient charges for homicide in cases like this one where there was no good reason for leniency, many states don't do that now and it isn't a problem that legislators would reasonably have believed that they had to worry about. Allowing leniency in some extraordinary cases that capture considerations that the law does not expressly mention is often a good thing, rather than a bad one. Did The Appellate Process Fail? No. The defendant's conviction was not wrongfully reversed on appeal, and it is generally not possible for a defendant's sentence to be increased on appeal in these circumstances. Arguably, this is not an ideal rule of law (and it is not the law in most countries in these circumstances). But this was not a major problem with the legal system that was a primary reason causing the outcome in this case to be an exceptional miscarriage of justice. The Judge's Sentence Was An Abuse Of Discretion. The judge imposed a very light sentence within the statutorily allowed range of discretion. While we can't literally read the mind of the judge and the judge doesn't acknowledge this as a basis for the sentence, given a larger pattern of similarly lenient sentences of similarly situated people given light sentences by judges, we can make a very reasonable guess about the most likely and plausible reason for the lenient sentence. The most likely and plausible reason for the sentence is the one identified by Bob Dylan. A high status white man killed a low status black woman, and the judge felt that, as a result, it didn't justify as serious of a sentence. The actual chain of reasoning in the judge's mind consciously may have involved considerations like the view that the victim was an "eggshell" victim, and the likelihood that the defendant was capable of reforming his conduct after a short sentence and thus didn't present a threat to the public. But the courts very rarely grant leniency to someone on the grounds that the victim was "fragile" - usually this justifies a more severe sentence. And the documented fact that the perpetrator routinely assaulted others with his cane casts grave doubt on the extent to which he could be rehabilitated more easily than a typical defendant. Also, even if the charge of conviction was manslaughter, this case would have been considered at the high end of the range in terms of the culpability of the offender who went around assaulting many people at a public gathering seriously enough to cause harm, and to in one case cause a death of a more fragile victim. The sentence should have been at least at the midpoint of what is allowed (currently about five years out of ten possible) in a case like this one. Further, while Maryland is not in the "Deep South" it is a Southern state with a history of slavery and Jim Crow discrimination, and the judge in this case would have lived under and seen enforced to his benefit, Jim Crow laws in Maryland during his lifetime. The Civil Rights movement had not succeeded to the point that racism was a completely disavowed and unacceptable form of motivation in 1963, particularly in even parts of the South outside of the "Deep South" at that time. As a reference point, President Biden, in nearby Delaware, was starting to make a name for himself in politics at the time as a defender of segregation in the school system and an opponent of busing to desegregate schools. This issue got him elected and re-elected. Biden reformed his views later, but racism was alive and well in Chesapeake Bay area at the time. Was Prosecutorial Discretion An Issue? Possibly To Some Extent. The prosecution's decision to press charges for manslaughter rather than murder was also questionable, but less obviously so. Today, common practice would be to bring both murder and manslaughter charges in a case like this one. The facts would have supported a second degree murder charge. The fact that the prosecution originally brought a murder charge suggests that it knew that the facts supported that charge, and was influenced by some political or tactical consideration, or by judicial pressure, to drop the more serious charge before trial. But without insight into what that reason was (which is much less obvious than the judge's motivations) it is hard to judge whether the prosecutor should have acted differently under the circumstances. The fact that the prosecution pressed charges, took the case to trial, and got a conviction at all also suggests that the prosecutor's conduct was not at the bottom of the barrel compared to more racist prosecutor exercises of discretion in 1963 elsewhere in the U.S. The prosecutor had the full legal ability to decline to press charges at all without facing any legal consequences for failing to do so. Further, while it is certainly plausible that prosecutor's racism figured into this decision, it is also important to note that the prosecutor has to consider the attitudes of a likely jury pool when bringing charges. Even if the prosecutor believes that the defendant is guilty of murder under the law, the prosecutor has to consider whether the odds of getting a conviction from a local jury that is likely to have considerable racial bias influences what charges are right to bring in order to get a maximum conviction, as opposed to what charges the prosecutor believes are legally justified. Likewise, if the judge indicated the he would be likely to dismiss the murder charge before trial in a preliminary hearing, that would also make a prosecutor's decision to comply with an implicit judicial suggestion to stay in the judge's good graces for the remainder of this case, and for future cases before the same judge, understandable. However, if electoral public pressure, or the defense counsel's pressure or influence, caused the prosecutor to give up on a murder charge that a conviction would probably have been secured upon, this is much more problematic and would suggest racial and status bias on the part of the prosecuting attorney's office. Was Jury Conduct An Issue? No. The conduct of the jury in this case was not an issue, even though the potential of jury nullification that didn't happen was a factor that may have influenced the charge brought by the prosecution. The jury convicted the defendant on the most serious charge presented to it. | The police would still be able to get a warrant even if there was no suspicion against the current owners, provided that there was reasonable evidence to suggest that the body was in the garden. In the event that the police enter the garden and see something like the marijuana plants, plain sight doctrine would allow the police to charge the owners with growing marijuana. If there was something like a green house, separate from the garden area that the body may be located in, the search warrant, if limited in scope, may not apply to the greenhouse. This depends on how specific the location of the body is believed to be: anywhere in the garden? or right behind the house against the wall? The odds are good the police would bring in a cadaver dog (included in the warrant) and patrol the garden to see if the dog finds anything. | Yes Usually, whoever got their hands on the defendant first would have first crack at it. The second jurisdiction would commonly not prosecute provided that justice was done in the first but they can - double jeopardy is not in play as a bar as they are different legal systems but courts usually apply the spirit that a person shouldn’t be punished twice for the same act. | We don't have enough facts to know. What Bob said about having violated the injunction, which could expose him to criminal contempt of court liability, was not true. But, the precise details of what he said, to whom he said it, and his relationship to the case, are not clear. Saying something that isn't true isn't always against the law, and even when it is against the law, the consequences depend upon the context. An intentionally false statement of fact to a police officer or to the court under oath would probably be a crime (but, unlike U.S. practice, criminal defendants who testify are not generally required to testify under oath). An unintentionally false statement of fact to the same persons (e.g. because Bob misheard the question or was drunk at the time and assumed that the statement of fact he was making was true or had dementia) would probably not have legal consequences for him. A mere confession - I am guilty of violating the civil injunction - would probably not be perjury or fraud because guilt of a civil injunction includes opinions and legal conclusions which are not actionable, as well as implied statements of fact, which might be actionable. But, if he confessed in the form of a plea, there probably wouldn't have been a trial at all. Once he made his plea, his factual guilty or innocence might be irrelevant in the face of a judicial admission. Courts can sometimes sanction parties to lawsuits for wasting everyone's time under quite specific circumstances, but we don't know precisely what relationship Bob has to the case in which the injunction was entered. |
Can a renter get a vehicle towed from an apartment parking lot? My apartment complex, which has very limited permit parking,* also has several highly-conspicuous signs warning that unauthorized vehicles will be towed at the vehicle owner's expense. Additionally, the lease includes the following: We may have unauthorized or illegally parked vehicles towed under an appropriate law. A vehicle is unauthorized or illegally parked in the apartment community if it: 1) has a flat tire or other condition rendering it inoperable; or... 3) has no current license or no current inspection sticker; or... There was a vehicle in the lot with an out-of-state license plate that expired in 2014, and a flat tire, for over a week, after which I contacted the apartment management; the next day, there was a notice on the vehicle indicating that both conditions would need to be remedied to avoid a tow. The following day I saw that the tire had been replaced, the vehicle moved to a different parking space, and the expired license plate was now hanging at an angle by a single bolt; then later I saw that the expired license plate had been fully reattached, but there was now also an Illinois plate with a current sticker sitting in the back shelf of the car (laying flat; it would not be visible e.g. to the driver of a police car behind). I contacted the apartment management again, informing them of all of this (I even gave them a photo), and they confirmed to me that the current license plate would in fact have to be properly installed in order to be "authorized" to park in the permit space, and said that they would contact the owner. However, at no point since then was another official notice placed on the vehicle, and it has been this way for several weeks now. Can I contact the tow company on my own to have the vehicle removed (or a notice placed on the vehicle), or is this something that only the property owner can do? *~1.4 spaces per unit, all of which are 2- and 3-bedroom apartments. | 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. | What you are describing may be the crime of insurance fraud: to avoid that, you would have to admit to the insurance company that you put a "Please steal me" sign in an unlocked car with the keys in the ignition, in a high-crime area. If we remove some of the elements of the scenario and reduce this to "leaving the keys in the ignition", this would probably be be considered contributory negligence, meaning that you failed to act prudently to protect your property. This can reduce the amount that the insurance company has to pay you. At this point, it depends on what state you're in, since sometimes a little bit of negligence (in Alabama, Maryland, North Carolina, and Virginia) means that you may get nothing. However, negligence hinges on an assessment of the actions and intentions of a party, and what you describe isn't "neglect", there is the direct intent that the car be stolen. Insurance policies exclude coverage for intentional loss. So the bottom line would be that the person would be out a car, and could be in prison for fraud if they did not reveal what they actually did. One should assume that the thieves took a lulz video of the sign before they stole the car, and posted it on FaceTube where it entered the viral hall of fame and was used against you in a court of law, so fraud is the worst choice. An alternative if you have a car is to donate it to charity, and take a tax write-off. | You would report unpermitted lock replacement to the home owner. The building code regulates new construction and renovations, and is not a requirement of any and all residences. This seems to correspond to a "secondary suite", which is supposed to be registered with the city (if it is allowed in your city). Here is a link for Vancouver, for instance. Such suites are supposed to be registered and inspected, the inspection being carried out by Development, Building and Licencing: By-Law Compliance & Administration (a division of the city government). This article discusses some of the legal problems that can arise from an illegal secondary suite, however the penalties would land on the property owner, and he may not have approved of this subletting or the basement suite. A less-nuclear first step would therefore be reporting it to the property owner. | Your friend can get into a lot of trouble for this. Those stickers were given to you for renewing your registration. The stickers are meant to be a quick way for police to tell whether your license plates are still valid, but applying them does not make the plates valid - they are only stickers that have no legal meaning as standalone devices. You still need the registration renewal recorded in the state's system for your particular license plate, which can only be done by going and renewing the registration at the DMV, not by buying stickers. Without the stickers, your friend would only be guilty of driving with an expired registration and subject to relevant punishments for that. However, with stickers purchased from someone else, he is also adding an additional gross misdemeanor in Minnesota for intent to escape tax, which can additionally include up to a year in jail and a $3,000 fine on top of the usual $115 fine for the expired registration. | What do I do? Contact the police, and henceforth make sure that all your interactions with the business owner are in writing. That evidence will facilitate the police investigation in this fact-intensive matter. Can I actually be arrested? Yes, you are at risk of getting arrested regardless of whether you eventually prove the business owner is the one who broke the law. Hence the importance of contacting the police before it proceeds on the basis of his fraudulent accusations. The business owner has committed crimes including --but not limited to-- forgery, larceny, and attempted extortion (People v. Ramos, 34 Misc.3d 914, 920 (2012) and Matter of Spargo, 68 A.D.3d 1242 (2009) reflect that also the attempt of extortion leads to being charges and convicted, respectively). The timing of events could be indicative of the extent to which the business owner's criminal conduct was premeditated. For instance, it is unclear whose idea was keep the vehicle in his company's name notwithstanding that you had not acquired the company yet. If it was his idea, this will tend to weaken his denials of mens rea (given his subsequent course of action). Likewise, it is unclear what dissuaded you from purchasing the business. You need to assess whether he lured you in order to get your money for the car, and thereafter cause you to change your mind about the business. | If you can persuade them to release the car without paying – but with a promise to pay – they could sue you to recover what you owe them for towing and storage (breech of contract). If not, you would have to sue them to recover the money you paid (which is the damage that they did to you). I cannot imagine a towing company releasing a vehicle without first being paid. There is no state which requires a towing company to release a towed vehicle just because the owner asks. | Illinois law has provisions for the seizure of "dilapidated" and "inoperable" vehicles if they are "in view of the public" according to 55 ILCS 5/5–12002.1. In many cases such laws have been found to be unconstitutional. There is sort of a constant battle: states pass nuisance seizure laws and courts overturn those laws, then states pass more laws. You could sue the State of Illinois and try to get 55 ILCS 5/5–12002.1 overturned. You will be the hero of hundreds of junk car owners. | From a comment on the question: They did damage the trailer door and headlight is smashed This seems like the best thing to focus on, especially if you can show that it was not damaged before they towed it. The unusual method of towing (with video evidence) may be a factor in whether they are considered negligent. If the damage to the door looks like they caused it directly by breaking in, that would also help your case. You also asked in your comment if you should go to the police or to a lawyer first. Might as well go to the lawyer and see what they tell you to do. I'm not sure what the police would do if there is no clear crime that has been committed. (The lawyer should have better advice about whether/why to go to the police.) |
(U.S.A.) Removing senators not from your state Background example: People in California want to remove a senator from Kentucky. Can this be performed? How can it be performed? | The only way that a member of the House of Representatives, or a U.S. Senator can be removed from office (other than by resignation, death, or expiration of a term of office without being re-elected) is by a two-thirds vote of the chamber removing that member. The relevant provision of the United States Constitution is Article I, Section 5, Clause 2 which states: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. So, a member of the U.S. House of Representatives may be removed by a two-thirds vote of the U.S. House, and a U.S. Senator may be removed by a two-thirds vote of the U.S. Senate. This has been done five times since 1789 in the U.S. House, most recently in 2002. It has been done fifteen times since 1789 in the U.S. Senate (the most recent 14 times in 1861 and 1862 in connection with the U.S. Civil War). The case of William Blount in 1797 established the precedent that expulsion of a member by a chamber, rather than impeachment, is the proper process to remove a member of Congress. Members of Congress may not be recalled, and are not automatically removed from office upon conviction of a crime. Apart from the expulsion process, there is no way for voters or states to remove U.S. Senators not from their own state, something that doesn't make sense to be possible in the overall context of the structure of the United States government under the U.S. Constitution. Senate Rule XXIII in part provides that ``if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of the members present, a judgment of acquittal shall be entered;'' A quorum of the full Senate and not just those sworn in for the trial is required. The Senate rules in the case of an expulsion of a member are analogous. | Nothing will happen. Wait for the 2030 census and January 3rd 2033. Representatives are only recalculated after each census. The last census and recalculation was 2020. So no ordinary recalculation will happen till 2030. It's unclear if there could be an extra census, which then might lead to redistricting - the only rules (in the constitution) I can find are, that a census has to happen every 10 years. Current laws are, that it happens every 10 years. It's up to politics to introduce laws to allow an extra census, but to make it that obvious that it is needed, there needs to be an exodus/death toll of the scale of the black death in Europe (one in 4 dies/moves) or a total depopulation of an area like New York City. Which has 8 million inhabitants, something like 10 districts, and is growing. Back in 1918 H1N1 killed between 2% and 10% of those that got it and in total about 675,000 (of 103.2 million) in the US, mainly in cities that did lag in their reaction to the fall/winter wave in 1918. As three (not fully) random examples: Philadelphia lost 16000 for something around 941 deaths per 100,000 inhabitants (the town had about 1.7 million inhabitants at the time), LA had a death toll of only 494 per 100,000, all of Nebraska lost between 2800 and 7500 people on a population of 1.3 million - for - for between 200 and 580 deaths per 100,000. Yet despite this very disparate impact it barely impacted the 1920 census. Not even the hurricane Katrina, which pretty much wiped out New Orleans, did not result in an extra census and restructuring - so it is very unlikely to happen. On the other hand, there is a formula for assigning representatives. We use the same setup since the 1940 census. Legal basis? 2 USC §2b dictates each state gets at least one: Each State shall be entitled, in the Seventy-eighth and in each Congress thereafter until the taking effect of a reapportionment under a subsequent statute or section 2a of this title, to the number of Representatives shown in the statement transmitted to the Congress on January 8, 1941, based upon the method known as the method of equal proportions, no State to receive less than one Member. 