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Legalistic reading of passport Law https://www.law.cornell.edu/uscode/text/18/1543 Whoever willfully and knowingly uses, or attempts to use, or furnishes to another for use any such false, forged, counterfeited, mutilated, or altered passport or instrument purporting to be a passport, or any passport validly issued which has become void by the occurrence of any condition therein prescribed invalidating the same— Shall be fined under this title, imprisoned not more than 25 years (if the offense was committed to facilitate an act of international terrorism (as defined in section 2331 of this title)), 20 years (if the offense was committed to facilitate a drug trafficking crime (as defined in section 929(a) of this title)), 10 years (in the case of the first or second such offense, if the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime), or 15 years (in the case of any other offense), or both. Taken literally, since fake passports are used as movie props, this means all actors and supporting staff should be imprisoned for not more than 15 years. In laws like this is there some implied clause that damages must be incurred or is using a fake passport implied to be ok if you say it is a fake passport? Because I dont see that stated literally. | The key word is "uses". What does it mean to use a passport? It means providing it as evidence of identity. No one acting in a movie is attempting to convince anyone else - in real life - of their identity with a simulated passport. Nor is anyone impersonating a police officer or kidnapping anyone or falsely accusing anyone in the normal process of making a movie. | Yes to attempted murder and conspiracy to murder. No to murder Although the particular example you raise looks like entrapment and law enforcement can’t do that in the United States. Putting that aside, factual impossibility is not a defense in common law jurisdictions. Conspiracy to murder someone who can’t actually be murdered (because they are already dead or, as here, don’t actually exist) is still a crime. Legal impossibility, however, is a defense. Something is legally impossible where it is impossible to meet one of the elements that define the crime. Most crimes require that something physical be done, for example, murder requires the perpetrator to kill the victim (among other things), so you can't commit murder on a dead or non-existent victim. However, crimes in the nature of "Conspiracy to X" or "Attempted X" often only rely upon intention even if it is impossible to do the thing intended. To illustrate the difference: if it’s illegal to smuggle cocaine across the border and I, being an idiot, get caught smuggling what I think is cocaine but is actually table salt, I’m guilty of attempted drug smuggling. This is factual impossibility but a legal possibility. I'm not guilty of drug smuggling because that crime requires that I actually smuggle drugs. This is both a factual and legal impossibility. if, however, the day before I do it, the law against cocaine is repealed, then whether I smuggle table salt or actual cocaine, I’m not guilty of either crime even if I think it’s still a crime. This is legal impossibility. | You've omitted a critical part of paragraph (b)(2)(C): make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony So if the crime in question is a felony, the agent does not have to have witnessed its commission; they only need "reasonable grounds to believe" that the person they're arresting did it. One possible felony that may come into play is 18 USC 1361: damage or attempted damage to federal property in excess of $1000 is punishable by up to ten years imprisonment. Anything greater than one year is a felony. | 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. | Aiden4's answer about Winconsin's statute 948.60 is correct, but incomplete and the complete reason is interesting/funny, so I'll expand on it: The statute reads: 948.60 Possession of a dangerous weapon by a person under 18. (1) In this section, “dangerous weapon" means any firearm, loaded or unloaded; any electric weapon, as defined in s. 941.295 (1c) (a); metallic knuckles or knuckles of any substance which could be put to the same use with the same or similar effect as metallic knuckles; a nunchaku or any similar weapon consisting of 2 sticks of wood, plastic or metal connected at one end by a length of rope, chain, wire or leather; a cestus or similar material weighted with metal or other substance and worn on the hand; a shuriken or any similar pointed star-like object intended to injure a person when thrown; or a manrikigusari or similar length of chain having weighted ends. (2) (a) Any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor. (b) Except as provided in par. (c), any person who intentionally sells, loans or gives a dangerous weapon to a person under 18 years of age is guilty of a Class I felony. (c) Whoever violates par. (b) is guilty of a Class H felony if the person under 18 years of age under par. (b) discharges the firearm and the discharge causes death to himself, herself or another. (d) A person under 17 years of age who has violated this subsection is subject to the provisions of ch. 938 unless jurisdiction is waived under s. 938.18 or the person is subject to the jurisdiction of a court of criminal jurisdiction under s. 938.183. (3) (a) This section does not apply to a person under 18 years of age who possesses or is armed with a dangerous weapon when the dangerous weapon is being used in target practice under the supervision of an adult or in a course of instruction in the traditional and proper use of the dangerous weapon under the supervision of an adult. This section does not apply to an adult who transfers a dangerous weapon to a person under 18 years of age for use only in target practice under the adult's supervision or in a course of instruction in the traditional and proper use of the dangerous weapon under the adult's supervision. (b) This section does not apply to a person under 18 years of age who is a member of the armed forces or national guard and who possesses or is armed with a dangerous weapon in the line of duty. This section does not apply to an adult who is a member of the armed forces or national guard and who transfers a dangerous weapon to a person under 18 years of age in the line of duty. (c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593. This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28. 2 things to note: (1) takes care to include, in the list of dangerous weapons: nunchaku, shuriken and manrikigusari. While the first 2 are more or less familiar to everyone knows anything about Japanese martial arts, the last one had to be looked up by everyone following the case to discover that it's the "secret weapon of the Ninja"(even more than the shuriken). (3.c) says that the whole of this entire section applies[adding the brackets to make following the formal logic easier] only if (the person under 18 is in violation of 941.28[barrel length under 16 inches]) or (is not in compliance with ss. 29.304[Restrictions on hunting and use of firearms by persons under 16 years of age] and 29.593[Requirement for certificate of accomplishment to obtain hunting approval]). In programming terms(for those so inclined), 3.C could be written as: IF ((barrelLengthInches < 16) OR (huntingUnder16Applies AND huntingCertificateApplies)) THEN statute948.60Applies ELSE statute948.60DoesNotApply Since the barrel length is over 16'' and Rittenhouse is over 16 and no hunting permit was required for his activities, the whole section of the law did not apply. Assistant District Attorney James Kraus argued that the exception renders the state’s prohibition on minors possessing dangerous weapons meaningless. In essence, that the legislators drafting that law spent too much time watching cheesy early 90's action movies and thinking of how to save Wisconsinites from the Ninja threat, to draft the law properly, so it should be read according to its intent from the title of the section. However, there is a binding Common Law precedent, dating back from the 16th century called the "Rule of Lenity", also called "Strict Constructionism" in the US, whereby if the legislature screws up, it's the legislature's problem. In the original case, the law in England forbade "felonious stealing of Horses, Geldings or Mares". A thief was caught, but argued that since he only stole one horse and the law specified horses, the law didn't apply to him. He was let off and the law hastily rectified. Pre-revolutionary Common Law precedent is binding in the US and it was re-affirmed multiple times, e.g. United States v. Wiltberger, where a US sailor got off with killing another US sailor in a Chinese estuary, because the law only applied on the "high seas". So, the charge was tossed and the defense didn't press the issue further. However, the really interesting bit is that even though it didn't get to be argued since Rittenhouse was 17, the way the law is actually written, this section only applies if (huntingUnder16Applies AND huntingCertificateApplies). That means that there is literally nothing in Wisconsin barring a 12 year old(under 12 is separately forbidden in the 29.304/huntingUnder16Applies section) from possessing and using an AR-15(or AK-47), as long as the barrel is >16'' and a hunting license isn't required for the activity. I think that the legislature will amend the law with haste, before it can be tested on 12 year olds. P.S. the other guy who gave him the gun will get off with this precedent too, since the statute for his charge is: This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28. i.e. the same 3 sub-sections as for Rittenhouse. | This article is from an official Emirates news agency, which confirms the change (Federal Law 12/2016). This is a change to Federal Law 5/2012, replacing Article 9 (the translation into English is odd because the verb phrase goes first). The level of the penalty has increased (minimum 150K → minimum 500K; maximum 500K → 2M). Incarceration is changed from "imprisonment" to "temporary imprisonment", which might mean that previously the term was life. In either case, they have an "and" problem that the punishment is "(temporary) imprisonment and a fine ... or either of these two penalties". Presumably the Arabic version is dispositive. Apart from that, the new version of the law identifies the offender as Whoever uses a fraudulent computer network protocol address (IP address) by using a false address or a third-party address by any other means for the purpose of committing a crime or preventing its discovery whereas the old law only said whoever uses a fraudulent computer network protocol address by using a false address or a third-party address by any other means for the purpose of committing a crime or preventing its discovery. Thus the meaning of "computer network protocol address" is defined as being equivalent to "IP address". In other words, there is no substantive change beyond the stiffer penalty. There does not seem to any provision allowing one to ask for exceptions. Article 30 of the underlying law strongly suggests that there is no exception and you should not ask. On a separate note, only Etisalat and Du are authorized to provide telecommunications services, pursuant to Federal Decree Law No. 3/2003. This article from August 24, 2015 also links to a number of related articles indicating that everything is illegal. | Chapter 26 section 7 of the Swedish Penal Code points to a possible consequence of prison escape: If the sentenced person seriously violates the conditions for the serving of the sentence in a prison, the date for conditional release may be postponed. Such a postponement may amount to at most fifteen days on each occasion of use. Aiding an escape is a specifically-identified crime, but apparently the act of escaping is not, though is would have a negative consequence (we would say that such a treatment is an "infraction", not a separate crime). This article in fn. 7 indicates that it is not a crime in Germany, and The Interwebs tells me the same thing. Mexican law explicitly declares that there is no penalty for prison escape (Article 154, with translation from here) To the prisoner that to escape (from prison) will not be given any penalty, except when it’s in complicity with one or more other prisoners and they perform violence on other people, in which case the penalty is six months to three years in prison. It is a specific crime in the US (governed by individual jurisdictions). The state of Washington in RCW 9A.76.110 makes general prison escape a class B felony. Adjacent provisions increase the severity of the crime if the person is a sexually violent predator (9A.76.115), reduces the crime if it is escape from detention (not pursuant to a conviction), and further reduces the crime if it is just escape from custody (e.g. escapes from the drunk tank). | 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? |
Is it legal to ask to be shot? Say I ask someone to shoot me non lethally. Not assisted suicide, Just shot. Is this legal? Isn't it like asking to be assaulted with a deadly weapon? | You may legally ask someone to shoot you, or do all sorts of other things to you. There are no laws against asking or various kinds of speech: laws restrict the doing. If you ask a person to shoot you and they do it, that person will probably be arrested for assault (or murder, depending on how it works out) – shooting a person is assault. A possible defense against an assault charge is consent, but that defense isn't freely available whenever a person says "I give my consent for you to assault me". You cannot consent to foreseeable serious bodily injury (more accurately, the law does not recognize such consent as valid consent). You can agree to be struck (in a boxing match) because such force is not serious bodily harm; and if unforeseeably serious bodily harm results, the consent defense is available. But if you ask a person to shoot you in the liver, they will be prosecuted for assault, because the resulting serious bodily harm is foreseeable. | Because your buddy routinely points loaded firearms at you First, you should probably get friends who don’t do this but, even though this is objectively a threat, you know that you are in no danger (barring accidents). Self-defence is not justified. This is why there is the dual requirement that the danger is clear to both: an objective observer, and the person under threat. | I'll preface this by saying I live in Australia where the lowest jurisdiction that can make an act a criminal offence is the state; local governments simply do not have that power here, Question 1: If I understand this right you have a law that you do not enforce that carries moderate sanctions and you are asking that a law that you do not enforce with greater sanctions will be a greater deterrent? Well ... no (see here). If you want to stop the behavior you have to enforce the sanctions that you have in a fair and impartial way. I would suggest that you make it very clear that starting in early September the laws will be enforced - that gives people fair warning. Then, each weekend in September you bring in enough police (State Troopers?) to enforce the law. Its not going to take many $250 fines to make people stop. Question 2: No comment. Question 3: No comment. Question 4: Sounds like a good way of getting the city sued for negligence; just because people are breaking the law does not make it legal to hurt them. If you are serious then fencing the entire area may be worthwhile but the area would still need to be policed. | Yes, this would be legal self-defense. But, in practice, mass shooting events are usually too quick to allow anyone to make a booby trap. For example, a mass shooting event in Denver and Lakewood, Colorado this week lasted just 47 minutes and took place at seven distinct locations which no one but the shooter could have predicted in advance, spread over a dozen or so miles, with no more than five or ten minutes of activity in any one place. | Ethics and morality aside, does the situation cross over into a general legal understanding of extortion? No. Extortion necessarily includes coercion. An offer to tell what is wrong (and from the point of view of the target — only allegedly wrong) is neither threat nor force, therefore no coercion. It would have been coercion (and therefore extortion) if the guy said along the lines "If you don't pay I will exploit the vulnerability, and/or tell a bunch of bad guys about it — they will be sooo thankful to me". Provided that the guy does not say/imply he will do something if not paid, there are no legal issues here. | If you wrote for example "I had thoughts about taking the axe from my garage and decapitating my neighbour", and your neighbour read that, he would reasonably be worried and contact the police. I would take that as a death threat, and the death threat is by itself illegal. There would be some range where I could claim that you were making a death threat and making excuses to avoid legal responsibility. You can have all the thoughs you like, you can write them into your private diary where nobody can read them, but as soon as you publish it, it becomes "speech" and some speech is illegal. | Sending a letter to the Governor is legal You can do it, I can do it and the elected officials of Lancaster County can do it. Thanks to the first amendment, that letter can say pretty much anything you like subject to limits that themselves are subject to strict scrutiny - things like threats and defamation. Outlining a course of action that you propose to take is legal even if that course of action is itself illegal. I will also point out that people - sometimes even politicians - have been known to say things they don't mean. However, that just begs the question ... This article explains what's going on and, more importantly, the actual letter is here. I've read it. Twice. I can't see where the county proposes to do anything concrete that might be considered illegal. Apart from the first paragraph, the entire letter appears to be a case for why the county should be permitted to move from red to yellow on May 15 and they are asking for the Governor's support. Even the first paragraph is ambiguous; while it asks the Governor to move the county from "red" to "yellow" and states that they "intend to move forward with a plan" it is by no means clear that that plan is moving from "red" to "yellow" even though you could get that impression on a casual reading. Basically, what they intend to do is so vague that it's impossible to tell if it's legal or not. Of course, just because something is illegal doesn't mean it can't be done. The USA is a free country and the fundamental freedom is to reap the consequences of your actions. If the county does something1 then the state can take them to court - the court will decide if it's legal or not. 1 Or threatens to do something sufficiently concrete that an injunction against it could be issued. | Almost certainly, there is no such right. It's illegal under 18 USC 831 to possess "nuclear material" without specific authorization. 18 USC 832 forbids the possession of a "radiological weapon". If there is intent to use the device to cause death, serious bodily injury, or damage to property or the environment, that's also a violation of 18 USC 2332i. I don't think these laws have been explicitly tested against the Second Amendment, but related cases suggest they would hold up (if the challenge wasn't simply dismissed as frivolous). The Second Amendment doesn't grant a blanket right to own weapons. Federal law, 18 USC 922 (o) makes it unlawful to own a "machinegun" (as defined in the statute), and in the case of Hollis v. Lynch, the Fifth Circuit held that this law was constitutional, because, as they said, the Second Amendment only protects weapons that are in "common use [...] for lawful purposes like self-defense." This case doesn't seem to have been appealed further, but the reasoning cited by the Fifth Circuit comes from the Supreme Court's opinion in D.C. v. Heller. If machineguns aren't in "common use", and therefore not protected, surely the same would apply to nuclear weapons. |
Is it legal to copy site content when providing link to original Lets say I have a website and the content on my website originates for the most part from other websites. But when the content is from an other website i provide a link to this original content with the notification that the original content is located on said link. I could say my website sort of functions like a search engine except in my "search engine" the content of my "search results" is also available. Am I allowed to do this? If extra information or clarification is needed please let me know! Edit The "Is Google legal" question does not answer my question, as explained in the answer I am asking about a large portion of a websites content where as Google only displays a small snippet of a webiste. | First I should point out that the Google question is about a different situation, the "snippet" issue where a tiny part of a web page is redistributed, where the issue of resolved in the US by appeal to the "fair use" defense. The proposed scenario as written here is broader since it would go beyond a couple of lines, and goes up to the limit of copy an entire web page. That is copyright infringement, with or without an associated link. Copyright protection is not just about attribution, it is about control. If you can limit your copying appropriately, you may survive under a fair use analysis; but you need to hire a lawyer with experience in copyright litigation to vet your notions of what is "a small amount" etc. | Plagiarism is an academic concept, not a legal one. The issue you are concerned about is copyright infringement. A work based off of another copyrighted work is a derivative work. This requires permission of the copyright holder. Simply listing your source and saying "no crime intended" does not help. However, recipes are generally not copyrightable (at least in the UK/US). This is because they are a list of ingredients and instructions which is not sufficient for a creative work. The presentation of the recipe can be copyrighted, as can any descriptive text surrounding it. If you're just taking the actual recipe, making a better recipe from it, and presenting that recipe in a better way, you should be fine. | Probably Not The creator or owner of a piece of software does not in general have any copyright over the output when others run the software, unless that output is itself a derivative work of input supplied by the copyright owner, or forming part of the software. In this case the translation is a derivative work of the 19th century original, but that is assumed to be in the public domain. SAo google has no copyright on the resulting translation. But copyright protection is only available for "original works of authorship". (See 17 USC 102 in the US, and similar laws elsewhere.) A machine-produced translation is not an original work, and it is surely not then work of the author of the overall book. However, the author would still have a copyright on the book as a whole. The legal situation is no different than if the author had simply quoted a 19th century work. One may incorporate public domain works into a later work, and that later work is still protected by copyright, provided that there is enough original contentr to make the work as a whole "an original work of authorship". Others may use the PD [arts, or the original from which they are taken, but not the rest of the work (beyond what fair use would allow in any case). For example, I have made a number of posts here on LAW.SE. In several,of those I quoted sections from one of the numbers of The Federalist. That 19th century work is in the public domain. Anyone else may re-quote the passages I quoted from it. But that gives them no rights to use the rest of my work, except as the CC-BY-SA license or fair use permits. So the author would retain copyright on the book as a whole. But soemoen who merely quotes or uses the translated 19th century article but none of the original parts of the book would not be infringing that copyright. I say probably in the header, because I do not have any actual case-law to cite here. It is possible that some court has rules otherwise on the subject of the copyright on the output of a software tool, but I strongly doubt it. | You can't own a database; you might, however, own (have) the copyright to a database if you created it or the creator transferred that right to you. You can also possess a copy of a database: the question is whether it is legal. "Leaked" implies that it is taken without permission, so you might be in violation of copyright law by possessing a copy. The only databases that would escape copyright protection would be those US government works, things put in the public domain, and things publically licensed to allow copying. Plus, any database whose content fails to exhibit a modicum of creativity (Feist). A database might be inherently illegal (at least in your hands), so it would depend on what the content is. The first thing that comes to mind is a database from a child-porn website, which contains numerous illegal images: see section 110 of Title 18. "Leaked" information might involve violation of 18 USC 1030 (Computer Fraud and Abuse Act), which prohibits unauthorized hacking. It does not directly prohibit being in possession of a hacked database: but you might still be prosecuted as an accessory after the fact. (That is one of those ad libitum areas of the law where there's no way to know for sure what is and is not "okay"). If they do prosecute you, you might rely on Bartnicki v. Vopper, 532 U.S. 514, where because it was a matter of "public interest", propagation of illegally obtained material was held to be protected by the First Amendment. Also there is the case of the Pentagon Papers. At the federal level, there are no controls over storing credit card information so if you get a copy of the Target or Home Depot hacked database, there's no federal law against that (if we discount "accessory after the fact"), but there are circumstances in Minnesota where retaining such information could be illegal. | Not necessarily, but also possibly. Google Books may (or may not) have a license to distribute images of the book covers in question. This license would be between Google and the owner of the copyright of the book cover. Just because Google has a license to distribute the image of the book cover to you does not mean that you have a license to distribute the image of the book cover to your customers. However, depending on jurisdiction, using the book cover to identify a book might also be legal under relevant fair use statutes. It is also possible that the particular book cover is not protected by copyright. For example, a particular book cover might have entered public domain. If this question is not a hypothetical, you should probably consult a lawyer. | Apparently Such Files May be Distributes or Sold Section 5.e of the Google APIs Terms of Service reads: e. Prohibitions on Content Unless expressly permitted by the content owner or by applicable law, you will not, and will not permit your end users or others acting on your behalf to, do the following with content returned from the APIs: Scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header; Copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense to any third party; Misrepresent the source or ownership; or Remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material It might seem that 5.e.2 prohibits the suggested use. But if the text is in fact in the public domain,"applicable law" (that is, copyright law) permits you, or anyone, to "Copy, translate, modify, create a derivative work of" or otherwise use the content. Thus 5.e.2 does not apply. Points 3 and 4 would seem to indicate that the source, including title and author information, must be included or preserved in the output files, but seems to be the only relevant restriction that applies. Response to Comment A comment by user Brian Drake questions the theory of this answer, stating: The most you can say is that copyright law does not prohibit certain conduct (and even that is not clear: just because the text is in the public domain does not necessarily mean that the audio is in the public domain); this does not mean that copyright law expressly permits that conduct. US Copyright law does not define what constitutes the public domain. Rather it defines what is protected by copyright, and specifies some cases in whch a work is not protected. (For nexample, 17 USC 105 provides tht works of the US Federal Government are not protected.) Anything not included in the protection of copyright is in the public domain. This has been confirmed by many cour cases and legal writings. Law generally follows the rule "Anything not forbidden is allowed." Audio as Derivitive Work An audio recording of a person reading a text aloud would be a derivative work of that text, and would normally have its own copyright, if created lawfully. (If the recording was of a text protected by copyright, made without permission and outside of fair use, it was not made lawfully and the infringer has no copyright in the recording at all.) But US courts have held that a work created by a mechanical or automatic process, including many computer programs, is not an "original work of authorship" and thus is not protected by copyright at all, and is thus in the Public Domain. The case of the "Monkey Selfie" is on point. ("Compendium of U.S. Copyright Office Practices, § 313.2" (PDF). United States Copyright Office. 22 December 2014. p. 22. "To qualify as a work of 'authorship' a work must be created by a human being.... Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants." Moreover, if the audio were protected by copyright, it would presumably be owned by the person who ran the program, and 17 USC 106 specifically grants the copyright owner permission to distribute copies. Sources The Wikipedia article "Public Domain" reads in relevant part (citations omitted): The public domain consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired,[1] been forfeited, expressly waived, or may be inapplicable. ... As rights vary by country and jurisdiction, a work may be subject to rights in one country and be in the public domain in another. Some rights depend on registrations on a country-by-country basis, and the absence of registration in a particular country, if required, gives rise to public-domain status for a work in that country. ... Definitions of the boundaries of the public domain in relation to copyright, or intellectual property more generally, regard the public domain as a negative space; that is, it consists of works that are no longer in copyright term or were never protected by copyright law. According to James Boyle this definition underlines common usage of the term public domain and equates the public domain to public property and works in copyright to private property. However, the usage of the term public domain can be more granular, including for example uses of works in copyright permitted by copyright exceptions. Such a definition regards work in copyright as private property subject to fair-use rights and limitation on ownership *"How Can I Use Copyright-Free Works (in the Public Domain)?" by Nolo Press reads: Copyright law gives creators certain exclusive rights. These rights include the exclusive ability to copy, distribute, and perform the copyrighted work. But copyright is not infinite. Rather, it provides copyright holders with protections for a limited duration. When a work becomes available for use without permission from a copyright owner, it is said to be "in the public domain." Most works enter the public domain because their copyrights have expired. The Legal Information Institute (LII) article "public domain" reads: The public domain includes every creative work that is no longer protected by a copyright, trademark, or patent. Creative works that are no longer protected are owned by the general public rather than the original creator. As such, the work is free to be copied, performed, or otherwise used by anyone. "Copyright and Scholarship: Public Domain" from Boston College Libraries reads in relevant part: "Public domain" works are not protected by copyright. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it. An important caveat regarding public domain material is that collections, new editions, and derivative works of public domain material may all be protected by copyright. With collections, an author could collect public domain works in a book or display them on a website, and the collection as a whole could be protected by copyright, even though individual works within it are not. *"Welcome to the Public Domain" (Stanford libraries) reads in relevant part: The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it. Wikipedia article "Monkey selfie copyright dispute" *"A macaque monkey who took now-famous selfie photographs cannot be declared the copyright owner of the photos" (AP) reads in relevant part: A macaque monkey who took now-famous selfie photographs cannot be declared the copyright owner of the photos, a federal judge said Wednesday. U.S. District Judge William Orrick said in federal court in San Francisco that "while Congress and the president can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act." *NARUTO, a Crested Macaque, by and through his Next Friends, People forthe Ethical Treatment of Animals, Inc., v. DAVID JOHN SLATER; BLURB, INC., ; WILDLIFE PERSONALITIES, LTD." (Ninth Circuit full opinion April 23, 2018 No. 16-15469, D.C. No. 3:15-cv-04324-WHO) reads in part: We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act. We therefore affirm the judgment of the district court | Multipage contracts, like any multipage texts, will likely bear some level of originality and so they will have a copyright owner. Absent a license allowing you to reuse the text, you will not be allowed to do so. The fact that you were a party to a contract represented by the text does not change your position: your contract does not have anything to do with the copyright of its text, therefore you still need to honor the copyright as if you were not a party to the contract. It is not uncommon that the copyright will be owned by the lawyer who drafted the text. Your business partner who supplied it would have employed/contracted one. Or, the lawyer could have provided the text to your business partner together with the copyright (less common). Why wouldn't fair-use be at play here? Don't you already get the permission to copy and modify the contract from the original party when they send it to you? (Is such right only limited to original execution?) The original party, whether it is the copyright owner or just a license holder, can send the text to you for possible copy and modification in the course of executing the contract with that party only. The copy that you receive is provided solely with the express purpose to make you an offer (so that you know the terms of the contract) and give opportunity to suggest modifications i.e. make a counter-offer. To reuse the text with another party you need a permission/license from the copyright owner. Fair-use won't play here because you'd be using the text for the purpose it was created for—executing contracts—as opposed to, say, writing a research paper on language/phrases used in legal documents. Does it at all invalidate the agreement itself if the party that supplied the contract doesn't actually own the copyright to it? After all, if you're not legally allowed to have a copy of the text that specifies the terms of the contract, how would it be possible to adhere to such terms? Most contracts do not even need to be in writing. The text will be just one of the evidences if your contract, not the contract itself. No matter whether you obtained the text legally or not, it still does its job as evidence. Whilst you may well be sued for the copyright infringement, in no way will it affect the validity of your contract, which will still hinge on those well-known 6 elements having nothing to do with the copyright of the text. | If a website's TOS has restrictions against unauthorized copying and use of anything in the site, that applies to the TOS, too. Chances are, no one will do a Google search on the exact text of their TOS to find if someone has copied it; but who knows? If they paid a legal service to draft a very specific and original TOS, they may be concerned with others copying it illegally. Beyond that, their TOS is a legal document. Your TOS is a legal document. Your users sign a contract when they click and accept. If you copy and paste a TOS, and don't understand exactly what is in it, and you and your users are bound by that TOS, what kind of legal risks do you open yourself up to? A simple Google search yields https://formswift.com/terms-of-service among others. Or try one of the many services like LegalZoom. |
Does a grammatical error in a license annul the statement? In a license for commercial software, I have recently encountered the following perl pearl of perspicuous and immaculate syntax: [company] does not warrant that use of the Software will operate uninterrupted or error free. Since use cannot operate in any sense, shall the whole sentence be annuled and the license treated as if without it? | company does not warrant that use of the Software will operate uninterrupted or error free. A court will not find that statement to be ambiguous or contradictory. Mere grammatical differences will not void a contract. See Typing errors in legal contract I have recently encountered the following perl of perspicuous and immaculate syntax: Correct grammar and usage is "pearl", not "perl". Perl is a programming language; as for a pearl, you must be thinking of the definition of Pearl Of Wisdom (Merriam-Webster). | We can't really know until the ruling is made. The Supreme Court might issue a ruling that encompasses all software APIs, or may predicate its ruling on this more specific situation, e.g. that because Oracle's library is so extensive its structure can be copyrighted even if that does not necessarily mean that any individual function signature can be copyrighted. They could also decide based on something unrelated to the heart of the copyright question - skimming through the petition for a writ of certiorari, they could make a decision based on the original implied license from Sun, for example. Hopefully their decision will answer the copyright question of function declarations completely, but it isn't required to. | I think you're viewing the use of pronouns and contracts wrong. You are speaking to the Licensee, not some third person. So you would say "You agree to give us all your bases", not "The]y agree to give us all your bases". If you were to use a third person pronoun in describing what the other person is gonna do and what you'll do for them, calling the Licensee "they" is positively confusing, and more likely to cause problems. I hope they see my point. | This answer is limited to United States law. The situation in other countries is definitely different. Under United States law, the owner of a lawfully made copy of a copyrighted work has, as a right of the physical possession of that work, the right to the work's ordinary use. Licenses grant you additional rights such as the right to make derivative works, the right to make copies beyond what's needed for ordinary use, and so on. A pure license doesn't ask for anything in return, it just gives you new rights. Those rights may be conditional, but the conditions are just things you have to do to get new rights. They're not conditions imposed on any existing rights you had. A contract is an agreement between two parties. Both parties must agree to a contract for the contract to be enforceable. Contracts can take away rights you otherwise have. You don't need a license or contract to use a copyrighted work if you lawfully possess a copy of that work. Say you download a copy of a work covered by the GPL. You can refuse to accept the GPL license and you can still use that work. Why? Because no law prohibits you from doing so and there is no civil cause of action for using a lawful copy of a work under US law. But now say you want to give a copy of that work to your friend. This is illegal under US law because 17 USC 106 restrict that right to the copyright holder and there's no applicable exception since that's not part of the ordinary use. For a work covered by the GPL, the license offers to give you that right, a right you wouldn't otherwise have. It imposes conditions on you that are specifically in exchange for the grant of the new right. If you do accept the GPL, it functions as a contract. You got in exchange a right you didn't have before and if you don't comply with the GPL's terms, you don't have the copyright holder's permission to exercise those rights which is required under the law. By contrast, a click-through or EULA takes effect when you agree to it and such agreement is a condition for using the software. That's a pure contract and usually doesn't give you any rights you wouldn't have in the absence of such an agreement other than the use of the software. | I realize there's already an answer, but I'd like to go into more detail. There are generally two kinds of open source software licenses: permissive and copyleft (the latter sometimes called viral). Both are intended to allow people to freely use, modify, and redistribute a work while ensuring the original author gets credit. This contrasts with releasing your work into the public domain, which would allow anyone do literally anything, even claim to be the author. The difference is that permissive licenses allow you to re-license your derivative works however you like, while copyleft licenses require your derivatives to be licensed under the same license (hence the term viral). The reasons you'd choose either one are philosophical and political and beyond the scope of this answer. Both the Apache License and the MIT license are permissive, so incorporating MIT licensed code into your Apache licensed project is certainly allowed. Just be sure to attribute the original author for the parts your incorporated and include a copy of the MIT License terms, as required by the license. Go ahead and read it to make sure you get all the details right; it's fairly short and easy for a layperson to comprehend. | According to US law, the GPL is a license, not a contract. This means it is valid without consideration, it also means if you are in violation of the license, then you are committing copyright infringement, instead of being in breach of a contract. In Germany, the GPL is a contract. And that's fine, because German law doesn't require consideration for a contract to be valid. It's interesting in that the GPL license doesn't require you to state whether you agree to the license/contract or not. But if you don't agree to the contract then there is no contract, and you have no right to use the software. | The CC-ND license seems to be what you are looking for. However, Sec. 2(a) has two conditions, one allowing copying and distribution of the unmodified original (as stated in A), but also allows the user to modify but not distribute a modified version of the work (they may "produce and reproduce, but not Share, Adapted Material"). This would mean that a reader could rewrite your paper, as long as they keep it to themselves. If this bothers you, I think you could not rely on a standard named license, instead you'd have to provide your own – such as CC-ND 4.0 without clause (2)(a)(B). Rewriting a legal document is a risky proposition, even for a legal professional, because you have to carefully think through all of the implications of any new punctuation, adjectives, and deletions. If you contemplate deleting clause (2)(a)(B), you should come up with a line of reasoning that compels you do delete it in order to accomplish your goal, and check that the deletion doesn't thwart that goal. That is why people pay money to lawyers (and also why you need to make your goal clear to that lawyer, lest the agreement be inconsistent with your goal). | They may or may not be violating the license. It's quite possible, even likely, that Microsoft has a license agreement of some sort in place with MongoDB that permits their use. Neither party, however, would be under any obligation to disclose this license to 3rd parties. If indeed there is a violation, a legal action might eventually take place. The usual first step, however, is a demand letter. Again, unless or until a court filing actually takes place, we're in the dark. Totally hypothetical here but the result could be anywhere from an agreement between the parties to damages to cease-and-desist orders. Perhaps some combination of these. I believe Microsoft has offered this service for some years now, so the lack of any visible action on MongoDB's part seems to indicate that they are good with what is going on. Microsoft has almost certainly made an agreement with MongoDB that covers this use. Note also that the license you refer to is not necessarily the only license that this product is offered under. Many companies, and I don't think MongoDB is any exception, offer "free" or low cost licenses for some purposes and then also offer "enterprise" licenses for commercial/large-scale use. As the licensor here, MongoDB is under no obligation to offer one and only one license option to potential licensees. |
I'm afraid I disclosed confidential information. What do you think? I'm a shareholder and developer at a startup. Last month the board announced me that they will fire me, due to a merge with a partner as I'm considered redundant and all development will be moved to the partner. Few weeks ago a professional "contact" asked me privately in FB how are we going during covid. I was still emotionally touched and I told him I was fired, and the cause was a new partnership, that the company decided to move dev to external partner, and that I thought with the saving they got from my dismissal they will be fine. I deleted the message, but I think he read it. I'm fucking scared now. did I disclose confidential information? the "contact" is also contact of my CEO, and his company is one of our customer. What could happen to me? | The fact that you have been laid off is both your company’s information, and your personal information. You are allowed to tell your own personal information. The move to a new partner however is not your information. As long as you are still employed your employment contract will probably say that you mustn’t do anything to damage the company. You’d need to read what the consequences would be. Maybe the contract says you can be fired... which doesn’t matter unless you would lose a redundancy payment. After leaving it would depend on whether you had a non-disclosure agreement. And last, does your company care? This merger can’t be kept a secret anyway. | As Putvi says, you are being extorted and this is a criminal matter and thus a matter for the authorities in your jurisdiction. However, you have a second problem entirely apart from that - you almost certainly broke academic ethical rules by submitting a piece of work that you did not write as your own (these things are pretty cut and dried in academic circles). This will not go away. Regardless of whether your extortionists are brought to justice, they can still release your details at any point in time and ruin your career, or it can come out in other ways. Own up to this with your university as soon as possible, and see if you can make it right. This will be hanging over you for the rest of your life, and can drop at any moment - these sorts of things have ruined people before. | The words "proprietary format" are important. Are you sure the format is proprietary? If it is, then it's likely protected in which case they might have grounds to sue (but that does not mean they would definetly win). If the format is not proprietary, and so long as you don't share data which is proprietary then I believe you fine. I'm not a lawyer - but I cite GIF files as an example. They were still protected by the US and some other countries until at least the late 90s and there were various threats to open source linux companies who shared code that used the file format. I'm not aware of anything other than threats and never heard of any company being sued, let alone winning or losing. Another example that comes to mind is the RedHat ISO format. My understanding is RedHat could not stop anyone from sharing open source, but they could prevent folks from sharing the format they assembled and shared the open source. Again, I am not sure if it was ever tested in any court of law anywhere. | without my permission ... is just not true - you granted permission for your posts to be forwarded, subject to the privacy settings you set, when you agreed to Facebook’s terms. Specifically 3.3. | GDPR is not a blanket ban on the handling of personal data. It is a set of guidelines when and how data may be processed and stored. Documenting the compliance with a deletion request is one of many purposes for which some data may be retained after a deletion request. Others would be past contractual obligations, legal documentation requirements, and even a balance of 'legitimate interests' of the processors and the data subjects. The processor might be able to argue that fraud/abuse prevention is such a legitimate interest. What if I want to create a service that does let users enter their friends' email addresses, and send those friends an email invitation to the service? Get a specialist lawyer on staff who can check your exact business processes. A web site like this cannot possibly give you a full explanation of the pitfalls. | I would probably have a legal disclaimer out of an abundance of caution. That being said, you have a right to free speech via First Amendment guarantees. While that right is not absolute and some words “by their very utterance” cause injury or incite an immediate breach of peace, and do not receive constitutional protection, (there is the old adage you do not have the right to shout fire in a crowded movie theater). This (your blog) is not that. To take it to its logical (or illogical) extreme, there are many things on the internet, in magazines, scholarly articles, etc. that could injure someone or cause damage in the event that one who was not qualified or competent to perform the action described undertook to do so. A child could burn themselves following the directions on a mac and cheese box but they shouldn't be cooking in the first place. The same rings true for high voltage electricity - a non-licensed electrician should probably not create a high voltage power supply. But, will some? Yes. But you are not liable for printing a blog about the practice. On another but related note, if you are a licensed electrician your licensing authority may require that you take precautions to ensure you do not inadvertantly direct others to engage in practices of licensed professionals that could cause harm by giving them information. I doubt this but I don't know because I am not an electrician. As far as could you be liable for writing it....under our legal system you can be sued under a theory of negligence for just about any action someone thinks was unsafe or causes injury. And you never know what a jury will do. But I think that to sue someone for simply writing something would be fairly easily dismissed through a motion for summary judgment by a competent attorney in the event you got sued. If everything a person wrote, that if followed by an unqualified person resulted in injury, resulted in liability for damages than it would have a chilling effect on their First Amendment right to free speech. That said, I go back to my original statement that it couldn't hurt to have a simple liability waiver for extra protection. It could be something as simple as: "The information contained herein is not mean to be comprehensive and is for informational purposes only. You should not undertake to perform anything described herein without adequate training and/or supervision. The Author disclaims any responsibility for any injury, damage, or loss as a result of reliance upon the information found on this site/blog." If you do use a liability waiver, make sure it is bold and obvious. Otherwise, it can backfire! | Yes. Art 13 requires you to provide “the identity and the contact details of the controller”. You are the data controller. Your name and address are necessary to establish your identity. Using AdSense means you're offering an internet society service commercially. In that case, there's also probably some EU fair competition directive that was implemented in your countries national law and will provide equivalent requirements. For example, my country Germany has a far-reaching Impressumspflicht. Not sure if this is the most relevant EU law, but Art 22 of Directive 2006/123 requires that your country passed laws to ensure that you make available “the name of the provider, his legal status and form, the geographic address at which he is established and details enabling him to be contacted rapidly and communicated with directly and, as the case may be, by electronic means”. I think you would be in scope of this directive since you're acting commercially. This legally mandated self-doxxing is unfortunate for private bloggers, but it's also essential for making it possible to enforce data subject rights: if you were to violate someone's privacy rights, how could they sue you if they don't know where to serve you with a lawsuit? However, all things are a balancing act. These requirements are not intended to limit freedom of expression. If you're just trying to communicate something to the public without jeopardizing your anonymity, then paradoxically social media services can be more attractive. | I believe in this case, your company (OrgX) is a data processor and your customer's organization (OrgY) is the data controller. OrgY is responsible for establishing a lawful basis for sending you (OrgX) the personal data for their employees. Note that consent is just one of six lawful bases outlined in article 6(1). I'm no expert, but I believe OrgY's admin can claim they have a legitimate interest in sending their employee's personal data for training sake. In either case, the data processor is not responsible for establishing the lawful basis for processing. Of course, data processors aren't completely off the hook. GDPR outlines specific requirements for data processors (see chapter 4, particularly article 28). |
Can the U.S demand extradition of a non-U.S national who committed a crime against a U.S national in a country other than the U.S.? Is it true that the U.S can ask extradition of a non U.S person who has committed a crime against a U.S citizen in a country other than the U.S? I mean, I don't condone crimes but how can it possibly be that a person who has never set food in the U.S and committed a crime outside the U.S be extradited to the U.S and be judged by U.S law in the first place? EDIT: I've edited the question properly. EDIT 2: the sentence part "in a country other than the U.S" relates to the country the crime is hypothetically committed in, not an other country extradition is going to be delivered to. I know that the overall statement might be ambiguous. | All countries (and some sub-national jurisdictions) have extraterritorial jurisdiction The U.S. Criminal Code asserts the following items to fall within the special maritime and territorial jurisdiction of the United States, much of which is extraterritorial in nature: The high seas and any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular state, including any vessels owned by US persons that are travelling on them Any US vessel travelling on the Great Lakes, connecting waters or the Saint Lawrence River (where that river forms part of the Canada–United States border) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof Any island claimed under the Guano Islands Act Any US aircraft flying over waters in the same manner as US vessels Any US spacecraft when in flight Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States Any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States Offenses committed by or against a national of the United States in diplomatic missions, consulates, military and other missions, together with related residences, outside the US International Parental Kidnapping Crime Act The US is actually pretty narrow in its assertion of extraterritorial jurisdiction and the Supreme Court has held that there is a presumption against extraterritoriality. So US laws have to explicitly assert a claim of extraterritoriality. Contrast this with, say, France where the Code pénal asserts general jurisdiction over crimes by, or against, the country's citizens, no matter where they may have occurred. Crimes perpetrated from foreign jurisdictions Notwithstanding, a crime can be perpetrated in a country without the perpetrator ever having been in that country. Hacking of computer systems is an obvious example. However, almost all criminal codes include a crime similar to "Attempted X" or "Conspiracy to commit X" which clearly don't require a physical presence. Terrorist attacks are often planned in third-party countries by a group, only a small number of whom actually go the country to commit the actual attack but all of them have committed a crime under that county's jurisdiction. Extradition Any country (A) may request extradition from any other country (B) where A asserts that it has a case to bring against the individual. No country can demand extradition. B will decide whether to grant the request subject to its own law on the matter and the provisions of any extradition treaty that may be in place between A and B. Dual Criminality A crime committed in country A may engage the jurisdiction country B. If so, country A gets first crack at prosecution. Country A might decide not to prosecute, might prosecute and fail or might prosecute and succeed. Notwithstanding the outcome country B can decide to prosecute as well. Usually if the defendant has been prosecuted by country A (win or lose), country B will not prosecute. A specific example An Australian engages in sex with a French-American child in the US embassy in Rome, Italy. Italy has jurisdiction because the crime was committed in Italy. The US has jurisdiction because the offence was committed against a US national in a US diplomatic mission. France has jurisdiction because the victim was French. Australia has jurisdiction because sex crimes against minors by Australians are prosecutable in Australia. The perpetrator flees to the UK (with whom all four countries have extradition treaties) where they are arrested - the UK government (courts and foreign minister) will decide if and to whom the perpetrator will be extradited (probably Italy). After they are prosecuted there (and serve any sentence) any of the other three may request extradition. And so on. | 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. | You would not be liable for a fine (If you think about it, how can you be - Australia does not have jurisdiction over you as you are in New Zealand, and you have broken no NZ law - Further, you declared the item to customs so even in Australia you could not be held liable) Looking at it another way, if you had gotten on a plane with it, declared it to customs on the arrival card, they would have simply asked to see it and made a decision whether to let it in or not - they would not fine you. Customs may or may not confiscate it (ie they may let it through). I've not sent a parcel to Australia, but I have imported seeds into NZ - I made a number of calls and emails to ensure I got the process right - expected to pay quite a lot of money to do it - in the end they just came straight to me - MAF did not even examine the parcel. Being that NZ and AU are pretty similar in terms of legislation (ie both the food standards are the same) - its probably actually Ok to send it anyway - in fact the Imported Food Control At 1992 - which I believe is applicable - specifically exempts many foods imported from New Zealand from the act. The last paragraph of this AU government web page states "The only New Zealand foods that are subject to the IFIS at the border are those classified as risk foods. Equivalence determination of food safety systems covering dairy products was reached in 2007 and seafood, uncooked pigmeat, chicken meat, coconut, pepper, paprika, peanuts and pistachios were aligned in 2011. This enabled these products to be brought under the TTMRA and removed the requirement for border inspection for these products." | The main question is whether the US has jurisdiction outside the US, which means either "in another country" or "in no country" (viz. the high seas or outer space). It has generally been felt (legally) that the US has no jurisdiction over foreign countries, see especially Banana v. Fruit, 213 U.S. 347 "the general rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where it is done". This is known as the "presumption against extraterritoriality": it is a presumption, not a rigid absolute rule. However, there are exceptions. The Alien Tort Statute (one of the first laws of the US) says "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States". An application of that law is Filártiga v. Peña-Irala, where defendant tortured and murdered plaintiff's daughter, all parties being in Paraguay at the time: the court held that the US did have jurisdiction, under the ATS. Nevertheless, in Sosa v. Alvarez-Machain, 542 U.S. 692 which involves an extraterritorial kidnapping, SCOTUS seems to have said that this law is primarily about granting jurisdiction, and not about creating new torts, and they indicate that the wrongful acts within the scope of the ATS are, specifically, "offenses against ambassadors, violation of safe conducts, and piracy" (at any rate, it's clear that damage arising from pollution would not be within the class of bad acts referred to by ATS). Kiobel v. Royal Dutch Petroleum Co. reaffirms the limit on what torts can be pursued under ATS. In this case, the issue is whether RDP might be corporately liable for acts that could be illegal under US law, and the court says "[w]hen a statute gives no clear indication of an extraterritorial application, it has none" (citing Morrison v. National Australia Bank Ltd.). Accordingly, Taylor Jr. was held liable for his role in torture in Liberia, since the Torture Victim Protection Act does specifically allow for actions against individuals acting in their official capacity, outside the US, for torture and extrajudicial killing. "Sanctions against" is kind of open-ended. The US government can (under some circumstances) prevent US persons from doing things with respect to some other country, such as the restrictions against doing business with or visiting Cuba, Albania, North Korea etc. as have existed withing the past quarter century. Were I interested in sending money to a person in Iran vs. a person in Canada, I would have more problems in the former case owing to "sanctions". I think we can safely conclude that the US cannot (in terms of US law) declare that "whatever acts of a foreign entity overseas offend the federal government shall be litigated as though the acts were committed within the proper jurisdiction of the US" (or, more simply, "the proper jurisdiction of the US government is the universe"). Congress has not yet passed such a law about extraterritorial pollution, so until it does, it cannot sanction overseas polluters. When/if it does, it presumably can, though enforcement is another (political) matter. | The decision will be made by whichever country arrests him first (although a minority of countries allow for the trial of people who break their criminal laws in absentia). Needless to say, if nobody manages to arrest him ever, he will not face any criminal consequences except the issuance of an arrest warrant possibly accompanied by a pre-existing conviction in absentia if arrested in countries that allow for such a proceeding. Normally, in these circumstances, either country would have jurisdiction under its own laws to prosecute and punish the criminal, and many extradition treaties would not require the extradition of someone who committed a crime punished domestically in the state in whose custody the criminal is as part of the same course of events. Many countries will not extradite someone if they could face the death penalty in the receiving country. But, sometimes law enforcement in a country with a less serious penalty will intentionally defer to law enforcement in a country with a more serious penalty that is simultaneously trying to arrest him. Ordinarily, law enforcement is not authorized to use deadly force to arrest someone who is simultaneously being arrested by law enforcement from another country against either the arrestee or the law enforcement from the other country. Indeed, using deadly force against another country's law enforcement officers who are carrying out a lawful arrest in their own country would ordinarily be considered an act of war. U.S. double jeopardy provisions of the constitution do not prohibit a second prosecution of an offender in these circumstances because of a first prosecution by another sovereign, but many prosecutors in many countries would decline to prosecute someone a second time for the offense that they have already been convicted of in exercise of their discretion, and many judges would consider time served in another country for the same offense as a factor in setting their own sentence. | The maximum determinate sentence for anything (outside of military law) was 21 years (in 2013 increased to 30 years for serious terrorism offenses). The law on penalties §43 says that In a sentence of detention, a time frame is set which should not normally exceed 15 years and cannot exceed 21 years. Breivik was tried once for the crime of intentional murder, and convicted -- 21 years is the sentence. I believe that Norwegian law does not have the "multiple counts" system that the US has whereby an act can be punished under multiple sections of the law or for each victim. He performed an act of killing with very many victims, so no penalty longer than 21 years is allowed. | There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake. | It depends. If the tip is that there are pictures proving that a minor consumed alcohol 10 years ago, probably not. If the tip is that there's a kidnapped child being tortured inside, more likely. In either event, they would probably seek to build up some independently obtained evidence to enable them to obtain a warrant based on probable cause. An anonymous tip might be enough, depending on how detailed it was and whether there were any objective indicators of reliability, but it's not a sure thing. |
Disclosing damning information as a lawyer Let's say I'm a defense lawyer and my client is a criminal that killed 50 people so far, but got away with it every single time, and he's on trial for a 51st, which he's also poised to escape because there's no evidence pointing directly to him. As his lawyer, he told me about all of his murders, and he gave me information that the police can verify that can link him to all 51 murders. Here's a concrete example: he took a video of all of his murders, and he hid all the recordings so that the police cannot find them, but he told me (his lawyer) about them and exactly where they are. If I break client confidentiality and tell the police everything I know, and give them all the evidence they need to 100% link him to all 51 crimes, is he going to walk free because I "didn't follow procedure"? If so, then the legal system is really effed up... Just a little discussion I had with a friend, neither of us have any legal education. | The evidence will almost certainly be inadmissible And, of course, you will be disbarred and never work as a lawyer again, you might also go to jail for attempting to pervert the course of justice. Whether the person is convicted or not will depend on the strength of the other evidence the state has. In the notorious case of Lawyer X, Nicola Gobbo was acting as a barrister for a number of Melbourne underworld figures while simultaneously acting as a police informer. A number of those convicted have successfully appealed their convictions on the basis that they didn’t get a fair trial. In their judgement on AB (a pseudonym) v. CD (a pseudonym); EF (a pseudonym) v. CD (a pseudonym) [2018] HCA 58 the High Court said: But where, as here, the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield. EF's actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF's obligations as counsel to her clients and of EF's duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. | Yes and no. There are numerous cases where criminals, upon breaking in to somewhere, find evidence of a worse crime and notify authorities. This will provide reasonable suspicion enough for entering the scene. Generally, in testimony, Statements against Interest are more believable because a burgler wouldn't admit to breaking and entering if he had a way to explain why he was there in the first place. (Example: Alice breaks into a Warehouse and sees a mutilated body and blood everywhere. Alice immediately stops her theiving ways and calls 911 to let them know about the scene. Whether or not Alice stays, a dead body is enough probable cause to secure the crime scene without warrant. Its in Alice's interests to stay and help as there is trace of her at the scene and she would be pegged as a suspected murderer. If she's picked up and admits to calling the cops, it's good, but staying and helping out after the call will likely get her off on the charges related to the murder.). It could also work if they are persuing one crime and discover evidence of a second unrelated crime. (i.e. Alice robs the factory and gets away. The Factory Foreman calls the cops to investigate the crime scene, which at this point, does not need a warrant. While investigating, the Cops find security footage that Bob, the night guard, killed Chuck, a late night worker, removed his body, and cleaned the scene, all before Alice broke into the factory. The outcome of the case being made against Alice does not affect their need to prosecute Bob, as they obtained that evidence while looking for Alice in a valid investigation, not Bob, thus it is legal). Under these situations a crime that leads to a separate valid crime involving a different party is admissible. There are two possible reasons that the attorney might think this: Fruit of the Poisonous Tree: This is the obvious element... the kids committed a crime with the hopes that the cops would use the evidence found by them in their commission of a crime to get the real bad guys. The attorney parent thinks this is stupid because the kids broke in specifically to do this and thus any evidence is now tossed out of court. This isn't usually the case in how this scenario will play. Generally the cops are more than happy to look at evidence obtained by criminals that points to another crime. In fact, this is how a lot of gang enforcement units and drug enforcement units operate... pick up a small fish and cut a deal for evidence against a bigger fish (turning state's in the criminal lingo, as the witness is becoming State's Evidence to another crime). As long as it's given to the cops as part of legitament evidence seeking, the cops can follow the leads where ever they... er... lead... Chain of Custody: This is probably, if properly thinking, what the attorney parent is thinking that's a bit more probable. Lets say these kids found a dead body with a sword in it and take the sword to the police... this could get dicey as the kids have contaminated the evidence in possible ways that the killer's lawyer could get thrown out. One thing CSI doesn't always show (though there are a few episodes where it comes up, but not many) is that when something is taken in as evidence, it is carefully documented, sealed, and tagged with a check in/check out list. Every time the seal is broken, the person breaking the seal notes the time, date, and reason and when does, reseals it with a new seal, and signs the time and date of the seal again. This is so at trial, the attorneys know exactly who opened up the evidence, what they did, and what possible contaminants were introduced. You even have to sign into a crime scene before you go up to the yellow tape. A good defense lawyer would call into question any evidence from anything the kids handled to get the evidence tossed (i.e. Your honor, these Meddling Kids handled the sword without following the chain of evidence. They even let their dog handle it. They had already harrassed my client earlier today by insunuating that he was involved with a hoaxed paranormal activity to scare people away from the factory. Since they claim they found the sword, but did document it at the scene, we don't know anything about it prior to the police's chain of custody. I motion that the evidence be dismissed.) If this is successful, anything from the sword is now no longer admissible as if the sword had never been found (including blood of the victim on the blade and finger prints of the suspect on the hilt)... in effect the evidence was prossessed as best the police could but the veracity of the story of it's discovery is too questionable to be considered. The defense does not have to be right, he just has to show there could be another explanation for the sword and the evidence linking his client to the crime committed by it. In short, without specific details, the attorney parent could be right or could be wrong, or more humorously, right, but for the wrong reasons. Edit: U.S. only. See other answers for other jurisdictions. | I will address only the legal issues. Prosecutors for very good public policy reasons are not required to prosecute every crime they have suspicions about. When exercising this discretion they consider: Is the act, in fact, criminal - many of the things you list, while reprehensible, unethical, and possibly immoral are not actually criminal. Do they have the resources (time, staff, money) to collect the evidence and run this case as opposed to the thousands of other crimes out there. There are always more crimes than can be prosecuted and these have to be prioritised in some way. Do they have enough evidence to gain a conviction beyond reasonable doubt. People can be fired or resign on suspicion, they can't be convicted on it. | My impression, and the plausible explanation in the absence of the actual facts, is that this was something that the attorney agreed to, in order to allow a skittish client to reveal information pursuant to a favorable plea agreement. The police probably insisted that the client be handcuffed to someone while doing this to prevent the client from fleeing. The attorney probably offered to do the job instead of a police officer, to be able to provide advice to his client and keep his client calm enough to do it, which might not have happened (sacrificing the favorable plea deal that the attorney negotiated) if someone else were in that role. | It's a bit like talking to the police: anything you say might be used against you, so the conventional wisdom is to say nothing. It is a good rule of thumb. When you are paying a professional to represent you, why make things complicated by speaking on your own behalf about the same issue? As you point out, not everyone follows this rule. In some circumstances there might be benefits to discussing your case publicly, such as fundraising or deterrence. Whether the risk outweighs the benefits will depend on the details of the legal case and your role in it. Lawyers are likely to emphasise the following risks: If you are a witness whose credibility is in issue, any public statement could potentially become a prior inconsistent statement which is used against you in cross-examination. Again, one of the purposes of hiring a lawyer is to be careful about how you communicate your position on a litigious matter and reduce the risk of careless remarks having unexpected consequences. Speaking publicly undermines this goal. In Commonwealth countries, there is a significant risk that public comment on a case before the court could amount to sub judice contempt of court. Attempting to litigate the case in the media can be perceived as undermining the authority of the court. Lawyers are expected to uphold public confidence in the administration of justice and would be reluctant to condone anything that could be regarded as a contempt. This contributes to a culture where discussing active litigation is "not the done thing" and may itself cause problems with a witness's perceived credibility, aside from the risk of a contempt allegation. Speaking publicly about litigation is risky and the consequences are difficult to predict, which is why people often engage lawyers to do it. When the client continues to make their own statements without legal advice, it makes the lawyer's risk management job more difficult, so they are likely to advise against it. | 1. I want use a friend who has no legal training as my "counsel," do the police have any legal recourse from allowing me to talk to him prior to interrogation? E.g., can they insist that my counsel be a member of the bar in the state where I have been arrested? Yes. If they don't want you to, you cannot talk to a friend, only a lawyer. If you got an OUI, and you're not being a jerk, they will probably let you talk to whomever you want (within reason – it's not social hour). However, they can keep you from speaking to anyone but a lawyer as that person could gain information from you that can corrupt their investigation. (E.g., they arrest you with 10 lbs. of methamphetamine. They know it's "fresh" and likely came from a local lab that they suspect you of running. You cannot be allowed to talk to just anyone, as they could help get the lab broke down, moved, destroyed). In TV shows you see attorneys doing this type of illicit thing, but in reality that is very rare. When you enter the police station to speak with a client, you must present your bar card (license to practice). Friends are not allowed in, even if you value their counsel – they are not counselors! 2. I want to consult a "team" of qualified counselors. Are there legal grounds or regulations to limit the number of individuals I consult prior to interrogation, and who I have present during interrogation? No. You can have your entire legal team with you, while preparing for court, or while being questioned, within reason. They do not need to rent a conference room to fit your 30 person legal team, but if you want 3 or so lawyers in with you, and you can afford paying each $250-$500 per hour, then have at it. Most lawyers would counsel you against this, as it creates an undue impression of limitless (hence likely illegal) funds. (But if you're a hedge fund manager, and you can show your money is legally earned, it's really your choice.) I have had occasion to go in to meet a client with co-counsel numerous times (especially in early years of practice when there is a lead attorney and second chair, so to speak, even for interrogation (which means silence by the client). They can "impede" access to some extent, though they typically don't. They can play games with your lawyer and make them wait and make you wait, but not while they are in with you, and only for so long. Once your lawyer arrives they should leave you alone. (Some courts say once you ask for counsel they need to leave you alone, but this only really matters if they get a confession from you (or any evidence) before you've (and this is what they're hoping for) recant your request for counsel and your right to remain silent.) 3. Can my contact with counsel be proscribed in any way? E.g., can the police limit the duration or schedule of contact with counsel? Can they impede or delay access to me by someone who claims to be my counsel? Once you've called your lawyer, they need to to let him or her meet with you for a reasonable amount of time before questioning. This is typically a quick meeting, just long enough to make sure you will not say a word. Even completely innocent people should keep their mouth shut – innocent people do occasionally get arrested and convicted! No matter what the police say, there is no benefit, ever, from talking to them. Some police, who know it's their last shot to get a confession and know once your lawyer gets there will never talk to you again (and they have enough to go forward without your confession in the event you just start blabbing "you did it" before they can get you to invoke your rights) will keep talking to you and tell you not to comment, just to listen, even while your lawyer sits outside. They can say you're being processed, or there's a security issue, any number of reasons for short delays if they need it. They will then go on and on about "how they can maybe help you out if you talk now, but once your lawyer arrives all bets are off." These are just tricks to get you to recant/revoke your rights and to obtain your confession. You will usually see your lawyer shortly after arrival. Can they impede or delay access to me by someone who claims to be my counsel? Yes, if your lawyer doesn't have adequate ID or cannot verify he is licensed in that state, or in another state and with local counsel. The police do not have a duty to research your lawyer's credentials, and don't have to go online and look your attorney up in the bar directory to make it easier for him or her to get to you. However, if they know the attorney, and he or she forgot his bar card, they would probably lose the confession if you confessed while they make him go get it. Most lawyers carry their bar card in their wallet, so this is not a typical problem. 4. What do police have to do to facilitate my access to my desired counselor(s)? E.g., how long can I be held after requesting an attorney without being allowed to attempt to contact one? You have a right to contact a lawyer. There is no explicit right to a phone call, although some form of contact is implied. Hence, you can usually be held 3 hours before they have to let you "contact" someone, and this is after processing. You can be held until your lawyer gets there or until your arraignment, whatever comes first. If your lawyer doesn't show up, you will be given another opportunity by the court to get your lawyer of choice there for arraignment. If you can't, and you don't want to go forward, a public defender will move to waive your right to a speedy trial and seek a continuance until you can get your counsel of choice there. If this happens, consider getting a new lawyer. What means must I be granted to find and contact the counsel of my choice? This actually differs depending on where you are and what you did. Again, you have a right to counsel but they can determine how you get this done. Sometimes there are local laws that say you get any number, or 3, or 1 completed phone call to reach your counsel of choice. If there is an overriding risk that you will call someone to communicate information that could put the investigation in jeopardy or would be adversely impact their evidentiary value in some way, even when these laws exist the police can refuse you direct contact with anyone and may implement a strict "they call" policy, where they will call the lawyer and tell them, or call your family to let them know, and they can call the lawyer. They cannot hold you for a protracted amount of time without giving you some way to get word to a lawyer; it must be reasonable. There is not a lot of law out there about what is not reasonable, because the police know, and for the most part accept, that once right to counsel has been invoked they are done. There is case law saying that 3 hours is reasonable. What is not reasonable? That is fact dependent. | The main rules in a civil case are the rules of evidence, the rules of civil procedure, and a set of largely unwritten rules governing issues such as the order in which matters are presented in a trial and courtroom conduct. Basically, the rules of evidence are really a subset of a larger set of written and unwritten rules about courtroom conduct the unwritten parts of which are assumed to be known by people using them. Robert's Rules of Order do not apply to courtroom proceedings. The judge also has the "direct contempt" power to summarily punish disrespectful conduct in the courtroom without a trial, with fines or incarceration, even if it wouldn't be a crime outside the courtroom. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. If you are a party asking a question (or more likely an attorney for a party asking a question on behalf of a party) it is not improper to say, "I'm sorry, I couldn't hear you." It is also not generally improper for a non-questioning party to interject and state that they can't hear a witness to a judge. Obtain clarification of a statement. This can be done by a party only when it is the party's turn to cross-examine or redirect as the case may be. A judge can ask for clarification, but a party cannot do so when it is not their turn. Determine or clarify the purpose of an ongoing statement or line of questioning Generally the party not asking a question objects and the court asks the party asking the question to clarify the reason. Sometimes, in a jury trial, the party asked to clarify will say "may we approach the bench" and a private discussion will be held between counsel for both sides and the judge regarding an ongoing issue. Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") Lawyers are expected to know this for the most part without having to ask. Also, usually before the court starts to take evidence, and at breaks, the judge will ask "are there any preliminary matters that need to be addressed?" or "are there any procedural matters that need to be addressed?" and questions such as this can be raised at that time. | Whether any person, provided that they are in full legal capacity (not a minor, not incapacitated etc.), needs a lawyer, is to be decided by that person. Even criminal defendants can be self-represented if they've got the balls for it — the law does not impose a requirement to have a lawyer when the person does not want it. Considerations as to whether to have a lawyer are very fact-specific and person-specific. Assuming that Steve is not literate in law, it would probably be good idea for him to get a lawyer before answering any questions. The facts are such that it is not totally impossible that he may be charged, especially if he inadvertently says something not in his favor, or otherwise says something favorable to McRobberface. |
Is there legal precedent for restricting US citizens from interacting with each other on private property during a pandemic? Many states (for example, Washington) around the US have issued an executive order prohibiting their residents from interacting with other citizens face-to-face, unless its a part of an "essential" activity: All people in Washington State shall immediately cease participating in all public and private gatherings and multi-person activities for social, spiritual and recreational purposes, regardless of the number of people involved, except as specifically identified herein. Such activity includes, but is not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities. This prohibition also applies to planned wedding and funeral events. This prohibition shall remain in effect until midnight on April 6, 2020, unless extended beyond that date. Is there precedent in US law for such a restriction? Or perhaps someone already tried to challenge this rule during the current pandemic? Preventing citizens from going to each others home for a visit seems like the ultimate form of restrictions, so it would be interesting to see if it ever held up in court. | I think the Washington law and order is fairly clear: you must stay home unless you are engaged in certain allowed activities. The underlying law, RCW 43.06.220(h) empowers issuing an order prohibiting "Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace". Therefore I can walk my dog. When I do, there are a lot of people also out walking their dogs, so that provides a letter-of-the-law permitted exception to the stay-at-home order. Nothing in the order specifically addresses the situation where you pause your dog-walk to talk to a neighbor (the "appropriate social distancing" sub-rule only applies to recreational departures from your home). It is well-established that the central legal issue is what the "compelling government interest" is, and whether these restrictions fail on grounds of narrow-tailoring or least-restrictiveness. The failure to include "go to your brother's place for lunch, provided you follow appropriate social distancing guidelines" as a permitted activity is a candidate for not being least-restrictive. The problem is that the courts will not engage in an infinite regress of second-guessings about whether certain measures are "truly necessary". There is a SCOTUS challenge where the Pennsylvania Supreme Court upheld that's state's order, but a SCOTUS order requires the state to reply to a petition by Monday. The "status quo" is that these orders are legal, until someone constructs a compelling argument that they are not, and that matter is then resolved in favor of petitioner by SCOTUS (which has not happened). So far, governors have prevailed at the state level. | With respect to disciplining its students and employees, a private school can basically do whatever it wants. There's more freedom to do so with respect to students than with employees, who have greater protections derived from anti-discrimination laws, collective-bargaining agreements, and the like. If a private school wants to impose a No Burger Tuesdays and a complete ban on political activity, that's probably going to be permissible. The First Amendment will protect the school's right to associate with only those who meet its standards, as absurd as those standards may be. Again, there are exceptions to this rule, like Title IX, which requires equal educational opportunities regardless of sex, but they don't have much bearing on your question. Even for a public school, there will be quite a bit of latitude here, because these rules don't actually regulate off-campus conduct. If a student wants to attend an off-campus public gathering, the campus police aren't going to lock him in his room or arrest him for leaving campus. The rule is simply that if you attend a public gathering off campus, you may not come back on campus afterward to threaten the lives of your classmates. | united-states Once a body is cremated it is generally no longer subject to the laws related to dead bodies. But the disposition of a corpse that is not cremated varies greatly from one U.S. state to another. The Washington College of Law has a website called the State Burial Laws Project that summarized the relevant laws for many U.S. states. As the example of New Hampshire illustrates, however, lots of those laws pertain to preservation of interred remains once they are lawfully interred (i.e. to the preservation and protection of burials). Another multi-state survey has been prepared by Nolo. For example, in Colorado: Where can bodies be buried in Colorado? Most bodies are buried in established cemeteries, but there are no state laws in Colorado that prohibit burial on private property. Burials on private property must be recorded with the county clerk within 30 days. (Colorado Revised Statutes § 25-2-111.) The county recorder or coroner should be able to supply you with a form you can use for this purpose. The funeral director or person who has custody of a dead body must get authorization to dispose of the body (including burial or cremation) before doing so, usually from a county health unit or coroner. (Colorado Revised Statutes § 25-2-111.) Note that local governments may have additional rules governing private burials. Before burying a body on private land or establishing a family cemetery, you should check county and city zoning rules. Where can we store or scatter ashes after cremation in Colorado? In Colorado, there are few limits on where you may keep or scatter ashes. Ashes may be stored in a crypt, niche, grave, or container at home. If you wish to scatter them, you have many options. Cremation renders ashes harmless, so there is no public health risk involved in scattering ashes. Use common sense and refrain from scattering ashes in places where they would be obvious to others. Scattering ashes in an established scattering garden. Many cemeteries provide gardens for scattering ashes. If you're interested, ask the cemetery for more information. Scattering ashes on private land. You are allowed to scatter ashes on your own private property. If you want to scatter ashes on someone else's private land, it's wise to get permission from the landowner. Scattering ashes on public land. You may wish to check both city and county regulations and zoning rules before scattering ashes on local public land, such as in a city park. However, many people simply proceed as they wish, letting their best judgment be their guide. Scattering ashes on federal land. Officially, you should request permission before scattering ashes on federal land. As with local or state land, however, you will probably encounter no resistance if you conduct the scattering ceremony quietly and keep the ashes well away from trails, roads, facilities, and waterways. You can find guidelines for scattering ashes on the websites for some national parks. For example, the website of Colorado's Rocky Mountain National Park offers a downloadable application for a permit to scatter ashes in the park. Scattering ashes at sea. The federal Clean Water Act requires that cremated remains be scattered at least three nautical miles from land. If the container will not easily decompose, you must dispose of it separately. The EPA does not permit scattering at beaches or in wading pools by the sea. Finally, you must notify the EPA within 30 days of scattering ashes at sea. The Clean Water Act also governs scattering in inland waters such as rivers or lakes. For inland water burial, you may be legally required to obtain a permit from the state agency that manages the waterway. Scattering ashes by air. While there are no state laws on the matter, federal aviation laws do prohibit dropping any objects that might cause harm to people or property. The U.S. government does not consider cremains to be hazardous material; all should be well so long as you remove the ashes from their container before scattering. Colorado's laws are mostly aimed at preventing a body lawfully buried in a backyard from leading to a potential criminal investigation of a death that did not involve a crime by making it easy to match the body to a death certificate. But, most jurisdictions regulate the means by which bodies can be disposed of to some degree. For example, outside San Marcos, Texas, and possibly a few other isolated places, a practice that is traditional in some kinds of Tibetan Buddhism and among the Parsi people of India is called "sky burial" is not permitted. Historical Note In the early Neolithic era (e.g., in the Vinca culture), dead bodies were frequently buried underneath the decedent's house. In the early Bronze Age, cremation became a litmus test for Indo-European linguistic and cultural expansion in Europe, Central Asia, West Asia, and South Asia, although this practice faded after many centuries when this was the norm, and internment (i.e. burial) came to be the norm again. Cremation then tended to become more common in urbanized areas starting in the classical Greco-Roman era in Europe. This urban-rural divide between cremation and internment rates largely persists to the present, driven by the scarcity of land and the tendency of people not to live in the same place for multiple generations in urban areas, and the abundance of land and stability of families over many generations in rural areas where farming is predominant. But internment also tends to be less common in places with permafrost or ground that is frozen for much of the year, in places with very thin soils over bedrock, and in places with stable populations (e.g. Louisiana) that are immersed in wetlands where dry ground is scarce and rot sets in very quickly (crypts and cremation are more common in these places). | Can a shopowner in Thailand ban someone from entering their shop on the grounds of their citizenship? The first tweet, explains the context properly: I’m at my local hospital this afternoon to get a medical certificate. My work permit expires soon and so I need to run around getting all the documents in order. At the hospital they wanted to check my passport before letting me in to see if I had been abroad recently. Thailand has been very popular with visitors for decades and if laws existed that discriminated against foreigners this would be commonly known. So in this case the 'discrimination' probably not because of citizenship, but more about a faulty assumption that the virus is spread by foreigners. This will have nothing to do with Thai law. The (tweet) OP quotes only another persons claim. The OP states in the first tweet that they checked his passport only to see if he was abroad recently. So he didn't share the same experience of the American. Based on that, this second hand source (that can't be verified) is probably unreliable. Due to the present (global) uncertainties, caused by the Coronavirus, one should look at the whole picture. 2020-02-04: Coronavirus: Chinese targeted as Italians panic - BBC News In Italy and elsewhere, panic is spreading much faster than the coronavirus itself. Chinese businesses are empty, shopkeepers are shutting down and Chinese nationals are being targeted. At a bar beside the Trevi fountain, a notice was put up banning customers from China. So the the situation described by the original (tweet) OP is understandable, but the quoted (but not varified) second hand source as well as the events in Italy are not. The incidents have prompted condemnation from the Italian authorities. Prime Minister Giuseppe Conte reprimanded the regional governors, telling them that they were not competent to make such a call and that nothing justified such fear. Discrimination, solely due to citizenship, would be against Human Rights prevention of discrimination. Special cases may exist for prices that are subsidized and thus only for residents. Dual pricing was common in the Czech Republic until 1999, when it was ruled illegal (but still persisted). Then a foreign resident had to supply proof of residency to avoid paying the higher price. 2007: Illegal practice of dual pricing persists in Czech Republic At the time we assumed that this was legal (it was certainly understandable), but it seems that was not the case. Are the "Human Rights prevention of discrimination" written down somewhere? Also, who enforce them? Universal Declaration of Human | United Nations Human Rights Enforcement Mechanisms of the United Nations | ESCR-Net European Convention on Human Rights - Wikipedia European Court of Human Rights How these international laws/conventions are implemented into national laws will differ from country to country. For Germany they are anchored into the constitution: Basic Law for the Federal Republic of Germany Article 25 Primacy of international law The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory. and are enforced by the Federal Constitutional Court (Bundesverfassungsgericht) and can be passed on to the European Court of Justice (or European Court of Human Rights) should the need arise. Thailand: Part of Section 30 of the Constitution of the Kingdom of Thailand 2007: Unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, disability, physical or health condition, personal status, economic or social standing, religious belief, education or constitutionally political view, shall not be permitted. | "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. | This is known as the "ministerial exception". Because the Free Exercise and Estalishment clauses of the First Amendment prohibit the government from interfering with religion, the government cannot override a doctrine that contradicts the teachings of a religion (so women and gays cannot sue the Catholic church for not being hirable as priests). In Hosanna-Tabor v. EEOC, an individual taught classes and led prayer at a religous school, but was fired ultimately due to a disability (narcolepsy). The Lutheran church does not have any known doctrine condemning narcolepsy: but it was unanimously ruled that "the Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own". Thus the church was legally permitted to fire the individual due to her disability. | 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. | Art. 25 of the Indian Constitution says (in part) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. But, Nothing in this article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. The preamble does also declare that India is a sovereign socialist secular democratic republic, but this is not a clearly-enforceable article. There is no legal requirement that government action be entirely devoid of consideration for religion. What the law says is that the government must respect the rights of individuals to practice their own religion, but that does not preclude favoring a particular religion, e.g. using Hindu texts in official contexts. So far, the courts have not rules that government action must be entirely devoid of religious reference (for example the various Hindu family laws vs. Muslim family laws are not unconstitutional). |