2 USC §2c dictates how many representative districts exist and how many representatives it will have: In each State entitled in the Ninety-first Congress [1969] or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative (except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress). The Redistricting is State-Law - and there are roughly 5 types how it's done. So, one representative per district. One district per representative. District borders are to be redrawn based on the decennial census as demanded in Art. 1 §2 - where it is called Enumeration: The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; [provisional numbers] When will redistricting take effect? Redistricting lags one term behind, and it will not fire or remove a representative from office, whose district is scheduled to vanish - or elect new people. That's because redistricting on the state level can only happen after the reapportionment of the seats has been handed out by the clerk of the House of representatives. Reapportionment has a deadline of 25th January the year after the census. That's after the house term starts. Since at that moment the districts are still in existence, the term of the current holder first needs to run out before the new districts take effect. So the district ceases to exist the same day they leave office on January 3rd. A good example would be New York: The 45th district was redistricted from the 43rd District and elected first for in 1944, and was redistricted back into the 43rd District after the 1950 census. It was last voted for in 1950, well before the results of the census were handed out and redistricting happened. So the district ceased to be the same day Daniel A. Reed left the office on January 3rd of 1953. The 28th Congressional District was established in 1823 and eliminated on January 3rd 2013 as a result of the 2010 census. The last election for its seat was - obviously - in 2010. As a result, any changes to the district map stemming from the 2020 census will take effect only on January 3rd 2023, and a massive depopulation showing in the 2030 census will have an effect only in the elections for the house that begins its term on January 3rd 2033. | This document is a handy summary of US laws. The primary distinction is between one-party and all-party consent states. In California, all parties must "consent" to recording, but in Georgia, only one party has to consent. "Consent" can be implicit, so if someone announces that they are recording, consent has been effectively given (that's not a hard and fast rule: you have to look at the actual case law and statutory language for that state, but usually this is covered by the "reasonable expectation of privacy" part of the law, where you don't have a reasonable expectation of privacy if someone announces that they are recording the conversation). As it happens, there was a case tried in California involving Georgia-to-California calls, Kearney v. Salomon Smith Barney, Inc., S124739 (Sup. Ct. Cal. July 13, 2006), declaring that California law must be obeyed by a person calling into California. The court declined to decide whether a person could be criminally prosecuted for such a violation of the law, but there is possible civil liability. | Under the present constitution . . . Are there any consequences of the fact that the Constitution of Massachusetts and the Constitution of the United States use two different names for that state? No. Lots of the language in the United States Constitution is no longer in place or in common usage or is invalid due to subsequent amendments, and that language is still effective as originally intended. The U.S. Constitution has never been "amended and restated" and can't be understood properly without annotations to its raw text. Might a federal statute be needed for some states (e.g. Vermont, because of what is noted above) but not for others, because of differences in the federal statutes that admitted the state, or because of the lack of any need for admission by Congress in the case of the original thirteen states? Not really. Every state's name is embedded in myriad federal laws and regulations in addition to the statute that admitted the state to the United States, e.g. laws assigning names to post offices, laws allocating judgeships, laws purchasing property, laws appropriating funds, laws assigning states to various districts for purposes of executive branch departments and the judiciary, tax laws (e.g. the Obamacare tax credit), etc. Would a state statute suffice? Would a state constitutional amendment suffice? Would a federal statute suffice without a state statute or a state referendum? Would a federal constitutional amendment be needed? A federal constitutional amendment would not be needed. The Constitution vests Congress with the authority to admit states and to change their boundaries with the permission of the affected states. This would be within the power over states that could be inferred from those powers. A state and the federal government could each pass a statute to call itself something different for various purposes. For example, the official name of the state of Rhode Island is "State of Rhode Island and Providence Plantations" but various state and federal statutes authorize the use of the short form of the "State of Rhode Island" for most purposes. As a practical matter a state constitutional amendment would probably be desirable on general principles to officially change the name of a state, whether or not it was strictly required, in part, because a state constitution usually sets forth an official name of a state in its body text. It would be possible for a state to change its constitution and statutes and change its name in a move that the federal government did not accept, and if that happened, the federal government and its officials would probably continue to use the old name and the state government and its officials would probably use the new name. I think it is as a practical matter, unlikely that a standoff like this would persist, but I think that this is the most likely outcome. A federal government move to change a state's name without its consent proactively, however, would probably be struck down as violating federalism concerns. Of course, all of this is speculative, because there are really no precedents for disputes over the changing of a state's name. Context would influence the outcome of any such case. | Probably.* Congress has wide latitude to dictate the procedures of "inferior courts" -- the district courts and circuit courts of appeal. Those courts only exist because Congress created them, so Congress can generally set the terms on which they continue to exist. That power is limited in several important ways by the Constitution, including the terms and compensation of the judges, and standing to address cases, and then further limited by separation-of-powers principles. But the Rules of Civil Procedure and the Rules of Criminal Procedure are a good example of how Congress has already -- and largely unobjectionably -- imposed these types of demands on the judiciary. The rules are generally drafted by the judicial branch, but Congress approves them and gives them the force of law. In both sets of rules, you can already see some requirements on how decisions are worded: Criminal Rule 23 requires the court to "state its specific findings of fact" after a bench trial; Criminal Rule 32 requires the court to "set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence" in judgments of conviction; Civil Rule 52 requires the court to "find the facts specially and state its conclusions of law separately"; Civil Rule 58 requires that "every judgment and amended judgment ... be set out in a separate document"; Civil Rule 59 requires the court to "specify the reasons [for granting or denying a motion for a new trial] in its order"; and Civil Rule 72 requires magistrates to enter "a recommended disposition, including, if appropriate, proposed findings of fact." The rule you're proposing seems to go well beyond these requirements, but I don't see how it would run afoul of constitutional constraints. I could imagine an argument that this somehow encroaches on the courts' inherent authority, but I'm not really convinced that that authority protects against this. For more information, you can read the Congressional Research Service report on "Congressional Authority Over the Federal Courts." *This answer only applies to Article III courts, but even then does not apply to the Supreme Court, which is co-equal and generally has the authority to set its own rules. When it comes to Article I courts, though, Congress would probably have virtually unlimited discretion to impose the kinds of requirements that you're talking about, and even to say that the court has no jurisdiction to consider constitutionality at all. Congress might even get away with imposing these kinds of requirements on state courts through the Spending Clause | Was/is it permissible for judges in the US to talk ex-parte like that? No. Ex parte interactions of that sort are not allowed. See, for instance, Disciplinary Counsel v. Bachman, 2020-Ohio-732 (Dec. 18, 2020) and Maze v. Judicial Conduct Commission, 2019-SC-0691-RR (Dec. 17, 2020). An example of less recent decision but with a reporter citation number is Comm'n on Judicial Performance v. Bozeman, 302 So.3d 1217 (2020). For situations of imminent risk of irreparable harm, procedural law provides for ex parte motions and ex parte petitions, such as this granted petition for Personal Protection Order. See M[ichigan]CR 3.7003(G). But the scenarios you depict fall short of the necessity for which ex parte provisions are intended. do the above scenes in the movies essentially portray judicial misconduct? Yes. A judge's house is inappropriate for communicating, let alone ex parte, his ruling (I am not knowledgeable of the films but my understanding of your description is that that judge made the ruling on the application). As for The Untouchables, any evidence of jurors' & judges' conflict of interest and likely bias has to be filed in court and comply with procedural law so that all parties have an opportunity to litigate the matter. | Short answer: It depends on the state and exactly how you do so. Stating how you voted, by itself, is fine; however, taking a photo of your ballot instead of just saying how you voted is illegal in some states, especially if the photo was taken within a polling place. Laws banning these so-called "ballot selfies" may be unconstitutional, and have been successfully challenged under the first amendment in some cases. There is not a general ban on simply saying who you voted for. This is an extremely common practice, and it is the basis for "exit polling," where voters leaving a polling place are asked whom they voted for in order to collect voting statistics to predict the winner of the election. This type of polling has been upheld by courts, and it sounds like laws banning it were primarily concerned with voter intimidation rather than vote-buying. As of 2016, 18 states banned sharing any photograph of a ballot, while an additional 6 ban photography in polling places. The rationale for such laws is to prevent vote-buying, because if you can't take a photo of your ballot, you can't prove whom you voted for (whereas without the photo, you could simply vote however you like, then lie). However, at least one such law has been challenged in federal court and invalidated as a violation of the first amendment (in Rideout v. Gardner) "because it is a content-based restriction on speech that cannot survive strict scrutiny." If such first-amendment challenges continue to be upheld, it is possible that this practice will be legal throughout the United States. | Expunction may be possible for instance if you are acquitted, later proven innocent, pardoned, and various other things that fall short of being convicted and doing the time. The entire law is here (Texas code of criminal procedure 55.01). There is also the option of an order of non-disclosure, overviewed here. A requirement for such an order is that you were placed on and completed deferred adjudication community supervision, which from what I can tell is not what happened. "Background check removal" may range between simply taking your money and doing nothing, to doing what you could do yourself to get free of traces via radaris, intelius, spokeo, and so on to "request removal" from that web site. This will not make your record unavailable, because these websites don't have any special powers to reach into and manipulate state records. |
Is highly irresponsible but unintentional encouragement of violence a crime in the US? Inspired by recent events, I looked up the legal definition of incitement in the US. For example, the First Amendment does not protect speech if the speaker intends to incite a violation of the law that is both imminent and likely (https://en.wikipedia.org/wiki/Imminent_lawless_action). I wrote some legal philosophy but never took a college course in law, and I am unsure if highly irresponsible but unintentional encouragement of violence is a crime in the US. [Note, this question has nothing to do with process of impeachment that might have a different definition of incitement.] | By definition this is not an intentional crime or tort (i.e. civil wrong for which one can sue). There are several standards of intent (also called mens rea) other than knowledge that one is committing a crime or intent to commit a crime, that are commonly applied to criminal offenses and torts: Strict liability Negligence Gross negligence Willful and wanton conduct Recklessness Extreme indifference Strict liability would be highly unlikely to apply to unintentional encouragement of violence. Usually, in the criminal context, it applies to traffic offenses, like speeding or drunk driving defined by blood alcohol content. Negligence is often a basis for liability in a lawsuit or for other civil remedies (e.g. cause to fire someone from their employment), but is usually only a basis for criminal liability when a death or very severe injury results (e.g. vehicular homicide) or when the circumstances are such that there is a heightened risk involved in an activity (e.g. discharging a firearm, or treatment of a small child in one's custody). Even then, for criminal law purposes, liability is usually only imposed in cases of truly "gross negligence." One could imagine highly stylized fact patterns where gross negligence encouraging violence could give rise to criminal liability (e.g. gross negligence by the commander of a military unit under military justice) but this would be a rare and exceptional situation. Willful and wanton conduct, and recklessness, don't require actual knowledge or specific intent, but do presume disregard for objectively obvious risks. Under the Model Penal Code, this is the default standard of intent that applies when no specific standard is articulated in a statute. Unintentional but reckless conduct encouraging people to be violent might very well give rise to criminal liability. Extreme indifference (also sometimes called deliberate indifference) is an extreme form of recklessness in which one acts with total disregard for the consequences when one clearly knows or should know that serious consequences are almost certain, even if the precise consequences to whom or what are not known. This level of intent is often treated as equivalent to intentional conduct and would often give rise to criminal liability. There are many potentially relevant federal and state statutes that could apply, but this is the general lay of the land regarding unintentional conduct. | 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. | In most US States (probably all of them) failure to follow the Lawful orders of a police officer is itself a crime, and is grounds for the officer to arrest the person, even if the person had not done anything wrong prior to that. This obviously leads to the question: what orders are lawful? The officer has a pretty broad range of discretion. Ordering a person out of a car, or to roll down a car window, is pretty clearly lawful. Ordering a person to commit a crime would not be lawful. Neither would ordering a person to submit while the officer rapes or robs the individual be lawful. In practice, the officer will usually think that all of his or her commands are lawful, and might feel threatened by any failure to comply. In which case, the officer might shoot. This might not be upheld later if the command was not lawful and/or the officer's fear was not reasonable, but that will do the person shot little good. It is usually wise to comply with any commend, unless it puts you very directly at serious risk. Remember you don't know what else has happed to the officer that day. Has the officer had a fight with his/her spouse that morning? Just been denied a promotion? Been turned down for a mortgage? None of that should matter, legally, but it will affect the officer's attitude, and can lead to escalation, even if the person stopped is in no way at fault. An instruction to "shut up" is probably not going to provoke an officer to shoot if it is disobeyed, but it might help to escalate the situation. It is probably lawful, depending non the exact circumstances. As to the first amendment issues, that would probably come under the 'time, place, or manner" regulations that may be applied to speech. And even if it is not held to be lawful, the time to contest it is in court, not during the stop. If the officer feels safer with the window fully rolled down so that the officer could reach in, that is probably a lawful command. | “I’m going to kill you” is not a threat Or at least, not necessarily. A criminal threat is more than words - it must encompass the intent to carry out the threat. Except in wholly exceptional circumstances, this type of language between parent and child is not a threat. | 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). | united-states An ex post facto law criminalizes conduct after the fact that was legal at the time, something that is prohibited under U.S. constitutional law. But, as the question states: my question is about actions that were illegal and then had changes made to them. If something is a crime in 2015 and this criminal law is violated, and the conduct is then legalized in 2016, the conduct committed while it was a crime does not cease to be punishable as a crime and may be punished criminally. Often a judge would consider the fact that the conduct was later legalized when evaluating the seriousness of the crime at a post-legalization sentencing, but a judge is not required to do so. A significant number of pardons and commutations of criminal sentences by Presidents and Governors in the U.S. involve people convicted of crimes for conduct that is now legal or is now punished less severely. But pardons and commutations are purely discretionary. As an aside, France has constitutional protections that give newly lenient treatment of crimes retroactive effect, but the United States does not. | There are no such laws that are specific to rape, but there are general laws about false statements. In every state there is some law against making a false statement to a government official, e.g. Washington RCW 9A.76.175 which says that one who "knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor". To shift context slightly, if you report to the police that Smith stole your lawn mower when in fact you gave it to him, that is a false statement. However, there would have to be clear proof that you lied in your report, and not that there was a misunderstanding. If Smith stole the mower but the evidence did not support a theft conviction, that does not mean that you can be prosecuted for making a false statement (whereas, if someone has a video of you telling Smith "Here's a mower, which I give to you because I like you", then you could almost be prosecuted for making a false statement, were it not for the fact that the video is illegal in Washington). Perjury is the other related crime: RCW 9A.72.020 "a materially false statement which he or she knows to be false under an oath required or authorized by law". [Addendum] About the video of the mower being given away... Washington is an all-party consent state, meaning that you can't just record people, you have to have their permission (everybody's permission). RCW 9.73.050 says that information obtained by illegal recording shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except with the permission of the person whose rights have been violated in an action brought for damages under the provisions of RCW 9.73.030 through 9.73.080 which is to say, "unless the person(s) who did not give permission to be recorded now give permission for the evidence to be admitted". Since "you" would be the one making a false statement, "you" would have an interest in suppressing the video, thus "you" could withhold permission for the video to be introduced. | I'll use California penal code 837 as an example, though most other states have similar statutes: A private person may arrest another: For a public offense committed or attempted in his presence... 839 says: Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein. Generally, someone making an arrest is allowed to use "reasonable force" to effect the arrest. The question then becomes, is the act of interrupting a football game a public offense? Once a fan at a football game enters the field, assuming it is a violation of the license granted to the fan, they are trespassing. These fans are often drunk when performing their midfield dance so that is another public offense for which they could be arrested. Once arrested, the interloper must be turned over as soon as possible to a magistrate or peace officer. The person making the arrest is always subject to being sued. It is a question for a trier of fact to determine if unreasonable force was used in effecting the arrest. My guess is that in most of these cases security simply ejects the exuberant fan from the premises and the fan never looks back. If a lawsuit were to be filed it would be based on unreasonable force being applied during the arrest. California penal code 240 defines assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Certainly, one could be charged with assault in effecting a citizen's or private arrest but it would go back to the definition of reasonable force and what force was necessary to effect the arrest. If someone resisted arrest I think it more likely that that person could face an assault charge. |
Is a presidential self pardon more likely to be valid if issued to a group instead of the president as an individual My understanding is, the presidential pardon power is based on this passage of the US constitution: The President ... shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment. I've read that one issue* with the uncertainty about the legality/validity of presidential self pardons is the word "grant" wasn't really used in the context of "grant myself" at the time the constitution was written. But the pardon power can also apply to entire groups of people. And the president can belong to a group. Based on this, would a presidential pardon become more likely to be legal/valid if it applied to a group of people that included the president, instead of just to the individual? Even if the group was very small and the attempt rather transparent (e.g. "the Trump family", or "current and former Presidents of the United States of America")? *I'm aware that this is not the only issue, and a possible answer is that the "grant" issue is dwarfed by more relevant legal arguments. | This article sums up the state of the law regarding presidential pardon power. In no case has the court ruled that there are people who are unpardonable. There is no question that a presidential pardon is only available for criminal offenses against the US (not civil contempt of court, but including criminal contempt). Presidential pardons do not require higher approval. | Does the Special Counsel's non traditional prosecutorial decision making put the president above the law since he is unable to be prosecuted? All federal government employees, including the Special Counsel, are required to conform to the interpretations of the law provided by the Office of Legal Counsel in the absence of a directly applicable court order to the contrary. But, the fact that the federal government attorneys are effectively prohibited from prosecuting the President for crimes while the President is currently in office does not put him entirely above the law. This does not preclude state and local prosecutors from charging the President with state crimes while he holds office, and if those crimes do not arise from the President's conduct in an official capacity while serving as President (in which case Presidential immunity bars actions). This does not preclude federal prosecutors from charging the President with federal crimes committing while the President held office or before the President held office after the President ceases to serve as President. This does not preclude a federal court from declaring that the Office of Legal Counsel opinion by which the Special Counsel is bound on this issue is invalid, although it is challenging to think of a procedural context in which this issue could be squarely presented to a court. The OLC opinion could also probably be overridden by Congress in a law (that would probably have to overcome a Presidential veto), as the claim that the OLC decision is one that it is constitutionally required to arrive at is a weak one. This does not preclude individuals or Congress from bringing suit against the President in a civil action, including a contempt of court proceeding in a civil action prosecuted by someone other than a federal government attorney. This does not preclude Congress from impeaching the President and removing him from office. Nonetheless, the Office of Legal Counsel opinion referred to by the Special Counsel certainly does significantly impair the extent to which a President can be punished for violating federal law as a practical matter. This seems to directly contradict the "no man is above the law" principle outlined by the 14th amendment of the constitution. I'm not sure what makes you think that the 14th Amendment is relevant in this case. Section 1 of the 14th Amendment to the United States Constitution sets a minimum threshold for citizenship and sets for constitutional obligations that apply to U.S. states. Sections 2-4 of the 14th Amendment to the United States Constitution govern issues particular to the Reconstruction era. Section 5 of the 14th Amendment gives Congress the authority to pass legislation enforcing the other sections. There isn't really a "no man is above the law" concept expressly stated in the U.S. Constitution (in contrast, France has had such a provision since the French Revolution). But, to the extent that one can construed a provision of the U.S. Constitution as setting forth such a requirement, it needs to be in a provision that applies to the federal government, rather than one applicable to state governments. | Yes. In 1872 President Grant was stopped for speeding (on horseback, mind you). The officer, observing that he had stopped the President of the United States, initially let him go with nothing but a verbal warning. Later the same day, the same officer stopped Grant again speeding in the same place. The officer then informed Grant that he would have to be taken in, to which Grant gave a reply encouraging the officer to do his duty. Grant was then taken to the police station where he was charged with speeding, and held until he paid a $20 fine, at which point he was released. In summary, POTUS was: Charged with an offence Deprived of his liberty for committing said offence Held until he served his punishment (paying $20) ... all without impeachment. Now, this was a long time ago. I think that today, this is unlikely, since Secret Service would (legal or not) shield the President from arrests (national security reasons). However if a state level authority did manage to arrest the President for a crime and refused to let him go, then the Vice President and cabinet would invoke the 25th Amendment (on the grounds that the President is unable to discharge his duties due to imprisonment), so that the imprisoned person would now be a former president. | Sort of The 25th Amendment is crystal clear that the VP and a majority of the cabinet can declare in writing to the president pro tem of the Senate and the speaker of the house a presidential inability, whereupon the VP becomes the acting president. The president can then immediately transmit in writing his declaration that there is no inability, and then he resumes his position as president until the VP and majority of cabinet (not necessarily the same members) again declare a disability, within 4 days. If that happens, then Congress decides the matter. There is a 28 day period for a super-majority of Congress to make that decision, plus 48 hours for assembling of Congress is not in session. The problem is that the amendment says that the president resumes his powers unless something happens within 4 days. It does not say that he must wait 4 days to see what the VP response is. If the VP does not counter-respond immediately, then it is possible, but not guaranteed, that the president regains power until the VP reaffirms the disability. This is a question that would have to be decided by SCOTUS. In the presumably short interim, there would be serious constitutional questions as to the legality of the actions of either POTUS or VPOTUS. | House Rule XI(m), p. 19, states the power of committees and subcommittees to issue subpoenas. (1)…a committee or sub-committee is authorized (subject to subparagraph (3)(A)) …to require, by subpoena or otherwise, the attendance and testimony of such witnesses… (3)(A)(i) Except as provided in sub-division (A)(ii), a subpoena may be authorized and issued by a committee or subcommittee under subparagraph (1)(B) in the conduct of an investigation or series of investigations or activities only when authorized by the committee or subcommittee, a majority being present. A subcommittee could therefore authorize the chair of the subcommittee to issue subpoenas with no vote at all. Otherwise, the (sub)committee must "authorize" a subpoena, which conventionally means "vote on the motion". There is no requirement that the entire house must vote on subpoenas. There is no question that POTUS did not obey the demand of the House subcommittee. The argument that will most likely be proffered is not that the House violated its rules, but that the House rules exceed constitutional authority in issuing the subpoena. As pointed out in this analysis, this is not a well-established and settled question of constitutional law. There is no rule that requires a full House vote on all subcommittee rules established by a subcommittee that forwards articles of impeachment to the full House. That is, a subcommittee does not have to get prior approval of the full House in order for a subcommittee to conduct business and recommend an action to the full house. Instead, the House simply votes yes or no on the particular articles, following the rules for House votes. | The election of the president (and VP) is a function most directly of Article II Section 1 Clauses 2 - 4 of The Constitution and the 12th and 23rd Amendments. Sections 2-3 of the 14th Amendment would probably have to be rewritten, since they also refer to there being "electors". A single constitutional amendment would suffice (and nothing less than an amendment would): the wording would of course depend on what system you wanted to replace it with. In doing this, it should be decided how to deal with the fact that electors cannot vote for both a president and vice-president from the elector's state (per the 12th Amendment): that might indicate an intent to prevent the president and vice-president from being from the same state, or it might mean that the intent was that if that happens, then that state's electors can't vote for their two favorite sons. In repealing the 12th, you can decide what you want now. There is a proposal to effectively nullify the Electoral College, the Popular Vote Compact, which has been enacted in a few states. The basic idea is to make it a statutory requirement at the state level that all electors must vote for the winner of the popular vote at the national level, regardless of the outcome in the particular state. The idea is that when enough states agree to the scheme such that they hold a majority of electors (which can change over time, so to be stable you need more than a simple majority), then they vow to vote for the winner of the national election. However, this also needs to be backed up with more compulsory faithful voting of electors, since compact or no compact, only 1 state seems to be able to actually prevent an elector from voting however he wants. | Both Congress and the state legislatures are expressly forbidden by the Constitution from passing bills of attainder. That means neither can ever pass a law that names an individual and says "they are suspended." It is so important that it's one of the very few restrictions on government that the original Constitution (before any amendments) prohibited in bot state and federal governments. (Also, a "bill" is not a law. It's what a legislature is considering making a law.) | You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right. |
Where are non-binary and intersex prisoners kept? I have been racking my brain trying to figure this out. When a non-binary character has to be imprisoned, how is the correctional facility determined since most if not all are binary? My particular interest is on intersex, genderfluid, and agender with genderfluid being able to fluctuate between different gender expressions. | In the US, the question of gender and facility-assignment depends on whose prison it is – federal, vs. a specific state. There may be a specific policy adopted by a particular prison system, but there is no specific statute that generally requires segregation of prisoners based on gender. Policies will exist which protect a prisoner's 8th amendment right to be free from cruel and unusual punishment: subjecting a person to repeated violence would be a kind of cruel and unusual punishment. At the federal level, the Prison Rape Elimination Act was designed to eliminate rape in prisons (which was already illegal). The act mandates a zero-tolerance policy, and enables studies of the problem – it does not further distinguish gender categories and/or parameters of sexual orientation. Specific policies are highly variable between states and the federal system. In theory, a state could mandate separate prisons according to birth gender, current gender and sexual preference (or, wings within a facility). I don't know of any system that specially segregates bisexual inmates from mono-sexual ones (etc.). There federal policy on transgender prisoners is explained here. The main policy of relevance is that prisoners are assigned based on their biological sex. Prior policy applied to Transgender individuals, defined as the state of one’s gender identity not matching one’s biological sex. For the purposes of this policy, a transgender inmate is one who has met with a Bureau of Prisonspsychologist and signed the form indicating consent to be identified within the agency as transgender. This step allows for accommodations to be considered That version did not say what "biological sex" is. Under current policy, the facility shall decid[e] the facility assignment for a transgender or intersex inmate, the TEC [Transgender Executive Council] should make the following assessments on a case-by-case basis: followed by, first: use biological sex as the initial determination for designation. Nothing addresses the former Intersex category, and I can find no explicit statements about what rules they use. This article makes some recommendations about this matter (suggesting making an official rule), but that's a desideratum and not the law, and it does not suggest that there is a known policy pursued by the purported TEC (whose actual existence is very hard to verify). | It depends on the jurisdiction but, very broadly speaking, the person might be ill such that: they did not know what they were doing or that what they were doing was wrong (insanity) their ability to understand their actions or make a reasoned decision or self control was highly impaired but not to the degree of insanity (diminished responsibility or perhaps provocation) they were unconscious when they acted (automatism - e.g. an offence committed while 'sleep walking') Clearly they lack the same culpability as a person with "good mental health", who consciously committed a criminal offence, knowing it was wrong. That does not mean the ill person can 'get away with it'. Claiming diminished responsibility as a defence to a murder charge may mean the person will instead be tried for manslaughter, which is also punishable by imprisonment. Depending on the circumstances a court (and subsequent people in authority) might be persuaded that the person is so dangerous they must be indefinitely detained and treated without their consent. Doesn't this sort of allow psychiatrists to make up the law, because they can decide if something is considered a mental condition? Just because a psychiatrist comes along doesn't mean the court will do what the psychiatrist says is best - the court will hear both sides of the argument, establish the facts, interpret the law and deliver a verdict. Some people would argue that someone who would commit such crimes (such as rape) couldn't possibly be in their right mind. Certainly, but so far as I'm aware that defence is very rarely used and never successful. | The Department of Justice has a nice guide on each section of the Charter, including section 28. As @MichaelSeifert's comment says, section 15 did not come into effect until later to give government time to resolve possible conflicting laws. During this time, section 28 can still be used to ensure other Charter rights are enforced on a gender equal basis. During the period from 1982 until April 1985, section 28 was the only Charter guarantee of sexual equality. It has been said that this may be the main effect of that section. There is to date limited jurisprudence on section 28. It is also important to note that section 28 is for interpretation of the Charter, not other laws. It cannot be directly applied to other parts of the constitution, ordinary laws nor other actions of the government. 28 Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. Equally, section 15 cannot be used to challenge other parts of the constitution, it can only be used against laws and actions at a lower level (Adler v Ontario (AG), [1996] 3 S.C.R. 609). The DOJ guide also describes this section as "interpretive, confirmatory, and adjunctive", in other word, symbolic. Nothing wrong with this, laws, especially constitutional acts that are profoundly political, are often symbolic. It also helps to contextualize section 1 analysis that determines the extent of acceptable limitations on Charter rights. Additionally, in my opinion, a very important historic reason is the Persons case. Section 28 is reminiscent and affirmative of the results in the that case, which declared that "persons" in the Constitution included female persons. This is was not as obvious as we would think today, gender-neutral language on its face did not mean that the law was interpreted in a gender-neutral way. Not to mention, in French, masculine forms (the Charter uses chacun and "tout citoyen canadien" for example) are often used as the generic (nothing wrong with this since gender in French is grammatical). But the section affirms the generic value of the expressions for both sexes, similar to subsection 33(1) of the Interpretation Act or other places where you see things like "masculine forms/pronouns has been used only for convenience and the rules apply equally to women.". The Supreme Court of Canada rejected women as "qualified persons" within the meaning of the Constitution for the purpose of appointing Senators; it was only because SCC was not Canada's final court at the time that the case succeeded in the British Privy Council. Notwithstanding clause As a compromise with the principle of parliamentary supremacy, section 33 of the Charter provides that (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15. [...] The legislatures cannot use the notwithstanding clause on other sections, e.g. democratic rights (sections 3-5), mobility rights (section 6) or language rights (sections 16-23). Section 28 is also not subject to a notwithstanding declaration, as such, it may mean that a government action notwithstanding other sections of the Charter nonetheless cannot violate sexual equality (but this question remain unsettled). This is one argument used to challenge the Quebec law on state secularism. The litigation is still ongoing, but the decision of the Superior Court of Quebec so far has disagreed with the preceding interpretation. The Superior Court deemed that once the legislature suspended the application of a Charter section, the rights in that section essentially are no longer guaranteed by the Charter and section 28 cannot be applied. | A private venue normally has discretion over who may attend their premises, as long as it is not because of membership in a protected class under anti-discrimination law. Note that the communication, as quoted, did not say that the banned person was a threat, but only that one of the performers felt uncomfortable. I do not think that the banned person has any legal recourse, unless they can plausibly assert that this is a case of unlawful discrimination, which the question does not suggest. | I will assume B.C. as your specific jurisdiction: there could be provincial differences. As phoog says, you certainly may mention this problem to management, who have an interest in keeping you happy. No law against that. As for the "legality" of sexual harassment, the CBA BC branch says that "Sexual harassment, which is discrimination based on sex, is illegal under the BC Human Rights Code". It is interesting to see what the code actually says. Section 8 Discrimination in accommodation, service and facility says (1) A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons. The question is whether using the term "babe" constitutes discrimination against a person regarding service because of sex. This article on the Law Society of BC web site specifically identifies "verbal harassment" as an instance: Verbal harassment – This comes from anyone within the firm and or other workplace or a person who does business with the firm or company. Some examples are: referring to an adult as a babe, honey, girl or stud; whistling at someone; turning work discussion to sexual topics; asking personal questions of a sexual nature; making sexual comments about a person’s clothing, anatomy or looks; or asking someone repeatedly for dates and refusing to take no for an answer. (emphasis added). In case you're thinking that maybe there's a difference in what the code says regarding services and what it says regarding employment, section 13 Discrimination in Employment says: (1) A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. In other words, it is defined simply in terms of "discrimination", which means "making a distinction". It is known that unwanted sexual advances constitute illegal discrimination, see Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252. The court found that Sexual harassment is a form of sex discrimination. Sexual harassment in the workplace is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job‑related consequences for the victims of the harassment. They did not, however, find that this is the only form of sexual discrimination (obviously, since it isn't). I can't point to case law indicating whether gender-biased expression are actionable, but that would be consistent with the letter of the law and "babe" is indeed an example cited in the Law Society article. | Here's what I had to do : After going through this harrowing phase, I thought I will post an update in case some one is in such a situation. The Northern Territory's Personal Violence Restraining Order act has a clause (section 21) which basically says if the applicant believes a third party knows the defendant's name then the applicant can request the court to order the third party(power, water, electoral roll, etc) to provide the name if the applicant has already made reasonable efforts in finding out the persons name and hasn't been able to. The third parties will only oblige to a court order. I am almost certain every state/territories' act (in Australia) will have such a clause. It was a challenge to get the court registry to accept the application as the front counter staff/supervisor/supervisor's supervisor were all unaware of this provision (to make an application for a PVRO but get the judge to first order the third party). I had to carry with me the act with the highlighted portion for them to read, analyse and consult with other court staff to even take my application in. At least in the NT there are community legal help services available for no fee and I highly recommend them. | "As we know non-adults aren't allow to carry weapons" This is not something that we know or an obvious point. It is also not obvious that a knife would qualify as a weapon for these purposes. This would not be true in most jurisdictions in the world. I have no idea what knife control laws look like in China or Taiwan. A reference to why you think that this is the case would be helpful. Even if there are laws banning possession of knives (i.e. carrying knives) when one is in public for use as a weapon, it would be very surprising to me if teens weren't allowed to possess knives in a kitchen, or a work site where a knife was a necessary tool. It would similarly surprise me if a teen working on a knife design in a craftsman's workshop would be illegal. What makes you think that any of these things are illegal in China or Taiwan? This might have been illegal in Japan in the 1600s when metal blades were highly regulated (this is one of the reasons that most Japanese food is served with portions pre-cut to be bite sized), but I very much doubt that teen possession of knives for practical purposes is illegal in any of those places today. There is also, in general, nothing wrong with factories run by adults making knifes from other people's designs. They do that all the time and it wouldn't be illegal to do so just because the designer wasn't allowed to use the product of the factory in public. I would be surprised if a factory even asked how old the designer was, particularly if he was operating through a company formed for him (something an adult might have to do). The harder question would be whether the teen can enter into an enforceable and valid contract with a factory without having the co-signature of a parent or guardian. Many countries don't allow this so that the teen is not exploited into agreeing to a big contract on unfair terms. Also, many countries make a distinction between criminal acts committed by adults and the same acts committed by minors. A teen, particularly a young teen, may be under the relevant law, capable of only engaging in juvenile delinquency, rather than an adult felony. But, again, I don't know how this is handled in Taiwan or China. In general, the legal system in Taiwan strongly resembles that of the legal systems in Continental Europe not long after World War II (i.e. in the 1940s), with its own local developments since then. But, China's legal system is quite unique and is not very similar to the common law legal systems of England and former or current English colonies, or the civil law legal system of Continental Europe (or for that matter, Islamic law). China's legal system is different at the level of very deep concepts of legal process, of what is and isn't law, and of many core legal concepts. It also has piecemeal bits that are imposed by treaty even though they are not organically natural fits with the rest of the Chinese legal system (e.g. its intellectual property laws). | The protection lies in the fact that these sorts of restrictions are expressed in state laws, and states are Constitutionally forbidden from denying to any citizen the equal protection of the law, or from interfering with religion. The First Amendment, as applied to the states through the Fourteenth Amendment, forbids states from making any law impeding free exercise of religion, or having the effect of establishing a state religion. This means that any law that forbids people of any religious denomination (including atheists) from holding any office (elected or not) under any level of government is unconstitutional. See Torcaso v. Watkins. Moreover, Title VII's protected classes are also (with the exception of sex) suspect classes under the Equal Protection Clause. A state or local government may not pass a law discriminating against a suspect class unless it is a narrowly tailored law which is the least intrusive way to achieve a compelling state interest. In practice, that means a state can't pass a law discriminating on the grounds of national origin, race, or religion. Sex is a quasi-suspect class; government discrimination on the grounds of sex must further an important state interest in a way reasonably related to that interest; again, in practice this will tend to rule out laws saying "no women can be elected to this post." The Americans with Disabilities Act actually does not exclude elected officials. It defines "employee" as "an individual employed by an employer." The Equal Pay Act doesn't apply to elected officials, but again, sex is a quasi-suspect class. The Age Discrimination in Employment Act also excludes elected officials, and this is the one case where a state really could discriminate -- the applicable test is whether the law is rationally related to a legitimate state interest, which is not an especially high bar. |