What should I do if facebook ignore fake news? Now, our state is in war zone and people are dying daily because of war. Government and Arakan Army are fighting with heavy weapons. No Journalist are allowed to enters, we have 17 divisions in our state and only 3 divisions access internet and telephone. Government cut off those. So, here is my question. There are so many fake news on facebook about your state current situation. We reported facebook team and they reply "It doesn't go community standard". So, Where should I report if we have prove? If facebook ignores "fake news". Normally, in my point of views, fake news on internet is usual but people are dying and world need to know truth. | Facebook's local jurisdiction is the US. In the US, making false statements isn't generally illegal or tortious, as they are protected by the First Amendment to the US Constitution. So, Facebook isn't under any legal pressure to remove posts that are posting false information. It sounds like you've already asked them to remove the posts and they refused, so at this point you do not seem to have any procedural recourse with Facebook. It's possible your country or the country the person is posting from lacks free speech protections and would either prosecute or allow suits against someone posting false information, if that's the case you could try to get the local equivalent of a prosecutor to prosecute them. I realize that is unlikely to happen, the reality is that coordinated fake news on the Internet is still something that platforms are figuring out how to deal with fairly. | There is no law in the US that says you must tell the truth on the internet. Some places where one must tell the truth are: When speaking to police, the FBI, and most government agencies When filing your taxes with the IRS In certain business contracts When testifying before Congress But on the internet, you can claim to be the first man on the moon with impunity. If someone is gullible enough to believe you and send you money, that is their fault and responsibility. As far as eating a Pangolin, why should she "admit" it, when it was documented on Instagram? There is no duty to officially apologize for it. You can try to report her to the US Fish and Wildlife Service, which enforces the Endangered Species Act, but as it occurred outside the USA, they will be powerless. Her claims are dubious, and possibly incorrect. Her treatment of an endangered animal is reprehensible. However, you posted this to a law site, asking about "reporting it" (to some sort of authority), and tagged it "criminal law". Her behavior is troubling, but I don't see anything that is remotely illegal or criminal. | 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. | If you are charged under the laws of Estonia (or Australia or Thailand or the UK) then the laws of the USA have no relevance whatsoever. It makes no difference if you are a US citizen, if the alleged crime happened in the USA or was perpetrated against the USA. If nation X has jurisdiction then you are tried under the laws of nation X. That is what sovereignty means. As to your specific example, Facebook does business in Estonia, therefore they are subject to Estonian law, as a US corporation they are also subject to US law and the law of every other jurisdiction they operate in (see why they need big legal departments?). If a legitimate Estonian warrant was served on them to disclose metadata or anything else then they are legally obliged to do so or be in contempt of court. Oh, and by the way, the first amendment right to free speech does not give you a right to anonymous free speech. | The right to free speech is a right that is guaranteed against the federal and state governments only. It is not a right that is secured against private individuals and corporations. It is also neither absolute nor unconditional, as there are a number of exceptions/limits. Alex Jones could not walk into your home and start "exercising free speech" and leave you with no recourse whatsoever to remove him from your home. If you don't consent to him being there, you may legally tell him to leave and have him removed by force if he fails to comply. Facebook etc. are the "homes" of the relevant corporations. They simply told Alex Jones to get out and go somewhere else. He retains his right to free speech; he simply never had a right to speak wherever he wanted. An always relevant XKCD. | Was International Law Violated? When it used chemical weapons to kill large numbers of civilians in his own country, Assad's regime in Syria was violating its obligations under the Chemical Weapons Convention, an international treaty obligation that the regime acknowledged was binding upon it in 2013 when at U.S. insistence and with Russian supervision, the Assad regime purported to destroy its chemical weapons stockpiles. It was also an action violating generally recognized standards of the customary international law of war that have been recognized since they were first clearly articulated in the Geneva Protocol of 1925 that took effect in 1928. This kind of action has also been recognized as a crime against humanity under customary international law, and this principle is why international criminal tribunals set up after crimes against humanity occur are not considered to be applying ex post facto laws. Also, since early on in the Syrian Civil War, during the Obama Administration, the U.S. ceased to recognize Assad's regime as the legitimate government of Syria. According to official U.S. policy, since 2012, the Syrian National Council, and not Assad's regime, has been the legitimate government of Syria. So, rather than being an attack on a sovereign regime, this was an act in defense of a different sometimes allied regime recognized as legitimate, with whom the U.S. is not at war. Moreover, given that fact that the U.S. now has a artillery combat ground troop unit deployed in Northern Syria as of earlier in 2017, in support of a Congressionally authorized military action in the same theater of conflict, the U.S. has a legitimate interest in protecting its own troops, as well as those of allies it supports in the part of the conflict that it is involved in under the 2001 AUMF, from chemical weapons attacks in Syria by preemptively disabling the Assad regime's ability to deploy those weapons, even though they were not directed at somewhat nearby U.S. forces in their most recent utilization this week. So, while there may not be entirely clear international legal authorization for this particular remedy for the Assad regime's clear violation of international law, there is not a clear prohibition on doing so either, and the general rule is that sovereign states have wide discretion to take military action in support of their perceived interests, particular when violations international obligations of the offender targeted for military action provide a justification for the use of military force under international law. This is because the main way of punishing a violation of international war while a conflict is still pending is called a reprisal which the Syrian strike fits to a tee. A reprisal is a limited and deliberate violation of international law to punish another sovereign state that has already broken them. . . . Reprisals refer to acts which are illegal if taken alone, but become legal when adopted by one state in retaliation for the commission of an earlier illegal act by another state. Article XII(3) of the Chemical Weapons Convention authorizes those remedies allowed under customary international law of which reprisal is one. Did The President Have Authority To Make The Strike Under U.S. Law? This said, the harder issue is whether this strike was legal under U.S. law, and not international law, which really has no meaningful binding enforcement mechanism other than politics, diplomacy and domestic law anyway. While the U.S. does not recognize the Assad regime as legitimate, it is not actually at war with that regime because the Authorization for Use of Military Force (AUMF) from 2001 that has been the main legal authorization for the "war on terror" against ISIS, pretty clear does not extend to Assad's regime in Syria. ISIS has been declared to be a successor to a branch of the organization the launched the 9-11 attack upon which the AUMF declared war. But, the formerly legitimate government of Syria (Assad's regime) is very difficult to treat as coming within that definition. However, while Congress has not authorized the use of military force by the U.S. against the Assad regime in Syria in this manner, Congress has approved appropriations to fund and support anti-Assad rebels, even though it may have been a bit of a fiasco, which at least provides some tacit evidence of Congressional consent to some sort of involvement in the Syrian civil war by the United States government against Assad's regime. In absence of an authorization of use of military force against the Assad regime, one alternative source of legal authority to make this strike is legislation (whose constitutionality has often been questioned, but has never actually challenged, was determined by the Justice Department to be constitutional in 1980, and which is arguably not justiciable) called the War Powers Act of 1973. This Act, on its face, purports to give the President the authority to make limited use of military force for short periods of time. Specifically (per the link): It provides that the U.S. President can send U.S. Armed Forces into action abroad only by declaration of war by Congress, "statutory authorization," or in case of "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." The War Powers Resolution requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without a Congressional authorization for use of military force (AUMF) or a declaration of war by the United States. The question of whether this incident is within the scope of the War Powers Act is disputed with U.S. Senator Rand Paul arguing the conditions triggering its use such as an attack on U.S. forces or the United States, have not been met. The issues presented by this incident under the War Powers Act are similar to those presented in the missile strike and follow up airstrikes made by the U.S. in Libya in 2011. There is also legitimate room for dispute regarding where the authority of the President as Commander in Chief of the Armed Forces under Article II, Section 2, Clause 1 of the United States Constitution ends, and where the power of Congress to declare war and to enact other legislation pertaining to the U.S. military under Article I, Section 8 of the United States Constitution begins. Arguably, directing U.S. forces to make an isolated military strike from a location where they are already lawfully deployed in support of an AUMF authorized military mission in the region, in exigent circumstances, against a military force that is not recognized by the United States as the legitimate government of Syria, does not constitute a true act of war and is instead merely day to day management of the operations and discipline of the United States military that is within the Commander in Chief's authority, particularly when Congress has already tentatively recognized the Syria's Assad regime is an enemy of the United States in legislation short of an authorization for use of military force. Moreover, given that President Trump surely has majority support in both houses of Congress for this strike, the possibility that Congress may end up granting forgiveness rather than making much of the fact that he didn't ask for permission, may be mostly a formality in this case. Generally speaking, even if this issue is justiciable (i.e. amenable to resolution through the court system), court action to enforce separation of powers questions must be authorized, at least, by a resolution of a majority of one of the two houses of Congress. Generally speaking, taxpayer standing or just plain U.S. citizen standing, does not exist to enjoin or seek a remedy from a separation of powers violation. | Is this illegal? No, subject to some possible narrow exceptions discussed below. Do the social media companies have a duty under the First Amendment to not censor users? No. Indeed, usually, there is greater liability exposure for failing to censor content, for example, by failing to honor a "take down notice" under Title II of the Digital Millennium Copyright Act based upon an alleged copyright violation, or for failure to censor content related to potential sex trafficking. The First Amendment to the United State Constitution (which applies to state and local government via the 14th Amendment to the United States Constitution) is a limitation on the power of governmental actors only. This said, some state constitutions, such as California's, provide free speech protections not just from government action, but also in spaces that are privately owned, but are open to the public and constitute de facto public forums. The authority of California to expand its state constitutional protections to these private settings was confirmed by the U.S. Supreme Court in the case Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). It is conceivable that these doctrines could be expanded to public Internet forums in the case of California based social media companies (e.g., Facebook has its headquarters in Menlo Park, California; so does its sister platform Instagram; LinkedIn is based in Sunnyvale, California; and Google is based in Mountain View, California). There are also laws that limit how employers can regulate employee speech in a labor relations context, although most of them don't have constitutional dimensions. It is conceivable that these doctrines could limit social media platform's authority to limit some kinds of speech by their own employees, or in situations where the social media platform looked like it was acting as a mere agent of some other employer controlled by that employer for all practical purposes. There has also been litigation related to free speech on social media regarding the rights of governmental account holders to exercise the same kinds of account management that is available to other users, implicating the First Amendment right to petition the government. The social media platform operator is not itself the primary target in these cases, but if it simply implements its terms of service neutrally with respect to all account holders, it could be facilitating a constitutional violation by its governmental account holders and could conceivably be held liable for aiding and abetting that violation of the law by a governmental account holder (in the context of a lawsuit for money damages this is a special subtype of something called a civil conspiracy). | 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. |
Sending dried fruits to Australia through courier I have sent 1kg of dried fruits as a gift to a friend from New Zealand to Australia. I DECLARED them in customs form when sending parcel through New Zealand post. But now some one now tells me that dried fruits are prohibited items to be sent to Australia. I am worried that what will happen to that gift? Will Australia Customs confiscate it? or Am I liable for a fine? | You would not be liable for a fine (If you think about it, how can you be - Australia does not have jurisdiction over you as you are in New Zealand, and you have broken no NZ law - Further, you declared the item to customs so even in Australia you could not be held liable) Looking at it another way, if you had gotten on a plane with it, declared it to customs on the arrival card, they would have simply asked to see it and made a decision whether to let it in or not - they would not fine you. Customs may or may not confiscate it (ie they may let it through). I've not sent a parcel to Australia, but I have imported seeds into NZ - I made a number of calls and emails to ensure I got the process right - expected to pay quite a lot of money to do it - in the end they just came straight to me - MAF did not even examine the parcel. Being that NZ and AU are pretty similar in terms of legislation (ie both the food standards are the same) - its probably actually Ok to send it anyway - in fact the Imported Food Control At 1992 - which I believe is applicable - specifically exempts many foods imported from New Zealand from the act. The last paragraph of this AU government web page states "The only New Zealand foods that are subject to the IFIS at the border are those classified as risk foods. Equivalence determination of food safety systems covering dairy products was reached in 2007 and seafood, uncooked pigmeat, chicken meat, coconut, pepper, paprika, peanuts and pistachios were aligned in 2011. This enabled these products to be brought under the TTMRA and removed the requirement for border inspection for these products." | Probably not Once you and the store have entered into a contract the price in that contract is determinative. However, most online stores' terms are very clear there is no contract when you place your order or when you get their automated reply; the contract comes into existence later when they do something. For example: With respect to products sold by Amazon AU, your order is an offer to us for you to buy the product(s) in your order. ... The Order Confirmation is acknowledgement that we have received your order, and does not confirm our acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product(s) to you and send e-mail or post a message on the Message Centre of the website confirming that we've dispatched the product to you (the "Dispatch Confirmation"). ... Now, even without these terms, it's unlikely that your offer and the company's automated response created a binding contract because the company (as in, an actual person acting for the company) did not consent to the formation of the contract. Consent is fundamental: see What is a contract and what is required for them to be valid?. What you received was an "order confirmation" - a reiteration of your offer to the company, not an acceptance of your order. Consumer protection Most jurisdictions have consumer protection laws that make it illegal to display an incorrect price. However, in most, that does not oblige the retailer to honour the price, it just exposes them to fines from the regulator. | At the federal level, gift cards seem to be treated as a special case of electronic fund transfer. 15 U.S. Code § 1693l–1 and the corresponding regulations presently regulate disclosure of fees and expiration, and do not directly say anything about sale of such a card. There might be relevant state laws, though Washington state laws mostly mirror the federal law (also allowing issuing a card with an expiration date if given for no value to a charitable organization). You can actually get your last $5 back in cash in Washington per RCW 19.240.020. A gift card / certificate isn't a "thing" in the way that an apple, hammer or table is, it's a contractual relationship. If you own a thing, you can freely re-sell it to whoever you want (assuming there isn't an express statutory prohibition against the sale of the thing). You cannot universally sell (assign) a contract right – there is a default preference that you should be able to, but Amazon has in this case said "No, you can't". | OK, the prohibition on commercial use stems from either: The tort of passing off; this is a private civil matter between the model and the publisher, or Breach of s18 of the Australian Consumer Law which involve misleading or deceptive conduct; this is a public civil matter with strict liability (i.e. intention or negligence is irrelevant) between the ACCC and the publisher with fines of up to $1,100,000 for a body corporate and $220,000 for an individual. In both cases the cause of action arises from the possible presumption by a person who views the photograph that the model in it is endorsing the goods or services that you are selling. The standard is: Would a reasonable person, viewing the photograph in context, come to the conclusion that the model is endorsing the goods or services (either because they really like it or they were paid to show they really liked it). Context is everything here. Some examples: If you a photo studio selling the actual photograph then there is no endorsement. If you are using the photograph to promote the studio there is. If you are showing a crowd scene (e.g. at a football match) there is no endorsement. If you are showing a building and the people are incidental there is no endorsement. If you are showing individuals or small groups in a way that promotes your goods or services there is endorsement. So, look at the photograph and the purpose you are using it for: could a reasonable person draw the conclusion that the people in it are endorsing your application? | It may be discrimination; not all discrimination is illegal. Details vary by jurisdiction, for example discrimination on the following bases is illegal in Australia: race colour sex sexual preference age physical or mental disability marital status family or carer’s responsibilities pregnancy religion political opinion national extraction social origin A medical condition like an allergy is not necessarily a physical disability. The school is arguably fulfilling its obligations under WHS legislation by banning nut products if that is what a risk assessment indicates. It may also be necessary to ban milk products if that is required for your daughter's safety. If (and I do not know) nuts pose a greater risk than milk then banning the former and not the latter may be perfectly justified. Ask to see the risk assessment. | The order itself is here. It applies to "any United States person", which includes citizens, LPRs, entities with a US basis, and any other person in the US including tourists. It applies to transactions, and not static possession. There is no exception to the effect that "you can trade as long as it's not on the NYSE", and it says Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate the prohibitions set forth in this order is prohibited The order is not just directed at brokers, or the NYSE, it applies to everybody / everything everywhere, if you are a US person. Apparently there was some unclarity on the OTC question, which was clarified by the Office of Foreign Assets Control, to the effect that it includes OTC trading. | Yes australia This is a straight up and down case of “deceptive and misleading conduct”. There is plenty of case law to support that testimonials (which this is) must be genuine, not paid for as they are from an actor. Further, they cannot be cherry-picked. If 5 real people reacted and 2 reacted negatively, you cannot just show the 3 who reacted positively - you have to show them all or otherwise disclose that 3 out 5 people loved the product. When actors (or people who are otherwise getting paid) are used that fact must be disclosed if it is not clear from the context. In a typical ad where people are just shown using the product without giving a personal endorsement it’s sufficiently clear that they are actors. However, in the type of ad you describe if they were actors this would need to be stated. Television and radio personalities must disclose when they are being paid for an endorsement under enforceable codes. Influencers are required to do so under non-binding codes, however, it is likely that breach of these codes would also be a breach of the law. | 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. |
Are prescribed burns legal in Russia? One (badly written) article from 2009 seems to suggest that prescribed burns are illegal in Russia. Is that (still) the case? And if, to the contrary, they are legal, who can authorize them? What I could find out from a more recent (and somewhat better written) 2015 article in the same venue: Starting with the first East-West international conference “Fire in Ecosystems of Boreal Eurasia” (Goldammer & Furyaev 1996) and the Fire Research Campaign Asia-North (FIRESCAN) (FIRESCAN Science Team 1996, 2013) a dialogue with the forestry authorities of Russia (and the predecessor administration in the former Soviet Union, the State Forest Committee) has been initiated to replace the fire exclusion policy in the protected zone of the Russian Federation, Mongolia and Kazakhstan by an integrated fire management approach, which would include the use of natural fire and prescribed burning (Goldammer 2013a). Between 2008 and 2013 three major scientifictechnical events have taken place in Mongolia and Russia. The First International Central Asian Wildland Fire Conference “Wildland Fires in Natural Ecosystems of the Central Asian Region: Ecology and Management Implications” was held in Mongolia in 2008 and had significant impact on the review of past approaches in forest and fire management and on the ongoing process to formulate fire management policies in the region (Byambasuren & Goldammer 2013). In 2012 and 2013 two “International Fire Management Weeks” were organized in Krasnoyarsk Region, Russia, and resulted in the formulation of recommendations for adapting the fire management policy of the country with reference to the use of prescribed fire, allowing natural wildfires to burn within prescription and to take advantage of natural regeneration processes.1 The aspect of changing fire regimes as a consequence of climate change and land-use change has been addressed in a dedicated conference in 2013 and resulted in a strong warning to the governments of the region that the changes ahead may result in a threat by dangerous fires in future. That seems to suggest that at least until 2013 prescribed burn was either not legal or not practiced in Russia. So has anything changed in that regard? | It is legal, by Ministry of Nature order from 24th September 2019, but under strict control, by specially educated people, and only as part of other counter-fire measures, such as fire strips. Should be noted, that order restricts firing only grass, not setting trees on fire: Факторами, исключающими проведение профилактических выжиганий на участке, являются: а) наличие многоярусного строения древостоя, которое создает условия для развития верхового пожара; translated as: Factors that preclude preventive burning on the site are: a) the presence of a multi-tiered structure of the forest stand, which creates the conditions for the development of a riding fire; Paragraphs 14 and 15 also specifies forests, where such measures cannot be applied: Профилактические выжигания не применяются в лесах, относящихся к категориям защитных лесов в соответствии с пунктами 1, 2 части 2 статьи 111 Лесного кодекса Российской Федерации 2. Профилактические выжигания не рекомендуется применять в лесах, относящихся к категориям защитных лесов в соответствии с пунктами 3, 4 части 2 статьи 111 Лесного кодекса Российской Федерации 3. translated as: Preventive survival in forests related to the categories of protective forests in accordance with clause 1, 2 of part 2 of article 111 of the Forest Code of the Russian Federation 2. Preventive survival is not recommended for use in forests belonging to the categories of protective forests in accordance with clause 3, 4 of part 2 of article 111 of the Forest Code of the Russian Federation 3. Protective forest is an (mostly) artifically created forest, which protects some natural or unnatural object. For example such forest may protect river banks from destruction. Also, it is widely presented as 'protective forest strips' - along fields or railway - to protect both from wind. It is enough widespread thing in Russia and China. It is not widespread-used in the West, maybe because of that I do not see english wiki page about it. | There is no federal prohibition against sexual discrimination in public accomodations. Colorado has an applicable state law, which covers "any place of business engaged in any sales to the public", where "It is a discriminatory practice and unlawful ...to refuse, withhold from, or deny to an individual or a group, because of ...sexual orientation...the full and equal enjoyment of the goods...". No provision exempts lemonade stands. Churches etc. are specifically exempted: "'Place of public accommodation' shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes". Sex discrimination is allowed "if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation", an argument that can't reasonably be made in the described case. It is also not obvious that running a lemonade stand is a business (the courts will not admit unsubstantiated Wiki assertions as evidence). It would be relevant to wonder what constitutes a "business" under Colorado law. E.g. is a business license required? In Colorado (US) law, it has not been definitively decided whether there can be a religious exception to the anti-discrimination law. Masterpiece Cakeshop was decided without answering that (the state showed clear religious intolerance in its handling of the case). We do not know how a similar case will be decided: Arlene's Flowers was handed back to the state court with the instruction "do it again" (with nothing more than a mention of Masterpiece Cakeshop). The court cannot establish certain beliefs and practices as "valid religions" (Establishment Clause); the proxy expression that is used is "deeply held belief", which includes atheism. The relationship of the issue to the First Amendment is uncertain. | Article 75 says that It devolves upon the Storting: (a) to enact and repeal laws; to impose taxes, dues, customs and other public charges, which shall not, however, remain operative beyond 31 December of the succeeding year, unless they are expressly renewed by a new Storting Article 97 says that "No law must be given retroactive effect" . The combined effect of these provisions is that any changes in the law effected this year could apply to tax years after 2020 but not including 2019. So the law as written supports your understanding. Skatteetatten seems to agree since the rules are listed as covering 2019. | The Soviet Union generally had no copyright treaties with the western world before 1973. So, anything before then is public domain. The USSR had a policy of public domain and considered anything published to be the property of the "people", including anything published in the west. Even for works produced after 1973, they would have to be registered for copyright in the United States to claim a copyright here. | 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. | He has this phrased like it's the ability to decide which laws you follow, and that it's an ability being withheld from the general public (although I seriously doubt that at least the former is the case). This is yet another false claim made by "freemen" or those who claim "common law defences". Notice of Understanding has no legal meaning unless the context demands that it evidences a meeting of the minds for the purposes of contract formation. It is a well-settled principle of common law that in order to be bound by a contract, there must be an agreement. Put simply, I cannot bind someone simply by sending them a Notice unless it is a right conferred on me by some earlier statute or legislation, or legally binding agreement. I tried searching for a solid definition, but all I could find was people/organization's Notice of Understanding and Intent and Claim of Rights. The reason you've found nothing official about the terms Notice of Understanding and Intent and Claim of Rights is that there is nothing official or legal about those terms. They are ordinary terms with ordinary meaning being bastardised by deluded people who believe they can fine the government and refuse to be bound by the law of the land. Of course, none of this holds up. What is the purpose of declaring your Notice of Understanding and Intent and Claim of Rights? It might make you feel better, even though it has no legal, practical or other effect. | Questions about "why a law is ..." are political questions not legal questions and you may get better traction on politics. However, I will address the legal issues and offer some speculation on the politics. The states named in the preamble to the Constitution (an Act of British Parliament) as original states were New South Wales, Victoria, Queensland, South Australia and Tasmania. Western Australia was not named at the time of the passing of the Act or Royal Assent because the people of that colony had not vet made their mind up. Legal Issues WA decided to join in a vote held on 31 December 1900 and Australia came into being on 1 January 1901. Therefore, even though not named as such, WA was an "original state". Since all 6 states in the Federation are "original states" the clauses have no practical effect at present. However, there have been a number of proposals to add new states, either by subdividing existing states or by granting statehood to the territories of Northern Territory and/or the Australian Capital Territory. If such were to come to pass, the clauses would have practical effect. In 1998, Norther Territorials rejected an offer of statehood that would have given them 3 senators as a state and 2 representatives based on population (currently they have 2 senators and 2 representatives). Clearly, they were not being given the same privileges as an "original state". In 2015 all Australian governments agreed in principle that the NT should become a state by 2018, however, as it is now 2017 and no action has been taken this seems unlikely. Political Issues Politics is complicated: just as much in the late 19th century as it is in the early 21st. Negotiations between the colonies were fraught and federation was by no means a certain outcome. New Zealand and Fiji dropped out early and each forged its own path to nationhood. However, by the late 1890s it was clear that the 5 eastern colonies would federate with or without Western Australia. It seems likely that this provision served multiple purposes including: putting pressure on WA to join at the outset - the deal they got as a "Johnny come lately" may not have been as good. protecting "white" Australia - the drafters of the Constitution were men of their times, that is to say: racist, misogynist bigots. Any non-original states were likely to be former British colonies in the Pacific or South-East Asia, this clause would allow the nation to reduce the influence these non-white states might have. | Depends on where you are, and what law would be broken and why. In germany, there is the concept of rechtfertigender Notstand (justifying emergency). If there is a present danger to a Rechtsgut (legally protected interest), one can take necessary and proportional steps against another legally protected interest. Say I walk through a winter landscape and there is a person who has broken through the ice of a lake (a present danger of the loss of life). Nearby is a yard with a ladder leaning on a shed. I would be allowed to enter the yard (normally trespas) and take the ladder (normally theft) in the rescue attempt (life counts for more than a ladder, using a ladder is necessary/appropriate for an ice rescue). The details are, as usual for Law SE, complicated. |
A sitting judge is claiming to represent a client against me. Should I file a bar complaint? We recently had to fire an employee for cause. After we sent an email to the former employee asking for a password to an account that belonged to the business, we received a reply from a person who represented themselves as the lawyer for the employee. The content of the email was: Have your attorney contact me to discuss. I’ve instructed my client not to discuss this matter with you directly. The sender of this email is a sitting county judge in my state (Texas). Google tells me that sitting judges are not ethically allowed to practice law here. Should I file a bar complaint? | No, the Texas Code of Judicial Conduct permits County Judges to practice law except "in the court on which he or she serves or in any court subject to the appellate jurisdiction of the county court, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto." This is because County Judges in Texas are not judges in the classical sense. They are more like the CEO of a given County. ( cited above is Canon 6(B)(3)) | As a adult of sound mind, you are responsible for your actions. Background checks for job applications are common place to determine suitability. The employers have the right (and responsibility) to choose what is in their best interest. If through your previous and present actions, they come to the conclusion that you will become a liability to their interests, they will determine that you are not suitable for the position. Not being suitable for a position is not a discrimination, but a determination of fact. Rights and responsibilities go hand in hand. The same is true for the employers. They too have the obligation to act in their own that of their other employees that of their clients interests. In cases where a judge comes to a conclusion that the rights of others are being impeaded, they will most likely decide for that party. It is unlikely that a judge will assume that an individual is the center of the universe and that everyone else must revolve around that individual. | Would a U.S court honor his request, based on his prior commitment? You are not specifying the purpose of the court hearing, or whether Adam is pro se litigant (which sounds unlikely if this plaintiff is a movie star). If plaintiff Adam is represented by an attorney, Adam's presence is unnecessary in most or all court hearings. In fact, typically neither parties nor their lawyers have to show up in court, whence their absence does not constitute contempt of court. Absence merely implies that they miss the opportunity to [orally] argue their position before the court, and thus would depend on whether the judge bothers to actually read their brief. If you mean a hearing in which Adam needs to be present, his request to reschedule the hearing is most likely to be granted. His contract is strong evidence that his request is not a vexatious attempt to delay proceedings. Since the hearing would be in month 4, the particularity that his contract goes up to month 4 implies that rescheduling would not significantly delay proceedings. Regarding your comment, rescheduling can (and does) happen multiple times even in criminal cases. This post includes an excerpt of the Register of Actions of criminal case 16-870-FH in Michigan state court (Washtenaw county), highlighting several instances of rescheduling as requested by the defense counsel and despite prosecutor's objection. I believe the case got rescheduled a few more times beyond what the snapshots reflect. | You can always complain to the county. It is not obvious from your description that you have a legal case. One reading of the circumstances is that you did not have a job offer, you went there on the assumption that you might get an official offer after being "oriented" and interviewed. The interview did not go well, so they did not give you the job. Time and travel expenses are often borne by the job candidate. The alternative interpretation is that you had an actual job offer, and you traveled to the site as part of your employment (involving some training). In that first session, things went bad, and you got fired. If that is the case, then (a) you would be owed wages for that day and (b) there is a slim chance that the firing was not legal (there could be restrictions on firing employees in government jobs, in whatever jurisdiction this is). Your attorney will guide you (after you giving a more detailed explanation of the circumstances) in understanding whether you were fired, or not hired. | How should I proceed? I am asking law friends to recommend some employment lawyers, but other than this, can I do anything else? You definitely don't need an employment lawyer for this. From a legal standpoint, the matter is very simple: If you grant their request (whether by signing or otherwise expressing your acceptance), you would be waiving any remedies currently available to you for their breach of contract. The company's attempt to override its contract with you is quite naive, but the company can always (and evidently does) try to get away with its liability nonetheless. I would not be surprised if the company subsequently tries harder to intimidate you, but that does not change your legal position & merits unless you sign the waiver the company is pursuing. Asking for your post-termination availability reinforces the notion of company's poor planning and subpar management. | You don’t need to hire an attorney If you like, you can represent yourself. Just like you can build your own house, repair your own car or amputate your own limb. You only need to be a lawyer if you are representing someone else. However, there is a saying that goes: A person representing themselves has a fool for a client. Your lawyer is a professional, you aren’t. They know what to do when the other side says “Objection, facts not in evidence” or how to correctly fill out, file and serve a pleading; do you? | Your attorney can file a lawsuit against the other driver, and legal liability can be determined in court. Your want to let an attorney do this, because the one thing that keeps you from being (expensively) counter-sued for defamation is that you didn't name the driver and insurance company. It is extremely unlikely that the other driver accused you of liability ("liable" is a legal conclusion, not a fact). Instead, there is a dispute over the facts. During the trial, both sides get to present their evidence and the judge will determine who is actually liable. If you are found liable, your insurance company may have to pay up. If the other guy is found liable, his company will have to pay up. Or, fault can be split 50-50 (in which case you will be out of luck because you don't have collision insurance to cover your losses). If the insurance company believes that the facts support their client and that you will lose in court, they are not going to volunteer to pay your losses. If they believe that the facts support you, or are closer to 50-50 w.r.t. fault, they are unlikely to volunteer to give you money. If the driver makes a material plainly false statement to his insurance company, they might have recourse against him. Lying under oath is perjury which is a criminal offense. But mis-remembering facts or having incorrect beliefs is not a crime and won't lead to any legal problems for the driver. The belief that you are not at fault is not a lie. If the facts are as cut and dried as you make them out to be, the matter will be easily sorted out in court. | What legal options do I have here? I don't think I can sue for defamation of character since the email was sent to me only. Your rationale about defamation is accurate with respect to the establishment (henceforth "company"). But you may sue the person(s) who approached the company to falsely accuse you of that crime. Being banned certainly qualifies as special damage (that is, concrete damage), whence you have a viable claim of defamation per quod. If the crime that was falsely imputed to you is a felony or serious crime, then you additionally have a viable claim of defamation per se. I was thinking that I may have some legal recourse since the email clearly threatens to defame my character if I re-enter the establishment You have legal remedies, although not necessarily from this angle. The company can credibly argue that it sought to discourage you from contravening the "safety measure" it adopted in response to the accusations made about you. If it turns out that the company fabricated any false accusations it divulges, though, then you could sue the company for torts related to --and in addition to-- its defamatory falsehoods. So far the information you share here shows no signs of company's involvement in inventing the false accusations. What legal options do I have here? You need to ask the company for source and details of the information. In line with this comment, you should also ensure the company is aware of the mistaken identity. If the company declines to listen to you --and ideally see any proofs you have--, that could evidence some sort of tortious conduct on the company's part. Beware that in Florida a defamed person is required to demand a retraction of the false accusations prior to filing a defamation suit. Absent that request for retraction, it will be very easy for the sued defamer(s) to have your complaint dismissed. If the company refuses to disclose the source of the false information, then you need to seek injunctive relief in court. That means suing the company so as to (1) compel the company to identify the person(s) who accused you, and perhaps (2) strike the ban that the company put in place as a result of the false accusations. Even if you don't prevail in striking the ban, the court proceedings would give you the occasion to set the record straight and prevent the company from defaming you if you legitimately expose (to the public) the arbitrariness of its ban. To be clear, the company can always indulge in defaming you for the sake of justifying its ban, although that would be dumb in light of what you will have proved in court by then. In jurisdictions where a request for retraction is not mandatory, a plaintiff who does not know the identity of his defamer(s) may (1) file suit against "Doe defendants", (2) subpoena the non-party company so as to obtain records related to the false accusations (obviously ensuring that these reveal the authorship thereof), and (3) upon production of subpoena records and requesting the identified defamer for a retraction, amend the complaint to properly identify the defendant. This would be more efficient than filing two suits (one for injunctive relief against the company, and another against the defamers). However, I am uncertain of whether this would work in Florida, given its pre-suit requirement of request for retraction. |
Can the cashier be held liable for credit card fraud if procedure isn't followed? Since the liability shift back in October, retailers are now liable for credit card fraud that occurs through them. This is to encourage them to move to the more secure chip and pin POS systems, but many retailers have not made said switch and instead have adopted more rigorous verification methodologies for the old system. One such system I have seen requires the cashier to check the ID of the customer and match it with the card, as well as match the last four digits of the card with the last for digits that were read by the card reader. Other procedures require signature checking and other such things. My question is this, if the cashier does not follow one or all of these steps (cashiers are required to maintain a certain speed, these procedures are very time consuming) and fraud occurs, then is the company able to transfer liability to its employee on the grounds that procedures were in place to prevent it, but were not followed? | In theory, yes; in practice no. At common law, an employer is vicariously liable for the negligent actions of an employee performed in the course of employment, and the employee is also liable to third-parties but can claim indemnity from the employer. The employer can sue the employee for breach of contract and win (see Lister v Romford Ice Cold Storage), however, such suits are rarely brought and even more rarely successful. This is partly because of the bad publicity such cases generate but mostly because many jurisdictions have introduced laws to stop them like the NSW Employee's Liability Act. | Well ... the crime of fraud and the tort of deception. If you say you will do X and enter a contract on that basis knowing that you won't then that is fraud and it carries gaol time. Your bank could also revoke your contract and sue for damages. | In theory, a store can ban you or anyone else for any reason except those protected by law against discrimination. As a practical matter, you potentially have various forms of recourse. The first thing to do is to write the the CEO of the chain, with a long detailed letter describing the incidents, and naming names. Most CEO's don't want to deal with this kind of bad publicity, and will at least order an investigation, and make amends, if the internal investigation is in your favor. This would apply even to the late Sam Walton, if the chain is WalMart, or whoever the current CEO is. If you are a member of a protected minority, or even have dark skin, you can sue the chain on those grounds. There will be a presumption that they barred you on grounds of race or color. Then the burden of proof will be on them to show that they didn't bar you for those causes. As a form of "entrapment," you should take a witness, basically the most influential person you can get hold of that's not a family member, to the store with you to ask them why you were barred. The mayor of your town would be ideal, more llkely it would be a boss, teacher, or clergyman, but in any event, someone who knows you well. If you can get them to accuse you of stealing in front of this third party, you have the makings of a defamation case. And even if you aren't a minority, you can sue them anyway. You can demand "discovery" of all internal documents, videos, etc. relating to your case. Your lawyer will also the right to "depose" (cross examine) all offending managers.There's a good chance that something embarrassing will turn up in the process. (Many defendants settle in connection with discovery.) You might want to hire a second (libel) lawyer to teach you how to publicize the case without running into libel laws. If all this fails, the store can probably bar you, but you want to make it prohibitively expensive for them to do so, meaning that most rational people wouldn't bar you after the above. If they do, they're not rational and you're better off not using the store. | I think this is a lot like this question Liability for poisoning food one expects to be stolen because you are causing harm to someone/something when they are using your things without permission. That question says that if you expect someone to do something with something that you have purposely made wrong then you are legally responsible for the effects. | Some jurisdictions do that. Others don't (see, for example, the Dutch national identity card). My New York driver's license is in all caps, and I rather suspect that it's a holdover from the days in which licenses were processed using a computer system that had only upper-case characters. But that's just a guess. The real answer is that the premise of the question is incorrect. | The correct term for this insurance is personal liability insurance - it is neither compulsory nor common in common law jurisdictions. However, some aspects of it may be bundled with other insurances like homeowners, landlords and contents insurance. Liability for damage in common law flows either from a breach of contract or a tort. Of course, if you intentionally cause harm you have crossed the line from civil liability to criminality and no insurance will indemnify you. For your specific examples: [I]f, say, a candle falls over and I burn my flat? If your lease prohibited you from having open flames then this would be a clear breach of contract and you would have to pay for the damage to the flat (and your own property, of course). If your lease was silent on this, then you would be liable if you were negligent and each party would bear their own losses if you weren't (i.e. it was a pure "accident"). What if a flower pot falls from my windowsill and accidentally kills someone? The passerby has no action under contract as they don't have one. They can sue you, or the landlord, or the body corporate (or all three) for negligence - the landlord's and/or body corporate's insurance would respond and if it included a waiver of subrogation (most do), the insurer could not sue any of the other parties for their losses. What if my trolley bumps into an old lady at the supermarket and I break her hip? What if I walk on my friend's glasses and break them? You have no contract with either of these people so they cannot sue you under one. If they can prove negligence then you have to pay for the damage. If it is, instead a pure "accident" then they bear the cost. However, for the old lady, she is way more likely to sue the supermarket as they will have insurance. It is not as useful in the UK as it is in France due to the need for the plaintiff to prove a breach of contract or negligence. In the UK, you are not responsible for accidents you cause - only accidents you cause negligently. | Not legal advice - you should consult an attorney who knows your local jurisdiction. That's a general statement, but especially true here because the GDPR does not include personal liability for directors (or others) in the event of a data breach, but domestic laws may indeed do just that. The UK is one example where certain circumstances can lead to criminal liability for directors of a firm in the event of a breach. That said, your company should care. The fines for knowingly allowing a breach or not reporting it properly in a timely manner have been made more significant than the prior Directive. There are things you could do to potentially mitigate consequences in the event of a breach and a fine being levied on the company, such as aligning with best practices and getting certifications. In sum, the actual punishments for noncompliance will vary by jurisdiction, but any business that handles data in the EU should undoubtedly be ensuring it is aware of what, if any, obligations it has and taking steps to comply before May's deadline. | 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. |
Can an employer require employees to be COVID-19 tested at their own expense? In this case, the employer is a medium-sized ENT office. Some employees are young single mothers who don't have the resources to comply with this. The question also applies to non-medical employers, of course. | Depends on your definition of "require". In case of at-will employment — where the employer can fire an employee for any or no reason (other than that being discrimination of a member of the protected groups) — it would be perfectly legal for the employer to fire an employee who does not comply with that request. But that aside, no (unless such testing was a term of the employment agreement, be it written or verbal). No party to a contract can require the other party to perform what the contract terms did not include. | This is just saying that if they can’t host your event then the only remedy you get is your money back that your paid them (your deposit, advance payments, and of course your don’t owe final payments). It is there to make it clear that they are not responsible of any other money. What else might the client want them to refund? Other lost expenses. Non refundable deposits to the band, the florist, the caterer if this is just for the space. The non refundable airline tickets your relatives bought. Prepaid hotel rooms. They will not pay for any of that. The pandemic is a bit of a red herring because although that is of course the big thing now, it says any occurance whether or not the business caused it. The answers to your specific questions though are pretty trivial. -The business did not cause the pandemic or control the state health office (Irrelevant as noted) -There is nothing they can do about it. The state or county will allow the events when the situation improves. But even if say there was no state order but the venue for their own reasons or because they could not get enough staff cancelled, the answer would be the same. | Employers – whether public or private – have a duty of care. They must provide a safe working environment that does not endanger the health of employees, which includes appropriate heating/cooling. Too low temperatures must be prevented to protect the health of employees. Therefore, existing regulations in form of ASR A 3.5 require minimum temperatures: how strenuous → light medium heavy seated +20°C +19°C - standing, walking +19°C +17°C +12°C EnSikuMaV reduces these minimum temperatures for light and medium work by 1°C: how strenuous → light medium heavy seated +19°C +18°C - standing, walking +18°C +16°C +12°C The EnSikuMaV wants to ensure that the public sector serves as a role model, and therefore requires that public buildings are heated to exactly the minimum allowed levels (these levels are maximums per § 6 but also minimums per § 12). Public sector employers can nevertheless keep higher temperatures in individual cases if they consider this necessary for their duty of care. See explanations on page 22 of the document. The private sector is not forced to reduce heating, but now has legally safe grounds to reduce heating somewhat, if they so wish. This Verordnung does not introduce minimum heating levels, but lowers existing temperature requirements. Reducing heating reduces costs, and will therefore generally be in the interest of (profit-maximizing) private industry. Some minimum temperature is necessary to protect the health and rights of workers. See the explanation on page 27 of the document. ASR A3.5: https://www.baua.de/DE/Angebote/Rechtstexte-und-Technische-Regeln/Regelwerk/ASR/ASR-A3-5.html (direct link to PDF) EnSikuMaV: https://www.bmwk.de/Redaktion/DE/Downloads/E/ensikumav.pdf (permalink to PDF) | 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. | You must follow the lawful and reasonable directions of your employer As an RN you have obligations under the law that are independent of your employment. Almost certainly, one of these is not to practice in an area which you are not skilled or qualified to do so (unless you are under adequate instruction and supervision). Remember, as an RN you, personally, are legally responsible if your advice leads to harm and you were not acting reasonably. There are plenty of nurses who have gone to jail for delivering a lethal dose of medicine that was wrongly prescribed by a doctor. Even if your advice is unlikely to lead to this, you can still be deregistered - seems a waste of a lot of education just to become an Uber driver. Further, most jurisdictions make it illegal to mislead or deceive in trade or commerce. This one won’t send you to jail. So, it appears that the instructions are unlawful and it is not misconduct if you were to, politely, refuse them. This would not give your employer grounds to fire you. However, you should document your concerns and reach out to your union and possibly consult a lawyer. | One path would be to get compliance, by demonstrating that it is legally required. The best evidence that he is legally required to wear a mask is this recent mandate from the Department of Public Health. However, I cannot find a corresponding executive order, which may be in a generic form empowering CDPH to issue orders. Any imposition of penalties for violation must be publicly announced and rest on legislative authority. The mandate is not generally enforced, except in a few cases regarding bars and restaurants. There are various persuasive avenues that you could pursue, such as asking CDPH to come talk to him (unlikely, but you could try), complaining to the property owner, appealing to local social media to apply pressure (possibly putting yourself at legal risk for defamation, if you make a false statement). There are two more involved legal actions to contemplate. One is to terminate the lease and move elsewhere. This would likely result in an action to collect the remainder of the rent, but the strategy would be to argue that the manager has interfered with your private enjoyment of the premise. A second, highly improbable, is to sue the manager and get an enforceable court order requiring him to wear a mask. Courts have a prejudice against ordering people to take actions when other options exist (terminating the lease, monetary compensation). It could be an interesting but expensive test case to see if you could get a judge to order the manager to wear a mask. So yes they are obligated to wear masks, but legal enforcement is going to be difficult at best. | It is generally understood that governments do have the right to quarantine citizens in case of epidemic outbreaks. In nations with a rule of law, the extent of quarantine regulations may be challenged in court. A challenge against the app has been filed, and trying to second-guess the court by reading sections of the constitution seems to be pointless. | The leading case in this area is Commun. for Non-Violence (CCNV) v. Reid 490 U.S. 730 (1989).1 There are two routes to employers automatically being the first owner of copyright in a work produced by a hired party: in an employee-employer relationship, or in certain works by independent contractors if an express agreement is made. CCNV construed the definition of "work made for hire" in 17 USC 101 to split paid work into two categories: work done by "employees" and work done by "independent contractors". Copyright in "employees" are automatically owned by the employer. Copyright in work by independent contractors can also be owned by the employer if it falls under a set of specific categories of work (which course materials are certainly included in) and "parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire". The term "employee" above takes on a special meaning in this context. The court held that the test is to use common law agency principles: To determine whether a work is a "work made for hire" within the § 101 definition, a court should first apply general common law of agency principles to ascertain whether the work was prepared by an employee or an independent contractor The court listed 12 (non-exhaustive) factors to be taken into account when deciding whether a hired party is a an employee under common law agency and thus the work would be automatically considered a "work for hire": the hiring party's right to control the manner and means by which the product is accomplished the skill required the source of the instrumentalities and tools the location of the work the duration of the relationship between the parties whether the hiring party has the right to assign additional projects to the hired party the extent of the hired party's discretion over when and how long to work the method of payment the hired party's role in hiring and paying assistants whether the work is part of the regular business of the hiring party whether the hiring party is in business the provision of employee benefits the tax treatment of the hired party This is a case-by-case judgement, and courts have not made a ruling that applies to all university course materials universally. I'm sure we could all imagine arrangements that would fall squarely on the "employee" side of the test, and thus give the employer first ownership of copyright in course material just as easily as we could imagine arrangements that would fall squarely on "independent-contractor" side. There are arguments on both sides regarding whether the typical university professor or lecturer relationship would be considered an "employee" relationship for the purpose of the "work made for hire" definition (I'll come back to reference some law journal articles later). Regardless, even if particular relationship is found to be an "independent-contractor", the employer can still be the first owner of copyright in the works if "parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire" (assuming the work is one of the categories listed in the 17 USC 101 definition of "work made for hire" part (2), and course material certainly is). Last, even for independently contracted work that doesn't fall under one of the special categories in "work made for hire" (2), parties could agree to a contract requiring assignment of copyright. In this case, the employer wouldn't be the initial owner, but they would be due equitable assignment of the copyright by the author. 1. There are various reasons why Weinstein (mentioned in the question) is not relevant. Weinstein doesn't hold that the author of course material is automatically the copyright owner. Weinstein is pre-CCNV. Weinstein was a Seventh Circuit opinion; CCNV is a Supreme Court opinion. The test that was being used at the time by the Seventh Circuit (an "actual control of the work" test) was rejected by the Supreme Court in CCNV. |
What are the legal implications for denying you are Satoshi Nakamoto? The creator of Bitcoin chose to hide in the pseudonym Satoshi Nakamoto. For years there had been a lot of interest, debate, and research on the true identity of Satoshi. The most-probable candidates have denied that they were him. What are the legal ramifications if one was really Satoshi, denied it publicly, but then later proven to really be him? | What are the legal ramifications if one was really Satoshi, denied it publicly, but then later proved to really be him? In general, the person's false denial is irrelevant for legal purposes. One would have to add very special circumstances for the person's misrepresentation to have any legal ramifications. Those additional circumstances would have to be material (1) for claims where the intent and/or effects of the falsehood meet one or more of the prima facie elements of the claim(s) at issue (examples: fraud, defamation, tortious interference with business/relation, etc.), and/or (2) as a hindrance to fact-finding in a case (examples: perjury, spoliation of evidence). Furthermore, the circumstances that would render the false denial actionable are most likely very intricate. For instance, two of the prima facie elements of fraud are [plaintiff's] reasonable reliance and resulting losses. It would be very hard for a plaintiff to prove that (1) he reasonably relied on the person's public denial on a dubious matter with seemingly no financial or criminal repercussions, and (2) in a way that led the plaintiff to losses. Not only the matter of Satoshi Nakamoto's true identity is/was an elusive matter (thus defeating an argument of plaintiff's reasonable reliance). If anything, a person would seek to partner or to transact with Satoshi Nakamoto than with a seemingly ordinary individual who publicly purports to be not Satoshi. Accordingly, it will be hard to establish that the false denial was reliable and caused losses. | Names clearly are personal data and so a good question to ask for GDPR compliance is: Do you need to do what you want to do in order to offer your product or service? For your scenario a common answer seems to be that websites ask for the users first and last name during account creation. The reason is that they need this information to confirm the identity of the account creator. But the public profile only displays a user name that the user can pick freely. In general there is no good reason to publically show the legal names of users so websites don't do it. So for your website ask yourself, why do you want to publically show the names of your users? If you have a good reason to do that specify it in the user terms and go ahead. If you don't have a good reason don't do it. | In an adversarial legal system, the parties are responsible for framing the issues in dispute and adducing relevant evidence. The parties, and perhaps more importantly their lawyers, also have an obligation of candour to the court. Courts routinely accept unchallenged assertions because there are serious consequences for misleading the court, and the opponent (rather than the court which should remain neutral) is in the best position to investigate and prove any suspected dishonesty. It is a matter for the party commencing proceedings (plaintiff or prosecutor) to decide how the parties will be named. People often change their names, and may use multiple spellings. It is not uncommon for typographical or other errors to appear. Generally, it is in the interest of at least one party to name the parties "correctly," ie. consistently with other government records that will be used to enforce any judgment, but a person's name is ultimately a formal matter that can be corrected if necessary. In cases of uncertainty, aliases can be specified, as occurred in Microsoft v McDonald (aka Gary Webb) [2006] EWHC 3410 (Ch). A person who is genuinely known by an alias (ie. the use of the alias is not part of an attempt to mislead the court) should use their "real" name in court, but could potentially conduct litigation using the alias without anybody noticing. However, court proceedings are public and this would not necessarily protect the person's identity. To achieve this, an anonymity order under CPR 39.2 is required, as explained in XXX v Camden London Borough Council [2020] EWCA Civ 1468 [13]–[22]. | You are missing something. The fact that you have a tick box and its state is saved in the database is enough. The burden of proof is only "on a balance of probabilities", so someone arguing that they didn't consent would have to demonstrate that you falsified the database entry somehow. In terms of GDPR requirements in general you don't need a greater level of proof than this, the key thing is that you have a robust system in place to obtain proof (such as not allowing data into the database without a tick in the box). | If the purported guarantor can prove the facts stated then they are not a guarantor You can rely on the signature and the onus of proving it isn’t theirs on the balance of probabilities rests on the guarantor. However, if they can do that, then they never agreed to be guarantor and you’re out of luck. | Maybe, but probably not The geographic location of the organisation is immaterial: under Article 3.2: This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: ... (b) the monitoring of their behaviour as far as their behaviour takes place within the Union. Posts anyone (not just EU citizens) make to Reddit (or anywhere else) while they are physically located in the EU or UK engage the GDPR. Pushift.io is therefore captured by the GDPR and any denial of that is just plain wrong. Given the denial, it is likely right out of the gate that they are non-complient. For example, they are unlikely to provided the required information under Article 14. More importantly, it seems that they have not determined the lawful basis for processing the data under Article 6 - they can possibly rely on the public interest basis (preserving deleted publication is arguably a public interest) or a legitimate interest but that requires a balancing of their interest against the data subject's. That said, the right to be forgotten is not absolute, the reasons that might be applicable here are: The data is being used to exercise the right of freedom of expression and information. The data is being used to perform a task that is being carried out in the public interest or when exercising an organization’s official authority. The data represents important information that serves the public interest, scientific research, historical research, or statistical purposes and where erasure of the data would likely to impair or halt progress towards the achievement that was the goal of the processing. | Short Answer Based on the facts you supplied, it seems the author's request for removal might be unenforceable. Explanation Section 2.a.1. of the license declares the license is irrevocable. [Emphasis added]: Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to: A. reproduce and Share the Licensed Material, in whole or in part; and B. produce, reproduce, and Share Adapted Material. Irrevocable means: "Unable to cancel or recall; that which is unalterable or irreversible." Disclaimer: I am not an attorney. I am not your attorney. So don't rely on my answer for anything. Hire a real attorney if you need help with a legal matter. Never take legal advice from strangers on the internet. Treat all answers on this site the same way you would as if they came from a bunch of strangers at a party who got all their legal information by watching episodes of Boston Legal, The Practice and Ally McBeal. But have lots of opinions they are willing to share on legal questions nevertheless. | 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! |
Is e-whoring legal? I have created a fake female identity on Internet, I have an Instagram and a Snapchat, and I'm selling "nudes", photos of the person (photos that I stole from a website). I already made around 400$ in a week, I know it is unethical, but is it legal? Edit: I'm in France | No, it is illegal in this case. Article 313-1 of the Criminal Code Fraudulent obtaining is the act of deceiving a natural or legal person by the use of a false name or a fictitious capacity, by the abuse of a genuine capacity, or by means of unlawful manoeuvres, thereby to lead such a person, to his prejudice or to the prejudice of a third party, to transfer funds, valuables or any property, to provide a service or to consent to an act incurring or discharging an obligation. Fraudulent obtaining is punished by five years' imprisonment and a fine of €375,000 In French: L'escroquerie est le fait, soit par l'usage d'un faux nom ou d'une fausse qualité, soit par l'abus d'une qualité vraie, soit par l'emploi de manoeuvres frauduleuses, de tromper une personne physique ou morale et de la déterminer ainsi, à son préjudice ou au préjudice d'un tiers, à remettre des fonds, des valeurs ou un bien quelconque, à fournir un service ou à consentir un acte opérant obligation ou décharge. L'escroquerie est punie de cinq ans d'emprisonnement et de 375 000 euros d'amende. | 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. | 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. | Technically, yes, GDPR might apply. Filming other people does involve the processing of personal data, and GDPR will apply unless this is for “purely personal or household purposes”. But exactly that will be the case for most holiday snapshots or short clips for your personal social media. As far as I understand, you do not have to worry about purely personal activities. Even if GDPR would apply, this doesn't mean it would be illegal. It means you'd need a “legal basis”, such as a “legitimate interest”. If there are just a couple of people in the background of a video, it's possible that their rights might weigh less important than your interest in shooting the video – but that would need a case by case analysis. Your legitimate interest would almost certainly prevail if you need to record a crime to which you are victim. Regardless of GDPR concerns, note that this is just a small aspect of legal concerns. Instead, also consider personality rights copyright (if art or architectural works are visible) / freedom of panorama customs and reasonable expectations of other people These issues will depend largely on the specific country or area you are travelling to. Europe is not homogenous in its perception of privacy issues. For example, consider the issue of dashcams in a car. These are considered to be quite normal in some European countries, but effectively illegal in others. | The picture shown is not fraudulent or problematic. Fraud involves using a false representation (or concealing a fact) in order to obtain a result that would not have been possible to secure without the misstatement or concealment. No one is using the photograph of the exterior of a passport (which is identical for all U.S. passports) to obtain any immigration benefit or for a non-U.S. citizen to obtain citizenship. All that is being done is visually associating international travel (which would usually be done using a passport) with a credit card that can be used internationally. Since a passport is a federal government document, it is also not protected by trademark or copyright laws -- the exterior, generic design of a passport is in the public domain. It can't be used for a purpose to mislead someone about citizenship or immigration benefits, but otherwise, it can be used for any purpose. I suppose that you could be interpreting the photograph (on a Spanish language speaker's facebook feed) as implying that by getting this credit card you will also get a U.S. passport and cool sunglasses, but that would be a patently unreasonable assumption in this context, particularly in light of the clarifying caption at the bottom, and, of course, many people who speak Spanish as a primary language have legitimate U.S. passports (including more or less all passport holders in Puerto Rico). You could also, I suppose, be interpreting the appearance of the passport as some sort of implicit government endorsement of the product when the government does not, in fact, endorse the product, but again, nothing in the advertisement that I can see that can be reasonably interpreted as conveying that message. | If the Kenya legislature passes such a law, they can impose such a requirement on Kenyans who want to create such social media groups. Note that this is a license from the Kenyan government, not a copyright or trademark license. In effect, it is a tax on running a social media group, along with various regulations. I have no idea if this bill is at all likely to pass. If it does pass, it might be hard to enforce, as it would probably require cooperation from Facebook and other social media platforms, and the companies which run those platforms are not located in Kenya, and might not cooperate. | You didn't post the details of what exactly is involved with a "vampire initiation fee": is this simply the purchase of an physical object? Or the purchase of a service, such as the placing of a spell or the providing of the service of alleged protection from vampires? Or is this some form of a real "Advance-fee scam" where money and banking credentials or personal information is involved? (See link below). But in the big picture, one person's scam is another person's persuasive business sales pitch for an unusual item or service. Simply being able to pay for such an item or service doesn't make the sale - or the contract to sell it - illegal everywhere. It may be the case that selling an "vampire initiation fee" does not happen to be illegal in Nigeria. Illegal in the US, possibly yes. illegal there? Maybe not. Contract laws differ; in the US, contracting for something that is illegal voids the contract. In Nigeria, maybe not. Though the "vampire initiation fee" doesn't sound to me like a classic Advance-fee scam (Wikipedia), Google search on 419 scams and the results will tell you that it will be nearly impossible to get a prosecutor in that country to deal with anything like that, even if it is a real scam that promises lots of money for an upfront fee. Prosecutors have much better things to do. And you might have to go to Nigeria to make your case; see other answers that more fully outline the laws and legal aspects. Good luck. And it's better to spend your money on some garlic and a mirror. 7/03/18 Update re: the email transcript linked in question That's not a scam; the person is simply trying to sell you on the initiation fee. There is no crime. There is no promise of more money for a small fee (and bank credentials or personal information) like a typical 419 advance fee scam. You're not producing useful evidence for a prosecutor by engaging in the email and mostly agreeing to pay him. It's not illegal for you to send money by Western Union for the vampire fee. Even if you did send money, you're not being defrauded because you already know the vampire initiation is fake, and as a result you couldn't logically prove to a prosecutor or court that you were scammed. He's not guilty of fraud as no money has changed hands for a (fraudulent) service. Emailing with him might make you feel good by wasting his time, but that's all. | I don't think the issue is that it is a violation of a law, but rather that it is a violation of the terms of service you agree to when you sign up for the site - which is a breach of contract. You can be sued for breach of contract, if the site can prove any damages based on your breach. So if you use a bot to make money on a site, in violation of the site's license agreement, then I believe the site could indeed sue you to get the money back. Also, the phrasing of your question ("creating a robot") raises a separate issue. It is not actually creating the bot that is illegal, but using it where not allowed can be a violation of contract. Suppose person A makes a poker bot, just as a programming exercise, and doesn't use it. But then suppose person B uses the robot created by person A on a site that forbids it. Although this could be a gray area, I do not believe the site would have any recourse against person A (even though they probably would against person B). |
What is a condition precedent? Here is a Wikipedia definition, of something that must happen before something else happens, but I'm not sure how to apply it to the law. Let's say that there is an angel investor that meets a company with an interesting technology, and proposes to invest an amount, X, in the company for a certain percentage. The contract says something like, "a condition precedent for the investment of X is a demonstration of the company's technology to the investor's reasonable satisfaction." The company delays in doing the demo, but asks for the money. The investor says, "no demo, no money." Is this what "condition precedent" is meant to say? If there is no express time limit written into the contract, is there an implied, or "reasonable" time limit after which the investor is off the hook? For instance, if the demo took place six months later, can the investor reasonably say, "your technology sounded interesting six months ago, but I fear that it has been made obsolete by now." | In contract law, a condition precedent is a specified event that must occur prior to a party having to perform a contract obligation. In your example, the demonstration is the condition precedent, and funding is the obligation to be performed. So, yes, "no demo, no money" is another way to put it. The "investor's reasonable satisfaction" is the standard used to determine whether the condition has been satisfied (and thus whether the obligation will be triggered). The reasonableness standard falls somewhere in the middle segment on a scale of investor-friendly to inventor-friendly contract language. For example, "the investor's sole discretion" is investor-friendly (though likely subject to a good faith duty); "the investor's discretion" is still investor-friendly and is limited by a good faith duty; "the investor's reasonable discretion" anchors the discretion not in what the investor would want to do but in what would be objectively reasonable. Removing investor discretion and replacing it with something like "upon demonstration" would be inventor-friendly. What is reasonable will vary widely based on the industry and product obsolescence timelines. | Termination is a matter of fact That is, it has either happened, or it hasn’t. Whether it has or hasn’t depends on a multitude of factors including the terms of the contract, the actions of the parties, and communication between them. These factors are so case specific that it is impossible to generalise. Further, within a given case, reasonable parties may differ on if a contract has been terminated, which party initiated the termination, and if that termination was lawful. Usually, these cases involve mutual allegations of repudiation by the other party and rightful termination in response by our side. These issues are likely to be the major ones that the court or tribunal will have to determine. A claim for damages would need to be pursued as part of the overall case but the deadline for raising them is a procedural matter for the court or tribunal. Failing to raise them as an issue in pre-litigation correspondence would not be a bar to raising them in a claim or counter-claim. However, failing to raise them at the earliest opportunity denies the offending party the opportunity to mitigate the damage and, if they can show that there were actions they could have reasonably taken to mitigate but couldn’t because they weren’t informed, then that may reduce or eliminate the damages payable. | The accusation would be the crime of securities fraud ("insider trading" is legally meaningless), under 15 USC 78j(b). There is a bit more elaboration in 17 CFR 240.10b5-1. That law prohibits using "any manipulative or deceptive device or contrivance in" in connection with a securities transaction. Under 15 USC 78ff, violation of the law can result in a fine of up to $5 million and 20 years, thus it is a crime. As a crime, the standard of proof required is must higher than it in for a civil forfeiture (which can be as low as "reasonable suspicion"). In the US, and pursuant to the Due Process clause, that requires proof beyond a reasonable doubt, that is (from in re Winship), "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged". The statute itself does not state the elements that must be proven to secure a conviction, but they can be discerned based on jury instructions (which are circuit-specific). The 9th Circuit instruction is here. You can see that there are 4 specific allegations that have to be chosen between, and the prosecutor has to have at least alleged one of those prohibited acts (so that the jury can decide if the prosecution has proven beyond a reasonable doubt that the accused did that thing). The evidence you have presented could constitute "reasonable suspicion", but not "proof beyond a reasonable doubt". If we had a different standard of proof in criminal trials, where it was sufficient to just suspect based on a small bit of evidence that a person may have done something prohibited, then the conclusion could be different. Or, if you had stronger evidence surrounding the sale, your argument might carry a bit more weight. In other words, criminal prosecution is based on quite a lot of specific and objective evidence about what happened. An example of the kind of evidence and allegations required to get the ball rolling can be seen here; for "insider trading" specifically, look here (this case is based on an FBI investigation, where an agent will presumably testify to hearing the defendant state a plan to violate the law). | Before the AIA in 2012 both companies could apply for a patent and if one of the applicants thought they were both trying to patent the same thing they could initiate an interference proceeding. In that proceeding before the board, they each present their evidence as to date of conception and diligent effort from that point to the date of the first filing. The board decided which application went forward. Now the U.S. is with the rest of the world in first-to-file. It doesn’t matter who conceived first unless one actually stole the idea from the other. There is a new derivation procedure to try to prove that. I don’t think it has ever yet happened. One of the "simultaneous" inventors could publish the invention, putting into the public domain. If published before the other's filing date, it would theoretically prevent the other from getting a patent. In any case a patent owner can stop the other from making their product or charge a royalty. There is a narrow case under the AIA where one company has been using a process that another later patents and can retain a limited right to keep using that process but can’t move or expand operations. This is called Prior User Rights. | This would be a case of mutual mistake or unintentinal ambiguity. If the circumstances make it clear what year the parties intended, particularly if it is the current year, a court would probably treat the contract as if it specified that year. If the parties' intentions could not be reasonably determined, a court might rule that there had been no meeting of minds, and so no valid contract at all. | Unknown based on what you have posted in your question. But answer lies in the terms under which the source code is made available or licensed. The most common scenario is that such "sample" source code is provided as help to the purchaser of their product and you'll often see things that permit its use in conjunction with the hardware product. You'll also often see disclaimers that say the code is for demonstration purposes only and it not warrantied to do anything at all. But again, you'll need to review the actual language under which the code is provided and then understand and follow its terms and conditions. | Yes, for those who 'liked' the business after reading the post, but less likely for those who had already liked the business. Under contract law, the business's post is an offer to share the winnings with anyone who is a friend of the business on Facebook. A promise is enforceable if consideration is provided under a bargain; the consideration can be of nominal value (e.g. the act of 'liking' a page). In the context of a business page, in a time when 'followers' and the like are regarded as valuable from a marketing perspective, it is entirely reasonable to interpret the post as offering an exchange of likes for a chance to win money. The commercial context and involvement of money would cause a court to presume that there was an intention to create a legally-binding contract (Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502). I am not entirely familiar with how the designation 'Friend' applies to businesses on Facebook. My understanding is that businesses have pages that are different to user pages. Businesses don't have 'friends'. They have people who 'like' the business. However, the word 'Friend' in the post has to be given content and therefore would be read as 'people who are listed as having liked this page'. People who had already liked the page are less likely to be able to enforce the promise to share the winnings, because they didn't do anything. They might be able to argue that they forwent the opportunity to un-like the business and that this forbearance is consideration. However, they would have to show that this was in consideration of the offer to share the winnings. Contract law is based on objective manifestations of agreement, not subjective thoughts (Taylor v Johnson (1983) 151 CLR 422), so it isn't necessary to show that the individual did in fact have the offer in mind when they liked (or didn't un-like) the page. However, it is necessary that the promisee have knowledge of the offer and not be acting out of some completely separate purpose (R v Clarke (1927) 40 CLR 227); therefore if a user had liked the page some time ago and never knew about the offer until after the lottery was won, then they might have a hard time claiming a binding contract. Aside from contract law, the other possible head of liability is equitable estoppel (I mention this particularly for the people who had already 'liked' the business page before the offer was posted). However, equitable estoppel usually requires some element of detrimental reliance. Leaving a pre-existing 'like' on a page in reliance on a promise to share lottery winnings is unlikely to stir a court to find an equitable estoppel, since the detriment is trivial. Contrast Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, where the detrimental reliance was knocking down a building and starting to construct a replacement. Equitable remedies are discretionary, so the judge has plenty of leeway to not order compensation. This answer is based on the common law. There is nothing in Texas law which would make the outcome any different to the outcome in any other common law jurisdiction. | In this context, the phrase "there are no equitable considerations that would require the court to reduce or deny reimbursement for the parents" largely refers to defenses to claims arising under the law of equity as applied historically in the chancery courts of England, and more recently, to claims of a type that would have been brought in equity courts if there were still a separate equity court system. Two of the more common equitable defenses are "unclean hands" and "laches". The equitable defense of "unclean hands" applies when the person seeking relief has engaged in misconduct of some kind in the same transaction. For example, if "the student was denied a FAPE at their public school placement" because the student had previously been expelled for beating up another kid (especially if this had nothing to do with the reason that a FAPE is needed) or because the parents ignored a deadline for filing the application for a FAPE at their public school of which they had reasonable advanced notice, that student's parents might be denied reimbursement under the doctrine of unclean hands. The equitable defense of "laches" applies when unreasonable delay on the part of the person seeking relief causes prejudice to the person from whom relief is sought even in the absence of a date certain deadline or before a date certain deadline expires. For example, suppose that "the private school was an appropriate placement" but it had tuition three times as high as two other private schools in town. If the other two less expensive private schools had vacancies for months after the student was denied a FAPE at their public school placement, but had no room for new students a week before school started leaving only the much more expensive private school with any vacancies, the request might be denied, or limited to the amount that would have been paid if the parents had applied to other private schools more promptly, under the doctrine of laches. Other equitable defenses include the duty to mitigate damages (e.g. there might be reimbursement for private school tuition, but not for late fees and interest that could have been avoided), impossibility and impracticability (e.g. no public or private placement is capable of addressing the fundamental problem that the child is in a catatonic state), acts of god/force majeure (e.g. the student was denied a FAPE because the school was destroyed in a hurricane and the school district had to shut down the schools for everyone for a semester), implied waiver or estoppel (e.g. after the student was denied a FAPE the student was enrolled for regular classes at that public school without complaint and without trying to find a private school placement), spoliation (e.g. the records needed to determine eligibility were intentionally destroyed by the applicant before the hearing), fraud as a defense and not a claim (e.g. the parents lied in their reimbursement application), payment (e.g. the student was denied a FAPE by two schools and already received reimbursement from another one and is not entitled to a double recovery), release or accord and satisfaction (e.g. a settlement agreement was already reached with the school denying reimbursement or agreeing to a particular reimbursement). |
How would one go about getting an exemption from the gathering limit of the PAUSE Executive Order? Say a person wants to get Married in Upstate New York within the most recent revision of the PAUSE act. Right now, gatherings are restricted to 10 people. This would cause the wedding to be slimmed down to the limit, which is 10 people. What feasible legal actions could either spouse do to get an exception on this part of the exective order? | There are no feasible legal actions that you can take. The implausible action is to sue the state on some constitutional grounds and have the order overturned in part. The order contains no appeals process, so you would have to attack the order itself. There are, here and there, lawsuits on Free Expression Clause grounds regarding the shuttering of churches, which stand the greatest chance of prevailing at the level of SCOTUS. Even if the court were to rule that under these circumstances the right to attend mass church meetings cannot be restricted, it is significantly less likely that application of the emergency powers acts to weddings would be found to violate a fundamental right. | 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. | With respect to disciplining its students and employees, a private school can basically do whatever it wants. There's more freedom to do so with respect to students than with employees, who have greater protections derived from anti-discrimination laws, collective-bargaining agreements, and the like. If a private school wants to impose a No Burger Tuesdays and a complete ban on political activity, that's probably going to be permissible. The First Amendment will protect the school's right to associate with only those who meet its standards, as absurd as those standards may be. Again, there are exceptions to this rule, like Title IX, which requires equal educational opportunities regardless of sex, but they don't have much bearing on your question. Even for a public school, there will be quite a bit of latitude here, because these rules don't actually regulate off-campus conduct. If a student wants to attend an off-campus public gathering, the campus police aren't going to lock him in his room or arrest him for leaving campus. The rule is simply that if you attend a public gathering off campus, you may not come back on campus afterward to threaten the lives of your classmates. | Question #1: is this even possible? Is there some sort of central database which contains details of all recent court cases involving custody of children in New York City? Yes, it is possible. The court clerk for each respective court in the State of New York maintains a list of every case pending that court that goes back many years in electronic form, and there is some minimal classification by case type although the classifications used might not precisely match what you are looking for - it might be necessary to include more than one kind of case and some classification categories might be over broad for your purposes. There are probably at least three courts that could have jurisdiction over this kind of case in New York City. The Supreme Court (i.e. the trial court of general jurisdiction) which has jurisdiction over custody cases that are incident to a divorce or legal separation and in certain other cases, for example, criminal felony child abuse and neglect cases take place in the Supreme Court; the Family Court, a court of limited jurisdiction which lacks jurisdiction over divorces and legal separations but often handles custody matters involving unmarried couples, custody determinations incident to allegations of child abuse or neglect, and post-decree child custody matters; and the Surrogate's Court, which handles custody determinations incident to deaths and incident to some incapacity determinations (as guardianships of minors) and if I recall correctly, incident to adoptions. It also isn't inconceivable that a de facto custody decision could also be made in another court incident to issuance of a protective order or criminal case. It is also quite possible that there may be multiple related cases in the same or separate court. For example, there might be a child abuse and neglect case terminating person B's parental rights in family court, and then a guardianship of a minor case appointing the adult child as guardian of the minor child in Surrogate's Court. It is quite possible that more than one database (or portion of a centralized database) would have to be reviewed, rather than a single database. When I practiced law actively in New York there was not a single database, but that was more than 20 years ago and given the explosive improvement in information technology that has taken place since then, it would not surprise me at all if some or all of the relevant databases have since been consolidated. They do not know person B's name or other identity, but know they are somewhere in New York City, New York, USA. But they know the following about B: within last 4 years, B was a parent involved in a court case where their older adult child won custody of their younger underage child from them. Some information about the children is known but not precise identity (let's say birthday and first name for one of them is known; as well as ages). Notwithstanding my answer to question #1, it wouldn't be easy. While birthdays and ages would be present in documents filed in the various court cases, they would not be indexed centrally. The index of case names would contain the names of the parties to the case, the general case type, and the case number, and possibly the assigned judges and the attorneys who entered an appearance in the case. Difficulties Involved In Searching By First Name Unless the first name was very unique, locating it in a central index could be very difficult. Also, it isn't at all uncommon for the day to day name that someone uses to differ from the person's legal name used in the court case caption, or for the person's name to be misspelled due to lack of accurate information or clerical error, or for a nickname of someone to be used instead of their legal name. For example, suppose that the person you are searching for has the legal name: Jonathan Ralph Lee. This could easily have an indexed first name of Jonathan, Jonathon, Johnathan, Johnathon, Jon, John, Ralph or some totally unrelated nickname in the central index. I know someone, for example, whose legal name is "Claire" who uses the name "Denny" which has no source in any part of her legal name, in all circumstances except legal documents, because at one point in her life that is what other people and she started to call her (for reasons that are not entirely clear to me), and it stuck. A nickname totally unrelated to a legal name is particularly common among people who immigrate to the U.S. or have parents who do, whose legal name is not commonly used in the U.S. For example, I know someone born in Korea whose true name is Hei-Hyun who used the name June, which she used in English as a second language classes when she was first learning English abroad, in almost all circumstances except in legal documents. In those cases, either the legal name or the nickname could easily appear in court documents. Everyday use of a middle name rather than a true first name is particularly common when father and son have the same true names apart from Senior and Junior or the third, for example, and when the first name is less common or otherwise embarrassing or overlaps with a classmate. I've also known people who used a first name growing up and then later transitioned to a middle name at some point (often upon moving to a new school or new place) and people who have transitioned in the opposite direction under similar circumstances, in each case in connection with a desire of the person involved to "reinvent" themselves. Other Information Which Would Greatly Help In Searching It would be extremely helpful (cutting the number of cases involved dramatically) to know which borough within New York City this took place in, because at the level of court administration, each borough of New York City is a separate county with a separate set of court clerks and all case indexes would reveal the borough in which the case was brought. The more you can narrow the time period, the easier it is for you to conduct the search. If you knew the name of the school that the younger child who was subject to the custody order attended at any time and the younger child's first name and ethnicity, attempting to locate and review school yearbooks and newsletters in the relevant time period (often children are identified by name in newsletters listing children who won academic or attendance or sports awards, or who participated in special field trips, for example) would provide a much more solid basis for a further search of records related to person B, because this would give you a full name for the child and would also establish the most likely borough in which the records would be located. Often a list of parent names at the school can be found in PTA newsletters or lists in school newsletters of parent volunteers who are being thanked. If you knew the address of person B or the younger child or the older child at some point, this would be very helpful. If they lived in a home that they owned you could search property records to find a name of person B or someone related to person B. If they rented, you would still narrow down the likely school that the younger child attended, the likely courts in which the action could have taken place, and you could go in person to the neighborhood and ask former neighbors. Either a first name or a surname for person B, the parent, would also be extremely helpful, although a full name and borough of residence for person B would be much better and might limit the search, if you were authorized to make it, to just a handful of names. Knowing person B's gender would also help. If person B is the father, usually the child's surname will be the same as the father, while if person B was the mother and not married to the father, this would be much less common. The more you know about the precise nature of the proceeding, the better. It would be very unusual for an adult child rather than a parent to be awarded custody of a minor child outside of an abuse and neglect proceeding terminating person B's parental rights, or an adoption proceeding in which person B voluntarily relinquished his or her parental rights. So, the odds are good that you would want to search records in Family Court or Surrogate's Court, rather than in the Supreme Court which handles matrimonial actions. If person B were prosecuted criminally for child abuse or neglect, there is a very good chance that the person is incarcerated in a state prison at this time and so a search of prisoners with the right partial name who were incarcerated at about the right time and were of the right gender could be fruitful. This would be particularly helpful if person B is a woman because there are far fewer incarcerated women than there are men, and there are far few women's prisons than there are men's prisons. Knowing the name of the judge who handled the case would be extremely helpful and would greatly narrow the scope of the search. Also, if you identified the case with sufficient specificity in a request to the judge who handled the case to allow you to gain limited access to court records, it is quite likely that the judge would be able to identify the exact case involved with the help of court clerks from memory or partial memory of the case, making it much more likely that the judge would let you access the information that you needed. Media accounts of a case and appellate opinions arising from case (which are often publicly available in redacted form) are much more likely to identify the name of the judge than the name of the parties in a case involving a minor child. Knowing who represented person B as a lawyer, or in the alternative, knowing that person B was not represented by a lawyer, would help narrow the list considerably. If you knew who the lawyer was, calling the lawyer's office and asking in a manner that explained your need to know would probably be more likely to provide information that obtaining it directly from the court system. Knowing the name of the opposing counsel would be almost as helpful. If you new that person B acting pro se in the case, you could eliminate from the list all cases in which all parties were represented by a lawyer. This search could be made considerably more powerful if you knew the gender of person B as this would allow you to narrow the search to cases where someone of person B's gender was not represented by a lawyer. If the case was an abuse or neglect case, it would have been prosecuted in the name of the State or the People, so you would look for cases where the defendant was not represented by counsel without regard to the attorney for the plaintiff. Question #2: If this is theoretically possible, who would have access/privilege to do this? Any random person? A registered lawyer? Police? Court officer? Usually cases involving juveniles are closed to the general public, so to access them, you would need to be an "interested party", and neither a "random person" nor a lawyer admitted to the bar in New York State could do so without that connection. It might be possible to search case names that might contain the name of the child or the sibling without being allowed to access the contents of the file in some cases, I am not entirely sure on that point. If the case were incident to a case in which the child or the sibling was not a named party (e.g. the probate of a parent), this might not be sufficient to even identify the right case, however. A good summary regarding access to court records in New York State is available here. In some of the pertinent parts, it states: A number of statutes limit access to court records where the interest in confidentiality outweighs the public interest in disclosure: A. Family Court Records Access to court records in the Family Court is governed by Section 166 of the Family Court Act, which provides that the records of any proceeding in Family Court are not open to indiscriminate public inspection. In order to access a particular Family Court record, the requesting party must make an application to the Court and set forth the reasons for the request. It is solely within the discretion of the Court whether to permit the inspection of such records. Certain individuals, such as the parties and their representatives, are permitted access to Family Court records without application to the Court. 22 NYCRR205.5 Given that "B was a parent involved in a court case where their older adult child won custody of their younger underage child from them.", it is conceivable that one could articulate a reason for the need to do the search that a Family Court judge would authorize, but that would depend to a great extent on the precise nature of the reason for the search. It helps that the person you are actually searching for is an adult who would have been a named party in the case, and not the actual minor child. But, a Family Court judge would probably be pretty reluctant to authorize a search on behalf of someone who didn't even know the name of the person being searched for and instead only knew the first name and age of one of that person's children. In part, this is because it indicates that the "need" to locate person B is not very strong, and in part, this is because the search would be much more intrusive requiring review of actual court filings in many cases rather than merely reviewing the index of cases. It further states: B. Civil Actions Like criminal proceedings, civil actions are presumptively open pursuant to the guarantees under the First Amendment. Unlike criminal actions that present constitutional considerations for criminal defendants, in civil actions the First Amendment guarantees must be measured against the public interest in requiring disclosure. Family Court Proceeding The declaration in Section 4 of the Judiciary Law of a presumption of public access to court proceedings does not differentiate among the courts, and therefore applies to the Family Court, subject to any other statute that gives special treatment to Family Court proceedings. As such, there is also a presumption of openness to all Family Court proceedings, and Section 205.4 of the Uniform Rules [22 NYCRR] expressly provides that the Family Court is open to the public, including the media. However the presumption can be overcome on a case-by-case basis by an overriding interest that closure is essential to preserve higher values. See e.g., Globe Newspaper Co. v. Superior Court, 457 US. 596, 608; Matter of Ruben R., 219 A.D.2d 117 (1st Dept.),lv. to app. denied 88 N.Y.2d 806 (1996) (holding potential trauma to mental and physical well-being of children required closure of child protective proceeding to public and press); Matter of Katherine B., 189 A.D.2d 450 (2d Dept. 1993) (holding public properly excluded from child protective proceeding where compelling testimony established that child would be adversely affected). Section 205.4 (b) of the Uniform Rules [22 NYCRR] provides specific factors that a judge may consider in determining whether to close the courtroom or to exclude specific individuals, such as preserving courtroom decorum, avoiding a disruption in the proceedings, and serving the orderly administration of justice, including privacy interests of individuals before the court and the need to protect litigants from harm. Matrimonial Proceedings Domestic Relations Law § 235(2) grants the court the discretion to exclude the public if "the public interest requires that the examinations of the witnesses should not be public." Because matrimonial proceedings include matters concerning child custody, visitation and maintenance, aside from potential embarrassment to the litigants in a public proceeding, the public interest standard may protect minors from public testimony. See CPLR 4019; Matter of Lincoln v, Lincoln, 24 N.Y.2d 270 (1969) (trial court had discretion to interview the child in a custody proceeding in private). Adoption Proceedings Given the nature of adoption proceedings, the proceedings are confidential and held in closed courts, and the records pertaining to adoptions are sealed pursuant to Domestic Relations Law § 114. See Matter of Walker, 64 N.Y.2d 354 (1985) (setting forth the considerations for deeming adoption records confidential). Mental Competency Proceedings The media has a qualified right of access to competency hearings, whether held pursuant to the Mental Hygiene Law or the Criminal Procedure Law. See Matter of New York News v, Ventura, 67 N.Y.2d [sic] C. Matrimonial Actions Section 235 of the Domestic Relations Law provides that neither an officer of the court with whom the proceedings in a matrimonial action or a written agreement of separation is filed or an action or proceeding for custody, visitation or maintenance of a child are filed, or before whom testimony is taken, or his clerk, either before or after termination of the suit shall not permit a copy of any pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or examination to be taken by any person other than a party, or the attorney or counsel of a party, except by order of the court. D, Confidential Records Records contained in a court file that are deemed confidential may not be disclosed absent a court order including the following: . . . • Court records in sex offense cases that might identify the victim. See Civil Rights Law § 50-b. • Mental health records, including records of commitment, retention and discharge proceedings of the mentally ill and mentally retarded (see Articles 9 and 15 of the Mental Hygiene Law; CPL 330.20) and clinical records submitted in connection with the proceedings (see Mental Hygiene Law § 33.13[c]). . . . • Records of adoption proceedings. See Judiciary Law § 90.10. • Other records or documents that have been sealed or designated confidential by the court. I am not completely clear on the extent to which the case name itself is suppressed, as opposed to merely the contents of the case file in some of these situations, but where the name of a child is suppressed due to confidentiality this often extends to the name used in the caption and indexing of a court case that is available to lawyers not involved in the case and the general public. A court official would have authority to look at the information, but probably wouldn't be allowed to disclose it to you in any situation where you or a random lawyer was not allowed to do so, for the reasons set forth above. I can imagine circumstances in which the police or the prosecutor's office would be allowed to review sealed juvenile custody case records in furtherance of a criminal prosecution or potential criminal prosecution, but I couldn't tell you how they would go about getting that authorization as I have never practiced criminal law and am not familiar with that level of procedural detail in New York State. But, it is hard to imagine law enforcement coming to your aid in the circumstances you describe, although without knowing the reason that you want to locate person B, it is hard to know for sure. | (The original title of your question suggested you might think that federal circuit precedent binds state courts: it generally does not, even on matters of federal law.) But regardless, Congress would not be able to legislatively lower the constitutional floor. If a certain police act is prohibited by the Constitution, Congress cannot legislatively allow that act, whether in a single state or uniformly across all states. That means that if the Fifth Circuit has decided that the use of some new investigatory tool is a search under the Fourth Amendment, no law that Congress passes could affect that holding. When congress creates laws that result in different effects for different people (e.g. people in Texas vs. people in Florida, as in your hypothetical), the distinction must be rationally related to a legitimate government purpose. Many of the enumerated powers allow for local distinction, some prohibit it. Some examples where Congress has distinguished between states include: localized agricultural programs, time zones, voting rights protections, and various others listed in ohwilleke's review. Some distinctions between states could also intrude on principles of federalism and state sovereignty (e.g. the Supreme Court has said that the Voting Right Act does this). Maybe I am unimaginative, but I cannot think of a legitimate federal government purpose that would call for the powers that police have against the people to vary from state to state. Any such variation would have to come from the states themselves: from their state constitutions, or legislative choices to provide heightened protections. Discord between circuits is problematic (see a list of examples of existing splits), and this is why the Supreme Court of the United States will often hear an appeal where there is a circuit split on a question of constitutional rights. | Interesting question. I routinely write wills that authorize the executor to destroy property that has no significant economic or sentimental value, but I've never encountered a case where a testator or testatrix has directed that property be destroyed and I've never seen a reported case (or even a news report) in which that has happened. To the extent that an estate is solvent, there is no reason that a creditor could complain and if the destruction was done in a safe manner (as opposed to burning down a house or something like that without consulting the fire department) I'm not sure that there would be a public interest in doing so either. There are many religions that had a practice historically of burying someone with grave goods, so there are reasonable First Amendment freedom of religion arguments for allowing such a practice if it had a religious basis. And, if no interested party objected, I don't see how anyone could stop the executor from acting, unless the property to be destroyed was, for example, evidence of a crime, in which case it would be a crime to destroy it and the provision of the will would be void because it was a crime to carry it out. If an executor sought permission from a court to carry out this instruction, the court might require a public notice of the planned destruction to give notice to any third party who might claim an ownership interest in the property allegedly belonging to the decedent. On the other hand, usually, all interested parties in an estate can agree to act contrary to a will by unanimous consent, in which case no one would have standing to fight for the provision in court (unless it was considered a charitable bequest, in which case a state attorney general or an advocate appointed by the court with the "will" as the client could defend it). Given the strong public policies in the law disfavoring "waste" (i.e. useless destruction of property) such a provision could be held to be void as against public policy (similarly, bequests contingent upon marriage decisions are now void as against public policy). | 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. | The UK has parliamentary sovereignty, not separation of powers Unlike, say, the United States, where the legislature, the judiciary, and the executive have co-equal power in their respective spheres, in the UK, the judiciary and the executive are subordinate to Parliament. The courts have no power to nullify an Act of Parliament for being unconstitutional like they do in jurisdictions where a written constitution gives them such a power like the USA, Canada, or Australia. The purpose of the Declaration of Incompatibility is to advise Parliament that the law they have passed contradicts the HRA and they should think about that and decide if that’s what they really wanted to do. That means that the UK Parliament could pass the Arbitrary Bollock Removal Act 2023 (ABRA) tomorrow and it would be valid law. The courts can still provide judicial review of the actions of the executive under ABRA but they cannot declare the law a nullity. That is, the Minister’s actions can be scrutinised to ensure they followed the ABRA and other established principles such as procedural fairness and, if they didn’t, declare the executive actions void. However, if they did follow the law, off come your nuts. |
Can a person secure an entity's former employee to act as an expert witness against them? In federal court, is there any ethical or evidentiary rule that prohibits a person from using that entity's former employee as an expert witness against them? For context, I would like to use a former jail correctional psychiatrist as an expert witness to give testimony that would help establish that said jail doesn't conform to constitutional standards of mental health care. | An expert witness must be independent A former (or current) employee of a party is not independent. The court may accept their independence if the relationship was decades in the past but not otherwise. If you want the said psychologist to testify about things that happened in the jail they aren’t acting as an expert witness anyway - they are acting as a witness of fact. | Does the party have any legal leverage to engage the police (or other competent authorities apart from private investigators) to help locate the witness and serve the summons on them? Not really. Legal process is not infrequently served by a sheriff's deputy. But the deputy will not generally take any initiative to locate a person to be served beyond what it provided by the litigant. The main reasons to have a sheriff's deputy serve someone with process is the fear that the person served might react violently. Or is it just the party's bad luck that the witness cannot be located and served on? Pretty much. | No In general, there is no need for a plaintiff, defendant, or witness to attend court in person if there is a legitimate impediment to them doing so. Parties can be represented by their lawyers, testimony can be made by affidavit, cross-examination can be conducted over Zoom. During the recent pandemic, entire cases, both criminal and civil have been dealt with without anyone meeting up in person. | It would be legal for a healthcare professional to sign an NDA prohibiting them from revealing certain information to a patient. Some examples: the password to the computer system; the home phone number and address of the chief of staff. It would not be legal to use an NDA as a basis for denying a patient the right to access their medical records when the HIPAA privacy rule mandates disclosure to the patient (with exceptions). | as a witness. You secretly disapprove of the thing taking place Does this actually invalidate the document (as not properly witnessed)? No. In regard to the substance of a contract, witnessing does not imply, entail, or require approval thereof by the witness. The meaning or relevance of a witness's signature is nothing more than him or her certifying that the act of "2+ other parties entering a contract" took place indeed. And are you committing a crime by doing it? I highly doubt it, regardless the country or jurisdiction. The witness's [bizarre] act of acquiescence falls short of criminal conduct such as (1) forging someone else's signature, or (2) fraudulently "acknowledging" the presence of the contracting parties when in fact at least one of them was totally absent. Only if the witness subsequently acts in a way that hinders the purposes of the contract, thereby causing harm, the harmed party(-ies) might sue the witness for tortious interference with business or relation (or its equivalent in other non-U.S. jurisdictions). For instance, suppose a contract-based transaction requires involvement by a third party, who is hesitant to perform the transaction because suspects that the witness's signature was forged. That suspicion may prompt the third party to inquire of the witness whether he actually signed as witness to the contract. If the third party rejects the contract-related transaction due to the witness's [false] denial, the harmed party(-ies) in the contract may sue the witness for any losses (examples: bounced checks, costly delays, missing of deadlines, provable loss of business opportunities) that his false denial caused. | 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. | The courts do not supersede your constitutional rights, although you may believe that you have a constitutional right that isn't actually there. This article discusses the position that "due process forbids convicting an individual of a crime unless the government proves the elements of the charged offense beyond a reasonable doubt". This standard is actually not stated anywhere in the US Constitution, but it has been assumed as an implicit meaning of "due process". It sounds like you were charged with a crime, and there is most likely an applicable statute in your state that is analogous to RCW 26.50.110 in Washington. So you have the right to a trial and the prosecution would have the obligation to prove all of the elements of the crime beyond a reasonable doubt. It also appears that you did violate the applicable law and you were willing to plead guilty, as urged by your attorney. You are correct that you don't technically have to prove your innocence, but there is a practical problem that if the prosecution provides some weak evidence that you violated the law, then the jury might decide that your failure to refute the evidence means that there is no reasonable doubt. The problem is that there is a tendency for jurors to think that the defendant has to create a doubt. States differ somewhat in how they explain the burden of proof to jurors, and you might fare better in a state where the instruction is that "you must be firmly convinced". Since the attorney seems to have said that "the constitution doesn't apply to this", this is a puzzle. I would not assume (though it is possible) that the attorney was incompetent. It is possible that he was speaking of a non-criminal matter, and it is possible that you were talking at cross purposes. There is no legal situation where "the constitution doesn't apply to this", but perhaps "that constitutional limitation doesn't apply to this specific situation". Regardless of what the attorney said, your attorney doesn't violate your rights, even if he gives you bad advice. The actual court might, and then you would have a cause for an appeal. Similarly, if the district attorney reasonably believes that you are a danger to society and is prosecuting you, that is not a violation of your constitutional rights. An improper conviction would be a violation of those rights, although it might take an appeal to get the court to recognize that fact. | If a defendant has committed a crime, they would choose to self-represent to ensure that no one else would know about the circumstances of their crime. Although lawyers are ethically bound to not disclose information that would not be in the interest of their client, the decision to breach this duty would be up to the sole discretion of the individual in question. In cases where the exchanged information may used to provide evidence against the client, the lawyer is compelled to disclose the truth to the courts/law enforcement. This is deeply misguided. Criminal defense lawyers usually represent people who are guilty and there is no ethical problem with doing so, nor does this mean that the lawyer will disclose privileged information that is prejudicial to the defendant in the course of the representation. The notion that a lawyer would be compelled to testify against his client to the courts/law enforcement is simply not how the system works. It is true that a lawyer cannot ethically put you on the stand to offer testimony when the lawyer knows that your testimony to the court will be an outright flat lie, and that this lie is your strategy to prevail in your defense, but that is the sole meaningful limitation on what a lawyer can do for you. However, I can't think of a single instance, in which a desire to defend yourself at trial with a lie has caused someone to represent themselves. Usually, someone with that kind of motive will simply lie to their lawyer as well. It never makes sense to represent yourself if you are innocent and want to be acquitted of the charges against you. But, keep in mind that this is a small subset of all criminal defendants. Criminal defendants are overwhelmingly guilty of something. Usually, a criminal defense lawyer works to either exploit prosecution mistakes or lack of knowledge that prevent the prosecution from proving that guilt, or work to make sure that the defendant is not convicted of a more serious crime than the one committed, and/or work to see to it that their client does not receive an unnecessarily harsh sentence when alternatives are available. In real life, people represent usually themselves, either because they are denied access to counsel (which can be done in a criminal cases where the prosecutor waives the right to seek incarceration as a sentence), or because they are "crazy". Many people who represent themselves in a criminal cases do so because they want to proudly claim that they committed the crime as a means of obtaining of forum for public recognition of what they believe was righteous action even if this could lead to their death. Many terrorists, domestic and foreign, fall into this category. For example, the fellow committed a massacre at a Colorado abortion clinic tried to do this (if I recall correctly, he was later found incompetent to face a trial and has been committed to a mental institution until he becomes competent, if ever). Other people represent themselves out of a strongly felt guilt that they feel a moral duty to confess to, even if this means that they will face severe punishment for doing so. One subset of this group of people are people known as "death penalty volunteers" who try to get sentenced to death and try to waive all appeals and post-trial review. Sometimes they also plead guilty in the belief (often, but not always, inaccurate) that their swift guilty plea when they aren't actually guilty will protect someone else whom they know to be actually guilty. Other people represent themselves because they have deeply held, but paranoid and inaccurate views about the legal system such as members of the "Sovereign Citizens Movement" who think that if they say the "magic words" that they cannot be convicted and that lawyers are a part of a conspiracy designed to prevent them from doing so. Another situation that comes up is when an affluent person who is not entitled to a public defender as a result, chooses to represent themselves, usually with respect to a fairly minor charge like a traffic violation that carries a risk for a short term of incarceration, to save money. But, this is rarely a wise choice. But, unless you plan on pleading guilty or being found guilty at trial, self-representation does not make sense, and even if you plan on pleading guilty, a lawyer is usually worth it. For example, even if the direct consequence of a guilty plea is minor, the collateral consequences of that conviction (e.g. loss of eligibility to work in certain jobs and/or deportation and/or loss of a right to own a firearm) may be consequential and something that a non-lawyer would not realize was happening. Or, maybe you think you are guilty of crime X so there is no point in fighting the charges, but actually, the language of that statute has been defined in a manner that means you are really only guilty of less serious crime Y. |
Would it be copyright infringement if I were to remake a whole movie? I want to take The Little Mermaid and remake it. I heard that the original story by the author was actually about how he liked another man, and incorporated that into The Little Mermaid. I want to remake The Little Mermaid into that story, but would it be illegal for me to do so? This is something that I don't intend to make money off of. I know that The Little Mermaid by Hans Christian Andersen is public domain, but I'm really inspired by Disney's version. Would it be wrong for me to take the script of The Little Mermaid and interpret it so it's somehow "my" own story? Also willing to add more information if some parts don't make sense. | It would be copyright infringement. The script that you are planning to copy from is protected by law, so requires the copyright-owner's permission to create a derivative version (your own interpretation). If instead you write a completely different story inspired by the original book, you might not get sued. The problem is that there is a reasonable chance that you would accidentally duplicate part of one of the myriad adaptations, then the jury would have to decide whether it was just a coincidence, or copying. | In the United States, making a copy without permission is generally going to be a copyright violation, unless the copying is a fair use. Fair-use defenses look at four questions, and the answers to the questions can tip the scales in favor of or against a finding of fair use: Does your kind of copying affect the market for the original? To what extent can your copy fulfill the demand for the original? What if there were widespread copying of the kind you're considering? The more potential there is for the copies to replace the original, the less likely it is to be fair use. (This is the most important factor in the analysis.) Why did you make the copy? If you made the copy for purposes of news reporting, criticism, or commentary, it's more likely to be fair use. If you made a copy just so you could emjoy the work again whenever you felt like it, that may still be fair use, but it is somewhat less likely. If you made a copy just so you could sell it for profit, that's almost certainly not fair use. How much did you copy? Did you copy the whole thing, or did you copy only as much as you needed to achieve your purpose under Question 2? If you copy "too much" – either in the raw amount or as a fraction of the whole work – it's less likely to be fair use. What did you copy? Highly creative works, such as poems, music, and movies, are at the "core" of copyright principles. A fair use analysis will be more stringent in these cases than when dealing with a copy of a purely factual work, such as a phone book, biography, or list of statistics. Such works are still protected by copyright, but that protection is not as strong. So take all of those and imagine the answer to each on a spectrum. If you see things generally tipping in the direction of fair use, that's a good indication that you're going to be safe. If you see things tipping in the other direction, you may want to reconsider. These questions can be trickier than you might think. If you're dealing with a real situation, you should consult an attorney to get an answer specific to your situation. But what if I don't make any money? This fact tips the scales in your favor, but only on Question 2; you still need to consider the other factors. Whether you make money is less important than whether your copying deprives the copyright owner of the opportunity to make money, but then you have to balance that consideration against the First Amendment principles embedded in fair-use analysis. So if you're ripping Star Wars DVDs to hand them out as Christmas presents, your lack of a profit motive will not save you. But a freelance broadcast journalist who includes short snippets of "Kick Out The Jams" and "Whip It" in a piece on this year's Rock & Roll Hall of Fame nominations would probably be fine, even though she's planning to make some money off her piece. | 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. | Yes Wanda is guilty, probably when she created the file, certainly when she no longer had a right (through rental) to the original. Unlike Alice, she would have a much harder time arguing fair use in relation to creating a 'backup' when her right to the original was for such a limited period of time. Even if she could show this, her right to have any copy ceased when she returned the original. | 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. | I'd like to sell t-shirts with the direwolve emblem of the "House Stark" in Game of Thrones, and of course, I've been immediately asking myself if HBO which produces the serie actually had some copyright on that emblem. This is not a close case. Your proposal, or anything remotely similar, would almost certainly constitute a copyright violation and result in a lawsuit by the producers of the show if not done with a license from the company. They would easily win this lawsuit. The damages that they were awarded would greatly exceed the amount of profits you made from your sales (realistically, more than a $1,000 per T-Shirt plus many tens of thousands of dollars of legal fees and costs would be typical). You would probably have to go bankrupt and some or all of the damages award against you might survive bankruptcy because your copyright violation was an intentional act. Every episode of the TV show is a copyrighted work and what you are proposing would be a "derivative work" since it is derived from the copyrighted TV show. Derivative works made without a license from a a copyright holder are a violation of copyright laws. There are also probably myriad specifically trademarked symbols and phrases that are registered with the appropriate government official (the Patent and Trademark Office for U.S. trademarks). So, it is highly likely that there would be a trademark violation as well if a license was not obtained. Your basic business model is at its very heart and essence fundamentally illegal. There is nothing you can do to fix it without getting written permission from the publishers who have probably long ago sold the rights to do this to somebody else for an immense amount of money. You should abandon this idea and try to come up with another business venture instead. | There is no such thing as "alter it by X amount and it's legal". If the original can be determined at all, it would fall under derivative work and be an infringement. https://www.copyrightservice.co.uk/copyright/copyright_myths -- See #6 and #7 And Stanford: http://fairuse.stanford.edu/2014/12/22/much-photo-need-alter-avoid-copyright-infringement-hint-cheshire-cat/ Kienitz v Sconnie Nation And the well known Shepard Fairy/Hope poster case: http://artsbeat.blogs.nytimes.com/2012/09/07/shephard-fairey-is-fined-and-sentenced-to-probation-in-hope-poster-case/?_r=0 | No Copyright protects expressions of ideas but not ideas. A song with the words if a poem set to music would generally require the permission of the owner of the copyrighted poem. An instrumental score “inspired by a poem” would not remotely be using the same expression, or a derivative of, the poem. Titles are not subject to copyright and there are many books with identical titles. Try “The Gathering Storm” as a book title. |
Would killing a human by accident (without any premeditation or intent) be considered homicide or manslaughter? My question is a hypothetical one. I was conducting some research into the differences between murder, homicide and manslaughter and I didn't understand the difference between homicide and manslaughter. Let's say there are two friends walking down a busy street, teasing each other. One of them playfully pushes the other who falls into the oncoming traffic. That person doesn't make it. Will the friend who pushed be charged with manslaughter or homicide, if he were to be charged at all? | Under Canadian law, causing the death of human being is homicide. If the homicide is "culpable", it is an offense (crime). In the described scenario, it might be culpable homicide if the death was due to "criminal negligence". That would be the case if in doing a thing, the person "shows wanton or reckless disregard for the lives or safety of other persons". We've now reached the end of what statutory law has to say about the question. Court cases take us a bit further in understanding criminal negligence. The wisdom of the courts is distilled to ts essence in jury instructions, which say The Crown must prove beyond a reasonable doubt that the accused's conduct showed a marked departure from the conduct of a reasonable person in the circumstances; and that a reasonable person in the same circumstances would have foreseen that this conduct posed a risk of bodily harm. R. v. Tutton is an example: the court finds that The phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross negligence in the objective sense. It requires some degree of awareness or advertence to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which is culpable in light of the gravity of the risk assumed. Ultimately, though, the fact-finder must evaluate the behavior against a highly subjective standard as to "what a reasonable man would do". I cannot imagine a scenario where shoving a person realistically could lead to them falling into traffic and getting killed but there the shoving was ordinary horseplay. Pushing a person in the direction of oncoming traffic is abnormal behavior that shows shocking disregard for the probable harm caused to another. But perhaps there is some innocent scenario where this was really just a tragic outcome. So the answer is, it could be culpable homicide, or not, depending on the facts. To be classed as murder (rather than manslaughter) the person has to intend to cause death (§229), which is missing from this scenario. | He is probably guilty of negligent homicide or involuntary manslaughter, at most (a minor felony), and is possibly not guilty of a crime at all. The primary distinction between classes of homicide is mens rea (i.e. intent). The only affirmative act he took was to move the pillow. He did so both without intending to or knowing that he would kill Jane (the intent necessary for murder), and also, without clear actual knowledge that he would be creating a risk that Jane would die (a reckless state of mind that would support a conviction for manslaughter). Also, note that Walter himself, at this time, is not engaged in a felony, so he is not guilty of felony murder. We can presume he is present with the consent previously given of the owner of the property and did not mean anyone any harm. Likewise, this is not what is meant by "extreme indifference" for purposes of a murder statute, the paradigm of which is shooting randomly into a crowd knowing that someone will almost certainly be killed without knowing or intending that any particular person will die. The mental state necessary for negligent homicide is the equivalent of "gross negligence" in a civil case and is called "criminal negligence" in a criminal case. To be criminally negligent a person must fail to perceive a substantial and unjustifiable risk that a certain result will occur, and the risk must be of such a nature that the defendant's failure to perceive it constitutes a gross deviation from a reasonable person's standard of care. If a jury found that a reasonable person ought should clearly know that moving a pillow put Jane at risk of dying, then he might be guilty of criminal negligence. But, if a jury found that a reasonable person would not know that moving the pillow put Jane at grave risk of death, his action would not be criminally negligent. There are also at least three questions of causation which is not entirely independent of the question of negligence. First, generally an act is only considered a cause of a consequence if it is a foreseeable result of the action. If Jane's vomit caused death is not a foreseeable result of moving the pillow, then her death might not be legally caused by moving the pillow. Second, how likely is it that she would have died even if Walter had never entered the room. There are lots of ways that the pillow could have been jostled during the night leading to the same result. If it likely would have happened anyway, Walter's involvement might not be the legal cause of the death. Third, how much fault should be attributed to Jane? This is closely related to the second question. If her death was primarily caused by her getting dangerously high and placing herself in a vulnerable position, perhaps Walter's involvement is not a meaningful cause of the death. A New Mexico court has held that the defense that the victim was negligent has value only if it establishes that the victim's negligence was the sole cause of the accident. State v. Maddox, 99 N.M. 490, 660 P.2d 132 (Ct. App. 1983). But, what about Jesse's negligence? Under a relevant standard criminal jury instruction in New Mexico: The State must prove beyond a reasonable doubt that the defendant's act was a significant cause of the death of __________________ (name of victim). Evidence has been presented that the negligence of a person other than the defendant may have contributed to the cause of death. Such contributing negligence does not relieve the defendant of responsibility for an act that significantly contributed to the cause of the death so long as the death was a foreseeable result of the defendant's actions. However, if you find the negligence of a person other than the defendant was the only significant cause of death, then the defendant is not guilty of the offense of __________________ (name of offense). Caveat: A number of states impose strict criminal liability on drug dealers, often for murder, if someone died from using a drug sold by them, but often it has to be a child, and often the drug has to be the proximate cause of death, e.g. due to an overdose or impurity in the drug. I would presume that Jesse and not Walter supplied the drugs to Jane, that Jane is an adult, and it is not obvious that the drug itself (as opposed to the vomiting due to the manner in which the drugs were used) was the proximate cause of death, so a statute like this might not apply in any case. This brings us to the hard part of the question: Without the pillow Jane rotates on her back and starts to vomit and cough, still sleeping. At first Walter tries to react, running to the other side of the bed to help her, but then he stops and decides to do nothing as she dies. Note that if Walter had moved the pillow without knowing that he was creating a risk, left the room ignorant, and then this happened, surely Walter would have no legal liability for Jane's death. If Walter develops the necessary intent for criminal liability, this probably doesn't happen until he observes that she is starting to choke on her vomit and might die. Even then, he does not intend for Jane to die and probably doesn't even know for certain that she will die from his inaction, so he is probably, at most reckless, if he has a duty to rescue for criminal law purposes. Generally, under both civil and criminal law, there is no duty to rescue, even if you can do so without any risk of harm to yourself. But, there is an exception, at least in civil liability, for a duty to rescue that arises from the fact that you put the person at risk of peril through your affirmative actions. Does this apply here, at all, or in a criminal case? The first question is the exact language of the homicide statute. Some homicide offenses require affirmative acts, while others can arise from acts or omissions where there is a legal duty to act. Every crime requires some voluntary act or omission, and the voluntary act itself was not a crime and perhaps was not even a tort, at the moment it was taken, because Walter did not realize that his act created a risk of harm. He create a peril, but he did so innocently. A pretty standard formulation is that an omission is only a crime when the law creates a legal duty to act, but this is, of course, a question begging standard as it doesn't clarify whether there is a legal duty to act, which is at issue here. As the previous link notes, creation of a peril can give rise to a legal duty to act, but only sometimes. (4) Duty arising from creation of peril. If a person acts culpably to imperil another, he or she has a legal duty to rescue the victim. The cases are split on whether a duty to rescue arises if someone innocently or accidentally imperils another. This case would fall in the category of someone who innocently or accidentally imperils another, in which the cases are split, which which the linked article cites the following authority: Compare Commonwealth v. Cali, 247 Mass. 20, 24-25, 141 N.E. 510, 511 (1923) (defendant under duty to try to extinguish a fire that he accidentally set to his house and thus was guilty of arson when he did not) with King v. Commonwealth, 285 Ky. 654, 659, 148 S.W.2d 1044, 1047 (1941) (defendant who, in lawful defense of a third person, shot and wounded an attacker was under no duty to seek medical attention for the wounded assailant). A commentary that is part of a California standard jury instruction (for involuntary manslaughter, not murder for which this kind of liability is presumably not available) makes the following observation: A legal duty to act may also exist where the defendant's behavior created or substantially increased the risk of harm to the victim, either by creating the dangerous situation or by preventing others from rendering aid. (People v. Oliver (1989) 210 Cal.App.3d 138, 147-148 [258 Cal.Rptr. 138] [defendant had duty to act where she drove victim to her home knowing he was drunk, knowingly allowed him to use her bathroom to ingest additional drugs, and watched him collapse on the floor]; Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 456 [30 Cal.Rptr.2d 681] [defendant had duty to prevent horses from running onto adjacent freeway creating risk].) These examples would suggest that an innocently or accidentally created risk is sufficient to create a duty sufficient to support involuntary manslaughter liability for an omission under California law, and would probably lead to involuntary manslaughter liability in the case in the question as well, under California law. New Mexico, unlike California, does not have a standard criminal jury instruction or really definitive section of its criminal code that clearly resolves this question, although the fact that California which uses a murder, voluntary manslaughter, and involuntary manslaughter distinction in the same way that New Mexico does, limits criminal liability for omissions to involuntary manslaughter suggests that New Mexico would as well. The New Mexico case State v. Greenwood, 2012 -NMCA- 017, 271 P.3d 753 (N.M. App. 2011), touches on the issue, suggesting that there may be liability only for involuntary manslaughter (or certain specialized crimes based upon a relationship such as that of a nursing home to a resident of a nursing home) based upon an omission, and that the liability for an omission can only arise when there is a legal duty, but almost implies that only contactual duties are sufficient. It does so at paragraph 35 which says: Importantly, even if the LINKS contract relating to Jared were to have been renewed and to have been in force at the time of Jared's death, we are not convinced that it would be the sole basis or even a controlling factor in determining Defendant's legal responsibility under the Act. Defendant's criminal liability must exist solely based on an omission— a failure to act when she had a legal responsibility to act. See Deborah A. Goodall, Penal Code Section 22.04: A Duty to Care for the Elderly, 35 Baylor L.Rev. 589, 594 (1983) (stating that " authorities have long agreed that before an omission can constitute an offense[,] there must first be a duty to act" ); see also People v. Beardsley, 150 Mich. 206, 113 N.W. 1128, 1129 (1907) (" The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death." (citation omitted)). But, this could be dicta because it was a case where any legal duty would arise under contract rather than for another reason, and as is the case in many smaller states, there is simply no case that has ever been decided in New Mexico which is squarely on point. Under British criminal law, in similar circumstances, a homicide conviction was vacated: R v Khan & Khan (1998) CLR 830, confirmed that there is no separate category of manslaughter by omission unless the omission constitutes a breach of duty to act. The defendants supplied a 15-year-old prostitute with twice the amount of heroin likely to be taken by a regular user. The defendants left her unconscious in the flat, returning the next day to find that she had died of the overdose. Had medical assistance been called, the girl would probably not have died. The unlawful act was supplying the drug but the death was caused by the quantity injected by the victim. The trial judge invited jury to consider liability on the basis of the defendants' failure to summon medical assistance. On appeal, the conviction was quashed because the brothers had not accepted a duty to act before she took the heroin. A dissertation on when criminal liability is imposed for omissions in Scottish law can be found here. New Mexico, whose laws really should govern, has just two homicide statutes: § 30-2-1. Murder A. Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused: (1) by any kind of willful, deliberate and premeditated killing; (2) in the commission of or attempt to commit any felony; or (3) by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life. Whoever commits murder in the first degree is guilty of a capital felony. B. Unless he is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another. Murder in the second degree is a lesser included offense of the crime of murder in the first degree. Whoever commits murder in the second degree is guilty of a second degree felony resulting in the death of a human being. Walter doesn't qualify for any of these prongs of the statute. § 30-2-3. Manslaughter Manslaughter is the unlawful killing of a human being without malice. A. Voluntary manslaughter consists of manslaughter committed upon a sudden quarrel or in the heat of passion. Whoever commits voluntary manslaughter is guilty of a third degree felony resulting in the death of a human being. B. Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection. Whoever commits involuntary manslaughter is guilty of a fourth degree felony. Clearly, Walter also does not qualify as guilty of voluntary manslaughter. There is no quarrel or heat of passion. So, either Walter is guilty in New Mexico of involuntary manslaughter, or he is not guilty of homicide at all. New Mexico also has an unusual, and rather merciful "excusable homicide" provision at New Mexico Statutes § 30-2-5, that should also be considered: Homicide is excusable in the following cases: A. when committed by accident or misfortune in doing any lawful act, by lawful means, with usual and ordinary caution and without any unlawful intent; or B. when committed by accident or misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, if no undue advantage is taken, nor any dangerous weapon used and the killing is not done in a cruel or unusual manner. Arguably, Walter falls under "excusable homicide" part A, as moving the pillow was a lawful act done without unlawful intent and that is what caused the death. | Georgia doesn't have degrees of murder, but instead has malice murder and felony murder. Neither requires prosecutors to prove an intent to kill. The three men demonstrated “malice aforethought” when they jointly and illegally chased Arbery through the streets in pickup trucks and shot him. That's the basis for the malice murder charge. The three men were charged with jointly intentionally committing four felonies each — two counts of aggravated assault and one count each of false imprisonment and criminal attempt to commit false imprisonment. Each of those felonies caused Arbery's death. Thus four felony murder charges each. | It would depend on your intent, among other things If the prosecution stand a reasonable chance of proving you intended to kill that person by infecting them with coronavirus, they may choose to charge you with attempted murder. Obviously, it would be highly fact-specific. In the alternative (and the far more likely prospect) they could charge you with assault occasioning actual bodily harm contrary to s47 of the Offences Against The Person Act 1861 (OAPA) or inflicting grievous bodily harm contrary to s20 OAPA. The exact alternative charge would depend on the effects suffered by the victim and whether it could be proven that you were responsible. If so, and the infection was particularly severe, it could be an s20 offence (GBH). If not, it would probably be an s47 offence (ABH). Of course, if the person caught it and died, and the causation test was passed, etc. then you'd be looking at a murder charge. The same with attempted murder if they didn't die but the causation test was proven and your intent was also proven. However, realistically the most likely charge is ABH or GBH. | 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. | Doing something to a dead body that would kill it if it were a living person is not murder, manslaughter, or any form of homicide in any country that I know of. It may be a crime to mutilate a corpse, or some similar provision. It may also be attempted murder. For example, in the US state of Oklahoma, section §21-1161.1 provides: A. It is unlawful for any person to knowingly and willfully desecrate a human corpse for any purpose of: Tampering with the evidence of a crime; Camouflaging the death of human being; Disposing of a dead body; Impeding or prohibiting the detection, investigation or prosecution of a crime; Altering, inhibiting or concealing the identification of a dead body, a crime victim, or a criminal offender; or Disrupting, prohibiting or interfering with any law enforcement agency or the Office of the State Medical Examiner in detecting, investigating, examining, determining, identifying or processing a dead body, cause of death, the scene where a dead body is found, or any forensic examination or investigation relating to a dead body or a crime. B. Upon conviction, the violator of any provision of this section shall be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term not more than seven (7) years, by a fine not exceeding Eight Thousand Dollars ($8,000.00), or by both such fine and imprisonment. In addition, if the person thought that the dead body was a living person, and tried to kill that person. There may be a charge of attempted murder on which a conviction might be possible. See "attempted murder" of a dead man? for details. In general, if property (such as a cell phone) has been stole from a person, that person my reclaim such property, and doing so is not theft. However, a person is not in most jurisdictions permitted to enter someone else's property, to break and enter, or to assault a suspected thief in order to recover property. A person who actually observes a theft (or other serious crime) is in many jurisdictions allowed to pursue the thief/criminal and use reasonable non-deadly force to stop and detain the thief pending the arrival of law enforcement, who should be promptly summoned. The details vary widely from place to place. The use of deadly force, such as a gun, is generally not permitted, except in proper self-defense, but again the details vary widely. | Of course The prosecution just needs to prove that the crime happened (or the defendant believed it to have happened) and you helped (in brief, there will be specific elements of the crime that each need to be proved). This would be easier if the primary crime had a convicted perpetrator but it’s not impossible without. Allow me to illustrate with an example. I will set out facts which are somewhat contrived and would not be so clear cut in a real case but for the purposes of the example please take them as undisputed and fully supported by evidence. John and Jill are in a relationship. This relationship is well known to be argumentative with frequent shouting matches and one or the other storming out. This does not amount to domestic violence by either party. John's friend Alan believes (wrongly) that there is domestic violence. During an argument Jill drops dead of a heart attack. John rings Alan distraught and says "I've killed her." Alan assumes (wrongly) that John has murdered Jill. Alan says "i'll take care of it. You go to your dad's". Alan (alone) disposes of the body. John is not guilty of murder (or indeed, anything). Alan is guilty of accessory to murder even though the actual crime never happened. The fact that Alan believed it happened is enough. | It may depend on the jurisdiction (although I can't readily think of one where this is not the case) but deliberately, recklessly or negligently putting a burning object next to someone else's property knowing that there is a real risk of it catching fire (and going ahead with it anyway) will almost definitely make one liable: especially if there is an ulterior motive. In england-and-wales This would be called arson - causing criminal damage by fire - an offence contrary to section 1(3) of the Criminal Damage Act 1971 Cross posted with the jurisdiction defining comment |
Does an attorney in Germany have to prosecute own relatives In German penal law, does an attorney (Staatsanwalt) have to prosecute own relatives (parents children, siblings, etc.)? If no, by what law (I could not find any that would provide them with that right)? If so, are there some case examples? | Attorneys are normal officials (Beamte), so the laws about officials apply to them. So e.g. for North Rhine-Westphalia (there are similar laws in the other states) § 47 Gesetz über die Beamtinnen und Beamten des Landes Nordrhein-Westfalen (Law about officials of the state North Rhine-Westphalia): (1) Beamtinnen und Beamte sind von Amtshandlungen zu befreien, die sich gegen sie selbst oder Angehörige richten würden, zu deren Gunsten ihnen wegen familienrechtlicher Beziehungen im Strafverfahren das Zeugnisverweigerungsrecht zusteht. (1) Officials are to excuse of official actions, that are against them or their relatives, if they have the right to refuse to testify against them in criminal proceedings. (my bad translation) These relatives are according to § 52 Strafprozessordnung (Code of criminal procedure): fiancée, spouse (even ex-spouse) and any "person who is or was lineally related or related by marriage, collaterally related to the third degree or related by marriage to the second degree." So attorneys do not have to prosecute their relatives. In some (but not all) German states this is not only a right of the attorney, but they are forbidden to perform official actions in processes against their relatives. So e.g. in Saxony-Anhalt, § 14 I n. 2, 3 Ausführungsgesetz des Landes Sachsen-Anhalt zum Gerichtsverfassungsgesetz (Law of the state Saxony-Anhalt to implement the Courts Constitution Act) Ein Beamter, der das Amt der Staatsanwaltschaft ausübt, darf keine Amtshandlungen vornehmen, wenn er [...] Ehegatte oder Eingetragener Lebenspartner, Vormund oder Betreuer des Beschuldigten oder Verletzten oder einer Partei ist oder gewesen ist; mit dem Beschuldigten, dem Verletzten oder einer Partei in gerader Linie verwandt oder verschwägert, in der Seitenlinie bis zum dritten Grade verwandt oder bis zum zweiten Grade verschwägert ist oder war; [...] An official, who exercises the office of a prosecutor, is not allowed to perform official actions, if he is or was [...] the spouse or registered life partner, guardian or legal curator of the accused or of the injured or of a party; lineally related or related by marriage, collaterally related to the third degree or related by marriage to the second degree to the accused or to the injured or to a party; [...] (my bad translation) | If an adult had physically restrained the miscreant brat, they could be sued for / charged with battery (which does not mean "beating up", per Cal Penal 242, it is the "willful and unlawful use of force or violence upon the person of another". In either case, there is a defense that can be mounted, the "defense of others" defense, to the effect that the person had a reasonable belief that it was necessary to prevent physical harm to others. Which means, the jury would imagine themselves in that situation and guess how likely it is that someone might get hurt. Lofting 5 lb chess pieces at a 2 year old could poke out an eye, especially since they haven't learned to duck at that age – however, I question (as would an opposing attorney) the characterization "quite dangerous". At any rate, it would depend on the level of danger posed. There is also a "proportionality" requirement for the defense of others defense: "The defendant used no more force than was reasonably necessary to defend against that danger" (CalCrim instruction 3470). The battery might not have been necessary, since simply getting between the criminal and his victims could have been sufficient. As to whether there would actually be a lawsuit, that depends in part on the mind-set of the parents. Assuming that the level of force did not rise above simple bodily contact, it is unlikely that a jury would vote to convict / find liable, but certainly not impossible. If under those circumstances the results would not be in serious doubt, then it is unlikely that the person would be prosecuted (the prosecutor wouldn't bother with such a case). We may also assume that a decent attorney would persuade the offended parent-client that it is not a good use of their money to pursue he matter. Still, the risk is not negligible, since you don't know whether you'll have bad luck with the jury, or whether the child suffers from eggshell skull syndrome and then you would be is serious trouble. I don't think the fears are unrealistic, though they may be improbable, and they could be definitive for people who live in fear. | No, there is no general publicly accessible directory of lawsuits against private individuals, even if it concerns yourself. The complaint must identify you as the defendant indicating a ladungsfähige Anschrift, § 253 Ⅱ, Ⅳ, 130 ZPO. Commencing an action requires service of process, § 253 Ⅰ ZPO. I presume you are not a De-Mail user. So you will get a hardcopy. You may not know that, but such mail in Germany is usually sent in yellow envelopes. The mailman will carefully compare the mailbox label and in case of a match record the date and time of successful delivery on the envelope as well as a slip of paper returned to the sender, the court in this case. Now this will obviously fail in your case (unless the landlord maliciously attached a corresponding label to a mailbox). In a civil action the court “pretends” to be dumb regarding facts. The landlord must try to track you down. Evidently he knew your email address, so he had some contact details. If he was evil, the next option would be to ask the court for an öffentliche Zustellung, § 185 ZPO. If the court agreed, this means there will be, for instance, in the city hall a paper on a bulletin board “To the attention of Coala, last known address …: There is mail for you to pick up at my office.” Two weeks later the letter is automatically considered to be delivered.Some cities (example: Cologne, NRW) also publish these documents on the internet, but due to GDPR considerations delete them after a certain period now. If there was a lawsuit, there will have been a default judgment by now, i.e. you will have lost just by being a no‑show. However, you said you have never received the bill. This means the landlord must have produced false evidence, claim to have sent the bill and a subsequent warning notice, but there was none. But this is an entirely different issue. | 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). | Close to zero, provided that §78 ZPO really applies in your case. You want to overturn established law and precedent on the grounds that it violates your notion of justice and civil or human rights. Such things happen, but doing so without professional representation is close to impossible. You have two realistic options -- get a lawyer for your initial case, or get a lawyer for your appeal as it works through the institutions (which is likely to fail). | I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general. Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea. And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications. The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved. In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K. The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality. | It can (and has) been argued that some of the post-bellum trials of Germans and Japanese (but no Italians because they were Allies now) proceeded on shaky legal grounds. However, the arguments of your friend are wrong. In addition, many of the cases proceeded on solid legal foundations based on war crimes (e.g. the Commando Order) and treatment of prisoners-of-war (e.g. the Stalag-Luft III murders). Citizens and non-citizens are protected by the law and were even in Nazi Germany, albeit not equally. The Nuremberg Laws did not classify Jews as non-humans, merely as non-citizens (which is not to trivialise their awfulness). Superior orders has never been a recognised defence for criminal acts under civil or common law. The first recorded rejection of this defence was in the trial of Peter von Hagenbach in 1474. The roots of modern International Law can be traced to the 16th century and were definitely well advanced by the 19th, let alone the mid-20th. Nations accepted that international treaties and diplomacy were supported by international law and these included the Geneva Conventions of 1864, 1906 and 1929, since updated in 1949 (of which Germany was a signatory) among many others. In addition, since the Enabling Act (which instituted Hitler's dictatorship) was quite probably illegal, it can be reasonably argued that all actions that flowed from it (i.e. basically everything that the Nazi's were tried for) was illegal under German law. | Basically, it is up to the court. The relevant law is the Police and Criminal Evidence Act (PACE). You don't give much in the way of specifics, but it sounds like you confessed something to the police at the side of the road immediately after the accident, and now wish to dispute that confession. If you are taken to court and the police want to introduce your confession as evidence then you (through your lawyer) can ask the court to rule it out. You may be able to do so on a number of grounds. Was the confession properly recorded at the time? Were you treated in an oppressive manner, such that you felt you had to say what the police wanted to hear. Did you think you might get more favourable treatment if you said what the police wanted? For instance, did you think you might be allowed to go home once they were satisfied? Were you given a proper rest, or were you in a mental state that might cause you to say things without understanding the consequences (it sounds like this would be your main argument, but consider the others too). [Edit] If you needed medical treatment that would also be relevant. Were you properly cautioned (that speech beginning "You do not have to say anything...") before the police asked you questions. If you think you may be facing criminal charges then you should get yourself a lawyer sooner rather than later. A lawyer will know all about this and be able to navigate the relevant legal processes on your behalf. A bit of background: back in the 1970s the police frequently attributed incriminating statements to suspects when arrested, such as "Its a fair cop, guv", or "Who ratted on us?". The rules in PACE were made to stop such "verballing". |
Can a judge make it case law that 2×2=5? The following quote from Malcolm Turnbull is actually not what this question is about, but nevertheless it is a good-fit epigraph: The laws of mathematics are very commendable, but the only law that applies in Australia is the law of Australia. Though the scenario I give in this question is exaggerated, hypothetical, edge-case one, it is technically valid and showcases the essence of the question. A recent question/answer seems to be telling us that it is perfectly fine for a judge to reject an argument even implicitly — i.e. without actually discussing it. Such a judgment might only be vulnerable to appeal, but in no way to judicial discipline / misconduct investigation. If not successfully appealed, it becomes case law — binding on all inferior courts. Where rights of appeal do not exist (e.g. the court is the top court in its jurisdiction), the judgment becomes set-in-stone law — until cancelled either by the same court or via legislation. So, let's consider the same example as in that question, but more specific one: Bob contends: I am right and Rob is wrong because blablabla... 2×2=4 ...blablabla. Rob defends: No Bob is wrong, because blablabla... and 2×2 actually equals 5. Bob replies: But look, lets see what 2×2 equals to [math proof follows]. It is 4, you see. The judge says: I accept Rob's contention that Bob is wrong because 2×2=5. Bob has no case. So, the judge implicitly rejects the math proof that 2×2=4 (as their Honour "does not have to address every argument raised in their judgement") and, effectively, makes it case law that 2×2=5. Is this scenario technically/legally possible? Would the case law that 2×2=5 stand for some time? Will the judge not face any disciplinary consequences but just public outcry and reputation damages? I appreciate that one might want to say that no judge would accept such an extremely outrageous merit-lacking argument as "2×2=5" and I totally agree (with hope). But the way this question applies to reality is that there is no clear boundary between "2×2=5" and any mundane argument that Rob might argue — as far as its acceptance by a judge is concerned. | Appellate judges make holdings on matters of law, and generally defer to the fact-finder in a given case (the jury, or sometimes the judge) on factual matters relevant to a case. So in a case that involved certain mathematical arguments, they would generally leave it to the jury to decide whether those arguments were reliable. Put simply, Appeals courts don't make binding decisions on issues of fact, only issues of law. | In practice, common law courts turn to academic writing, either law review articles or legal treatises or the "Restatements of Law", on a regular, but infrequent basis. These sources are not binding sources of legal authority but can shed persuasive light on the logic behind a legal rule or the course of action that has been taken in previous similar cases. In civil law countries (i.e. those not descended from the legal system of England), there are far fewer circumstances in which court precedents are sources of law. Much of the gap in credible sources for how ambiguities in the statutory law should be interpreted in these countries comes from academic writing. In a typical civil law country, a leading law professor has more impact on how the law is interpreted than senior appellate court judges. Again, academic writings are not binding legal authority, but in the absence of alternative sources for material interpreting statutes, they are very persuasive. | An appeal to ignorance asserts that a proposition is true because it has not yet been proven false. That is not in any way the situation here. The defendant knows if he/she has or has not so the only available answers under oath are "yes" or "no" - the jury knows this too so any other answer will be seen as disingenuous. However, this information (affirmative or negative) is off limits to the jury as it could prejudice their decision, hence the mistrial. A quick judge could instruct the defendant not to answer and instruct the jury to disregard the question but if a conviction results the defence team could use the fact that it was asked as grounds for appeal. A judge must decide if the interests of justice are better served by a retrial or a tainted conviction. | Judges do not decide, jurors do (however, if a judge is the fact-finder, then the judge makes such a determination). The main input that the decision-maker gets is a jury instruction. In order to unify "reasonable doubt", "reasonable price", "reasonable delay" and so on, appeal is often made a mythical being, "the reasonable man", so reasonable force would be the degree of force the reasonable man would use in a given situation. I will draw from California criminal instructions ('cuz I have them) but similar instructions can be found across jurisdictions. For example, one instructions says "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes". Or from a negligence instruction "A reasonable person would have known that acting in that way would create such a risk". More detailed appeal to The Reasonable Person is found in the justified homicide instruction: Defendant’s belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the [attempted] killing was not justified. When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. The defendant’s belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. There is no explanation of what it means to be "a reasonable person". Since nobody believes that they themselves are unreasonable, a simple and also wrong way of judging the matter is to subjectively judge whether you yourself would do the same thing, if you were in that situation. Very often, instructions do not even bother to say what "reasonable" means, so (re interpreting expert testimony) "You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence"; (re corpus delicti) "That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed"; "Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty", "when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable" The closest the law has come to articulating an objective characterization of "reasonableness" is in "reasonable doubt" instructions. One characterization is in People v. Feldman, 71 N.E. 2d 433. It is not a doubt based upon sympathy or a whim or prejudice or bias or a caprice, or a sentimentality, or upon a reluctance of a weak-kneed, timid, jellyfish of a juror who is seeking to avoid the performance of a disagreeable duty, namely, to convict another human being of the commission of a serious crime A somewhat improved characterization is the Calcrim instruction Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt There is room for improvement, but it points in the right direction. On rare occasions, a law is written that actually includes a definition. The Gas Price Spike Act HR 3784 said The term ‘reasonable profit’ means the amount determined by the Reasonable Profits Board to be a reasonable profit on the sale. It is then up to the board to subjectively determine what that profit is. (BTW this did not become law). [Addendum] It's actually very difficult to determine what reasoning judges use in those cases where they are the determiners of fact. They will likely call on their knowledge of law, asking "are these circumstances sufficiently like past circumstance A where the defendant was convicted, or more like B where the defendant was acquitted". | If you say something twice, eventually they’ll be in conflict Law codes are vast. They deal with many things and sometimes, as here, they deal with the same thing twice. If they duplicated themselves, rather than cross-referencing, every time the law was changed, every single instance would have to be tracked down and changed. Admittedly, that is not as big a problem with digital codes (but still not infallible and definitely time-consuming) but when these would have to be found by hand, it was damn near impossible. Written this way, change it once and it’s changed everywhere. My first boss taught me that. The fired was engineering rather than law but the principle is the same. | Yes. This is legal. See, e.g. SPARF v.U.S. 156 U.S. 51 (1895); U.S. vs Moylan, 417 F 2d 1002, 1006 (4th Cir. 1969); U.S. v. Krzyske, 836 F.2d 1013 (6th Cir. 1988) ("the jury asked the judge about jury nullification. The judge responded, "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error."). Indeed, procedurally, the system is specifically designed to prevent courts from even considering such a question. See also, e.g. People v. Iannicelli, 2019 CO 80, § 2 (Colo. 2019) (holding no crime was committed) ("Defendants Mark Iannicelli and Eric Brandt stood in the plaza square adjacent to the Lindsey-Flanigan Courthouse in Denver and asked people entering the courthouse whether they were reporting for jury duty. If any of these people answered affirmatively, then Iannicelli and Brandt would hand them one or more brochures discussing the concept of jury nullification, which the brochures defined as the process by which a jury in a criminal case acquits the defendant regardless of whether he or she has broken the law in question. As a result of this conduct, the People charged Iannicelli and Brandt with multiple counts of jury tampering") This is deeply entwined with the U.S. law interpretation of the Fifth Amendment Double Jeopardy Clause's protections, which prohibit a retrial or appeal following a judgment of acquittal, which have been incorporated by the U.S. Supreme Court as applicable in state courts as well. | You have to deconstruct the question on a country by country basis. In the US legal system, the question presupposes something incorrect, that there are "investigators" who play a rule in legal system, and their job is to determine guilt vs. innocence. That is something determined by the "finder of fact", typically the jury (it could be a judge, when you have a bench trial). The finder of fact may take into consideration testimony provided by a witness, and it is possible that a witness is an expert in some relevant area, who might attest to the significance of a claimed piece of evidence. The expert cannot testify on the question of guilt. For example, a DNA sample might be admitted as evidence that the defendant was present in certain circumstances, which could reasonably lead the finders of fact to conclude that the defendant did strike the victim. A DNA sample cannot testify, therefore some expert must testify about the significance of the sample, specifically whether the sample "might have" come from the defendant, or "definitely came from" the defendant. Others will testify as to the circumstances surrounding the collection of the sample. It is then up to the finder of fact to evaluate all of the evidence plus understand the instructions regarding the criteria for finding the defendant "guilty". Theoretically, Bayes Law could enter into an expert witness's (scientific) testimony, and likewise an opposing witness could contradict the putative relevance of BL in terms of reaching a scientific conclusion. BL could enter into the discussion at the level of the bottom line "definitely/possibly does come from the defendent". The only practical way that I can see BL entering into the courtroom at least non-gratuitously would be if there is a dispute over the reliability of a certain test, thus should the testimony be allowed in the first place (it might be excluded as being unreliable). There is a genre of research (for example this) that addresses the problem of sketchy statistic inferences, pointing to a role for BL. I would say that the prospects are dim, not bright. | Courts have inherent jurisdiction to reconsider/recall their own decisions. This rarely happens (especially if the decision has already been "sealed" i.e. issued in writing) but still possible. The principle of finality only applies to parties asking courts to reconsider; it does not constrain courts themselves. So, in this example, "the judge agrees to vacate them" but that decision hasn't been sealed yet. The judge can easily just change their mind (although, again, it rarely happens). No double jeopardy applies because it is still the same trial. |
Can freelancers publish code in GitHub and claim it to be theirs? I am curious to know the legal process of a collaborated effort for a code at a small startup. Say I am the technical head of a startup, and I have about 90% of the code/commits. The other 10% is by temporary employees, interns, freelancers, etc. For the sake of this story, I will call one freelancer Alan. For a particular project, Alan was given read access to a private repository, and write access to his branch. What prevents Alan from copying our private code and pasting it on GitHub as his own 'published work', essentially granting him copyright over our work? We could show git logs as proof that we had access to the code before he arrived, but git logs are easy to modify, and histories can be rewritten. On GitHub, say Alan uses his signed keys, removes the entire git history and makes a commit with the final state of our whole codebase as his 'Initial Commit'. What legal standing do we have (or proof) if we have not made Alan sign any documents specifically saying he is not allowed to publish our code anywhere (but we also haven't signed any document saying he IS allowed to publish our code). Updates: There has been some discussion, so I would like to ask a more concrete question. Is it proof enough that Alan posted the code at a given time first(which was verified through something like Github's signature on the commit) that I cannot file for a copyright?(since he has published his code and gotten it verified, but we did not used 3rd party signed commits) | 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.) | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | I realize there's already an answer, but I'd like to go into more detail. There are generally two kinds of open source software licenses: permissive and copyleft (the latter sometimes called viral). Both are intended to allow people to freely use, modify, and redistribute a work while ensuring the original author gets credit. This contrasts with releasing your work into the public domain, which would allow anyone do literally anything, even claim to be the author. The difference is that permissive licenses allow you to re-license your derivative works however you like, while copyleft licenses require your derivatives to be licensed under the same license (hence the term viral). The reasons you'd choose either one are philosophical and political and beyond the scope of this answer. Both the Apache License and the MIT license are permissive, so incorporating MIT licensed code into your Apache licensed project is certainly allowed. Just be sure to attribute the original author for the parts your incorporated and include a copy of the MIT License terms, as required by the license. Go ahead and read it to make sure you get all the details right; it's fairly short and easy for a layperson to comprehend. | One cannot use the works of others unless one of the following applies: The copyright holder has given permission, usually in the form of a license, often explicit, but sometimes implied. The work is not protected by copyright. This can happen in several ways, but the most common is that the work is old enough that copyright has expired. In the US, works older than 1927 are currently out of copyright. So are some others, the rules are a bit complex. In many countries, if the author or creator died more than 70 years ago, the work is out of copyright. In some countries this is a different number, between 50 and 100 years. This is not likely to apply to a file distributed with current software. If an exception to copyright applies. In the US this would most likely be fair use. In the UK it would probably be fair dealing. In other countries there are a variety of exceptions that might apply, including personal use in some. AS a comment by Jen points out "use" here refers only to those rights protected by copyright, such as making and distributing copied, making nd distributing derivative works, and the like. (Displaying and publicly performing seem unlikely to apply.) Now lets consider the specific situation, and which if any of the reasons for lawful use might apply. License or other permission. There is no explicit license. Since the program is distributed to be run, there is an implicit license to make the sort of use of the file needed to run the program. If the documentation describes how to employ the file as part of running the program, there is almost surely an implied license to employ it in that way. There is not, however, permission to make copies unless that is needed to run the program. There is surely not permission to make derivative works of the file or distribute copies to others, even if you do not charge anything. Expired copyright This pretty clearly will not apply. Fair use This might apply, or might not. There isn't enough info in the question to tell, not even to make a good guess. If any use would be non commercial, that helps fair use a bit. If the use would be for a different purpose than the one the developers used it for, that helps fair use a lot. If the use of the file harmed the market for the program, or served as a substitute, that lean against fair use. without knowing what the file is, what it does, and how it might be used, one really cannot weven guess. | If the code is unrelated to your employment you own the copyright no matter if it is written in Visual Studio, on a piece of paper or tattooed on your butt. In the same way a sculptor owns the copyright in their sculpture even if they use someone else's chisel. Using Visual Studio in this way may, however, violated your contract with your employer and/or their contract with Microsoft. Why go there? Visual Studio Community is free. | You ask permission, preferably with legal counsel to handle the details. It really is that simple. Unsurprisingly, most companies don't want to give their code away- especially to a competitor. If you even get a response, they will expect something in return i.e. money. Realistically though, it's unlikely they will respond, much less deal with you. | Sure, you can. But if you, from the US, contract with and pay someone outside the US and then use the results of that effort - the reverse-engineered code, either directly in violation of copyright or to find workarounds - within the US, you may not be culpable in a criminal sense (depending on different jurisdictions and trade/IP agreements), but you certainly would be liable in a civil sense. If the US based software developer (I assume a US-based software company, as you said "outside the US") tracks you down, they can open a civil action against you for any damages they want to claim, including theft of IP, loss of profits, EULA violations, and on and on, because you posses and are using reverse engineered code. How much money do you have to lose? | Company B has created a derived work from company A's copyright-protected work, so yes, B has infringed on A's copyright. It might be difficult for A to prove it, however, so B might get away with it, but it's still infringement. On the other hand, if B creates software that behaves like A's through reverse engineering, that is, by examining the program's function without examining its code, then they will not have infringed the copyright in the code. |
If you escaped from prison for a crime you did not commit, would you still serve the increased sentence once exonerated? For example: you were convicted of murder and escaped and were then sentenced to years on top of your original sentence, but you were later exonerated of the crime of murder; would you still have to serve the sentence for escaping? Even though you shouldn't have been there in the first place? | At the federal level, per 18 USC 751, escaping is a crime. In United States v. Allen, 432 F.2d 939 it was held that an arrest need not be lawful in order for an escape to be illegal; Laws v. US states that "This court has said that a sentence imposed for a violation of 18 U.S.C. § 751 is 'not affected by the validity of the sentences being served at the time of the escape'", giving numerous citations. I don't find cases where the escapee was exonerated; prosecutors have the discretion to not prosecute for committing a crime, so it would be hard to find a case where the legality of such a conviction was upheld (also, hard to find a jury willing to convict in such circumstances). | Can a jury render a verdict that contravenes with binding precedent? Yes, but (if it is a guilty verdict) it will be overturned on appeal. The appeal court will say that the jury's verdict was not one which any reasonable jury could have made on the basis of the evidence and the instructions in the case. As explained in Dave D's answer, the trial judge will have explained the law, including the binding precedent, to the jury. So if we get to this stage then the jury is disregarding instructions. The above process is the remedy. You may notice a 'gap' where the jury can unlawfully acquit a person and there's nothing anyone can do about it, because of the rule against double jeopardy (that is, you can't appeal against an acquittal). This is called jury nullification, because the jury has nullified the relevant criminal law by acquitting an offender. | Maybe. There are two questions presented. The first is whether someone who is in prison for a felony may be admitted to the practice of law. There is not a categorical prohibition on doing so. Instead, a character and fitness committee in each state to which an applicant seeks admission (even if it is a reciprocal admission) considers an applicant on a case by case basis. Usually, people with a felony conviction that is being served or is recent are not admitted to the practice of law, but it is not a blanket prohibition, so that could happen, although it would be highly unusual. The second question is whether someone admitted to the practice of law in good standing who is incarcerated in prison would be allowed to do so by prison officials. The work the inmates are allowed to do is largely in the discretion of the prison warden at a particular institution. It isn't inconceivable that a prison warden could allow an inmate to do this subject to significant limitations on scope of practice, but again, it would be highly unusual. Some factors that might encourage a prison warden to allow it would be that: (1) the state has to pay another lawyer to represent inmates in some kinds of cases if the fellow inmate does not at greater expense per hour to the state, (2) it might promote rehabilitation and garner good press, and (3) the prison warden might reasonably guess that an inmate represented by a fellow inmate is less likely to prevail on the merits than an inmate represented by another lawyer and might prefer that outcome. The leading treatise on the subject of lawyering by inmates, with and without full or limited admission to the practice of law, is the Jailhouse Lawyer's Manual. | Double jeopardy applies to the same facts, not to the same sorts of crimes. Say if you are tried and acquitted of murder of person A, that won't later save you from being tried for murder of person B. Same applies to your question: if the documents/testimony on the second occasion are different from the first occasion, there is no protection. If they are the same, there is. | I don't think that's an accurate interpretation of the statement. The key difference between the two scenarios is the defendant's legal assessment of who owns the necklace. In the first he thinks he is the owner and can claim mistake of law; in the second, he he thinks someone else is the owner, so he cannot. To say he believes "the law allows for someone to do whatever they want with lost property even if they know who the rightful owner is" is very different from saying he thinks he's the owner. He doesn't think he's the legal owner, he just thinks he has legal rights that include some rights associated with ownership. So if the defendant's statement had actually been, "I thought I was the owner," that would have been a successful defense when the crime requires depriving the owner of the property. The defense was actually, "I thought I was allowed to deprive the owner of the property," which is an admission of guilt when the crime requires depriving the owner of the property. There are a couple questions here: a. A different crime that did not require intent -- or even required a different kind of intent -- could still lead to a conviction. A legislature is free to define larceny differently, so it could say that anyone who recklessly or negligently deprives another of property is guilty. Or it could say that your state of mind doesn't matter and that depriving another of property is larceny regardless of intent. b. In most cases, the mistake of law defense requires that the defendant honestly believe in the mistake; unlike mistake of fact, it does not require that his belief also be reasonable. Either way, the question of reasonableness would probably be a question for a jury, so a judge wouldn't be able to reject it (except in a bench trial). c. Mistake of law is a potential defense to any crime that requires an intent to do something that requires an assessment of what the law is. So if it's illegal to intentionally have sex with a woman who is not your wife, and you mistakenly believed you were in a legal marriage, sex with your non-wife would not be a crime. It has potentially very broad implications, but keep in mind that in many cases, the mistake a defendant would have to claim would be pretty far out there. If it were illegal to intentionally let anyone under 21 years old into your bar, I guess you could argue that you only let a 20-year-old in because you thought the law started calculating at conception, but I doubt you'll convince a jury. Mistake of law defenses still pop up pretty regularly. Here's one just yesterday from the Tenth Circuit. And this one is a Kansas case where a conviction for carrying a weapon while a felon was overturned because the court wouldn't allow a mistake-of-law defense. The Kansas case, though, uses the more modern definition of mistake of law, which also includes reasonable reliance on official statements from the government. In that case, the felon's parole officer had told him that it was OK to carry a pocketknife, but in reality, the law titled "Criminal possession of a firearm by a convicted felon" prohibited carrying knives, as well. | 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. | Duress is a defense to crimes in most jurisdictions. This circumstance (you have been kidnapped and are falsely imprisoned by a murderer who has indicated a present intent to kill someone) would constitute duress. You would not have criminal liability in those jurisdictions. Some, but fewer jurisdictions than those that recognize a duress defense, also recognize a choice of evils defense. This defense might be applicable in this situation as well. But it could apply in a situation when you were not kidnapped but the bad guy called you and posed this question to you. | 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. |
Can customers be kicked out because a store employee personally dislikes them? An ex-friend works at a store. I know she has a way of manipulating situations in her favor. If I go into the store to purchase items without causing any trouble, could they kick me out of the store just because a worker there doesn’t like me? If they do kick me out of the store without any real reason, can I bring legal matters into it? | Legally, they can kick you out for any reason that isn't illegal discrimination. They can't kick you out for being black. They also can't kick you out for being white. But they can kick you out for not liking your face. Now the question is: Who can kick you out? The store owner obviously can. Anyone who is given the authority by the store owner can. Actually, anyone with the apparent authority can kick you out. However, everyone other than the store owner has been hired to work towards making profits. If throwing you out is bad for business, then whoever did it would have to answer to the store owner. So the ex-friend can't go to court for throwing you out, but they might get into trouble with their boss about it. PS. I interpreted "kicking out" as saying "Please leave our premises. If you don't leave then you will be trespassing and I will call the police", not actually kicking the person with your foot which would be most likely assault. | If you innocently took the oven glove by mistake there is no possibility of criminal consequences. Now that you know it is not yours, you must return it as soon as possible. You may be liable for the losses caused by taking the glove, and that could extend as far as some fraction of the cost of a replacement glove if they have already replaced it. You cannot (legally) hold his glove hostage for the return of your desk. Deciding which glove is which is tricky. Given the cost of new oven gloves, I would go round with both and ask him which is his. Even if he takes the nicer one which isn't his, you are only down a few dollars. The messy hall should be a separate question (and risks being closed as asking for specific legal advice - I think you need your own paid-for lawyer for that). | Note: IANAL Does the placement of a sticker stating, "We accept XYZ credit cards," essentially obligate a business to accept that card? It depends on whether you mean whether they are obligated to provide goods/services to someone who presents the card, or whether, having provided goods/services, they are obligated to accept the card as payment. For the first question, the answer is "no". The credit card brand could theoretically go after them, however, as names of credit networks are trademarks, so claiming to accept a card but not doing so is trademark infringement. For the second, the answer is "pretty much". Since they misrepresented their establishment, there is no mutual assent and therefore no contract. If they try to use "defrauding the innkeeper statutes", those require fraudulent intent. If you fully intended to pay for you meal by a credit card, and it was their choice to refuse payment, then you have no fraudulent intent. The only avenue I can see for them is some sort of equity argument, but that would be problematic, especially if they ask for the retail, rather than wholesale, price, and not worth the hassle of collecting. So, legally, you can just walk out, but in practice if they have a bouncer they might make trouble for you. | Is the question just whether a company can contact its customers to ensure that they're happy with the company's services? If so, the answer is generally yes. I can think of no reason why this would change based on the fact that someone saw her using the services of a competitor. Your mother seems to be treating the phone call as an accusation, but it appears to be standard customer-relationship maintenance. If she chooses to approach it differently, she can use it to improve her bargaining power with Gym 1. | In Germany, had the store not called the police (or paramedics), they would have been charged for not doing so under Section 323c. Other jurisdictions will no doubt have similar laws. On arrival, being informed that you ran away - but thankfully paid with a credit card - the police will try to find you. They are not allowed to make a determination that you are just being foolish, but must assume you are a danger to yourself. At some point in the extensive bureaucratic matter, they will probably come to the conclusion that you have acted in a negligent manner. Once that has been done, you will be made liable for all entailed costs to the taxpayer. So your fear of being charged for threatening to commit suicide is the least of your problems. Your claim against the store is probably justified (the listed price is in most jurisdictions binding). Your reaction to that is not. Section 323c Failure to render assistance; obstruction of persons rendering assistance (1) Whoever does not render assistance in the case of an accident or a common danger or emergency although it is necessary and can reasonably be expected under the circumstances, in particular if it is possible without substantial danger to that person and without breaching other important duties, incurs a penalty of imprisonment for a term not exceeding one year or a fine. (2) Whoever obstructs a person who is rendering or wishes to render assistance to another person in such a situation incurs the same penalty. Sources: Section 323c - German Criminal Code (Strafgesetzbuch – StGB) | The only excuse would be if you didn't know that your actions were a crime (not ignorance of the law, that's not an excuse, but ignorance of facts). For example, if your boss doesn't want you to serve a customer because that customer is gay, and your boss tells you "don't serve that customer, he was here last week and didn't pay the bill", you would be fine. Or if the boss of a demolition company sends a crew out to demolish the house of a personal enemy (surely a crime), the crew would have no idea that their action is a crime, so they should be fine. But if the boss of a bar or club orders a bouncer to beat up a customer, then the bouncer would know that he's committing a crime, and there is no excuse possible. | This is a pretty good example of "Contributory Negligence". Depending on the precise details of the case, both (or multiple) parties may have contributed to Karen's injuries. She certainly had some role by ignoring posted signs and wearing inappropriate footwear. But the shop may have made access too easy. Maybe they didn't have a front-desk person posted in a safe-area, causing her to go seeking an employee. The shop had a dangerous bin of metal shavings without a lid on it, and at a height and location where a single misstep means someone could fall into it head-first. They had dangerous crane-control mechanism in easy reach that didn't need a Key or other Lock-out mechanism. Ultimately, the details will matter. But it should be straightforward for mediation or a trial to determine each parties contribution to the overall unsafe situation and injuries. Taking the description above at face-value, I think Karen and the shop might both be found partially responsible for the injuries. It may not be a 50/50 split, but Karen likely acted unreasonably, and the shop, despite OSHA compliance, may well have created more hazards than appropriate. | Your description of the facts is vague enough that we can't offer an informed judgment, but to remedy this, I will paraphrase your account of the facts (you can decide whether this is what you were trying to say). I was sitting outside of the Sprint store today waiting for my step daughter to come out. While waiting, two police officers walked up to my car and asked me to turn off my vehicle and come inside. When I voluntarily went inside, the store staff said that they called the police because they had had some sort of problems with people applying for service and absconding with the phone to resell on the black market, and they thought that was part of some such criminal plan. Because of that, they refused to give her a phone or service contract. But then they also told us to never come back, threatening arrest for trespassing. I have never been in that store before. Were my rights violated? No, neither by the police nor by the manager. The police, or the store manager, can legally request you to come in for a conversation: what matters most is whether you were forced to come in against your will. By your report, you were not, so your rights were not violated. The police are irrelevant to the remainder of the question. What remains is whether your rights were violated because the manager told you to go away and never come back under pain of prosecution. The store is private property, meaning that the owner has wide latitude to grant or deny permission to enter. If they hate pink hair and your hair is pink, they can legally "ban" you. If they suspect you of involvement in a criminal activity, that can most certainly legally ban you. That does not mean that it was a righteous or justified decision on their part, or a good business choice, but it is their legal right. So, no, your rights were not violated. |
Implementation or enforcement: which is required by law by the governments concerned? In this q/a site and also in other q/a site of stack exchange networks, numerous questions are asked and answered. If these questions and answers are found to be legally binding, do the governments concerned to take appropriate steps to enforce and implement what is required by law. What is the relationship between the stack exchange network and the governments concerned and how these two different realities are connected? Can their opinions go side by side? can the governments intervene where opinions are contradictory and if the governments feel cases are of gross injustice? one example of such cases is destroying important office papers with a torrent of invective which can make countless person's world upside down. | if these questions and answers are found to be legally binding ... They aren’t. Therefore the premise of your question is flawed. It’s like asking “If my dog was a cat ...”. Well, since your dog isn’t a cat we don’t need to hear the rest of the question. | Different socities, including some that are not considered sovereign nations, create laws, that is enforceable rules of conduct, in different ways. Not all write them down. But they are all Law in that they are rulwa that societies can and will enforce mon their members. I recommend reading Legal Systems Very Different from Ours by David D. Friedman (Professor of Law at Santa Clara University). There are free versions available on the web, and the final version is available from Amazon. It includes chapters on several systems where law is not written, including: Pirate Law Prisoners’ Law Romani Law Comanche, Kiowa and Cheyenne: The Plains Indians Somali Law Other chapters deal with systems where law may have been written, but its method of formation and operation are very different from the models usually discussed on this site. This include Roman law, Imperial Chinese law, Jewish law, Early Irish Law, and the law of saga-period Iceland. | Article 75 says that It devolves upon the Storting: (a) to enact and repeal laws; to impose taxes, dues, customs and other public charges, which shall not, however, remain operative beyond 31 December of the succeeding year, unless they are expressly renewed by a new Storting Article 97 says that "No law must be given retroactive effect" . The combined effect of these provisions is that any changes in the law effected this year could apply to tax years after 2020 but not including 2019. So the law as written supports your understanding. Skatteetatten seems to agree since the rules are listed as covering 2019. | Absolutely not. Lack of authority Law enforcement officers do not have the authority to grant immunity from prosecution. The decision to prosecute lies with the district attorney's office. Courts have sometimes held that a promise of immunity by a police officer can make resulting statements inadmissible, but that's it -- the state is not bound by the police officer's promise to not prosecute, except in exceptional cases. They can gather other evidence and prosecute anyway. Prospective immunity The contract claims to provide immunity against prosecution for future crimes. Contracts against public policy are void, and I'm having trouble thinking of something which is more against public policy than a license to commit crimes. No one can offer that immunity through contract. In a recent trial of a Boston mob boss, he attempted to claim that a federal prosecutor had given him immunity for any and all future crimes for some time period; the court did not accept that, because a license to break the law is not a valid contract. Public authority There is a situation in which certain officers can grant authority to break certain laws: to catch bigger criminals. However, for fairly obvious reasons, there are extremely strict rules on when this is valid, both on the government procedure side and the claiming-the-defense side. The defense can only work if the defendant honestly believed the government had authorized his actions, if the government actually had authorized them, or if he followed official government legal advice. In this case, the defendant has no idea if government officials have agreed to the terms; he would have approximately no chance of convincing anyone he legitimately thought that the government approved of his actions. They certainly wouldn't be actually properly authorized, and he hasn't sought advice from the government. Other issues Police aren't the only people on this site. An investigation tends to involve one or more non-government agents who provide testimony in court. No contract with a private party can stop them from testifying in a criminal trial; certain relationships mean testimony isn't allowed (e.g. a lawyer can't testify about dealings with their client without client permission), but regular users could be required to testify against the site operator (possibly on the basis of actual immunity). Sources Public authority stuff: this Justice Department page, plus some discussion in this order. Prospective immunity: that same order. Lack of authority: myriad readings. | Finding Certainty There is only one way for certain: Do the supposedly unlawful thing Get sued (civil) or prosecuted (criminal) Go to court - if you win it wan't illegal If you lose, appeal to the next appellate court in the chain In one of those courts refuses to hear your appeal - it was illegal Repeat as necessary until you reach the Supreme Court - if you win it wan't illegal If you lose or the Supreme Court refuses to hear your appeal - it was illegal. Of course, this whole cycle will take a few years and quite a lot of money. Not certain but persuasive Consult a lawyer: their area of expertise is knowing what the law is and how it will likely apply to your circumstances. Of course, they can be wrong about this because - see above. Why is this so hard? Common law jurisdictions, of which Florida is an example, do not have a "Code of Laws" where you can look things up and see if they are legal or illegal. The Common Law in Florida is partially enacted law (by the US, Florida, County, City and finally your housing corporation) and partially unenacted law (decisions made by courts about both the enacted and unenacted law). In fact, enacted law is usually quite ambiguous until it has a body of unenacted (or case) law that surrounds it and provides guidance on how the courts will interpret it. Part of a lawyers skill is knowing (within their area of expertise) what the relevant case and statute law is with respect to the specific facts of the case, or knowing how to research them. Publish and be damned! You can always take the Duke of Wellingtons approach. In common law jurisdictions, everything is legal unless there is a law (enacted or unenacted) that makes it otherwise. If you do not believe that the action you wish to take is illegal then advise the other party that you will give them 24 hours to come back with a court injunction to prohibit it, otherwise you will proceed. You can't call a bluff harder than this! | 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 U.S. could pass a law directing Apple to create software for fair compensation. Similar statutes have been passed in wartime compelling companies to do all sorts of things and companies don't have all of the rights of individuals. If it can be done (not obvious in the case of existing products in the market place), it might be possible for the government to compel it to do so; if it can't be done, it can't be compelled and not all things are possible retroactively. There would also be a constitutional contracts clause issues with such a law impairing contracts between Apple and its customers when applied to existing phones retroactively. Whether it could require Apple to create a law enforcement back door depends upon whether 4th Amendment privacy rights trump the creation of a means to do so. There is an expectation of privacy in electronic records, but it is not absolute. But, there is no law on the books requiring this from Apple. It does not flow naturally from existing powers of law enforcement under existing statutes. It goes beyond what a subpoena would ordinarily require someone to do, and a subpoena is the main means by which governments compel people to provide information. In my opinion, a court faced with that question would rule that a statute requiring Apple to do this prospectively would be constitutional, but no such statute exists. However, this is currently an open legal question because there is no statute of the kind that have been litigated in a manner that produced a binding precedent. | 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. |