Can a private company refuse to sell a franchise to someone solely based on being black? This question was a result of a recent conversation regarding Chick-fil-A only selling their franchises to Christians. I thought that was discriminatory, but was told a private company can do anything they want because they are privately owned. I find this very hard to believe is the case in 2021. Can anyone shed some light on this subject? | Can a private company refuse to sell a franchise to someone solely based on being black? No. Racial discrimination in franchising by a private company in the United States is prohibited by 42 U.S.C. § 1981 and also under many state laws such as Cal. Civil Code §§ 51, 51.8, and is further informed by the definitions of 42 U.S.C. § 2000e. See also, this commentary. 42 U.S.C. § 1981 provides in the pertinent part: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens. . . . [T]he term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. Many cases have enforced this protection from racial discrimination in the franchising context. See, e.g., Int’l House of Pancakes, Inc. v. Albarghouthi, No. 04-cv02264-MSK-MEH, 2007 WL 2669117 (D. Colo. Sept. 6, 2007); Elkhatib v. Dunkin’ Donuts, Inc., 493 F.3d 827 (7th Cir. 2007); Harper v. BP Exploration & Oil, Inc., 134 F.3d 371 (6th Cir. 1998); Pointer v. Bldg. Stars Advantage, No. 4:03-cv-01237-HEA, Bus. Franchise Guide (CCH) ¶ 12, 960 (E.D. Mo. Apr. 26, 2004), aff’d, 115 F. App’x 321 (8th Cir. 2004); Home Repair, Inc. v. Paul W. Davis Sys., Inc., No. 98 C 4074, 1998 WL 721099 (N.D. Ill. Oct. 9, 1998) (motion to dismiss); 2000 WL 126905 (N.D. Ill. Feb. 1, 2000) (motion for summary judgment); Smith v. Molly Maid, Inc., 415 F. Supp. 2d 905 (N.D. Ill. 2006). Employment law protections rarely apply to franchise relationships. See Adcock v. Chrysler Corp., 166 F.3d 1290, 1294 (9th Cir. 1999) (holding that because Chrysler did not control day-to-day operations of dealership, dealer would not be considered employee for sex discrimination claim); Mangram v. Gen. Motors Corp., 108 F.3d 61, 63 (4th Cir. 1997) (holding that General Motors dealers are not employees of General Motors and that plaintiff, at best, demonstrated that as a participant in General Motors’ Minority Dealership Development Program he was a trainee for a nonemployment relationship with General Motors for purposes of age discrimination claim). This question was a result of a recent conversation regarding Chick Filet only selling their franchises to Christians. I thought that was discriminatory, but was told a private company can do anything they want because they are privately owned. I find this very hard to believe is the case in 2021. Can anyone shed some light on this subject? Not all kinds of discrimination are prohibited by Section 1981 (which was enacted shortly after the adoption of the 14th Amendment in the post-U.S. Civil War context and is the only or primary federal non-discrimination law applicable to franchise contracts), although state law protections are often broader. See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987)(holding that § 1981 does not address discrimination claims based on national origin); Runyon v. McCrary, 427 U.S. 160, 167 (1976) (noting that § 1981 does not cover discrimination based on gender or religion); Kodish v. United Air Lines, Inc., 628 F.2d 1301, 1303 (10th Cir. 1980) (finding age discrimination claim not addressed by § 1981). In particular, discrimination on the basis of religion in franchising contracts is not prohibited by federal law, although it is prohibited by state law in some states. But a franchisee in operating the franchise business must follow all state and federal non-discrimination laws that apply to public accommodations with respect to their customers, and must follow all state and federal non-discrimination laws that apply to employees with respect to their employees. | In general, you can be banned from a private business for any or no reason, unless it is because of something not allowed by US law or state law (in the state where the mall is located) such as race, nationality, sexual orientation, etc. | This doesn't sound like fraud (against you, at least), but it does sound like an unfair or deceptive trade practice, which is outlawed by Section 5 of the Federal Trade Commission Act and perhaps the Pennsylvania Unfair Trade Practices and Consumer Protection Law, both of which prohibit unfair and deceptive trade practices. I don't know about Pennsylvania, but the FTC has on many occasions taken action against companies for engaging in just this kind of behavior. To find out whether you would be able to take action against the other company, you'd want to find a good competition lawyer in Pennsylvania. For some more basic background on the FTC's rules, check out this primer. | The other answers don't quite spell it out, so I will. There is no law in the UK requiring landlords or their agents to show a property to all parties interested - refusal to show a property may however in some cases fall under discrimination laws, so that might be something you can pursue if you feel the refusal is due to your gender, race or sexual orientation. While they may have to justify their data collection under the GDPR, that is entirely separate to their refusal to show the property to you. | I’m guessing you have seen a sign in a business that read - “Management reserves the right to refuse service to anyone”. At least in the US, they do not need a reason as long as the reason isn’t unlawful discrimination. They can decide not to serve you. | Under 42 USC 2000a(a): All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. So a business may be generally prohibited from discriminating against you on the basis of your religion, but I don't know of any law that requires stores to accommodate whatever aversion or hostility you may feel toward gay people or their allies. On the contrary, such businesses have a First Amendment right to display such decor. So legislation that required them to stop speaking out in support of nice gay people would be struck down as unconstitutional. | I believe that under federal law, the franchise owner cannot avoid overtime in this way. A similar case was considered by the Labor Department in 2005 (FLSA2005-17NA): This is in response to your request for an opinion concerning the application of the overtime requirements of section 7 of the Fair Labor Standards Act (FLSA) to employees who work at two different health care facilities operated by one management company. It is our opinion that all hours worked at any of the facilities must be combined for the purpose of calculating hours worked under the FLSA. The letter explains the logic pretty clearly, with citations. When an employee is "jointly" employed by two or more employers, then the hours are all combined for overtime purposes. 29 CFR 791.2(b) explains how "jointly" is determined: Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee's services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Paragraph (1) applies: the two employers (the two restaurants) have an arrangement to share the employee's services (the owner is explicitly dividing their hours). Paragraph (3) also applies: both employers are under common control, since the same person owns both. They certainly are "not completely dissociated". The same logic would seem to apply even if the two locations are different restaurants, or different types of businesses. The 2005 letter explains further: Factors that are relevant in finding joint employment include, for example, whether there are common officers or directors of the companies; the nature of the common management support provided; whether employees have priority for vacancies at the other companies; whether there are any common insurance, pension or payroll systems; and whether there are any common hiring seniority, recordkeeping or billing systems. These also seem likely to apply in your hypothetical cases. | The "Crabs" game can be legal if it is seen as a form of parody. That is one of the forms of "fair use" that allows copying (within limits). This is to allow the use of limited amounts of copying for critical or "mocking" pieces, which are considered a form of free speech. Two other issues come into play under "fair use." The first is whether or not this is "commercial" (yes) or non-commercial (e.g educational) use. That is mildly negative for "Crabs" but by no means dispositive. The second is the likely market impact, whether the new use tends to compete with the old use in its "home" market, or whether it is likely to open a new market of a very different, perhaps "opposite" audience that might later buy the original as a "crossover." The "Crabs" game seems to address the "green" or at least "pro animal" (PETA) market. If the defendant can show that the "Cards" market addresses e..g., your "inner Nazi," making it "opposite," that would be ideal. It would be less convincing if "Cards" were addressing e.g. human rights, because that might be seen to overlap with the green market in terms of social conscience. |
Does the obligation to go to school during the pandemic violate my right to life? I am a student in a country which was hit quite hard by the pandemic. Currently, we are attending the lessons distantly, yet more and more people reckon it to be a high time to return to school. Let us not get caught up in politics and other off-topic stuff, so my question is: if there is "right to life" in my Motherland's Constitution, does the obligation to attend school during the pandemic violate it? Note: I am from Russia, yet I would love to hear a story about any country. | There is no clear cross-jurisdictional answer to this question, and answering the question for Russia is extremely difficult for ordinary mortals (ask the Russian version of the ACLU, if there is such a thing). The rights section of the Russian Constitution enumerates rights to life, human dignity, freedom and personal immunity, inviolability of private life, personal and family secrets, the protection of honour and good name, right to determine and indicate nationality, free travel, choice of place of residence, freedom of conscience, the freedom of religion, including the right to profess individually or together with other any religion or to profess no religion at all, to freely choose, possess and disseminate religious and other views and act according to them, freedom of ideas and speech, etc. etc. including a right to education. I should also point out article 60: A citizen of the Russian Federation may exercise his or her rights and duties in full from the age of 18 There are also protection requirements: Intellectual property shall be protected by law, dignity shall be protected, idem honour, the "right to protection against unemployment", maternity and childhood, and the family, and so on. There is a potential contradiction between the liberty-type rights and the protections guaranteed in the constitution. Nations differ in how they resolve these contradictions. Sometimes, a nation submits to the authority of a transnational court. Usually, they are resolved on a system-internal basis, by the Supreme Court of the nation, according to principles of legal interpretation adopted by that nation. In the US, no individual right is absolute: every right can in principle be subordinated to some government interest. We have a concept of strict scrutiny, which limits how governments can infringe on protected rights. Thus you have the right to free speech, but it is limited so that you cannot make death threats because it is a compelling government interest to prevent death threats. If you were to sue the government for violating your right to life by compelling you to attend school in the age of covid, there are various defenses that the government could offer to justify the education requirement. One is, simply, that those under 18 don't enjoy full rights enumerated for adults, therefore you can be compelled to go to school, in contradiction to the right to freedom of action. School attendance is a "compelling government interest", which can be used to justify infringement of rights. School attendance in the face of covid is not a guaranteed death sentence, but it increases risk of harm somewhat. Serving in the military, which is obligatory (Art. 59) also increases the risk of harm – much more substantially compared to going to school. In the US legal system, there are certain guidelines regarding the balancing act between government interest and individual rights, and yet it is still very hard to predict what government actions will be slapped down vs. sustained by the courts on that basis. | In the US, detention does not add anything: we can generalize the principle to any time when a student is in the custody of the teacher (classroom, field-trip, sporting event...). One question, for the scenario that you describe, is whether the injury was foreseeable. Suppose the injury is an abdominal aortic aneurysm – this is not foreseeable. The question that the court would ask is whether a person exhibiting reasonable caution and care would know that there is a possibility that the child has some condition. The details regarding this condition "not being easily noticeable" are essential to the outcome of the case. A child coughing up blood should be immediately treated medically, it is not reasonable to assume that a child who sneezes (once) is in imminent danger. The teacher's response is also important, and again this is a very fact-intensive inquiry. A child who has a heart attack should not be told "go talk to the nurse" (let's assume that the teacher correctly notices that this is a heart attack happening), 911 is the correct (minimal) remedy. Perhaps using the auto-defibrillator also part of the reasonable standard of care for a teacher (assuming there is one, and that the teacher has been trained how to use it). Then finally, the teacher is not liable if their actions / inactions don't cause the injury. In the case where a student suddenly dies, the fact that the teacher didn't somehow prevent the death doesn't make the teacher liable. But if the child is bleeding and the teacher decides "We can deal with this when detention is over" and the child bleeds to death in the interim, we would conclude that the teacher's lack of care caused the child's death. The school might also be liable on various grounds, for example if the school has no nurse and has no practical way for the teacher to contact emergency medical services. Some school policy which unreasonably restricts the teachers exercise of reasonable care could make the school liable. At any rate, "the child died" does not cause absolute liability, what confers liability is the actions and inactions of a party. | 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. | Contact the local affiliate of the ACLU: Affiliates | American Civil Liberties Union. They have a long history of protecting schools and public institutions from religious influences. They will be able to determine the legality of the displays in the school and if the subject of the presentation by the speaker is legally problematic, and will know the correct approach to the school board and school district and their legal representatives. See Religion and Public Schools | American Civil Liberties Union: Dating back to the Bible Riots of the mid-1800s, the role of religion in public schools has been one of the most hotly disputed—and most frequently misunderstood—religious freedom issues in America. Even though the U.S. Supreme Court has long made clear that the Constitution prohibits public school-sponsored prayer or religious indoctrination, violations remain rampant in many parts of the country. The ACLU can protect your identity. Or, use a throwaway email from Yahoo or similar service, or use *67 to block caller ID when phoning. If for some reason the ACLU finds little they can legally do, and if your local newspaper(s) or TV station(s) are not politically conservative, contact them and see if they want to cover the situation. | School districts / states do generally have the power to set the curriculum including the viewpoint that will be officially conveyed. One well-known major restriction on such viewpoint restrictions is that the schools cannot restrict the free exercise of a religion, and cannot take a position on a religion. Apart from the religion third-rail, schools have pretty free reign in setting the curriculum, see Evans-Marshall v. Tipp City for one instantiation. In this case, the teacher assigned various books, including Heather Has Two Mommies, one of the books that prompted an outcry. The upshot of that case is that a teacher cannot invoke the First Amendment to override policy. This article (draft version, easier to handle) (published version, annoying footnote structure) reviews the topic, and section III covers prior cases. It notes that the cases of Lawrence, Windsor, Obergefell do not address the constitutionality of these education laws, though the reasoning in the prior cases might be applicable if there were a suit over curriculum. There is an implication that some of these rules have been enforced in the past, but most of the evidence is in the form of news stories (Beall v. London City School BOE is not available in the open). The article does engage in a somewhat deeper study of enforcement in Utah, where it was enforced (until it was repealed). Enforcement is necessarily indirect. The law require school districts to have a particular curriculum; violation would come when an individual teacher taught contrary to the prescribed curriculum. Those laws do not contain any provision like "a teacher who violates these rules gets fired", instead, punishment is via the general rule that you have to teach what is in the state-mandated curriculum. Rather than officially terminating a teacher for violating this curricular guideline, districts use vague reasons for non-renewal such as "due to problems with communication and teamwork" (from Evans-Marshall). | 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. | Such sad and tragic circumstances, my sympathy to all involved. General I do not know the specifics of English law as it applies but I believe it is similar enough to New South Wales, Australia that the general overview that follows is not likely to be far wrong. Before a court intervenes there has to be a dispute and someone with standing must bring an action to the court. We can surmise that a dispute arose about the best medical treatment for the child between the child's parents and the child's medical professionals - if there was unanimity there would have been no legal proceedings. Ultimately this is an issue of the welfare of the child. Medical professionals are under a legal obligation to report issues of child welfare to the relevant authorities. In the UK, the government authority responsible for child welfare is the Department of Education. We can presume that they intervened in accordance with their policies and procedures and their understanding of the law and the dispute could not be resolved. It is likely the DoE that brought the matter to the courts or the parent's disputing a DoE decision. The court will decide such issues in the best interest of the child. In deciding what that is, they will consider all the evidence