Delivery of oil bought through futures contracts What happens if someone is forced to take physical possession of many barrels of oil that they bought on the open market, but they have no storage space left to put it? ETA: In jeffronicus answer below, the buyer has options on how to accept the oil. This question aims to find out what happens if the buyer is out out of options. All space is full. The storage where the oil currently sits is contracted to someone else so they insist on delivering the physical possession of the oil. Another clarification: The scenario is that the price of oil has crashed to the point where storing the oil is more expensive than the oil. | For example, per the New York Mercantile Exchange Rulebook, there are several methods for accepting delivery of light sweet crude oil futures, including just recording new ownership of product that's already sitting in a storage tank: At buyer's option, such delivery shall be made by any of the following methods: (1) by interfacility transfer ("pumpover") into a designated pipeline or storage facility with access to seller's incoming pipeline or storage facility; (2) by in-line (or in-system) transfer, or book-out of title to the buyer; or (3) if the seller agrees to such transfer and if the facility used by the seller allows for such transfer, without physical movement of product, by in-tank transfer of title to the buyer. There are also provisions for negotiating alternative delivery procedures. | is there any legal action I can take against the dealership to enforce their compliance with our contractual agreement? Yes, you can sue for breach of contract. You would probably seek an order for specific performance. You could also claim damages but it is difficult to see exactly what damage you have suffered. Is there a reasonable timeline that they must deliver within if a date is not specified in the contract? Yes, where a contract is silent on a date for performance of an obligation they must be carried out in a reasonable time. From the circumstances 4 months is starting to seem unreasonable but they will no doubt argue that it is reasonable- this is something the court would decide. | Landlord or tenant responsible for the furnishing damaged after a flooding? This brief analysis of Scandinavian Contract Law explains the difficulty of addressing with certainty matters of Swedish contract law. Despite the legal and factual ambiguities, it seems to me that the contract terms and landlord's conduct preclude his entitlement to a reimbursement from you. (Disclaimers: I have never litigated in Sweden's courts; I do not purport to be knowledgeable about Swedish law; and it is unclear to me whether Swedish contract law has evolved since the date of the publication of Ramberg's criticism of Scandinavian contract law) First, it appears that the landlord was negligent by waiting several days to ask tenants to remove moldering furnishings (as these were starting to smell). If that was the landlord's earliest reaction to the flooding, then the delay might evidence [landlord's] failure to mitigate damages. In other legal systems, failure to mitigate damages is an obstacle to recovery from the sued party. Second, the landlord's unqualified instruction to throw everything away --in response to your proposal of checking for salvage-- might forfeit his entitlement to reimbursement. In this regard, page 4 of the aforementioned publication points out that [t]he Swedish Supreme court [...] generally stated that a contract containing the standard terms was deemed to have been concluded due to the parties' behaviour. Obviously, not all of the contract would be void, but only the application of the clause about tenant's financial responsibility for missing or damaged items in this particular context of landlord's delay and reckless response to your proposal. Third, in the clause regarding tenant's financial responsibility "to replace missing or damaged items", I would say that the qualifier "missing" is key. Here, the usage of "missing" connotes a deliberate act of taking items away in violation of the landlord's proprietorship, regardless of whether it was the tenant or a third party who removed/stole them. That same connotation of deliberate act should govern the very next qualifier, "damaged", absent any language that expands the latter's connotation of causality. Also a criterion of negligence would fail, because you were not notified that a flooding occurred. The contract's clarification that their "insurance doesn't cover [your] personal belongings" opens --albeit weakly-- the door to the possible interpretation that instead the policy covers the counterparty's (that is, the landlord's) belongings. On the other hand, the landlord could avail himself of arguments such as (1) tenant should have made arrangements prior to leaving for the holidays; and (2) landlord's bed & mattress were not intended to be stored in the basement, and instead should have been notified toward procuring an appropriate storage for them. It is hard to make a more precise assessment without knowing more about the terms of the contract and the circumstances. Therefore, the best thing to do is to look at the subtleties in the language of the contract (as I did above regarding the deliberate nature inherent to the adjective "missing" and its interpretative effect on the adjective "damaged"). | This is a close call, in the example that you suggest, because it won't have been executed with the proper formalities and it isn't clear that the content at a url would be fixed in its language at the time that the Will is executed. Subject to an exception for personal property memorandums (and a more subtle one for powers of appointment in trusts) you can't change the terms of a Will once it is signed except by a Codicil executed with the same formalities. Certainly, the best practice would be to assume that the answer is no. There are times when a reference to an external document in a will is allowed (e.g. a reference to real property by address rather than a full legal description found in a recorded deed), but a list of beneficiaries would ordinarily not be allowed unless it was effectively a reference to vital statistics records (e.g. "all children born to or adopted by me.") In general, references to external documents are not allowed when used to establish the nature of the testator's donative intent (a "testator" is someone who writes a will), unless it "describes the writing sufficiently to permit its identification" and can't be modified after the Will is signed, but can be used to establish general facts about reality. One exception in Colorado is that a "personal property memorandum" designating who will receive specific items of tangible personal property can be incorporated by reference and does not have to be executed with the same formalities as a will. It isn't clear to me if a url could be a valid personal property memorandum and that issue has never been tested in Colorado. Colorado's probate laws are based on the Uniform Probate Code and would be substantially identical to any other jurisdiction that adopted the Uniform Probate Code's substantive provisions. The primary statutes governing this (which aren't necessarily easy to understand without context) are: Colorado Revised Statutes § 15-11-502. Execution--witnessed or notarized wills--holographic wills (1) Except as otherwise provided in subsection (2) of this section and in sections 15-11-503, 15-11-506, and 15-11-513, a will shall be: (a) In writing; (b) Signed by the testator, or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (c) Either: (I) Signed by at least two individuals, either prior to or after the testator's death, each of whom signed within a reasonable time after he or she witnessed either the testator's signing of the will as described in paragraph (b) of this subsection (1) or the testator's acknowledgment of that signature or acknowledgment of the will; or (II) Acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. (2) A will that does not comply with subsection (1) of this section is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting. (3) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting. (4) For purposes of this section, “conscious presence” requires physical proximity to the testator but not necessarily within testator's line of sight. (5) For purposes of this part 5, “will” does not include a designated beneficiary agreement that is executed pursuant to article 22 of this title. and Colorado Revised Statutes § 15-11-503. Writings intended as wills (1) Although a document, or writing added upon a document, was not executed in compliance with section 15-11-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (a) The decedent's will; (b) A partial or complete revocation of the will; (c) An addition to or an alteration of the will; or (d) A partial or complete revival of the decedent's formerly revoked will or a formerly revoked portion of the will. (2) Subsection (1) of this section shall apply only if the document is signed or acknowledged by the decedent as his or her will or if it is established by clear and convincing evidence that the decedent erroneously signed a document intended to be the will of the decedent's spouse. (3) Whether a document or writing is treated under this section as if it had been executed in compliance with section 15-11-502 is a question of law to be decided by the court, in formal proceedings, and is not a question of fact for a jury to decide. (4) Subsection (1) of this section shall not apply to a designated beneficiary agreement under article 22 of this title. and Colorado Revised Statutes § 15-11-510. Incorporation by reference A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. and Colorado Revised Statutes § 15-11-511. Testamentary additions to trusts (1) A will may validly devise property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person, including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death. (2) Unless the testator's will provides otherwise, property devised to a trust described in subsection (1) of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and is administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death. (3) A revocation or termination of the trust before the death of the testator causes the devise to lapse, but exhaustion of trust corpus between the time of execution of the testator's will and the testator's death shall not constitute a lapse; a revocation or termination of the trust before the death of the testator shall not cause the devise to lapse, if the testator provides that, in such event, the devise shall constitute a devise to the trustee of the trust identified in the testator's will, and on the terms thereof, as they existed at the time of the execution of testator's will, or as they existed at the time of the revocation or termination of the trust, as the testator's will provides. and Colorado Revised Statutes § 15-11-512. Events of independent significance A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event. and Colorado Revised Statutes § 15-11-513. Separate writing or memorandum identifying devise of certain types of tangible personal property Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing shall be either in the handwriting of the testator or be signed by the testator and shall describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will. There is not a statutory definition of a "document" or a "writing" in the Colorado Probate Code. | The will is overridden by the new law. Suppose the owner had not died: then he would have to comply with the change in the law. When a person inherits property, they gain the right to that property which the originally had, and they do not gain any additional immunity to the usual obligation to obey the law. | A lien is used to prevent sale of a property until a debt is paid. This has nothing to do with priority over a mortgage. The HOA agreed to release the lien for some payment. The negotiation of that payment doesn't matter to the new buyer. Once the lien is released, then it is no longer listed with the county on the property, so the property can now be sold. The former lienholder cannot now apply a new lien to the property because the new owner is not a debtor to the former lienholder. This would be a terrible way to manage property sales, and no mortgage company would allow a mortgage for a property that could not be sold in case of foreclosure, which is likely why the mortgage holder was a private individual. It is possible for a new owner to take on existing liens, but this would be clearly spelled out in purchase documents. There should be a statement on the title search results that no liens exist. | It is possible that a court would hold Comapny X's agreement with Bob to be unconscionable for overbredth and therefore void. This would depend on the state having jurisdiction, and on the specific facts of the case and the language of the contract between X and Bob. Some states do not favor such broad agreements on automatic assignment of IP rights. If the Contract between X and Bob was held to be void, then Sam would own the rights. Otherwise X would own the rights, as their contract came first. As the answer by Dale M says, Bob entered into the contract with Sam fraudulently, by concealing a materiel fact (Bob's existing employment with X). Bob would potentially be liable to Sam for damages. One possible measure of damages would be what it would cost Sam to buy the rights from X. | Since the contingency is in the contract and has not been removed, if the purchase falls through due to not selling the existing property, they will get their earnest money back. That was the whole point of putting the contingency in the contract in the first place. |
How are open source licenses valid without consideration? I'm not a lawyer or law student in any capacity, but I've read in multiple sources that a contract is not valid unless there is consideration for both parties. With this in mind, how can licenses for free and open-source software be considered valid? There is no consideration for the developer. I'm interested in all western jurisdictions (e.g. US, EU) but if your answer focuses on just one that's more than fine. | According to US law, the GPL is a license, not a contract. This means it is valid without consideration, it also means if you are in violation of the license, then you are committing copyright infringement, instead of being in breach of a contract. In Germany, the GPL is a contract. And that's fine, because German law doesn't require consideration for a contract to be valid. It's interesting in that the GPL license doesn't require you to state whether you agree to the license/contract or not. But if you don't agree to the contract then there is no contract, and you have no right to use the software. | It's possible that CAD has a separate licence from the authors of ABC that allows them to produce a closed source copy. If not, they have no right to distribute CAD. However two wrongs don't make a right, and so you don't get to violate the copyright of CAD.* Unfortunately, unless you are one of the authors of ABC, you have no standing to sue the authors of CAD. You can only notify the authors of ABC and hope they do. If the authors of ABC don't have the resources to pursue the matter, you may be out of luck. That's one of the reasons the FSF gets copyright assignments for their projects. * It turns out that this is a much more debateable issue than I first thought. Some courts have held that an unauthorized derivative work is not copyrightable. | To answer the question in your title: Yes, software licenses are copyrighted. They are written works that involve (significant, expert) creative effort to create. The best solution would be for Grammarly to hire a lawyer and say "we want a new EULA. We think this one covers a number of points our current one doesn't". Most legal documents will be copyright for the same reason (there may be a few that are so stereotypical that there is essentially no creative effort in putting them together). | While the Commons Clause is not an Open Source license, the BSD license allows you to do this. To be clear, you cannot change the license of other people's code. You can however add your own code and license it under whatever terms you want. The resulting code then consists of your modifications, under whatever license you want parts of the original code, under BSD-3-clause Since you are a license-taker for the BSD-3-clause material, you must still comply with its license such as providing any recipients with the copyright + license notice. When people receive the software with your modifications, they must comply with both your chosen license terms for your modifications, and with the BSD-3-clause license for the other parts. For example, you can use the Commons Clause to prevent certain competing uses of the software as a whole. But since you will presumably provide the source code of the software, other people are free to use the BSD-3-clause code under the terms of that license, ignoring your restrictions. If you provide binaries then the resulting binary would not be covered by the BSD-3-clause license, but you would still have to provide the copyright and license notice for the original code as a kind of attribution. | The GPL does not explicitly specify a time within which the source code must be provided, which probably means a "reasonable time" is allowed. What is "reasonable" would eventually be evaluated by a court, if the matter ever got that far. But please note that only the copyright holder (or the holder's authorized agent) can sue for infringement. The license does not give other people a right to sue for infringement, and I doubt that any license could grant such a right. One could inform the copyright holder who could sue, but the holder need not sue, and undertaking such a suit would involve expense, time, and effort. Whether the offer to provide the source constitutes a binding agreement is not clear, and may well vary in different jurisdictions. The question does not state any particular jurisdiction. | is this even legal? It is legal, but at the same time the contract is voidable by you. This means that if the buyer rejects the EULA, he is entitled to return the unused product and be reimbursed. Obviously once the buyer has used the product, the conclusion will be that he accepted the EULA and therefore no longer can void the contract. The buyer's entitlement to rescind the contract compensates for the fact that he was not duly informed about the conditions prior to making the purchase. | I'm assuming that you are not seeking to change the license, and so it will remain GPLv3. As long as you've built on the original software, that license still applies. You also need to keep the previous copyright notices, including the names of the original people. Assuming that, everything you're doing is legal, which is what's on topic here. There is some etiquette around forks (which is what you're doing), which would be on topic at the Open Source Stack Exchange. I'm puzzled by your desire to have a different license text. You can't change the license from GPLv3, so that has to stay the same. (If the original has GPLv3 "or, at your option, any later version", you can drop the any other version text if you like.) | A document can be distributed under more than one license. Just because it has been made available under a CC license for free, doesn't mean that IEEE can't negotiate a different license with different terms that allow them to sell the content. (This is similar to the way that a software library can be available for free under a license that permits non-commercial use, but also be made available for a fee for commercial use.) If you want to know whether IEEE is legally selling Aaron Swartz's manuscript, you can contact Morgan & Claypool, the publisher that owns the copyright, and ask them whether this use by IEEE has been authorized by them. For the other documents you mention, contact MIT Press. Etc. |
Does YouTube legally need proactive takedown? YouTube needs to figure out what to do about people posting copyright material. The actual solution they arrived at, after some negotiation with the media companies, includes programs that scan uploaded content and proactively block material that matches a copyright database. (Inevitably these programs sometimes get it wrong, which is a problem.) A friend of mine has claimed they are not actually required to do this. That US safe harbor law only requires them to take down copyright material after it has been brought to their attention. That they could stop using the proactive programs completely, and just replace them with a call center to take and act on copyright infringement notices. I'm not sure about that; it seems to me that Napster is case law to the contrary, and anyway Google employs a bunch of expensive lawyers who wouldn't have advised them they needed a negotiated solution unless they really did. Which of us is right? Could YouTube really revert to a purely reactive system, or could the media companies sue them if they didn't continue the proactive takedown measures? | Under the DMCA(United States Federal Law: Digital Millennium Copyright Act) and its Safe Harbor provisions, yes, Youtube is protected from copyright claims, provided they comply when they receive a notice. But....the DMCA that gives Youtube (and its parent company Google/Alphabet) this shield is US law, but Youtube does large amounts of business in other countries, making it liable in those countries, which don't necessarily have the same protections. Case-in-point, the EU. Under some other nation's law, Youtube may be liable for infringement if they wait to be notified. Alternatively, part of the agreement that was being hammered out between Youtube and the content companies might very well be some sort of indemnity agreement, that protects Youtube from the content companies so long as they uphold their end of the agreement. Additionally, even if Youtube isn't liable for the copyright infringement itself, since they serve ads on such videos, they could conceivably be sued under the theory of "unjust enrichment". (Similar to the logic that the EU is currently trying to get Google to pay their "link tax" for Google News on). There are also non-legal considerations to consider: Benefit to Self: Youtube is now selling/renting copyrighted content such as movies and TV shows as well. By becoming a distributor, it's in their interest to not also allow free versions of what they are selling on their platform. Cost-to-implement: As Ron Beyer points out, a call center/email center/mail room to receive the DMCA notices would be an enormous cost. What's more, it's a continuous, recurring and likely-growing cost. Youtube/Google is also not short on software engineers. It's much cheaper to pull some devs off of their current project for a couple days, implement a solution and call it a day, with occasional maintenance, especially as they are going to be paying those engineers' salaries anyway. Business Relationships: Youtube/Google make most of their money from advertising (and off of user data, but that is often tied to advertising in the other direction). The content companies are often their customers. Angering your customers is generally not a good idea. Ultimate Desires/Future View:Youtube doesn't care about the lost content. They don't care about the fight. If the copyrighted material is blocked, their users are far more likely to find something else than leave the site; if the material is blocked before uploading, most users won't even realize it was ever there. As such, Youtube doesn't care if copyrighted content is blocked, as that is not their main market. | You may at your peril. The safe harbor provision in 17 USC 512 does not provide absolute immunity to service providers, that immunity is only available (c)(1) if the service provider—(A)...(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent Given your question, which reasonably assumes that the material is infringing, infringement is apparent. The DMCA provisions were written not to protect service providers, but to protect innocent service providers who are not aware of the infringing activities of their users. So it depends on what you know. | The answer depends in part what venue you're talking about, e.g. Reddit, Facebook etc. The details are revealed somewhere in the Terms of Service for that venue. The general pattern is that you are allowed to use that venue, provides you grant permission for the service to do what they do with your content. You cannot legally send them a take-down notice for your stuff, because a take-down notice requires you to say that the stuff was posted without your permission (and that is false – and you can be punished for making that statement). There could be a venue where they do not hold you to an irrevocable license, in which case you could revoke that permission (but not Reddit: you granted them a "royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to reproduce, prepare derivative works, distribute copies, perform, or publicly display your user content in any medium and for any purpose, including commercial purposes, and to authorize others to do so"). I've seen a site that actually asserts ownership of user-contributed content (I don't know if their TOS ended up being litigated) – if is not at all hard to write a TOS that includes transfer of copyright, rather than granting of a license. The only hard parts are (1) figuring out what you want in terms of permission to use and (2) whether your answer to (1) means nobody will use your service. SE and Reddit TOS probably are as close as you need to get for what you describe. | This is relatively uncharted legal territory, so until multiple cases establish some sort of precedent, we can only guess. I know of no legal requirement that a Browser or User has to submit cookies or referrer data or other meta-information accurately. In that regard, a user is unlikely to be prosecuted just for submitting HTTP headers. It is likely closely related to Free Speech issues. The DMCA spells out that it is illegal to circumvent copyright protection measures. While this law is typically used to make it illegal to copy DVDs, video-games or streaming movies, it is possible that the "3-free articles" policy could be interpreted as a copyright protection mechanism, and defeating it by changing HTTP headers is a circumvention. A good summary is here. A specific site's TOS (Terms of Service) probably contains language that spells out it is a violation to use the site in a manner other than as it is intended. This is a typical anti-hacking, anti-screen-scraping provision. Altering a browser session to circumvent their services is probably a violation of the license to access the site, and may open a user to a civil lawsuit for damages or even criminal hacking charges (the details of which are different state-to-state) | 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. | I see that channel offers playlists and "videos" of popular music by several artists. The one video I tried had the music with no accompanying video or images. The channel's about page says that then operator does not own the copyrights to the music and cannot grant others permission to play it. It is possible that the channel operator has obtained permission from the artists and is thus operating under a valid license. It is possible that the channel is committing copyright infringement, but the various copyright owners have not noticed the channel, or have noticed it but decided not to take action. There is no easy way for an outsider to tell which of these is correct. If the operator has not obtained proper permission, then it seems that this would be copyright infringement. If so, any copyright owner could send a takedown notice, use YouTube's own copyright complaint mechanism, or could file a copyright infringement suit. But nothing compels the owner to act if the owner chooses not to, it is entirely the owner's choice. I do not see that the US fair use or any other exception to copyright would be likely to apply here. If the owner brought suit and won (and a win seems likely to me, from what I can see), the operator would be liable for damages, which might be sizable, or mild. In the US at least the owner could also obtain a court order (injunction) requiring the operator to stop using the owner's copyrighted music. If the owner complained to YouTube, the site could add a "copyright strike" against the operator's account. After a few strikes (I think three) YouTube will cancel the account, according to its posted policies. Similar outcomes could face anyone else who posted or made available for streaming copyrighted content (such as music) without permission from the copyright owner. But again, everything depends on action by the copyright owner. If the owner chooses, for whatever reason, not to act, then nothing is likely to be done about the infringement. | You would need a court order to force them to take it down. There is virtually no chance a court will order them to take it down, because it would be almost impossible to do so without violating the First Amendment. You would have to prove that forcing a publisher to stop saying that you teach at the university would advance some compelling governmental interest, and that there isn't a better way to advance that interest. It's not clear what you mean by "cyberstalking," but if you're talking about someone sending you harassing messages, then the court would probably conclude that the better option would be to punish the harasser, rather than limit the publisher's speech. You could try paying them off or sending a threatening legal demand, but I doubt either would go far. I suspect that the best course would be a persistent campaign to escalate up their chain of command to find a sympathetic person willing to help. Even that, though, I would expect to be tough, because I'm sure you wouldn't be the first person trying this. | From what I can see on the USPTO registry, "tweet" is still not trademarked for the purposes you're talking about. Twitter has been working to secure that trademark, but I can't find any record of them having actually secured it. Just the same, I'd predict that using it will get you at least a cease-and-desist letter, and possibly a lawsuit. Whether you'd win that case seems to be a very open question, but that presumes you have the resources to litigate. |
Is it legal to retain citizen passport? I applied for Thai visa in India, when Indian lockdown was started, visa center stopped operating. But they still didn't return my passport to me. They are saying " it is impossible because we are closed". I should mention that there is lockdown in India right now. But at the same time I think government is not prohibits to them limited operating like passport returning, because it is very critical service. When I ask their support about that nobody reacts properly, just "we are closed, come later". But I'm foreigner, for me extremely important to get my passport back, at opposite case I risk to stuck in India for months. Please say their action is legal or not? Lockdown government guidelines: https://mha.gov.in/sites/default/files/Guidelines_0.pdf Please, I'm seeking for professional legal advise. If you're very good software engineer or system administrator try to help somebody in other topics where you have solid professional expertise =) | What should and shouldn't happen isn't going to do a damn thing about your passport situation. Your passport isn't being 'held', it's in processing at a place that is currently not operational due to an unprecedented virus outbreak. No one is acting like a criminal or treating you like one, you are just unlucky. If your situation is that dire, you have no choice but to get a temporary passport. I seriously doubt an Indian court is going to side with you on this one. Just because the passport office is legally allowed to operate, doesn't mean that they are actually able to. If, for example, COVID-19 hit enough of their workforce, they won't have enough people to operate properly and they'll have no choice but to close. And no, '2 or 3 people' is not enough to operate such a large scale, sensitive operation with high security requirements, even just to return passports . | I don't think that un-revoking your grandfather's German citizenship would help you, since your father naturalized to obtain British citizenship before your birth, and German citizenship is automatically lost upon voluntary acquisition of a foreign nationality, so even if your grandfather's German citizenship had not been revoked, the German citizenship your grandfather passed onto your father would have been lost before your birth. There might be another route to get German citizenship through your mother, if she was a German citizen at the time of your birth. Since you were born before 1975, and thus could not get German citizenship from your mother at birth, you qualify for a special naturalization process if your mother was a German citizen at the time of your birth, and you are fluent in German and have other ties to Germany; you do not need to renounce your existing nationalities to get German citizenship through this process. See this and this (both in German). However, there are complications with that since I believe German women generally automatically lost German citizenship if they married a foreigner before 1953, so she may not have had German citizenship when you were born since she married your father before your birth. | I haven't found any cases where this defence has worked. I strongly suspect that that's because it never has. Every piece of advice I've read on this unsurprisingly suggests you'd be a fool to attempt to rely on this defence in court, including some cases in which defendants have attempted to rely on it and have failed. There are a couple of Freedom of Information requests to the government which state very clearly that it won't work: https://www.whatdotheyknow.com/request/statute_law_4 https://www.whatdotheyknow.com/request/consent_of_the_governed The last link is particularly clear on the matter: every citizen of the UK tacitly consents to be governed, according to Blackstone. And this one makes it even clearer: https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html Under the doctrine of Parliamentary Sovereignty, Acts of Parliament override common law. So it simply wouldn't be possible to argue that you choose to live under the common law alone; no court in the land would allow it, as it's a cornerstone of our legal system that Parliament is sovereign, and therefore that statutes enacted by Parliament will 'trump' the common law. Parliament derives its sovereignty from the fact that the current government is elected and therefore represents the citizens of the UK, and for this reason, Acts of Parliament take priority over case law. On that basis, it wouldn't be possible for a citizen to argue that they choose not to abide by statute: their consent is tacitly assumed. Based on all the above, then, I would say no: the 'common law' defence will never hold water if relied on in court. | Article 15(2) of the Indian Constitution prohibits restriction to any citizen of India on entry to a public hotel, restaurant or place of entertainment on the grounds "only of religion, race, caste, sex [and/or] place of birth". It is a fundamental right guaranteed to all citizens of India. The Supreme Court of India has held a "public place" to mean any place which is open to the public and to also include private places functioning to serve a non-exclusive group of people. Hence, a club or premise opened only to serve its affiliates or members shall not be considered a public place for the purpose of this provision of law. Hence, if a citizen of India is not denied admission purely on the basis of his/her religion, race, caste, sex or place of birth, his admission to a restaurant or a hotel owned and operated by the government or private concerns may be prohibited as the rights of admission may be reserved with the management of the premises. Just to conclude you can sue the hotel for denying entry | Short answer: You find a country who is willing to recognize you as stateless, and issue you travel papers. At that point you can enter the U.S. by applying for a visa. The USA really does not want to create stateless people. They are laboring diplomatically to eradicate statelessness. As such, the State Department will want to see that you are secure in another country's citizenship before they will repudiate your US citizenship. Otherwise, they are very reluctant. The State Department will insist you do the repudiation in a foreign country at a US embassy. If you want to become stateless with your feet in the United States, you'll likely have a legal fight on your hands. Regardless, it will cost you $2300 in filing fees (plus, all your back taxes) :) At that point, you become the problem of the foreign country. You aren't anyone to the USA, and you have to apply for a visa just like anyone else. When a stated person enters the US, immigration's pivotal concern is whether you'll leave the US consistent with the terms of your visa, i.e. return to your country of citizenship. Being stateless increases this risk, and being a USA expat increases that risk further, since you are so familiar and comfortable in the US. If you found yourself in the kind of piccadillo that would qualify a foreigner for refugee or asylum status, the US would consider it just the same as others, since those statuses include right of residency. Some countries manufacture stateless people, e.g. Syria will not grant citizenship to a non-Muslim born there. | You've asked a two part question. [Is this a violation of] the international policy that a country should never refuse entry to verified citizens of their own? In considering that question, the US example may be illuminative. The US requires US citizens to have a "passport book" when flying into the US, even though the US issues "passport cards" that serve as proof of nationality. If you can get to the border and prove your US nationality (by passport card or otherwise), they'll let you in, but airlines won't board you unless you have a passport book. If you don't have a passport book, you're supposed to get to the nearest consulate and apply for a passport before flying to the US. But note that the US obligation to admit its own citizens is principally a feature of US law. CBP does not waive 8 USC 1185 because of some international body; there is no body that enforces international "policies" of this nature. Rather, they do so because they know that the federal courts would require them to admit US citizens based on the right of free movement implicit in US law. If someone were unable to get into their country of citizenship and unable to gain legal residence elsewhere then unless they could remain on the run for the rest of their life they would eventually end up as the subject of negotiation between whatever country is trying to deport them and their country of citizenship. In other words, in the worst case, such people become a bilateral diplomatic matter between two countries. Therefore, any challenge to the restriction would have to go through the Italian or EU legal system. Is this a violation of the EU freedom of movement directive, whereby a verified EU/EFTA national cannot normally be refused entry to any EU/EFTA state? It certainly seems to be, but without a decision from an EU court, we can't be certain. From Article 5 of the freedom of movement directive (2004/38/EC): Article 5 Right of entry 1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport. No entry visa or equivalent formality may be imposed on Union citizens. This doesn't say anything about allowing EU citizens to board aircraft from non-EU destinations without their EU passports. So if Italy makes a rule that EU citizens need a passport to board a flight to Italy from outside the EU and Schengen area, that doesn't seem to violate Article 5 except by implication. It would be for a court to decide whether that implication is in fact present. Because Article 5 doesn't say anything about where the passenger has flown from, we can also consider the case of a dual citizen of an EU member state and a "third country," who might fly to Italy using the third-country passport, and then present a national ID card at the immigration counter. If such a traveler were denied entry, that would appear to violate Article 5. If that traveler's other nationality were one that required a visa in the non-EU passport, the traveler might have a stronger case that Italy's rule infringes on the right of free movement. EU or EFTA citizens could also challenge the restriction more generally as an infringement on the right of free movement that is established in the Treaty on European Union (TEU), even if the directive itself does not prohibit the restriction. For example, one might argue that free movement is restricted because there are countries to which EU citizens can travel with only an ID card, but from which they cannot return to Italy with only that card. In addition, non-Italian EU or EFTA citizens could challenge the more restrictive regime applied to them on the argument that it violates the principle of non-discrimination articulated in Article 9 of the TEU: Article 9 In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.... Furthermore, non-Italians residing in Italy could challenge the more restrictive regime on the basis of Article 24 of the directive: Article 24 Equal treatment 1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence. | The governing law would be the Vienna Convention on Diplomatic Relations (1961). The relevant part is Article 29. Diplomats must not be liable to any form of arrest or detention. Diplomats are also immune from civil and criminal prosecution. Technically, it wasn't a US diplomat but a family member, but by Article 37 they have the same protection. The linked article suggests that her diplomatic immunity ended, but that's a bit of a non-issue. The host nation (the UK in this case) can declare anyone, diplomats or family to be persona non grata which indeed ends diplomatic immunity, but only after the person is allowed to leave the host nation. And when the act happened, the immunity was in place. Immunity cannot retroactively be withdrawn by the host nation. | "the birthdate is on or after November 14, 1986" refers to your birthdate (the birthdate of the parent is irrelevant). "Citizen at birth" means that, if the conditions describe hold, the person has been a citizen ever since they were born, and there is no requirement for parents to register their citizen children as citizens. Mention of age 18 is relevant in case a person's parents are not married to each other at the time of birth. A person who is a citizen at birth does not (technically) have to apply for a Certificate of Citizenship but if you want to document your citizenship, you have to file that form (but simply applying for a US Passport is much simpler and more useful). Since you are at least 18, you can file it on your own, otherwise the U.S. citizen parent or legal guardian must submit the application (which is another way that 18 becomes relevant). |
Own a house with sibling but she won’t let me live there unless I pay full half of market rent. House is for sale too My sister and I own the property that was my mums until she passed. Unfortunately my sister and I don’t speak at all and for me glad that we never will again. We went to mediation after my mothers death and we both agreed that I would live in the house and rent out 2 rooms. This meant I could keep an eye on the lodgers. Renting rooms on the rent a room scheme allowed us to give them 1 months notice to leave without a problem. Also gave my sister access freely rather than renting out the property completely, where none of us could access the house. My sister does not live there but comes and goes as she pleases and stays when she wants. The washing machine broke, She comes there to do her washing, has done for 8 years as she doesn’t have a WM. I asked her to pay for half, she refused. (I wasn’t living there for 4 years when I was living with my then husband and didn’t use the machine in that time) but she has always used it including the lodger. If She was accepting a portion of the rent as we had one person living there, who has now moved out and As we were going to have lodgers renting rooms in the future, isn’t she liable for a share of any repairs and bills in general as she would have been collecting the higher portion of the rent too. Bills would also be higher with more people living there that I would be expected to be paying for. Living on my own I am frugal and careful so bills would be smaller. This was all it took to fall out with her, the washing Machine!, My sister, a week before Xmas when this happened, demanded I leave with a weeks notice, even though we had agreed in writing through mediation we will rent the rooms out for 1 to 2 years before we think about actually selling. I then receive a solicitors letter from her demanding back pay for bills and back rent she is now demanding I pay her. She has also told her solicitor she is paying £900 a month in rent else where which I know for a fact is untrue as she is still at the place she has lived at for the last 10 to 12 years at £320 a month. I am currently homeless and living with friends as I don’t know if I would be forced to have to pay her a rent to live in my own home, if I was to move back int9 the house until it is actually sold. I am not working, going through a divorce, (husband and I are amicable).my sister has a place to live but I don’t surely under the circumstances, Can I not live in the house, till it is sold as that shows I have been willing to sell? I have not got a permanent base and now lockdown. Also we had an offer on the house a week before lock down, she agreed to that if she got another ten thousand (they did give that) but then she decided she wanted another 25 thousand more and a week to meditate and think about it so we lost the sale. Surprise surprise!! I wanted to sell at the price we were offered but it has to be 50/50. So unless she agrees a price it won’t sell even if I want it sold at a reasonable price as it seems she has final say, so I am constantly trapped. I wanted to sell at the price offered, the estate agent tried to explain to her there will be a recession and house prices will go down, that was pretty obvious that lockdown would create those issues but she has no insight to see that. She has a new estate agent now! Unfortunately I don't think she will sell now until she gets what she thinks the property is worth which will not be the original asking price anymore and I worry she will hold out for months to years. We will probably now lose at least 50 to 75 thousand on this house sale due to coved and the knock on affect it will have and her refusal to take the good offer at the time we needed and should have taken. Can I do anything to claim that back because she refused the sale leaving a massive loss for us both. Where do I stand? Can I live in the house and pay the bills only but no rent as it’s on the market anyway. I had moved back into the house to also help look after my disabled mother before she passed and because I was separated from my husband (my sister isn’t very sympathetic towards me in that anyway, hence moving back to live with mum but I had lived in the house all my life 40 years apart from 4 years, being married). My sister has not lived in the house for over 20 years. The house sits empty, she won’t rent it out or allow rooms to be rented with me in it so we are both not making any income, can I claim for loss of income as she won’t allow the rooms to be let, as agreed in mediation. I am still paying all the bills as she won’t add her name to the bills and only she can call the companies to do that they won’t add her at my request and she certainly won’t volunteer to do that so I have no choice, yet again forced and trapped. can she legally stop me living there if I have nowhere else to go and I am not working so can not afford the high market rent she wants. I am paying council tax, gas elec, house insurance as my names were on them and she will not contact them to put her name so it could be jointly paid. I am keeping all receipts of this. I agreed to sell the house about a month and a half after our falling out and she was free to get estate agents in from Feb 2019 onwards but she didn’t till October put it on the market. I fled the house after receiving A threatening letter from her solicitor, demanding back rent of up to £15,000. My sister is a very vindictive person, I personally think undiagnosed with PPD thus trying to reason with her is just impossible. My sister falls out with a lot of people, I don’t but she cannot see maybe it’s down to her not everyone one else. We had an agreement in mediation but anything we agreed, the moment we row or disagree she changed her mind, regardless of what we agreed and the mediators wrote it down. I followed the agreement and never threatened her with selling the house anytime but eventually with the not being allowed to say nothing, behave , Do as your told and comply with her or she would threaten to demand I leave the house and sell with a days notice at times. so in the end rather than be blackmailed by this anymore I said yes please sell it, I can’t be held to ransom every 5 mins by you it’s a form of blackmail. I just want to move on with my life. Please advise if I live in the house till it’s sold. | It’s your house You can’t be forced by a co-owner to pay rent for a property you own. You can’t be forced by a co-owner to sell if you don’t want to. You can’t be forced by a co-owner to pay to maintain the property.or to pay utilities. Of course, if no one maintains the property or pays the rates then eventually you won’t have a property but you can’t be forced to. This applies to her as much as it applies to you. It’s possible, even likely, that your mediation agreement meets the requirements of a contract. If it does, then breaching it will allow the aggrieved party to sue for damages. The good news is, you can get on with your life right now - sign over the house to your sister and walk away. Except you can’t because your interest in the house needs to be dealt with in the divorce. If you want your “fair share” and your idea of what that is is bigger than hers then you have to fight for it - lawyer up. | Inferring from the question, it appears that: The tenancy is an Assured Shorthold Tenancy. The tenancy agreement started on 16 December 2014. The initial fixed term was for 12 months. (Please comment below if any of this is incorrect). A Section 21 order gives notice that, unless the tenant leaves by the date given in the document, the landlord will begin legal proceedings against the tenant, in order to obtain a court order forcing the tenant to leave. To answer the OP's questions: Does it mean that she wants to use her right to cancel the contract after 2 months? It looks like that to me but I am not 100% sure. Yes - but if this is before the end of the fixed term (which I'm assuming is 15 December) there must be a clause in the tenancy agreement (normally called a "break clause") allowing the fixed term to be terminated early. If there is no break clause, then you cannot be asked to leave before the end of the fixed term. What does it mean "after 16/11/2015"? After can mean anything... even end of contract in December. Yes. The landlord would like you to leave before the date shown - but if you don't, the landlord can begin legal proceedings any time after that. Is this a legal document or just something she made up? It is a legal document. Section 21 of the Housing Act 1988 allows a landlord to ask a tenant to leave without having to give a reason. The landlord must meet certain conditions in order for the notice to be valid. What happens if I want to leave the house later because I don't find alternative? You'll need to discuss that with the landlord. However, if you don't leave by the end of the fixed term, you are entitled to stay (and pay rent!) until a court (not the landlord) orders your eviction. EDIT: This website goes into a lot more detail about the whole Section 21 procedure. | Landlord-tenant law is an area that is heavily statute-based, jurisdiction-dependent, and far from uniform across the country. A complex, specific, multi-part question like this one is not going to get a simple answer. In general, though, I can clear up some of the confusion with a quick example. Let's say you abandon your lease, but as you do so, you write a letter to the landlord saying: "While I won't be living there any more, my friend's band needs a place to practice. They have agreed to pay half my rent if you let them play there 4 nights a week. They'll be starting on Tuesday at 11 PM: please have a set of keys waiting for them at the front desk." The landlord does not give your friends the keys. They re-key and clean the apartment and rent it two months later. Are you going to stand up in court and argue, with a straight face, that you should only be liable for half the rent for those two months because of the landlord's "failure to mitigate"? Again, jurisdictions differ, but the duty to mitigate is not absolute. If the landlord could rent out a $1,000/month apartment for $5 a month, it doesn't have to do that, and you can't make the Court take $5 a month off their damages if they refuse to do so. Also, you seem to be confused about what subleasing is. A sublessor owes duties to you; you still owe the duty to your landlord to get the rent paid. A sublease is an agreement between you and a third party to pay you rent. It does not affect your relationship with the landlord at all, unless it's a breach of your agreement with the landlord or of local law protecting the landlord from unauthorized subleasing. | Assuming you have a six-month Assured Shorthold Tenancy, you don't have to give any notice at all. As long as you are not in occupation after the end of the tenancy (which means moving out before it ends), that's it. For example, this page from Shelter says: The general rule is that the tenant can leave on the last day of a fixed-term tenancy without giving notice, and this will end the tenancy.[2] If the tenant remains even a day longer than the last day of a fixed-term tenancy, a statutory periodic assured shorthold tenancy will arise, which the tenant can end by serving a valid notice to quit. [2] Right d. Flower v. Darby (1786) 1 T.R. 159; Cobb v Stokes (1807) 8 East 358. This is extremely bad news for landlords, who don't (necessarily) get any notice that they have a void. In general, I would say you ought to give a month's notice (full disclosure, I am a landlord), on the other hand, if they haven't fulfilled their responsibilities perhaps not (but you may have an exaggerated idea of their responsibilities). If you do this, don't expect to get a good reference from your landlord! (Which is going to make it harder to find somewhere else to live). You should also anticipate difficulties in recovering your deposit (you are legally entitled to it back, but that doesn't mean your landlord can't be difficult about it - possibly even requiring you to sue for it). I have just noticed the second part of your question. If you do nothing (in other words, stay in residence), at the end of your Assured Shorthold Tenancy you will switch to a periodic tenancy. The landlord can't force you to switch to another six-month contract, but on the other hand, if you don't, they are perfectly entitled to give you two months notice. If they are smart, they will give you this notice now, so that you can only stay for two months on the periodic tenancy. Note that the letting agent has an incentive to get you and the landlord to sign another contract (they can charge the landlord a fee for it), so they may not be being entirely honest about whether a periodic tenancy is an option. (On the other hand, a poor landlord may be more interested in locking a tenant in for six months.) | Fact is, your things are gone, disappeared, you are not going to get them back. You can try to get money by suing your parents. But suing your parents is rarely a good long term strategy. Your father made some argument why he isn't going to give you any money for your losses; whether it is a good or bad argument is irrelevant until you take him to court, and then what counts are the arguments that his lawyer will make, which will be much better arguments. In court, you would have to actually prove your losses. Have you got a receipt for your winter boots? How long ago is "when you were 19", important to estimate their value now. You would have to prove that you didn't just abandon everything. Did you just leave, or did you sign a contract that your parents should look after your things, and you would pay them some rental fee for the space in their loft, for example? How many years time did you have to pick up your things? | If you want to protect yourself or any property interests you may have in this circumstance you have to talk to a lawyer. You cannot get (or trust) legal advice from the internet. I will, however, make the following personal observations: I only provide a W-9 to people who are paying me money, and who request it as a condition of paying me. I don't know of a legal requirement to supply it after the fact. However, not providing it to someone who did pay you more than $600 in a tax year could certainly make it difficult for them to comply with their tax filing obligations. I do not sign any agreements, assignments, or contracts, without what I consider to be fair consideration. E.g., if on leaving a job (as has happened) I am asked by a former employer to sign something that I am not already obligated to sign due to some prior contract, then I negotiate what is commonly called a "severance package." They pay me and/or extend benefits, and I sign something that limits their liability. | Children own their personal property Although legal guardians may place limits on access or use. Unless the aunt is a legal guardian she has no right to retain them. Ask for their return. If she refuses, sue for their return. | I am not a lawyer; I am not your lawyer. You do not cite a jurisdiction so this makes it very difficult to get a definitive answer. What follows is for Australia but the general principles are common law and would be applicable to other common law jurisdictions except where statues apply or case law has diverged. In the first instance, it seems that you were not party to any arrangement to pay for the electricity. So on the face of it you are not party to any contract requiring you to pay. Even if there was such an agreement: family, domestic, social and voluntary agreements (which this would be) are presumed not to be intended to legally bind the participants. Whether this presumption would be overturned would depend on the specific facts. On the face of it, there is no legal obligation to pay. Your options are: Do nothing; this puts the ball in their court, they can: Forget about it (it would then be over) Attempt to sue you with little prospect of success (which would cost them and you a lot more than $50 irrespective of who won) Do something illegal like beating you up (you really need to assess this risk) Tell everyone they know (in person and on social media) what a skiving prick you are (you could probably sue them for damages but that's not really going to happen, is it?) Pay them what they are asking Offer to pay them something less. Option 1 is likely to break any relationship you have with the person, Option 2 is likely to preserve it and Option 3 could go either way. Ultimately, like most legal questions, this is not about the law; it's about relationships ... broken ones mostly. |
Is it assault to squirt someone with a spray bottle? Is it considered assault to squirt someone with water from a spray bottle in New York? Can it depend on the outcome? | How does the victim know that there is water in the bottle? And not some strong acid? I think there will be a difference between someone cleaning their windows and spraying someone with the same bottle they used for cleaning the windows, and some woman's jeaulous ex-boyfriend sneaking up on her in the night and spraying her in the face with fluid from an unknown container. In UK law: "An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force." So spraying water out of container labelled "acid" would be assault. Spraying water on a person after threatening them with an acid attack would most definitely be assault. If the victim expects to be injured then it is assault. Even if the victim fully expects that the fluid is water, I could imagine that you would be charged with assault if a bride to be just spent two hours getting her hair and makeup done, and you destroy the work just before the wedding by spraying her with water. | 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. | Threats are illegal Whether “I want to kill X” is a threat or not depends on context. “I want to kill my ex” while bitching with mates down the pub - not a threat. Same thing said to the ex in the middle of a screaming match might be a threat. Breaking into their house and writing it in the blood of their cat on their bathroom mirror is definitely a threat. | It ultimately depends on the situation, but here's a general breakdown: Many states in the United States have anti-trespassing laws that allow citizens to use deadly force in response to threat of bodily harm. These laws and statutes intersect to provide more protections for gun owners encountering trespassers, burglars, or thieves in their home. However, pointing a gun at someone can be considered assault on the idea that it is a threat that puts someone in fear of harm. Thus, the legality of pointing your gun at someone depends on numerous factors. To name a few, it depends on How a state's criminal laws are defined What was the trespassing incident? Was the trespasser in one's home, or on one's property Whether one feared bodily harm from the trespasser Here's a real instance of this happening in the US: A farmer from New Hampshire was sentenced to 3 years in prison after brandishing his handgun to a trespasser. See article here. | There are none. Damages against B’s clinic? A does not have a contract with B’s clinic. No duties nor rights without a contract. Damages against B? A does not have a contract with B. If there was a contract, we need details about it. Tort, § 823 Ⅰ BGB? No. B was neither negligent nor did he/she deliberately incur damage. Report B as criminal? A and B had consensual sexual intercourse. This consent (necessarily) comprises the risk of transmission. You cannot give “consent to facts” though. Yet here B had no knowledge of his/her contagiousness. He/she definitely did not deliberately infect A. Negligence is out of question, because there is no general expectation to get regularly tested before having sex with anyone. | Would any offence be committed for: Having this on your person? Buying or selling this? Leaving it around for people to plug in to a computer? In the abstract, I don't think that this conduct would violate either Section 36 of the U.K. law or U.S. law, although, obviously, purposefully destroying a computer itself (i.e. actually using the device without the consent of the owner of the computer) would violate many U.K. laws and would also violate many U.S. laws at both the state and federal level. I also don't think that possession or buying or selling this product would be a crime absent some intent that it be used illegally, in which case there might be an "attempt" to commit a crime offense, or an offense that would make one part of a conspiracy to commit a crime. In the "leaving it around" example, there is arguably an intent to use it to harm another improperly, although the phrasing is ambivalent. While many statutes in the U.S. criminalize possession of burglary tools, or drug paraphernalia, sometimes with an associated intent element (although even these crimes often have an express or judicially implied intent to use element), I'm not aware of any statute that criminalize possession of tools for malicious destruction of property. So, if the tools aren't possessed or used in a manner intended as a step in the facilitation of a crime, I don't think that any law is violated. So far as I know, the U.S. does not have a counterpart to Section 37 of the British statute cited above (it isn't a terribly easy thing to search for to definitively rule out the existence of such a law because federal law has many uncodified crimes in unexpected statutes and there are many sets of state criminal statutes, not all of which are codified either). The example giving in the comments by @gnasher729 of possession of a hammer which could be used to do the same things that this object could be used to do is instructive. Arguably, this USB-like tool is more specifically targeted at malicious conduct. But, for example, when I used to work as a radio news reporter, we had a machine that was basically a high powered magnet that was specifically designed to destroy all information on magnetic media. This was, in part, so that it could be reused, but it was also so that confidential interviews wouldn't fall into the wrong hands once they were no longer needed, in much the way that one might shred paper documents. It isn't so implausible to think that a device like this one might be necessary for individuals or firms with national defense secrets embedded in their hardware and software to have on hand in order to destroy a sensitive computer in order to prevent a security breach, if necessary. In a case like that, leaving one of these devices around the office unlabeled might be negligent, but wouldn't have the intent necessary to be an intended crime. And, it is hard to imagine that the device itself, which seems pretty simple, would itself involve any technology that is a national security secret, so it probably wouldn't violate export control laws. Of course, possession, purchase or sale of such a specialized device, or leaving it around unlabeled would certainly be powerful evidence of an intent to use the device in a wrongful manner, and hence, of an attempt to commit a crime. Indeed, possession of such a device or purchase of one might very well be sufficient to establish probable cause to seize the device and arrest the person holding it on charges of an attempt to destroy a computer. But, this device would be merely powerful evidence of an intent to commit a crime, rather than something that is a crime to commit in and of itself. There are no international laws that govern this kind of thing. The only international laws applicable to individuals pertain to war crimes and nuclear and chemical weapons. Even then, most international laws direct member nations to adopt domestic laws on the subject rather than being self-executing. | In addition to the general considerations of (1) who is allowed to use non-deadly physical force to maintain order in a shop (which I think that one could do if "deputized" by the property owner or to protect the property of another as well), and (2) the use of non-deadly physical force to make a citizen's arrest (which many of these scenarios would justify as the disorder would be a crime if committed by an adult), (3) I suspect that there is also some point at which a bystander may intervene to prevent harms associated with an unsupervised minor being at large and in need of supervision. Generally speaking, intervention with the minimum reasonable non-deadly physical force to prevent property damage, or an assault, or a threat, is going to be permissible. As to the third reason: for a mentally normal ten-year-old that might be a stretch; for a four-year-old or a clearly impaired older child it might not. One could approach the child, say, "where's your mom or dad", "do you have a babysitter or sibling around?", "what is your name?", or "are you lost?" and detain the child until a satisfactory answer is provided or a suitable authority arrives, to prevent the problem of a child being lost, abducted or hurt by the child's own actions. It would be quite hard for a parent, guardian or babysitter to complain about this kind of conduct when the child was unsupervised and is released as soon as you confirm that this really is a responsible adult or older minor who is responsible for the child. It would be important in doing so to not secret away or isolate the child, to try to determine the location of the child's caretaker, to refrain from doing anything that would harm the child, and to seek assistance from an authority within a reasonable time. Typically, if no caretaker appeared, a cop would come and the cop would oversee the situation until a social worker could come. For example, Colorado has the following statute that would apply once a cop arrived (omitting lengthy provisions that apply to newborn children): § 19-3-401. Taking children into custody (1) A child may be taken into temporary custody by a law enforcement officer without order of the court: (a) When the child is abandoned, lost, or seriously endangered in such child's surroundings or seriously endangers others and immediate removal appears to be necessary for such child's protection or the protection of others; (b) When there are reasonable grounds to believe that such child has run away or escaped from such child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has not made a report to a law enforcement agency that the child has run away from home; . . . (1.3) A child shall be taken into temporary custody by a law enforcement officer without order of the court when there are reasonable grounds to believe the child has run away from the child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has made a report to a law enforcement agency that the child has run away from home. (1.5) An emergency exists and a child is seriously endangered as described in paragraph (a) of subsection (1) of this section whenever the safety or well-being of a child is immediately at issue and there is no other reasonable way to protect the child without removing the child from the child's home. If such an emergency exists, a child shall be removed from such child's home and placed in protective custody regardless of whether reasonable efforts to preserve the family have been made. (2) The taking of a child into temporary custody under this section shall not be deemed an arrest, nor shall it constitute a police record. A child is considered neglected or dependent under circumstances including the following (provisions related to drug or alcohol abuse by parents omitted): § 19-3-102. Neglected or dependent child (1) A child is neglected or dependent if: (a) A parent, guardian, or legal custodian has abandoned the child or has subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring; (b) The child lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian; (c) The child's environment is injurious to his or her welfare; (d) A parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for his or her health, guidance, or well-being; (e) The child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian; (f) The child has run away from home or is otherwise beyond the control of his or her parent, guardian, or legal custodian; I don't have easily at hand legal authority authorizing a third-party who is not a law enforcement officer to take custody of a dependent or neglected child until a law enforcement officer arrives, but I strongly suspect from the context that this is allowed either under common law, or a statute that I have not located, or some legal fiction (e.g., that the citizen is implicitly deputized by the law enforcement officer after the fact), or simply as a matter of custom and ordinary practice not codified in any authoritative legal source. | There was no actual child who was caused to view the material, so there was no offense under that provision. By contrast, inciting a child under 13 to engage in sexual activity is an inchoate offense, so it is not necessary for any harm to an actual victim to have occurred. Note that the relevant section of the Sexual Offenses Act 2003 concerns "causing or inciting," and that the charge was "inciting." The section concerning watching a sexual act, by contrast, only inludes "causing." |
Can a lawyer change his client's plea? In the 1987 movie, The Untouchables, there is a courtroom scene in which Al Capone's lawyer spontaneously announces that his client wants to change his plea to guilty and Capone displays his displeasure with that by attempting to attack his attorney. The change of plea is apparently accepted by the court. Is this just a movie fiction or did this happen in reality? Can an attorney change his client's plea without the client's consent? | Legally and ethically (in the United States), an attorney is required to have the consent of his client to change a plea. If that happened in open court, the plea would not have been accepted. The pertinent part of Rule of Professional Conduct 1.2(a) which is essentially identical in ever U.S. state, states: "A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify." There is also constitutional criminal procedure case law to that effect, although as a lawyer who practices exclusively in civil matters, it doesn't come as quickly to mind. Now, Al Capone's plea bargain took place on June 16, 1931. The pertinent ethical rules and constitutional criminal procedure cases may not have been in place at that time, and I certainly don't know the state of the law back then well enough to opine confidently upon it. Wikipedia recounts what happened (numerous citations omitted): The IRS special investigation unit chose Frank J. Wilson to investigate Capone, with the focus on his spending. The key to Capone's conviction on tax charges was proving his income, and the most valuable evidence in that regard originated in his offer to pay tax. Ralph, his brother and a gangster in his own right, was tried for tax evasion in 1930. Ralph spent the next three years in prison after being convicted in a two-week trial over which Wilkerson presided. Capone ordered his lawyer to regularize his tax position. Crucially, during the ultimately abortive negotiations that followed, his lawyer stated the income that Capone was willing to pay tax on for various years, admitting income of $100,000 for 1928 and 1929, for instance. Hence, without any investigation, the government had been given a letter from a lawyer acting for Capone conceding his large taxable income for certain years. On March 13, 1931, Capone was charged with income tax evasion for 1924, in a secret grand jury. On June 5, 1931, Capone was indicted by a federal grand jury on 22 counts of income tax evasion from 1925 through 1929; he was released on $50,000 bail. A week later, Eliot Ness and his team of Untouchables inflicted major financial damage on Capone's operations and led to his indictment on 5,000 violations of the Volstead Act (Prohibition laws). On June 16, 1931, at the Chicago Federal Building in the courtroom of Judge James Herbert Wilkerson, Capone plead guilty to income tax evasion and the 5,000 Volstead Act violations as part of a 2 1⁄2-year prison sentence plea bargain. However, on July 30, 1931, Judge Wilkerson refused to honor the plea bargain, and Capone's counsel rescinded the guilty pleas. On the second day of the trial, Judge Wilkerson overruled objections that a lawyer could not confess for his client, saying that anyone making a statement to the government did so at his own risk. Wilkerson deemed that the 1930 letter to federal authorities could be admitted into evidence from a lawyer acting for Capone. Wilkerson later tried Capone only on the income tax evasion charges as he determined they took precedence over the Volstead Act charges. Much was later made of other evidence, such as witnesses and ledgers, but these strongly implied Capone's control rather than stating it. Capone's lawyers, who had relied on the plea bargain Judge Wilkerson refused to honor and therefore had mere hours to prepare for the trial, ran a weak defense focused on claiming that essentially all his income was lost to gambling. This would have been irrelevant regardless, since gambling losses can only be subtracted from gambling winnings, but it was further undercut by Capone's expenses, which were well beyond what his claimed income could support; Judge Wilkerson allowed Capone's spending to be presented at very great length. The government charged Capone with evasion of $215,000 in taxes on a total income of $1,038,654, during the five-year period. Capone was convicted on three counts of income tax evasion on October 17, 1931, and was sentenced a week later to 11 years in federal prison, fined $50,000 plus $7,692 for court costs, and was held liable for $215,000 plus interest due on his back taxes. The contempt of court sentence was served concurrently. New lawyers hired to represent Capone were Washington-based tax experts. They filed a writ of habeas corpus based on a Supreme Court ruling that tax evasion was not fraud, which apparently meant that Capone had been convicted on charges relating to years that were actually outside the time limit for prosecution. However, a judge interpreted the law so that the time that Capone had spent in Miami was subtracted from the age of the offences, thereby denying the appeal of both Capone's conviction and sentence. | In the event that a lawyer stops representing the client, and the client openly has told the lawyer that they have committed a crime, would it be legal for the lawyer to testify against them? Generally, no. The attorney-client privilege survives the termination of the attorney-client relationship. So, the lawyer cannot testify against the client. There are exceptions to the general rule. The two most important ones are as follows: There is a crime-fraud exception to the attorney-client privilege that applies when someone uses an attorney's services for the purposes of carrying out a crime and the attorney is a knowing or unwitting co-conspirator. For example, if the crime the client confesses to is to defrauding investors in a securities prospectus that the client has the lawyer draft for the client containing false information about the company and then tells the lawyer after it has been sent to investors who put lots of money into the company that the statements the client told the lawyer to put in the prospectus were intentional lies made for the purpose of defrauding the investors. An attorney is entitled to testify if the client effectively waives the privilege in the context of disputed issues between an attorney and a client such as a malpractice lawsuit or an ethics complaint lodged against a lawyer where the lawyer's testimony concerning the privileged communications is necessary to defend the lawyer. For example, if the client sues the attorney for malpractice for refusing to present a key witness at trial causing the client to lose the case, the attorney can defend himself or herself by stating that the attorney knew that the witnesses testimony would have been false because the client told him "X". | Discovery Basically, you ask. If your opponent thinks your request is out of bounds they object, give their reasons to the judge, you give yours and the judge orders them to produce the evidence or not. A lot of people think court cases have big “ah-ha” movements when a witness reveals something unknown on the stand. This rarely happens because there are no secrets in litigation - both sides have to clearly explain their case before, usually well before, they go to trial. | Only in a civil case Yes, in a civil case, Alice generally can call Bob as a witness to take the stand. In many cases, this is done very early, locking in their testimony, before expert witnesses or other evidence by the plaintiff are presented to try and undermine the testimony. Alice may ask only questions that have relevance to the case. Let's take for example a dispute about a contract: Alice may ask Bob if he engaged in negotiations to form the contract, about the matter of the contract, if he signed the contract, or how he (or his employees) fulfilled (or not) the contract. Pretty much everything that pertains to the contract or the execution thereof. This does not extend to the settlement of the case or attempts thereof. Alice may not ask if Bob has an affair with Clarice unless that somehow is material to the contract at hand. Alice may not re-ask questions where an objection was sustained in the same way. However, Bob might not need to answer all questions (there are things that are banned from being asked), especially as Bob's attorney will object to questions. A few examples of competent questioning can be seen towards the end of My Cousin Vinnie, though this is a criminal trial. Never in a criminal trial In a criminal trial, not only can the prosecution not call Bob to the stand, he has to elect to go to the stand to even be questioned by the prosecution. That is because he can "plead the 5th". There is a tiny exception for civil cases, where they can do so there too. | The judge would reject the defendant's guilty plea and proceed to trial. This is a common part of a plea colloquy, which is a standard (often scripted) conversation that occurs between the judge and a defendant who is pleading guilty to ensure that the plea is voluntary and made with knowledge of its possible consequences. It seeks to ensure that the defendant is aware of what they're charged with and the consequences of their plea, and that they were not improperly pressured into pleading guilty—for example, because they felt that their lawyer wasn't doing a good enough job. This is required by Federal Rules of Criminal Procedure Rule 11, which requires that: Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement) Many (possibly most/all) US states have similar rules. For example, Pennsylvania law states that "The judge may refuse to accept a plea of guilty or nolo contendere, and shall not accept it unless the judge determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered." Examples of scripted questions to establish this include: Are you fully satisfied with the counsel, representation, and advice given to you in this case by your attorney, Mr./Ms. __________? Are you satisfied with the services of your lawyer? [ Mr./Ms. defendant ], are you satisfied with the representation you have received from [ Mr./Ms. defense counsel]? If the defendant answered that they were not satisfied (and continued to give that answer when informed of the consequences of doing so, as occurred in the below example), the judge would reject the guilty plea and proceed to trial. It's remarkably difficult to find a case in which anyone has actually done this. The only one I could find was this New Jersey case in which the "defendant would not agree on the form that he was satisfied with defense counsel's work." The judge informed the defendant in various ways that this would lead to the plea being rejected and proceeding to trial: Now, if you are not satisfied with your lawyer, I cannot take your plea bargain, sir. ... The only other thing I can do is schedule you for trial, Mr. Cuevas, which you are entitled to. Now, if you are not satisfied with your lawyer, I cannot take your plea bargain, sir. I can't take your plea after you're telling me that you're dissatisfied with your lawyer. If I can't take your plea because it's not appropriate and it's not legal, the only other thing I can do is schedule the case for trial. | Does B have a legal obligation to inform A that changes were made to the document? This is definitely not a simple yes-no question. One ought to consider not only the tenets of contract law, but also notions of equity and of public policy. On the one hand, courts acknowledge modified contracts that result from a battle of the forms. On the other hand, sliding changes in the contract without adequately directing the counterparty's attention to them tends to contravene the contract law covenant of good faith and fair dealing. In the scenario you outline, imagine the inefficiency and risk of mistake if the parties engage in several rounds of offers and counter-offers by sliding changes scattered all over the latest draft of a contract (this is totally feasible, especially as laws nowhere limit the number of times a party can make a counter-offer). Unless each party is conspicuous about his latest changes to the contract, the dynamics can easily become a matter of which party inadvertently binds himself to unacceptably detrimental clauses (some of which might re-occur after being stricken in a previous draft). This hinders the contract law prerequisite that a contract be entered knowingly and willfully. Although the parties are responsible for reading the contract, subjecting the offeror/offeree to devote valuable resources each time a newly altered contract goes from one direction to the other seems contrary to public policy. Furthermore, that defeats the purpose of negotiations and of the prior efforts each party spent toward the contract (such as valuations and risk analysis). I'm just curious to understand what legally prevents this type of things from happening in general. An offer may include language to the effect of accepting the contract 'as is'. See the provision in the Uniform Commercial Code (for instance, see MCL 440.2207(2)(a)) whereby alterations are precluded "[if] the offer expressly limits acceptance to the terms of the offer". The aforementioned statute also precludes terms which significantly alter the contract. See MCL 440.2207(2)(b). In a context of loan contracts --apropos of your example--, a borrower's unilateral alteration of the interest rate, of payment schedules, etc. constitute material alterations. Indeed, financial institutions are utmost sensitive to changes in interest rates and the timing of cash flows. Even in the case of an offeree's immaterial alterations of a contract, an offeror might prevail under principles of equity. This is more evident in the case of entities which enter and manage a multitude of contracts simultaneously, be it via contracts of adhesion or upon negotiations with each counterparty. In line with my point on public policy, the additional cost of filtering a counterparty's last minute occurrences would make it impossible for economies of scale to develop. | The primary question, in case of such a lawsuit, is whether you accepted the terms of the contract. You could accept the terms verbally, or you could accept them with a signature, or you could even accept by behavior (such as showing up to work). If you breach the contract and you want to make the argument that you didn't accept the offer (or some identifiable part of the offer), the plaintiffs would have a "yes you did" piece of paper to support their side. Now you would have to advances a very dangerous claim, that you didn't sign the document and that the signature there is a forgery. This is dangerous, because you perjured yourself in so testifying (it would eventually come down to you testifying, that you didn't sign the document). It's really beyond the scope of Law SE to get into forensic graphanalysis debates, but you should expect that the other side will have compelling expert testimony that you did in fact sign the document, with your other hand. In a civil suit (breach of contract), the other side would have to show that it is most likely that you did agree to the terms. It isn't just about the signature, it's about all of the evidence, which would include eyewitness testimony ("I saw him sign it", "I gave him the pile of papers and he returned them all, signed" or a later conversation "Remember that you agreed to X" – "Yeah, whatever"). | It happens all of the time, even though it is mildly improper. Usually, the lawyer can get away with it until the judge sternly warns the lawyer not to try it again, in which case the lawyer risks being held in contempt of court. This is riskier for a prosecutor (who risks this conduct causing a conviction to be overturned on appeal resulting in a new trial), than for a criminal defense attorney. This is because an acquittal, if obtained by these methods, is still not subject to appeal. Indeed, for a criminal defense attorney, even if it results in a mistrial followed by a new trial (which can be allowed if the mistrial is caused by the conduct of the defense), the mistrial will often count as a win if the trial was going badly on the merits. |
What is the legal difference between 18 and 21? I know at 18 someone is no longer a minor. But what is the reason for someone not getting full legal rights until 21? Examples: Alcohol, tobacco, etc. What gives the government the power to allow a 21 year to do something and forbid it for an 18 year old, since neither is a minor? For example, could a state legislature pass a law revoking a peoples right to drink at 50? In summary what I am trying to get at is what is unique about the age 21? Or can the government restrict rights at any arbitrary age? | I think your confusion stems from assuming there is a universal definition of "minor" across laws, jurisdictions, and rights. 18 is the age of majority for the purpose of voting (26th Amendment), the death penalty, labor law (although age 14 is the minimum age for employment), and many other laws. But, 21 is the age required to buy alcohol in all states (by their own choice in order to receive highway funding). Nothing requires the age of majority to be consistent across different sections of code or statute or between jurisdictions (except when constitutionally prescribed, like voting age, or minimum age for certain elected offices). There are many counties that prohibit purchase of alcohol at any age. The age of consent varies between 14 and 18 across US states. Age 65 is a threshold for certain tax credits. You need to be 25 in order to be a member of the US House of Representatives, 30 to be a Senator, 35 to be President. You are only protected from age discrimination if you are 40 or older. Here is a rough list of various age-based thresholds for various rights, privileges, or responsibilities in the US. (I havn't vetted this whole list, and some are clearly satire, but the ones I know about are consistent with my understanding.) | Like a lot of Scottish criminal law, there's no specific legislation, but it is illegal through common law. This was also true in the rest of the UK until the 1800s, when statutes were passed with the aim of making abortion law clearer (generally forbidding it). This didn't extend to Scotland leaving much of its abortion law unclear. The 24 weeks limit that the Scotsman article references is from Section 1 of the Abortion Act 1967 (as amended). This act did apply to Scotland. The act specifies conditions under which abortion within the first 24 weeks is legal, and that it is always legal when there is grave risk to the woman's health. When the circumstances of the pregnancy fall outside the provisions of the act, the existing Scottish common law prevails. For further information, this UN document provides a good summary of abortion law in the UK. | 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. | 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. | This generally requires a court order (everything depends on jurisdiction: this is a state matter, not a federal matter). As a minor, the courts could allow your parents to change from Dweezil to William without involving you, until you are old enough that the judge thinks you might be able to have reasonable input into the matter. Once you're over 18, your parents can't change your name – you would have to do that, at least if you are mentally competent. In Washington, the courts juggle the wishes of the child, the wishes of the parents, how long the child has had the name, and the social advantages or disadvantages of the name change, and permission from the minor is required if over 14 (child input would be solicited for a child over 7). Since this involves a court order, in principle this information is available to the child. In cases involving domestic violence, the records could be sealed. A name can be changed by changing the birth certificate which means filling out a form and paying a fee, and if the child is under 1 year old, it just requires the signatures of the parents (or, a court order). This "under 1" paperwork approach seems to be widespread (Colorado, New York, others). Also bear in mind that the initial filing of a birth certificate may well not have a child's name, which may not be supplied until the parents make up their minds. Changes to the birth certificate are knowable (they don't erase anything), but can only be revealed to the subject of the record, or in case of court order. Thus a change should be discernible, if other states are like Washington. | The plain meaning of "any" is "all". That does not mean that that is how the word is interpreted under current US law: that can only be determined by inspecting the case law. In US v. Alabama 443 Fed. Appx. 411 (No. 11-14532-CC), fn. 2 states "Pursuant to § 1304(e), every alien eighteen years of age and older must carry a certificate of alien registration or alien registration receipt card", thus this court has suggested that the meaning is actually "some". However, the case was not ruling on the interpretation of "any" here, so this could be a slip. The case involves an Alabama law, which as reported in the opinion's summary of the part of Alabama law being challenged by the US states: Section 10 creates a criminal misdemeanor violation under Alabama law for "willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a)..." indicating that the Alabama statute refers to "some" (which could influence the interpretation of "any", since "some" and "any" are often mixed up in legal drafting). That is, it is possible that the court in the footnote read "any" as "some" because the state law in question, which is parallel to the federal law, says "an". In US v Arizona 641 F.3d 339, the court weakly suggests a "some" interpretation as well, saying: Determining Congress' purpose, and whether Section 3 poses an obstacle to it, first requires that we evaluate the text of the federal registration requirements in in 8 U.S.C. §§ 1304 and 1306. These sections create a comprehensive scheme for immigrant registration, including penalties for failure to carry one's registration document at all times.. Again, the meaning of "any" is not the central issue: in using "one's registration document" in the singular, the court must have been interpreting "any" as "some". US v. Daubon 334 Fed.Appx. 167 (2009), another case that invokes the law but does not rule on the meaning of "any", rephrases the law: 8 U.S.C. § 1304(e) requires every alien over eighteen to carry his permanent resident card at all times. which is at odds with the possibility of there being two such documents: it suggests that an I-766 is not good enough. Lexis-Nexis returns 18 cases that cite this statute, and only Arizona v. US which was about the preemption issue was decided by SCOTUS. None of these opinions rules on the meaning of "any", so the matter has not yet been decided. | 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. | The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. U.S. Department of Labor. State child labor laws establish minimum ages for certain kinds of work (e.g. working on heavy machinery, or serving alcohol), and age limitations on obtaining commercial driver's licenses and commercial pilot's licenses can as a practical matter impose minimum ages for employment. Usually, this is a minimum age for certain jobs between age 12 and 21 depending upon the nature of the work. Apart from these limitations, discrimination based upon age in employment is not prohibited in the United States. So, for example, if an employer wants to hire 25 years olds rather than 35 year olds, simply because they are younger, this is permitted by law in most or all U.S. states. |
Do family pictures and videos in public places fall under GDPR? The Czech Data Protection Authority fined Mr. Rynes for filming members of the public without their consent. Mr. Rynes appealed, arguing that he was covered by the personal and household activities exemption. The court decided that although the filming was for private purposes, it involved people that were not part of Mr. Rynes' private life. Therefore, Mr. Rynes was not covered by the exemption and had to comply with the GDPR. Source: https://www.termsfeed.com/blog/gdpr-exemptions/#If_You_Re_Processing_Personal_Data_For_Domestic_Purposes So if I take a picture of my family or filming them in a public place and strangers appears in the background, the GDPR applies to this case, therefore, I have to provide privacy policy? | The judgment linked to by the article says: During the period from 5 October 2007 to 11 April 2008, Mr Ryneš installed and used a [continuously recording] camera system located under the eaves of his family home. The camera was installed in a fixed position and could not turn; it recorded the entrance to his home, the public footpath and the entrance to the house opposite. [my emphasis] That is the context of the case. He hadn't obtained consent from his neighbour to film the entrance to their home and therefore their family. He hadn't obtained consent from passers-by or warned them by means of a sign that there was a surveillance system monitoring that part of the public space. The court ruled that: The second indent of Article 3(2) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the operation of a camera system, as a result of which a video recording of people is stored on a continuous recording device such as a hard disk drive, installed by an individual on his family home for the purposes of protecting the property, health and life of the home owners, but which also monitors a public space, does not amount to the processing of data in the course of a purely personal or household activity, for the purposes of that provision. [my emphasis] If you recorded or took photos of your family members enjoying walking through Trafalgar Square, a very busy public space, it's likely you could successfully claim it was a purely personal or household activity - if the authorities were at all bothered by it (which they are not). | I'm pretty sure that under GDPR, you can indeed request them to send all data they have on you. If it's a complex request, they may charge you something like £10. If they have a lot of data on you, they may list the categories of data they have and ask you to pick one, rather than them having to collect and send everything. They should respond within one month, but iirc in the UK implementation, they can inform you (within that month) that they will respond within three months instead. For the rest, I only know current Dutch law. GDPR is not that different from what we already had (in general terms) and in many cases it even extends it. Under our law (WBP), you can also request a correction of the data in case it is incorrect, or deletion if they no longer need it for the purpose for which it was collected and stored. I don't really know how that works out in practice though, as Facebook can of course claim that "being able to connect you to your friends when you sign up for WhatsApp or Facebook with that number" is a legitimate purpose (in their eyes). They might also not have your full name and therefore not be able to connect your data to your request. Or, perhaps, they have only your full name (and there are probably more people with your name), so they'll have a hard time verifying that it's really your data which they would be handing over or deleting. The company is required to verify your identity before acting on your request. How they implement that is up to them. Under Dutch law, if I remember correctly, any data that can be connected to your person by any party is personally identifiable information (PII). While Facebook might not be able to find who's behind a phone number, your carrier most certainly can. Therefore, the data falls under PII protection laws and they will have to implement a way to verify you and get you your data. Finally, whether your local laws apply to Facebook, I don't know exactly. There's lots of information on this though, so you should be able to find it. Generally, countries say that if something happened within their territory (e.g. you signed up for WhatsApp while in the UK), their law applies. Companies, I've read, will instead try to claim that their main office is in SomeCountry and therefore SomeCountry's laws apply. But I'm pretty sure you'll be able to find a Facebook office somewhere where GDPR applies, so that's probably fine. While not an exact answer and while I am not sure about everything, I hope this gave you some pointers to go on! | england-and-wales There is nothing in the criminal law to compel Party X to identify Party Y in this scenario - they are under no legal obligation to contact the police or anyone else, and a witness summons, for example, cannot be served as there is no trial. That said, one option is for the victim to make a complaint to the police for an alleged offence of what is colloquially referred to as "revenge porn" contrary to s.33 of the Criminal Justice and Courts Act 2015: (1) It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made — (a) without the consent of an individual who appears in the photograph or film, and (b) with the intention of causing that individual distress. ... The definitions of "private" and "sexual" may be found at s.35: (2) A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public. (3) A photograph or film is “sexual” if — (a) it shows all or part of an individual's exposed genitals or pubic area, (b) it shows something that a reasonable person would consider to be sexual because of its nature, or (c) its content, taken as a whole, is such that a reasonable person would consider it to be sexual. The police can then ask Party X to either provide a witness statement identifying Party Y or, if Party X is concerned about unwarranted repercussions etc, to provide this information in confidence and their involvement will be protected as Sensitive Material as per para 2.1(9) and 6.14 of the Criminal Procedure and Investigations Act 1996 Code of Practice. | If the GDPR applies, then the e-privacy directive (EPD) (formally Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002) almost surely also applies. However, this being a directive rather than a regulation, the implement6ing laws may vary in different countries. The relevant provision is Article 5 paragraph (3) which reads: Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia [among others] about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user. This governs cookies and any other local data, that is, data stored on or read from the user's equipment. What this means is: A site operator must disclose, in detail, what cookies or other local data the site stores on or reads from the user's device. Even strictly required data (cookies) must be disclosed. A site may not store or read any local data until after consent has been obtained. The user must have the option to consent to or refuse consent to individual data items separately. Giving consent may not be a condition of permission to use the site. Consent must be opt-in, not opt-out, that is the default must be "No consent". Local data (including cookies) that is "strictly necessary" for the operation of the site is exempt from the requirement of consent, but not from the requirement of disclosure, and that means specific disclosure. It must be at least as easy to cancel consent later as it was to give consent initially. Do my Stripe cookies count as essential cookies? If the Stripe cookies count as essential, is it legal to provide no option to turn them off? Have I met my legal requirements in terms of disclosure? The terms and conditions and privacy policy were generated by Termly. I don't know stripe well enough to be sure, but they might. What do they do that is essential for operating the site? Yes. No, not if the disclosures in the question are the only ones you make. As I understand it, you must provide at least a link to a page that shows each specific cookie that you read or set, and what data is stored in that cookie, even for strictly required cookies. Update: I should mention t6hat although the above describes my understanding of the current legal requirements, I have read that enforcement of those requirements does not seem to be a priority for the relevant authorities at this time. Other aspects of data protection, such as proper security to avoid data breaches, and having a proper legal basis for processing, and other GDPR requirements, as opposed to e-Privacy requirements, seem to get more attention and resources from the relevant authorities. Having read the comment by the OP, it does seem that at least some of the stripe cookies are strictly required and need not have consent. The stripe cookie policy linked to is better than many sites currently offer. It does not go into fully specific detail, but it may be that the dashboard does, and that together the two are fully compliant. Linking to this policy (and if possible directly to the stripe cookie dashboard) would seem to me to cover most of the issues here. | This article basically says "it depends": If it is genuinely used to improve tenant safety then that is OK, but if it is used to track your private life then that is not acceptable. Cameras that cover communal areas used by several properties are generally acceptable, but cameras covering individual properties are much less so. It sounds like this falls into the latter category. Assuming you haven't got the camera yet, I suggest you write to the Landlord asking for a written justification of the cameras, and a policy for the use of the camera. E.g. it will only be viewed if an incident is reported. Once you have the justification you can then look for inconsistencies (e.g. if they aren't planning to snoop at random times, how are they going to notice someone up to no good? And how would they tell?) You could also just say "no". The installation of this camera probably counts as a material variation of the rental agreement. You could also propose a compromise: you will install the camera, but only provide footage as you see fit rather than allowing your landlord to view the camera at any time. CCTV installations are covered by the GDPR, so you should ask your landlord for the associated paperwork. Amongst other things they will need to state how long they want to keep the footage and provide a justification for that. "We might want to re-run it" is not a justification. Having all this stuff written down will help if you ever suspect he is abusing the footage. Edit Another thought: does the landlord own other properties? Are they having cameras installed too? If not, why not? They should have a policy about this. | united-states In some countries there are laws prohibiting publishing a person's picture without that person's consent. The US has no such general rule, and many other countries do not either. The details of such laws, where they exist, vary from country to country. In the US there are two kinds of legal action that might be used by a person to stop that person's image from being published. These are a suit for invasion of privacy, and a suit to enforce a person's right of publicity, also called a right of personality. These torts vary from state to state, and are not recognized at all in some states. Invasion of Privacy This has several variants, such as "intrusion upon seclusion", and "disclosure of private facts". Intrusion generally applies when someone has entered a private place, such as a dwelling, without permission, and has then taken a photograph, made an audio or video recording, or perhaps a written account, and has published or attempted to publish the image, recording or account. If and only if the publication would be "highly offensive to a reasonable person" then the subject or lawful occupant of the place invaded may be able to obtain money damages, or an injunction against publication. This would not apply to the fact pattern in the question, because the parents would have had a right to be in their own home, or anywhere that such baby photos are likely to have been taken. Intrusion can also apply to one who observes private activities without permission, even if no recording is made. But the "highly offensive" standard still applies. A "private facts" case generally applies when a person (or a small group, such as a family) has attempted to keep certain facts private, but some other person or business has published them (or attempted to publish them). A successful suit will in most states that allow such suits require evidence of some positive effort to keep the facts private, and that the publication would be "highly offensive to a reasonable person". This might possibly apply in the fact pattern described in the question. But note that the "highly offensive" standard applied to both of these privacy torts. Most typical baby pictures would not be considered "highly offensive", this is a fairly high bar. It would be a decision ultimately made by the jury or other finder of fact, I believe. For comparison, peeping on a couple having sex in a hotel room has been found to be highly offensive. When a person had sex with another, and had secretly arranged to record a video of the sexual encounter, and later distributed it, that was found to be highly offensive. Right of Publicity This generally prohibits using a person's, name, image or likeness, or "persona" to endorse or advertise anything, or for other commercial purposes, without consent. It is most often applied to unauthorized celebrity endorsements. Most US states have some form of this, but the details vary significantly. Unless the baby pictures were being used to advertise something, or in some commercial manner, this would not apply. If the parents sold baby pictures to someone who used them to advertise, say a day-care, or some baby product, this might apply, although it might be that the parents would be held to have had the right to act as the child's agent. If someone else downloaded the baby pictures from Facebook (or any other such site) and used them in ads, this might well apply. Conclusion It is unlikely in the US that a child could successfully take legal action against a parent for having posted pictures of the child, even if they were embarrassing, unless they were also "highly offensive". Even then such a suit would be unusual, and might not be successful. It is more likely that a request to the parent would be successful, unless the parties are on vary bad terms. A request to the site to take down such images might work, depending on the site's terms. A DMCA takedown would not work, because the subject does not normally hold copyright to an image, the photographer initially does (unless it is a work made for hire, in which case the employer initially does). This conclusion is specific to US law. The outcome would be different in at least some other countries. | Staff at polling stations have been told to stop people taking selfies - even though it is not against the law. The Electoral Commission fears the craze for taking self-portraits on phones and posting them on social media threatens the secrecy of the ballot. Anyone who inadvertently reveals how someone else votes in Thursday's local and European elections could face a £5,000 fine or six months in prison. Staff have been urged to put up "no photography" signs in polling stations. https://www.bbc.com/news/uk-politics-27486392 Its not illegal to take a photo of your own ballot paper, it is illegal to reveal how someone else voted without their knowledge. Thats where Section 66 of the Representation of the People's Act comes into play. This law hasn't been updated since the 2014 BBC article, so the articles claims about lawfulness are still valid. | [I'm not so well-versed on US and Russian law, thus I will limit my answer to EU law.] Your specific use of a user identifier, as I understood from your question, can be classified as personal data, so in your case, the GDPR seems to apply. This means that you need to have a) legitimate purposes to process that personal data (e.g. crash reporting) and b) a legal justification for each purpose of processing: it could be based on consent or another legitimate purpose (inc. your own legitimate interests). Consent might not be the best option for you, but it's up to you to decide. In any case, you need to assess the risks to the data subjects (your users) before you decide. How likely is it that you will get breached, and what potential harm will that cause to your users? These are some guidelines; my recommendation is that you read the law and the guidelines by the Article 29 Working Group and European Data Protection Board, or hire some good experts on this. There is no easy answer, or one size fits all solution. The GDPR isn't so hard to understand or implement, but it does require some change in mindset. With the new law, processing personal data carries a higher risk of penalties, so you should do it only when it's absolutely necessary, and with respect to the rights of your users. |
If a judge constructs arguments for the prosecution in judgment is that grounds for appeal? I recently read a judgment in which the judge constructed arguments that normally one would have expected the prosecution to make. In fact, the defense in the case argued that the prosecutor failed to demonstrate their case by not arguing certain points that they should have. This seemed to create no problem for the judge who just "remedied" the situation by making the arguments that the prosecution should have made in her judgment. My understanding is that judges are supposed to weigh the merits of the arguments put before them, not make new arguments to repair or strengthen the case for one of the sides. I thought that the judge's tendency to bolster the prosecution's case with such arguments smacked of judicial bias in favor of the prosecution. Is it grounds for an appeal to complain of judicial bias if a judge makes a de novo argument in their judgement, assuming that argument would have been necessary for a conviction? If so, what are the relevant precedents in United States case law? (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) | This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer. | 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. | If the prosecutor (P) knows or strongly believes based on this new evidence that A is innocent, ethically P should start proceeding to have A's conviction reversed or reviewed. But in far too many cases P does nothing of the sort. If P simply files a charge against B and proceeds to try B for the crime, P leaves it open to B's Lawyer to ask "Didn't you already convict A for this crime? what about that?" as part of a defense, which might well embarrass P and lose the case. So P may well choose to file charges against B claiming that A & B acted together as accomplices, even if this requires misstating the evidence, or suppressing part of it. Or, P may simply ignore the new evidence, leaving A in prison and B free. This is unjust, but requires no effort on the part of P, and may seem less likely to raise embarrassing questions about why P got the case against A wrong. P can always claim that s/he did not believe the new evidence. That might even be true, there is such a tendency to believe what we wish to believe. The relative frequency of these responses on the part of those in the position of P here is really not possible to asses. The last two responses involve P suppressing or at least burying relevant evidence, and unless it is brought to the attention of others who publicize it enough that action is taken, it will not be generally known and cannot be tabulated in any statistics. P's office will certainly not respond to any survey which asks "How many times this year did you suppress the true facts to leave in place an unjust conviction you had previously obtained?" | The appropriate course of action would be to demand an evidentiary hearing, present evidence, and appeal the judge's ruling if it is contrary to the evidence in the record. Abandoning your attorney because the judge is sounding ominous would be foolish indeed. You can't do anything about the judge or about DSS. | Because they are only apparent with hindsight The judge writing the judgement does not decide what is dicta and what is obiter - that is for some future judge considering a different case and deciding if they are looking at a binding (dicta) or persuasive (obiter) precedent. First of all, the vast majority of cases follow precedent; they do not set it. If you are trying to disentangle dicta and obiter then you are usually looking at the case of an appeal, not a trial judgement. Most trials turn on the facts, not precedent-setting points of law - usually, there is no dispute about the law at all. Even then, most appeal decisions don't set a precedent either and sink into obscurity until at some point in the far future when a lawyer doing research on a particularly tricky case has an "ah-ha" moment and says "Look at what Justice Bozo said in paragraph 365 of this 56 page judgement about a tangentially related issue between different people at a different time in a different place - I need to spin this as dicta." Meanwhile, the lawyer on the opposite side has a different precedent from a different case that contradicts this one - one of them must be wrong. So a trial judge faced with this paradox has to resolve it; they don't get to say "this is too hard". Basically they have 2 methods of doing so: The decide that one (or both) are obiter and make the decision based on the precedent that remains. They decide that both are ratio and write a judgement that they know has to be appealed because they have to follow both precedents and they can't. At least in Australia, this is becoming more and more common. The judge basically says "I have two conflicting binding precedents, I pick this one for [reasons]. Now go off to the Court of Appeals to see if I got it right. I look forward to finding out." Of course, the winner isn't going to appeal and it may not be in the loser's commercial interest to do so. So maybe the question just gets kicked down the road for some other poor bloody judge to have to deal with. | 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 a deposition, attorneys are supposed to keep their objections short and refrain from making an objection that indicates to the witness how he should answer. A question might be objectionable because it lacks foundation, because it is compound, because it calls for speculation, etc. Example 2, for instance, could be said to assume that Ms. Redacted was involved, and I might not want my client to discuss how he would act in that situation. Some attorneys in that situation might say, "Objection, assumes that Ms. Redacted had anything to do with this, which you haven't proved, and it's impossible to say what would have happened under circumstances that never happened." This gives my client a pretty clear signal that he ought to make clear that Ms. Redacted wasn't around, and that he should try to avoid getting pinned down on any questions about what he would have done if she had been. This practice -- known as "a speaking objection" -- can be used to signal to the witness how best to answer, and it leads to huge fights in a deposition. To avoid those fights, courts have developed a practice of requiring lawyers to simply "object to the form," rather than coaching the witness. That puts the objection on the record so it isn't waived, and if it's truly problematic, the parties have an opportunity to explain in greater detail after the deposition is concluded. | A lawyer for either party can claim, during argument, that an adverse witness is not credible, for any reason or none. Often the lawyer will point to matters disclosed during cross-examination, claiming that they are contradictions, show bias, or otherwise indicate lack of credibility. Or the lawyer could point to elements of the primary testimony which the lawyer claims are implausible. If there has be evidence of a prior conviction, the lawyer could refer to this. A lawyer may in general ask a witness about prior convictions. Criminal convictions are generally matters of public record, and can be researched. It is not usual to present reputation or credibility witnesses for any person except the defendant, and failure to do so, even for the defendant, does not lead to any automatic assumption of lack of credibility. Not does the appearance of such a witness grant an automatic assumption of credibility. But a lawyer may point out reasons for thinking a witness not credible. Ultimately it is up to the finder of fact, often a jury, to decide what weight to give the testimony of each and every witness, based on the impression that testimony made, as well as any argument from the lawyer. This is one reason why courts are reluctant to overturn factual assessments by a jury: the reviewing court does not see and hear the manner of a witness and what it may indicate about credibility. |
Wrongful death suits against government officials Can state governors be held liable in wrongful death suits where the deaths are proven to be a direct result of violating all known medical advice and scientific assessment? I remember that anti-science does have the legal precedent of parents praying for their child instead of seeking medical treatment. https://www.pewresearch.org/fact-tank/2016/08/12/most-states-allow-religious-exemptions-from-child-abuse-and-neglect-laws/ Currently, 19 states and territories have no religious exemptions to civil child abuse and neglect statutes. What about criminal negligence for not even bothering to assess the risk by doing stratified random testing of 1500 people in the five largest cities of a state? If any deaths result in the Brian Kemp's plan to open up Georgia (when everyone says this is a bad idea) can federal criminal charges be brought against him for depriving these people of their civil rights? | No. A governor could not be held liable in a lawsuit on those grounds. Governors in every U.S. state have governmental immunity from liability in tort (and a lawsuit for wrongful death is a kind of tort lawsuit) for their official actions, and there is no U.S. state in which this kind of lawsuit would fall within an exception to that governmental immunity. There is not private cause of action against a state government executive branch official under federal law for a violation of "Trump administration official guidelines for reducing the covid-19 mitigation." Indeed, it isn't clear that a federal statute creating such a private cause of action that purported to pierce a state law official's governmental immunity from liability, even if it were enacted, would be constitutional. In contrast, if a corporation violated such a guideline, the violation of the guideline would be evidence of negligence, although probably not conclusive evidence, in a suit for wrongful death by a non-employee brought against the corporation. | From a legal perspective, I think the ruling is reductio ad absurdum correct. California voters passed Proposition 65. Consequently, CA Health and Safety Code 25249.6 says "No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10". Section 25249.8 mandates a list, and defines "known to the state" A chemical is known to the state to cause cancer or reproductive toxicity within the meaning of this chapter if in the opinion of the state’s qualified experts it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity, or if a body considered to be authoritative by such experts has formally identified it as causing cancer or reproductive toxicity, or if an agency of the state or federal government has formally required it to be labeled or identified as causing cancer or reproductive toxicity. Acrylamide is so listed, and has been for 18 years, reason code listed as "AB-IARC, AB-US EPA". The law does not say that "the benefits may outweigh the risks", nor does the law say anything about usual doses. There is an "escape clause", if one (the defendant) can prove that there is no effect (25249.8(b)): An exposure for which the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question for substances known to the state to cause reproductive toxicity, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical pursuant to subdivision (a) of Section 25249.8. In any action brought to enforce Section 25249.6, the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant. The answer on Skeptics does not address the EPA finding (and the science underlying it). At this point we can only conjecture about the defense's scientific argument (the ruling is still in the works, pending feedback from parties), but the judge said "While plaintiff offered evidence that consumption of coffee increases the risk of harm to the fetus, to infants, to children and to adults, defendants' medical and epidemiology experts testified that they had no opinion on causation" and that the coffee makers hadn't presented the proper grounds at trial to prevail. Insofar as human subjects testing of suspected carcinogens is illegal, any argument that "but this only shows that it causes cancer in rats" is legally empty: rats are a suitable proxy for humans. This is a state report addressing a potential carcinogen, 4-Methylimidazole. The report notes that to have a No Significant Risk Level finding, the substance must have less than a "daily intake level posing a 10^-5 lifetime risk of cancer". A further requirement is that "risk analysis shall be based on the most sensitive study deemed to be of sufficient quality" (whatever that is). This study mentions a previous study which was rejected because "these studies do not meet the criteria specified in Section 25703(a) because the experiments were not designed to adequately control for and examine the potential carcinogenicity of 4-MEI". Basically, Spiegelhalter's argument is too meta, and doesn't constitute a proof that acrylamide poses no risk of cancer. If the defendants commissioned an independent scientific study to overcome earlier carcinogen findings, perhaps the study failed on technical grounds. The bar that has to be cleared is very high. The EPA regulation says that the maximum contaminant level goal for acrylamide is zero. That is the carcinogen-science basis for specific allowable levels in water supplies. | This is manslaughter of the vehicular variety Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:... (c) Vehicular— (1) ... driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. This is what they call a wobbler, and could be charged as a felony or a misdemeanor. In the latter case, the maximum penalty is a year in county jail and in the former it is six years in state prison. If the cause was ordinary negligence, it is just a misdemeanor. The details of gross negligence are set forth in the jury instruction CALCRIM 592 A person acts with gross negligence when: He or she acts in a reckless way that creates a high risk of death or great bodily injury; AND A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. The "absent-mindedness" defense seems a bit far fetched, but still not everybody who drives inattentively is prosecuted for a felony, or even a misdemeanor. However, it is really hard to imagine not being acutely aware of the fact that people drive on the right side of the road here. Without a more-detailed story, I don't see a basis for deciding what level of negligence a prosecutor is likely to argue for, and what the prosecutor's agenda is: somewhere between no prosecution, and (most likely) misdemeanor manslaughter. | Yes Under Texas law (and pretty much everywhere else) the driver of the vehicle is responsible for ensuring that it is roadworthy. This does not mean that someone else cannot also be liable - the mechanic who fixed the wheel and their employer would also be liable. The claim for damages from a motor vehicle accident lies in the tort of negligence and the standards that the driver has to attain to avoid liability is that of a reasonable person. A reasonable person is not an average person who (probably) just gets in a car and drives but a prudent person who considers the risks to themselves and others and takes reasonable steps to mitigate them. Like looking at the wheels of an unfamiliar car. If the defect were obvious to a layperson from a visual inspection, they would be liable if they had not conducted such an inspection. Similarly, continuing to drive when a car is making a "Knocking" noise even if you didn't know what it was is not something a reasonable person would do. If you knew what the noise was and kept driving we are now moving from negligence into recklessness and the realms of criminal liability like manslaughter. | 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. | 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 | No. Only specified means of disposition of bodies are allowed by law in Kentucky and this is not one of them. The statute that applies once the body comes into the possession of a coroner is here. The statute that applies when a death appears to involve suspicious circumstances is here. Dispositions of a body that constitute the crime of "desecration of a dead body" crimes in Kentucky are described here. But, the the scenario in the question, while not within any of the clear exceptions to that particular crime, is also not clearly within the definition of that crime. Instead, it would probably be a violation of state funeral home regulations, which are mostly civil rather than criminal offenses. A subtle point is that certain transformations of a dead body such as cremation and certain kinds of treatments (such as plasticizing) that can cause a body to cease to rot also have the effect of causing the dead body to no longer count as a dead body legally for purposes of laws regulating the disposal of dead bodies. Kentucky law does not expressly authorize something quite similar to the original post which is the Tibetan Buddhist and Parsi (a.k.a. Zoroastrian) religious practice of "sky burial". But, the free exercise clause of the freedom of religion granted by the First Amendment to the U.S. Constitution and incorporated against the states via the 14th Amendment to the U.S. Constitution, and the Religious Freedom Restoration Act of 1993 (a federal statute), may either render this state prohibition unconstitutional or pre-empt it under federal law, because religious practices have greater legal protections than artistic practices. This would be a close call because sky burial can present public health risks that overcome first amendment freedom of religion rights. | Can a state make a law that deputizes individuals to sue individuals in other states? This question (apart from the question below that implicates federalism concerns about a sister state court process in the secondary question below) would be resolved by the constitutional limitations on personal jurisdiction and choice of law. A state can have a law that authorizes a lawsuit for non-judicial system conduct against a non-resident of the state if it meets the requirements of "long arm jurisdiction." The most succinct description of this requirement is that the person being sued "personally availed themselves" of the laws of the state whose law authorizes the lawsuit, in a manner that would reasonably be understood to subject that person to the state's legal authority. This could involve a lawsuit against someone outside the state arising from an incident that took place in the state. It could also involve a lawsuit against someone who took tortious action directed at a state or people in a state that caused harm, or a lawsuit arising from a business transaction that could reasonably be considered doing business in the state imposing that law. Constitutional law requirements on "choice of law" require that the state or foreign jurisdiction whose law is applied to a question in a dispute must have some meaningful connection to the disputed issue (subject to the backdrop rule that the law of a jurisdiction other than the forum where a case is litigated is presumed to be identical to that of the law of the state where the case is being litigated if no party provides any evidence or legal authorities to the contrary). Case law on state level qui tam litigation (which involve statutes that empower private individuals to sue someone who has wronged the government on its behalf for a share of the amount recovered for the government), the case law regarding private criminal prosecutions that are available in a handful of U.S. states, and some California consumer protection laws (which authorize suits without personal showing of actual damages in some cases when there are fraudulent advertisements) might also be relevant. So would the authority granted to bail bondsmen that is similar to law enforcement authority but limited to people authorized a person posting a bail bond for a criminal defendant who is subject to that authority. Concretely, if the constitutionality of the Texas law was upheld<1>, Texas probably can authorize a lawsuit against a California resident who would be involved in an abortion that took place in Texas that was illegal under Texas law. And, a judgment from a Texas court in a case like that would probably be entitled to full faith and credit in California. But, Texas probably couldn't constitutionally authorize a lawsuit against a California resident in connection with an abortion that took place in California. There would be, of course, many edge cases with no close past precedents, where the application of constitutional jurisdiction and choice of law limitations would be far less clear. <1> The majority opinion by five conservative justices other than the Chief Justice deciding not to stay enforcement of the law specifically limits itself to whether the proper parties were joined to the request to enjoin the statute and states "this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts." A decision that has not been resolved on the merits. The Courts have merely declined to stay enforcement of the law pending the current litigation over the law's validity. Upholding the law on the merits would require courts to overturn existing precedents related to abortion restrictions and other legal issues. Is there any extra legal barrier that would prevent states with pro-choice legislatures from passing laws designed to counter the anti-abortion deputies? For example, California could pass a law that deputizes private California individuals to sue people who sue abortion providers, and could reimburse their court costs up to $10,000. This seems to be a separate question from the question in the title. A law of this character would probably not be upheld. Basically, it would make a state authorized legal process in one state's courts, actionable as illegal in another state. Generally speaking, interference in another state's legal process would either violate the "dormant commerce clause", or the "full faith and credit clause", or constitutional limits on jurisdiction and choice of law, or constitutional standing limitations (even though they don't apply in the same way in state courts as in federal courts, or the "due process clause" of the 5th or 14th Amendments, or the "privileges and immunities clause." The exact legal theory isn't clear because there is really not history of litigation over this kind of legislation and you'd need to resort to vaguely analogous cases. The effort of Texas to litigate Pennsylvania election law administration following the 2020 election was recently dismissed by the U.S. Supreme Court for lack of standing and that is suggestive of how this case might be resolved, even though it isn't strictly analogous. It is also informed by the long standing common law rule, that could conceivably have constitutional dimensions, that litigants participating in a court process in good faith are immune from collateral litigation in another lawsuit over their conduct in the original lawsuit. There isn't a lot of precedent one way or the other with laws having this kind of purpose, and none on a law exactly in this form. Indeed, a dissenting opinion from the U.S. Supreme Court yesterday by the Chief Justice and two of the liberal justices (with which the third liberal justice states he agrees without formally joining that opinion) stated that: The statutory scheme before the Court is not only unusual, but unprecedented. The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The last time there was significant litigation of laws with a similar purpose that were adjudicated was in the pre-U.S. Civil War period in abolition of slavery oriented legislation. But, the post-Civil War amendments to the U.S. Constitution and subsequent development of constitutional case law would render most precedents from that time period infirm. |
US laws: shooting an undercover cop So this is in the interest of storytelling and writing. So we have cop A who is undercover and acting as mobster B's right hand man. Then we have bar owner C who closed down the bar, and is alone in it doing inventory 2 hours after closing, all alone. B and A come in the bar (forcibly, since it was closed, but quietly) and surprise C. B want to threaten C into paying protection money, but C refuses, so B and A (who is undercover) are trashing the place and threatening C with death. C then quickly pulls out a gun and shoots both of them dead. Would C be in any trouble? Seeing as how it was self defense and he didn't know that A was an undercover cop. | Laws that add special penalties to killing a police officer require that the accused knows that the victim is a police officer, for example DC 22-2106 (emphasis mine) (a) Whoever, with deliberate and premeditated malice, and with knowledge or reason to know that the victim is a law enforcement officer or public safety employee, kills any law enforcement officer... A prosecution would need to show beyond a reasonable doubt that the accused knew the victim was an undercover police officer to convict them under this statute. In the case presented, it seems unlikely that the bartender could be convicted under such a statute, even without consideration of a possible self-defense argument. | That the cop claims to be your friend is not more illegal than a salesman claiming that he has "the best offer" for you because he likes you (in fact didn't you see any film about the good cop/bad cop routine?) The term you are looking for is Entrapment. The (very simplified) basic idea is that police officers can promote the comission of a crime to catch criminals but cannot "trap" innocent people into it; the difference being that their persuassion should not turn otherwise innocent people into criminals. An extreme example would be if the cop threatens the target into commiting a crime. For the more usual situation when a cop promotes a crime to catch the criminal, I saw it explained (just for illustration purposes, it is not that you are safe when the cop insists a third time) as it follows: Legal: Cop) Oh boy! The place where I work is full of cash and they don't even have alarms or store it in a safe box. If someone helps me, we could go this night and take all of it. Are you interested? Target) I don't know. Cop) Trust me, it will be easy, nobody is there at night and it will be just a couple of hours. Target) Ok, count me in. Illegal Cop) Oh boy! The place where I work is full of cash and they don't even have alarms or store it in a safe box. If someone helps me, we could go this night and take all of it. Are you interested? Target) I am not a thief. Cop) Come on, it will be easy, the place is insured and nobody will be hurt. Target) Not interested. Cop) We can get 5000 US$ each one, just for a night of work. Didn't you told me that you had troubles with your bank? You could solve those overnight! Target) Maybe you are right, but I have no experience with these things... Cop) Do not worry, I will tell you what you need to do. Target) Ok, count me in. Note that it is not only "the cop insisted a lot". For the drug dealer example, if the cop insisted a lot but, when agreed, the boy produced the drug from his pocket, already packaged for sale, it would not be entrapment. OTOH, if the guy had told "I do not know where to buy drugs" and the cop had told him "go talk with X so he sells you the drug", then it could be considered entrampment. In any case, this is generic information only, entrapment is difficult to prove and will depend on the views of the judge/jury so, no matter how enticing that criminal offer is, just don't do it. | If I remember the case correctly, he didn't make his home look uninhabited (that is nobody is living there) but as if the inhabitants had left (gone shopping etc.) to make it look attractive to burglars. He then waited inside, armed with a gun, with the intent of shooting any burglars that might arrive. He shot the first burglar in the legs, and then proceeded to kill the unarmed and now defenseless burglar, who was lying injured on the ground and was in no position anymore to hurt him. He then did the same with a second burglar, shooting her in the legs, then shooting her multiple times, and when he found she was still alive, he shot her point blank in the face while she was lying on the ground. You are asking the wrong questions. You are asking "is it illegal to remove a truck". It's not. What is illegal is to intentionally create a situation where you shoot people and try to claim "self defence". It can very well be argued that by luring burglars into your home with the intent to kill them, they are not actually illegal in that home, because you wanted them to be there. You can do many things that are each completely innocent but add up to a crime. Actually, for everyone interested, I posted a question maybe last week or the week before whether you can be convicted for both first degree murder and second degree murder for killing a person, and it was exactly this case that inspired the question. What should he have done? If he hadn't lured the burglars in, I believe the case would have still been a double murder, since he killed both unarmed teenagers when they were absolutely no threat. It might not have been first degree murder since it would not have been premeditated. But he intentionally lured them in, making it premeditated (first degree) murder. If he had only injured them, the fact that he lured them in could very likely have made this an assault. You asked: "Now that the burglars are in his house, what should he have done? " Well, he got himself into a dangerous situation. Remember, he was convicted for premeditated murder. So just before he shot the girl in the head, he should have instead put the gun away and called police and an ambulance. It would have been one murder instead of two. Just before he shot the boy, he should have put the gun away and called police and an ambulance. It would have been just attempted murder. When he heard the first person entering, he should have called the police and waited. When the burglar came in sight, he should not have shot and injured him. It's a similar question to "if I try a bank robbery and there is an armed guard, what should I do". The only legal thing to do is to drop your weapon and wait to be arrested. If an armed burglar had appeared instead of two unarmed teens, well, he would have put himself into a dangerous situation. Just as the burglar would have no right to shoot even if a home owner points a weapon at him, he had no right to shoot, no right to self defense, since he had intentionally created the situation. Tough shit. That's what you may get if you plan a murder. Responding to some comments: @J.Chang Are you being serious? You are not allowed to make your house inviting to burglars, while waiting inside with the intent of killing them. Self defense only applies when a reasonable person would believe they are in danger. Reasonable persons don't think that a burglar comes in with the intent of blowing themselves up and taking the home owner with them. And no, you don't get to "assume the worst". Not when the worst is something no reasonable person would expect. Thanks to Dale for pointing out that even for soldiers in a war situation, where different rules apply, deliberately killing a helpless enemy combatant is murder. | 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.) | No If you break the law you are legally responsible. Can you make it more difficult for law enforcement to find and prosecute you? Of course, that's why bank robbers wear masks. | Considering that the US legal system is more or less similar in practice to the English Courts, yes it is possible to plea bargian a deal. I'm linking to the wikipedia article on the matter with a specific link to the England and Wales for guidence. Normally, I'd explain, but I'm an American and the differences between Magistrate and Crown courts are big enough differences that I can't tell you what the differences in the case is. I should point out this is a legal area where America differences with much of the world. 90% of the United States criminal cases (and a good number of civil cases, which are settled privately before discovery phase) are plea bargained to lesser sentences. Additionally remorse has nothing to do with the plea bargain. You might only be sorry that you got caught breaking the law and can still plea. The lighter sentence is sort of a "thank you" for saving the state money in not having to build their case against you. It is also used to coerce cooperation with the police, as they may have the accused dead to rights and can prosecute him successfully, but he's a little fish who can give intel to a big fish (this usually comes with the caveat of it being a sworn statement, so they can still prosecute you for something if you're lying... OR that the deal holds on condition that everything is factually true. If evidence contradicts you, you're charged as if you never made a deal). It's also important to note that the police will not honor their deals made for your confession... but they will offer you deals (In the United States, police are allowed to lie to you and do it all the time). However, the prosecutor will honor their deals. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. Finally, most jurisdictions allow the judge final say at sentencing, so if the prosecutor does honor the deal and advises the sentence, don't get upset if the judge is tougher and gives you a harsher sentence on the crime, or rejects your plea outright (expect him to scold the prosecutor for wasting his time with a horrible deal, too. Watch the Law and Order SVU episode Raw for a particularly wonderful instance of this rare event occurring). As a part of US federalism, the rules about this change from jurisdiction to jurisdiction, so make sure you understand this. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. I would definitely do some leg work into the English Legal system's opinions on plea bargains. Just because they have it does not mean the state lawyers like employing it and many jurisdictions see it as full on corruption in other parts of the world, even the Common Law jurisdictions. | In addition to the general considerations of (1) who is allowed to use non-deadly physical force to maintain order in a shop (which I think that one could do if "deputized" by the property owner or to protect the property of another as well), and (2) the use of non-deadly physical force to make a citizen's arrest (which many of these scenarios would justify as the disorder would be a crime if committed by an adult), (3) I suspect that there is also some point at which a bystander may intervene to prevent harms associated with an unsupervised minor being at large and in need of supervision. Generally speaking, intervention with the minimum reasonable non-deadly physical force to prevent property damage, or an assault, or a threat, is going to be permissible. As to the third reason: for a mentally normal ten-year-old that might be a stretch; for a four-year-old or a clearly impaired older child it might not. One could approach the child, say, "where's your mom or dad", "do you have a babysitter or sibling around?", "what is your name?", or "are you lost?" and detain the child until a satisfactory answer is provided or a suitable authority arrives, to prevent the problem of a child being lost, abducted or hurt by the child's own actions. It would be quite hard for a parent, guardian or babysitter to complain about this kind of conduct when the child was unsupervised and is released as soon as you confirm that this really is a responsible adult or older minor who is responsible for the child. It would be important in doing so to not secret away or isolate the child, to try to determine the location of the child's caretaker, to refrain from doing anything that would harm the child, and to seek assistance from an authority within a reasonable time. Typically, if no caretaker appeared, a cop would come and the cop would oversee the situation until a social worker could come. For example, Colorado has the following statute that would apply once a cop arrived (omitting lengthy provisions that apply to newborn children): § 19-3-401. Taking children into custody (1) A child may be taken into temporary custody by a law enforcement officer without order of the court: (a) When the child is abandoned, lost, or seriously endangered in such child's surroundings or seriously endangers others and immediate removal appears to be necessary for such child's protection or the protection of others; (b) When there are reasonable grounds to believe that such child has run away or escaped from such child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has not made a report to a law enforcement agency that the child has run away from home; . . . (1.3) A child shall be taken into temporary custody by a law enforcement officer without order of the court when there are reasonable grounds to believe the child has run away from the child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has made a report to a law enforcement agency that the child has run away from home. (1.5) An emergency exists and a child is seriously endangered as described in paragraph (a) of subsection (1) of this section whenever the safety or well-being of a child is immediately at issue and there is no other reasonable way to protect the child without removing the child from the child's home. If such an emergency exists, a child shall be removed from such child's home and placed in protective custody regardless of whether reasonable efforts to preserve the family have been made. (2) The taking of a child into temporary custody under this section shall not be deemed an arrest, nor shall it constitute a police record. A child is considered neglected or dependent under circumstances including the following (provisions related to drug or alcohol abuse by parents omitted): § 19-3-102. Neglected or dependent child (1) A child is neglected or dependent if: (a) A parent, guardian, or legal custodian has abandoned the child or has subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring; (b) The child lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian; (c) The child's environment is injurious to his or her welfare; (d) A parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for his or her health, guidance, or well-being; (e) The child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian; (f) The child has run away from home or is otherwise beyond the control of his or her parent, guardian, or legal custodian; I don't have easily at hand legal authority authorizing a third-party who is not a law enforcement officer to take custody of a dependent or neglected child until a law enforcement officer arrives, but I strongly suspect from the context that this is allowed either under common law, or a statute that I have not located, or some legal fiction (e.g., that the citizen is implicitly deputized by the law enforcement officer after the fact), or simply as a matter of custom and ordinary practice not codified in any authoritative legal source. | 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. |
Is it legal for Bill Gates to hire a foreign ambassador to kill a terrorist for him? Is it legal for Bill Gates to hire a foreign ambassador (for example, the Prime Minister of Kazakhstan) to kill a terrorist for him? For example, the terrorist could actually be trying to kill his family, maybe the Russian Prime Minister, or a dissident lawyer in Russia. | No. It is illegal to hire someone to kill someone else. Even if the killer enjoys diplomatic immunity, the person hiring the killer has committed a crime. As to your last paragraph, that is properly a separate question, but the answer is that they can't do it because murder is illegal. | A problem with the question is that it uses the loaded term "victim". If you change the question to "Are there actions that you can perform involving another person, which are crimes even if the other person consents to participating in the action", then there are very many. Selling alcohol to a minor; selling heroin to anyone; selling sex in most US jurisdictions; selling firearms to a convicted felon. Also, for a physician to assist a person in suicide, in most states. Formerly in the US, various forms of sexual intercourse were acts that consent did not make legal. Whether or not the person is a "victim" in these cases is open to debate. In the case of physician-assisted suicide in Washington, the doctor is allowed to prescribe (oral) drugs that the person ingests: only a doctor is permitted to do this, both under the DWD Act and as a consequence that only a doctor can prescribe the drugs. There seems to be a belief that it is a crime to assist a person in committing suicide, which is probably correct if the assistance is shooting the person in the head, or in general directly causing the death (thus, "I give you permission to shoot me in the head" doesn't cut it). But from what I can tell, it is not generally against the law in Washington to help a person who commits suicide (e.g. supplying the means of self-dispatching). In some countries, suicide and helping with suicide is illegal, e.g. in Kenya Penal Code 225 says Any person who (a) procures another to kill himself; or (b) counsels another to kill himself and thereby induces him to do so; or (c) aids another in killing himself, is guilty of a felony and is liable to imprisonment for life. No exception is created if the person consents to being aided to kill himself. | I said this in a comment, but I'll put it in an answer. When France forcibly confines an American, the United States is entitled to ask France, "what the hell do you think you're doing, trying to confine our citizen in your country?" There are really just six basic answers that the United States will accept, and nothing in this scenario is specific to France or the US (it applies any time a foreign national is arrested by any country), and the six responses are the six basic principles of jurisdiction: Active nationality: "He's our citizen too! What the hell do you think you're doing, questioning how we treat our own citizens?" The US doesn't generally get to question how France treats French citizens, even if they're also American citizens. And France gets to require its citizens to obey French law anywhere in the world. Subjective territoriality: "He broke our laws on our soil. We don't care that he's your citizen, he has to obey our laws while he's here." This and nationality are by far the most well-accepted answers. Protective: "He threatened our state. We have the right to protect ourselves." This applies to things like attacking French government personnel or forging a French passport or similar: France isn't protecting its citizens, it's protecting France itself. Objective territoriality: "He may have committed this crime outside France, but its effects happened inside France. We can punish him for causing those effects." For instance, if you're in the US but hack a computer in France, France has an argument that they get to punish you for that. Passive nationality: "He may be American and have done this outside France, but he hurt our citizens. We have the right to protect our citizens." Again, a plausible argument. This is not necessarily a strong argument, but it can be made. Universality: "This thing is a crime against all of humanity. It's something that needs to be stamped out by all countries working together, without worrying too much about whether or not the defendant actually affected the country prosecuting him in any way." This is very rare. Murder is not a crime of universal jurisdiction. It's limited to more severe crimes, as well as crimes of a fundamentally international nature. So piracy is on the list, as is plane hijacking, as is genocide. Killing an ambassador is on the list: you're a threat to international order. But normal murder? Not even close. It's not a crime with international implications, and it's not a crime which is so fundamentally horrific that it needs to be ended by any means necessary. The death penalty has never been considered to be that fundamentally horrific, and likely never will be, particularly when (as in the US) it is limited to people who have committed something that is an extremely serious crime in any country (i.e. murder). The only way France could make a remotely plausible argument that it gets to punish American executioners is if they're dual citizens or if they executed a French citizen. Then France can't arrest the executioner because US is a sovereign state and gets to impose its own penal laws. But normally? France couldn't arrest them even if it wasn't for the fact that they're executing US government policy, because Americans in America don't generally have to obey French laws. | Yes Providing the attack was otherwise made in accordance with the rules of war, enemy civilian leaders who are directly responsible for the prosecution of the conflict (so, the Minister of Defence, yes, the Minister of Housing, no) are combatants under International Humanitarian Law. | No, if, as you say we put aside the human rights questions surrounding the death penalty itself and assuming that the prisoners had been legitimately charged, convicted and had exhausted their appeals process. Once a person has been convicted, sentenced to death and has exhausted their appeals then the timing of the execution passes from the judicial branch to the executive branch of government. This is why governments can implement and remove moratoriums on executions at their discretion. Doubtless there are administrative rules and logistical issues involved in the actual timing of the execution but if these have all been correctly dealt with then they are essentially held at the pleasure of the person in the government charged with the decision. Was it legal? Probably. Was it ethical? ... | In the US, only crimes that involve death or crimes against the state can be punished with death, see Kennedy v. Louisiana, 554 U.S. 407 (this was a child rape case and execution was held to be unconstitutional). There is a consideration of "proportionality" whereby execution is not an option for all crimes involving death. The court doesn't include or exclude non-death cases, they explicitly kick the can down the road ("We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State"). Therefore, there is no ruling that bars execution for treason, but there is for rape and burning someone's stack of hundreds. This is a list of 2008 pre-Kennedy non-murder "surviving" state capital offenses (most of the cases listed in the article are for rape, which was ruled unconstitutional): Treason (Arkansas, Calif., Colorado, Georgia, Illinois, Louisiana, Mississippi, Missouri, Washington) Aggravated kidnapping (Co., Idaho, Il., Missouri, Mont.) Drug trafficking (Fl., Missouri) Aircraft hijacking (Ga., Mo.) Placing a bomb near a bus terminal (Mo.) Espionage (New Mexico) Aggravated assault by incarcerated, persistent felons, or murderers (Mont.) However, in Washington the death penalty is now unconstititional. The Missouri penalty for treason has been since reduced to a maximum of life imprisonment. On the other hand, Florida still has a "capital drug trafficking" penalty if you import 300+ kg of cocaine, knowing that "the probable result of such importation would be the death of any person" (death does not have to actually result). Here is a list of federal crimes that allow execution, which includes only large-scale drug trafficking, espionage and treason in the non-death crimes. | If Tratatoria has anti-discrimination laws, or provisions in its constitution forbidding discrimination, the Minister's actions might be illegal under them. But if it does not, or if it does not enforce whatever laws it may have, there is no international authority that can enforce any rule against discrimination. People and groups in other countries could denounce such actions as biased and discriminatory, if they chose. There is no legal standard for such announcements. This might bring pressure on Tratatoria. But that would be a diplomatic and political matter, not a legal one. There really is no effective international law on discrimination unless it amounts to genocide, and even then it is essentially a matter of diplomatic pressure or potentially war to enforce regime change, not a true legal process. | From what I can gather, a US citizen could literally commit first-degree murder in another country, and not be held liable in US courts. Yes. From looking at the decision in Kiobel v. Royal Dutch Petroleum Co., it seems a corporation could go so far as to commit genocide in another country and not be held accountable in US courts. Yes. Why is US law set up in this way, and why has nothing been done to change it? Extraterritorality The modern nation-state is part of the Westphalian tradition of sovereignty which takes as a core value that the internal laws of each nation-state are a matter for it and it alone. This is baked into international law as part of the UN charter: "nothing ... shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state." The basic assumption of criminal law is that it is, by default, territorial. If a US national commits a crime in the Ivory Coast, then that is primarily the Ivory Coast's problem to deal with. There are both practical and political reasons why this is a good idea. The practical matters are that law enforcement and the courts in the Ivory Coast have the on-the-ground resources and knowledge to investigate and prosecute the crime and the US doesn't. US police forces can't collect evidence and interview witnesses in the Ivory Coast unless the Ivory Coast allows it. US courts can't subpoena witnesses. On the flip side, foreign jurisdictions don't have to follow the US Constitution when conducting searches and beating up, I mean, interrogating, suspects. That may make a lot of the evidence collected in foreign jurisdictions inadmissible in US courts. The political reasons are the US (and anyone else) should stay the f&^% out of the internal operations of other countries. The treaty of Westphalia ended 30 years of the most brutal warfare in history, which killed an estimated one-third of Europe's population, which was largely fought because the ruler of country X wanted to tell the ruler of country Y what religion they should have. Extraterritorality in US law Constitutional restrictions can limit exterritoriality. First, the statute must be within Congress' power to enact. Second, neither the statute nor its application may violate due process or any other constitutional right (see above). The presumption is that Federal laws only apply within US territory. To be extraterritorial, Congress must make this clear, ideally explicitly, but the courts can find that some laws are implicitly extraterritorial based on their language. Other nation's approach is different. For example, a French citizen is subject to French as well as local law everywhere in the world. |
Can an employer apply one-off pay cuts via forced contributions? Are US employers allowed to unilaterally cut the pay for an employee, specific team or all employees through a one-off measure? Are forced contributions to charity, pay reductions during an economic crisis, fines for not meeting performance goals, and others legally above board? From my limited understanding of US labor law, an employer is free to reduce pay going forward for any reason that isn't covered by specific anti-discrimination laws. And as a company-wide measure applied to future pay this also doesn't seem like it could be construed as an illegal deduction. But I'm not finding a straight answer. This question was inspired by this question about an employer reducing pay to buy the CEO's book and this off-site article about an employer fining people for being late. Can an employer apply what are effectively one-off pay cuts through enforced contributions, fines or other measures? | Can an employer apply one-off pay cuts via forced contributions? No. This type of issues pertains to state law, and many (if not all) jurisdictions in the U.S. have statutes prohibiting forced deductions that are neither ordered by court, nor pursuant to bargaining agreements, nor as required or expressly permitted by law. See, for instance, MCL 408.477 and .478. The case of the CEO's book sounds in clear violation of MCL 408.477(2) since the user who asked on Workplace SE mentions that the employees did not consent to that deduction. Even if an employee consents to the deduction, it is important to discern between (1) his altruistic consent, and (2) his concession for the sake of continuation of employment. Unless the consent is altruistic, the clause(s) allowing for the deduction might be rendered null and enforceable by virtue of Restatement (Second) of Contracts at § 178(1) in relation to the aforementioned statutes. Any form of deductions as a permissible sanction (as fining when the employee gets late to work) would have to be provided in the agreement between employer and employee. Otherwise it is unlawful. | Unfortunately, you are probably not entitled to the redundancy / severance money since you weren't technically ever made redundant / laid off - there was no point in time where you were willing and able to work where they refused you, and I presume you were paid for all time worked. If you're concerned that they only changed their tune because they knew you had a better job already lined up - well, you can call their bluff or just use it as a learning experience. In what jurisdiction do you work? If the US, you could call their bluff, say you'd rather stay and see what they do. You would then keep the option of simply walking away with your stuff in a box any time you felt like it (assuming at-will employment and no contracts that state otherwise). | If everyone hired after date X has a different contract from anyone hired before that date it is not discriminatory. (As long as they do nothing naughty like changing the contract, hiring three black people, changing the contract back). | The US Department of Labor Employer's Guide to Advance Notice of Closings and Layoffs states Can I pay my workers their salary and benefits for 60 days in lieu of notice? Neither the Act nor the regulations recognize the concept of pay in lieu of notice. WARN requires notice, making no provision for any alternative. Failure to give notice does a significant disservice to workers and undermines other services that are part of the purpose of the WARN Act. However, since WARN provides that the maximum employer liability for damages, including back pay and benefits, is for the period of violation up to 60 days, providing your employees with full pay and benefits for the 60-day period effectively precludes any relief. (emphasis mine) So from the Federal perspective, so-called pay in lieu is technically against the WARN act, but no penalty may occur. Note that payment in lieu is not unique to this situation at all. For regulated high-trust industries, such as banking and aviation, pay in lieu is basically required due to the risk of employee sabotage. | Go to know that you live in Washington. Per RCW 49.48.210, They must give you written notice with their evidence. Per RCW 49.48.210, section 3, you can (and should) request a review of the employer findings. Since the employer gave you the money, and you nor they saw any error until now, you may be protected under estoppel (WAC 388-02-0495). In the response letter, I would write something along the lines of " [Company Name] has paid IAW my expected rate and acted correctly when I received my money. I have also spent the money in good faith. Indeed, I still cannot see that any overpayment has actually happened. Please send me exact details why you believe that I have been overpaid, and why you believe that estoppel does not apply. Until this manner has been resolved per RCW 49.48.210, section 3, I request that you continue to pay my wages at normal rate for my time. I do not accept liability for the actions or inactions of [company name] and the claimed overpayment." Get receipt that the employer received the notice. Because it is in review, they don't have the right to garnish your wages. Challenge everything at the review. If something was changed or edited, challenge that. I would open up a new thread if they did that much. Best of luck | It looks like your PTO already met the legal qualifications for the law were met by your PTO policy prior to the law's enactment. The linked material lists the exemption for full time employees. You should have a leave balance in your pay stub (and if not, you should talk to your company's payroll department to find out your balance(s)) and can use leave that you have for sick leave (they just aren't calling it sick leave it). Likely your leave is valid for sick or vacation leave combined or you have two pools (sick and vacation) that you can use any leave pool for sick days (typically, sick leave will be paid out on departure from the company and has no caps on banking it (if you have X amount of hours per year and don't take sick days at all, you can add that to the sick leave you get next year) so you can retire early by using the sick leave to cover the time you would have remaining to work before retirement benefits can take over. Vacation or Annual may also payout but has a cap on banking (often this bank will be the days per year value of the year. If in year one you take no vacation days, you can still have X vacation days banked in addition to year 2's days, but you need to use that same amount by the end of year two or you will lose the hours banked in year one. Basically amounts to longer Christmas Break for a lot of people). | The only reason you couldn't take all the profits is if your business were a C-Corp. I don't know of any reason a single-owner LLC would elect to be taxed as a C-Corp. Multi-owner LLCs and LLPs are, for federal tax purposes, either an S-Corp or a C-Corp. When possible they can and should generally elect to be taxed as an S-Corp. IRS Pub 2553 lists the criteria for S-Corp election. (Employees have nothing to do with the question.) For tax purposes partnerships, sole proprietorships, and S-Corps are "pass-through" entities that are not expected to pay a corporate tax. In effect, whether you like it or not, you do pay yourself all of the profits each fiscal year, and they are taxed accordingly. | If you could successfully prove constructive dismissal (you probably could) then you have been terminated and would be entitled to the pro-rata bonus. Of course, if the company is not in a financial position to pay your wages, it probably can't pay the bonus either. |
Who owns the washing machine? This scenario is based on a real life event but is a purely hypothetical question (because this isn't remotely worth going to court or even arguing over). The situation seems surprisingly complicated, so it made me curious what, if anything, the "legal" answer may be. Consider the following scenario: Tenant rents out a house which comes with a washer+dryer. Lease specifically stipulates that Tenant is welcome to use washer/dryer but that Owner is not responsible for fixing them if they break. Tenant moves in and discovers that the washing machine is, in fact, broken (it never worked even before Tenant moved in) Conveniently, Owner recently purchased the property and has a seller's warranty available, which will cover repairs on the appliances (including washer/dryer) In an attempt to be helpful, Owner calls the company that provides the warranty. The washer is declared dead and a new washing machine is provided by said company. The warranty requires a deductible for this replacement. Since Owner declared that they would not be responsible for fixing the washer/dryer, they refuse to pay the deductible for the visit. Tenant pays for the deductible on Owner's Warranty. If it matters, the deductible is less than the cost of the replacement washing machine. In short, the owner stated they would not pay for repairs or replacement on washer/dryer. As stated in the lease, when the washer broke the owner did not pay anything for the new washing machine - the tenant did. However, the owner's warranty was still used to acquire the new washing machine. Therefore, who owns the washing machine? | The house Owner owns the washing machine. Paying the deductible on Owner's warranty has nothing to do with (changing of) the ownership of it. Effectively, the tenant has incurred expenses just for arranging the replacement. Lease specifically stipulates that Tenant is welcome to use washer/dryer but that Owner is not responsible for fixing them if they break. Note that depending on the jurisdiction this term may be unenforceable: tenancy laws often stipulate that landlords have to keep things in working order at their expense (unless things break because tenants misuse/abuse them). In this case the tenant could claim the deductible he paid. But again, this would not affect the ownership of the washing machine in any way. | The owner of IP owns the abstract thing that is protected by law (the intellectual property), and not the concrete product that relied on (illegally) using that abstraction. The person who made the thing, or to whom he sold it, owns the object. If you buy a disk with pirated or non-pirated software, you own the disk, and if you bought it legally, you probably bought a license to use the software. Using "pirated" to refer to the class of things legally manufactured (not stolen, not using stolen components) but in violation of IP law, pirated goods might be subject to seizure by the government (it would be slated for destruction), but the goods would not be the subject of a prosecution for theft. While infringement of IP rights is often called "theft", it doesn't have all of the elements of theft: you do not deprive the owner of the thing that they own. | My guess is the answer to this question is going to be in your lease. You likely signed a lease that agreed that you would pay accept this practice and spelled out what ever rights you have to challenge the billings. My guess is they are as limited as the courts will allow in Florida. And the only way to ensure access to those records would be to get the court to compel they provide you with the records. Perusal of the Water codes in Florida does not appear to directly engage this practice(I could have missed it). However it appears that there is code regulating the management of electrical limits the billing to no more than the actual costs to the customer of record(probably your real estate management company.) According the the NCSL (This refers to electrical service. I am assuming there is similar language used elsewhere for plumbing, or that the intent of the law is uniformity of these codes in all utility billings. Where individual metering is not required and master metering is used in lieu thereof, reasonable apportionment methods, including submetering may be used by the customer of record or the owner of such facility solely for the purpose of allocating the cost of the electricity billed by the utility. The term “cost” as used herein means only those charges specifically authorized by the electric utility's tariff, including but not limited to the customer, energy, demand, fuel, conservation, capacity and environmental charges made by the electric utility plus applicable taxes and fees to the customer of record responsible for the master meter payments. The term does not include late payment charges, returned check charges, the cost of the customer-owned distribution system behind the master meter, the customer of record's cost of billing the individual units, and other such costs. Any fees or charges collected by a customer of record for electricity billed to the customer's account by the utility, whether based on the use of submetering or any other allocation method, shall be determined in a manner which reimburses the customer of record for no more than the customer's actual cost of electricity. Each utility shall develop a standard policy governing the provisions of submetering as provided for herein. Such policy shall be filed by each utility as part of its tariffs. The policy shall have uniform application and shall be nondiscriminatory (Fla. Administrative Code §25-6.049). Now here is where the 3rd party comes in. The 3rd party is the one levying fees for the management on your landlord. Granted if you follow the strings ill bet you find that the billing company is owned by the same company that owns your rental management firm. So your landlord can collect no more than what it costs to provide you with the service, but part of providing the service is employing this 3rd party utility management firm. | In a normal rental property, the tenant is in a contract with the telecommunications provider and landlord has no business listening to the communication. When the landlord does provide internet access for tenants, he/she gets into a complicated legal position. The owner of the internet connection is generally liable for things like copyright violations, hate speech, etc. coming from that connection. This law predates open-access wifi connections and even the internet. Legislation and legal precedent are only slowly catching up with that new reality. | 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. | 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. | As the article suggests, this is called adverse possession. This seems to have occurred because the original owner did not make use of the property, nor monitored for adverse possession. The reason this method of acquiring title exists is for a number of reasons, including the prudent use of land, as well as being analogous to a limitation on the time period during which a claim can be brought. It would be reasonably easily avoided if the original owner had made use of the property, or monitored it and took action to eject the adverse possessor prior to their fulfilment of the necessary conditions. | You are responsible vis-a-vis the landlord. If the obligations are not current, then the landlord has a right to terminate the primary lease, and your sublease is derivative of the primary lease, so you would be evicted. You, in turn, would have a right to sue the tenant of the original lease from whom you subleased, for any funds you had to expend to bring the lease current due to charged preceding your lease term. |
Are the abbreviations "IANAL" and "TINLA" legally valid substitutes for their full forms? tl;dr: I've often seen the disclaimer "I am not a lawyer" abbreviated as "IANAL". And I've often seen the disclaimer "this is not legal advice" abbreviated as "TINLA". Is it legally just as effective to use the abbreviations as disclaimers by themselves, instead of using their full form disclaimers? Or are people wasting space and time by adding "IANAL" or "TINLA" to their writing? too long; don't read: There seems to be plenty of debate about whether such disclaimers (either in full form or abbreviated) are even required at all, for example, in these questions. (FWIW, I think equivalent disclaimers apply site-wide within Law Stack Exchange, as stated in the Tour and Help Center.) But I'm probably using the wrong terminology, because everything I find in Internet searches pertains to style/grammar of abbreviation usage generally, or to using vs. avoiding these specific disclaimers generally (regardless of form), whereas I'm wondering about the validity of the abbreviations specifically, as valid legal substitutes for their full forms. In other words, if someone writes just "IANAL" or "TINLA"... Does it have the same legal effect as if they had written "I am not a lawyer" or "this is not legal advice" (respectively)? Or... Is it legally equivalent to having omitted the disclaimer entirely, i.e. effectively useless? Not sure if this rabbit hole is relevant, but thinking about it some more, I wonder if it might boil down to questions of a more general nature: (A) Within a self-contained written work, does an abbreviation have the same legal effect as its full form (even in the complete absence of the full form or any other explicit definition of the abbreviation from the written work)? (B) Are there specific requirements regarding which abbreviations qualify to legally represent which specific full forms? At the time of this writing, Wikipedia's List of legal abbreviations states that: It is common practice in legal documents to cite to [sic?] other publications by using standard abbreviations for the title of each source. Abbreviations may also be found for common words or legal phrases. Such citations and abbreviations are found in court decisions, statutes, regulations, journal articles, books, and other documents [emphasis added]. Though these statements are currently unsourced[citation needed] and may not represent a worldwide view of the subject, they seem to suggest that (A) might be true. Is there a formal legal definition for this somewhere? For (B), definitions for "IANAL" and "TINLA" seem to be absent from common legal definitions at this time, for example, Wikipedia's list and some of the online resources linked there: ALLACRONYMS Legal Abbreviations Cardiff University's Index to Legal Abbreviations The Law Librarians' Society of Washington, D.C.'s Common Abbreviations and Legal Citation Examples for Selected Federal Government Documents Yet definitions for "IANAL" seem to be commonly found online, and similarly for "TINLA" (perhaps less-so, but still common) – so common as to be entirely unambiguous, by my assessment. So is this sufficient for them to qualify as valid legal abbreviations for their respective full form disclaimers of "I am not a lawyer" and "this is not legal advice"? | Stating "This is not blue" or "TINB" on something that is self-evidently blue is of no legal effect Legal advice has the following characteristics: Requires legal knowledge, skill, education and judgment Applies specific law to a particular set of circumstances Affects someone's legal rights or responsibilities Creates rights and responsibilities in the advice-giver If the advice you give meets these criteria then it is legal advice. However, if you are clear that you are not a lawyer and that you are not giving legal advice then this undermines the characteristics above. That is, what would be legal advice without such a disclaimer may lose that characteristic if the disclaimer is genuinely given in the particular circumstances. Context matters: "this is not legal advice (wink, wink)" is not a disclaimer and doesn't turn legal advice into not legal advice. Similarly, the disclaimer must be genuinely understood by the recipient so that they are adequately warned to do their own research or seek actual legal advice before taking the course of action outlined. Using an abbreviation is more likely to be misunderstood but, again, context matters. In the context of this particular site (see various meta questions), which goes out of its way to explain that this is not legal advice the disclaimer is hardly necessary and the abbreviation would be fine. More generally Communication is always under tension between clarity and brevity. It should be detailed enough that it can be understood by its audience but not so long that its audience switches off. Abbreviations, acronyms, symbols and jargon (all of which I’m going to abbreviate to abbreviations) sacrifice clarity for brevity. Depending on the context and the target audience an abbreviation may or may not need to be spelled out in full. In formal writing, it is good practice to spell them out when first used and put the abbreviated form in parenthesis immediately afterward. Alternatively, scientific and engineering reports may use a glossary at the front or back to list them all in one place. It is extremely good practice to explain these abbreviations in any document that is intended to have direct legal consequences like legislation or a contract. Here clarity is waaaay more important than brevity. In a similar vein, it is quite common for such documents to explicitly define real words that already exist to narrow or broaden their scope in the interests of clarity. However, sufficiently common abbreviations may not be spelled out even in these. For example, USA, UN, UK, and EU are in such common usage that they would not need to be spelled out. Similarly, state or province abbreviations would not need explanation within their own country - while an American should know what IA means they might struggle with NSW. Similarly, some contractions may be so common within a profession or industry that no explanation is needed. For example, no scientist or engineer would need to be told what Pa, N, and m mean. In more informal settings (like texts or WhatsApp chats) spelling them out would make you look like a pompous dickhead. If it's sufficiently clear that a reasonable person in the position of the recipient would understand it then legal consequences can flow from it. Ultimately the decision of it it was clear would be a matter for whoever was deciding any dispute about it. | (Since this is looking rather close to looking for legal advice: "I'm not a lawyer, this is not legal advice, don't sue my pants off".) The relevant section of the license is this (bolding mine): You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in con-nection with the exchange of copyrighted works. Therefore, if you are using the content licensed under the BY-NC-SA primarily to make money, that is a breach of the license. Any more advice past that is wading seriously into legal advice. | We could start with what the statutes say (HSC 102425) (a) The certificate of live birth for a live birth occurring on or after January 1, 2016, shall contain those items necessary to establish the fact of the birth and shall contain only the following information; (1) Full name and sex of the child. It says nothing about the form of that name. Therefore, any prohibition of the letter Æ (or æ) etc. would have to come from the administrative interpretation of California Department of Public Health, Vital Records. There is a long handbook, which on p. 112 states the rule regarding child names. The rules note that The form must be completed using the 26 alphabetical characters of the English language with appropriate punctuation, if necessary. No pictographs (☺), ideograms (⇑), diacritical marks (è, ñ, ē, ç), or extraneous entries are allowed. So the short answer is, unless you feel like making a court case out of the matter and you have a lot of money, this name will not be allowed. The rule might be challenged in court as exceeding statutory authority, and might well be deemed to discriminate w.r.t. race and national origin. The rule could be defended on grounds of necessity, if we presume that the department is incapable of recording information other than the 26 letters and "appropriate punctuation" (undefined, presumably only apostrophe). It's not that in principle Unicode doesn't exist, it's that their system may not be capable of dealing with it (numerous problems would arise from the non-unique mapping from visual representation to Unicode number). There does not seem to be a court ruling on the matter. | That's the entire point of a summary proceeding. You're allegedly found committing an offence, that isn't worth the court's time to hear but nevertheless requires some penalty. The only way to "unambiguously deny liability" is by requesting a hearing and denying liability in the notice of this. The court doesn't care what you say to everybody else, it cares what you say on its record. The reasoning is, if you're so sure you're not guilty of an offence, why haven't you sought to argue this in court? And if you weren't committing the offence, why did the informant serve the infringement notice in the first place? The act is not silent at all on this. If you don't request the hearing and serve such notice by the date required, you are liable to enforcement action - whether you deny liability out of court is irrelevant. | One of the principles of contract law is that the offer and acceptance are evaluated based on the objectively ascertainable intentions as judged by a reasonable person. On the facts that you have provided - even if your friend claims that they filled it out wrong, there is no reason for someone to objectively think so, particularly given the fact that they went to the trouble of writing the information in. However, this will depend on what kind of legally binding document this is. If it is, in fact, a contract, then the employer must accept it before it becomes legally binding, and they must actually communicate this acceptance to your friend (the offeror). If this is a policy document, then it is only legally binding if another contract has said that it is legally binding - generally, (smart) employers will include a clause in their employment contract stating that you are to adhere to policies but that those policies do not form part of the contract. If that is the case, then your friend is legally bound by the terms of the policy and will breach their employment contract if they do not adhere to this policy. This is unlikely to be an issue of contract law in and of itself - your friend cannot unilaterally bind their employer to terms as he sees fit. More information - including the nature of the document and other agreements that were made - would be required to provide more useful information (and that's what you would give to a lawyer). | "Mathematician" is not a legally regulated term, so there are no laws that would prohibit me from calling myself a mathematician (I am not one). I do know a tiny bit about number theory, set theory, formal language theory and logic, but mostly I know about African languages. If I have no shame, I can legally call myself a mathematician. My employing institution has no policy that regulates self-appellation. In fact it is very common for people to self-mislabel in the fashion that you describe. Many people claim to be "linguists" when they are actually "English teachers" or are "translators". However, if I were to claim to have a PhD from the Department of Mathematics at Yale University, that would be a false statement of fact, and potentially internally-actionable by the institution. My actual mathematician colleagues cannot sue me for damages (they have not been objectively harmed), but an institution could sack me for material misrepresentation of credentials (for which reason they might actually demand a copy of said credential). It is possible that a materially false statement of credential could be actionable as fraud, though I can't come up with a plausible scenario at the moment. | See Attorney at law, is there any other kind? As expatiated on English Stack Exchange, Attorney-At-Law can be distinguished from Attorney-In-Fact. I quote from the University of New Mexico's Judicial Education Center Attorney-at-Law – A licensed advocate or counsel authorized by the courts to prepare, manage and try cases in court, to prepare legal documents, or otherwise represent the interests of citizens. Attorney-in-Fact - A private person (who is not necessarily a lawyer) authorized by another to act in his/her place, either for some particular purpose, as to do a specified act; or for the transaction of business in general, not of legal character. This authority is conferred by an instrument in writing, called a letter of attorney, or more commonly a power of attorney. Grammarphobia dated August 23 2012 answers your question. Q: Why is a lawyer called an “attorney at law” and not an “attorney of law”? Doesn’t “at” refer to a place? An MD is a “doctor of medicine” not a “doctor at medicine.” A: In American English, the terms “lawyer,” “attorney,” and “attorney at law” are pretty much interchangeable, according to Garner’s Dictionary of Legal Usage (3rd ed.). All three refer to “a licensed lawyer.” The legal dictionary, written by Bryan A. Garner, says “lawyer” and “attorney,” the most common of these terms in the US, “are not generally distinguished even by members of the profession.” However, these three terms have had different meanings in different places and times. In England, for example, an attorney used to practice in common-law courts and a solicitor in equity courts. But the term “attorney” developed “an unpleasant smell about it,” Garner writes, and “in the nineteenth century it was supplanted in England by solicitor.” (As the Oxford English Dictionary explains, the word “attorney” was often used reproachfully to mean something like “knave or swindler.”) In the US, on the other hand, the term “attorney” has become a somewhat tony (or, as Garner puts it, more formal and less disparaging) version of “lawyer,” while “solicitor” has taken on an offensive whiff, as in signs like “No Peddlers or Solicitors.” Why, you ask, is an attorney “at” law rather than “of” or “in” law? Doesn’t “at” refer to a place? Well, all three prepositions were used in the past, according to published references in the OED, but they referred to the place where the attorney practiced, not to the practice of law itself. The Oxford editors say “attorney-at-law” (they hyphenate the term) originally referred to a “professional and properly-qualified legal agent practising in the courts of Common Law (as a solicitor practised in the courts of Equity).” Interestingly, the earliest OED citation for “attorney at law,” from William Blackstone’s Commentaries on the Laws of England (1768), refers to lawyers at admiralty and ecclesiastical courts, not courts of common law: “An attorney at law answers to the procurator, or proctor, of the civilians and canonists.” (A procurator, or proctor, used to be a legal representative in English admiralty or ecclesiastical courts.) Why, you might wonder, has the term “attorney at law” survived when “attorney” and “lawyer” can do the job just as well with two fewer words? Well, we could be cynical and say that the kind of lawyer who feels it’s classy to be called an “attorney” would probably feel it’s even classier to be called an “attorney at law.” But there’s a more respectable reason for the survival of the longer term. It distinguishes an “attorney at law” (a licensed lawyer) from an “attorney in fact” (someone with a power of attorney to act for another). In fact, when the word “attorney” entered English in the 1300s (borrowed from Old French), it referred to someone “appointed or ordained to act for another; an agent, deputy, commissioner,” according to the OED. Here’s an example from Shakespeare’s The Comedy of Errors (circa 1594): I will attend my husband, be his nurse, Diet his sickness, for it is my office, And will have no attorney but myself; And therefore let me have him home with me. By the 1400s, the word “attorney” was being used to mean a lawyer practicing in the common-law courts in England. But around the same time it took on its negative sense. Here’s a later example from Alexander Pope’s essay Of the Use of Riches (1733): “Vile Attornies, now an useless race.” And here’s one from The Life of Samuel Johnson (1791), by James Boswell: “Johnson observed, that ‘he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney.’ ” The word “lawyer,” which entered English around the same time as “attorney,” has roots in the Old English word for law, lagu. From the beginning, according to the OED, it meant what it does now: “One versed in the law; a member of the legal profession.” We’ll end with this proverb from The Arte of Rhetorique (1553), by Thomas Wilson: “The lawyer never dieth a begger. The lawyer can never want a livyng till the yearth want men.” | I've retracted and replaced my previous answer. It is a citation to legal authority. It is probably a reference to the book "Hale, The History of the Pleas of the Crown Hale PC" (originally published 1736 with later editions also printed) (see 4.2.3) with Hale abbreviated "Hal.", "pl." being an abbreviation for "plea" (see 4.2.2) and "cr." being an abbreviation for "crown". Standard citation form is to spell it out, but if it is cited repeatedly later instances might be abbreviated. The link is to a scanned version of the out of copyright historical legal treatise on criminal procedure and substantive criminal law. Wikipedia also discusses it as does a law library Wiki. |
Would continuing asking one to provide rationale violate freedom of thought? From the psychological aspect, there are many people with implicit attitude, prejudice, cognitive distortion, etc. The common factor is that they are unwilling to consider the possibility that their belief may be wrong, and if someone isn't convinced of what they say, they will either rage or dismiss. The only way to stop them is, as far as I know, via social pressure. For illustration, please watch the movie 12 Angry Men. Now, would doing such a thing violate freedom of thought? If they say "it's my right to not listen to you", then would it be wrong to keep asking them to provide logical arguments, regarding their explicit statement to not continuing the conversation? From Universal Declaration of Human Rights | United Nations: Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. The definitions of harassment and stalking, as in my understanding, involve the disrespect of the actor to the receiver's well-being (or happiness, or quality of life). However, in this case, the opposite is true: because the actor respects the receiver's well-being, therefore they have to do this. If they don't do this, then they are in fact not respect the receiver's well-being. Otherwise they wouldn't need to do this at all. This photo can help illustrate this. The anti-mask protest is stopped by medical staffs. | I do not believe this would be a violation of freedom of thought. The person being asked is free to leave, and free not to answer despite the repeated requests for an answer. Extended following and asking might run afoul of stalking/harassment laws, but that's jurisdiction-dependent and probably not a human rights violation. | I believe there are courts that have affirmed convictions for obstructing official business or something along those lines, but the general consensus seems to be that conduct like this is not a crime, or that it cannot be criminalized without violating the First Amendment. The most recent decision on point came just a few weeks ago. In Friend v. Gasparino, No. 20-3644 (2d Cir. Feb. 27, 2023), a man sued police for arresting him because he had set up a sign saying "Cops Ahead" two blocks away from where they were running an operation to enforce distracted-driving laws. The trial court dismissed the case, holding (1) that the sign was not protected by the First Amendment because it was "of little, if any, public concern"; and (2) that even if it was protected, the officer's conduct in arresting him satisfied strict scrutiny because if police wanted to prevent distracted driving, there was no less restrictive alternative to arresting the plaintiff. But the Second Circuit reversed, holding (1) that speech remains protected even if it is not a matter of public concern; and (2) that there was no evidence that limiting the plaintiff's speech was necessary to permit the state to write citations and enforce the law, even if it would have been helpful. | From Roberts' dissenting opinion: Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. (The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.) In my opinion, this quote speaks as much to the second question as the first. Assume (hypothetically) for a moment that question one was not at issue. If a state defined marriage as only between opposite sexes, and the right to make a state change its definition of marriage is not in the Supreme Court's purview (in our hypo), then the state is as free to reject the validity of marriages abhorrent to its laws, performed elsewhere, as it is to deny the right to marry under its theory of marriage. | You do have freedom of conscience but you do not have a blanket right to refuse work you were ordered to perform. You have to perform work you were ordered to perform. If you refuse, you can get an Abmahnung (disciplinary letter). A second Abmahmung would be grounds for firing. The Abmahnung is invalid if the work you refused would have been unreasonable – but you'd have to litigate this. Your freedom of conscience does affect what work you can be reasonably asked to perform. You have the burden of proof to show that the work would have been unreasonable. You are required to alert the employer in advance. If you took a job where you could reasonably have been expected to know that it might come into conflict with your conscience, you should have mentioned this during the interview. Taking the job anyway effectively waives your freedom of conscience. Of course this doesn't apply if your job changed after you were hired. If you successfully claim freedom of conscience, you are not entitled for pay for the work that you didn't perform. Here, your claim of freedom of conscience does not seem to stand on very strong footing. It is normal for web development to include analytics, ads, and social integrations (what you seem to call “trackers”). This is a bit like taking a job as a nurse and claiming “my conscience doesn't allow me to perform blood transfusions” or taking a job at a defense contractor and claiming “my conscience doesn't allow me to work on weapons”. Your personal conscience may be more strict than applicable laws, but don't forget that there are laws. You might reasonably see it as your professional obligation to alert stakeholders of their compliance obligations. You have a stronger case for refusing work than the difficult to prove “freedom of conscience” if the work you are asked to perform would be illegal. You'd have a stronger argument for exercising your freedom of conscience if your work would endanger users that live under oppressive governments. | What discrimination? As explained in Conflict between a religious belief that accounts for the existence of transgender people vs. one that doesn't the Constitutional protection of the Free Exercise Clause applies to the exercise of a deeply held belief (religious or not). So, let's accept that a person believes that certain sexual practices or gender identity is morally repugnant for whatever reason and that belief triggers the Constitutional protections. That means, that the person cannot be forced to engage in those sexual practices or adopt a different gender identity. It does not mean that they have a licence to discriminate against people who do in a work or public environment - they can, of course, choose to avoid such people in their private life. Alternatively, if the person believes that they are required by their faith to discriminate on the basis of those characteristics then such a belief does not get Constitutional protection as it is now affecting the rights of others. In the same way that someone who believed in human sacrifice would not get Constitutional protection. | Your belief in the truth of a statement is of only limited value in a defamation suit. Saying that a person is incompetent in that person's profession can certainly be defamation, and may even be defamation per se, depending on the jurisdiction. If the person sues and the speaker asserts truth as a defense, the speaker may have to prove that the statement is true. Why would one need to say anything at all in such a situation? Whether such a statement was a factual statement or a statement of opinion would depend very much on the detailed circumstances. But it is at least possible that a suit might be filed and won on this fact pattern. See this answer for more on defamation under US law. | united-states Generally, a witness cannot object to a question on the grounds that it fails to conform to a rule of evidence (e.g. hearsay). A witness can refuse to testify on a matter either due to the 5th Amendment privilege against self-incrimination, or on the grounds that some other privilege (e.g. attorney-client, clergy confession, spousal) applies. A witness can also say that they don't understand the question as phrased (either because it is complicated or because it contains terminology or concepts that the witness doesn't understand), or that the witness didn't hear the question, or that the witness forgot what the question was while the lawyers and judges were discussing whether it could be asked. This often results in the question being restated or rephrased. A witness may also answer a question by stating that there is no answer to the question as it is based upon a false premise (e.g. "on which day of the week did you beat your wife?"). And, if true, a witness can properly answer that they don't know the answer, either because they never knew or because they don't currently recall the answer. | The EEOC web site has much information on this topic including summaries of close cases that have been decided in court. To determine whether allowing or continuing to permit an employee to pray, proselytize, or engage in other forms of religiously oriented expression in the workplace would pose an undue hardship, employers should consider the potential disruption, if any, that will be posed by permitting this expression of religious belief.[196] As explained below, relevant considerations may include the effect such expression has had, or can reasonably be expected to have, if permitted to continue, on co-workers, customers, or business operations. a. Effect on Workplace Rights of Co-Workers Expression can create undue hardship if it disrupts the work of other employees or constitutes – or threatens to constitute – unlawful harassment. Since an employer has a duty under Title VII to protect employees from religious harassment, it would be an undue hardship to accommodate such expression. As explained in § III-A-2-b of this document, religious expression directed toward co-workers might constitute harassment in some situations, for example where it is facially abusive (i.e., demeans people of other religions), or where, even if not abusive, it persists even though the co-workers to whom it is directed have made clear that it is unwelcome. It is necessary to make a case-by-case determination regarding whether the effect on co-workers actually is an undue hardship. However, this does not require waiting until the alleged harassment has become severe or pervasive.[197] As with harassment on any basis, it is permitted and advisable for employers to take action to stop alleged harassment before it becomes severe or pervasive, because while isolated incidents of harassment generally do not violate federal law, a pattern of such incidents may be unlawful.[198] |
Incident with another cyclist, repair costs too expensive Past week I had a bike incident with another cyclist. The rider in front of me slowed down and when I looked back to confirm no one was behind, he stopped and I hit him. Totally my fault, and no one get hurt. Typical mistake. I gave my phone number to the other person and ask him if he wants to go to a bike shop at the moment but he refuse because it was late for him. Anyway, he contact me the day after asking for 370 euros for the repairs. I consider this amount of money ridiculous since the damage is only in the gear drive that is twisted (not broken). At the moment I had some shots of the damage and a video of the person riding after with no problem apparently. My question is if I should ask the person to take the bike to a shop repair that I trust and get a new budget for this? Or even buy the parts and install it by myself. This is in Spain and I am not covered by insurance for this incident. The person is very reluctant to detail the repairing. I told that I accept the costs and the repair shop but I need a detailed invoice. Somehow the pictures I took are helpful to clarify how damaged it was. This was between two Bicycles. As additional info, we were not riding together. | Great job taking the photo at the time, it could end up saving you some money. I can see an Acera rear derailleur(inexpensive), a seven speed freewheel (cheap), a rusty chain (poorly maintained), a bent derailleur hanger (possible damage) and a rear derailleur cable which is doing something slightly funny. Focusing on the seven speed freewheel, we can tell that this is a budget bike. I would expect you could replace the whole bike for 370 euros. Labour charges will make up a large portion of a repair bill, but it does seem like an inflated price. You absolutely must insist on transparency upfront from the bike owner. If they are not prepared to tell you what they want to spend your proposed 370 euros on, then I am confident they are trying to rip you off. If they tell you what the money will be spent on and you are struggling to decide if it is reasonable, please ask us about it with the updated info, before you pay any money at all. Also seek some regional legal input into what your obligations and time frame need to be (we aren't lawyers!). If you meet your legal obligations and do so in a timely manner, then you are free to be as generous or not as you like in returning the bike to the condition it was in before the incident. As for the original questions (sorry). I would suggest having the quote for the repairs approved by someone you trust in advance, yes perhaps a third party bike shop you trust. I would suggest not doing the repair work yourself. Even though that could be cheaper, you don't want any follow-ups from the other person. So if the repair is done at the other person's choice of repair shop, with your prior agreement about the cost and extent of the work, then they cannot follow up and ask you for more money after the fact. | You should file a complaint with the police. If you complain to the police then they might do something. If you don't complain then they certainly won't. Are food trucks licensed? You might try complaining to the license authority. However go to the police first because the licence authority are unlikely to do anything without a police complaint. Even being just another statistic helps increase the pressure for action on the wider issue of racism in society. If all else fails you can just post the incident on YouTube and see what happens. Its an unreliable method of enforcement and can backfire, but it has been known for international embarrassment to kick reluctant authorities into action. | The statement ABCGym refuses to refund payment it accepted for membership to a gym ABCGym closed. ABCGym has substituted an inferior-to-me option. could certainly be considered as defamatory. However, in the US and many other countries, truth would be a valid defense, if the person making the statement could prove that the statement is true. I don't see how it could be construed as solicitation. If worn on a shirt into ABC, the management could surely ask the wearer to remove it. If that request is refused, they could ask the wearer to leave. If the wearer has a valid membership, then it would depend on the exact terms of the membership contract, and provisions of local law, whether ABC could insist that the wearer leave, or have the wearer arrested for trespass should the wearer refuse. Any regulations incorporated by reference into the contract would also matter. At least in the US. walking back and forth on a public sidewalk just outside ABC's door, wearing such a shirt or carrying a classic picket sign with such a message would be pretty clearly legal, provided that others are not unduly obstructed, and no valid local ordinance is violated. In the wear-the-shirt-inside case, if the wearer refuses to remove the shirt or leave, the management would probably call law enforcement. LE will not want to decide whether wearer has the legal right to remain in the club wearing the shirt. They will probably ask the wearer to leave. If the wearer protests that s/he has a valid membership and thus a contractual right to stay, who knows what they would do. If they still ask the wearer to leave, the wearer would be wise to comply and perhaps take legal action to enforce his or her membership rights, which will depend on the contract details as mentioned above. A lawyer would probably be very helpful if the wearer wants to take that route. The wearer would be wise to remain polite and appear calm, not yelling or using epithets. | 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). | The Consumer Rights Act gives you an initial 30 days to reject it, if it is faulty, and claim a full refund from the dealer that sold it to you. After that time your rights are pretty strong for at least 6 months. It is not completely clear to me what the exceptions are, but if it is the timing chain then there can be no case that this is "wear and tear" as they last something like 80,000 miles or 10 years. Which and Citizen Advice have tools to determine your rights. | The apportionment of fault will be highly case specific, based on ordinary principles of negligence. In one example, the fault was apportioned with 60% of the fault to the late left turner and 40% of the fault to the driver advancing imprudently into the intersection on a green light. See Pierce v. ING Insurance, 2006 NSSM 31 (my annotations and emphasis): [11] I believe that Mr. Pierce [the left-turning driver] was late in entering this intersection. I do not accept that he could not have stopped on the amber which he asserts. However, I am not prepared to find that he is solely responsible at law for the collision. [12] As stated above, I am unable to conclude with precise exactitude which signal light was on when Mr. Pierce [the left-turning driver] entered the intersection. I can conclude that the amber light had ceased and the green light for Mr. Williams [the through driver] had turned on at some point prior to the collision. The intersection is a well known intersection and given Mr. MacKinnon’s evidence of the relative speed of Mr. Pierce’s vehicle and what I understand to be the distances involved, I cannot accept that the signal light was green and turned to amber as Mr. Pierce entered the intersection. [13] On the other hand I am struck by two inescapable facts. First, the fact that Mr. MacKinnon who was stopped next to Mr. Williams did not proceed through the intersection because he knew it would not be safe to do so. While to some extent I take Mr. Boyte’s point that Mr. MacKinnon was, because of his experience with the intersection “hyper aware” to the prospect of drivers being late, I cannot entirely dismiss the fact that he obviously exercised prudence in not proceeding. The fact that Mr. Williams did not see Mr. Pierce’s vehicle is not an answer. In fact, just to the opposite in my view. [14] In my opinion, there is clear a duty on drivers stopped at an intersection to ascertain that the intersection is clear before proceeding once a light turns from red to green. Had Mr. Williams discharged this duty, the collision could well have been avoided. Your scenario is even more stark—not just a single late left turner, but an entire line of late left turners, readily apparent as an obstacle to safe advance. I would not be surprised if a judge were to attribute even more than 40% fault to the driver entering on the green. The Court of Appeal for British Columbia has even said (Pirie v. Skantz, 2016 BCCA 70, para. 14): ... where a through driver ... should have become aware of the left-turning driver’s own disregard of the law in circumstances that afforded him a sufficient opportunity to avoid the accident through the exercise of reasonable care, the through driver may be found wholly or primarily at fault for the accident. | You claim for the damage you suffered If you owe me $130 for unpaid wages, I sue for $130. If you wrote off my $130,000 car I sue for $130,000. If you burnt down my $130 million building, I sue for $130 million. If you did (in my estimate) $1.3 billion damage to my reputation I sue for $1.3 billion. Of course, I will have to prove that the damage was suffered - some damages are easier to prove than others. Whether the defendant can pay it is irrelevant to the suit. Of course, if there is a judgement that is more than the defendant’s net worth then any excess is “wasted”. At least commercially. However, commercial return is only one factor involved in deciding to launch a suit. Others include: seeking a precedent making a statement of principle vengeance | Barring any specific statute the relevant law is the tort of negligence. To succeed Alice must prove Bob: had a duty to Alice, breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person), the negligent conduct was, in law, the cause of the harm to Alice, and Alice was, in fact, harmed or damaged. She will probably succeed on 1, 3 and 4 where she will struggle is with 2. It seems that Bob did everything a reasonable person could do to avoid the accident. The only possible hope is that not knowing that bridges freeze first might be something a qualified NZ driver should know and that he breached his duty by not knowing if that is something the judge considers reasonable. The traffic warning is irrelevant and untested (and untestable) hearsay and should be excluded from evidence. |
Exploiting a bug in bitcoin is unethical, but is it illegal? Suppose I found a bug in bitcoin or any other cryptocurrency that allows me to create as many coins as I want. What would be the legal implications in jurisdictions like: USA Europe (UK, Germany, France) Asia (China, India, Russia) | Any answer is somewhat speculative, because there are no significant legal precedents. That said, you are probably not in breach of counterfeiting laws, as they typically protect physical currencies. However, due to the way that laws are written, their scope may be somewhat fuzzy in areas that were not foreseen, so you may find that a law unintentionally does cover your act. However, even if the act would fall under the law as written, jurisdiction remains an issue. Where would this counterfeiting happen, legally? Again, as this was not foreseen by lawmakers, it's possible that you may fall under foreign jurisdictions, e.g. because you spend the fake BitCoin and the the recipient lives in a country that assumes jurisdiction because their citizen was defrauded. | someone could ... mistakenly assume that by playing the game he can win 100 gold coins aging 2500+ years. Yes someone could, if they were an idiot, however, that is not the legal criteria. The legal criteria is if a reasonable person would. | 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. | Cheating in video games is not against the law. (If it's not for profit) IANAL The legality of cheating in video games has already been challenged in a court of law. You see, Nintendo didn't want people to cheat. Fearing it would lower the financial value of their games if you can beat them in just a few minutes. It was argued in court that a video game is no different than a book. If you want to read the end of the book, skip to your favorite chapter or skim quickly through a boring part you can. The conclusion is the game is yours to enjoy in anyway you want. Nobody can tell you how to play your game. There's an interesting and short documentary about the legal history of cheating in video games by the gaming historian. Also it doesn't matter what the TOS says. TOS is not legally binding Good news: another federal judge has ruled that violating a website terms of service is not a crime. But there's bad news, too — the court also found that bypassing technical or code-based barriers intended to limit access to or uses of a website may violate California's computer crime law. However, I've read you can be sued for breach of contract, if the site can prove any damages based on your cheating. I found that answer here on Law.SE and they didn't provide a source so I can't verify if it's true. | 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. | It infringes the copyright. It can easily be proved that both XOR1 and XOR2 derive from the source work by XOR-ing the streams with each other. It's just like any encrypted copy: it infringes the copyright, but only those who can decrypt it are in a position to know that it infringes the copyright. The posts on the forum are illegal because they infringe the copyright; it doesn't matter that they are derived works rather than the work itself, just as your drawing of a copyright-protected image infringes copyright because it is a derived work without being the work itself. | I see that this would put me under heavy US regulation, and I'd like to avoid that, since it would require huge funding to hire lawyers to do something like that. There are many reasons for financial and banking industry regulations; namely, fraud protection, corruption and money laundering preventions, use of crypto to avoid taxes and records, etc. If you're serious about a startup that involves financial transaction, one of the first things you do is find a law firm to advise you on the legal plausibility of an idea. And be prepared to spend thousands and thousands of dollars in legal fees for regulatory approval. Would doing something like this solve my problem? You're really going to trust randos on the web for legal advice? | Presumably by "is illegal" you mean "violates copyright law". Copyright infringement is simply "copying / distributing without authorization", which refers to the original work and not some other work. The act of originally writing a book is not "copying" (likewise "taking a picture", etc), so the act of writing a book using pirated software is also not copying and not infringement. Nevertheless, the scope of remedies for the original infringement is not limited to just the cost of the infringed work. Under 17 USC 504(b), The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. This is sufficiently open-ended that profits from the sale of an original work created using infringed software could be attributable to the infringement. |