including the parent's wishes, the child's wishes (not relevant in this case but it can be for older children), other relatives, medical opinion etc. They will also consider what the law is, including precedent and make their decision. If you read the linked article about the high court trial the judge is quoted as saying: “It is with the heaviest of hearts but with complete conviction for Charlie’s best interests that I find it is in Charlie’s best interests that I accede to these applications and rule that GOSH may lawfully withdraw all treatment save for palliative care to permit Charlie to die with dignity.” “I dare say that medical science may benefit objectively from the experiment, but experimentation cannot be in Charlie’s best interests unless there is a prospect of benefit for him.” “Charlie’s parents have sadly but bravely acknowledged and accepted that the quality of life that Charlie has at present is not worth sustaining, for he can only breathe through a ventilator, and although they believe that he has a sleep/wake cycle and can recognise them and react to them when they are close, they realise that he cannot go on as he is lying in bed, unable to move, fed through a tube, breathing through a machine.” “Understandably, Charlie’s parents had grasped that possibility, they have done all they could possibly have done, they have very publicly raised funds. What parents would not do the same? But I have to say, having heard the evidence, that this case has never been about affordability, but about whether there is anything to be done for Charlie.” “But if Charlie’s damaged brain function cannot be improved, as all agree, then how can he be any better off than he is now, which is a condition that his parents believe should not be sustained?” This decision was reviewed by the European Human Rights Court who “endorsed in substance the approach” taken by the British courts and declared “the decision is final”. Is it "symptomatic of a Single-Payer healthcare system" Probably not. Almost universally, child welfare cases are decided on the "best interests of the child". This judge in this case within this legal and cultural system decided as he did - and I do not doubt that it was a difficult and emotional task. Change the judge, change the case, change the law and change the culture and you may change the decision but, then again, maybe not. Perhaps in a place with a different culture towards health care, the medical practitioners would not have formed the opinion that the experimental treatment was not in the best interest of their patient and there would have been no dispute that required government intervention. Legal basis Governments can pass laws that impact the people in their jurisdiction. The UK government has passed laws that allow them to interfere in the normal relationship of parental authority. The UK government is not unique - all countries have such laws. Further, the UK government controls who enters and leaves their borders and in what circumstances. Did the NHS (or the hospital) take custody of the child away from the parents? Almost certainly not - this was not a custody battle. Or does the NHS get to decide upon the welfare of its patients once they are in the system? Of course. Every medical professional/hospital/clinic everywhere in the world has a legal and moral responsibility to provide treatment in the best interests of their patients. They will get sued if they don't. Why were the parents not able to take Charlie away on their own recognizance, like (presumably) adults can refuse treatment and leave the hospital? Because an adult can decide for themselves, a child cannot. Other people have responsibility for deciding for the child and when, as here, people with overlapping responsibilities (parents and medical professionals) have divergent views, the government intervenes through executive or judicial action. | 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. |
Is it legal to swear at school? First, is it legal to use profane language in school (specifically a high school in California, United States)? Also, what is the maximum punishment allowed for a student using profanity (assume the worst case)? Note: I am not looking for answers about the First Amendment and what should or should not be allowed. | The First Amendment is absolutely relevant to the question (in a public school which is subject to the First Amendment, because it is a governmental entity), although it isn't the end of the story. Generally speaking, a school can establish reasonable rules and regulations for its students and punish those violations with punishments such as detentions, suspensions, expulsions, changes in grades on assignments or in classes, denial of eligibility to participate in extra-curricular activities or to receive school honors, and similar sanctions. Generally speaking, violations of school rules cannot result in criminal punishments or civil liability not authorized by other laws, and profanity is something that cannot be prohibited – at least in cases involving adults. Minors have First Amendment rights to express opinions, although they are diminished in a school setting, and while literally speaking profanity is part of the content of speech, it is often analyzed as a permissible "time, place or manner" restriction instead, especially when minors are present. Profanity also covers a range of conduct. Schools have the greatest authority to regulate speech when it is disruptive to the orderly operations of the school, or threatening. Profanity used to provoke or threaten someone, such as the use of a racial slur or an offensive statement about someone's family, could potentially be punished severely based not simply on what was said but because it is part of a larger context of aggression. In contrast, schools might potentially exceed their legal authority to prohibit profanity defined in such a way as to prevent students from a particularly ethnicity from speaking in ordinary non-provocative terms to each other. The N-word directed at an African-American student in a predominantly Hispanic school by someone reputed to be a gang leader with an intent to provoke or threaten the African-American students would be well within the school's right to prohibit and punish severely. But punishing two African-American students who are friends for using the same word in a friendly context like "Hey, N- how you doing?" "I'm doing better than fine, N-" might even be construed as discriminatory if punished, and deemed to be beyond the authority of the school to prohibit at all, or with anything more than the most minimal sanction. Limitations on profanity are also more suspect from a First Amendment perspective when used in connection with conduct that is intended to be expressive, such as an art project, or a monologue chosen for a drama class from published stage plays, novels and poems, or when used in connection with protests and political activity. Often the standard by which school officials are judged in court when a school punishment for some conduct or another is challenged, is whether the school officials abused their discretion and part of that analysis is proportionality. A school official can be comfortable that issuing a detention to a student, or assigning the student to some undesirable task like picking up litter from a school yard during recess for saying something like "shit" or "fuck" will not be judged to be an abuse of discretion. But, a court might very well overturn a school's exercise of its discretion to punish a student if a student were expelled for saying something like that in a manner that was not part of a more pervasive pattern of disregard for authority and disruptive behavior. Another factor that influences whether a rule like a ban on profanity is an abuse of discretion to punish in a particular manner is the extent to which there was advanced notice that this was prohibited. If the school has a clear rule that is familiar to everyone in the student body stating in advance what is prohibited and what punishments are authorized under particular circumstances, that rule is more likely to be held not to constitute an abuse of discretion, than a severe punishment of a student who has no real advanced warning that the conduct is not allowed. Similarly, the intent of the student is relevant. If a student uses profanity or an offensive term (e.g. "fag") not knowing that it is considered profane or offensive, either out of ignorance perhaps because other students misled him or her about what a word meant, anything more than a minimal punishment would be an abuse of discretion, while even relatively minor use of profanity, calculated and intended to have great negative effects in the context in which it was used, resulting in a severe punishment, might not be an abuse of discretion. In between, and perhaps justifying only an intermediate punishment, at most, without constituting an abuse of discretion, would be a use of profanity that isn't naive or innocent, but isn't calculated for maximum negative effect either, and just "pops out" based upon what is normal in a student's home life or previous experience even though it is contrary to the norms of this particular school and the student would have realized that upon further reflection. Is there detailed case law or a statute that spells this out, in great detail? No. Some of this is embedded in custom and social norms that are familiar to judges (usually in the context of what was historically known as a "certiorari petition" arising from a local government quasi-judicial decision). But, I do think that this answer relatively accurately captures how a seemingly vague "abuse of discretion" review standard for school disciplinary actions for students would be likely to play out in real life, and those expectations absolutely do influence how school administrators and teachers impose discipline, in practice. | The First Amendment does not guarantee a right to not be offended. However, as held in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), it does prohibit compelled speech, and a person cannot be compelled to recite the pledge. The basis is not religion: this is a general prohibition on what the government can do. ("Parental consent" comes through the school informing parents of the right to not recite the pledge, and a parent who objects will tell their child to not recite the pledge, thus consent is implicit for those parents whose children do recite -- unless the child's actions don't reflect the parents' intent). | So I can block children under 13, but I can't tell them that? You can tell them after they fail, you cannot tell them on the asking screen. Then what is the correct way to block children under 13 to access my website and still comply with COPPA? I agree with you that it is odd that they recommend using a cookie but they do!* So you have a entry page with a simple question, "Please indicate your age" and then block based on the response. That's it. Note that the rule is neutral. This means that you do not need to disguise your purpose or try to trick people into entering their correct age. *I think that what is happening here is that any parent who wants to complain to their legislator can be met with the response, "If your kid is so sneaky that they are using different computers to lie about their age what do you want us to do about it?" The fact is, this scheme keeps innocent kids from seeing stuff they shouldn't; the sneaky ones are going to find a way. | Mockery is allowed; hate speech isn’t While freedom of speech is guaranteed under French law it does have limits. Since 2004, these limits have applied to gender and sexuality. Mockery is contemptuous or insulting speech; hate speech or vilification incites hatred, serious contempt or ridicule. The boundary between them must be established on a case-by-case basis including both content and context (“I’m going to get you” can be a serious threat but it can also be what a father says to his child when chasing them in the park) but in France, as in other liberal democracies, the benefit of the doubt goes to speech being considered lawful. | Legally there is no problem. What you say is protected speech under the 1st Amendment as long as it is either true or a matter of opinion. However Ron Beyer's comment is a good one; while legal this sounds very inadvisable. You would be far better off hiring a lawyer. The Mr Dicks of this world make money from the widespread fear of legal action. He will probably fold as soon as he sees a letter from a lawyer threatening a lawsuit. Until then stalling doesn't cost him anything so he will carry on doing it. BTW, don't delay. I don't know about the US, but over here in the UK there are a number of ways that people like Mr Dick can make it hard to collect. Don't give him time to play shell games with his assets. | It would be unconstitutional for there to be a law against (public) schools having a field trip to a church or other religiously-centered building. The First Amendment requires government action to be neutral with respect to religion. This means that a public school can neither promote nor condemn religion. A field trip where the venue was a church is not per se the promotion of religion in general or a particular religion. A pattern of activity, and associated facts, could, however, establish that a seemingly innocent event is in fact religious proselytizing. If for example the teacher actually says "I want to make churches be a happy experience, so that students would be inclined to convert", that would cross the line from neutrality to advocacy. If there were many possible venues for such field trips and yet only the church is chosen, that might be evidence of non-neutrality. It really depends on the totality of facts. If the church has the only stage in town, that would be a perfectly reasonable basis for repeated trips to that church. | The law was first promulgated on June 8, 1940 By the 76th Congress. The original text is here. It doesn’t seem to be a particularly important piece of legislation and I can find commentary on it and I’m not going to read the debates - if you do, please get back to us. Two points to note, it was passed at a time when most of the rest of the world was at war and the US was quietly preparing to be at war and it seems to be intended to fill a gap in state law since conviction under state law is a defence under Federal. | Generally speaking, all these examples would be perfectly legal. American speech law starts from the presumption that speech is protected from government punishment, and then asks if it fits into one of several categories of unprotected speech, which are laid out in other answers. Name-calling generally doesn't fit into any of those categories, so none of your examples would be illegal. The answer might change if the name-calling went far enough to suggest some false assertion of fact about your subject. Calling someone "murderer" or "pedophile" might cross the line into libel, which is unprotected, or it might be punished as "fighting words" if it could be expected to provoke the subject to violence. Another qualification is that the government has a bit more leeway to regulate speech when it is acting as an employer rather than as the government. So if you were a clerk at the license bureau, the government might be able to require you to use people's preferred names or pronouns; if you refused to do so, you might be subject to employment-related discipline, but not to criminal or civil sanctions. |
What happens to people that gamble in Arizona when they're not old enough? I was gambling in Arizona 2013 and was looking for a goal of $1,000. It wasn't a scam. I was 10 years old at the time. We got only got $300. Both and my Dad were doing the gambling and we each took turns. What would happen if someone reported us? | This site says that the legal age for online gambling in AZ is 18, and for "land" gambling is 21, but does not mention penalties for violations. According to Arizona code section 13-3301 "Regulated gambling" requires that Beginning on June 1, 2003, none of the players is under twenty-one years of age. According to 13-3302 Regulated gambling is "not unlawful" provided that the gambling is conducted in accordance with the statutes, rules or orders governing the gambling. Acording to 13-3303: A. Except for amusement, regulated or social gambling, a person commits promotion of gambling if he knowingly does either of the following for a benefit: Conducts, organizes, manages, directs, supervises or finances gambling. Furnishes advice or assistance for the conduct, organization, management, direction, supervision or financing of gambling. B. Promotion of gambling is a class 5 felony. So it would appear that the organizer could be guilty of a felony if underage gambling is allowed in a regulated gambling situation, which seems to be what the question is describing. I cannot find any AZ law imposing penalties on an underage person who engages in gambling, but I am not sure if there are any or not. I suspect in the situation described in the question, it would be treated as if the father was doing the gambling, but the description is not entirely clear. | It is illegal to sell alcohol to a minor in Washington (RCW 66.44.270). The seller can get into various kinds of trouble, including losing their license, under liquor board regulations. However, as long as the establishment follows the rules for acceptable ID, they escape liability if in fact they sell alcohol to a minor: the license holder is legally allowed to accept an identification of the specific type. That is the sense in which this is required by law: the customer must have actually presented the identification, in order for the establishment to escape liability (RCW 66.20.210). Looking old enough is not the issue. It is legal to sell alcohol to a person who is over 21, and the law does not require presentation of identification as a condition for a sale. However, under RCW 66.20.180 a person is require to produce ID "upon request of any licensee, peace officer, or enforcement officer of the board". The legal risk attached to sales in an age-marginal situation is very high, and actual presentation of ID is required to escape liability by the establishment, so in that sense, it is "required by law". All requests to produce ID for liquor sales (at least in Washington, and leaving out deliveries which are governed by other laws) are driven by company policy. Typical policies are quite rational, being designed to protect the company's interest in not getting into a heap of trouble for an under-age sale. There is no law saying when you must ask, or when you are protected if you don't ask. Usually, store policy is to use "common sense" so that 90 year olds are not required to produce ID (they may be asked, jokingly). Non-compliance with RCW 66.20.180 carries no legal penalty, that is, there is nothing in the statute that says "if the customer doesn't...". The most obvious would be that the seller would refuse to sell, which the seller can arbitrarily do anyhow. There is no statutory penalty imposed on a licensee if they request ID of a person over 21 and the person fails / refuses to produce the ID. Obviously, the licensee cannot be punished if a customer fails to provide ID (and leaves), especially if they lost it. But the law "requires" them to provide an ID, with ne except "unless you leave / put the bottle back". Somewhat less obviously, if the legislature wants to, it can enact a provision that once a licensee requests ID, they are forbidden to sell alcohol to that customer until ID is provided. But there currently is no such law. "The law" also included regulations, such as WAC 314-17-105. This regulation is a chart, and the relevant entry is PERMIT: Failure to produce permit or identification upon request. See RCW 66.20.310 and 66.20.180. for which the 1st offense consequence is "5-day permit suspension OR $100 monetary option". This is a problematic regulation (potential lawsuit fodder), since it can be interpreted in a number of ways. The question is, of whom is the permit or identification predicated? Only the licensee has a permit, but customers and employees can both have identification. If we interpret this regulation as meaning "Failure by licensee or customer", then we arrive at the absurd conclusion that if a customer fails to produce ID on request, the establishment is fined. It is important to note that this regulation is under a chapter about server training, thus the regulation can only reasonably be interpreted as being about licensee providing identification. | ...due to the international registration of multiple domains to generate ad revenue by recycling stories across sock puppet networks, giving the impression of multiple, independent companies. None of that is illegal on its face. Internet domains are freely registerable by anyone, anywhere (with the exception of some laws in some nations that restrict such Internet-related activity), and registered privately or publicly, and websites can be hosted anywhere. Writing articles and "spinning" and copying articles (even if that writing is sales gibberish in broken English) among the same copyright owner is legal, and using the same design and layout for a network of sites is legal. The formation of multiple, related companies and shell companies to give the impression that companies are separate and independent is legal (again, with the exception of some business and corporate laws in some nations that restrict such activity). These are all common business practices. Some business practices may appear to be unethical - trying to fool customers in order to make money and get clicks and sell ads. And what you may be feeling is that such activity is unethical. And that's OK. But feeling that they are unethical doesn't make the practices illegal. Many common activities that are considered to be unethical are illegal; but not all. Buyer beware. One way some of that activity may be illegal is if those articles are factually incorrect and promote quack medical treatments, are financial scams requiring payments, are gambling sites or promote other clearly illegal things. But then you get into the complexity of exactly how they are illegal, which jurisdictions are involved, and on and on. | If they actually mean $0, then that is not "taking advantage". If they do not mean $0, it is most likely that they will tell you "Sorry, we made a mistake, we're not gonna send you that Rolex for $0 plus shipping". If this came with free shipping, then you would not actually have a contract, because there s no consideration on your part (no payola). Fortunately, there is shipping, so there is a contract. You could then attempt to