Why is the FBI raiding the house of a whistleblower over leaked SAT questions? How did this case trigger FBI involvement? Wouldn't that be a civil matter? | From the article: The FBI is investigating alleged computer intrusion and theft against an unidentified “victim corporation” involving “confidential or proprietary information,” including tests, test forms and internal emails, according to a search warrant issued in the case. The reference to "computer intrusion" is not precise, but may mean that they suspect a violation of some provision of 18 USC 1030, which makes it a federal crime to access a computer without authorization, or to exceed authorized access, under certain circumstances and for certain purposes. So it's not necessarily just a civil matter. Specifically, 18 USC 1030(a)(2) provides: Whoever [...] intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains [...] information from any protected computer [...] shall be punished as provided in subsection (c) of this section. Subsection (c) provides for fines and imprisonment for various terms, making a violation of (a)(2) a felony or misdemeanor, depending on circumstances. Subsection (e) defines "protected computer" as any computer "which is used in or affecting interstate or foreign commerce or communication". It seems very likely that the computer in question was used in interstate communication, and that the SAT does affect interstate commerce. The fact that they got a search warrant means that they were able to satisfy a judge that there was probable cause to believe a crime was committed and the search would yield relevant evidence. We'd have to read the warrant, or the corresponding application, to know more. | Politico, who published this most recent leak, also has an article about prior SOCTUS leaks. Most of them were very minor or speculative, along the lines of the following two examples given: In 1972, while Roe was under deliberation, an unbylined Washington Post story detailed the justices’ internal wrangling on that subject. The Post story — which appeared days after the justices ordered a second round of arguments in the case — was attributed to anonymous informed sources and did not quote any draft opinions or internal memoranda, but described them in significant detail. In 1979, ABC News Supreme Court correspondent Tim O’Brien went on air with reports predicting the outcome of two decisions that were days away from release. Chief Justice Warren Burger launched an inquiry into whether anyone at the court had breached protocol, and a Government Printing Office employee involved in setting type for the court’s rulings was transferred to a different division. The staffer denied leaking any information. A Business Insider article attributes the original Roe leak to a memo written by Justice William Douglas. The Politico article continues listing a few other examples of a similar vein, where convenient coincidences suggested someone had an inside line on how the court was leaning: a passionate Senate speech here, an article predicting case decisions there, etc. When a leak is strongly suspected, the fingers are usually pointed at one or more of the court's clerks. The aforementioned Business Insider article also mentions that a clerk leaked information to Vanity Fair about Bush v. Gore. Politico does mention the following as a more substantive example: The gravest violations of Supreme Court confidentiality came just over a century ago and led to a law clerk being accused of leaking the outcome of cases to Wall Street traders so he and they could turn a quick profit. The Justice Department fingered Ashton Embry, a longtime clerk to Justice Joseph McKenna, with being the source of leaks in business-related cases handed down in 1919 related to a wartime ban on liquor distilling and so-called patents allowing railroads to use particular lands. The case suffered a number of setbacks, including a lack of any insider trading laws at the time and a disappearing witness, and ultimately Embry was never convicted of anything, or even brought to trial. And it ends with an extremely recent example from a few months ago: During oral arguments on a Trump-era immigration policy this February, Justice Stephen Breyer mentioned that red states’ claim of standing to defend the policy was “pretty similar to what we had just allowed” in a case involving who could defend a Kentucky abortion statute. But the high court had not yet ruled in the Kentucky case. It did so eight days later, ruling 8-1, as Breyer and many less-informed others had predicted. A full leak of a decision does not appear to have occurred before now. Leaks that appear to have been based in substantial part on (draft) opinions do appear to have occurred before, just not as a complete document. But insofar as the Embry incident may have resulted in actual and intentional profiteering off of leaked information it stands as a rather serious and consequential breach. | 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. | 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. | Maybe, but we'll probably never know for sure. Officially, of course, he was not punished for his speech. He was punished for selling explosives without a license, which he admitted to. (He was also charged with illegally storing explosives and illegally mailing 'injurious material," but those charges were dropped in exchange for his guilty plea on the first count.) Whether those charges were a pretext to retaliate is probably unknowable. While it's a well-known fact that law enforcement frequently retaliates against people for exercising their right to free speech, this guy's story doesn't sound very credible. There is precedent for a prosecution for distributing Pest Control Report 2000, including the prosecution of white supremacist Leo Felton, a sad-sack loser who used the same material to build a bomb around to incite a "racial holy war" the same time. And just about a month after Ver's conviction, the man who owned the company that manufactured the product was convicted of violating federal explosives and transportation laws. Several months after that, he and his company entered into a consent decree with the Consumer Product Safety Commission ordering them to stop manufacturing Pest Control Report 2000. | I am assuming you are not the councilor. Civil matter you have no standing. The councilor does. Maybe the hotel bar does. I can’t think of anyone else who does. Criminal matter If a crime was committed in DC, the DC prosecutor is under no obligation to prosecute it. As a political matter, if you were a citizen of DC you could complain and try to get the prosecutor voted out next election. Political matter As a citizen of your city, it is a political matter: You call your councilman* or any city councilman really and ask them to begin impeachment or whatever similar action you have there. Then next election to try to get the mayor voted out. If you are unsatisfied with the council, try to get them voted out also. The cost of investigation is a cost of running a government. Someone could have chosen not to spend seven grand investigating a hundred bucks, but they did it. *Note this is called petitioning for redress which is the right that the current SCOTUS nominee could not recall off the top of her head. | 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. | "Legal problem" is too vague to be included. "Investigation" needs a bit of refining; "lawsuit" is relatively simple (as long as you mean "actual lawsuit" not "idea that maybe we could sue"). There is no central list of all lawsuits against a given party, but you could theoretically check every jurisdiction to see if there is a lawsuit. That's a really big list, maybe in the millions if you want to be complete. You can use ordinary Google search to find announced lawsuits, typically by government agencies. Finding investigations is even more difficult: you will not be able to determine what investigations I am conducting. Even determining the existence of investigations by police including e.g. the FBI is hard to do. A government attorney is the one most likely to reveal that they are investigating some party with the intent to sue them. Again, you can't get a complete list, you can use Google to get an indication of who has announced an investigation (your results will generally not say whether the investigation was closed, unless you pursue that question as well). |
Why is the Rules Enabling Act necessary? What is the Rules Enabling Act? I understand it is congress allowing the courts to make rules, but why does congress have to give that power to the courts? I thought the courts were independent, one of three co-equal branches? | Prior to that act, civil procedure in federal courts was non-uniform (historical overview). The main problem seems to be that courts were supposed to conform to the procedure of the state in which the court is located (as mandated by the Conformity Act of 1872). The "has to" reason is that SCOTUS at the time did not feel that it was authorized by the Constitution to write its own rules when Congress could have done so, see Wright & Miller Federal Practice and Procedure. The root problems seems to be the Process Acts of 1789 and 1792, which in the latter case did not allow courts to set rules for actions at law, and in the former case required courts to apply rules in effect when the state joined the Union (regardless of how the rules changed subsequently). | 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. | No The case was dismissed on procedural reasons. Like this. Well, perhaps not so pedantic but there are things that have to happen before the Supreme Court can get involved and they haven’t. For example, the Supreme Court only has original jurisdiction in a limited classes of case; if this isn’t one of those (and it isn’t) it has to be heard in a court that does and then get appealed up the chain. When they have, the court will make a decision on the merits. | This would establish a new precedent (I assume) You assume correctly. However, a precedent is only binding on lower courts and persuasive on courts at the same level so a trial judge precedent is not very far-reaching. Does this statute takes precedence over (overrules) the previous court precedent? Not exactly. The precedent was good for the old (common) law. Now the law has changed and the old precedent is irrelevant. Courts only interpret the law and legislatures are free to change the law within the limits of their constitutional power. Indeed, a fair number of laws are enacted because the legislature does not agree with how courts are ruling. | Constitution of the USA, Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. and the Commerce Clause (Article I, Section 8, clause 3): [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; SCOTUS has found the former to mean that states that do not allow same-sex marriages in their laws must recognize same-sex marriages registered by other states - Obergefell v. Hodges. Maybe one could argue that driver licenses are not equivalent among states, but I would expect judges (SCOTUS) to require a very well reasoned explanation. For example, maybe Alaska could refuse to recognize licenses from Florida because Florida drivers do not know how to cope with snowed roads. But even in that case Alaska probably would need to produce data showing that these measures aim to serve the public interest (avoid accidents) and that there are no other ways of getting the same result. OTOH the Commerce Clause has been successfully used to avoid states mandating racial segregation of travellers, so it is quite reasonable to see it being used to prevent a state from trying to limit the mobility of citizens from other states (again, in the supposition that the state restricting it cannot show a compelling reason to do so). AFAIK, only the Federal Government could invoke the Commerce Clause; I would expect a lot more people (in your example, the PA government or maybe even any PA driver) would have standing. | Your gut feeling is reasonably close, but not precisely correct. The Constitution sets the baseline rules for the powers of and interactions among the branches of the federal government, as well as the powers of and interactions between the state and federal governments. With only one exception (the dilution of a state's representation in the Senate), the Constitution can be amended to basically anything. It can make anything legal and it can make anything illegal. It generally addresses fairly high-leval legal principles, but there's no reason that it couldn't be amended to include a 9,000-page law specifically addressing every conceivable aspect of the regulation of nuclear energy. As it stands now and as it always has, the Constitution permits the federal government to write laws only with respect to certain topics. The states, meanwhile, retain authority to write laws on virtually any other topic. There are a variety of legal and historical reasons why prohibition took the form of a constitutional amendment while drug laws are handled legislatively, but one important consideration is the scope of Congress's power to regulate "interstate commerce." At the time of prohibition, it was not clear that Congress could regulate commercial activity that took place entirely within a single state. So if you grew all the ingredients for your whiskey in Kentucky, and you distilled those ingredients in Kentucky, and then you sold your whiskey in Kentucky exclusively to residents of Kentucky, it seemed that your conduct was outside the reach of Congress, and that any attempt to regulate it would be vulnerable to a constitutional challenge. The solution, therefore, was to amend the constitution and give that authority to Congress. About a decade after prohibition ended, though, the Supreme Court decided that the power to regulate interstate commerce includes not just transactions that cross state lines, but also any conduct that “exerts a substantial economic effect on interstate commerce” Wickard v. Filburn, 317 U.S. 111, 125 (1942). This broadens the Commerce Clause authority to cover virtually any economic activity. So even if you buy marijuana seeds from your next door neighbor, plant them in your own back yard, grow them for strictly personal use in your own home, and never sell anything to anyone, the courts will hold that your conduct affects the interstate market for marijuana, and is therefore subject to federal regulation. This standard substantially lowers the bar for Congress to act without a constitutional amendment, which is a big part of the reason there hasn't been an amendment to address narcotic use. | The rule that all bills die when a Congress ends is an unwritten rule, based on precedent. It is part of a more general rule: All unfinished business dies when a Congress ends. The logic of this rule is simple: Because every member of the House is elected every term, every new Congress is considered a separate Congress. To require a new Congress to take up the unfinished business of the previous Congress would violate yet another, more general rule: “No Congress can bind its successors.” This rule came from England, where it was thought to be a direct implication of parliamentary supremacy. In the US, it is justified either as implied by the constitution, or by practical political realities. What the Congressional manuals say The rule “all business dies” is mentioned in several of the standard compilations of Congressional practice and precedent. These compilations, (available online from the GPO,) include House Practice: However, because past proceedings of one Congress do not bind its successor, business remaining at the end of one Congress does not carry over to the beginning of a new Congress (with the exception of impeachment). Precedents of the House, § 8. Legislative Business of a Prior Session: Each Congress is a separate parliamentary body that comes into being at assembly and terminates upon sine die adjournment. Thus, it is generally the case that business of one Congress does not continue as business of the next Congress. For example, bills and resolutions introduced in one Congress cannot be taken up in a subsequent Congress but must be formally reintroduced. Unfinished business pending at the close of one Congress does not remain unfinished business of a subsequent Congress. Decschler’s Precdents, Ch. 1 § 11, The vast majority of business remaining at the end of one Congress does not, however, carry over to the beginning of a new Congress, since Congress does not allow the past proceedings of one Congress to bind its successor. Few categories have carried over from one Congress to the next; impeachment proceedings pending on the last day of one Congress have been continued at the beginning of the succeeding one, and a Presidential veto message to the House was on one occasion read and received at the beginning of the next Congress. Legislative Entrenchment: Why Congress Can't Bind The idea that one legislature cannot bind a later legislature is known as the rule against ”legislative entrenchment.” This rule traces back to England, where it was first stated by Edward Coke, in his Institutes of the Laws of England, published in 1644. Acts against the power of the Parliament subsequent bind not. In England, the rule was seen as a direct implication of parliamentary sovereignty. Thus, in his Commentaries on the Laws of England, William Blackstone argued that to allow one parliament to bind another would be logically inconsistent with the idea of parliamentary supremacy: Because the legislature, being in truth the sovereign power, is always of equal…absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. Interestingly, during the Revolution, an American colonist, writing as Cassandra, used the rule against entrenchment to argue for independence. He quoted Coke to claim that because no Parliament could bind future Parliaments, any British promise to respect the rights of colonists was not, as the game theorists would say, credible. It is out of the power of the British Legislature to give us security for the future enjoyment of our rights and liberties…Is there safety in entering upon terms of accommodation with a power which cannot stipulate for the performance of its engagements? In reaction to such criticisms of the British system of Parliamentary supremacy, Americans decided to adopt a written constitution. The Americans argued that while a legislature might not be able to bind itself, the people, acting through the Constitution, could bind the legislature. Instead of invoking Parliamentary supremacy, Americans justified the “no Congress can bind” rule by appealing to the Constitution (ie, the electoral cycle + the vesting clause = every Congress is a new Congress, which alone is vested with the legislative power under Art. I, § 1), or to practical considerations (it is impossible for today’s Congress to enforce a binding clause on a later Congress, which could simply pass a new statute). (For fuller discussion of these arguments, see here.) Unwritten Rules in the House Here is what House Practice, Ch. 50. Rules and Precedents of the House, says about Rules Based on Precedent or Custom: Much of what is known as parliamentary law is not part of the formal written rules of the House but springs from precedent or long-standing custom. Such precedent may be invoked to resolve a procedural question in the absence of an express written rule on the subject. More frequently, the precedents of the House are used to show the scope and application of one of its formal rules… On the theory that a government of laws is preferable to a government of men, the House has repeatedly recognized the importance of following its precedents and obeying its well-established procedural rules. The House adheres to settled rulings, and will not lightly disturb procedures that have been established by prior decision of the Chair. However, the Speaker or Chairman may refuse to follow a precedent even though it is relevant to a pending question, where it is the only precedent on the point and was not carefully reasoned. | The alternative is the same whether just one lower court or many lower courts ignore SCOTUS precedent. An aggrieved parts will appeal the lower court ruling, and the matter will work its way up the ladder until SCOTUS directly rules on this application of the law. This sort of happens all the time, when lower courts don't apply the ostensive "final ruling" because they find that there is some other overriding consideration ("that rule only applies to businesses employing more than 50 people"). Where the case to be remanded to lower courts for further proceedings consistent with SCOTUS opinion and still the lower courts refuse to comply, i.e open rebellion, SCOTUS could rule that non-compliance by lower courts constitutes contempt, and an order could be issued for the removal (in some form) of offending parties (we may presume, the justices of the lower court). The statute outlining court power allows on order of imprisonment for "disobedience or resistance to its lawful writ, process, order, rule, decree, or command". Federal marshals would then arrest non-compliant judges, unless the marshals too are in open rebellion. If the judges in question were federal judges, the marshals would have to decide whether to obey the order of SCOTUS vs. the order of the district or circuit court. Since under the US Constitution states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish", it is objectively established that SCOTUS rulings are superior, so provided that the marshals elect to uphold their oath of office, they will enforce the SCOTUS ruling. However, citizen action becomes irrelevant once SCOTUS has made its ruling, and the matter has moved from legal determination of fact to enforcement of established fact. |
Is it legal to trade bitcoin for cash in Virginia, USA? I was wondering if trading bitcoin for cash (for example payments on Apple Cash, Venmo or Zelle) is legal in Virginia (USA) or not. I would like to know before I start selling some of my bitcoins. | The short answer is that a few individual trades would be legal (e.g. if you sell some to a friend), but doing so on a regular basis for profit (e.g. offering a sale price and a bid price to all comers) would not unless you get the appropriate licenses and comply with relevant laws. Doing this is onerous. Any kind of "money services business" is subject to federal regulation. The federal definition is a business trading more than $1,000 per day, so in theory as long as you keep below that you wouldn't have to worry about federal law. In practice you might find yourself having to prove to the Feds that you have not exceeded the threshold on any day in the past. There is also a separate licence regime for Virginia which you must also comply with. Finally, if you sell Bitcoins to someone when you have a reason to suspect that they are planning to do something illegal with them then you are breaking the law. Edit: While its not strictly a legal issue, some people who have traded Bitcoins outside of recognised exchanges have had their bank accounts closed because the activity has triggered the bank's money-laundering detectors. Edit 2: All the above applies if you are trading directly with people who you found on something like localbitcoins.com. Trade via an exchange such as BitStamp is legal: all the AML and KYC regulations are their problem not yours. You merely have to provide the necessary identification to open an account. | Visa is incorporated in Delaware. So is MasterCard. In addition, both are headquartered in the US, have huge quantities of assets in the US, do lots and lots of business in the US in a highly regulated sector, and their very existence depends on their ability to interact with the US banking system. The US has the authority to regulate all of these things, under literally any definition of sovereignty. Therefore, they must comply with sanctions. | 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. | It isn't necessarily "illegal" (in the sense you are committing a crime) but you may be in violation of a verbal contract (which would fall under tort law). Let's take this a bit further. Perhaps Joe Schmoe gave you his debit card information so that you could make deposits for him and he said you could take $5 out for yourself for the trouble. This is a contract between you and Joe for a service. You can't extend Joe's offer to Jane Doe by saying "here is some debit card information, take $2.50 out for yourself". You have no right to extend your contract with Joe to somebody else. Now specifically for passwords it basically boils down to the same thing. Unless Joe gives you explicit permission to give that to somebody else, you can't just decide to unilaterally give what Joe gave you to somebody else. This may be different if Joe said "here, I'm buying you a subscription to service XYZ because you are a nice guy", this may be construed as a gift which transfers ownership. At that point you have control over what is or isn't done with the account. As another example let's say Joe let you borrow his car. You can't turn around and say to Jane, "here's a car you can use", Joe did not extend the offer to Jane, nor did Joe give you the right to extend the offer to another person. It's a moot point though, in the original context of this question, Netflix does restrict you from sharing your passwords "outside your household". Almost every paid service has some restriction against sharing with others. In the end Netflix may shut off Joe's account and Joe may sue you for damages, but you aren't going to be thrown in jail for this. This would be a civil case (tort) which you may be liable for monetary damages. | It depends on the jurisdiction and particular facts. The long history of not counting marriage as prostitution under law because of its social and religious legitimacy makes the transaction-related aspects of marriage fall outside the definition of prostitution in most cases that are not the explicit sale of a person for consideration, which is obviously forbidden as slavery today and could probably also be charged as prostitution in most jurisdictions. In your particular example, the girl is also saying what things will influence how she feels, and no reasonable person would say that she gives up her ability to withhold consent after marriage based on any alleged contract. A contract to lose the ability to withhold consent would also be void as against public policy, regardless of whether prostitution is involved. Bitcoin is a form of virtual currency. It is regulated by money transmitter law and trading it to obtain goods or services that cannot legally be traded for is still illegal. It's not that there is a defined "limit." It's that some things will fit into the definition and others won't. It's about categories, not quantities. | In general, you still need to pay for the drink. If you had purchased the drink (on credit, ie a tab or similar as you appear to have done), and you had offered the vendor CASH, and he had refused, [if you can prove you offered him cash] he would be unable to pursue you for the debt (technically you would still owe it to him, but as he had declined government issued tender the government won't act on his claim, so he has no remedy available to him to extract payment - although he can refuse to serve you in future etc). Paying through a debit card is not the same as paying cash - although the money goes out of your account and into his, its not "legal tender" in the same way cash is. | Would any offence be committed for: Having this on your person? Buying or selling this? Leaving it around for people to plug in to a computer? In the abstract, I don't think that this conduct would violate either Section 36 of the U.K. law or U.S. law, although, obviously, purposefully destroying a computer itself (i.e. actually using the device without the consent of the owner of the computer) would violate many U.K. laws and would also violate many U.S. laws at both the state and federal level. I also don't think that possession or buying or selling this product would be a crime absent some intent that it be used illegally, in which case there might be an "attempt" to commit a crime offense, or an offense that would make one part of a conspiracy to commit a crime. In the "leaving it around" example, there is arguably an intent to use it to harm another improperly, although the phrasing is ambivalent. While many statutes in the U.S. criminalize possession of burglary tools, or drug paraphernalia, sometimes with an associated intent element (although even these crimes often have an express or judicially implied intent to use element), I'm not aware of any statute that criminalize possession of tools for malicious destruction of property. So, if the tools aren't possessed or used in a manner intended as a step in the facilitation of a crime, I don't think that any law is violated. So far as I know, the U.S. does not have a counterpart to Section 37 of the British statute cited above (it isn't a terribly easy thing to search for to definitively rule out the existence of such a law because federal law has many uncodified crimes in unexpected statutes and there are many sets of state criminal statutes, not all of which are codified either). The example giving in the comments by @gnasher729 of possession of a hammer which could be used to do the same things that this object could be used to do is instructive. Arguably, this USB-like tool is more specifically targeted at malicious conduct. But, for example, when I used to work as a radio news reporter, we had a machine that was basically a high powered magnet that was specifically designed to destroy all information on magnetic media. This was, in part, so that it could be reused, but it was also so that confidential interviews wouldn't fall into the wrong hands once they were no longer needed, in much the way that one might shred paper documents. It isn't so implausible to think that a device like this one might be necessary for individuals or firms with national defense secrets embedded in their hardware and software to have on hand in order to destroy a sensitive computer in order to prevent a security breach, if necessary. In a case like that, leaving one of these devices around the office unlabeled might be negligent, but wouldn't have the intent necessary to be an intended crime. And, it is hard to imagine that the device itself, which seems pretty simple, would itself involve any technology that is a national security secret, so it probably wouldn't violate export control laws. Of course, possession, purchase or sale of such a specialized device, or leaving it around unlabeled would certainly be powerful evidence of an intent to use the device in a wrongful manner, and hence, of an attempt to commit a crime. Indeed, possession of such a device or purchase of one might very well be sufficient to establish probable cause to seize the device and arrest the person holding it on charges of an attempt to destroy a computer. But, this device would be merely powerful evidence of an intent to commit a crime, rather than something that is a crime to commit in and of itself. There are no international laws that govern this kind of thing. The only international laws applicable to individuals pertain to war crimes and nuclear and chemical weapons. Even then, most international laws direct member nations to adopt domestic laws on the subject rather than being self-executing. | A slogan such as "The Stripe of Bitcoin" might well be taken to indicate that the seller of a product or service is trading on the good reputation associates with the mark "stripe". If so, that would probably be a form of trademark infringement, assuming thst "Stripe" is protected as a trademark, unless the permission of the holder of the trademark "Stripe" was obtained. Payment processing and cryptocurrency handling are sufficiently closely related that customer confusion is possible. Note that competitive use is generally permitted. One can, for example market a soft drink with the tag "The cola that's better than Coke" without permission from Coca-cola (which i doubt anyone would ever get). This is because when a marketer says "X is better than Y" no one reasonably thinks X is sponsored or approved by Y, nor will anyone be lead by this tag into thinking that X and Y are the same. Other forms of nominative use are also allowed without permission from the trademark holder. For example, a computer component might have been advertised as: "compatible with Intel Pentium", as this is just using a trademark to name a related product, and does not imply affiliation or sponsorship. But a tag such as "The Rolls-Royce of pencils" might be ruled to be infringing, even though Rolls does not, as far as I know, make pencils. Note that the details of trademark law vary significantly from one country to another. Note further that trademarks protected in one country may not be protected in another. The question does not specify any jurisdiction, so no answer can refer to the particular country that the asker may have in mind. |
Would Hitler have been protected by Sovereign Immunity? So, with all the talk of sovereign immunity lately due to the coronavirus lawsuits against the Chinese government, a thought occurred to me: Would Hitler have been protected by sovereign immunity for his actions as Fuhrer, if he hadn't committed suicide in his bunker? If, after being captured by the Allies, would he have been able to argue in court that the charges against him should be dismissed because of sovereign immunity? Would such an argument have been successful, if it was heard in a fair court? | Sovereign immunity is the wrong doctrine Sovereign immunity relates to the inability of a sovereign or state to commit a legal wrong and immunity from civil or criminal liability. However, it applies to immunity under domestic law - Nazis were tried before Allied military tribunals. Hitler, had he survived would have been tried at Nuremburg along with the other Nazi leaders. He could have argued Immunity from Prosecution under International law He would have failed as the other Nazi leaders did. Immunity only relates to domestic crimes - international crimes like crimes against humanity, war crimes and genocide are not so protected. | The police officers themselves are covered by Qualified Immunity - to put it briefly, a government official acting in their official capacity in a discretionary act (as in, they have some discretion in whether/how they carry out the act) is immune from suit so long as they pay reasonable deference to relevant law. In the case of the police, so long as the search or seizure itself is reasonable (either because there is a warrant, or because they had probable cause), they can take appropriately destructive measures to carry out their duty. Even if the search or seizure is later found to have been unreasonable, an officer may still have Qualified Immunity unless their action violated "clearly established statutory or constitutional rights of which reasonable person would have known" (Harlow v. Fitzgerald). However, a search/seizure doesn't give the police license for arbitrary destruction, whatever they do has to be reasonably pursuant to the legal search/seizure. For example, if a suspect is barricaded in a house with a gun, they can knock down doors, windows and walls to apprehend them. On the other hand, that does not mean the officers can then break open safes to try and find evidence - once their probable cause for the entry is fulfilled (apprehending the suspect), they need to get a warrant to do more than a plain sight search of the house. Warrants will specify what items are being searched for, so even with a warrant the police have to take reasonable measures to carry it out - an example of an unreasonable measure would be to tear into walls in order to try and find a stolen bicycle. On the other hand, tearing into walls could be justified if their warrant included searching for drugs from a dealer, where it is not uncommon to hide them in the walls. States and the Federal Government enjoy Sovereign Immunity from suits in most cases. There are some exceptions, but none would apply in this case so long as the general policy of the police department was not illegal or unconstitutional. However, county and city governments do not enjoy Sovereign Immunity and state governments and the Federal Government often allow suits against them for negligence from their actors, so someone injured by unreasonable police action can usually try to recover damages from the officer's department. | The relevant conventions tried to discourage the traditional mercenary business model, but they also try to avoid loopholes in their rules. Under command by and authorized by Russia? Yes. Wearing clothing/insignia recognizable at a distance? I don't know, but a big Z would be enough. Carrying arms openly? I presume so. There is no requirement that armed forces use only their own nationals (see the French Foreign Legion). While Russia tries to deny being "at war," under international law it is, and residents of the unoccupied part of Russia may rally around the flag. We don't know what will happen after the war. There is the precedent of the SS, which was declared a criminal organization at Nuremberg (that is, membership was considered evidence of complicity in their crimes). | Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case. I think you are indeed reading it wrong. In the Walsh case, the court says: We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which we expressed in the McAlpin case (supra), but we think that the question of the defendant's negligence was erroneously submitted to the jury in the Stout case, and that we ought not to follow it as a precedent. It's clearly repudiating Stout here, and not just as it applies to that case. It literally says they think it should not be followed as precedent. | Yes. The Russian owned party to the contract can be sued. The remedies would be those available under the contract, which may or may not be futile to pursue, which almost certainly specify the court to which disputes should be brought. I have no access to the contracts and can't read the relevant languages anyway, however, so I can't tell you what they say about this point. In all likelihood, a Russian court would not rule in favor of Poland or Bulgaria on this score, and would not order Russia to restart supplying natural gas to them (perhaps on the theory that national security and foreign affairs decisions are involved), and no other court would have the practicable ability to cause Russia to reopen its natural gas pipelines. So, if they prevailed, the Court would have to fashion some other remedy (e.g. seizing Russian assets sufficiently associated with the contractually bound party over which they can acquire jurisdiction). If there is a third-party guarantor of the contract, collection could be feasible. If not, it would be much more challenging. | This is an interesting hypothetical. In this scenario, Country Z does not have jurisdiction to enforce such a law on foreign nationals, unless Country Z has an extradition treaty with Country A. Generally, however, these types of laws would never be enforced as they are egregious abuses of government, and could possibly be elevated to the International Court of Justice if Country Z actually charges any individuals with such a crime. In these instances, however, war is a very unlikely scenario, since this would often be expensive and any escalation would most likely be small skirmishes that would lead to an eventual ceasefire, with the encouragement of the international community, without the involvement of UN Peacekeeping troops. | Yes. This is legal, even though it is highly unlikely. There were very few, if any, instances of the federal pardon power being used this way historically, but it could happen, and President Trump, while he was in office, intimated that he might use the pardon power in this fashion. Realistically, it would be easier for the President to prevent someone from being prosecuted in the first place if the crime took place during his term, but he might pardon someone who committed the crime under a previous administration. The fact pattern in the question: “don’t be surprised if I pardon anyone that puts to death repeat heroin and fentanyl dealers dealing in amounts larger than 50 pounds” doesn't sound very morally palatable. But consider a slight variant of it which is much more plausible. Suppose that while running for office a Presidential candidate says: don't be surprised if I pardon someone who was convicted of homicide in a previous administration for killing someone who had been using them as a sex slave in a human trafficking network, or killing someone who was in the process of raping them shortly before their divorce became final but was not allowed to assert a self-defense argument at trial because marital rape was legal at the time. Now arguably that's different, because it doesn't induce someone to commit a future crime. But the President has broad discretion to make policy to de-emphasize certain kinds of criminal prosecutions in any case while in office even without the pardon power, and generally, this is not a basis for having a special prosecutor appointed at the federal level since there is no individualized conflict of interest. Of course, the U.S. President can only pardon someone from a federal crime and can't pardon state crimes or criminal convictions from other countries. So, even if the President pardoned someone of a federal crime in this situation, the state in which the murders took place could prosecute the individual for murder unimpeded (constitutional double jeopardy considerations would also not bar a state prosecution following the federal prosecution). Indeed, the vast majority of murder prosecutions are made under state law, and there are very few murders that take place which are beyond the jurisdiction of any U.S. state and any foreign country, that are in the jurisdiction of the U.S. government and covered by a federal homicide statute, in any year. As noted by @hszmv in a comment to another answer: Federal Murder charges are a thing and can be prosecuted, but are normally reserved for murders that either involve federal government employees (especially if they are murdered because of the duties the performed in the course of their duty or the status as a federal employee) OR murders that occur on Federally Owned Property OR the Murder involved crossing state lines OR is in U.S. Jurisdiction but not in a territory or state jurisdiction (usually applies to some uninhabited territorial islands or U.S./International Waters). Further, a pardon would not prohibit the victim's family for suing the murderer for wrongful death, and indeed, probably wouldn't prohibit them from using the murder conviction that was pardoned to conclusively establish liability in a civil case under the doctrine of collateral estoppel (I haven't researched that highly specific and technical civil procedure issue, however, but even if that wasn't possible, the murder trial transcript would be admissible in the civil case). A civil judgement for wrongful death was famously obtained against O.J. Simpson by the victim's family after O.J. Simpson was acquitted in a criminal murder trial. This tactic would really only be helpful to a prospective defendant with respect to cases where there is not a parallel criminal offense under state law. | They could be prosecuted in any state where there was evidence that part of the crime was committed. Realistically, either State A or State B could prosecute for conspiracy to murder as an additional charge, because the conspiracy clearly spanned more than one state, even if they can't prove where the crime was committed, although physical evidence (e.g. traces of camp sites, footprints, testimony about landmarks, evidence of poop with human DNA from the victim in it), would usually make it possible to show that some part of the crime was committed in the state. There is probably also a federal crime that could be implicated such as "murder involving flight across a state line" (hypothetical, but I'm sure that there is something similar on the books). I'm not going to address the further hypothetical as it is too bizzare and law is ultimately very context specific. Find a more plausible fact pattern, perhaps with a different crime, and ask a separate question if you want to really address the issue. |
Do I need to number sections in an Agreement? I'm creating an agreement using an online contract management and signing service. To create the agreement I create separate sections in a library. Then I build the full agreement by adding the sections from the library to a template. When I add the sections to the template there is no way to auto-number the sections. When I add, remove or edit sections in the template it appears I might have to manually edit every section and renumber the sections. That can be very tedious to do. So, I'm wondering if it's OK to NOT number the sections. I'd have titles for each section like: Support Governing Law Force Majeure And whether an unnumbered agreement would cause any legal problems for me. Thanks, Ed | Numbering is for the sake of clarity, and is not intrinsically required. If you refer to a section, you need a way to say which section you mean, and a vague description like "up there where I talked about copying" is insufficient. You can refer to a section by a title, if you need to refer to sections within the contract, as long as your titles match what you refer to them as (and you don't have two sections called "Your Rights"). | In the US, code that you write in the course of employment is the property of your employer. Otherwise, anything that you create is your property. The gray area is things that you write during your employment but not in the course of your employment (hence the terms of the employment contract are vital). Something that you write before becoming an employee is not "in the course of employment". However, if you use that code in the in the course of employment, you invite the argument that in fact the code was written in the course of employment. That argument can be squelched if you have an agreement with the employer that acknowledges that you are licensing your code to the employer in exchange for ... some consideration. It could be $1, or a similar unit of currency. | There is no worldwide standard for legal citation Each nation uses its own style and citation guide. Most of these will indicate how to reference contracts. However, in most cases they will simply be an ad hoc method of unambiguously identifying the contract “The contract between X and Y for Z entered into on 12 Sometime 1666” or of identifying the documents that evidence the contract. However, none of them use APA. APA is the American Psychological Association style and is used in medical and allied health and is an Author, Year in-line style. Legal citation is universally footnote style. If you want to use APA, a contract would be cited like any other unpublished document. | I will not speak to your specific situation. I am unfamiliar with the jurisdiction and real estate contracts are one of the most highly regulated contracts so local statutes may override common law. In general, the terms of a contract are what the parties agree; the written document is not the contract - it is evidence of the contract. In a case where the parties agree that the written version is wrong then the written version is wrong. Where the parties disagree that the written version is wrong (or agree that it is wrong but disagree as to how) then each will need to provide evidence to support their position. A signed written contract that supports one parties position is extremely strong evidence! The other party would need to provide some overwhelming evidence to trump this. The general position that the courts take is that the written contract accurately documents the agreement unless someone can prove that it doesn't. | It's not legal The terms that you agree when you enter a contract can only be changed if: the contract provides for variation of its terms and then, only in accordance with that procedure. This may allow unilateral changes - these are common in ongoing relationships like telephone and ISP contracts but it appears from the Kickstarter page that this was not the case here. the parties agree to vary the contract either by deed or by another contract. If by deed then the law of making deeds must be followed, if by contract then the laws of contract must be followed. You mention "around $70AUD" which leads me to guess that you are in Australia. If you were there when you entered the contract then the Australian Consumer Law will apply to the transaction and, more generally, to William Painter since they explicitly "do business in" Australia because they ship there. It is illegal to make misleading and deceptive claims under the ACL and the fines can be huge. Perhaps a note pointing this out to them and letting them know that if they waive their fees in you case(s), you wont feel the need to report them to the ACCC. | Its difficult to tell without seeing the exact paperwork, and the exact meaning of without prejudice varies by jurisdiction (I think UK is the same as here in NZ though). If an agreement is reached through communications marked "without prejudice" it should be valid in court to the extent that it shows an agreement was reached and what the agreement was (but the court will not generally look at the documents marked without prejudice for other reasons – e.g. admissions made – if no agreement is reached). There are a couple of other relevant things to mention – although not strictly part of your question: Lawyers are officers of the court, and have duties to the court, which include acting ethically. So, provided it's a reputable law firm, it is reasonable to (somewhat) trust their solicitors in procedural matters. My understanding is that courts encourage anything that will help settle a matter out of court – hence the whole idea of "without prejudice" letters being valid. I believe that the court will uphold an agreement reached through communication of without prejudice emails as it's in their interests. If you have these kinds of concerns, you can raise them with their solicitor, suggesting that you would prefer the final document to not be without prejudice, even if it only refers to the matter and agreement, without sensitive stuff. I imagine they would be only to happy to oblige, as they can bill their client for another letter! | There is no fixed amount or proportion of a copyrighted text which may be quoted without infringement. Whether quoting without permission is a fair use (which is what this question asks) depends on the totality of the circumstances, including the purpose of the use, the effect of the use on the market or potential market for the original, and the nature of the original work. In the Harper vs Nation case, quotes totaling roughly 300 words from the autobiography of former President George H. W. Bush (which was many hundreds of pages long) were held to be the "heart" of the work, and quoting them was found not to be fair use. There is no formula which can be rigidly or automatically applied to determine if a quote is a fair use. Note also that fair use is a strictly US legal concept, and a use which would be fair use under US law might well be copyright infringement under the laws of the EU, the UK, or other countries. | The entire purpose of the Entire Agreement clause is to say that this contract is the agreement, and anything previously negotiated is not part of the agreement. I don't know why they would fail to include that in the contract. |
What happens to the mortgage on property which has been 'Adversely possessed' So if property has not been utilised by the original owner, and another person starts to occupy and utilize it for a reasonable period of time (i.e., 20 years), the new occupier can lodge for the property title to be transferred to themselves. This is know as 'Adverse possession' or 'Squatter rights'. Let's assume the property has been successfully 'adversedly possessed', but there was a mortgage on the property. Is the original owner still responsible for the mortgage, or does it transfer to the new owner? I am interested in NZ/Aus law, but feel this is an interesting question, so am happy for answers pertaining to other locations as well | The mortgage is part of the title on the land new-south-wales First, a mortgage is a right given to a mortgagee to seize and sell the land if obligations under another contract are not fulfilled. Most usually the mortgage is offered as security for a loan taken out by the mortgagors (landowner), however, mortgages can be given for all sorts of other reasons. For example, I might give a mortgage to guarantee a loan by someone else. Or as surety for bail. The Registrar General says: The effect of adverse possession is to destroy the title of the person who is dispossessed, however, it does not destroy the rights of other persons who have an enforceable interest in the land such as easements or restrictive covenants. Since a mortgage is a type of restrictive covenant the mortgagee would retain the right to seize and sell the property if whatever trigger for that to happen, happened. So, to keep it simple, if we assume that the original owner offered the mortgage as security for a loan, then, if they stopped paying the loan one of the lender's options would be to seize and sell the land irrespective of who owns it. | A lien is used to prevent sale of a property until a debt is paid. This has nothing to do with priority over a mortgage. The HOA agreed to release the lien for some payment. The negotiation of that payment doesn't matter to the new buyer. Once the lien is released, then it is no longer listed with the county on the property, so the property can now be sold. The former lienholder cannot now apply a new lien to the property because the new owner is not a debtor to the former lienholder. This would be a terrible way to manage property sales, and no mortgage company would allow a mortgage for a property that could not be sold in case of foreclosure, which is likely why the mortgage holder was a private individual. It is possible for a new owner to take on existing liens, but this would be clearly spelled out in purchase documents. There should be a statement on the title search results that no liens exist. | There's good information at https://www.gov.uk/private-renting-tenancy-agreements/your-landlord-wants-to-end-your-tenancy. There are several types of tenancy with different rules, but in all of them, the landlord has to give you a certain amount of notice to move out, and it has to give a specific date. "Three months from when a buyer is found" doesn't seem to fit that, so I would say you have not yet received formal notice to move out. This statement may have just been a courtesy to give you more advance warning. So for instance, if you are in a tenancy that requires two months notice, the landlord may have intended this to mean "I plan to send you formal notice about one month after a buyer is found." Of course, this is not binding; he could send you formal notice tomorrow if he changes his mind. As far as I know, the sale of the house is really irrelevant in all of this. You don't automatically have to move out just because the house is sold; if you're not explicitly told to leave (with appropriate notice) then you don't have to, and you'll just start paying your rent to the new landlord. If you have a fixed-term tenancy, then the sale of the house doesn't shorten it. I am not sure what the point is of getting angry at the estate agents. Your tenancy is a matter between you and your landlord, and the estate agents have nothing to do with it. They work for your landlord, not for you. | You certainly can't legally steal anything, ever. If it is legal, it is not stealing. In particular, if it is your property, it isn't stealing. The question is really, "is it your property"? This will be jurisdiction dependant. I am familiar with England and Wales, and other common law jurisdictions may be similar. The fact you co-signed for the car definitely does not make it your property. It just means that out of the goodness of your heart, you agreed to reduce the finance company's risk by promising to pay if your ex-friend didn't. In E&W, I don't think it is possible to register a car jointly, but there is a long page explaining that the registered keeper is not necessarily the owner of the car. My guess is that the car probably does not belong to you, so if you take it you will probably end up with a conviction for theft. | we would like to know whether we have sufficient legal grounds to sever/terminate/exit this contract with Superior Management Co.*, if the company does not mutually agree to do so. No. In that event the HOA is stuck with the contract at least for the remaining part of the current period. The HOA's concern that the provider could breach the contract by significantly underperforming seems speculative and does not entitle the HOA to breach it first. Changes in the name and/or ownership of a party does not alter the parties' rights and obligations pursuant to the contract. This implies that neither party is entitled to disavow his obligations by terminating the contract altogether. For early & unilateral termination to be an option, it would have to be provided in the terms of the contract itself. | The bouncer is employed (or (sub)contracted) by the owner/lessee of premises - someone with the right to evict persons from their private property per the common law rights to exclusive use of one's property. When the bouncer evicts you, they are exercising this right on behalf of and as the agent for the owner, who could do it, but instead has assigned limited agency to the bouncer to do that for them. Entrance to (and remaining on) a property may be authorised and revoked at any time - at the time that consent is not given or is withdrawn, you become a trespasser and the police may be called upon to forcibly remove you from the premises. For example, I can have a party at my house, but if I don't like someone, I'm entitled to ask them to leave. I could also ask a friend to ask that person to leave, if I didn't want to do it myself. Note that bouncers aren't empowered to physically evict anyone except for the general right to use reasonable and proportionate force. For instance, someone that was just standing around in the nightclub probably couldn't be physically thrown out, but someone who was causing harm to themselves or others could be restrained or repelled as appropriate (and if restrained, you'd need to be very careful to do so in the course of effecting a citizen's arrest, otherwise you'd probably be committing false imprisonment). There may be statutory provisions that bestow additional rights and responsibilities upon bouncers, but this is the basic premise. I'm fairly certain that this would apply in all Australian jurisdictions; probably in all common law jurisdictions. | the landlord has been living there for a week. Is this allowed? Am I still expected to pay rent if he is living there? Generally speaking, no. But you need to verify that your lease contains no language that overrides certain basic assumption about leases. My understanding is that (1) you delivered the property, and (2) the landlord was not entitled to live there during your tenancy. Usually one basic assumption in a lease is that only the tenants and their beneficiaries/guests ("tenants", for brevity) are entitled to use the property. It appears that the landlord is neither. Your delivery of the property enabled the landlord to reassign the tenant's exclusive right whenever the landlord deems it fit. The scenario of you finding someone to replace you in the lease is merely one alternative from which the landlord can make the informed decision to reassign that right. The event of reassignment automatically releases you from subsequent payments related to your early move-out. Accordingly, the landlord's informed and willful reassignment (in this case, to himself) of the aforementioned exclusive right forfeits his entitlement to subsequent payments from you. This renders the [rest of the] lease voidable by you. In this regard, see Restatement (Second) of Contracts at §§ 151 and 153(a). There is also an issue of fraud and quantum meruit (see also unjust enrichment) insofar as the landlord benefited at your expense (in the form of your father's work on behalf of you) without informing you that reassignment had taken place already. The landlord knowingly and intentionally deprived you of the opportunity to decide whether to keep taking care of property about which you no longer had any obligation. I presume you already are mindful of this but I should still mention it: Make sure you can prove the landlord was actually using the property rather than inspecting/enhancing/managing it. | 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.) |
Does bitcoin count as income in the U.K.? If I mine bitcoin, would it count as income in the UK? If so, would I have to declare the value of my bitcoin on any forms which ask for how much money/income I have? | Yes you would. Bitcoin is a form of property right or asset, just like any other form of wealth. And, income is a positive increase in the sum total of your property rights. You might be able to take deductions in connection with whatever you parted with in order to obtain a bitcoin, depending on the transaction, just as you might be able to take a deduction for inventory expenses associated with income in the form of money. | The order itself is here. It applies to "any United States person", which includes citizens, LPRs, entities with a US basis, and any other person in the US including tourists. It applies to transactions, and not static possession. There is no exception to the effect that "you can trade as long as it's not on the NYSE", and it says Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate the prohibitions set forth in this order is prohibited The order is not just directed at brokers, or the NYSE, it applies to everybody / everything everywhere, if you are a US person. Apparently there was some unclarity on the OTC question, which was clarified by the Office of Foreign Assets Control, to the effect that it includes OTC trading. | In the eyes of the IRS, income is income It doesn't matter if that income is in the form of dollars, or gift cards, or red kidney beans, so long as you pay the correct tax on the income the IRS is happy. | The question makes more sense if you ask it in the other direction. Everything that is not currency, pretty much, is like the car. Currency is the pretty much singular exception to this rule, by sheer force of laws designed to facilitate free transferability of currency without friction. Currency is special property because it is defined as such. See also this answer. | Why do you think Oracle have not been protecting their trade mark? Using a trade mark to describe the product (“Written in JavaScript”, “Seeking JavaScript developer”) is not an infringement and the trade mark owner is under no obligation to, indeed, cannot stop this. Where they are required to defend their trade mark is when it is being used in such a way that there is the risk of confusion that the goods or services could be confused with the trade mark owner’s goods or services. Further, they are not required to defend all breaches, only enough to show that they are actively doing so. Also it is not important that the trade mark be associated with the trade mark’s owner. Do you know who owns the trade mark “Ben & Jerry’s”? | Yes It is perfectly legal to physically wash US currency under US law. The kind of "money laundering" that is illegal is obscuring the history of funds, making proceeds of crime appear legitimate, or just making the source of funds hard to trace. That violates 18 USC 1956 and/or 18 USC 1957 There may be other relevant laws as well. This is "washing" money only in a metaphorical sense. See also this US Dept of Justice page | Two people exchanging goods or services on a commercial basis and then pretending it was two gifts is tax evasion. It's not a gift. It's a commercial sale that you lie about by 'putting' a different 'label' on it. Sometimes two people will give mutual gifts, e.g. if you come to my wedding: I give you dinner, you give me some kitchenware. Yet there's nothing commercial about it. So that's not income for either party. However, if you're talking about two businesses making sales to each other, that is very much income, regardless of what you badge it. | Is it actually necessary for businesses (such as a Small Town News USA Inc) that do not reside in EU to care about GDPR? Only if they offer goods/services to or monitor behavior of people in the EU (Art. 3(2)). Note that: having a commerce-oriented website that is accessible to EU residents does not by itself constitute offering goods or services in the EU. Rather, a business must show intent to draw EU customers, for example, by using a local language or currency. If it is then how (and by whom) would compliance be audited and/or enforced? Supervisory Authorities will care of it. |
Are You Allowed to Buy Groceries While in Self Quarantine? [Canada] Canadians returning to Canada must self-quarantine for 14 days upon arrival. Does this mean that these people must stay in their homes, and are not allowed to leave to buy groceries? The government website is very unclear and lacks detail, and so do all of the news sites that have covered it. | In addition to the above, mandatory quarantine (self-isolate) means you must: go directly to your place of quarantine, without stopping anywhere, and stay there for 14 days do not go to school, work or other public areas and community settings monitor your health for symptoms of COVID-19 arrange to have someone pick up essentials like groceries or medication for you Emphasis mine. Coronavirus disease (COVID-19): Travel restrictions and exemptions | I am wondering if the government can still implement it and force people to pay even if the decision is challenged in court. Laws are not automatically put on hold because they are challenged. For an action or a law to be halted by the Court before a decision is made, the applicant would have to seek an interlocutory injunction, which are granted only if, as established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, (i) is there a serious issue to be tried, (ii) will the party seeking the injunction suffer irreparable harm if it is not granted, and (iii) does the balance of convenience favour the party seeking the injunction. The first issue is rarely a problem, especially for a controversial issue like this. I am thinking the government might be able to tax people and then refund people if the court doesn't uphold the decision instead of a court challenge being able to postpone the tax indefinitely. A quantifiable financial harm is rarely irreparable (in private law cases). However there is an important exception for Charter cases where a financial harm is assumed to be irreparable because damages are often not awarded in constitutional cases. Though in this case it might be considered reparable because the quantification of damage and the method of redress are straightforward. For the third question, the Court needs to weigh both sides' interests in the case where the injunction is granted. Even if the damage is deemed irreparable, the Court may (or may not) still find the public interest in health outweighs the financial interests of the unvaccinated. | The customers are able to leave, so there's no reason it could be a crime. Even if they weren't able to operate the lock themselves, they are presumably able to leave by asking a staff member. There is no way this could be remotely considered false imprisonment. Depending on the layout and size of the store and presence/lack of other fire exits, this might violate fire safety regulations. | Here is what the Austrian law says in this case (Google translation): Bag control in the supermarket: There is no obligation to have your bag checked by supermarket staff or security guards. If there is a reasonable suspicion, the supermarket staff can ask a suspect to wait for the police to arrive. The police can then check the bag. In this Austrian newspaper article (in German) they say about this topic If a person is injured during the arrest because of a low value item or if an expensive item is damaged, the detective might be liable for it. As long as they don't start searching your bags, they are allowed to hold on to you till police arrives. I would complain to the shop owner about the detectives and their behavior via mail, this is probably the most efficient thing what one can do. | Not under that name In common law countries, like Canada, the concept is known by the delightfully visceral term price gouging or, in emergency circumstances, profiteering. This is not regulated at a Federal level in Canada. A brief overview of provincial level laws can be found here. Typically, they require prices that are not just excessive - they need to be unconscionable which is a very high bar. | There is no clear answer, and I suspect an argument could be made either way. The relevant regulations in this case are The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020. In particular, regulation 6(1) states that: 6.—(1) During the emergency period, no person may leave the place where they are living without reasonable excuse. In this case, you would be relying on the reasonable excuse given in regulation 6(2)(b): (2) For the purposes of paragraph (1), a reasonable excuse includes the need—[...] (b) to take exercise either alone or with other members of their household; The regulations do not explicitly state: how far you may travel for the purposes of exercise, how long you may exercise for even, in contrast with government advice, how many times a day you may leave your house for exercise. It would require the interpretation of the courts to decide whether travelling for long distances was reasonable in order to take exercise, and whether exercising for many hours is reasonable. Michael Gove stated in an interview that: I would have thought that for most people, a walk of up to an hour, or a run of 30 minutes or a cycle ride of between that, depending on their level of fitness is appropriate. This is of course not law, but opinion; yet it is worth keeping in mind that the courts may take a similar view to this. A strong argument could be made to say that this scenario is not in fact necessary exercise, but leisure, which is not considered a reasonable excuse in the regulations. Equally, it could be argued that the regulations do support travel for exercise in any form. I don't think anyone could answer with certainty whether this is legal or not, until the law is tested on this point. | The "Privacy Rule" (45 CFR Part 160 and Part 164, Subparts A, E) don't forbid this. Sect. 164.502 states the general rule: (a) Standard. A covered entity or business associate may not use or disclose protected health information, except as permitted or required by this subpart or by subpart C of part 160 of this subchapter. "Health information" is defnes in part 160 as any information, including genetic information, whether oral or recorded in any form or medium, that: (1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual. Your picture would not constitute health information (and anyhow, they are allowed to gather health information, just not freely disseminate it – the pictures on the wall were presumably with permission). There is no general law (which would be state law) against taking a person's picture (though commercially exploiting someone's picture would require permission, via the concept of personality rights), and it is directly required in a number of instances (for identification purposes – school ID, driver's license, passport, voting in some states). It is an unusual requirement and since they scanned your driver's license it is especially inexplicable. Assuming that this is just a story they tell all patients because they want before and after pictures (which you would have to consent to, if you didn't already in one of those "sign here" flurries), saying that this is for "security purposes" would be untrue, but I don't think it's actually illegal. Taking but not using a photo would not cause you harm, so if you had let them take the picture, there would not be a basis for suing. If they use it for advertising without permission, that would be a problem. | Canadian law defines "theft" thus: Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (to deprive the owner, pledge as security, mess it up) In this case, you accepted what seemed to be an offer of a free pizza, so if you took and consumed the pizza you did so with a colorable claim of right and without fraud. Perhaps you misunderstood, but it is not a crime to misunderstand another person's intent. They could sue you for the cost of the pizza (assuming that you took it and did not pay), in which case the question would be whether whatever they said to you could reasonably be interpreted as an offer of a free pizza (if not, pay for the pizza). As an advertising stunt, this would not be unusual. However, if they fix the pizza but then demand money before handing over the pizza, you now know that you have no right to the pizza (if you abscond with the pizza in that circumstance, it would be theft). You may of course pay for the pizza, but you can also not pay and not take the pizza. Again, they could sue you, and in this case your defense would be that there was no contract (no agreement). An important question would be how reasonable it is to believe that you were offered a free pizza. People are offered "free" steak dinners all the time (at the cost of sitting through a sales pitch), so that is a reasonable belief. If a Lexus yacht salesman appears to be offering you a free $5M yacht, it is not reasonable to think that this is an ordinary advertising stunt, if you're not a celebrity. |
UK Estate Agent withdrawing house before occupancy without returning fees In February, my relative agreed to rent a house. She paid a holding deposit, and after numerous credit checks the move was agreed - to begin on 1st April 2020. She paid the deposit and first month's rent. However, the COVID-19 crisis has meant that she has been unable to move in to the property due to the lockdown, as she's in one of the 'at risk' groups. I phoned the estate agent to explain the situation in late March, and the person (a director) told me that they'd handle the situation. Then, on 7th April I received an email from the estate agents. It was from a different person, also a director. They offered 2 options: (a) to pay the rent as if the tenancy had commenced, making my relative responsible for all further rent, or (b) to consider the tenancy didn't go ahead, lose the deposit but they'd return the rent. They would then re-let the property. I emailed them back, saying that my discussion in March suggested they would hold the property until it was possible to move in. I added that I understood the nature of this things was far from ideal, and suggested that the first month's rent be paid along with the deposit, in return for holding the property until lockdown measures had been eased. The person in question replied saying that she'd ask the landlady. Today I've noticed that the property has been advertised for rent both on a sign outside and over the internet. They haven't contacted either me or the relative since the last contact on 7th April. Of course, this is a matter for a lawyer if we were to take it up. However, what legal position would my mother be in? Surely they can't take the rent and offer to re-let the property at the same time? Would they even be entitled to retain the deposit under these circumstances? Finally, I'd rather not go down this route but is there any protection for my relative for not being forcefully 'evicted' - since she's paid the deposit, rent - and those haven't been returned? | Unfortunately, your relative is more in the wrong here First, the COVID situation does not change anyone's rights and obligations under a contract (see What effect does an event like the current Covid-19 pandemic have on contractural obligations?). So the landlord (through their agent) is obliged to provide the property and your relative is obliged to pay the rent and to occupy the premises (most residential leases contain a requirement for the tenant to live in the premises and not leave it empty). Your relative (through you) has indicated that she will be in breach of her contract. The agent has considered her position and has offered two (IMO generous) alternatives: Allow her to continue with the lease without taking possession providing the rent is paid. To release her from her obligations under the contract and return the rent. To put it in perspective, if your relative simply "walked away", she would be liable for the rent until a new tenant was found and, if that new tenant was paying less rent than she was, the difference for the duration of the lease plus the costs of finding a new tenant - advertising, agent's fees (usually 1 month's rent) etc. Now, the landlord has an obligation to minimise your costs so advertising the property could just be prudent. However, if they lease it when your relative's contract has not been properly terminated then it is they who are in breach. Surely they can't take the rent and offer to re-let the property at the same time? Surely they can. What they can't do is relet the property without properly terminating your relative's lease. Would they even be entitled to retain the deposit under these circumstances? Absolutely. The deposit is to cover their losses if your relative breaks the lease - as she has indicated she is going to do (this is called anticipatory breach). Finally, I'd rather not go down this route but is there any protection for my relative for not being forcefully 'evicted' - since she's paid the deposit, rent - and those haven't been returned? Having never taken possession, she is not being evicted. | One option is to bring a civil lawsuit to obtain a court order for the return of your property, something that usually proceeds on an expedited schedule (often one to three weeks from filing to an order). The traditional name of such a lawsuit is "replevin" although the modern and minority terminology for this kind of lawsuit is civil action for "claim and delivery." You could ask the police to intervene, and they might do so, but are not required to do so without a court order. This can take the form of a criminal theft charge, or could take the form of what is called a "civil assist" when the individual comes to the place where the property is held in the presence of law enforcement which assures a peaceful transfer. Sometimes a court in another matter such as a divorce, or domestic violence criminal case, will enter an order authorizing or directing that a civil assist take place. The appropriate remedy depends to some extent upon the reason given for not returning the property. One valid defense to not returning property is that a lease created a lien in the personal property left at the premises for unpaid rent, or a lien for moving and/or storage charges. The availability of such liens varies from jurisdiction to jurisdiction and based upon the precise details of the situation. Another valid defense would be that the person in possession of the property was not satisfied that they knew who owned it. | The official judgements do not reveal the funding for these lawyers; so where can I find this information? Nowhere. The commercial arrangements between lawyers and their clients are private and confidential like any other business transactions. You have no more right to know this then you do to know how your neighbour pays their mortgage. how could she have funded litigation in the EWHC and then EWCA before the UKSC? She may have rich parents or another benefactor who has in interest in her or the outcome of the case. She may have won the lottery. She may be the heiress of a dead rich uncle. By the way, "having" student loans does not mean you "need" student loans. Interest rates on student loans are cheap - if I need to pay $10,000 for a course and have $10,000 earning 5%, I would be nuts to use that if I could take out a loan at 3%. | The law only addresses possible legal consequences, from which you could surmise what actually happens. If a person stops paying rent, the landlord institutes eviction proceedings, and may sue for the remainder of the rent for the term of the lease: they have an obligation to try to find a replacement tenant, to mitigate the damage. Some relief is available to the landlord in the deposit, from which the unpaid rent might be deducted, but let's assume that after that, the actual damage suffered is $5,000. When you sue a person in your home state, the court serves official notice that the defendant must appear to answer the charges, and the state has jurisdiction over the respondent because they are in that state. Giving notice and collecting on a judgment across jurisdictions can get complicated and expensive, so it would depend on what kind of treaties exist between the countries. There is the Hague Service Convention which may simplify the business of giving notice to parties, which works if the respondent fled to Norway or India but not if they fled to Somalia or Turkmenistan. Since it turns out the US is not party to any multinational treaty recognizing foreign judgments, that country is not obligated to care about a US judgment, so unless the person left assets in the US, you may not be able to collect. You could sue in the person's country (hire a local attorney to pursue the matter). The main legal question would be whether there is any conflict between the lease and local law: while the basic idea of a lease is universally recognized, there may be peculiar conditions or procedures applicable in that country. (Norway has some laws pertaining to "shared utilities" which don't exist in the US, which might put a US lease at odds with Norwegian law, and there are rent-raising rules that don't exist here). It might be necessary that you appear in court in that country to swear under oath that the lease was agreed to voluntarily, or the court may require a special form of 'notarization' not available in the US. None of that renders international litigation impossible, though a favorable judgment might be unlikely in some courts. The cost of litigation might be much higher than what would be awarded by a court. | If you had an agreement that amounts to a contract, it is binding even if it was informal. However, if your agreement was not in writing, it might be hard to prove. You can easily prove that you transferred money to the other party. But can you prove that it was a loan an not a gift? And even if it is agreed to be a loan, if no repayment time was specified, what says that the debt is due now? Was the agreement really for a loan repayable on demand? The court would have to determine what your real contract was, or what contract can be implied from the actions of the parties. Also, if you are in a common-law jurisdiction, there could be a question of what consideration there was for the loan. Without consideration, there is no valid contract in such a jurisdiction. Perhaps a promise to repay could be treated as sufficient consideration. Small-claims courts do deal with unclear verbal contracts on a regular basis, but the outcome will depend on the facts of the case, and on the details of local law. It might be wise to consult a local lawyer with small-claims experience. A single consultation should not be too expensive. In response to comment If the "written binding agreements" include a statement from the other person that this is a loan, and a promise to repay it, you are in a stronger position than I had thought from the original question. The question for the court would be, since there was no due date agreed, what is a reasonable date to impose. The court might treat it as a loan repayable on demand, or specify some particular date for repayment. | The thing I was trying to zero in on was the work/refresh/renovation that needs to be done between tenants, and if they landlord can expect to do it while Tenant A is still paying (up to the date of the 'lease change'), but expecting that Tenant A has vacated before that date, or allows the work to be done while they are still occupying? The first tenant is not required to relinquish possession of the premises while the first lease is in force. The landlord's right of access to the apartment remains unchanged from those specified in the lease and in state landlord-tenant law. So basically the landlord has to wait until the first tenant leaves before doing most of the work. If the first tenant relinquishes possession of the premises before the end of the lease period, the landlord can keep charging rent until the premises has been re-let to a new tenant. But if the landlord has agreed to stop charging rent when the first tenant moves out, the landlord may be bound by that agreement. If the landlord has signed a second lease with a new tenant beginning immediately after the first tenant's mutually agreed early move-out date, then the landlord basically has no time available to fix up the apartment except with the consent of one tenant or the other. | In general, the words "due on" take on their ordinary meaning - that is, that the performance of a contract is required on or before the date specified. If it is not specified in the contract, a court will look to what is reasonable in the circumstances. For instance, if payment is due to a company that trades 24 hours a day including the day payment was due, then payment up until midnight may be found acceptable. However, if it is not known to the person making the payment that the business has such extended hours, and especially if it is known that the business has normal hours, then payment after close of business would likely not be reasonable. To your question, and having reviewed some Canadian residential rent legislation, although none define due on specifically - and I would not expect them to do so - most have clauses which provide for termination, and they only refer to serving notice either a certain number of days after rent falls due, or the day after rent falls due. This would tend to support my assertion that rent is payable on or before the specified date, unless the contract says otherwise, in line with the above considerations. NB: While rent is usually payable in advance, this simply means that you are paying for the occupancy during that follows, or substantially follows, rather than the period that has elapsed. | I am not a lawyer; I am not your lawyer. You do not cite a jurisdiction so this makes it very difficult to get a definitive answer. What follows is for Australia but the general principles are common law and would be applicable to other common law jurisdictions except where statues apply or case law has diverged. In the first instance, it seems that you were not party to any arrangement to pay for the electricity. So on the face of it you are not party to any contract requiring you to pay. Even if there was such an agreement: family, domestic, social and voluntary agreements (which this would be) are presumed not to be intended to legally bind the participants. Whether this presumption would be overturned would depend on the specific facts. On the face of it, there is no legal obligation to pay. Your options are: Do nothing; this puts the ball in their court, they can: Forget about it (it would then be over) Attempt to sue you with little prospect of success (which would cost them and you a lot more than $50 irrespective of who won) Do something illegal like beating you up (you really need to assess this risk) Tell everyone they know (in person and on social media) what a skiving prick you are (you could probably sue them for damages but that's not really going to happen, is it?) Pay them what they are asking Offer to pay them something less. Option 1 is likely to break any relationship you have with the person, Option 2 is likely to preserve it and Option 3 could go either way. Ultimately, like most legal questions, this is not about the law; it's about relationships ... broken ones mostly. |
Does any venue in the US have Jurisdiction to prosecute the WHO? Lawsuit filed against WHO over its handling of coronavirus outbreak: https://abcnews.go.com/International/lawsuit-filed-handling-coronavirus-outbreak/story?id=70264726 Selected excerpts from news article: Richard Kling and Steve Rotker of New Rochelle and Gennaro Purchia of Scarsdale, filed the suit in White Plains federal court Monday and claimed they suffered "injury, damage and loss" because of the outbreak and want the WHO to pay "incalculable" damages. Steven Blau, the attorney representing the plaintiffs, argued WHO didn't do enough to ensure the Chinese government was transparent of its COVID-19 safeguards. "The Chinese government and the WHO intentionally misled the international community, including the named Plaintiffs, about the coronavirus and its devastating medical and economic effects,” It is unclear which statute is violated. How is it possible for a multinational NGO to be prosecuted for unsuccessfully containing a pandemic? UPDATE: Missouri AG file similar lawsuit against China The lawsuit “seeks recovery for the enormous loss of life, human suffering, and economic turmoil experienced by all Missourians” caused by the coronavirus pandemic. Several defendants are identified, including the CCP, China’s health ministry, the governments of Hubei province and the city of Wuhan, and the Wuhan Institute of Virology. The suit claims that these entities were negligent in attempting to contain the initial outbreak in Wuhan, and that they deceived the international community as to the prevalence of the outbreak. While the Foreign Sovereign Immunities Act of 1976 generally prevents Americans from suing foreign governments in U.S. courts, there are certain exemptions embodied in the legislation which are targeted in the lawsuit. | The Proper Defendant As a preliminary matter, it would be necessary to determine who the proper defendant was in the case, in order to analyze it further. The World Health Organization (WHO) is probably a different legal entity from the United Nations (UN) itself and merely affiliated with the UN from a legal perspective, rather than being legally considered to be an agency of the UN. So, the WHO rather than the UN would be the proper defendant. Subject Matter Jurisdiction Federal courts have limited "subject matter" jurisdiction and this must always be analyzed before other jurisdictional considerations are considered. But, U.S. District Courts are allowed to adjudicate civil lawsuits where the amount in controversy exceeds $75,000 and the defendants are not citizens of the same U.S. state. This is a civil lawsuit, the amount in controversy exceeds $75,000, the plaintiffs are citizens of New York State, and the Defendant is not a New York State entity. So, the federal court has subject matter jurisdiction over the case. Venue Venue is proper in a federal district court if the district court can assert personal jurisdiction over the defendant. A district court, in turn, has personal jurisdiction over any defendant over whom a state court of general jurisdiction in the state where the district court is located would have personal jurisdiction. Note, as an aside, that where none of the events giving rise to the suit took place in the state, and the defendant does not reside in the state, any of the U.S. District Courts in the state is a proper venue, whether or not the Plaintiffs reside there, if the general jurisdiction state courts of the state would have personal jurisdiction over the Defendant. Personal Jurisdiction General Jurisdiction It appears that the WHO does not have a permanent office for the conduct of business in the United States (it's headquarters is in Switzerland and none of its regional offices are in the U.S.), although it might have a full time representative at the UN offices in New York City. Therefore, a federal district court in New York State (or a state court in New York State) would probably not have the authority to assert "general personal jurisdiction" (i.e. jurisdiction over any case against the defendant without regard to how it arose) over the WHO because this is not a "headquarters" or equivalent permanent office in New York State. Specific Jurisdiction To have "specific personal jurisdiction" over over the WHO (i.e. arising from the facts of the particular case and limited to that case), the WHO would have to have taken actions directed as someone within the state in which the District Court in question is located which would suffice to personally avail itself of the laws of that state and the United States. Failure to adequately take actions in China for the general benefit of the world, would not suffice to meet that standard. While the injury may have occurred in New York State, the actions alleged did not occur in New York State and were not directed in any particular way to New York State as opposed to anywhere else, and no one is alleging that the WHO intentionally or negligently itself sent coronavirus germs to New York State, even if it may have failed to take certain steps that it had a duty to take, and that failure made the arrival of those germs in New York State possible. Tag Jurisdiction A third way to acquire personal jurisdiction in some cases is called "tag jurisdiction." "Tag jurisdiction" provides a court with personal jurisdiction over an individual in a particular case in the state where personal service of process upon that individual took place, without regard to other considerations. But, "tag jurisdiction" does not apply to entities such as the WHO. Governmental Immunity Moreover, even if a U.S. District Court did have personal jurisdiction over the WHO, this action would be a "tort" action and the WHO would also almost certainly have some form of sovereign immunity under U.S. law from a tort action of this type. The relevant U.S. statute is the International Organizations Immunities Act (full text here). The key provision for purposes of this question is 22 U.S.C. §288a(b) which states: International organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract. The definition of an International Organization for the purposes of the act is 22 U.S.C. § 288 which provides a general rule protecting international organizations in the absence of an executive order to the contrary. The President may revoke an international organization's immunity prospectively by executive order (except in the case of 13 organizations who are covered by a specific statutory provision; the WHO is not one of them), but neither a private organization nor a U.S. state or local government, may do so. And, an executive order purporting to revoke an organization's immunity retroactively would be void as an ex post facto determination. Conclusion In summary, then, this lawsuit will very likely be dismissed either for lack of personal jurisdiction, or on account of an immunity from tort liability doctrine, in response to a motion to dismiss, without ever getting any further. It might also be dismissed for failure to state a claim upon which relief can be granted on other grounds (e.g. the lack of a legal duty or the lack of plausible allegations sufficient to support the claim that the WHO's actions or inactions were a legal cause of the harm suffered). Footnote Re Legal Basis For The Claim On The Merits It is unclear which statute is violated. It would be unusual for a claim for personal injury to arise under a statute. Most claims for personal injury are brought on the basis of a common law claim of negligence which would arise from the case law of New York State's state courts in this case (pursuant to the Erie doctrine). A negligence claim has four canonical elements: The existence of a legal duty (normally the legal duty to use reasonable care to refrain from causing injury to others) of the defendant that runs to the plaintiffs. Breach of the legal duty by the defendant. The causation of the damages alleged by the breach of the legal duty by the defendant in a foreseeable manner. Actual damage to the plaintiffs. | Since wolves physically cannot construct and legal petitions pro se, they can't sue in courts on their own. However, the same is true of various humans. The real legal question is whether a wolf (or other animal) has standing to sue (with the aid of a crafty attorney). The question is not entirely decided in the US, but the odds for animals having standing in court are poor. In the case of Naruto v. Slater, 888 F.3d 418, a macaque in Indonesia took some selfies with an unattended camera. The camera owner published the photos and claimed copyright: PETA and others then filed a copyright infringement lawsuit against the photographer, acting on behalf of the macaque (assigned the name Naruto). The court dismissed the case, but the specific reason was that PETA failed to assert "next friend" status, especially that "the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner". In an earlier decision, Cetacean Community v. Bush, 386 F.3d 1169, the court do not have statutory standing under the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Administrative Procedure Act. But there is also Article III (constitutional) standing. The court notes that Article III does not compel the conclusion that a statutorily authorized suit in the name of an animal is not a "case or controversy." As commentators have observed, nothing in the text of Article III explicitly limits the ability to bring a claim in federal court to humans. ... It is obvious that an animal cannot function as a plaintiff in the same manner as a juridically competent human being. But we see no reason why Article III prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents. Indeed, in Palila v. Hawaii Department of Land & Natural Resources, 852 F.2d 1106, the endangered finch palila sued, being represented by attorneys for the Sierra Club, Audubon Society, and other environmental parties. The lawsuit was successful, in part because the court reasoned that the bird ( Loxioides bailleui), a member of the Hawaiian honeycreeper family, also has legal status and wings its way into federal court as a plaintiff in its own right. The Palila (which has earned the right to be capitalized since it is a party to this proceeding) is represented by attorneys for the Sierra Club, Audubon Society, and other environmental parties who obtained an order directing the Hawaii Department of Land and Natural Resources ("Department") to remove mouflon sheep from its critical habitat. Sports hunters, represented by the Hawaii Rifle Association, among others, had intervened to dispute the contention that the Palila was "harmed" by the presence of mouflon sheep. However, the main reason why the suit succeeded was that defendants failed to argue that the bird did not have standing. The Cetaceans court referred to the Palila case (also 9th Circuit), and dismissed that statement as "nonbinding dicta". Their discussion is then followed with numerous cases where the Palila statement is found to not be a binding holding. There have been some successes, Marbled Murrelet v. Pacific Lumber Co, 880 F. Supp. 1343, in dicta states that Thus, as a protected species under the ESA, the marbled murrelet has standing to sue "in its own right." Marbled Murrelet v. Babbitt, No. C-93-1400-FMS, slip op. at 9, n. 4 (N.D.Cal. Sept. 1, 1993) (quoting Palila, 852 F.2d at 1107.) See also Loggerhead Turtle v. County Council of Volusia, Florida, 896 F.Supp. 1170. | Greendrake's answer says that a country can declare any jurisdiction it likes. This is true, but in practice it is the convention that a country should claim jurisdiction only over its territory and its citizens. The point about "citizens" is normally not pushed, as when you go to a foreign country you are normally subject to its laws rather than those of your home, but for instance there are laws against child sex tourism where the perpetrators can be prosecuted at home for offences committed abroad. However this basic principle gets more murky with long-distance communication such as the Internet. Someone in country X can, for example, provide a service to someone in country Y which is illegal in country Y. At this point the laws of country Y have been broken by someone sitting in country X. Y is not claiming extraterritorial jurisdiction; the crime occurred inside its own territory, but the criminal is currently resident in X. From a legal point of view this is the same as if both had been inside Y when the crime was committed, but then the perpetrator fled to X before they could be arrested. So in the Kim Dotcom case, Dotcom is alleged to have committed criminal copyright violations by supplying movie files to people in the US. In the Meng Wanzhou case, Meng is alleged to have made fraudulent statements to American banks to the effect that Huawei was complying with US sanctions law (otherwise those banks would not have been able to do business with Huawei). The accounts I've read don't say whether Meng was in the US for those meetings, but the fact that they were made to American banks in order to do business in America makes the precise location of the meeting irrelevant. | Partial answer (other parts of an answer would be jurisdiction specific): Would this constitute a slander lawsuit against the group of employees and outside agency? The employee falsely alleged to be mentally ill would be the plaintiff who would be the only person who would have standing to bring suit. The person allegedly making a false statement to someone other than the employee alleged to be mentally ill (an action which is called "publication" of a false statement) would be the defendant(s). Listening to an allegedly false statement about someone is not slander, nor is believing it to be true. In the U.S., in most cases, knowledge of the truth or reckless disregard for the truth (or at least negligence in getting the facts wrong in private persons cases not involving a public interest) is necessary to establish liability. Someone who doesn't know that a statement is false and has some basis to believe it is true, can't be guilty of slander. In many non-U.S. jurisdictions, slander liability is possible without knowledge that the statement made is false (and without reckless disregard for the truth or falsity of the statement). Also, it matter who the "outside agency" is in this case. Governmental agencies are typically immune from liability for slander for statements made in the course of their official duties. Without a fuller understanding of who is saying something and why, it is hard to evaluate the claim appropriately. | In the US, there are a number of non-government organizations which take on such cases, such as the ACLU or the Institute for Justice; individual law firms may also take such cases pro bono. There is no automatic right to free representation in case a constitutional issue is alleged, so if IJ doesn't like your case they won't take it. These are private organizations: there is no general government agency that one can call on, other than the Public Defender's office in case you are charged with a crime and can't afford legal defense. (A constitutional issue may arise in a case that a PD might handle, but you can't e.g. call on the public defender to sue the government for infringing your 2nd Amendment rights.) A state attorney general could file suit against the US government over a constitutional issue, as Washington's AG did in the case of the Trump travel executive order, where the underlying issues were constitutional. An individual might inspire a state AG to take on an issue, but the AG would be representing the interests of the state, broadly, and not individual interests. | In the U.S are judges, attorneys, physicians, teachers, professors, politicians, administrative officers liable for ordinary negligence? In the U.S., judges, prosecuting attorneys and legislators have absolute immunity from civil liability (but not from criminal liability) for legislative and judicial acts in their official capacity. Attorneys have absolute immunity from civil liability from some claims from some people (e.g. defamation claims from non-clients for statements made in connection with representing someone) and qualified immunity from civil liability from others (e.g. most claims of non-clients) for their acts as lawyers, but are liable to their clients for ordinary negligence. Physicians are liable to their patients for ordinary negligence in the nature of medical malpractice. Some acts taken by physicians that would otherwise constitute false imprisonment or assault or homicide are excluded from the definition of those crimes. Elected officials in the executive branch including mayors, law enforcement officers and the attorney general have qualified immunity from civil liability for their official non-judicial acts. This means that they are only liable for intentional violations of constitutional rights that are clearly established in the law. Subject to narrow exceptions (e.g. driving or medical malpractice) they are not liable for ordinary negligence. It is hard to know what kind of liability is contemplated for teachers and professors or administrative officers to answer. The answer would not be the same for all kinds of claims. Teachers of minors generally have the same immunities as a parent with respect to the use of physical force towards their students in order to maintain order in the educational process. The liability of teachers and professors also depends upon whether they are employed by public or private institutions. Those in public institutions often have more protections from liability, but also have exposure to civil rights claims that those in private institutions are not. Contractual waivers can also influence liability in these circumstances. Everyone has liability for ordinary negligence in their unofficial capacity and for many acts (e.g. driving a car) while on duty but not involving activities particular to their professional responsibilities. They are not employees or workers so that they could be reasonably absolved for ordinary negligence. We expect employees to be obedient so they have no moral responsibility, if we held them liable we would harm the market people would be reluctutant to enter a contract of employeement. In the private sector, employees are usually liable for ordinary negligence that they personally commit, even though the employer is also liable. Judges are employees and arguably workers as well. And, for their non-judicial acts, judges have the same liability as every other employee for their ordinary negligence. For example, if a judge gets in a car accident while driving from one courtroom to another, and harms another through negligence, the judge has personal liability for the judge's ordinary negligence and the judicial branch has vicarious liability for the negligence of its employee, the judge. In all these of judges etc cases they receive more than enough indenization for assuming responsibility. By freeing them from ordinary negligence we are making them negligent. Other than political economics why would the legislator free them from such responsibility? Analysis of why the law is the way it is, or what it should be, are really better suited for Politics.SE than for Law.SE. I discussion of the why's of judicial immunity is appropriate for Politics.SE. A discussion of "judges etc" is probably to broad for either forum. | Maybe, but probably not, although this would be a question of fact to resolve on a case by case basis under broad legal standards by a jury, and would also depend upon the state where it took place, and upon the nature of the employer of the paramedic. The hypothetical facts in this case are rich enough and ambiguous enough that the case could go either way depending upon how it was presented and what could be proven at trial. This is a case it would be good to take to a medical malpractice/personal injury lawyer in the jurisdiction where it happened to be evaluated. Usually a PI lawyer would not charge you for doing so or would ask for only a nominal fee. Additional factual investigation would probably also be necessary regarding some of the key facts identified below. It's complicated and there are multiple issues presented in this case where the law is not uniform from state to state. The general rule is that a medical professional has to carry out the delivery of medical care to a patient with the reasonable care that would be taken by a medical professional of that type. If the medical professional fails to take reasonable care, and that negligence failure to do so causes injury, then there is civil liability for medical malpractice. A threshold issue would be whether a medical professional-patient relationship was established. This would be a question of fact for a jury and would be a question upon which various potentially applicable state and federal laws would often not be uniform. On these facts, it could easily go either way. In federal court and in a majority of state courts (although there is variation from state to state) you need to know the name of the paramedic you dealt with who provided the bad advice to bring a successful lawsuit before suing. In a minority of states, you could sue first and get the name of the paramedic in discovery through the court process from the hospital after the lawsuit was commenced. The standard of reasonable care liability in this case would be judged by the standard of a reasonable paramedic, not a reasonable doctor. But, often states would have statutes that would limit the liability of paramedics in these situations to liability for gross negligence (which the facts in the question would probably not suffice to show), but not for ordinary negligence (which a jury could come out either way upon and which would hinge heavily on expert testimony). These tort reform type laws differ considerably from state to state. Whether or not particular conduct was negligent or grossly negligent, is a question ultimately decided by a jury under very broad and general legal standards after the fact in a trial, based largely upon expert testimony, on a case by case basis, unless the facts are unequivocally clear one way or the other, which is rarely the case. With my layman's level of knowledge about what a reasonable paramedic should be able to diagnose, I could see this determination going either way. Two cases with identical facts in front of the same judge in separate trials, in which juries are presented with exactly the same evidence could come out differently. The resolution of one case of the question of whether a particular act constituted negligence giving rise to liability is not binding as precedent and is not admissible as evidence in another case (subject to a narrow exception called "collateral estoppel" which applies when the same individual is sued by multiple people for the same conduct in different lawsuits that have resulted in final orders resolving key questions of fact that the lawsuits have in common). Many states would require that someone suing the paramedic have a medical professional certify that the paramedic's actions constituted legal negligence before the suit could go forward in a court. If there is a medical professional-patient relationship, and if the medical professional was found to have negligently caused injury, the medical professional's employer would have vicarious liability in some (but not all) states under a respondiat superior doctrine. Usually, the paramedic at an ER would be an employee of a private EMS ambulance company or a municipal fire department, and not of the hospital that runs the ER. But, some hospitals have their own in house paramedics. Also, some hospitals are run by for profit or nonprofit private companies, some are state or local governmental agencies, and some a federal government agencies. Usually only a small minority of the medical professionals in a hospital are employed by that hospital, and most of them merely have "privileges" to provide medical services for which they bill patients separately while working for their own professional corporation through which they are self-employed. Legally, the hospital itself is more like a hotel or a WeWork office space than to being a firm that directly provides medical services, although it isn't quite that black and white. Holding the ER directly responsible for failing to have good triage policies, as opposed to holding the paramedic responsible and assigning vicarious liability to the employer of the paramedic, would be very difficult, although not necessarily impossible if the ER had official policies that fell far below the standard of care for emergency room triage. It would be very uncommon for an ER to have bad policies of this type. Typically, ERs are only held directly liable for bad triage policies when, for example, they have a policy of not evaluating at all someone who does not have health insurance, which is a practice expressly prohibited by federal law. If the paramedic's employer was a government entity such as a fire department or a government owned hospital, the paramedic would be entitled to absolute immunity from civil liability under the doctrine of sovereign immunity, unless an exception applied. Usually there is an express exception to absolute immunity for medical malpractice liability by a medical doctor who has established a doctor-patient relationship with a patient, when the medical doctor is employed by a state or local government, usually there isn't when the doctor is employed by the federal government. But these laws differ from state to state in fine details that matter in a case like this one regarding whether the exception to immunity from liability is limited to medical doctors or applies also to paramedics. Causation would also be an important factual issue for trial. There is liability only to the extent that taking a non-negligent action could have prevented the harm. If you are infected with COVID, one common consequence is a stroke, and if someone had a stroke while infected with COVID, the case that taking them to the ER would have prevented the stroke from doing serious damage in the long run is weaker. On the other hand, guessing that a stroke was really something else, might or might not be reasonable. The injured person would also have to prove that the EMS response occurred at a time within the roughly 1-2 hours after the start of a stroke when it is possible to take medical action that could do something about a stroke. If the stroke had already happened an hour and a half later and it was rush hour and would have taken half an hour to get to the nearest hospital, causation might be absent and there would be no liability. There would be a legitimate question of fact over whether there was an actual diagnosis and treatment, or whether there was a refusal to get treatment. The reasonable care test is a balancing test. It takes into consideration not just the potential benefits of taking action, but also the cost that would be incurred if action was taken, and the downside risks of a proposed action. The paramedic's concerns about getting a COVID infection at the ER when the person responded to didn't appear to have it at the time would make the cost of a false positive diagnosis higher and would thus influence what would constitute reasonable care in this situation as the jury applies the relevant legal test. Liability would be evaluated based upon what the paramedic reasonable understood he was being told. This would be a question of fact for the jury. It is likely that different people who were present understood what was being said differently. Even if bystanders understood what was being said and meant, what matters is what the paramedic reasonably understood was being said and meant. Given the communication difficulties involved, that question could go either way. | The other answers have addressed the letter of the question you asked, but I wanted to correct a misconception in your question statement: ... It's bad enough to suffer some horrible side effect, but not even being able to seek compensation is just the last straw. Note that under the PREP Act, you can seek compensation from the government if you are injured by a covered vaccine, including (at this time) a COVID-19 vaccine: The Public Readiness and Emergency Preparedness Act (PREP Act) authorizes the Countermeasures Injury Compensation Program (CICP) to provide benefits to certain individuals or estates of individuals who sustain a covered serious physical injury as the direct result of the administration or use of covered countermeasures identified in and administered or used under a PREP Act declaration. The CICP also may provide benefits to certain survivors of individuals who die as a direct result of the administration or use of such covered countermeasures. The PREP Act declaration for medical countermeasures against COVID-19 states that the covered countermeasures are: any antiviral, any drug, any biologic, any diagnostic, any other device, any respiratory protective device, or any vaccine manufactured, used, designed, developed, modified, licensed, or procured: a. to diagnose, mitigate, prevent, treat, or cure COVID–19, or the transmission of SARS–CoV–2 or a virus mutating therefrom; or b. to limit the harm that COVID–19, or the transmission of SARS–CoV–2 or a virus mutating therefrom, might otherwise cause; So it is incorrect to say that you would be unable to seek compensation if you were injured by Pfizer's COVID-19 vaccine. You would just have to seek compensation from the government rather than suing Pfizer. As noted in the other answers, this protection under the PREP Act will lapse by October 1, 2024. However, it is also entirely plausible that this vaccine will be recommended on a regular basis going forward, in which case it would end up being covered by the National Vaccine Injury Compensation Program instead. This program is designed to protect manufacturers of vaccines that are routinely administered to children and pregnant women, the idea being that the threat of costly lawsuits might otherwise dissuade manufacturers from making such vaccines. Your seasonal flu shot, for example, is covered under this program; if you sustained an injury from that shot, you would be able to file a claim for benefits under this program. If we end up in a situation where COVID-19 vaccines are required regularly for most people (which seems entirely plausible at this point), then I would wager that they would end up being folded into this program. |
Can one avoid paying US income tax by being paid in Bitcoin? Is it possible for a U.S. citizen to evade income tax by being paid in Bitcoin? | No. You have to pay taxes no matter what currency you are paid in, or for that matter, in most barter transaction as well. You would have to pay taxes even if you were paid in goats. Also, the counter-parties in transactions in which you are paid in Bitcoin and earn money often have an obligation to file information tax returns to the IRS. If you don't report the income, both you and any counter-party subject to reporting requirements could be liable for the tax as well as for penalties and interest and possible criminal charges as well for intentionally evading taxation and filing false tax returns. | The company probably owes U.S. and state corporate income taxes because income from services performed in the United States are usually considered "effectively connected" with the United States. The fact that the servers are located in the U.S. is pretty much irrelevant, relative to the fact that the services are performed while located in the United States. I can't think of a single tax case that has ever turned on the location of the servers in a company. Unlike a U.S. company, a foreign company is not taxed by the U.S. on its worldwide income, nor is the individual, a non-resident alien (having an F-1 visa rather than a green card) taxes on the individual's worldwide income. But, a non-U.S. person is still taxed on income that is effectively connected with the United States. Generally speaking income from property is not effectively connected with the United States merely because it is managed by someone located in the U.S., so if the company had owned an apartment in Brazil that it received rental income from, for example, that would not be subject to U.S. taxation. Also income from intangible property (like interest payments on loans or dividends on publicly held stock) is generally not subject to U.S. taxation if paid to a non-resident, non-citizen of the U.S. But, generally speaking, income from the performance of services is taxable in the place where the services are performed. For example, Colorado can impose state income taxes on income earned by a Texas baseball player while playing at a stadium in Denver. The lack of a salary or employee status shouldn't change the fact that the income received by the company from performance of services in the U.S. is effectively connected with the United States. When the owner performs services in the U.S., the company is performing services in the U.S. and so it is subject to taxation in the U.S. Dividend payments from the offshore company probably wouldn't be subject to U.S. taxation in this scenario, but the company itself would be subject to corporate income taxes in the U.S. from the profits it earned from the services performed in the U.S. | The "point" of including bank-interest income on your tax return rather than having the government automatically deduct what it feels that you would owe is that the government is not legally empowered to take money away from you in that fashion. The government is legal empowered to compel you to pay your taxes, and there are numerous rules enacted as law or as a consequence of laws passed. You can read the various relevant laws here. There simply is no general law that says that banks must withhold taxes on interest. There might be a specific case when an entity is subject to backup withholding (as a response to a taxpayer not following certain rules). There are also special rules regarding non-resident alien withholding, which could require interest withholding. Apart from the intrinsic political unpopularity of imposing new withholding requirements on people, it is difficult to compute the correct amount to withhold, since not all interest is taxable. In theory, a set of rules could be constructed to require withholding of interest income, if Congress were to pass a law similar to 26 USC 3402. | 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. | Yes, it's illegal. 18 USC 1030 (a) (5) (A) [Whoever] knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer [shall be punished as provided in subsection (c) of this section]. "Damage" is defined at (e)(8) to mean "any impairment to the integrity or availability of data, a program, a system, or information". Your proposed attack would certainly cause impairment to the availability of the Stack Exchange system and the data and information which it hosts. Whatever else you may think about the Stack Exchange terms of service, they certainly do not authorize any user or moderator to "destroy the site" in any sense such as you describe. It's not necessary for the TOS to explicitly say "you may not do X"; it's enough that they don't say that you may do it. To use a firewall analogy, it's "default deny". "Protected computer" is defined in (e)(2) to mean, essentially, any computer that is used in or affects interstate commerce. Which means practically every computer that has ever accessed the Internet, and certainly includes Stack Exchange servers. So your proposed attack would include all the elements of a violation of this section. Such a violation is punishable by up to five years' imprisonment if it causes a loss of more than $5000 (see (4)(A)(i)(I)), which if such an attack were successful, it certainly would. Greater penalties are possible in certain circumstances. Even if the loss does not exceed $5000, or if the attack is merely attempted but without success, it is still punishable by one year imprisonment or a fine ((4)(G)(i)). There is nothing in the terms of service saying you will go to federal jail for destroying stack exchange. Irrelevant. It is not up to Stack Exchange Inc. or its TOS to determine who does or doesn't go to federal prison. Rather, it is up to Congress to determine what conduct deserves such punishment (as they did in 1984 by enacting this law), up to federal law enforcement and prosecutors to investigate and make a case against an alleged violator, and up to the federal courts to determine if the accused is guilty and how they should be punished. | Yes. Content not created by a user is not protected by Section 230, and if the platform agents or employees begin to substantively edit content, the platform becomes a co-author rather than merely a platform for that content. | It's illegal under US law. 18 U.S. Code § 478 says: Whoever, within the United States, with intent to defraud, falsely makes, alters, forges, or counterfeits any bond, certificate, obligation, or other security of any foreign government, purporting to be or in imitation of any such security issued under the authority of such foreign government, or any treasury note, bill, or promise to pay, lawfully issued by such foreign government and intended to circulate as money, shall be fined under this title or imprisoned not more than 20 years, or both. There are several similar laws for similar crimes: § 479 - Uttering counterfeit foreign obligations or securities § 480 - Possessing counterfeit foreign obligations or securities § 481 - Plates, stones, or analog, digital, or electronic images for counterfeiting foreign obligations or securities § 482 - Foreign bank notes § 483 - Uttering counterfeit foreign bank notes § 488 - Making or possessing counterfeit dies for foreign coins § 502 - Postage and revenue stamps of foreign governments According to version of the South Sudan penal code I was able to find, counterfeiting is illegal. But if I understand section 7 correctly (which I might not), most counterfeiting is not prosecutable under South Sudan law if it is not done in South Sudan. Having a counterfeit revenue stamp, however, would be, as would fraudulently altering a coin. Given that there's not an extradition treaty and that it's already illegal under US law, this probably doesn't matter much, though | There are vendors providing software to facilitate this sort of task. Avalara is perhaps the best known, but I don't have any experience with it and couldn't say whether it's actually any good or not. But the bottom line is that in a destination-based sourcing regime, sales taxes must be computed based on the address of the destination, not city or ZIP code associated with that address. As Avalara has noted, this is a giant hassle, but it's nonetheless the current state of the law. Of course, this assumes the seller has sufficient nexus with Louisiana to trigger a duty to collect sales taxes in the first place. From the question, it is not clear whether this is true. |
Do Bitcoin banks need a banking license? Or consider any currency with no intrinsic link to any other currency or form of capital (i.e., not backed by USD or gold or anything like that), and note that the issuer/bank would not itself offer currency exchange. Also, would they register as a bank in the state where the server is located? What if there were servers/customers in multiple states? What laws apply, and how would one best comply? | Given that you're centrally keeping customer financial assets, you're looking at a banking license. At that point, the question is not whether you need a lawyer, but how many. "Note that the issuer/bank would not itself offer currency exchange". Neither the Fed nor the ECB do, and quite a few smaller commercial banks also do not offer currency exchange. Doesn't matter, still banks. How many of the banking laws apply would depend on the customers, and services offered to these customers. So far you've only excluded currency exchange, which means that pretty much every banking law might still apply. You seem slightly hung up on the digital part. That's not how the law works. You'll need a banking license where you're operating your bank, not where its infrastructure is located. And yes, not meeting the requirements for registering a bank (whether financially, regulatory, or legally) will stop your idea in its tracks. This is one of the cases where "talk to a lawyer" might not be the appropriate response, but "hire a legal team". | You ask them explicitly, maybe adding that you need that info specifically to calculate tax. IP address is not reliable because your customers could be using VPN, Tor, or be on vacation overseas. (By the way, "IP" on a website about law would more likely be understood as "Intellectual Property", not "Internet Protocol address".) | The bank has the legal right to refuse to do business with you. There are exceptions but "wanting to deposit 600k" is not a protected class. The FDIC limit is 250k. Since the bank has chosen not to accept deposits larger than that, you need to split it across multiple banks or find a bank willing to take it. | That a company (C) has a website that can be accessed from a given county does not mean that the company operates in that country. If C is located in country A, markets and advertises to country A, offers products designed to appeal in country A, has its site only in the primary language of country A, uses servers located in country A, and has all its assets and physical offices in country A, it is not operating in country X, even if a few people from X do business with C over its web site. Country X may have laws which claim to apply to C or its web site. It will find it hard to enforce those laws, particularly if owners and officers of X do not travel to X. It will find it hard to extradite anyone for violations of the laws of X unless those actions are also crimes under the laws of A. If X is a major, powerful country such as the US, the UK, or the EU it may be able to get A to enforce its court orders, or to use its influence over the banking system to impose penalties on C. If X is North Korea, or even Brazil, it is probably out of luck. Thus the management of C needs worry primarily about the laws of A, and to a lesser extent the laws of major countries that make some effort to enforce their laws outside their own borders, such as the GDPR, or certain US laws. It probably has little reason to worry about the laws of other countries. If A is itself a major country that can easily resist any pressue from X, C has even less reason to worry. If C does significant business in countries D and E, and particularly if it opens physical offices in D or keeps assets in E, it will have much more reason to worry about the laws of D and E. If it does advertising in the D & E markets, this also gives C more reason to be concerned with their laws. There is always some risk of X finding a way to enforce its laws, but the risk is small. | You have been scammed - report this to the police. There is little to no chance this person will ever be found or that if they are that you will get your bitcoins back from them. On the plus side, for the bargain price of $9,500 you have learned never to trust a cheque until it is cleared. You do, however, have avenues with your bank. You can ask Westpac what redress they will make. You can make a formal complaint to their complaints department. You can then go to the Financial Ombudsman Service. Legally, I don't think you have a leg to stand on as your releasing goods on the basis of a pending cheque is your own idiocy, however, the bank may make some redress as a commercial decision to a loyal customer. | “Real property” is land and things attached to land Everything else (including Bitcoin) is personal property. Therefore, since the 2017 amendment, Bitcoin is not captured by the s1031 like-kind transfer exemption. However, the article you link to is discussing its treatment before the amendment. | Do the exchanges need to check with each government to make sure the information is valid? Or is submitting documents enough? They need to understand the (usually very complicated) laws governing financial services and data protection in every jurisdiction where they operate. The specific requirements will vary from one jurisdiction to the next. The usual way of acquiring this understanding is to hire a lawyer (or several). | It doesn't even have to be pennies. Any cash denomination is open to discretion. The Federal Reserve tells us "There is, however, no Federal statute mandating that a private business, a person, or an organization must accept currency or coins as payment for goods or services. " |
Official dictionary of the U.S. judiciary system? Someone recently mentioned the "plain meaning" rule in one of my questions about statutory interpretation. Is there an official dictionary - like Merriam-Webster - that judges are supposed to rely on? Or do we assume that any of the leading publishers of dictionaries have essentially identical definitions? | I don't believe there is a single "standard" dictionary that judges use. Presumably any well regarded and common one will do as long as it can be cited. You can see from Justice Alito's opinion in Intel Investment Policy Comm vs Sulyma that he references several dictionaries. Although ERISA does not define the phrase “actual knowledge,” its meaning is plain. Dictionaries are hardly necessary to confirm the point, but they do. When Congress passed ERISA, the word “actual” meant what it means to-day: “existing in fact or reality.” Webster’s Seventh New Collegiate Dictionary 10 (1967); accord, Merriam-Webster’s Collegiate Dictionary 13 (11th ed. 2005) (same); see also American Heritage Dictionary 14 (1973) (“In existence;real; factual”); id., at 18 (5th ed. 2011) (“Existing in reality and not potential, possible, simulated, or false”). So did the word “knowledge,” which meant and still means “the fact or condition of being aware of something.” Webster’s Seventh New Collegiate Dictionary 469 (1967); accord, Merriam-Webster’s Collegiate Dictionary 691 (2005) (same); see also American Heritage Dictionary 725 (1973) (“Familiarity, awareness, or understanding gained through experience or study”); id., at 973 (2011) (same). Thus, to have “actual knowledge” of a piece of information, one must in fact be aware of it. Legal dictionaries give “actual knowledge” the same meaning: “[r]eal knowledge as distinguished from presumed knowledge or knowledge imputed to one.” Ballentine’s Law Dictionary 24 (3d ed. 1969); accord, Black’s Law Dictionary 1043 (11th ed. 2019) (defining “actual knowledge” as “[d]irect and clear knowledge, as distinguished from constructive knowledge”). | I found an example of "is illegal" in RCW 78.52.467: "If the department believes that any oil, gas, or product is illegal...". There are some examples of "shall be illegal", e.g. RCW 39.84.050 "It shall be illegal for a director, officer, agent", where "illegal" is used predicatively. I tenatively conclude than the latter kind of use is less frequent that the adjectival use. Black's Law Dictionary 2nd Pocket ed does not include "illegal" except in some "illegal"+noun constructions, but it does list "unlawful" alone. "Unlawful" has been used since 1387 (J. Trevisa translation of Ranulf Higden Polychronicon), whereas "illegal" only goes back to 1626. Legal language tends to be very conservative, so the fact that "unlawful" got there first (aided no doubt by the fact that it is an Anglo-Saxon construction, not a medieval Latin borrowing) gives the term priority in legal usage. It sounds more legal to say "(un)lawful" that "(il)legal". | The term is "citation." In the citation you entered, U.S.C. refers to the United States Code, which is a compilation of every general permanent law Congress has passed that's organized by topic (and not by when it was passed). The US Code is developed by the Office of Law Revision Counsel of the House of Representatives, and is organized into (at the moment) 54 titles. The 29 is the title for the code section you cited; Title 29 deals with labor. Other titles include Title 10 (dealing with the military), Title 18 (crimes and criminal procedure), and Title 26 (income tax). There are levels of organization below the title, but they vary by title (e.g. Title 29 is divided into chapters, while Title 10 has five subtitles, divided into parts, and those are divided into chapters). The level where the actual text of the law is found is the section; when you're citing something in the US Code, you cite it by title and section (§ is a standard symbol for "section"). So 29 USC § 203(b) is section 203 of Title 29, subsection B. You don't include the fact that it's in Chapter 8 in your citation, because title and section is all you need to find it. | You are correct that "narrow tailoring" and "least restrictive means" are often treated as synonyms.1 For example, Professor Volokh describes narrow tailoring as having four components: advancement of the compelling governmental interest, no over-inclusiveness, the least restrictive alternative, and no under-inclusiveness.2 However, he says that the first "three components are closely related, and all of them could be subsumed within the 'least restrictive alternative' inquiry."3 The Supreme Court has sometimes equated strict scrutiny with the "least restrictive alternative" formulation, saying, "Unquestionably we have held that a government practice or statute which restricts 'fundamental rights' or which contains 'suspect classifications' is to be subjected to 'strict scrutiny' and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available."4 The court has also distinguished between narrow tailoring and a "least restrictive alternative" test, at least with respect to laws that infringe on speech: "Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so."5. The dissent in that same case described the majority's view as a "serious distortion of the narrow tailoring requirement", and said, "Our cases have not, as the majority asserts, 'clearly' rejected a less-restrictive-alternative test. [...] The Court's past concern for the extent to which a regulation burdens speech more than would a satisfactory alternative is noticeably absent from today's decision. The majority requires only that government show that its interest cannot be served as effectively without the challenged restriction."6. Some statutes remove any ambiguity, prescribing the "least restrictive alternative" test.7. In summary, certain areas of law (free speech, religious freedoms, affirmative action) have their own idiosyncratic treatment of strict scrutiny, narrow tailoring, and the "least restrictive alternative" test. It is always best to read the particular line of case law in the field you are interested in to see exactly what formula the court has established in that area. 1. Winkler, Adam, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts. Vanderbilt Law Review, Vol. 59, p. 793, 2006; UCLA School of Law Research Paper No. 06-14. At 800: "Narrow tailoring requires that the law capture within its reach no more activity (or less) than is necessary to advance those compelling ends. An alternative phrasing is that the law must be the “least restrictive alternative” available to pursue those ends." 2. Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pennsylvania L. Rev. 2417 (1997). 3. Ibid. 4. Regents of Univ. of California v. Bakke 438 U.S. 265 (1978) (Opinion of Justice Brennan, Justice White, Justice Marshall, and Justice Blackmun, concurring in the judgment in part and dissenting in part.) 5. Ward v. Rock Against Racism 491 U.S. 781 (1989) 6. Ibid. 7. The Religious Freedom Restoration Act, implemented in part in 42 U.S.C. §2000bb-1(b): "Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest." | No This term appears to have originated from an anonymous user of this site. Constiption is not a recognized legal concept, nor is it an English word in any other context. All DuckDuckGo hits are either SE questions or misspellings of "constipation". | First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept. That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows. | Why do attorneys have these? Originally to use as references, although some kinds of books (e.g. case law reporters, Shepard's citations, Martindale Hubble directories, and serial analysis of case law like Am. Jur.) are rarely used that way any more. When I started practice in the mid-1990s, it cost several hundred dollars an hour to access online legal sources (that were less comprehensive and had lower quality search functions than the service that comes free with my bar membership today), so the vast majority of legal research was done with hard copy case reporters, digests and annotated statute books. A complete set of case reporters for a single state would typically run to hundreds of volumes with new ones arriving monthly. A full set of Shepard's Citations (which told you if a case have been overturned or questioned in later cases or just where it was cited with approval) took roughly a full shelf of a full sized book case when limited to a single state. Any law firm that is at least fifteen or twenty years old needed them when they bought them and lawyers hate to throw anything away. Case law research is now predominantly online. The last time I used Shepard's citations and hard copy case reporters on a regular basis was a decade ago. Law journal research is also predominantly online now. I sent most of my uglier and numerous law books (including several dozen volumes of an outdated legal encyclopedia summarizing case law) to the recycling bin about six or seven years ago. Do they actually reference them, especially when so much information is searchable and indexed online? Lawyers still routinely use statute books in states where they practice, court rules, standard jury instructions, and to a somewhat lesser extent treatises on different areas of the law (including the Restatements of Law). Now and then, lawyers will still use a hard copy of a West Digest. And, I have yet to encounter a lawyer who doesn't have at least one or two decent sized book cases full of law books. In statutes and court rules (and regulations), typesetting details that can get mangled online are important and browsing a structured text can be easier to do on paper than online. There are some regulations available only in online versions that I print for ease of use (e.g. Colorado's marijuana regulations and its Medicaid regulations). I also print for ease of use my state's title standards (for use in determining if someone has marketable title to real estate), even though they don't have the force of law. I also keep a few hard copy model statutes with the official commentary. It can also be hard on the eyes to look at a computer screen non-stop all day, so looking at something you use regularly on paper can be a relief. Are the books updated regularly? or are these the books they graduated with, and are rarely changed out? Statutes and court rules and jury instructions are typically updated annually, following each year's legislative session. Treatises are updated with "pocket parts" every year, that are added to a hardbound edition that is updated at most, every several years. A pocket part is a softbound update with the same section organization as the underlying treatise that has a flap the fits into a pocket in the back flap of a hard cover treatise. Bigger "pocket parts" are printed as thin softcover bonus volumes to the original treatises. I also keep a current softbound "Bluebook" (the reference regarding how legal materials should be cited to in legal documents and legal scholarship) and several high end dictionaries including Black's Law Dictionary, the OED and a few others in hard copy (because browsing is easier when you don't know exactly how a word is spelled). I keep many of my law school textbooks, which some people do, and other people don't, and I buy new treatises especially when I move into a new area of law practice where background guidance is useful. Do the books exist purely for psychological impressions, or is there a utilitarian purpose? Both. Sometimes old books that don't have much ongoing practical use are kept on the shelves because they are pretty. For example, I don't really need a hard copy of my outdated New York State Statutes, but they look good (even though I practice mostly in Colorado and look up New York State statutes online when I need to actually use them). But, I use hard copy statutes and court rule books for the state where I practice on pretty much a daily basis and use hard copy treatises at least several times a week in my law practice. In that respect, I am not atypical, although I probably use hard copy books more than younger lawyers do. Of course, even among these books, some volumes are used much more often than others. I look at a volume of insurance industry regulation statutes at most, once a year, while I read the volume related to divorce and probate at least once or twice a week, for example. Hard copy books are also useful for pinning down the corners of blueprints and surveys when you are in litigation where those kinds of oversized paper documents are at issue. ;) | The Constitution of the United States: Analysis and Interpretation, also called the "Constitution Annotated", is the constitution of record: the only constitutional law treatise formally authorized by federal law, the Constitution Annotated functions as the official Constitution of record What version is authoritative can be meaningful. See William W. Van Alstyne, "A Constitutional Conundrum of Second Amendment Commas". And although phoog and I have provided different answers, I think we are both correct. The text as shown in the Constitution Annotated is what is universally accepted as the version to quote from in judicial submissions and reasons. But it's because it has drawn from the version in phoog's answer. Basically, the document in the archives is authoritative, but there is no need for writers and judges to go look at that when they are quoting, because the Constitution Annotated is deemed to have replicated that content faithfully. |
Lottery iOS App Would Apple allow an app where you can purchase a lottery ticket through PayPal and go into the chance to win, with the winners money going to a PayPal account? What are the legal considerations when it comes to lottery apps in Australia? | In NSW and all other Australian jurisdictions lotteries and other games of chance are regulated. See https://www.liquorandgaming.justice.nsw.gov.au/Pages/gaming/competitions/games-of-chance.aspx In general, lottery type games can only be run for the benefit of charities or by registered clubs. Free entry games can be run as trade promotions. Straight lotteries are restricted to the State or specific enterprises licenced by the State. The legal considerations of what you are proposing is that you will be fined or sent to gaol. | Under the assumption stated, the lecherous millionaire is soliciting an act of prostitution, albeit with an unusually high price. His proposal would be just as illegal (or legal) as an offer of $100 for a sexual encounter. In most jurisdictions it would be a crime. George Bernard Shaw famously asked a woman if she would have sex with him (sleep with him, I think was the wording) for a million pounds, and she hesitated and eventually said "well yes, in that case". He then asked if she would for five pounds. Her reported answer was "Mr Shaw! What do you think I am?!" to which he rejoined "We have settled that, Madam. Now we are haggling about the price." This is much the same case -- legally the amount or nature of the price does not matter. Whether this would also constitute sexual harassment would depend on the specific laws of the local jurisdiction. | The rule you are alluding to with respect to a television set is called the "first sale doctrine" which basically prohibits copyright and trademark owners from limiting the ability of a buyer of a good (like a CD or authorized logo T-Shirt) protected by copyright or trademark, from limiting further sales of that good (or the manner in which the good is used by its new owner) after a first retail sale of the good with copyright or trademark protections. This doctrine was derived from an old common law rule that invalidated "restraints on alienation" of property other than intellectual property on public policy grounds, and like the "restrain on alienation" rule for tangible property, the first sale doctrine that applies to intellectual property was also (at least originally) a court created common law rule. But Minecraft isn't, conceptually, a good. It is a continuing service provided over the Internet, and firms that provide continuing services on a licensed basis, as Minecraft does, can impose terms of service (a.k.a. an "end user license agreement" a.k.a. EULA) which must be complied with in order for users to be allowed to continue to utilize the service. So, its prohibition on exchanges of things of real world value for things of game value, except as the terms of service authorize, is permitted. A user of Minecraft is more analogous legally to someone skating at an ice rink than to someone who buys a CD or book. If you buy a ticket to skate at an ice rink, the people granting you the license to use the ice rink have the right to set rules governing how you utilize that service, and to terminate your license if you don't follow the rules (e.g. by skating in the wrong direction at the wrong time). Indeed, a ticket to an event is also known in legal parlance as a form of "license" just like a EULA, and licenses to use real property are the origin of the body of law that now governs the licensing of intangible intellectual property. A Minecraft license isn't something that you own (even if you have a license of unlimited duration), it is a qualified and limited right to use something that someone else owns, that you aren't allowed to purchase, but you are allowed to use on the owner's terms. How can they enforce servers to follow that rule if the server's are not using Mojang's proprietary software. The EULA or TOS obligation in the Minecraft business model is enforceable because Minecraft isn't in the business of selling proprietary software, even though it does do that. Minecraft is in the business of licensing access to data and online resources. The EULA regulates your access to the data on servers, and the computing power of those servers, not your ownership of an app which facilitates your use of the licensed services. And, while there are various contractual remedies for violating a EULA, the most basic one is a self-help remedy: to cut you off from your ability to use the service if you violate the owner's rules. Indeed, at least heuristically, the easiest way to distinguish an intellectual property good, which is subject to the first sale doctrine, from an intellectual property service, which can be licensed pursuant to a EULA, is whether, as a practical matter, the firm distributing the intellectual property has a practical ability to deny you service going forward without resort to the courts. If the owner of the intellectual property has no practical ability to do that, the intellectual property being distributed will probably be classified as a good and be subject to the first sale doctrine. But, if the owner of the intellectual property has the practical ability to cut you off from the intellectual property being distributed without resort to the courts, the intellectual property being distributed will probably be classified as a service, which is not subject to the first sale doctrine and may be licensed. | You don't say what jurisdiction's patent laws you're interested in, and priority dates can differ in different schemes. I'm answering as to U.S. law only. In the United States, under the current hybrid "first-inventor-to-file" system, the priority date--the date that determines who "wins" if there are multiple claims to a specific invention--is, with some exceptions that I won't go into, the date of your first application. In other words, the date that the PTO got it in the mail. Once your application is submitted, it is--again, with some limitations I won't get into--prior art for the purposes of any later-submitted application. They can't get another application later, grant it first, and then deny your application based on the later-submitted application. Your application date would still win out. Could someone in the USPTO slip your application out of the stack, fudge the dates, and convince some other company to submit a similar application to get priority over you? Not as a practical matter, no. The USPTO isn't one guy in a room; it's a large organization, and the person who opens the mail, types in your application details, and sends you a receipt, isn't the same guy who knows whether your invention is any good or not. And, frankly, very few patentable inventions are going to be worth someone risking their job and/or jail time over--especially when there would be significant evidence of the misconduct--for example, your patent agent's files. So what are the chances that the examiner on your patent: 1) Is a nefarious character who has lived a life of public service long enough and wants to go rogue; 2) Has a friend in the mailroom who is also an expert in the field of your invention; and 3) Has a conduct in industry who is willing to break the law for the rights to your invention? Slim to none. And if you have an invention that is really so revolutionary that it's going to be worth so many people risking so much to steal it, odds are there will be other evidence that you were the inventor. | It is certainly possible to give gifts to your relatives (or to anyone really). But, the harder question is whether or not it is really a gift. A characterization of a transaction as a gift is less likely to be questioned if it is between related parties, and it is less likely to be questioned if it isn't obviously a quid pro quo. If you told your brother that you would make a gift to him of all of the appreciation in the house, if he made the guarantee in advance, it would be a guarantee fee (or an equitable or nominee ownership) rather than a gift. But, with the timing and motives described in this post, it is certainly a closer call. The fact that the "gift" amount exactly matches the appreciation casts doubt on the theory that this is really a gift, but doesn't absolutely clearly require the conclusion that it is not. This could end up being resolved either way, and ultimately, could be very dependent upon the detailed facts and how they are presented to the person determining if tax is owed. | Yes, the correct forum is the Local Court in the relevant state (in some states these are called Magistrate's Courts). The amount is too large ($10,000) to qualify as a small claim . If you want to do it yourself the court websites are very informative and in NSW, at least, the process can be initiated online including your paying for the Sheriff to serve the summons (they will not find the person, you have to give them an address). After being served they have 28 days to file a defence or you can get a default judgement and begin recovery. If they do file a defence then things will get more expensive. Of course, you may want to hire a local lawyer. | Potentially -- this is almost exactly how Pachinko parlors in Japan operate, with non-cash prizes being given out, but with "known" nearby establishments (sometime located in the same physical building) that will buy them for cash. Other options include the giving of vouchers/gift cards as prizes. Whether this is legal or not is a question of if the buyer is "truly" acting independent of the gambling establishment. The general legal term for this is "arm's length transactions". A completely unrelated organization is presumed to be acting in its own best interest, in an "arm's length" manner, though this can be overcome with evidence of collusion. If the casino is willing to "buy back" its marker at a given price (much like Las Vegas casinos are required to do), this can be done with independent intermediary negotiators in a legitimate arm's length transaction. In the Japan example above a "three-shop system" of nominally independent shops circle goods between them to effectively "legalize" (or at least not draw the ire of authorities over) cash gambling payouts. | I know of an app that did similar. They sold membership access and linked Youtube videos. One of the Youtuber's started to take legal action against them. I don't know what happened but the app blocked their content from being shown. Updated this comment to remove incorrect information. After looking at Youtube's recent terms and conditions; you aren't allowed to link, embed or use the API if you want to put content behind a paywall, or show it alongside advertising: Under the section: Permissions and Restrictions https://www.youtube.com/static?gl=GB&template=terms So long as your app is free, and doesn't contain advertising you are probably okay. |
Has any guest worker visa program ever been challenged under 14th amendment? H1B visas have provisions which require a worker to leave the country if they lose their job and don't find a new one within 60 days. This is probably the best-known such status on stackoverflow, but I am sure other guest-worker visas have similar provisions. This creates a situation in which any boss has the power to coerce workers, on such visas, to accept work conditions which a person would not accept if the only punishment for disobedience would be getting fired. It does after all give bosses the power to threaten workers with being uprooted (and face a potential deportation). Has there been any legal challenge to this program based on the equal protection clause? After all, coercive powers which this worker status grants to bosses may, from time to time, deny workers protections under labor laws (or at least make such protections much more difficult to enforce). If no such challenge has occurred to this day, who could potentially have a standing to bring it to court? Just to preempt any objections that constitutional protections apply only to citizens, the Constitution makes a clear distinction between which rights belong to citizens and which belong to "persons" (a broader group) within the bounds of the jurisdiction. The equal protection belongs to all persons: XIV.1 ... No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. | If no such challenge has occurred to this day, who could potentially have a standing to bring it to court? Beside ohwilleke's points, such a challenge would only seem viable if the imposed timeframe for finding new job (60 days) was practically not sufficient to secure one for a person eligible for a H1B visa. These visas are not granted to random people most of which would struggle to find a job in the US. They are granted to qualified specialty occupation holders — taking into account the market demand for particular occupations/skills. The expectation is that H1B visa holders should not have trouble finding jobs and, if fired, should be able to secure a new job in a matter of few weeks. If they cannot do so it means they are not in demand, which means they no longer fit the visa grant criteria and therefore should leave. With the above in mind, "the power to coerce workers" is legally just bargaining power, not threat or force. The workers are welcome to accept offered conditions, or take chance to find better ones in 60 days if they think they are skilled and demanded enough. And if they do not think that, they should not be in the country on H1B visa in the first place. | The way "with intent to lose citizenship" works in US law is extremely demanding; it is very hard to establish it by doing anything short of appearing before a consular officer and formally renouncing citizenship. Other ways include serving in the military of a country at war with the US, being convicted of treason for committing one of the specified potentially expatriating acts (serving in an army at war with the US is sort of a trial-less special case of that, because engaging in a war against the US is treason), or serving in a "policy-level position" in a foreign government. The State Department says as much in the link. Obtaining citizenship is listed as a case where the administrative premise applies; so is swearing allegiance to a foreign state, serving in the military of a state at peace with the US, and serving in lower-level government posts of a foreign state. In those cases, the person retains US citizenship but at some point in the future may be asked by the State Department if they wanted to renounce it. Intent to renounce citizenship is established only by explicit declaration if you've only obtained citizenship in another country. With "policy-level posts" the premise doesn't apply, but then the State Department just decides on a case-by-case basis. You may well lose US citizenship (although the King of Thailand was born in the US, and I'm not sure if he's considered to have lost citizenship), but it's not automatic. Your senior ministers may lose citizenship, but it is likewise not automatic. But the normal citizens? The link explicitly says that the administrative premise covers that. | Diversity of citizenship concerns parties to an action. In the given circumstances, Party B is a witness, not a party. That is, whether A sues C or vice versa, neither would name B as a defendant. The determination of diversity jurisdiction occurs in the initial stages of the suit. Because A and C are citizens of the same state, there is no diversity of citizenship. Similarly, if Bob and Alice sign a contract when they live in different states, but then one moves to the other's state, and then a controversy arises under the contract, there is no diversity of citizenship. For reference, 28 USC 1332(a): (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between— (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States. | I see lots of possible issues here, including: Will the Apprendi decision be given retroactive effect? Were the constitutional issues raised at the time of trial, and if not will a court permit them to be raised later? Will a court agree with the law review publication? Will the facts in your case be sufficiently similar to the cited case? Beyond those, in a section 1983 suit many public employees have qualified immunity unless the legal point was already "well established" when the violation occurred. To pursue this you will need to work with a lawyer skilled in this area. No one on this forum can possibly given you a reliable answer as to whether you have a reasonable case. | There is a legal requirement for US citizens to have a US passport when entering and leaving the US, though there are some exceptions. (The exceptions mostly concern other kinds of documents that are acceptable when traveling by land or sea to Canada, Mexico, or the Caribbean.) The law is 8 USC 1185(b): (b) Citizens Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport. There is no penalty for violating this law. And, of course, US citizens have an inherent right to enter the US. In practice, therefore, if a border officer recognizes that you are a US citizen without the required documentation, they are supposed to inform you of the requirements and then waive the requirement of section 1185(b) so you can enter. For more discussion, see What is the penalty for US citizens entering/leaving the US on a foreign passport? on travel.stackexchange.com. There was formerly a regulation allowing US citizen children of foreign diplomats to travel to the US on their foreign passports. This was removed in connection with the Western Hemisphere Travel Initiative. It was at 22 CFR 53.2, which read as follows in 2006: (e) When he is under 21 years of age and is a member of the household of an official or employee of a foreign government or of the United Nations and is in possession of or included in a foreign passport; However, in 2007, paragraph (e) concerned the NEXUS program, and the paragraph concerning children in the household of foreign officials and employees was absent. The change was published in the Federal Register on 24 November 2006. The Department of State's [Foreign Affairs Manual] indicates that they continue to follow this policy despite the change in regulations; at 9 FAM 202.1-2 VISA-RELATED ISSUES WTIH U.S. CITIZENS, item (c) appears to have been last modified in 2011: c. Applications for Visas for Certain Dual National Children: (1) You should advise parents who apply for visas for dual national children that regulations prohibit the issuance of a visa or other documentation to a U.S. citizen or national for entry into the United States as an alien. The children of foreign government officials, however, may use their foreign passport for entry into the United States. (2) After the U.S. citizenship of a child has been determined by a citizenship officer, the consular officer may, to avoid delay or difficulty, give a written statement to the parents for presentation to carriers or immigration officials. The statement should make clear that the bearer of the foreign passport is a dual national child of a foreign government official or employee who is traveling to the United States on official business and as such may enter the United States on the foreign passport as an exception to the provisions of INA 215(b) regarding valid passport requirement. (3) A child under 12 years of age who is included in the passport of an alien parent in an official capacity may be admitted if evidence of U.S. citizenship is presented at the time of entry. A determination of the childs citizenship should be made by citizenship officer prior to departure from a foreign country and the parent should be instructed to have evidence of such citizenship available for inspection by the admitting Department of Homeland Security Officer. If this is indeed how your daughter got her US visa then the State Department's willingness to issue the visa presumably implies that CBP should allow her to enter with her Israeli passport and that visa. | It ultimately depends on what Congress said when the relevant law was passed pertaining to that form of discrimination, how the enforcing agency has written the regulations, orders that have been issued, and how the courts have interpreted the law and regulations. EEOC Notice 915.002 states that Under the Americans with Disabilities Act of 1990 (the "ADA"), an employer may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer. Such questions must be "job-related and consistent with business necessity". There is a statutory underpinning to this declaration, 42 USC 12112(d) that The prohibition against discrimination as referred to in subsection (a) shall include medical examinations and inquiries and Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability. except that A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions. EEOC also says that In general, it is assumed that pre-employment requests for information will form the basis for hiring decisions. Therefore, employers should not request information that discloses or tends to disclose an applicant's race unless it has a legitimate business need for such information. Such inquiries are illegal in the sense that the EEOC "prohibits" it, and in the case of disability there is a direct statutory mandate to prohibit it. There is a legal principle, "Chevron deference", that says that the courts should defer to an agency's interpretation as long as Congress hasn't directly addressed the question and the interpretation is not unreasonable. Title 29(A)(35)(B) states the standards for detecting age discrimination for entities receiving federal funds, and while age discrimination is illegal, asking a person's age is not prohibited by specific regulation. The EEOC provides this manual regarding general race and color discrimination, and the section on "Evaluating employment decisions", where they say determining whether race played a role in the decisionmaking requires examination of all of the surrounding facts and circumstances. The presence or absence of any one piece of evidence often will not be determinative. So asking a person's race is not per se a violation of the law, but it is an act interpreted by the EEOC to be evidence of race discrimination. On the other hand, asking about disability is totally illegal so there's no "totality of evidence" to the process. The footnotes in the manual point to relevant case law: there is no case law that says "asking a questions about a protected category is per se proof of discrimination", but it can be used as part of a pattern of evidence. | The Eleventh Amendment has generally been construed to bar suits against a state by citizens of that state in federal court. There are all sorts of caveats, though, and it's possible that the doctrine is still evolving. The text of the Amendment reads: The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. It doesn't contain explicit language prohibiting the citizens of a state from suing it in federal court. That extension surfaced throughout the 1880s and was formalized in Hans v. Louisiana, 134 U.S. 1 (1890). Seminole Tribe v. Florida, 517 U.S. 44 (1996), lends support to Hans, albeit as a 5-4 decision. Cornell has a nice article on the current and historical view of sovereign immunity. It notes that the Supreme Court has left a number of important questions unanswered—including the nature of the states' immunity. It likewise tries to wrestle with the Article III question. | German asylum law is codified in the "Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet" (English translation: "Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory Residence Act"), or short AufenthG. The paragraphs in this answer all apply to this law unless noted otherwise. This is a very, very long and complex law and the explanations here are grossly oversimplified. I am not a lawyer. This is all my personal interpretation of the laws as a layman. When you want to know it exactly, please read the full law or ask a lawyer to explain it. A foreigner who requests asylum in Germany has permission to stay in the country until their request for asylum has been processed (§25). When the request is denied (for example, because they come from a country considered safe or because there is insufficient evidence that they are in danger in their home-country), they become illegal immigrants and will have to leave the country as soon as possible (§50), if necessary by force (§58). The foreigner can even be imprisoned until a deportation is possible (§62). When the request is accepted, they get a time-limited permission to stay in the country for up to 3 years (§26) which can be extended for another 2 years afterwards. During that extension process it is reconfirmed if they still are in danger in their home-country. When the situation has changed, the extension might not get granted and they have to leave the country. When the asylum extension was granted, the refugee can apply for a permanent settlement permit. Such a permit allows the foreigner to stay in Germany indefinitely. However, this does not make them a German citizen yet. To become a German citizen with full access to social security, a German passport, voting rights etc., a foreigner needs not only a permanent settlement permit but also to go through the process of "Einbürgerung" (naturalization) according to § 10 Staatsangehörigkeitsgesetz (Nationality Act). There are several personal requirements for this, like living in Germany for several years, having a permanent employment, not committing any crimes and also passing a written citizenship test. |
What ever happened to the Nixon Pocket veto case? What ever happened to the Nixon Pocket veto case? This is the case where members of congress sued over President Nixon's recess veto of a spending bill. | The New York Times reported on the veto which I think that the question is referring to on December 31, 1970. The Congressional Research Service reported on the issue on March 30, 2001 and the pertinent part regarding the litigation over that pocket veto was as follows: President Richard Nixon, on December 24, 1970, exercised a pocket veto over the Family Practice of Medicine Bill. The bill had passed the Senate 64 to 1 and the House 346 to 2, providing what appeared to be overwhelming majorities for any veto that Nixon might exercise. Both chambers adjourned on December 22 for the Christmas holidays. The Senate returned on December 28 and the House the following day. Not counting December 27 (a Sunday), the Senate was absent for four days and the House for five. Unlike the 1929 case, Nixon’s action involved a short adjournment during a session rather than a lengthy adjournment at the end of a session. A district court held that the Christmas adjournment had not prevented Nixon from returning the bill to Congress as a regular veto. The bill therefore became law on December 25, 1970, 10 days after it had been presented to the President. When an appellate court upheld this decision the following year, it appeared that pocket vetoes would be impermissible during any intra-session adjournment. The D.C. Circuit ruled that an intra-session adjournment of Congress “does not prevent the President from returning a bill which he disapproves so long as appropriate arrangements are made for the receipt of presidential vetoes during the adjournment.” The Justice Department decided not to appeal this case to the Supreme Court. The bill was eventually printed as a public law (P.L. 91-696) and backdated to December 25, 1970, which marked the end of the 10-day period provided in the Constitution for executive review of bills. Because of the brief interval between the first and second sessions (which can be shorter than an intra-session adjournment), inter-session pocket vetoes also seemed suspect. Under this logic, pocket vetoes would be available only with final adjournment of a Congress at the end of the second session. The Department of Justice issued a memorandum formalizing its take on the meaning of the case in a February 10, 1982 memorandum. | There is a factually similar impeachment case. But there might be a court case fitting these facts as well. No such case is annotated by West under 14th Amendment, Section 3 either with the note or on its list of citations. It is also not mentioned in a law review article looking a WV civil war era jurisprudence up to 1872 when WV's new constitution was adopted. I suspect that the case you are looking for is a pair of related cases (neither of which involves West Virginia), one tried by the Chief Justice of the U.S. Supreme Court alone on a habeas corpus petition when riding circuit, and a related decision of the Texas Supreme Court involving the same defendant. Griffin's Case, 11 F. Cas. 7, 2 Am. Law T. Rep. U. S. Cts. 93; 8 Am. Law Reg. N. S. 358; 25 Tex. Supp. 623 ; 2 Balt. Law Trans. 433; 3 Am. Law Rev. 784 (Circuit Court, D. Virginia, May 1, 1869) and In re Caesar Griffin, 25 Tex. Supp. 623 (Tex. April 1869). The official summary of the fact and procedural posture of the main case on point was as follows: Caesar Griffin, a negro, was indicted in the county court of Rockbridge county, for an assault with intent to kill. He removed his case as under the law he had the right to do into the circuit court for that county, and was there tried by a jury which found him guilty and assessed his punishment at imprisonment for two years in the penitentiary. He was accordingly sentenced by the court to that imprisonment While on his way thither, in the custody of the sheriff of Rockbridge county, he sent out this writ which was served on the sheriff. That officer produced the petitioner in the district court then in session in Richmond, and made return to the writ that he held him by virtue of the conviction and sentence of the circuit court for Rockbridge county, making the record of the trial and conviction there a a part of his return. This return the petitioner traversed, denying that there was any court or judge in Rockbridge county as pretended by said pretended record, and that the paper exhibited was any record as alleged. The state of Virginia appearing by the attorney-general, Mr., Judge H. W. Sheffey, the judge of the circuit court for Rockbridge by Bradley T. Johnson, Esq., and the sheriff by James Neeson, Esq. they joined issue on this traverse. The petitioner then proved that Judge Sheffey had been a member of the house of delegates in 1849. That in 1862, he was speaker of the house of delegates, and that his votes were recorded for affording men, money and supplies to support Virginia and the Confederate States, in the war then flagrant with the United States. It was admitted that he was duly appointed on February 22, 1866, by the then government of Virginia, to be judge of the circuit including the county of Rockbridge; that he immediately entered on the duties of that office, and that he has ever since and still is discharging the functions of the same. The cause was argued at great length in the district court, before the district judge in December, 1868, who ordered the discharge of the petitioner, whereupon an appeal was prayed by the sheriff under the habeas corpus act of 1867 [14 StaL 385], to the circuit court, and the petitioner admitted to bail. Before the circuit court could meet other writs of habeas corpus were sued out by other parties convicted of felonies, two of them of murder, on the same ground as in this case, and the petitioners were discharged. A motion was then made by James Lyons, Esq. in the supreme court of the United States for a writ of prohibition against the district judge, to restrain him from further exercise of such power. The supreme court advised on the motion, and never announced any conclusion, but shortly afterward the chief justice opened the circuit court at Richmond, and immediately called up the appeal in Griffin’s Case. This statement is necessary for a full understanding of the pregnancy of the chief justice’s statement that the supreme court agreed with him as to the decision he rendered in this case. In consequence of the failure to oust the state officers disfranchised under the fourteenth amendment by these and similar judicial proceedings, congress in February, 1869, passed a joint resolution directing that all such officers should be removed by the military commanders of military districts into which the late Confederate States had been divided. Thus all the old officers of the state government of Virginia were removed except a very few, and new ones appointed not obnoxious to the denunciation of the federal bar — the supreme court of appeals of Virginia; the judges thereof having been removed by the major general commanding, he appointed as judges in their stead, a colonel of his staff, and two others, who had held or did then hold commissions in the United States army. The president judge of the court performed his functions and drew his pay as colonel and judge advocate on the staff, overlooking the execution of the laws of the military, and at the same time those of presiding judicial officer of the state. The procedural posture of the case and its result match your description even though the state does not, and there is a supreme court connection even though it is not a U.S. Supreme Court decision. The West Virginia association is probably a mental mangling of that case with a somewhat similar case from right time frame, a WV murder conviction overturned due to all white jury requirement by U.S. Supreme Court in Strauder v. West Virginia, 100 U.S. 303 (1880). | Note the following argument: the landmark 1819 case of McCulloch v. Maryland, which ruled that state officials cannot obstruct “the measures of a government [the federal government] created by others as well as themselves.” “In other words,” Kalt and Amar summarize, “a single state cannot use its power to derail the functioning of the United States.” (Amar is a Yale constitutional law professor, Kalt, his student) On the other hand, you have the argument by a Hofstra constitutional law professor that the 25th amendment can be applied when the President is occupied with a criminal case, ergo, the functioning of the United States can be carried on unimpared. At the end-of-the-day there is no absolute answer as it is still being argued academically and has never been specifically settled by the courts. | 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. | Based on some quick searching, this would likely be a wrongful death action. I have to pick a state, so I'll pick Nevada. The first question is what damages could be. I don't know offhand what is typical in wrongful death suits, but this appears to be beyond mere negligence: there was a hit and run involved. I have no trouble believing the claim would reach at least six figures. This is important, because federal diversity jurisdiction only includes lawsuits with over $75,000 at stake. Now, Santa Claus's citizenship matters; if he were stateless it'd be an issue, but he is a citizen of Canada. That means that federal court has diversity jurisdiction: because the lawsuit is between a citizen of one state on one side and a foreign citizen on the other (no state has citizens on both sides of the lawsuit), and meets Congress's extra requirements (enough money at stake), it can be in federal court. The way diversity jurisdiction works is that the plaintiff can file in federal court, but if they choose to file in Nevada court then the defendant can remove the case to federal court. Either party can get it into federal court. Conventional wisdom is that federal court is more defendant-friendly than state court on state law claims. It is likely that if Grandpa files the case in any court in Nevada, the case will end up in the United States District Court for the District of Nevada. But suppose it is in state court? Most states don't have separate "county court" and "state court" systems; county courts are a thing, but they're a specialized thing and the serious stuff is not in those. A six-figure wrongful death claim won't go in Nevada's equivalent of small claims court. It'd go in Nevada district court, if it's in state courts. But what about other courts? Grandma was walking home, so it can be assumed she was a Nevada resident. Assuming Grandpa lived with her (which is rather likely), so is he. They then can't sue in any US state other than Nevada without being laughed out of court -- a lawsuit needs to have something to do with where you're suing. The other option is Canada, but such a suit is unlikely. | The only real answer is that Congress hasn't (to the best of my knowledge) chosen to pass such a law. But the kinds of forgery that Congress might plausibly and constitutionally prohibit, such as forgery of checks, forgery of legal documents, and forgery as part of a fraudulent scheme are already crimes under state law, and the states handle such prosecutions perfectly well. There is really no need for a separate federal law on such issues. The kinds of forgery covered in the answer b grovkin would probably not be covered by a federal forgery statute, if one were to be passed. But that is speculation. | Generally not. Federal court uses a principle known as the enrolled bill rule -- in deference to the coequal status of the three branches of government, the "enrolled bill" (the thing printed on fancy paper that actually went to the President for signature) is irrebuttable evidence that the law was properly passed. The courts cannot deal with inquiries into whether legislative process was followed; it's the legislature's job to decide what the right process is. They can't even look into whether the same text passed both houses -- as a matter of law, the enrolled bill is conclusive evidence that it did. Senate rules are enforceable in the Senate. But the Senate is the body in charge of enforcing them, not the courts. | This came in the famous case of Marbury v. Madison (1803). At the last moments of his term, President Adams and Congress appointed a bunch of new judges to the courts. One of those was Marbury, but his new commission was not delivered by the outgoing Secretary of State John Marshall. The incoming President Jefferson had the undelivered commissions thrown out and ignored by his own Secretary of State (Madison). So Marbury sued to have his commission instated. There were some peculiar subtleties to the case. One is that Marbury sued directly in the Supreme Court, rather than an inferior court. A law passed by Congress had granted SCOTUS authority to be the trier of certain cases; said law was repealed before the case went before the court. Another oddity is that the Chief Justice was the very same John Marshall that had originally failed to deliver the commission; he did not recuse himself. The case was very contentious. Congress and the President were both very combative and eager to claim control of "constitutionality" for themselves. Congress would not much appreciate its laws being thrown out, and Jefferson was of the (combative) mind that it was in fact the President who decided the constitutionality of laws (the constitution can be said to explicitly charge him with enforcement of the laws and protection of the constitution), etc. The court risked getting neutered by both sides with just the slightest misstep. The President was sure to ignore any attempt to make him do anything, and Congress would retaliate if anyone but them threw out their laws. And simply declaring themselves impotent was the same set of problems. That the ruling effectively avoided all such problems makes it one of the great examples in SCOTUS opinions to this day, though not all hold it up in a positive way (it arguably intentionally handled the case backwards, so as to yield a ruling rather than a dismissal; some even argue the case may have been manufactured as a way to formally let SCOTUS claim this power). The ruling basically said the following: (1) Does Marbury have a right to this commission? Yes, the commission was validly created and the deliverance of it is just a non-discretionary formality, failure of which is an injury that can be fixed (give him the commission). (2) Do we have the power to force the Executive branch to do something like this? Yes, for non-discretionary duties that are non-political and owed to a particular person, the courts may order the lower ranks of the Executive branch to do things. (3) Do we even have the authority to hear this case? No. It is held that the law in question would grant us original jurisdiction over this issue, but that is unconstitutional: our original jurisdiction is completely enumerated by the Constitution, and cannot be expanded by legislation. (4) So what do we do? Nothing, we just dismiss it. Madison can be ordered to do this thing, but won't actually be so ordered since the law required to let us do so is invalid. And we can invalidate that law, but don't actually do so since Congress has already repealed it. In this way both Congress and the President were left with no real angles to hold a beef over the court, as neither one of them had effectively had their authority directly neutered or compelled. The ruling did nothing but what was already done, and simply asserted the Judiciary had certain powers it could flex later: it could rule on the constitutionality of laws, and it could order the Executive branch to do things. For what it's worth, the Marshall court never really invoked these powers again, seemingly still mindful of a contentious battle for power between the branches of government that could render the courts impotent, but one way or another the ruling successfully claimed the power to decide the constitutionality of things for the courts. |
How to refer to Supreme Court cases by just one name I'm writing a paper for my high school U.S. History class, and I want to refer to certain Supreme Court cases by just one name after my first naming of the case (for example, I want to refer to Rucho v. Common Cause as Rucho or as Common Cause), but I'm not certain about whether the proper name to use is that of the appellant or that of the appellee, or even whether such a standard exists. I've seen it done before in news sources covering Supreme Court cases, so I know it can be done, but I have seen both used at times. I've tried to search for a solution to my problem online, but have found only references on how to cite decisions in full, at the end of a paper. Any help would be appreciated. Thank you. | How to refer to Supreme Court cases by just one name In general, subsequent references to a decision can be the first name in the caption of that case. As an example, you will notice that in the decision Rucho v. Common Cause, 139 S.Ct. 2484 (2019) the court makes an initial reference to Gill v. Whitford (at 2492), and thereafter most of the references to that decision are simply Gill (see, for instance, at 2498, 2501, 2507). Nate Elredge makes a good point in that there are exceptions. Where the general rule may result ambiguous, another main party in the caption would be mentioned. Using Nate's example of United States v. Nixon, the court's subsequent references to that case in Calley v. Callaway, 382 F.Supp. 650 (1974) is Nixon. There might be other, harder to find, instances where ambiguity persists. For instance, several unrelated decisions issued by the same court might involve the exact same parties. In those scenarios only the suffix (that is, the numbers following the caption) would distinguish among decisions. | The author of a text or essay may cite in whatever order s/he thinks best. It m,ay be that a basic text gives a better and clearer overview than any actual case, and so is worth citing first. It is true that actual case law is often more authoritative than a statute, and cases and statutes are normally more authoritative than any text or essay, but there is no rule binding on an author to cite in any particular order, although citing the actual law first may be the common practice. When writing a brief or a court decision there may be standards of citation that are enforced. | There isn't any kind of legal reason for the distinction; it's just a matter of custom and convenience. The normal rule is that you would shorthand a case name by referring to the first-named party, but there are lots of times where that is not the case. With Casey, the issue is that Planned Parenthood is a serial litigant, so if you were to just refer to "Planned Parenthood," there would be some ambiguity as to whether you were referring to Planned Parenthood v. Danforth, 428 U.S. 52 (1976), or Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), or any of the many other cases Planned Parenthood has litigated in the circuit and district courts. For the same reason, criminal cases are typically named after the defendant, as we would otherwise have tens of thousands of cases named "California" or "New York" or "United States." | The judicial rank of English judges is abbreviated to letters after their names, but not their personal titles. High Court judges always receive a knighthood or damehood on appointment, so, to take Tim's example, John Donaldson became Sir John Donaldson on his appointment to the High Court, but in court he was Mr Justice Donaldson, abbreviated in reports or written argument to Donaldson J, and on promotion to the Court of Appeal he was Lord Justice Donaldson or Donaldson LJ. (In person in court he would have been addressed as "My Lord", and in other settings as "Sir John".) Beyond that it becomes more complicated. For the time he was Master of the Rolls, the reports refer to him as "Sir John Donaldson, MR". The UK Supreme Court replace the House of Lords and the highest court for the UK (leaving aside the role of the Judicial Committee of the Privy Council) in 2009. The judges in the House of Lords were full members of the House, so they were peers, in fact, since 1887 as a special type of life baron (not hereditary) known as a Lord of Appeal in Ordinary. So they were always referred to by their titles, as in the case of Lord Donaldson (barons always being referred to as "Lord" unless it is necessary to make the rank explicit); however, letters after the the were used for the Lord Chancellor, as in Lord Hailsham, LC. (There was at one time a convention that the Lord Chancellor would get a promotion to viscount, the next higher rank in the peerage, as in the case of Viscount Cave, LC.) When the Supreme Court came into being in 2009, the existing Lords of Appeal in Ordinary became the first judges of the Supreme Court. Since they were already Lords, they were, of course, referred to by their titles. Subsequent appointments are given the courtesy title of Lord or Lady, though they are not made barons/baronesses, so they cannot sit in the House of Lords. (While the courtesy titles are comparable to the Scottish judges' titles, the immediate need was for parity between new appointments and the Lords of Appeal in Ordinary: Courtesy titles for Justices of the Supreme Court.) The head of the Supreme Court is the President. This is abbreviated by letters after the name in the reports, so the current president (Baroness Hale of Richmond, having become a Lord of Appeal in Ordinary in 2004) is referred to as Lady Hale, P. | Distinguishing a case which was decided by a higher court does not violate the doctrine of stare decisis. If the case can be distinguished, then it is not a controlling precedent. The term "controlling" indicates not only that the decision is binding on lower courts, but also that it applies to (or cannot be distinguished from) the facts of the specific case in question. Whether a precedent is "controlling" or not, in a particular case, could itself be a question for an appellate court. So if a lower court distinguishes a previous decision and therefore declines to follow it, the appellate court could say that was an error, and set aside the lower court's decision for not following a controlling precedent. | Statutes of limitations (hereinafter "SOL") vary from jurisdiction-to-jurisdiction. If it is only one-year in New York (I've not confirmed this) that would not be surprising. SOLs exist for all civil matters and nearly all criminal matters. I'd just like to point out that your question is not really limited to defamation or to the time frame for which the specific SOL runs for libel/slander ... at least as I've read it. It seems you are asking the broader question pertaining to what the philosophical or practical purpose(s) for SOLs in general are, as well as what effect these limits can have on the ability of a would-be claimant/plaintiff to get relief through the courts. So, to answer whether a person who believes they've been defamed can still bring a cause of action after the SOL has passed: the short answer is no. But, that is only the short answer. SOL is an affirmative defense, meaning that it can only be asserted if it is pled in the answer to a complaint. So, if John Doe feels he's been defamed by a libelous statement in the Times, and he files suit 4 years after the statement was made (and the SOL is 1 year), the court will still accept the filing of the complaint and Times must still be served. You do not lose the right to file your claim, when the SOL has passed, which is a very common misconception of the law. And, Times must still file an Answer to avoid defaulting. However, in that answer Times (no doubt by and through qualified counsel) will most likely assert a variety of affirmative defenses pro forma, which will include the passage of SOL (the claim is stale). If, in fact, the SOL has passed and the affirmative defense is pled, the next thing the Times will do is file a motion to dismiss. The judge will view the complaint in a light most favorable to Doe, the plaintiff, which will lay out all the facts (including when the libelous statement was published). If the cause of action accrued (this just means when the injury was sustained) and the claim was not filed prior to the expiration of the SOL, Doe's case will be dismissed. If the Times does not assert SOL though, it is deemed to have been waived for that and any subsequent related proceedings. There are ways to toll (extend) the statute of limitations. There is a discovery rule (this does not mean Doe didn't read it until after the SOL, even though he was able to). It means that the SOL can be tolled in cases where one could not have discovered the tort occurred. In these instances, the SOL doesn't begin to run until the discovery was either made or should have been made. This is most typically seen in medical malpractice cases (e.g., a surgeon leaves a sponge or instrument in your abdomen, and after years of failed treatments for IBS your doc sends you for an x-ray and an MRI and it's discovered) or in asbestos cases (you don't know you breathed it until you have asbestosis) – those types of scenarios. In cases like that, the SOL begins to run when you find out the tort occurred. This has also been successful in recovered memory cases where childhood sexual abuse occurred but was suppressed. Incapacitation is another way the SOL can be tolled. So, in Doe's libel case, the SOL can be tolled if he is incapacitated (in a coma and didn't wake for 4 years, in a mental hospital in a break from reality for 5 years) – in such circumstances you can still file a claim and have it survive a motion to dismiss based on SOL once you are rehabilitated. Also, Absence due to military service is reason to toll in some jurisdictions. Lastly, (at least the last one I can recall) is that minors can often toll the SOL however long the statute is (say 1 year) after they turn 18. As for why there are SOLs: That is more public policy than anything else. It is one of the oldest rules of law known to modern man, dating back all the way to early Greek and Roman law. Statutes of limitations are a fundamental part of EU and US law, as well as most other modern legal systems. They function to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become dubious and unclear due to the progression of time, which can lead to lost or uncertain memories, death of witnesses (for each side), or disappearance/inability to locate witnesses. The policies behind SOLs are also for judicial economy and to protect defendants from having a never-ending potential suit looming over them. Often, the seriousness of the crime or the tort, or some element of it, dictates the time frame of the SOL. It is a means to ensure that plaintiffs pursue their claims with reasonable diligence: I.e., if it matters to you, file it. Also, as I touched on above, time disadvantages defendants. Plaintiffs are the "injured" party, so they tend to retain evidence much longer than a defendant, who might not even realize he has done wrong – especially in civil matters. So, in a libel case, the whole basis of the claim is the irreparable damage to your reputation. If more than a year has passed and you didn't know about it, one could assume the damage never rose to the level of having sufficed to make a valid claim in the first place. That is why they run fast in those cases. They run fast in medical malpractice claims too, but this is a result of tort reform – the public policy that litigation against doctors/hospitals causes increased health care costs for everyone. So, policy suggests it's best for society to dispose of these claims quickly (not so much if you're the plaintiff). Whereas most regular negligence claims can have SOLs as long as six years in some jurisdictions where I have practiced. So there are clearly policy determinations going into these legislative acts. The Golden Rule of Law that I tell all of my clients is this: If you think you have a claim, talk to a lawyer right away, because if you don't you can lose the right to pursue relief, much, much quicker than one may ever imagine! I know this is a long answer, but I get asked this (type) of question all the time. Plaintiffs feel the SOLs run too fast, while Defendants cannot believe they can still be on the hook! | Is it acceptable for person A (representing themselves) to refer to person B as "their neighbor" instead of by their name, or would that cause the suit to be dismissed? Omitting the neighbor's name in the pleadings & proceedings cannot singlehandedly cause the dismissal of a defamation suit. The matter would result in dismissal only if the plaintiff repeatedly disobeys court order(s) (if any) to disclose that information. Before the proceedings get to that point, the plaintiff will have had one or more hearings to dispute the defendant's alleged need for identifying a non-party by name. When opposing to that disclosure, the plaintiff's goal is to establish that the false narrative about robbing a neighbor at gunpoint is defamatory regardless of neighbor's name. Keep in mind that the focus in a claim of defamation is the defamed person, whereas the relevance of details such as who the non-parties are pertains to context and evidence. Lastly, the fact that a party to the suit is a pro se litigant is irrelevant from both substantial and procedural standpoints. | Generally, a local county judge’s decision is not binding on the judgement of another judge unless it is that of an appellate division. The law of the case principle could be referred to as an argument if it would have been decided by another judge in the same case (some courtships work on a rotary basis with different judges sitting over a single case). This would mean that the court would give greater deference to that decision; however, applying the principle is a matter of administrative preference to save resources of the court. Whether or not the other judge would reconsider the matter would be within their discretion absent binding authority to the contrary as a “law of the case” is not binding. In fact, even if it would have been the same judge with the exact same facts deciding the matter in a final judgement, there wouldn’t be much to do. One could argue that deciding differently is a violation of the Fourteenth Amendment which, if the judge fails to explain the different decision on the exact same facts may have a reasonable probability to get overturned provided the unconstitutionality finding was correct in the first place. If the matter was, in fact, unconstitutional, appeals may overturn a contrary judgement if the issue is brought up in the lower court and enters the court record. It may have some weight still to cite the decision of the other judge as the argument may be given more weight than if merely delivered as the argument of counsel. |
Is there any judicial precedent regarding US governors' power (or lack thereof) to limit church attendance in an emergency? A federal judge in Kansas ruled it might be unconstitutional: A federal judge signaled that he believes there's a good chance that Kansas is violating religious freedom and free speech rights with a coronavirus-inspired 10-person limit on in-person attendance at religious services or activities and he blocked its enforcement against two churches that sued over it. The ruling Saturday from U.S. District Judge John Broomes in Wichita prevents the enforcement of an order issued by Gov. Laura Kelly against a church in Dodge City in western Kansas and one in Junction City in northeast Kansas. The judge's decision will remain in effect until May 2; he has a hearing scheduled Thursday in the lawsuit filed against Kelly by the two churches and their pastors, on whether he should issue a longer-term or broader injunction. Kelly continued to defend her order in a statement: "This is not about religion. This is about a public health crisis.” [...] Broomes directed the churches to abide by recommendations for social distancing that people stay 6 feet apart and to continue following other practices the lawsuit said they had imposed, such as not using collection plates. [...] Top Republican legislative leaders moved last week to revoke Kelly’s order on church gatherings themselves, only to see the Democratic governor thwart their efforts by contesting their action before the Kansas Supreme Court. The state’s highest court let her order stand on technical grounds, without deciding whether it violated freedoms guaranteed by the U.S. or Kansas constitutions. The details in this case seem to matter, i.e. the judge seems to have had no objection against some of the physical distancing parts of the governors' order (e.g. 6-feet distance), which probably implicitly limit attendance numbers in closed spaces, but otherwise seems to have objected to an arbitrary ceiling to the number of people gathered. Since the US went through a pandemic before, in 1918-1919, in which also some gatherings were banned or at least cancelled, I'm curious if there have been any judicial precedents for this kind of case, i.e. whether limiting the number of attendants to an arbitrary figure was in question. | 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. | I found a mention of this issue here, where the case Rhonda Eddy v. Ingenesis was cited. Eddy worked from home in West Virginia, but had signed her contract with a company headquartered in Texas. The link is the decision of The State of West Virginia Supreme Court of Appeals, which upheld the decision of the Circuit Court of Jefferson County, namely, that the Circuit Court did not have the authority to hear Eddy's petition against her employer because she was out of the Circuit Court's jurisdiction. The circuit court found that it did not have personal jurisdiction over respondent under West Virginia’s personal jurisdiction statutes, and that respondent did not have sufficient minimum contacts with West Virginia to satisfy federal due process considerations. The circuit court also found that it did not have subject matter jurisdiction over petitioner’s WPCA claim because petitioner’s employment contract contained a valid choice of law clause that mandated Texas law would govern any dispute between the parties. Emphasis mine. It all depends on stipulations made in the employment contract. This (in the United Kingdom) states 4. Place of Work Allows the employer to specify the location where the employee will work. However, it also allows for the employer to specify any other location in the future. This gives the employer much greater flexibility. That would seem to indicate that (at least in the U.K.) the place is specified in the contract. | The only religious matter I'm aware of that are inadmissible are for special circumstances where one's religious beliefs may be compromised if asked in court. The classic example tends to be clergymen/women being subpeonaed for information against a defendant in court. Conversation with clergy is protected in the United States and is one of a few times cops are not allowed to listen to your one phone call or visit. The typical invocation of this would be a criminal, who confesses his sins to a Catholic priest, and may confess to a crime while receiving the Sacrament of Penance. Since Catholic Priests are bound by the "Seal of Confession" to not speak about the identity of the sinner or nature of the sin. The Priest can be excommunicated if he does this. However, if the religion of the witness is relevant to the case (say a discrimination case) it might be prudent to inquire into the witness's religious beliefs. Suppose a major employer has a special menu in their cafeterias for Hala and Kosher observers but does not offer a fish or non-meat option for meals on Fridays in Lent, then a Catholic's belief in this practice might be called into question. | No. A governor could not be held liable in a lawsuit on those grounds. Governors in every U.S. state have governmental immunity from liability in tort (and a lawsuit for wrongful death is a kind of tort lawsuit) for their official actions, and there is no U.S. state in which this kind of lawsuit would fall within an exception to that governmental immunity. There is not private cause of action against a state government executive branch official under federal law for a violation of "Trump administration official guidelines for reducing the covid-19 mitigation." Indeed, it isn't clear that a federal statute creating such a private cause of action that purported to pierce a state law official's governmental immunity from liability, even if it were enacted, would be constitutional. In contrast, if a corporation violated such a guideline, the violation of the guideline would be evidence of negligence, although probably not conclusive evidence, in a suit for wrongful death by a non-employee brought against the corporation. | There have been instances where the US Supreme Court has held over cases to the next term, and instances where they ordered a case re-argued in the next term. Brown vs Board of Education was a particularly well known case that was reargued. I believe that such occasions are rare, and that the court makes a significant effort to decide each case in the same term where certiorari is granted. Once exception is when the Court has a vacancy and is waiting fora new Justice to be confirmed, and the Justices in office are tied. Then cases with 4-4 splits are often held and re-argued. More often, the Justices decide, after granting certiorari, that this was a mistake, and dismiss the case altogether. The phrase used is that the writ is "dismissed as improvidently granted" or "DIGed". This has the same ultimate effect as if certiorari had never been granted -- the lower court decision is left standing, and no Supreme Court precedent is created. This is still fairly rare. To the best of my knowledge there is no rule requiring decision within any specific time, but I have never heard of a case held over for more than one term. | Like the other rights in the First Amendment, religious freedom is not absolute. For example, you can't use religious freedom to get away with assault or murder (e.g. fulfilling the fatwa to kill Salman Rushdie). The basis of many anti-abortion laws is that the fetus is a person, and thus abortion is murder. So by the same logic that you can't kill a person out of the womb for religious reasons, you wouldn't be allowed to kill an unborn person. So whether the Satanic Temple is a real religion or a parody is moot, because religion cannot be used to justify murder. The RFRA doesn't get around this. It has the following exception: the government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. What falls under "compelling government interest" is up to the courts to decide. But in the past they've determined that paying taxes is a compelling government interest (Adams v. Commissioner), and even that getting a social security number is not a significant burden (Miller v. Commissioner). So it seems likely to me that actions that directly harm another person would not be allowed. The basis of most anti-abortion laws is that the fetus is a person, deserving of human rights, and abortion deprives them of the right to life. It's hard for me to imagine that preventing this would not be considered a compelling government interest in states that prohibit abortion. We can't be certain about this, since Roe v. Wade was only overturned very recently, and there's little precedent in how the anti-abortion laws that are now allowed will be interpreted in corner cases like this. But in the current political climate, I think it's almost certain that a question like this would be decided in the pro-life direction. While pro-life conservatives also tend to be pro-religion, they generally restrict this to Christian religious traditions (these same groups were in favor of Trump's Muslim travel bans). A fringe religion like TST would likely not receive favorable treatment. Because of this, perhaps the right place for a question like this would be Politics | No, absent a state law to the contrary (and I am aware of no such law in this case) it is not illegal. Universities, as institutions, are permitted to express opinions on political issues, especially political issues that are pertinent to their operations. Indeed, they often do so. (Political candidates are arguably a different matter and certainly involve a more complex analysis to determine if the Johnson Amendment applies to a public university, but that isn't at issue in this case.) Governmental entities may not take religious positions, but may take political ones. Generally, even public colleges like Rutgers have this autonomy. Indeed, lobbying is frequently necessary for the survival of a public university - it has no choice but to lobby and a free hand regarding the issues upon which it does lobby. | Are there actual laws written, or de facto situations (e.g. let's say another law specifies that a child can't be physically forced to go anywhere without causing abuse) where the child can refuse to attend? Are there "tiers" to the age; Is it true that a temper tantrum of a 5 year old would be seen as such, but the refusal of a 17 year would be legally accepted? This is a hard question to answer that doesn't have a neat resolution. Very little pertaining to the authority of a parent over a child is codified in statutory law and there is not a clear cut age at which a child has "freedom of conscience" vis-a-vis a parent. Most of the law related to children concerns allocation of parenting time and parental decision making between divorced, separated or unmarried parents; abuse and neglect; and juvenile delinquency. There is also usually a snippet of criminal law stating that certain kinds of uses of force to discipline children do not constitute crimes. But, part of why it doesn't come up very much is that older children are usually socialized in a manner that causes them to show a certain amount of respect for the wishes of their parents. It also doesn't come up much for children who aren't in their late teens, because the complete economic dependence of children on their parents or guardians gives the parents considerable power of their children that doesn't require the exercise of physical force. Also, it is quite dependent upon how the issue presents itself. No law enforcement agency is going to aid a parent in forcibly dragging a kid to church against their will. But, no social services agency is going to remove a kid from a home because his birthday party will be cancelled if he doesn't go to the church of his parents' choice the Sunday before his birthday. There are also some subtle but important distinctions between states on the issue of emancipation. In Colorado, emancipation is a statement about the empirical reality. If a child is self-supporting and lives apart from parents or guardians then the child is an emancipated minor. It is not a status granted by a court, it is a status acknowledged by courts when evaluating other issues. In California, a child is not emancipated unless a court grants a child that status and a child who is de facto emancipated without the leave of a court is guilty of a "status offense" (the New York State term for someone in this state is PINS for "person in need of supervision"). Basically, if a parent can force a child to go to church by means that don't constitute abuse or neglect and don't exceed the level of force authorize for child discipline in the criminal code, then they can do it, and if they can't manage that, then they can't do it. Many states have a "status offense" that allows government intervention with the cooperation of a parent or guardian in cases where an "uncontrollable" child is defiant and simply will not give any heed to the parent or guardian's instructions. In practice, the older a child is, the less likely someone viewing a parent's conduct forcing a child to do something is to be viewed as acceptable or legally justified. The legal rights of children in a school setting are also age dependent under the case law, although not always in a really well defined way. Controls on student expression that would be uncontroversial for elementary school students may be looked upon by the law with disfavor for high school students and clearly prohibited for adults. Perhaps one useful way to conceptualize it is that trying to make a child attend a particular kind of religious service is not considered an improper purposes for a parent of any minor to utilize the resources available to the parent to do so, but the range of resources available to a parent with regard to an adult child is much narrower. |