force them to send you the goods, which they might do rather than irritate you, but not if it is a Rolex. One of the defenses against enforcing a contract is "mistake", and a $0 Rolex would be a great example of that. Things get a bit more tricky if you relied on their free Rolex. You would look up the doctrine of promissory estoppel, to see if the seller could be estopped from making the mistake argument. Let's say that you also bought a Rolex Display Case from someone else at a cost of $100 plus shipping. By relying on their promise to sent you a Rolex, you have suffered a loss. The most likely outcome is that they'd have to reimburse your Display Case expense. (Finding) mistake airfares is an industry: a common response for the airline is to say "Oops, sorry", though sometimes they honor the mistake fare. Rumor has it that rather than get trashed on Twitter, the airlines honor mistake fares. You may find disclaimer language pertaining to verification of prices and availability, which also gets them off the hook. At any rate, you certainly won't be sued or prosecuted for assuming that they mean it and buying the thing; you might be disappointed. | I assume that the loan was legal, in light of rule changes pertaining to non-borrowing spouses. If so, there is really no recourse other than to repay the loan. This article explains the current options / restrictions in an understandable manner, but of course it is too late to do anything about it. If there was actually fraud or coercion in the loan, or if the elder party was mentally incompetent, there might be some legal recourse, but we don't have any evidence of fraud, coercion or incompetence here. | Both the police and the courts are likely to look at the situation as a whole, rather than adopting any policy specifically in relation to drivers or owners. For example, it's unusual for people to rent cars to their friends for months on end. That might suggest there is something untoward about the arrangement. Is there evidence of the commercial arrangement, or is the owner pretending to have rented the car out for months, when in reality they had stashed the drugs then let a friend borrow the car for a day? It would also be unlikely for a drug dealer to stash a large amount of drugs in a car then lend the car out on a long-term basis, so if the car is out of the owner's hands, that would tend to suggest the drugs belong to the person in possession of the car (and not the owner). But if the amount of drugs were small, typical of personal use, then it becomes more credible to imagine they could be forgotten by the car owner before lending the car to a friend. Police intelligence might also have a bearing. Does one party or the other have known links to the drugs trade? Also, is the lifestyle of one or the other, in particular, inconsistent with known sources of legitimate income? My point with all these questions is to highlight how sensitive the issue is to the fine details of the circumstances, and that it's impossible to give a strictly general answer. | 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. | Volokh commented on this. There is no 2nd Amendment issue, nor does federal law. It may be illegal in some states, depending on whether age is included in public accommodation anti-discrimination laws. For instance, Conn. Gen. Stat. §§46a-64 says (a) It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability or physical disability, including, but not limited to, blindness or deafness of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons; §46a-63 defines "public accommodation" (1) “Place of public accommodation, resort or amusement” means any establishment which caters or offers its services or facilities or goods to the general public, including, but not limited to, any commercial property or building lot, on which it is intended that a commercial building will be constructed or offered for sale or rent Public accomodation laws are how states deal with discrimination in sales, such as selling wedding cakes Illinois 775 ILCS 5/1-103 likewise prohibits age discrimination in public accomodations, but defines "age" as "the chronological age of a person who is at least 40 years old". Connecticut used to define "age" as "any age between forty and sixty-five, inclusive", but that clause was deleted. Lousiana also prohibits age discrimination (La. Rev. Stat. §51:2247). Their statement about age likewise limits anti-discrimination protection to "individuals who are at least forty years of age". Maryland in MD State Govt Code § 20-304 also bans age discrimination, and does not redefine "age" or limit the scope of those ages that are protected. So while it is generally legal to refuse to sell goods to the young (and sometimes mandatory, e.g. alcohol, firearms, tobacco), there are a few states where such a policy would violate state anti-discrimination laws. There can also be city laws (Seattle has very broad anti-discrimination laws), but they exclude age from the Public Accommodation subset of discrimination. |
Can the copyright status for unreleased musical work expire This may be an iterative of a common question, though I feel the specific scenario justifies asking. Is there an established guideline regarding the longevity of copyright protection status for an unreleased piece of music? Assuming a musician has written a musical passage which went unrecorded and unpublished, would its copyright as an unreleased work still stand forty, fifty years on, assuming the author has not taken further steps to copyright its contents during that time? Would a third-party who produces a derivative of that work for commercial or personal gain five decades after its authorship be liable for damages to the author? Could damages be claimed in a personal use case? (ie: re-recording the work and publishing it electronically at no cost?) | Yes Such a work might well still be protected by copyright after 50 years. The time that copyright protection will remain in force depends on the country where the work was created (normally where the author was living). In some countries it will also depend on when the creation occurred. In many countries such protection lasts for 70 years after the death of the author. Under US law recent works use the "life of the author+70 years" rule. Works created before 1978 may be protected for 95 or 120 years after creation, depending on the circumstances. See This well-known chart for details. If the work is protected by copyright, preparing a new derivative work, or performing or distributing the original or a derivative work are all copyright infringement, and the owner could sue. This is true whether a fee is charged or the work is performed or distributed for free. Exploiting the work for commercial profit might increase the amount of damages available, however. If the author has not published or exploited the work for 50 years or more, the author might not choose to sue, but that is entirely the author's decision. The author would have the right to sue, and given the facts as described in the question, to collect some damages. There is not enough information in the question to guess how large the damages could be. In the US 17 USC 504 provides for statutory damages, which the court has significant discretion on the amount of, with no proof of economic loss. Specifically this law says: (c) Statutory Damages.— (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118(f )) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work. In short, the mere lapse of 50 years does not make the unpublished musical work free for use without permission. | Yes Both melody and lyrics source back to the middle ages, as for instance described here. The difficulty could be to make sure you rely your derived work on a variant that is really in the public domain. E.g. if you use notes or lyrics from the Simon & Garfunkel version and derive from there, you might violate their copyright. | Copyright law treats computer files containing text as "copies" and computer files containing sound as "phonorecords". Indeed it must, otherwise there would be no copyright protection for ebooks and for downloadable music. Thus, I would take 17 U.S. Code §121 to apply. The word "material" in copyright law has been held to include "stored in electronic form on any storage device" so that the key requirement for an initial copyright, that the work be "fixed in a tangible form" or "fixed in any tangible medium of expression" is satisfied by a computer file, see 17 USC 102 17 USC 121 reads: it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work ... if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons. Note that the page "Copyright and Digital Files" describes computer files recorded in a computer or on disk as "copies" as in deed does 17 USC 117 This establishes that such files are copies, and thus consist of "materiel objects". The official US copyright office page on "Can I Use Someone Else's Work? Can Someone Else Use Mine?" reads: Whether or not a particular work is being made available under the authority of the copyright owner is a question of fact. But since any original work of authorship fixed in a tangible medium (including a computer file) is protected by federal copyright law upon creation, in the absence of clear information to the contrary, most works may be assumed to be protected by federal copyright law. (emphasis added) Copyright Office Circular 1: "Copyright Basics" reads: A work is “fixed” when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time. A computer file is petty clearly "sufficiently permanent" for this purpose. Also consider Google LLC v. Oracle America, Inc 886 F. 3d 1179 As this web page reports: In a 6-2 decision, the Supreme Court has ruled that Google's use of Oracle's software code in developing the Android operating system constituted a fair use under §107 of the Copyright Act. The use would not have been fair use unless the code was protected by copyright, and the code almost surely existed only in the form of computer files. Thus the US Supreme Court has treated computer files as "materiel objects" for purposes of copyright law. (Note also that the use was declared to be infringement unless fair use applied, which leads even more directly to the same conclusion.) | You cannot claim copyright protection of the underlying work, but you can claim protection for your contribution. Under 17 USC 101, the resulting work is a derivative work: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. As an "original works of authorship fixed in any tangible medium of expression", the work is protected by copyright law: but that only applies to the modifications that you added. | It is possible to abandon copyright ... maybe. However, this game has not been abandoned. When the owner of the company was liquidated, the copyright became the legal property of the liquidator in trust for the creditors. It is for him or her to decide how to deal with the property but the copyright still exists until 70 years after the author(s) death. If you allow downloads you are breaching copyright unless you have permission (or you meet the Fair Dealing criteria - you probably don't). The person to seek permission from is the liquidator od the company. If you get sued they do not need to demonstrate financial loss - copyright claims can either be pursued for actual or statutory damages, that is, a fixed amount per violation. In addition, in egregious cases, copyright violation is a crime prosecutable by the state. | The answer will depend on the license you entered into with the publisher. Assuming that he has an exclusive license, there is no way you can publish the same work again against the will of the publisher or his successor. His right under the license will come to an end 70 years after the author or last co-author has passed away. What you can do is to create a new work that is so distinct that it does not infringe the right of the licensee, the publisher. If the new is original enough, you will have a new copyright. | Short answer: §§ 64 ff. UrhG is not a defense (Einwendung) but an integral/constitutional component of copyright. Accordingly the party favoring the fact that a work is (still) copyrighted has the burden of proof. Long answer: Copyright cases are divided into four steps: Copyrightable work? (Urheberrechtlich geschütztes Werk?) Applicable exploitation rights? (Tangierte Nutzungsrechte?) Exceptions? (Schrankenregelungen?) Damages. (Schadensersatz) In a civil action suit parties need to present facts, § 282 ZPO (Beibringungsgrundsatz). The court/state does not investigate anything. That means the plaintiff contending that he has a claim for damages needs to demonstrate that it’s a copyrightable work, they are the copyright holder, and you infringed their rights. For the last item you may face an obligation to disclose certain evidence as per §§ 101 ff. UrhG. The plaintiff can actually simply claim anything; until you dispute their claims it is believed to be true, § 138 Ⅲ, 288 ZPO. Yet still, lying about hard facts is forbidden, § 138 Ⅰ ZPO (Wahrheitspflicht). Claiming the work’s creator was alive in 1952 even though they very well know he was not is illegal. On the other hand since you are relying on §§ 64/65 Ⅰ, 129 Ⅰ 1 UrhG, that is the circumstance copyright has expired 70 complete calendar years after the (last co)author’s death, § 69 UrhG, you will need to contest any claim copyright did not expire (subjektive Behauptungslast). No copyright protection → no damages. Otherwise it is believed there was no issue about this. The plaintiff will then again need to produce evidence that copyright has not expired. It is the plaintiff who seeks damages under § 97 Ⅱ 1 UrhG so they have the burden of proof regarding all requirements of this legal basis. | For a particular poem(s) the copyright term in ROK is Life + 50 years. In copyright, these are measured as calendar years so it will enter the public domain on 1 January 2019. That is, unless you plan to use it in a country that doesn't observe the rule of the shorter term (like the USA) - in those countries it may still be under copyright based on the term using their individual domestic law. Ask another question if you want this clarified. Copyright in the anthology belongs to the person who created that work i.e. the editor(s) who selected and arranged those particular poems from those particular poets. The duration is measured from the (last of) the editor's death(s). IF you are not copying or deriving from the anthology (i.e. you are only using one of the poets and are arranging them in a different way), this is irrelevant to you. |
What are an amateur photographer's rights at a protest/riot? Suppose an amateur photographer, i.e. does not get paid for her work and has no press credentials. The photographer does post photos to social media, e.g. instagram. The photographer attends the rally in Washington D.C on January 6 for photography purposes only. The photographer is wearing neutral clothing, has a camera bag over her shoulder, and a DSLR camera with a large lens. The photographer starts with the crowd at the White House and follows the crowd to the Senate building and even into the building itself, all the while taking photos. Is the photographer guilty of a crime at any point? Are press credentials required as a form of immunity from arrest/prosecution? | While at times the Capitol building is open to the public, as the answer by hszmv mentions, at other times it is not, particularly when "an event designated as a special event of national significance" is in progress. Breaking open a door or window, or entering through a door or window that someone else has broken open, could not be thought of by a reasonable person as a legitimate entry. During any period when the Capitol Police were admitting people, those people were allowed to enter, but the question speaks of one who "follows the crowd to the Senate building and even into the building itself" which sounds like one who entered via one of the forced openings, although possibly not. In any case my understanding is that the Capitol Police and other security troops made announcements instructing people to leave the building. Once this was done, reaming in the building willingly would have been a violation of law. That a person was holding a camera, or indeed had press credentials, would not be a defense to such a charge, although it might be seen as a mitigating factor. In general Press credentials do not give a person greater rights of access anywhere. In recent years with the rise of armature or semi-pro journalism via the net, courts have been more careful to treat uninvolved citizens as potential journalists. In addition to ordinary trespassing charges, 18 U.S. Code § 1752 - Restricted building or grounds is applicable, and according to news reports has been used to charge various people who were filmed in the Capitol. 18 USC § 1752 imposes penalties on anyone who: (a)(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so; (a)(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions (a)(3) knowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds (a)(4) knowingly engages in any act of physical violence against any person or property in any restricted building or grounds (a)(5) knowingly and willfully operates an unmanned aircraft system with the intent to knowingly and willfully direct or otherwise cause such unmanned aircraft system to enter or operate within or above a restricted building or grounds It would seem that (a)(1) would apply to a person acting as described in the question, or at least it might. Several of the other sections would apply to at least some of the intruders, but not to an amateur photographer as described in the question. A "restricted building" is defined by 18 USC § 1752 as: (c) (1) the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area— ... (c) (1) (B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or (c) (1) (C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance This would seem to apply to most, if not all of the Capitol Building during the counting of Electoral votes, due to the presence of the Vice President, particularly to any area behind locked doors or to any area at all once police had instructed people to leave. Possible penalties under 18 USC § 1752 include a fine and up to 1 year of imprisonment, or up to 10 years for anyone who "uses or carries a deadly or dangerous weapon or firearm" or whose offense "results in significant bodily injury". A person acting as described in the the question would presumably not have either aggravating factor apply. | Yes, that might be a violation of data protection law such as the DPA 2018 / UKGDPR, but not necessarily so. It depends on the details, for example on the purpose this camera serves. Background on Fairhurst v Woodard and on legitimate interests Fairhurst v Woodard is a significant case discussing implications of use of video surveillance outside of a commercial context, but it is a complex case due to the multitude of cameras involved and due to the somewhat unrelated privacy and harassment issues. Point 135 is about the Driveway Camera, which only surveilled public property and the claimant's property, but did not view any part of the defendants property. People are free to surveil their own property, and would then be covered by the UKGDPR household exception. But for surveillance outside of their own property, defendant would have to comply with the DPA 2018 and the UKGDPR, for which defendant would have needed a legal basis. The defendant argued that they had a legitimate interest (Art 6(1)(f) UKGDPR): 134. […] The Defendant submits that all his data collection and processing was necessary for the purposes of crime prevention at his property and in the car park However, a legitimate interest always require as balancing test. The legitimate interest can be “overridden by the interests or fundamental rights and freedoms of the data subject” (Art 6(1)(f) UKGDPR). It is not necessary here that these interests, rights, and freedoms are explicitly enumerated in statutory law. Here, a right is claimed without supporting legal basis: 134. […] Claimant submits that her right to privacy in and around her home overrides that purpose. However, a possible basis for this claim would be Art 8(1) of the European Convention on Human Rights, which is part of UK constitutional law: “Everyone has the right to respect for his private and family life, his home and his correspondence.” The court balances these rights and interests very differently for the different cameras. The Ring Doorbell is mainly focused on people who would ring the defendant's doorbell, and only incidentally captures passer-bys. Here, the legitimate interest was found to be valid. On the other hand, the Driveway Camera was mostly trained on claimant's property. Here, claimant's interests, rights, and freedoms override the claimed legitimate interests. Your scenario If the camera records the people living in the Green House when they go to or from their property, then yes, it seems like their rights would be affected. But in your scenario, the context of the camera is not clear: Why was it installed? If the purpose is crime prevention, is there evidence of such crimes in the neighbourhood, or are the cameras intended to counter a speculative threat? What is its field of view? Is it mainly trained on the Yellow House's doorstep and only captures the street as a background, or does it focus on the street? Is the camera's field of view masked off as far as possible to exclude public spaces? Does the camera record continuously, or is it only activated for certain events like when a doorbell is rung or when someone enters the Yellow House property? Does the camera also record audio? All of this is important because it factors into a legitimate interest balancing test. Maybe the Yellow House camera is more like the Ring Doorbell in the above case where the incidental capture of passer-bys was found to be acceptable, maybe it is more like the Driveway Camera that served no legitimate interest. There is no absolute right to be free of all surveillance. Instead, the interests and rights of the Green and Yellow house residents must be balanced appropriately. Where there is surveillance, it must be limited to what is necessary. | (Assuming the jurisdiction is the US.) Your question I was wondering whether there are any limitations on using photos of private individuals on websites. is the least of your potential problems. Photos of the public taken in public are mostly legal to use and publish, and you own the copyright on the photo, and generally don't need a model release. But your plan of posting the photo with accompanying information about (alleged) fraud: There's a fraud conducting business in my state and I want to create a website that warns others of his fraudulent practices. is potentially legally problematic. As phoog indicates in his comment, you need to be aware of defamation, both at the federal level and among states, as some have criminalized defamation (Wikipedia). Libel is the publication of provably false facts by one person about another person. For a full outline of defamation (libel and slander, and including private and public figures), see Libel and Slander | Nolo.com. What you want to do is publish "facts" about this alleged fraud on the website with a photo of the individual, linking the fraud allegations to them. That is potentially libelous. The facts of the fraud may be provably true, or they may be provably false; that remains to be seen. But the facts don't matter when considering what actions the person can take against you if you publish such information on your website. If this business and the individual(s) feel they are not committing fraud, they can sue you for libel in civil court, alleging that you have damaged their reputation and impacted their business by publishing those facts on your website with the photo identifying the person and their business. If they take legal action, and you can prove the business and the individual(s) are committing fraud with provable facts - hard evidence of fraud, such as legal documents and court judgments - than you should (no guarantees) be able to successfully defend yourself in a libel suit brought against you by that person. Even if the business and the individual(s) are aware of facts that prove their fraud, and know they will probably not prevail in court, they can still take you to court, and it will cost you whatever time and money it takes to defend yourself. My responses above concern what legal actions the alleged could take against you if you published the website with the photo and information about the alleged fraud. No one here is advising you to put up the website with the photo and the "facts" as you see them, even if you have hard proof of the facts of the fraud; you should find legal representation before taking any action with the website. And, no one here is advising you to open any legal action against the person; that's your choice in terms of determining your case and if you can show actual harm that was caused by the alleged fraud by the individual, and you should find legal representation before taking any action. | TSA states TSA does not prohibit photographing, videotaping or filming at security checkpoints, as long as the screening process is not interfered with or sensitive information is not revealed. Interference with screening includes but is not limited to holding a recording device up to the face of a TSA officer so that the officer is unable to see or move, refusing to assume the proper stance during screening, blocking the movement of others through the checkpoint or refusing to submit a recording device for screening. Additionally, you may not film or take pictures of equipment monitors that are shielded from public view. Since it is not forbidden, the law doesn't directly say anything: your right to photograph and the absence of any prohibition from the 1st Amendment. So they may not punish you at all for photographing them. | Facebook can continue to gather and exploit data, modulo the requirements of COPPA, because it does not depend on obligating a minor to do something, such as pay money or dig a ditch. In general and because of copyright law, nobody has the right to use anything that Facebook provides unless Facebook grants the user permission. The user has no obligation to provide anything to Facebook – if it did, the minor would arguably be exempt from that obligation. | You might be able to use a site like the Internet Archive to preserve the TOC even after the site is shut down. The real liability trap here is if the site does not have the authority to give you this license. If a user uploads a photo that they do not own, and you use it, you are infringing the copyright of the original owner. Innocent infringement is not a defense to liability (although it may reduce damages in some cases.) | can you hire a witness as your lawyer to exclude their testimony? That is pure fiction and misleading. Unfortunately scenes like that contribute to keep people ignorant about the law, which then makes it easier for courts to dissimulate their recurrent miscarriage of justice. But Purdue University v. Wartell, 5 N.E.3d 797 (2014) is an example where the Indiana courts did the right thing, and is pertinent to your question. There, Purdue University first assigned an investigator in regard to plaintiff's grievance, and thereafter the University tried to withhold information under pretext that the investigator was also its lawyer and thus that the information was protected by the privilege. Because that person hitherto had been portrayed only as an independent investigator, the Indiana courts concluded that Purdue University was estopped from invoking the attorney-client privilege (as well as the work-product doctrine). Thus, the guy in the film or series who said to be "screwed on Kardashian" reflects pure cluelessness about how the law supposedly operates. I have not seen the plot of that film or series, but the information that the friend-lawyer obtained prior to becoming O.J.'s attorney would not be protected by the privilege because it was not obtained in preparation for O.J.'s defense. If there were one star witness on the opposing side and they happened to be a lawyer, could you simply pay them off by hiring them as your lawyer? This question is somewhat unclear to me, but I will mention that lawyers have a duty to disclose to their potential or actual client any conflict of interests. The rules of so-called "professional conduct" discourage lawyers to ignore conflict of interests in that this conflict may impair their "services". And, as I explained previously, any information that a lawyer obtains as witness rather than as attorney in the matter is not protected by the privilege. Thus, as for If you committed a crime at a law-firm and everyone who witnessed it was a lawyer, is there any rule preventing you from just hiring all of them? the answer is: Nothing prevents the criminal from hiring all of them, but that information is not protected. | PIPA has a dispute resolution process. See page 39 of the guidance document. The judge in your current case may have the power to award you damages under PIPA, but most likely not. You are probably best served by using the information as evidence that the guy is a bad person, has little regard for the laws, openly defied PIPA, etc. However, if he's smart he will say that you consented. Look at pages 5 and 6 of that document that you linked to. Unless you protested when you handed him your license and watched him photograph it, it's hard for you to say that you did not provide implied or verbal consent. This is especially true when coupled with the PIPA dispute resolution which start with you attempting to resolve this issue before filing a complaint. In summary, it might help you demonstrate a pattern of bad behavior but your current legal dispute is not the place to resolve your privacy issue. |
Can a breach of contract lead to a lack of "personal jurisdiction?" Plaintiff and defendant sign a contract. Plaintiff then sues defendant in say, New York state, for breach of contract. Defendant (a corporation) claims it never did business in New York state, and that the New York court does not have jurisdiction. This is literally true because defendant did not perform its obligations under the contract. Had the defendant performed those obligations, it would have done business in New York. The contract does say that it will be governed by New York law, but does not specify that disputes must be litigated in New York. The plaintiff is domiciled in New York and the contract was signed in New York. The defendant is a foreign company. Let's say that the contract is for delivery of imported goods at New York harbor. Can such a plea hold up? Or is it a case of "unclean hands'? | No, New York would have jurisdiction. NY CPLR § 302 (2012) (New York's "long-arm statute") states that: As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: transacts any business within the state or contracts anywhere to supply goods or services in the state ... The Supreme Court has upheld a similar long-arm statute (giving Florida jurisdiction over anyone breaching a contract within the state) in Burger King v. Rudzewicz, stating that: A forum may assert specific jurisdiction over a nonresident defendant where an alleged injury arises out of or relates to actions by the defendant himself that are purposeful [sic] directed toward forum residents, and where jurisdiction would not otherwise offend "fair play and substantial justice." This would appear to fall under that reasoning: the defendant purposefully signed a contract in New York with a New York company to do business in New York, and litigating the case where they'd agreed to do business, but failed to, would hardly offend fair play or substantial justice. | Bob has to sue in a court of competent jurisdiction To enliven jurisdiction, there has to be some connection between the parties or the event and the jurisdiction. Since Bob, the manufacturer and (presumably) the harmful incident all took place in County X, of State Y or Country A then they are the only jurisdictions that might be competent. The courts of County Z, State M or Country B are all going to say "not my problem". For the USA, there are only State courts and Federal courts. States may have courts that are called county courts but they are enlivened by the state sovereign - counties and cites are self-governing administrative districts, not sovereign states. Federal courts have jurisdiction where the subject matter is about a Federal Statute, the Constitution or a treaty. This dispute would appear to be based on tort or contract law which is a state matter. Federal courts can have jurisdiction if the parties are in different states and the amount in dispute is more than $75,000. This would not appear to be the case. So, as a state matter, the plaintiff can bring the case to any competent court. The defendant can apply to have it moved to a more convenient court. Arguments will be heard and, at some cost, you'll probably end up where you should have started. | For a contract (including ToS) to be valid, one of the things it must have is "legality of objects". That is, if the contract purports to require anything that is unlawful in the jurisdiction then (barring a severance clause) it is not a contract. In common law countries, the starting point is that people are free to contract for and about anything they like - a contract is simply a mechanism for exchanging value between the parties on whatever terms they wish. However, judges and legislatures have decided that there are some things you cannot trade and some terms that are unconscionable or against the public interest and these vary from jurisdiction to jurisdiction*. For example, a contract is not legal in any jurisdiction if its terms seek to exclude the intervention of the courts - this is against public policy. So for example, a binding arbitration clause requiring the parties to accept a private arbitrator's decision as final excludes the courts, yes? Well, in Australia, yes, such clauses if used in a contract between parties with different bargaining power (like a Telco and its customers) are invalid because they prevent the weaker party pursuing a class action. However, they are perfectly legal in the United States because the SCOTUS has determined that the customer can persue litigation after arbitration is finished so this doesn't impede the courts. These are essentially the same laws interpreted by the courts so that they have totally opposite effects. So this might lead you to think that you'll put one in - it'll be OK in the US and Australians will represent such a tiny share of your market that you don't care if I can't enforce my ToS there. Except, if your website is visible by Australians, you have just exposed yourself to a government fine of up to AUD 5,000,000 (say USD 3,000,000) per day for breach of Australian Consumer Law. As a general guide (which is very stereotypical), US jurisdictions are the most permissive in the rights they will allow their citizens to give up: the US attitude is that everyone is free to make the best deal they can. European jurisdictions are the least permissive in this regard: most European countries follow a more social welfare state model and the citizen needs protecting from themselves. Commonwealth countries tend to be more in the middle. | The fact that you're not a native speaker of English doesn't alter the legal situation. If you literally had no understanding of English but for some reason you signed a piece of paper, then you might argue that there was no agreement in the first place, but obviously you do speak some English. Most people don't actually understand what contracts mean (on both sides). Contracts are still enforced, based on what the contract says. The move-in data is proposed, not firm, and it even indicates what the charges are if your circumstances change and the dates have to change (whereas is their circumstances change, they wouldn't have a basis for charging extra). It also does say that there will be no refund if you change your mind. So the piece of paper says "No refund". The problem seems to be that there's an "agent" whose statements you relied on, who is ultimately responsible for this problem, and s/he implied that you could get a refund. It's not clear what kind of "agent" this is (is he working for you, or for the owners?). You'd have a somewhat different legal basis depending on which it is, but you could sue someone in either event, assuming that you could actually persuade the court that you were given false information which you relied on. The statement "they will refund your money if the guy doesn't move out by the 16th" is false; the statement "they may refund your money if the guy doesn't move out by the 16th" is true. If the latter was the statement that you relied on, then you knew (or should have known) that that isn't a promise, it's just a guess, and if you read the piece of paper you know that it's a promise with no basis. So I would say it comes down to establishing what promise was made to you. Arguing that the agent "made" you sign isn't going to get you anywhere (unless you can prove actual coersion). | I'm confident that there has been no successful breach of contract lawsuit on that basis: that is not the right legal basis. Actions against a shoplifter would either be under tort law or, much more likely, criminal law. Put simply, theft is a crime, encoded in the laws of all nations, and the government will shoulder the burden of punishing a shoplifter. Since the goal of criminal law is to guarantee a well-ordered society (not to restore the victim of the crime), a victim of theft may have to pursue their own legal case against the criminal, if they want to be restored for their loss (let us say that the criminal also ate the evidence). | The company can't force you to settle out of court. But if it pays you what it says you owe it in an unconditional payment, it can cause your claim to fail on the merits at trial for a lack of damages. A company might want to do this to avoid the collateral estoppel consequences of a judicial determination of your liability. The doctrine of collateral estoppel would make judicial determinations on the merits on particular issues resolved in the case against it binding on the company in future lawsuits against other plaintiffs. A company cannot simply pay to defeat a claim on the merits, however, in a class action suit, without paying all of the amounts owed to all members of the proposed class. Some states also have procedural penalties such as costs or attorney fee shifting when a settlement offer is refused and the outcome at trial is not significantly better than the settlement offer, but I don't know if Florida has such a provision. If it did, your net win could easily be converted to a net loss. | Absent newly enacted law in response to the end of the separate sovereigns doctrine, the first case to which jeopardy attaches (generally speaking when a jury is sworn and the first item of evidence is presented to it) would bar subsequent prosecutions, without regard to whether it arose in state or federal court. It would be a race to the court house rule. This is how it works if there are multiple prosecutions within a state, for example, one commenced in a municipal court that is not part of a state court system, and another commenced in a state court of general jurisdiction. | Does Bob have a case/standing? Yes, this is a reasonably straightforward contract dispute. Once you contract to do something and you then don't do it, you are liable for damages. Contractual damages are assessed on an expectation basis - the innocent party is entitled to be placed financially in the same position as though the contract had been completed without the breach. Bob is entitled to have the item and not to be out-of-pocket more than he agreed to pay. But ... There may not be a contract - see What is a contract and what is required for them to be valid? A contract is formed when the parties reach an agreement and most website terms and conditions are clear that this is NOT when the customer pays for it. For example, Amazon says: The Order Confirmation E-mail is acknowledgement that we have received your order, and does not confirm acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product to you and send e-mail confirmation to you that we've dispatched the product to you (the "Dispatch Confirmation E-mail"). So, here, two things have to happen before Amazon and you have a contract: they have to physically dispatch the goods and they have to send you an email saying they have. If they do one without the other, there is no contract. If your vendor has similar terms, you don't have a contract with them and are not entitled to contractual damages. You would not have a case in equity because they were clear that there was no contract until these things happened. You might be able to argue negligence if they sent the email without dispatching the goods but your damage basis would be different. Tort damage is calculated on a restoration basis, not an expectation basis, so you can recoup your losses but not claim any lost profits. It makes no difference here but if you had had a buyer who was going to pay you twice the price you paid, in contract you are entitled to the lost profit, in tort, you aren't. However, if the contract has a dispute resolution clause, that would normally have to be complied with before you can go to court. In some cases, this may prevent going to court at all, for example, if the dispute resolution clause included binding arbitration or expert determination. If there is a choice of law clause then this will usually be binding, however, if this is a consumer contract in New Zealand then NZ consumer law will apply in addition. Similarly, courts will usually observe a choice of venue clause. With what reasonable time lapse between (false) shipment notification of the original order and placing the eBay order? A reasonable time. Depends on what the product is and what normal delivery times are. For a 5mm screw, a reasonable time is probably measured in months. For an aircraft carrier it's probably measured in decades. Does this sort of a claim fall under the jurisdiction of small claims court (given that the amount is less than the threshold)? Neither New Zealand nor England & Wales (bearing in mind Scotland and Northern Ireland are different jurisdictions) have small claims courts. The correct venue in New Zealand is the Disputes Tribunal which is not a court, and in England and Wales it is the County Court. Procedurally, would it be more advantageous for Bob to file the claim in the UK or in New Zealand? Ask a lawyer in each jurisdiction. Now Bob wants to claim damages from the store in the amount "Total for the eBay order less total for the original store order" — on top of full refund of the original order. Bob is not entitled to a refund. He is entitled to damages. A more accurate way to state the damages is the total for the eBay order and to not make any mention of a refund. |
In the US, what kind of lawyer represents the government in court? Just want to know whether the government has a special lawyer or something like that. | It depends on the situation In a criminal case When the government is prosecuting a criminal case, they are represented by a prosecutor. For a federal case, that prosecutor would be a United States Attorney or Assistant United States Attorney (AUSA). For a state case, they'd be a District Attorney, Deputy District Attorney, or Assistant District Attorney. In civil cases Generally, the Federal government would be represented in civil cases by lawyers with no special title. In many cases, these would be lawyers working for the Civil Division of the Department of Justice, but other agencies also have lawyers to represent them in more specialized litigation—for example, the IRS Chief Counsel's Office. A state government would be represented in civil cases by lawyers from the state Attorney General's office (here is California's, for instance). Before the Supreme Court When the Federal government is before the Supreme Court, they are represented by lawyers from the Office of the Solicitor General. That could be the Solicitor General themself, a Deputy Solicitor General, or an Assistant to the Solicitor General. In cases where the government is not a party, the office may be asked for its input on a case by the Supreme Court via a Call for the Views of the Solicitor General. | I'm not familiar with the lawsuit, but generally speaking, a court's finding that a lawyer falsified evidence would not directly result in the lawyer being disbarred, as the trial court does not have authority to regulate the practice of law. Instead, a court that reached that conclusion -- either by a verdict, or because a judge was persuaded by the evidence without reaching a verdict -- would likely report that outcome to whatever organization is responsible for licensing attorneys in that jurisdiction. | The relevant law for you is ORC 4705.07. (A) No person who is not licensed to practice law in this state shall do any of the following: (1) Hold that person out in any manner as an attorney at law; (2) Represent that person orally or in writing, directly or indirectly, as being authorized to practice law; (3) Commit any act that is prohibited by the supreme court as being the unauthorized practice of law. (This is a prime example of legal language that cannot be interpreted on the basis of rules of English -- the issue is the meaning of "that person"). This does not prohibit you from giving an opinion as to what the law is, which is a right protected under the First Amendment. You would be in trouble if you said "This is my advice as a lawyer". Section 2 b.t.w. says that only the Supreme Court (of Ohio) can determine if a person has committed an act on their don't-do-it list. Rule 7 pertaining to their procedure is here. Section 2 therein enumerates the relevant categories, which fall under the categories "rendering of legal services for another" and "Holding out to the public or otherwise representing oneself as authorized to practice law in Ohio", which is what the statute says. | This appears to be a complaint about lawyers using the legal process to achieve what their client wants. Forgive me, but this seems to be like complaining that doctors only want to cure the client's disease, architects only want to design the client's buildings and generals only want to kill the client's enemies. Your lawyer is not your business strategist or your life coach! A civil case is always about the money. If you are pursuing a civil case over a principle then you are going to spend a lot of money and probably lose. The use of a lawyer should always be part of your wider negotiation strategy in the same way that your armed forces are part of your diplomacy; in both cases the threat of use is usually better than the actual use. A civil case always follows a failure to successfully negotiate. Not all by any means, but most, civil cases would be better settled by agreement than litigation by all parties. If you believe that your objectives can best be served by a social media campaign, political pressure, etc. then go for it. Your lawyer can advise you what the risks are wrt to defamation etc. but ultimately how you choose to pursue your goal is up to you. Lawyers, understandably, look for legal solutions. A public relations professional is far better placed than a lawyer to inform your media strategy. | The lawyer referred to in that article is suing in his capacity as the recipient of spam emails under California's anti-spam law. Not every jurisdiction has a law like this. I'm from Australia. In Australia, when we make laws prohibiting something, the law usually appoints a government agency to administer the law and bring prosecutions under it, and fines are paid to the government. In contrast, America has a lot of these laws where affected individuals can sue and collect the fines personally. So under the Californian law, you can get $1,000 per email for particular kinds of spam even if you haven't actually suffered any real damage: California Business and Professions Code s 17529.5(b)(1)(B)(ii). How? You need to work out who sent the spam, get evidence to prove it, and file a claim in a Californian court. Apparently you can sue in small claims court, which saves you on filing fees. It helps if you have many email accounts, because then you will receive many emails and therefore can collect many fines. One of that lawyer's wins was in Balsam v Trancos (2012) in the Californian Court of Appeal. Another example of a judgment discussing the Californian anti-spam law is Bontrager v Showmark Media. | For Mr. Petersen, the questions in general should have been elementary. The fact he did not know them is actually quite deplorable. To your questions specifically: Should Mr. Petersen, as a Juris Doctor, know of those things in his sleep? This is the wrong question. The question is: should an individual who has accepted a nomination to serve as a federal judge on the U.S. District Court know of those things in his/her sleep? The answer is unequivocally yes. One could almost argue - one would likely be scoffed at, but one could - that an appointment to a higher court, the U.S. Circuit, could get away not knowing those things 'in his/her sleep,' because appeals courts would not deal with, e.g., abstention doctrines or whether to admit expert scientific testimony, as often as a trial court does. Simply put, lawyers should at least have heard of those things (he looked/sounded absolutely dumbfounded at the words that were being said to him), litigators should know them, and federal trial court judges absolutely need to know those things to do the job. Is his excuse valid when he says that he has no background in the field(s) (he mentioned litigation once) the terms are corresponding to? If he was just some lawyer talking to some guy at a bar, sure, totally valid. If someone is a corporate M&A or project finance attorney, sure, don't expect him to win any trial court vocabulary contests. However, when sitting before a panel of U.S. Senators carrying out their Constitutional duties of "advice and consent" on presidential appointments, not knowing those things can, should, and indeed did end in complete humiliation for the person ignorant enough to try and go through with that. I'm sure his hearing was scheduled some time in advance. The fact he obviously made zero attempt to know anything is actually insulting to everyone involved. For context, I wrote a motion in limine at my first internship. If I live to be 1,000 and never step foot in a court room, I'll still be able to say more about a motion in limine than "I would probably not be able to give you a good definition right here at the table." | Private prosecution is allowed in New Zealand, so one possibility would be to conduct the prosecution yourself. You could either do that as a case of destruction of property, or under the Animal Welfare Act. It is not guaranteed that your charging document will be accepted (for example, if your document lacks the required content). An alternative would be to apply political pressure to the Crown Law Office, to persuade them to pursue the matter. | Jurist (in the American sense) means a lawyer, judge, or other expert in law. From Google Search: |
Can a law enforcement officer temporarily 'grant' his authority to another? The emergency services dispatch of Small-town, USA receives a call from a citizen near city limits. The citizen placed the call after he drove past a roadkill deer off to the side of the road. It is clearly mortally wounded, and will not survive, but was not killed in the impact, and is slowly dying. To my knowledge, a LEO is the only one with the authority – save a wildlife related authority – who could discharge a firearm for the purpose of euthanizing a wounded animal. So my question here is: Can an officer legally authorize the citizen to shoot the animal instead? (Since the call is so far out it may not be worth the police resources if there are other calls to handle.) If so: Does this apply to dispatch as well? Can the officer allow dispatch to tell the citizen that he has permission? | Short Answer This is governed by state law (for state law enforcement officers granting this authority) or federal law (in the case of authority granted by a federal law enforcement officer), so the details may vary from case to case. In many circumstances, however, a law enforcement officer has the authority to temporarily 'grant' his authority to another private citizen in order to deal with a specific incident. When this is done one says that the law enforcement officer "deputized" the person who was given this authority. Long Answer The Power To Deputize Civilians Most states have statutory circumstances under which certain kinds of law enforcement officers can deputize a non-law enforcement officer to carry out a law enforcement function under the supervision, direction and control of a law enforcement officer, on an incident by incident basis. For example, if a single sheriff responds to a bar fight with several people who need to be arrested, under most state's law, the sheriff could authorize a bouncer or patron at the bar who wouldn't have the power to make a citizen's arrest under the circumstances (e.g. because the patron arrived at the scene after the alleged fight took place) to detain a suspect whom the sheriff has the power to arrest, until additional law enforcement personnel can come to the scene to assist. Colorado Revised Statutes § 16-3-202 is typical of such a statute. It states: (1) A peace officer making an arrest may command the assistance of any person who is in the vicinity. (2) A person commanded to assist a peace officer has the same authority to arrest as the officer who commands his assistance. (3) A person commanded to assist a peace officer in making an arrest shall not be civilly or criminally liable for any reasonable conduct in aid of the officer or for any acts expressly directed by the officer. (4) Private citizens, acting in good faith, shall be immune from any civil liability for reporting to any police officer or law enforcement authority the commission or suspected commission of any crime or for giving other information to aid in the prevention of any crime. Further, another Colorado statute provides that "conduct which would otherwise constitute an offense is justifiable and not criminal when it is required or authorized by a provision of law or a judicial decree binding in Colorado," including laws "defining duties of private citizens to assist public servants in the performance of certain of their functions." Colorado Revised Statutes § 18-1-701 (in pertinent parts). The exact details of how someone is deputized, who may deputize someone, and what authority this conveys varies in detail from state to state. Also, often this is done piecemeal, rather than globally, or is implied in part under common law agency principles. The power of a law enforcement officer to deputize someone to kill a dying deer hit in a car accident is likely to be in a different statutory section than the power of a law enforcement officer to deputize someone to make an arrest. People who are deputized by a law enforcement officer in this fashion are collectively called a posse. The posse was heavily used in rural areas and frontier areas into the early 20th century, but this authority is now, while still utilized, much less commonly used, and less familiar, especially in urban areas with large professional police departments. In these areas, it is more common for police to resort to mutual aid agreements with regional law enforcement agencies to seek reinforcements who are law enforcement officers at some other agency, rather than seeking help from private citizens. Other Solutions Often, conduct that literally fits the definition of prohibited conduct, like possession of a wildlife carcass without a license, is resolved in regulations or definitions in a statute or regulation that exclude the conduct in question from what is prohibited. For example, in Colorado, the definition of hunting, which is what you need a license to do, is defined in such a way as to exclude road kill related incidents. See, e.g., Colorado Revised Statutes § 33-1-102(25.5), (29) and (43). The Legal Doctrine Of Reliance On Official Authority There is also another legal doctrine that can make it possible to achieve almost the same result. As a matter of U.S. Constitutional law, the U.S. Supreme Court has held that a criminal defendant may not be punished for actions taken in good faith reliance upon authoritative assurances that the defendant will not be punished for his actions. See U.S. v. Laub, 385 U.S. 475 (1967); Cox v. Louisiana, 379 U.S. 559 (1965); and Raley v. Ohio, 360 U.S. 423 (1959). For example, suppose that a 911 dispatcher tells a passing motorist that she has the authority to authorize the motorist to shoot and kill the deer because she is deputizing the motorist to do so, and that the applicable state law actually provides that a private citizen may be deputized to euthanize a deer struck in a car accident when a law enforcement officer deputizing the citizen is physically present. Despite this fact, if the motorist has no reason to believe that the dispatcher doesn't have this authority (even though the dispatcher does not have this authority under state law), the motorist is immune from criminal liability for shooting a deer out of season without a license pursuant to the U.S. Supreme Court cases cited above. And, while the dispatcher's conduct may have technically violated state law by directing someone to violate the law under circumstances when the dispatcher did not have the authority to do so, the District Attorney is likely to decide that this technical violation of the state's hunting laws by the dispatcher, whether or not the dispatcher knew that the dispatcher did not have the authority to deputize the motorist, is not an offense that warrants prosecution. Indeed, prosecutors routinely overlook technical violations of the law by law enforcement officers who are carrying out their duties in good faith or for other non-selfish reasons (e.g. out of a desire to treat the downed deer humanely without diverting law enforcement resources urgently needed elsewhere at the time). | The legal question here is whether police have an enforceable power to enjoin a person from visiting a particular person or from entering a particular jurisdiction (especially the one where they have police powers). The obligation to obey police orders generally ends at matters regarding arrest, traffic orders, or crowd control. Freedom of travel is a fundamental constitutional right, along with freedom of association. That does not mean that you can go absolutely anywhere you want and do anything you want with whoever you want, but it does mean that any restriction have to be encoded in law, and such laws have to pass strict scrutiny. Any enforceable legal restrictions would have to emanate from the courts. | In general, police have no special protection from being recorded; if it is legal to video or audio record a person in that jurisdiction then it is legal to record a police officer in that jurisdiction. Anything that it is legal to do with the recording of a person is legal even if that person is a police officer. As to if it is legal to record a person see: Is it legal to post a photograph that I captured of a stranger in the street? Model release for image without faces How do laws affect photography of non-humans in public when people may be in the frame? What are the legal repercussions of taking a stranger's picture in public? What is considered "public" in the context of taking videos or audio recordings? | united-states It is not required for a person to formally assert a fifth- or a first-amendment right when questioned by the police. One can simply be silent, refuse to answer any questions, without giving any reasons. But probably more effective and just as legal is to say "I won't answer any questions until I have talked with a lawyer. I want a lawyer, now." That is perhaps less likely than using the words "plead the fifth" to be assumed to be a confession of guilt, although some people and some police may take almost anything as a confession of guilt. By the way some of the points you distilled from the video (which I have not watched yet) are correct, some are half-truths, and some are quite incorrect. For example: The 5th amendment was not designed as a shelter for the guilty (despite it often being used as such). It was designed to help prevent you from unknowingly incriminating yourself. As a matter of history, this is quite incorrect. It arose historically out of a reaction to government procedures deemed oppressive. See https://law.stackexchange.com/a/63690/17500 for more detail. But helping people avoid unintentionally incriminating themselves is one of its major current functions. You can't talk your way out of getting arrested. Sometimes you can, but it is never safe to count on it. You can't know in advance if it will work, and more often than not it doesn't. Everything you tell the police can be used against you but not to help you. Not quite. If your statement is recorded, as is likely nowadays, the whole statement must be given to your lawyer and entered into evidence if you are eventually charged. (See Brady vs Maryland) Things said in your own favor may be discounted as self-serving, but the judge and jury will still hear them. But they can be very risky. | Try the phone or email contacts at Florida Department of Law Enforcement - Home. The state of Florida doesn't appear to maintain a statewide officer registry, but that department should be able to verify someone is or isn't a officer in conjunction with the police department closest to your location. If this neighbor is threatening or attempting to enforce the law while not showing ID that proves he/she is an officer, that's serious, and you should call the local police department. Talking about being a LEO while drinking beer at a BBQ is less serious, but still could be a third degree felony. See Statutes & Constitution - Florida State Statutes: 843.08 False personation.—A person who falsely assumes or pretends to be a firefighter, sheriff, officer of the Florida Highway Patrol, officer of the Fish and Wildlife Conservation Commission, fire or arson investigator of the Department of Financial Services, officer of the Department of Financial Services, officer of the Department of Corrections, correctional probation officer, deputy sheriff, state attorney or assistant state attorney, statewide prosecutor or assistant statewide prosecutor, state attorney investigator, coroner, police officer, lottery special agent or lottery investigator, beverage enforcement agent, or watchman, or any member of the Florida Commission on Offender Review and any administrative aide or supervisor employed by the commission, or any personnel or representative of the Department of Law Enforcement, or a federal law enforcement officer as defined in s. 901.1505, and takes upon himself or herself to act as such, or to require any other person to aid or assist him or her in a matter pertaining to the duty of any such officer, commits a felony of the third degree, | If someone attacks your dog, or the dog of a third person, you may use force to defend property rights, see ORS 161.205 and ORS 161.229. This does not apply to a person attacking their own animal. Force may also be used to effect an arrest by a private person (ORS 133.225) – you "may arrest another person for any crime committed in the presence of the private person if the private person has probable cause to believe the arrested person committed the crime". You would need to study up on ORS 167.320. Assuming that the abuse is less than causing death, for first degree animal abuse, it is when one "causes serious physical injury to an animal". The child actually becomes relevant because the misdemeanor becomes a felony when The person knowingly commits the animal abuse in the immediate presence of a minor child. For purposes of this paragraph, a minor child is in the immediate presence of animal abuse if the abuse is seen or directly perceived in any other manner by the minor child. So in fact, no amount of force can legally be used to prevent a person from hitting their dog. Force can be used to arrest a person (which prevents any further beating), if the person causes serious physical injury to the dog. | The standard for stopping someone and requesting their ID under the limitations in the U.S. Constitution is "reasonable suspicion." For example, if the officer has a reasonable suspicion that you are taking pictures for the purpose of a secure location for purposes of espionage, or to case the location for a future crime, reasonable suspicion is probably present and you can probably legitimately be asked for you ID. A creative and intelligent officer can almost always conjure up some reasonable suspicion in the situation that you identify to question you and demand ID. For example, she could state that no one else has taken a picture of that location in weeks and that is is very unusual behavior, that your demeanor or the time of day you were present doesn't seem to be that of someone taking a picture for artistic or journalistic purposes, that you seemed nervous, that a previous criminal engaged in similar behavior before committing a crime fourteen years ago, that a confidential informant (e.g. a nosy neighbor) advised him that there was someone engaged in suspicious behavior at that location, that she read in a police anti-terrorism bulletin that terrorist favor that model of camera, etc. The nature of the suspicion doesn't have to be shared with you until you challenge it in court. A dumb cop won't come up with any colorable reason, demands ID for a stated reason ("before you have to do whatever I say") that is inaccurate, admits he has no reason to stop you in a conversation captured by a body camera, and doesn't come up with pretext after the fact before going to the court. In that case, the stop is a de minimis violation of your civil rights justifying a nominal damages award of $1 to you and your attorneys' fees and costs and maybe a consent decree ordering the agency not to do that in the future. | Questions about whether a certain action is "just" tend to be maters of opinion, politics and philosophy, but it can be addressed from the perspective of legal theory (especially following the model of common law, where legal principles are based on concepts of just and proper action). Whether or not a certain action is actually legal in a certain jurisdiction depends on the laws of that country -- I suspect that the answer is different for the US versus China. The first question would be whether those government officials have the legal authority – I assume they do. Such authority is generally governed by some specific circumstances, for example, "poses an imminent and grave threat to public health". It is basically not a legal question whether quarantining in the face of this viral threat is necessary from a public health perspective, that is a medical question. What the law would say is that if this is a serious threat, then a person's liberty can be curtailed to a limited extent, because a person does not have the right to harm others because they don't want to do some thing that protects the rights of others (be vaccinated, stay in quarantine until it is safe). However, principles of legal justice also say that the government's response should be proportionate, e.g. shoot-on-sight in response to a sneeze is not proportionate. Quarantining has long been recognized as a valid, just and legal response to such extreme medical threats. Historically speaking, quarantining used to be the only effective action that a government can take against e.g. smallpox, plague, Spanish flu, Ebola. |
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