If I buy assets (inc customer data) from receiver of a UK company, how does GDPR apply? I’m considering buying the assets of an insolvent company that has gone into administration / receivership. Included in the assets is a customer database. How does GDPR apply? is the purchasing company allowed to contact the customers of the old company? are there specific considerations or rules? do we, effectively, become the legitimate owner/processor of the data? I’m very cognisant of our responsibilities to the consumers, irrespective of the legalities, in so much as we wouldn’t want to upset or offend them but making inappropriate contact even if it were legal. As it happens the businesses are aligned in their mission and we can give these customers the opportunity to continue to use a service they’ve lost. We would of course handle the comms politely, deferentially and cautiously. My question is only about the legal rights and responsibilities when purchasing stressed assets that include PII. | The liquidator which sells the assets of an insolvent company is not allowed to sell personal data if it does not has a legal basis as defined in Art. 6(1) GDPR for it. Getting as much money as possible from the assets is not a valid legitimate interest. Subsequently the buyer is not allowed to buy it without legal basis. Because, if the buyer is not allowed to process the data, the data minimisation principle does not allow the buyer to have that data. If the personal data is sold anyway without legal basis, it is considered a personal data breach. Personal data can only be processed for the same purpose as it was original collected. So if the new buyer continues the activities of the insolvent company, it if perfectly fine to use the personal data for it, in the same way as the insolvent company did. So that is also the only reason the liquidator is allowed to sell the personal data. | Alice's business sells database management software. Organisations buy or licence the software, deploy it on hardware they control and use the software to help store and, process and analyse 'personal data' within the meaning of GDPR. Alice's business has no access whatsoever to the personal data being stored and processed by those organisations. In respect of that personal data, GDPR is not engaged by Alice's business. The business is neither a 'controller' nor 'processor' of that personal data. Who does the data protection law apply to? - European Commission Who does the UK GDPR apply to? - Information Commissioner's Office | First take a look at Article 13(1) of Directive 2002/58/EC Article 13 Unsolicited communications The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use. Note that this is a Directive, so it is not directly binding, but each EU member state has created it's own laws containing this. I also quoted paragraph 2 for completeness, but based on your description, it does not apply. Article 95 GDPR explicitly specifies it does not change any obligations from Directive 2002/58/EC. So it looks very clear to me the situation you describe is not legal. Article 14 GDPR allows you to request all information regarding this, which included information how they have exactly obtained your name and email address. | 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. | GDPR is not a blanket ban on the handling of personal data. It is a set of guidelines when and how data may be processed and stored. Documenting the compliance with a deletion request is one of many purposes for which some data may be retained after a deletion request. Others would be past contractual obligations, legal documentation requirements, and even a balance of 'legitimate interests' of the processors and the data subjects. The processor might be able to argue that fraud/abuse prevention is such a legitimate interest. What if I want to create a service that does let users enter their friends' email addresses, and send those friends an email invitation to the service? Get a specialist lawyer on staff who can check your exact business processes. A web site like this cannot possibly give you a full explanation of the pitfalls. | There is nothing in the GDPR requiring you to collect individual personally identifiable information. If the website has no need, and the website owner no desire, to collect such information, there is no requirement to do so. The GDPR requires that if such information is collected, that there is a lawful basis, and that it be handled appropriately and stored securely, and deleted when there is no longer a need to retain it, or on a proper request. If no such information is collected in the first place, all the rules about how to handle it do not apply. It is possible that some law of an individual country in the EU might mandate collection of some particular information, but I have not heard of any such requirement. | The goal of the GDPR is to ensure a single market for personal data processing throughout the EU. Since all EU/EEA member states now have equivalent levels of data protection, it doesn't matter in which member state data is stored or processed. Member states cannot generally limit this single market via national laws. Furthermore, secure processing may be possible outside of the EU/EEA as discussed in Chapter 5 of the GDPR. Some countries such as Japan have been asserted an adequate level of data protection so that no special safety measures are necessary. For other countries, a transfer of personal data may be possible under so-called Standard Contractual Clauses which detail the responsibilities of the data exporter/importer. However, the recent Schrems II ruling has invalidated the (partial) adequacy decision for the United States, and has strongly hinted that SCCs only work if the parties are actually able to honor their responsibilities under the SCC (which is not the case with some surveillance laws). Data protection is likely not ensured for processing in the US or by US-controlled companies (even if the processing usually takes place within the EU). Given the sensitivity of health data, this means you should likely avoid using the typical public cloud providers (regardless of availability region). Depending on where your company is based, you might also be disqualified as a data processor by EU data controllers. So the GDPR has no data residency requirements that limit the processing/storage to Germany, but some data residency requirements to keep the data in the EU. However, there may be non-GDPR obligations that mandate how the data can be processed, but I'm not familiar with those (the German regulatory landscape for tele-health is very uneven, differs between German states, but is also improving a lot recently). Since you're processing health data, you should pay special attention to Art 9(3) GDPR which is expanded in German law by §22 BDSG to list a catalogue of possible safety measures you should consider, but none of them are related to data residency. §78 BDSG has further details on transfers into non-EU countries, such as emphasizing that human rights must be guaranteed in the target country. | No GDPR applies to people (not just citizens) who are in the EU. It has no applicability if both parties are not in the EU. |
Can the President of the United States legally discredit or promote mass media organizations? Whereas freedom of the press and freedom of speech are both inalienable rights in our country, the same might not be said of every citizen--particularly members of the military per 10 U.S. Code § 888: "Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct." (See the answer to Is there a law that requires allegiance or respect to the Office of the President of the United States?) Such measures have been put in place to maintain military cohesiveness. But the same does not apply to the general public and the media. Now we are all well aware of how presidential administrations in the past have fought a very public political battle of words with the media in the United States. The media is a very powerful entity with the power to sway public opinion--not just inform! To the public, these political battles between the media and the President may seem divisive--but to be fair, the media does seem to take political sides, downplaying one party and promoting another. I'm not talking about an opposing political candidate taking swipes at the President and using the media as a vehicle--something for which I understand we already have political campaign regulations in place. No, I'm talking about the perfectly plausible case in which a media outlet itself (without outright endorsement from a specific political party or candidate) makes hostile reporting against the President a constant theme. Please, I'm not pointing fingers--I'm just pointing out that it can and has happened in order to set up the basis of my question. With that in mind, and for our education, how is the President--as Commander In Chief of our armed forces--legally permitted to handle disagreements with the media? Is s/he also in fact fully entitled to defensively or preemptively discredit or promote media organizations publicly, despite holding office? I am not asking for opinions on whether it's been done the right way or the wrong way by any present or previous administration. I am not at this time pushing for, nor asking for anyone to get on a bandwagon to push for, any changes in policy. My question is also NOT seeking to incite political debate. I just want to deal with the facts of what is legal today in terms of White House communications. I want to understand what legally entitles a President to discredit or promote media organizations as s/he sees fit. And maybe the answer to that is simply that someone in the office of President keeps his/her full rights to free speech and free press as a citizen. If so, then just please confirm and point out to me how that's protected, whether by a Constitutional amendment, some simple article in the Bill of Rights, or whatever. That's all! Thanks. | The answer is as simple as the fact that the President of the US is a civilian and citizen, and keeps his/her full rights to free speech and free press as guaranteed under the First Amendment. The military necessity exception is a somewhat surprising exception to the general proposition that you have a protected right to express any viewpoint whatsoever, but also is not relevant to POTUS who is not subject to UCMJ. Just as a plain old citizen has the unfettered right to express ridiculous and fundamentally dangerous ideas, news media have the unfettered right to express ridiculous and fundamentally dangerous ideas, as do politicians including POTUS. Plain old citizens can be "punished" for their views by shunning, news media can be "punished" by customers unsubscribing, and politicians can be "punished" for their views by being voted out of office, or not being voted in. That is the only legal limit on expression of viewpoint possible in the US. | Perhaps. The relevant law is assembled into notes on 3 USC 102. The original act of 1963 defines President-elect in this manner: (c) The terms 'President-elect' and 'Vice-President-elect' as used in this Act shall mean such persons as are the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. There is no specific statutory provision directing the Administrator of the GSA to ascertain who is that President-Elect. The administration is apparently taking a position similar to that taken by the Clinton administration, that states determine who has been elected, and the states have not officially determined who has been elected: nor has a candidate conceded. If a court orders the Administrator to make the ascertainment, I expect that the administration would appeal the ruling up to the Supreme Court. This letter, addressed to the Administrator, gives the legal rationale. | There is no US law licensing journalists or people who report the news, or requiring such people to identify themselves by legal name. Nor can there be under the US First Amendment. There is also no law requiring a person to identify himself or herself by legal name online. Some sites, including Wikipedia, have policies against having multiple undisclosed user IDs for the same person, but that is a matter of the site's own rules, not a matter of law. Any US law mandating this would again run afoul of the First Amendment to the US Federal Constitution. This article on Anonymous Speech reviews and cites a number of US Supreme court cases on the subject of anonymity, mostly in political contexts. This article from the Electronic Frontier Foundation (EFF) discusses the same general subject. Both articles mention that The Federalist (analyzing and advocating for the then-unratified US Constitution) was originally published under the pseudonym "Publis". The EFF Article "Court Recognizes First Amendment Right to Anonymity Even After Speakers Lose Lawsuits" discusses the 6th Circuit case of Signature Management Team, LLC v. John Doe in which it was held that an anonymous blogger who lost a copyright infringement suit could nonetheless remain anonymous. This page apparently from a Harvard course, lists and briefly describes several cases on the same subject. In Doe v. Cahill, 884 A.2d 451 (Del. 2005) an elected official sued an online poster for defamation, and sought to force the ISP involved to disclose the poster's identity. The Delaware Supreme Court ruled against this, setting a standard offering greater protection for such anonymous online speech than previous cases had. This answer is very US-centric. Laws in other countries are different. The OP has not specified a country or jurisdiction. | So it's not that SCOTUS is declining to review the matter on Constitutional Grounds but that it's declining to rule because 1.) It's a military matter 2.) It's under review by congress. SCOTUS is basically saying that, of the three branches, they are the least equipped to deal with military policy and when a better equipped branch is reviewing the matter. SCOTUS doesn't want to dictate to Congress how to change the rules when Congress is in the process of changing the rules itself... but they can say "Hey, we got our eyes on this as a constitutional matter so keep that in mind when you decide on what you're gonna do about this. When Congress makes a decision on this particular law (either change it or keep it), SCOTUS may take a look, but that doesn't mean they'll rule against it, as Congress and the Military can present an argument that it might be necessary for military defense reasons. | You don't explicitly say (this being an internationally visited and populated site), but based on your question, I will assume that you are in the US. For the question you asked: Is the company the government? If not, then NO, you cannot successfully sue a company (or person for that matter) for violating the freedom of speech granted by the First Amendment to the US Constitution in any circumstances whatsoever. (Sorry, this is a pet peeve of mine). The US Constitution does not bind or restrict any private* individual or company, in any way. (Here "private" means "non-governmental; a "public(ly traded) company" is still considered a "private" entity in this context). The US Constitution exclusively deals with four things: How the US Federal Government operates, powers of the government, and restrictions of the government, and the definition of treason (which arguably is itself a restriction on the power of the government, by denying them the ability to define treason themselves). The First Amendment itself is explicit about this restriction: Congress shall make no law ... abridging the freedom of speech (emphasis mine). Note that, while the First Amendment does not mention acts of the President, this is because the President's Constitutional powers are quite weak and limited; What powers the President does have and usually uses are granted to the office by laws passed by Congress, and so the restriction comes with them, as Congress cannot delegate to the President powers that Congress themselves do not possess). As such, no company can be sued for violating the First Amendment (or any portion of the Constitution, really) because it does not apply to them. Now, there may be laws passed by relevant legislatures, but these are dependent on your jurisdiction (e.g. state). However, as a general rule of thumb this would be legal. Turning down a candidate based on what they say in an interview is the point of having an interview; Turning down an candidate for saying something in an interview that could potentially leave the company liable for a lawsuit under the theory of vicarious liability is only good common sense. | Does he have some kind of libel or invasion of privacy case? The description of the "art work" is somewhat inconclusive. I will assume that the red lipstick and blue eye shadow in the fictional poster are suggestive of that soldier's "makeup". If the World War Two soldier were still alive and a straight male, he might have a claim of defamation insofar as the poster portrayed him as having a sexual orientation which is inaccurate, detrimental to his reputation, and tending to dissuade others from associating with the soldier. Policies against sexual discrimination aside, no straight male likes being falsely characterized as to sexual orientation (in part because of the undeniably harmful, lasting impact something like this would have in his environment). The defendant's possible allegation that the "art work" was hyperbole would be unavailing. That is because the suggestive poster is likely to impinge on viewers a detrimental concept of the soldier even if it is obvious to those viewers that the poster was not an actual, color photograph taken of him during the World War II. In most jurisdictions in the US, the defamed soldier would need to file suit within a year from the publication of the poster (an exception is Tennessee: six months) because the statute of limitations for claims of defamation is shorter than most others. | No "Election interference" is not a crime or a legal category. It is a term often used by the press to indicate a variety of actions, some illegal, some legal but argued to be improper or dangerous. For example, it is perfectly legal for anyone, citizen or alien, to make statements about the election or the candidates, even if these are knowingly false, as long as they do not rise to legal defamation (and the bar for that in an election context is very high). But doing this has been called "Election interference" in the press. It is generally unlawful for an alien to make a direct campaign contribution. The Federal Election Commission page on Who can and can't contribute says: Campaigns may not solicit or accept contributions from foreign nationals. Federal law prohibits contributions, donations, expenditures and disbursements solicited, directed, received or made directly or indirectly by or from foreign nationals in connection with any election — federal, state or local. This prohibition includes contributions or donations made to political committees and building funds and to make electioneering communications. Furthermore, it is a violation of federal law to knowingly provide substantial assistance in the making, acceptance or receipt of contributions or donations in connection with federal and nonfederal elections to a political committee, or for the purchase or construction of an office building. This prohibition includes, but is not limited to, acting as a conduit or intermediary for foreign national contributions and donations. There is an exception for the holders of green cards (who do not fit the conditions of the question). This same site's page on Types of contributions also says that: "The entire amount paid to attend a political fundraiser or other political event or to purchase a fundraising item sold by a political committee is a contribution" regardless of the expenses of the committee or market value of the merchandise. Thus when the question says that "purchasing election merchandise is illegal" it is correct if that merchandise is being sold as a fundraising effort, as most campaign merchandise is. But when it refers to "discussing elections with a US citizen" that is not only not illegal, it is protected activity under the US First Amendment (freedom of speech), which is not limited to US citizens or residents. If a statement or electioneering communications is published, and its publication is paid for by a foreign national, and this is done at the request of or is suggested by a candidate or campaign committee, the payment will probably constitute an "in-kind contribution" and thus fall under the law against contributions by a foreign national. The above is a matter of federal law and Federal Constitutional rights, and so applies in every part of the US, including CA. Any state law purporting to make an alien "discussing elections with a US citizen" unlawful would almost surely be held unconstitutional and void on its face, although I don't know of a case where there was a court decision on this exact point. A law requiring a widely distributed statement supporting or opposing a candidate in an election identify its sources or sponsors might well be constitutional, by analogy with the "I approve this message" requirement for broadcast advertisements. | Taking the US as an example, the Constitution states Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Congress or a state government hasn't prohibited you from comparing platforms. Another private entity has. And, that's fine. You're free to launch the app as a separate website, or print out the flyers and hand them to people on the bus, or publish your own monthly magazine comparing various platforms, so you still have freedom of speech and of the press. As an example, if you write a letter about how great the government of North Korea is to the letters department at Stamp Collectors Magazine, and they don't publish it, have they violated your human rights? The app store restriction may be quite dumb. After all, the built-in web browser allows the reading of the exact same news. But there's no law against being dumb. |
If a company never invoices me, am I obligated to do anything? I hired a driving school to help me get my driver's license. My test was cancelled due to COVID and my last lesson was about a week before the test. The driving school and testing facility are two entirely separate entities but both closed down due to COVID. How or when payment was to be made was never discussed with the driving school. They haven't contacted me despite my last lesson being over a month ago. I had tried discussing it with the teacher but he sort of deflected the questions saying collecting pay wasn't really his department. I found the teacher did a bad job and I lost my job due to COVID. If they don't ask me to pay should I take any action? Is their a time limit they have to ask or I have to pay? | "One day and that day may never come" If a company never invoices me, am I obligated to do anything? No (given that they know how to contact you i.e. you are not evading being invoiced). That said, you will still owe the money. When/if they ask it to be paid, you will need to pay. But there is no need to proactively bug them to take the payment. Until invoiced, you can enjoy the money as a zero-interest loan. | There is no significance to using the words "I" or "we", nor does it matter that you didn't sign the surrender paper (after al, you did not have possession of the vehicle and it is not yours to surrender). You will have gotten a notice, at the beginning of this process (when the loan was taken out) that provides information like this, in particular The creditor can collect this debt from you without first trying to collect from the borrower. The creditor can use the same collection methods against you that can be used against the borrower, including suing you or garnishing your wages. If this debt is ever in default, that fact may become a part of your credit record. When you are a loan co-signer, that means the creditor can go after you and you alone to get the money. Since it seems the creditors are pursuing you both, that beats the alternative that you have to sue her to get anything. Since there is no question that money is owed, the point of the trial is to decide who pays it: it will be one or both of you, and it won't be that the bank has to take a loss. Your attorney's job is to argue that it should not be you (her attorney's job is to argue that it should be you). Your concern should be that it's too difficult to get the money from her, and easy to get the money from you, which is why you need to hire a good attorney. | In all honesty, this completely depends on the judge you happen to get that will hear your case. There's no straight-forward "yes this will work" or "no this won't work" answer in a case like this. But a couple things to keep in mind: The fact that he was from out of town doesn't matter. If signs were displayed, then he has to obey the signs. Your argument about the placement of the signs may or may not work, again depending on the judge. But make sure you take more evidence than just some numbers derived from guess work (you'll need pictures of where the car was parked, where the signs are at, and exact measurement between the two signs and the vehicle, pictures of obstructions, etc). It's up to you to decide whether collecting all of that is worth the $45. Someone has to pay the ticket. You cannot just go to court and get it dismissed because you weren't driving. By default, the parking ticket obligation falls onto the owner of the vehicle. If you know you weren't driving, you can then request the person who was to reimburse you, or even sue them for reimbursement if they refuse. Continuing from #2, in some jurisdictions and especially if the parking ticket was issued by a private company (like at a strip mall) that doesn't use police enforcement for parking, you can provide them with the name and address of the person who was driving and have them re-send the ticket to the correct person, but not always. However, relying on this is a bad idea. The ticket, while issued to another person, is still attached to your vehicle and if the other person refuses to pay, it's your vehicle that will be impounded, booted, etc if the ticket is left delinquent. Then you just have even more hassles to deal with. Having outstanding tickets for your vehicle could also affect your insurance premiums. Don't let this linger for too long. Get on top of it and decide what the two of you are going to do as soon as possible. | When does a CEO (or the investor or the board) have to notify employees they will be unable to pay them for work already done? Directors and officers (which includes executive officers like the CEO) but not investors have a duty to ensure that the corporation does not trade while insolvent. In this context, "trading" means incurring new debts and "insolvent" means being unable to pay their debts as and when they fall due. Unfortunately, it is a judgment call by those directors and officers and the exact point where it occurred is generally only clear with hindsight, if then. For example, you describe a "tumultuous week"; quite likely the company was urgently seeking additional sources of funds and until it was clear they had no prospect of getting those, they weren't insolvent. The director's duty is to act reasonably (a broad range of activities) and not be overly pessimistic nor optimistic about the company's prospects. As far as I know, they don't have a positive duty to inform their creditors that they can't pay. If that happens their obligation is to file for bankruptcy and their obligations cease - the bankruptcy trustee then invites creditors to prove their debts. Does an investor have a responsibility to ensure all employees are paid? No. That is pretty much the purpose of limited liability corporations: to shield the investor from the debts of the company. Do the employees have any recourse? Yes. Employees are typically priority creditors in Colorado and rank ahead of many other creditors. However, if the company is not based in Colorado different laws will apply. Of course, you must be an employee of the company - this priority doesn't apply to true independent contractors. Also, the liquidator's fees rank ahead of anyone and unless the bankrupt company has adequate realizable assets, even employees are unlikely to get a dividend. You also need to be clear who you work for as you say "that last Friday was paid for/fronted by the HR company". Do you work for the bankrupt company or this (non-bankrupt) HR company? If the latter then they owe you your wages and the bankruptcy of their principal is their problem, not yours. Is "secured debt" real? And does that reduce the likelihood of receiving a paycheck in a bankruptcy settlement? Yes. There is a priority in the payment of creditors in liquidations and it varies by jurisdiction but a typical arrangement might go like: Liquidator's Fees Employee wages and entitlement accrued within the last 6 months Certain taxes Secured creditors (who may have a ranking among themselves) Unsecured creditors (including employee entitlements more than 12 months old, other taxes, trade creditors etc.) Shareholders (who may have a ranking among themselves) Basically, the lower you rank, the less likely you are to see a dividend. Does any of this change if the company doesn't file for bankruptcy? Sure. Until the company does this it is still a going concern and it has to pay its debts. If it doesn't it's creditors can sue and recover their monies as best they can which may include forcing the company into bankruptcy. | What legal options do I have here? It depends on how much you are owed. If it is less than $5000 (in a city court) you can sue them in small claims. If it is more than that, you'll have to sue them in a different court. Do I have a claim to salary if I quit? Yes, absolutely. You quitting does not relieve the business of its obligation to pay you for work you have already performed. In some states, they may also be required to pay you for accrued leave (sick/vacation time). You should not have to work for a company that does not pay you, we got rid of slavery a long time ago. I'm nearly positive I would not have a claim to the 100% discretionary bonus. Maybe, maybe not. This depends on your contract and what you've been told. If you were told (in writing) that you would be given $X amount for a bonus for work performed in 2018, the bonus may no longer be discretionary because the company obligated themselves to pay it via a promise. Bonuses may be harder to argue in court, but if you have sufficient documentation that you were promised this bonus then you may have a claim to it. If you do decide to go to court with this, gather up as much documentation as you can before quitting, print it out and save it to bring to court or to your lawyer. Make sure to get as much as possible, for example if it is an email, get the whole chain, as much of the headers as possible, etc. If you have voicemails, see if you can save them or record them for later. Do not wait too long, have a lawyer draft up a demand letter the moment you quit outlining exactly everything you are owed, including the bonus, vacation, sick days, etc. Deliver this via certified mail. Don't let them say "well we'll get you taken care of next week/month/pay day". There are statutes of limitations (I don't know what they are for NYC) but you should be making an effort to collect, not waiting on them. After you quit, they don't have an incentive to pay you anymore (even though they are legally obligated to). | There are two primary parts to the question. The first is, is it a violation of the due process clauses to deprive you of property or liberty without following the law: the answer is, it is. If you did not violate any law, you cannot legally be punished. That does not mean that you understand the law correctly, e.g. you may not be aware that non-payment of child support or writing rubber checks is grounds for license suspension. The second part is, can they follow a secret process where you are not informed of the charges or the results of the legal proceeding? That too is a requirement (known as procedural due process), see this article. You must be made aware that your license is subject to suspension and has been suspended. Your attorney would have to advise you, based on the details of your specific circumstance, whether your procedural due process rights had been violated. For example, if you write a rubber check, you will be ordered to appear in court (there's your notice). If you fail to show up, they can suspend your license. However, under F.S. 322.251, they do have to "notify" you that your license was suspended. The law says that Such mailing by the department constitutes notification, and any failure by the person to receive the mailed order will not affect or stay the effective date or term of the cancellation, suspension, revocation, or disqualification of the licensee’s driving privilege. This kind of "we sent it" definition of giving notice is probably universal in the US: no jurisdiction allows the "I never got it" defense. | This is just saying that if they can’t host your event then the only remedy you get is your money back that your paid them (your deposit, advance payments, and of course your don’t owe final payments). It is there to make it clear that they are not responsible of any other money. What else might the client want them to refund? Other lost expenses. Non refundable deposits to the band, the florist, the caterer if this is just for the space. The non refundable airline tickets your relatives bought. Prepaid hotel rooms. They will not pay for any of that. The pandemic is a bit of a red herring because although that is of course the big thing now, it says any occurance whether or not the business caused it. The answers to your specific questions though are pretty trivial. -The business did not cause the pandemic or control the state health office (Irrelevant as noted) -There is nothing they can do about it. The state or county will allow the events when the situation improves. But even if say there was no state order but the venue for their own reasons or because they could not get enough staff cancelled, the answer would be the same. | I can't speak for the US but in Australia this would not be binding. You entered a contract for the vacuum cleaner the terms of conditions of which were made known to you at the time of purchase – the ticketed price, any store or website displayed terms and whatever was written on the outside of the box. Any alleged terms that were not made known when you entered the contract e.g. because they are inside the box are just that: alleged. In addition, the manufacturer would have committed an offence under Australian Consumer Law by misleading you that such terms were binding. This could lead to a fine in the multiple millions of dollars if the breach is widespread and egregious enough. |
can police accept my guilt in a state of shock? can the police legally take my admission to a car crash when I am in a state of shock in the middle of a car crash? and if not under what act? | Basically, it is up to the court. The relevant law is the Police and Criminal Evidence Act (PACE). You don't give much in the way of specifics, but it sounds like you confessed something to the police at the side of the road immediately after the accident, and now wish to dispute that confession. If you are taken to court and the police want to introduce your confession as evidence then you (through your lawyer) can ask the court to rule it out. You may be able to do so on a number of grounds. Was the confession properly recorded at the time? Were you treated in an oppressive manner, such that you felt you had to say what the police wanted to hear. Did you think you might get more favourable treatment if you said what the police wanted? For instance, did you think you might be allowed to go home once they were satisfied? Were you given a proper rest, or were you in a mental state that might cause you to say things without understanding the consequences (it sounds like this would be your main argument, but consider the others too). [Edit] If you needed medical treatment that would also be relevant. Were you properly cautioned (that speech beginning "You do not have to say anything...") before the police asked you questions. If you think you may be facing criminal charges then you should get yourself a lawyer sooner rather than later. A lawyer will know all about this and be able to navigate the relevant legal processes on your behalf. A bit of background: back in the 1970s the police frequently attributed incriminating statements to suspects when arrested, such as "Its a fair cop, guv", or "Who ratted on us?". The rules in PACE were made to stop such "verballing". | Using two states as examples: In California, emergency vehicle operators are exempt from pretty much the entirety of the rules of the road (VC 21055). They can pass you on the right if they want to. Department policy might say no, but that depends on department policy and the details of their emergency vehicle operation course. However, California law requires all drivers to pull to the right when an emergency vehicle approaches (VC 21806). Even though an ambulance driver legally could pass you on the right, you are required to pull right. According to the BLM's emergency response policy for fire personnel in California, this means passing on the right is heavily disfavored: the emergency vehicle operator doesn't know that the driver (who is clearly not paying much attention) won't suddenly notice them and comply with the vehicle code, cutting them off or running into them. Other policies/things which seem to reflect policies say similar things, and all make it clear that operators need to be careful that the car they're passing won't drive into them. In Maryland, the law is a bit different. Section 21-405 of the Maryland Code obligates drivers to move to the edge of the roadway. This means either edge, so on a divided highway you might pull left. On a non-divided road, you obviously pull right. In this case, the vehicle may end up passing you on the right, but again: they are going to be careful about it, and would rather you get out of their way so they don't have to worry that you'll suddenly see them and drive into them. | The best course would be to contact the public defenders office and explain the situation to their intake or consultation services. Remember, you don't have to be going to trial to avail yourself of their services and sometimes, helping cops makes the cops suspicious about you (it would not be the first killer who cozies up to the police to learn what they know about his crime). If the Public Defender thinks you're rich enough not to need their services, you should call criminal defense attorney practices. Most law offices will offer consultation free of charge as part of client intake, so they will be willing to hear your case and offer advice. In either case, check with the lawyer that attorney client privilege is in effect. If they say yes, explain in detail to them, everything you know and want to discuss, even if some of it could criminally implicate you in this or another crime. Treat it as your deathbed confession and you know full well which circle of hell you're going to if the priest doesn't absolve you of sins (okay, too Catholic... but the Lawyer is not going to turn you in if the privilege is in effect... he could lose his license to practice law over it... we can make all the evil lawyer jokes we want, but this is one of the few sacred tenants of their profession.). Listen to his advise. Also see if you can find a second opinion. It's not that the first guy gave bad advice, but the next guy might give you something different. If you still do not feel comfortable, then keep your mouth shut. If they arrest you for the murder, do not talk until you have an attorney present and prepare to tell him exactly what you did. Especially if you did do it. Always answer your attorney truthfully. | 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. | Let's be quite brutal here. Inexperienced driver doesn't mean the driver made a mistake. Lots of friends in the car doesn't mean they interferred with his driving. Loud music in the car is totally legal. "Perhaps was distracted" - "perhaps" you were distracted by looking at the passengers of this car instead of yielding? It seems that you drove without due attention. You noticed at the last moment that you had to yield. "Yielding" isn't just stopping right at the last second, you have to drive in a way that it is visible for others that you are going to yield, and you didn't. The other driver was 100% correct to assume that you wouldn't yield. Then you come up with an accusation that a police officer was biased. That's a very, very strong accusation. It's impossible for you to prove. It's the kind of accusation that will cause the judge to believe that you can't accept your own faults, and that you need the maximum possible fine to make you realise your mistakes. That's why you need a lawyer. A lawyer will either make sure that you only say things in court that actually help your case. Or will advise you not to fight this in court at all, if that is better for you. If you go to court on your own, you'll only get yourself into trouble. And if there was bias by a police officer, and a witness lying, and a driver driving without attention, then a lawyer with experience in these things might be able to prove that it court, although that would be a very tough call, but you on your own don't have a chance in hell. You say "the shop owner lied". The shop owner says "no, I didn't". So what's your next step? You don't know. Your lawyer knows. That's why you need a lawyer. | You are right, the entry and exit photos are only evidence that you were there. This is something they need to prove so the photos may only be for that. Their statement that you didn’t display a valid ticket/permit is, at present an unevidenced assertion. If you contest this, they will provide evidence that you didn’t (e.g. the actual records they refer to) and you would provide evidence that you did and, if it goes to court, the judge will decide what evidence they prefer. As this is not a criminal matter, they need to prove the offence on the balance of probabilities. However, there are almost certainly administrative remedies which will allow you to contest the fine without going to court. This would involve you sending them a copy of the permit and them assessing whether their belief that you didn’t display it is justified or not. | There's no legal requirement in Canada or US that the police do anything to investigate a crime, so there's no requirement that they do anything specific to investigate a crime. If the police officers are satisfied by the witness accounts, or have some reason to think viewing surveillance recording wouldn't be useful they don't have to, either by law or policy. Note that ordinarily, police won't consider a physical altercation between two grown men a serious enough crime to warrant charges. If there was no serious injury and there wasn't a large discrepancy between the strength of the two men, police will often decline to lay charges even when they believe the evidence would sustain them. In this case the police may have decided it wasn't worth investigating further because it wasn't worth wasting the time of an already overloaded court system. The victim here still has legal options despite the lack action by the police. He can subpoena the video evidence if he wants to bring lawsuit for damages. In Canada, it's possible even to lay your own criminal charges in a private prosecution, although this much more expensive than a civil lawsuit. | No Can a Dog admit guilt in court? Can a car have and admit guilt? No. AI is nothing but property and a piece of evidence, just like a dog or car. It is not a person and thus can not admit to anything. Everything the AI says is evidence, not an admission. Very damming evidence, but not the makers saying "I did it." |
How can we resolve a bet on a question of law? Bob and Rob debate a question of law and do not agree. There isn't any material dispute between them to go to court about. They just want to find out what the legal truth is / who is right and who is wrong. They can ask the question on this site and get a convincing answer but, should any of them later act in reliance on that answer and end up in a legal trouble, the answerer won't be liable. They both want an answer they can reasonably trust, and random people on the Internet just fall short of this requirement — no matter how seemingly reputable they are. Bob and Rob could even be debating just any good question from this site which one reputable member answers "Yes", another "No" — for example to kill time in COVID-19 lockdown. They decide to bet. They are happy to pay to have their dispute resolved by an authoritative source (e.g. a lawyer, or a court of law). How can they do that? If any of them hires a lawyer, that lawyer will be protecting the interests of their client and therefore could potentially be biased to produce resolution that favours their client (lets them win the bet). Can they jointly hire a lawyer? Are there any other solutions? | 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. | what reasoning would the court use to evaluate the competing claims? Absent a verifiable contract, the dispute would require assessment of the extrinsic evidence and/or of other aspects reflecting the parties' credibility. Those types of factors would help for discerning whose position is meritorious. You are right in that Bella's co-signing of the loan is likely to render her hypothetical allegation of gift not credible. Bella's history of defaulting on her debts as well as her failure to keep up with insurance & tags are examples of prior act evidence. As such, these might be inadmissible for proving that she entered the contract with Abe. However, they are admissible both for proving Bella's pattern of missing her commitments and possibly for detecting inconsistencies in Bella's allegations (thereby weakening Bella's credibility). Unless Bella is able to point greater inconsistencies or weaknesses in Abe's credibility, a competent and honest court (where available) would rule in favor of Abe. | Can a statement of one's beliefs constitute defamation if those beliefs can't be proven true? You might think that it is impossible to prove what's going on in your mind. But this is done all the time. Thoughts can be inferred from words and actions. For example, theft requires an intent to permanently deprive someone of property. If someone hides merchandise under their shirt and proceeds to the exit, there's generally not a reasonable doubt about whether they intended in their mind to steal it. Defamation laws vary by state. However, the First Amendment sets a baseline that all states must follow. Defamation requires a false fact. Pure opinion is not defamation. However, it is possible to defame via a statement which is an opinion, if that opinion implies undisclosed facts which are false. If you say that you "believe" the companies are deceptive, this clearly implies you know something that makes you believe that. You can get around this by disclosing the entire factual basis for your opinion. If you say that the New York Giants are deceptive because their stadium is actually located in New Jersey, that's not defamation, because people can judge for themselves whether that's actually deceptive. But if the team was actually located in New York, you could be liable. Would we still have some potential burden of proof The burden of proof is on the plaintiff, but it's only preponderance of the evidence in most cases, meaning the jury just needs to find it 50.001% likely that you are liable. But if the plaintiff in a defamation case is considered a "public figure" the standard of proof is raised, and they must prove by "clear and convincing evidence" that you acted with "actual malice" (which more or less means that you didn't actually believe what you were saying.) According to this paper it's an open question as to whether a corporation can be a public figure (although I don't know if their analysis is still valid since it's from 2001); the answer might depend on which circuit you are in, and even if you know how your circuit has decided the matter, the Supreme Court might rule the other way. And if your case goes all the way to the Supreme Court, you're going to be paying a lot of legal fees over the course of many years. You should also know that even if it's not defamation, you might not be off the hook. There's something called "tortious interference of business". If you're going to literally have people stand in front of businesses to try to drive their customers away from them and to you, I would highly suggest you get a lawyer from your area to determine whether and how you can legally do this. | Each case is decided on its own facts I know you want a clear answer to where the bright line between illegality and legality but there simply isn’t one. The reason you feel there is a “legal grey area” is because there’s a legal gray area. The way the common law works is that there are some acts and omissions that are clearly crimes/torts/breach of contract, some that aren’t and some that live in that grey area. When someone brings a case in the grey, the court will make a ruling that will apply to similar facts and we get a little light on the subject. Then the legislature changes the law and it all goes dark again. Each of your bullet points is simply too vague and encompasses so many fact patterns that it’s impossible to say. For example, “Using a fake name/birthday”: do the ToS prohibit this? is there an intent to mislead or deceive? are there laws that prohibit this? is a benefit being received dishonesty? etc. If you come with a specific, detailed fact pattern there might be case law that is specifically relevant that will allow an answer with a high chance of being right. However, nuances matter and no two fact patterns are exactly the same and the difference might be enough to distinguish your case from the precedent. Or there might not be a relevant precedent because no one has sued/prosecuted on this fact pattern before. Then we are in virgin territory and even experts are only making educated guesses until the judge (and the appeals court(s)) hand down their decision. These are the most interesting cases to watch but the most terrifying to be part of. If you need to ask the question”where’s the legal line on this?”, there’s a decent chance you have a foot on each side. | If the two lawyers will never be on opposing sides of a case, there's no conflict of interest and thus nobody cares. For example, two lawyers in different fields probably won't encounter a conflict. If the lawyers are involved in the same field, there's a risk of a conflict of interest. Normally, the lawyers can shield themselves from legal trouble by disclosing the conflict any time it comes up. Where possible, the lawyers should avoid such cases before the conflict even starts (i.e., a lawyer should not take a case if they believe that the other lawyer will be on the other side). Similarly, disclosing the relationship to their boss allows their boss to avoid assigning such cases. In short: Such a relationship could have consequences, but a competent, ethical lawyer is unlikely to experience them. | I have already contacted a lawyer and paid all the money I had and they didn't help me resolve anything, the guy just talked to me for a little bit. He essentially just took my $600 and no action was made. He said the best thing to do would be to wait it out because the contracts were never fulfilled by them and they can't claim my inventions etc if I am an independent contractor. To me it just sounded like a bunch of BS and not a real solution to this. You paid $600 for expert advice which told you to do nothing. You think the advice is bullshit and intend to go full steam ahead against the advice given. I'd say it is very likely that the lawyer is a better expert than you, so you should follow his advice. You are in a hole, you were told to stop digging, and you intend to continue digging. Don't. There are times where doing nothing is the best advice. In this case, you intend to accuse someone of breach of contract. That has a good chance of landing you in court. A company cannot afford to ignore such a statement. You claim the contract is void and you want to cancel it - but you can't cancel a void contract. It's void. Listen to your lawyer. | Not the same way as there's protection against double jeopardy in the criminal system. If Person A and Person B both have claims against Person C, even if it's for the same act or omission, each of them can independently pursue those claims. Imagine what would happen if that weren't the rule: Whoever filed first would functionally be preventing the other one from recovering their claim. What's worse, Person A and Person C could collude (say, by presenting a bad case on Person A's side) and prevent person B from accessing relief that they're entitled to. The way that the courts prevent abuse of the system by people who want to keep re-litigating the same issue is a principle called res judicata. But that's a principle that only applies when it's the same parties – say, Person A sued Person C and lost, and so sued Person C again for the same claim. This limitation protects Person B against any collusion or just bad lawyering on the part of Person A. | While it is true that jury instructions are typically less than optimal, it is ideological hyperbole or cynicism to claim that instructions are purposely confusing. The ultimate source of the confusion is that the legal system has to assume (pretend) that it has clear-cut rules that any reasonable person can easily understand and automatically apply. In order to maintain uniformity of the law, there is an externally-defined instruction that a judge may read (rather than giving his personal spin on what "reasonable doubt" means or what the relationship is between "reasonable doubt" and convicting a defendant). Once the relevant body of government (committee of judges and lawyers) has established the apparently correct formula for expressing the applicable legal concept, they don't mess with it, until SCOTUS overturns decisions enough times based on crappy instructions. Legal professionals are trained to carefully scrutinze language so as to achieve a single interpretation of a given clause (never mind the fact that there turn out to be many such interpretations). Since they can apply these interpretive rules, it is assumed that anyone can apply them. But in fact, we know that people don't just use literal semantic principles to reach conclusions – but the law resist pandering to that imperfection in human behavior. There is a huge literature on problems of jury instructions, some of the better of which relies on psycholinguistic experimentation to establish that a given instruction is confusing or gives the wrong result. See for example Solan's "Refocusing the burden of proof.." (and references therein) that addresses the problem of the "beyond a reasonable doubt" instruction, which has the unintended consequence of implying that the defense has an obligation to create a doubt (which is not the case, and allows conviction if there is the weakest imaginable evidence which hasn't been refuted). But who gets to decide what the improved instructions should say? The instructions have to correctly state what the law holds (where "the law" means not just statutes, but the trillions of relevant court decisions and applicable regulations). Thus there is massive inertia, and improved jury instructions will not come about quickly. |
What can I legally do with abandoned cars I found on property I recently bought? They were not seen while inspecting the property prior to sale, because it's a large property and mostly the same throughout. We looked at aerial photography, but it appears they were left there after the latest photography was done, which means sometime after 2009, which means they were parked there while the previous owner owned the land. He doesn't know why they are there, or who left them. I want to say they are clearly abandoned, because they are in bad shape and the grass has grown up around them, but I'm not confident enough. They look like they could maybe be restored to working order (not that it'd be worth it though), and they still have license plates. They are locked, so I wasn't able to check for a registration or other info. I would like to simply call a scrap yard to have them removed. The previous owner says he thinks I should keep the money the scrapyard offers, he considers them to have been bought with the land (AKA he just wants the issue to go away, and hopes I don't try to make it his problem). What are my legal obligations here? Am I required to report their finding? To whom? If I have no legal obligations does that mean they are now mine to scrap? | There are two very important points you should keep in mind here: You are not under any obligation whatsoever to investigate the owner of a vehicle parked on your property. You have full rights to tow any unauthorized vehicle off of your property. So, by far the easiest thing for you to do is to shift all responsibility off of yourself. Make it somebody else's problem. Try the police first. The safest thing you can do is simply dial 911 (or try to find a non-emergency number if you live in a major city, but Nebraska suggests just calling 911 directly) and report the abandoned vehicles to police. Their process for declaring a vehicle abandoned can take a bit longer (takes seven days in Nebraska). Essentially they'll document the vehicles' location and tag them, and probably run the license plates (if they come back stolen, they'll be towed by law enforcement immediately). Then they'll come back seven days later and, if the vehicles are still there, have them towed as abandoned vehicles. Law enforcement will sometimes only respond to private parking complaints that are actually on paved surfaces, and it sounds like these vehicles are just parked out in the middle of a field somewhere, so they may not actually care. But it doesn't hurt to check. If that fails, just have it towed. If law enforcement says it's ok or doesn't care about the vehicles, the next easiest thing for you to do is to call around to different tow companies, and see if one will tow it off your property for free in hopes of recovering tow costs and other fees from the actual owner of the vehicle, or through sale of the vehicle if it's never claimed. Let them do all the research and contact the owner, or report the vehicle to the police if necessary. You don't need to do any of the work yourself. Sure that doesn't get you any money, but any scenario that gets you money will be a very long process and it sounds like you just want the vehicles gone. You do not own the vehicles. The previous owner saying you bought the vehicles with the land is blatantly wrong. Ignore him, completely. By that logic, someone buying an apartment complex would subsequently take ownership of all vehicles on its private parking lot. That's not how vehicle ownership works in any state, and you do not own the vehicles, nor do you have any right to dispose of them. Even if the vehicle is abandoned, there is still a legal process that must be followed to claim ownership of an abandoned vehicle with the state. Unless you really want to take ownership of the vehicle, those processes are probably way more time and effort than you're willing to expend (usually resulting in years of waiting). Taking it to a scrap yard could be very bad for you. Since you do not have ownership of the vehicles, you definitely should not take them to a scrap yard. Destroying the vehicles without giving a person the chance to come claim the vehicles could get you into a lot of trouble. You're basically destroying someone else's property. If the person came back looking and found out you destroyed them, they may even be able to press charges against you, the scrap yard, or a combination of both (a Class IV felony in Nebraska, since vehicles are worth more than $1500). As an aside, any legitimate and reputable scrap yard should outright refuse to destroy the vehicles for you, because you won't be able to provide them with any documents that verify your ownership of the vehicles. Make sure you don't destroy the vehicles in any other way, though. Again, shift the responsibility. Don't put yourself into situations if you don't have to. Law enforcement and tow companies deal with this stuff every single day, and are much more qualified to handle this situation in a legal way than you are. Let them take all the responsibility off of you, and don't worry about doing anything yourself. It will make sure you don't do anything illegal, and thus don't open yourself up to repercussions later on down the line. | https://en.wikipedia.org/wiki/Lien A lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. So the garage might have held a lien on Wilson's car as a way to secure a debt that he owed them, such as payment owed for repairs. If so, it would have prevented Wilson from selling the car until the debt was paid. It would also have made it a little less clear who was truly in possession of the car if the garage had a security interest in the car. However, in this particular case, Wilson had a monthly credit account with the garage. I would assume that means he had come to some arrangement with the garage where they would do the work without demanding payment on the spot, and that he would pay what he owed at the end of the month, or something like that; perhaps on terms like net 30 days. They evidently trusted him enough to grant him unsecured credit, instead of demanding a lien on the car as security. So the issue of a lien did not come up in determining possession. This sort of arrangement would have been a lot more common in 1963, before credit cards were common, so I'm not surprised that your garage today doesn't offer it. Nowadays the garage is more likely to demand payment as soon as the work is done, but you can get much the same effect by paying them with a credit card; then you will have about a month before you have to pay your credit card bill (or begin paying interest on it). | A person who impounds your vehicle has a duty to keep the vehicle secure until it is released, so you might be able to sue the operator of the lot for damages. An exception would be if the lot is actually operated by the government. Under the doctrine of sovereign immunity, you can't sue the government for messing things up, unless they have passed a law allowing themselves to be sued, which is unlikely. So it depends on who exactly had the vehicle, and in what jurisdiction. Your lawyer could tell you whether you have any recourse. You might be able to take advantange Baker v. City of McKinney, which made a federal case out of police property destruction, via the Takings Clause. | 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). | No. Just because some building is "owned by the public" or State, doesn't mean it's public property. A state's national guard installation comes to mind immediately. State workers' offices are not public places. Airport hangars/buildings/runways. You can't just go hang out in the DPW garages. | There is a form, which both parties to the sale sign. Note that it does entail paying sales tax. There are other aspects to the sale which reinforce the "It's not my car anymore" message, such as returning the plates and getting a receipt for the plates. Even doing the sale in a DMV lot would not help you. | Washington state dedicated a section of their code to explicitly make this illegal (to install it, not just use it). RCW 46.37.685(1)(b) says It is unlawful for a person to have an installed license plate flipping device on a vehicle, use technology to flip a license plate on a vehicle, or use technology to change the appearance of a license plate on a vehicle. and it is illegal to sell them. Georgia does not seem to have a specific law on the topic, but the same effect holds under GA Code §40-2-41, which says: Unless otherwise permitted under this chapter, every vehicle required to be registered under this chapter, which is in use upon the highways, shall at all times display the license plate issued to the owner for such vehicle, and the plate shall be fastened to the rear of the vehicle in a position so as not to swing and shall be at all times plainly visible... It shall be the duty of the operator of any vehicle to keep the license plate legible at all times. No license plate shall be covered with any material unless the material is colorless and transparent. No apparatus that obstructs or hinders the clear display and legibility of a license plate shall be attached to the rear of any motor vehicle required to be registered in the state. We can start with the question of whether the vehicle must be registered: yes, it does. Then we can ask if "which is in use upon the highways" is true. This is not obvious, because that clause could be interpreted as meaning "which is at some time or other in use upon the highway", or else as "at those times when it is in use upon the highway". I strongly suspect that the courts would find in favor of the first interpretation, not the second, especially since the law also says that you must "keep the license plate legible at all times" (not "at all times when you are on the highway"). Finally, a plate flipper clearly "hinders the clear display and legibility of a license plate", and the law prohibits the attachment of such device, not just its use. So obscuring your license plate is just not legal. | Your question (when read with your follow-up comments) is somewhat complex, so I am going to make a few assumptions and break it down into several sub parts. Assumptions The conviction occurred in a state where the expungement statute allows you to tell employers that you were never arrested and convicted. When you say “public records websites” you’re asking about sites like atlaspublicrecords.com. That atlaspublicrecords.com is a US based company. They don’t list an address and the website used a private registration services, so can’t easily determine that they are US-based. Your questions and follow-up Considerations After I get it expunged, will it be removed from public records websites . . . . No. Websites like atlaspublicrecords.com do not link to actual public records. I searched a couple of common names and feel safe in assuming that it only collects and publishes the information—it does not actually link to court records. Nevertheless, it would not be available from the actual government agencies that keep those records. By getting your records expunged the convictions and arrest would no longer be available as public records that someone could request from the courthouse, police department, or whatever state agency does criminal history in your jurisdiction. do I have to show them proof of the expungement . . . . Yes, if you believe what the website claims. I can’t find a physical address for the website and don’t know if they are real or a scam, so understand that when you give them information about your expungement—or pay their silly fee, they might collect the money and do nothing. My opinion is that the company is shady and seems to operate in a gray area of the law that I will explain below. Options if they don’t remove the post: You could try to sue them for some type of secondary dignitary tort like defamation or false light. But these would have some significant legal hurdles. See G.D. v. Kenny, 15 A.3d 300 (N.J. 2011), where the New Jersey Supreme Court held that commenting on an expunged criminal records was not defamation or invasion of privacy because it was the truth. You could try to argue that they are a consumer reporting agency under the Fair Credit Reporting Act (“FCRA”). If they're governed by the FCRA, you have some additional legal remedies (like civil penalties/fines) if they don't remove/clarify an expunged record. The Fair Credit Reporting Act applies to credit reporting agencies, like Experian & Equifax but also covers companies that compile and sell information for background checks. This includes criminal records. See the Federal Trade Commission’s Advisory Opinion to LeBlanc (06-09-98). But . . . this website is operating in a gray area that appears to comply with the law. The FCRA only applies to consumer reporting agencies, which are defined as: Any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. 15 U.S.C. § 1681a(f) Because they’re not charging money or a fee to access the reports and they’re not a nonprofit cooperative, they probably do not meet the definition of a CRA. Bottom-line is that you're best option is to give them the expungement documents once you obtain them. |
GDPR: cookie for login management I use cookie in my site for login management. I user logs in the cookie dies with the session, if user flags "Keep me logged in" when logging in a long time cookie persists. In the long time cookie I store a hashed informations (user_id,password_hash). It's used to check if user is still logged in in a new session and I use these informations to check if user can access site without relogin. I read in some article about GDPR that technical cookies are allowed without any disclaimer. I can consider my login cookie a technical cookie since I store only these informations? Do I need to show the disclaimer in this case? | From the WP 29 Opinion 04/2012 on Cookie Consent Exemption - 00879/12/EN WP 194: Persistent login cookies which store an authentication token across browser sessions are not exempted under CRITERION B. This is an important distinction because the user may not be immediately aware of the fact that closing the browser will not clear their authentication settings. They may return to the website under the assumption that they are anonymous whilst in fact they are still logged in to the service. The commonly seen method of using a checkbox and a simple information note such as “remember me (uses cookies)” next to the submit form would be an appropriate means of gaining consent therefore negating the need to apply an exemption in this case. So a cookie to keep a user logged in, requires consent. But the checkbox "Keep me logged in" is appropriate to gain consent. So in your case you do not need to display a cookie banner. | No GDPR applies to people (not just citizens) who are in the EU. It has no applicability if both parties are not in the EU. | The so-called 'cookie law' obliges you to inform the user about the site's cookies (or use of Storage or such on the user's computer) and ask for consent for those that are not "strictly necessary for the provision of an information society service requested by the subscriber or user". It does not require you to seek consent for the use of any cookie no matter what function it has. "Strictly necessary" cookies include those necessary for the website to comply with the law. Per guidance from the Information Commissioner's Office (ICO) in the UK (see the example box), a cookie set in relation to such consent or refusal is fine - it's for compliance with the cookie law. I would expect similar guides throughout the EU. You must consider its duration or lifespan: "For example, whilst it may be technically possible to set the duration of a cookie to “31/12/9999” this would not be regarded as proportionate in any circumstances." And consider including information about it in your cookie policy or such that users can find out more if they want. | 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. | The line they'll rely on for GDPR compliance is the first part of that sentence - "If you agree to this during the order process", which suggests that there will be a separate request to opt in to marketing communications at some other time in the process. Check any order documents. There's likely to be a tick box or similar on at least one. If that implies opting out rather than opting in there may be grounds to argue with that under GDPR, but there's nothing in the quoted text that suggests a problem. | In principle, the data subject's right to access involves a copy of all personal data the controller holds on them. There are no time limits by default. Of course, the controller can ask a data subject to clarify their request, e.g. to focus on a particular time frame. There is an implied time limit though: personal data may only be processed/stored for as long as the data is necessary to achieve the purposes for which it was collected. Afterwards, it must be deleted. A controller with good data management will be able to limit their effort by having as short retention periods as possible for their different records. Furthermore, a lot of data is not personal data, or falls out of scope of the GDPR because it is not processed with automated means or forms part of a filing system. For example, if thousands of old invoices were archived in paper form in boxes that are only sorted by year, there might be an argument that this isn't a filing system in the sense of the GDPR and that a DSAR would not have to involve looking through all the archived invoices (compare also Art 11). In your scenario, there is a clear retention period of six years. You are asking for records about how that data might have been used further in the past. To the degree that such data is actually available, that could reasonably be personal data and should be included in a response to a DSAR. E.g. they might have information like this: “File #1234 was included in a data set that was sold to EvilCorp in 2007. The entries in File #1234 that are older than 2014 have been purged, so we do not know which entries were included in the data set. The current name on File #1234 is Dave.” This information about the sale would be personal data because it relates to you, and you are identifiable. Of course, the controller might not be set up to perform this search unless specifically asked. However, more unspecific information might not be personal data. For example: “About 70% of our files were included in a data set that was sold to EvilCorp in 2007. We no longer have records indicating whether your file was included.” Since there is no link between the sale and your personal data, I don't think it would have to be included in a DSAR response. The primary reason why you should be told about sales of personal data is that per Art 15(1)(c), you should be informed about “the recipients or categories of recipient to whom the personal data have been or will be disclosed” in a DSAR response. So when making a data subject access request, it could make sense to explicitly referencing this paragraph. So you would be interested in receiving a copy of your personal data as per Art 15 GDPR, and in particular any available information per Art 15(1)(c) GDPR about the recipients or categories of recipients to whom your personal data has been or may have been disclosed in the past. Quite likely the response will be underwhelming, e.g. by just giving a broad category such as “potential creditors who are contractually obligated to use the data only in accordance with our policies”. Whether such responses are compliant (I don't necessarily think so) will not be clear until there's a good precedent, and that would require that someone sorts this out in court. | 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). | Your data is not anonymous since from the picture of the face the individual can be identified. It would be anonymous, if the face was blurred and other possible identifiable information was removed. Of course, that would defeat your purpose. Please note that, in any case, Anonymization Techniques are, themselves, a type of personal data processing that requires a legal ground, and achieving real anonymization is not a trivial matter (see Article 29 Working Party's opinion 0829/14/EN WP216 on the subject). 1. The face of a person includes biometric information, which is defined in article 4 (14) among other types of personal information regulated by the GDPR as: "personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data". A facial recognition software's purpose is exactly to perform a specific technical processing based on the facial features of the persons, to achieve a unique identification of a person based on these biometric features. Article 9 of the GDPR includes biometric data among the types of prohibited processing, unless one of the exceptions in § 2 applies. There are 10 types of exceptions among which: consent of the person, employment context, personal data made public by the person, scientific or historical research,... (each exception having its own conditions). You should check that you comply with one of these exceptions stated in article 9 § 2, if your application is about using facial images for unique identification of a person based on these biometric features. 2. In turn, if your processing is not about unique identification of a person based on these biometric features, but only about emotions recognition (which you briefly mentioned at the beginning of your post), it could be considered as not falling under the requirements of Article 9. That would still be a processing of personal information, but it would fall under the normal article 6 requirements. |
In France, is it illicit to use a recorded content as a proof, when the person was recorded without knowing it? I remember hearing more than once from unofficial sources (and from people whose main domain isn't law) that you can't use a recording as a proof at the court, if said recording wasn't taken with the person's consent (or if it isn't a public area with some clear sign of recording devices, e.g. train stations for example). For example: if I were to hide my phone in my back in recording mode, to record someone during a conversation, while they are saying something I could sue them for. Now I know there are some cases of exception (e.g. if people are suspecting someone might be taking part to some terrorism acts for example, but that's the extreme case). In what condition can a recording be considered as illegal, or otherwise, when is it legal to use a recorded material as a proof, even without consent of recording? | Yes, this can land you in jail, no matter what In France, per article 226-1 du code pénal recording without consent may be punished by one year in jail and 45000€ fine. Any recording without authorization of all parties involved (including the owners or administrators of buildings recorded either outside or inside due to copyright of the architectural image) can also land you in legal trouble either criminally or in civil court. The consent is implied if the parties involved knew about it and had means to deny authorization but didn't, but mind that any recording, secret or not, can be considered non consented, which probably discourage anyone from recording anything in France. However you can still show these images obtained illegally in a court and the judge has the right to declare such recording justified (no statute about this, it is totally up to the judge) and thus allow you to use it as evidence both in civil or penal matters. It does not, however, protects you from being sued latter for the exposure of the recorded party, but the acceptance as evidence by a judge may serve as defense. This means that many forms of recording in France, including tourists taking pictures of the Eiffel tower, obviously without authorization of the administrators of the tower or any potential passer-by, is in fact committing a crime, although obviously the law in simply not enforced for these cases. However, if a filmmaker records the Eiffel Tower and makes millions in box office, the tower administration will probably go to the trouble of collecting some money threatening to press charges if not paid. | england-and-wales There is nothing in the criminal law to compel Party X to identify Party Y in this scenario - they are under no legal obligation to contact the police or anyone else, and a witness summons, for example, cannot be served as there is no trial. That said, one option is for the victim to make a complaint to the police for an alleged offence of what is colloquially referred to as "revenge porn" contrary to s.33 of the Criminal Justice and Courts Act 2015: (1) It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made — (a) without the consent of an individual who appears in the photograph or film, and (b) with the intention of causing that individual distress. ... The definitions of "private" and "sexual" may be found at s.35: (2) A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public. (3) A photograph or film is “sexual” if — (a) it shows all or part of an individual's exposed genitals or pubic area, (b) it shows something that a reasonable person would consider to be sexual because of its nature, or (c) its content, taken as a whole, is such that a reasonable person would consider it to be sexual. The police can then ask Party X to either provide a witness statement identifying Party Y or, if Party X is concerned about unwarranted repercussions etc, to provide this information in confidence and their involvement will be protected as Sensitive Material as per para 2.1(9) and 6.14 of the Criminal Procedure and Investigations Act 1996 Code of Practice. | We don't have a lot of details, but if you're in the United States, the answer is probably yes. There are rarely any meaningful rules of evidence in student misconduct cases, so pretty much anything can come in. There may be some small difference in the answer depending n whether you're dealing with a public university or private, but in either case, I can't think of any reason why they would not be able to introduce the evidence if they had it. If there's a question about its authenticity, I imagine that would just be up to the misconduct board to decide. If Person X says "Person Y sent this to me," and Person X seems credible, that's probably going to be enough. | 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"). | If they are recording you, you can record them Assuming that recording requires two-party consent (not all places do), when they informed you that the call may be recorded, they gave consent to it being recorded (obviously) and you gave consent by not hanging up. The consent requirement has been met so anyone and everyone can record it. | Unless the Youtube Video shows them committing a crime, then no, they couldn't be arrested and tried for a crime. Them saying it, not under oath, is just hearsay that has no evidentiary value unless there is already other evidence they have committed a crime. In that case, its an admission. But there must be other, either circumstantial, or actual physical evidence of a crime. Past intoxication is not a crime, either. Possession of drugs, if caught with them is. But saying you got high is not. People have walked into police stations and confessed to murders. But with no evidence, no body, no name of a missing person, they can't even be held after the holding period for investigatory purposes expires. If the video shows them committing assault, or breaking and entering (there actually are idiots who post this stuff), the video is actual evidence of a crime and it is often used against them. The statements can be used to begin an investigation, but people don't usually confess to anything worth pursuing even an investigation. The fact that someone says they used to do something criminal is not enough. For all you ( meaning anyone ) knows, the statute of limitations has expired because they "pirated games" 10 years ago. Your comment is right on. | Police continue to investigate Following an acquittal, there are two possible positions for the police: they are certain the acquitted person performed the act but they were not guilty (for all sorts of reasons). The investigation is closed because although the police know who did it, there was no criminality due to the not guilty verdict. The evidence in the court shows that the accused did not commit the act. Ergo, someone else did. The police will keep looking for that someone else. Note that the proposed scenario is highly dangerous for you. First, the exculpatory evidence may be inadmissible, particularly if it is an alibi (see Can I surprise the prosecution with an alibi defense at trial?). To rely on an an alibi defence, it must be raised with the prosecution before the trial. You would have to have said that you were where the phone footage was shot before the trial starts and the police may have therefore discounted you as a suspect from the get go. Second, you are now committing a crime, usually called an attempt to pervert the course of justice and this action may also make you an accomplice to the murder after the fact. You beat the rap on the murder and then spend a lot of time in prison for those two. | Doesn't being recorded in your own home, or someone elses for that matter, require consent? That's not relevant here. Media outlets are generally not liable for reporting information that was or may have been obtained illegally, provided they are not the ones that did the illegal act, or directly incentivized its commission (e.g. if Gawker had paid someone to get them such a video). The person who filmed this act may or may not have committed a crime, but this was not relevant to the case at hand. In fact, Bollea (aka "Hulk Hogan") did sue those responsible for making the video; he settled with Bubba, but not with Clem. Bollea later added Gawker to the ongoing suit against Clem when publication of the tape was ruled to not be a copyright infringement. Isn't there a reasonable expectation of privacy when you're not in public like that? Also largely not relevant here, as Bollea's claims against Gawker were not about the production and existence of the tape, but of its publication. Bollea did allege invasion of privacy in his suit, but as concerns Gawker this was about publishing the video. Also keep in mind that Bollea had gone out of his way to convert his private life into a public spectacle by virtue of his reality tv program. Your reasonable expectation of privacy goes down when you have already set the bar so low that most every aspect of your private life is on public display. Some of Bollea's legal motions in his failed attempts to convict Gawker of copyright infringement were denied on the basis that publication of the video tape may actually constitute fair use. Celebrities in general have lower expectations of privacy than ordinary citizens. It's the well-known price you pay for fabulous amounts of wealth and fame: lots of people are paying attention to you and are interested in what happens to you, and you can't expect a lot of privacy when everyone's staring at you and hanging on your every word and action. Not that they have zero privacy rights, it's just harder for them to establish the "reasonable expectation". don't I have the right to not have that material distributed even if I were famous and it was "newsworthy"? Your question here is the embodiment of the controversy: where does freedom of the press end and personal privacy begin? Freedom of the press is constitutionally enshrined, and tends to be zealously protected in America as a prerequisite for true democracy and freedom. Personal privacy is not, and emerges more as the consequence of laws and the judiciary's application of certain Common Law sensibilities. There are some constitutional protections against governmental infringements (unreasonable search and seizure, that sort of thing), but the protections you have against non-governmental infringements only exist within laws. So the general expectation you can have is that if something is newsworthy, then it's fair game for the press to report on it. The issue falls to what qualifies as "newsworthy", and who gets to make that judgment? Part of Bollea's legal argument was that what Gawker published was not newsworthy, going to the extent of having the editor concede in court that a depiction of Bollea's genitalia was not newsworthy. And this "not newsworthy" angle seems to be the heart of what their case was getting at: what was reported was not done because it was "news", but because it would get Gawker attention and profits at Bollea's expense (including capitalizing on his famous Hulk Hogan persona). It's also the heart of why some people consider this a controversial and potentially problematic case. Those who have voiced 1st amendment concerns have done so primarily out of concern that this trial would allow courts and juries to decide what was "newsworthy" and what was not. Meaning that news outlets might now have to sweat bullets every time they published something because maybe a jury would assert it wasn't newsworthy, leading those outlets to be less likely to report certain aspects of news. Presumably these people feel that the only ones who should be deciding what is newsworthy is the press, and the public vis-à-vis their consumptions and demands thereof. |
Could government legally temporatiliy halt rent/mortgage/interest payments for the benefit of the greater economy? I’m not well versed in economics or law by any stretch of the imagination. But I am confused with certain measures taken thus far by the government. There is currently a temporary shutdown of vast sectors of the economy now and workers affected are not receiving any income. To me, logic would dictate that here should also be a temporary cessation of payments for rental properties (for small businesses as well as individuals) and, to be fair, a temporary cessation of payments for loans for owners of those properties. In turn, banks would be given temporary cessation payments for interest to its customers since the banks would not receive any payments on loans including payments on mortgages from homeowners. That would essentially close the loop on money flow which again would be temporary and the impact to the greater economy would be limited. If undue burden is placed on any one of these points in the cycle, and right now, workers and small businesses are taking that brunt, then there could be long-standing damage to the economy from bankruptcies, foreclosures, etc. The Fed is already addressing the banking side of things by keeping rates close to 0. Does the government have the authority to push for a standstill in mortgage/interest/rent payments? I feel this temporary measure would alleviate economic hardship and prevent long-term damage to the economy. | It depends on the applicable state laws granting emergency powers. The most recent decree in Washington State suspends garnishments and post-judgment interest. The governor was given broad powers by the legislature (RCW 43.06.220) to suspend laws in case of an emergency. If a state has no such powers (every state does) or if a particular action is not within the scope of the governor's emergency powers, then no. Otherwise yes. The governor of Washington has the emergency power to limit assembly, anything to do with flammables, sale of anything related to preservation of life, health and peace, and "other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace". He also can suspend government enforcement actions, such as garnishment and post-judgment interest (and court proceedings resulting in judgments), an suspects statutory / regulatory restrictions on actions (could suspend the sales tax). He cannot, however, single-handedly write new laws. There is no existing provision that would allow cancellation of interest obligations, although the legislature has the power to restrict interest in various ways (such as the usury statutes). So without a new power being passed by the legislature, the answer is Washington is "no". | Your boss is totally wrong. Legally, there is no such thing as a "probation period" in the UK. You have the right to your holiday payment, according to the days that you worked. What can happen: The legal minimum is I think 28 days per year including bank holidays, but most companies give 23 or 24 days PLUS eight days bank holiday. Your contract may say that the first three months are called probation period, and during that time you only get the legal minimum, and after that the much more common higher amount. That would be legal. But even so, you would be entitled to seven days, minus any bank holidays where you didn't work. | IANAL. I am not your lawyer. The following is not legal advice. The insurance company, regardless of how you feel about their process, has it appears, to have discharged their duties, namely they have paid out two separate claims. The personal property claim has been paid to the estate as the beneficiary, while the property claim has been paid out with the mortgage company as the beneficiary. The mortgage company seems, to me (disclaimer, I work at a financial institution, albeit in an IT role), to also be reasonable. Six months is an extremely long time without contact or payment (where I work, the loss mitigation department is sent all loans that are 3 months delinquent); the fact that you, the estate executor were not aware of the passing of the debtor is of no consequence. Also, many loans contain clauses that allow the lender to accelerate the loan (i.e. demand "immediate" payment of the whole outstanding balance). So they've started foreclosure proceedings, probably about 3 months ago. As for the foreclosure proceedings: The received $45,000 will be applied to the loan. The property (not just the house, but the entire lot) will be sold at public auction, as all foreclosed houses are in the state of New York. Proceeds from the sale of the house shall be applied to paying off the loan. If the proceeds exceed the outstanding mortgage amount, the estate will be sent the remaining proceeds. If the proceeds are less than the remaining amount, the estate is retains (i.e. owes) the remaining debt. EDIT: As an example of why the noting of jurisdiction is important on this stack-exchange, Nate Eldredge has informed me that in New York, it is possible for a judge to reduce the "remaining debt" of the estate by declaring that the sold house had a higher "fair market value" than it sold for. | If you are prevented from entering the property on the day the contract says the tenancy begins that is a breach of the contract. If you suffer a loss as a result of the breach, you are entitled to be restored to the position you'd be in had the loss not occurred. For example, if you had additional removal fees and a hotel bill resulting from this breach, you'd be entitled to claim those costs. Generally the landlord would be liable for this. It is no defence that the agent is unavailable to give you the keys - they should have accounted for the day being a Sunday or started the term on a day when someone would be available. I suggest getting in touch with the landlord in the first instance, civilly explain the situation and ask if they can arrange for you to enter the property on the given date - they might not know what is going on. Keep a log/diary of your communications with the agent and the landlord. Make sure you have a plan B for somewhere to stay. Call Shelter too, for free advice. | You should have seen this coming. This might vary a bit from place to place, however it would generally be accepted that if you are in a rented place, you have to pay rent. Most jurisdictions would have some law which requires pro-rata'd payment for the time you actually stay, there would not be any requiring the landlord let you stay free. An uninvested third party might ask "Why would a landlord provide you with 5 days free rent". Another way to look at it is that one of the elements of a contract is consideration (think payment) - Thus in contracting to stay in his place longer you should expect to provide consideration - and pro-rata'd rent would be typical. | You inspected the property online and based on that inspection you signed the lease. You have a legally binding contract. Now, it is not at all like the pictures How? I mean, are these pictures of a different house? If that is so then your contract is void for fraud. However, if the pictures are of the actual house and you just imagined from them that the house would be other than it is then tough luck for you. the stairwell in the house is a huge safety hazard for children OK. Does it comply with relevant building codes? If not then the landlord needs to bring it up to standard: you cannot walk away from the contract. Is it in need of repair? If so, the landlord needs to repair it: you cannot walk away from the contract. If it is compliant and in good repair and you think it is a hazard notwithstanding then you need to manage that hazard: this is not the landlords problem. I refused to move into the house That's fine: so long as you keep paying the rent there is no obligation on you to move in. If you stop paying the rent then it would appear that you have repudiated the contract and the landlord can sue you for damages - probably the costs of finding a new tenant and the rent up until that tenant takes over. | Yes I would reach the same conclusion as DaleM, i.e. that the arbitration clause still applies to the dispute in the question, but for a different reason.<1> While the severability principle is indeed a concept in arbitration law, I don't believe that is the relevant doctrine here.<2> Termination Of Employment v. Termination Of An Employment Contract What terminates when a period of employment ends is the employment itself, not the contract of employment. The contract remains effective as to rights and obligations arising during the course of the employment covered by the contract. (This concept would also sometimes be described in terms along the lines of "the right to a remedy for the workplace injury and the right to have disputes related to that resolved in arbitration are vested rights" that are not modified when the contract term of employment ends.) This concept isn't particular to the arbitration obligation. For example, if contract of employment that did not contain an arbitration clause provided that the employee was paid $200 an hour for the first six months and $220 an hour for the second six months of a one year fixed term employment agreement, but the employer failed to adjust paychecks according after the first six months and continued paying the employee at $200 an hour instead (assume to avoid the issue of waiver that this wasn't readily apparent on the face of the paystubs provided to the employee), the employee could bring suit thirteen months after the employee's employment terminated for the $20 an hour not paid as agreed during the last six months of the contract even though the employment period had ended. The contract still remains in force to govern the rights and obligations of the parties arising during the period of employment. Examples Of Termination Of The Contract Itself In contrast, sometimes one contract is replaced, even retroactively, with another contract, in what is called a "novation" of the original contract. This truly does terminate the old contract, so that only the replacement contract remains. So, if, for example, the original employment contract contained an arbitration clause, but this was replaced by a new employment contract without an arbitration clause three months later (in the sample case, before the worker was injured<3>), then the arbitration clause would not apply because the contract, and not just the employment was terminated. Similarly, support that the workplace injury was the second dispute between the employer and employee that had come up. The first was a dispute over the rate of pay received which was resolved by a settlement agreement negotiated by lawyers for the parties before either arbitration or litigation in court was commenced, which expressly terminated all rights, known and unknown, of the parties arising under the contract, and the second was the workplace injury for which the relationship of the injury to work was only discovered later on. In this case, the contract and not just the employment had been expressly terminated, and so the arbitration clause would not apply to the workplace injury dispute (which would be barred by the settlement agreement and which may or may not have had an arbitration clause of its own). End Notes <1> At least assuming that the dispute would have been subject to arbitration if a dispute were litigated while the employee was still employed. There can be circumstances when a workplace injury is not subject to arbitration even if the employer and employee undoubtedly agreed to an arbitration clause that applies to the dispute in question. For example, workplace injuries arising from sexual assault are not subject to arbitration in the United States. See 9 U.S.C. §§ 401-402. <2> The severability principle usually concerns a determination of the enforceability of an arbitration clause in the face of certain kinds of arguments that the entire contract as a whole is voidable. It also does not apply in cases where there is a dispute over whether any contract of any kind was formed in the first place. For example, if someone presented the court with a contract containing an arbitration clause and sought to compel arbitration, and the defense to a motion to compel arbitration was that the defendant had never met or had any connection with or communication with the defendant or anyone related to the alleged contract. <3> The hard case, where the novation takes place after the injury, is complicated by legal doctrines regarding the conditions under which a vested legal right can be waived, which may or may not be met depending upon the circumstances under which the novation was entered into by the parties and presents conceptually distinct legal questions in addition to the legal questions already present in the simple case where the injury takes place after the novation. | I got and answer from lawyer in Netherlands. To rent out to the company is not without risks. You rent out to the company and the company rents out to the actual user of the apartment. That is subletting. The sub-lessee is protected by law. So when the company fails to pay, you can end the contract with the company (you have to go to court for this), but then you will become the lessor to the actual user (=sub-lessee) then. If you feel that that is against your interests, you have to start a court procedure within half a year to end the contract with the actual user. Also note: it is forbidden to rent out to people that don't have a legal status. So you make sure you trust the company very well if you are going to rent out to them. I recommend to seek help from a real estate agent that is well known and member of NVM or other trustworthy organisation. |
Me and my friends got kicked out of a movie theater without seeing the movie and didn't get a refund Me and my friends went to go see an R rated movie at an AMC theater. My friend's dad was there to buy the tickets. After that he went back to his car. When we went to go into the theater the guy who collects the tickets asked us our ages. We told him that we are 15, and he said that we needed a parent with us, so we ran back to the car and had my friend's dad come back with us and they said he needed to be in the theater with us. He bought a ticket and walked to the theater with us and then left. A few minutes later before the movie even started, the ticket collector came into the theater and asked where our parent was, we replied he left, and the guy escorted us out of the theater and said that we couldn't come back that day, when we asked for a refund he said we couldn't have one. So I was just wondering if they broke any laws or if they were in the clear. | At a minimum, what the theater did was not a crime. When you are in a movie theater you have what is called a "license" from the theater to be present, which is revocable at will without due process (possibly subject to breach of contract damages) and not a property right to be in the theater the way that a tenant who must be evicted does. As a practical matter, given that the amount in controversy is, at most, $25 or so, and this is not a situation where the prevailing party would get their attorneys' fees, this is not cost effective to litigate, regardless of who is correct, even in small claims court without an attorney. Whether or not the theater breached its contract isn't perfectly clear, because usually, the contract between a movie goer and a movie theater is not spelled out in any writing provided to the movie goer, incorporated by reference in something disclosed to the movie goer, or signed by either of the parties, or even with an oral offer and acceptance setting forth all of the terms of the agreement. (Of course, if a written terms of service is actually provided to the movie goer, or a reference to where it can be found is provided to the movie goer, those terms will control and the contract will almost certainly be written to allow the movie theater to do what it did in this case.) In the frequent case where this is not done, the contract between a movie goer an a movie theater is usually a contract implied in fact whose terms at the edges aren't terribly well defined and there is little case law to tell us what the terms of the contract is, because the cases aren't worth litigating up to an appellate court where binding precedents are made. Indeed, one reason that movie theaters may have declined to put their implied in fact contracts with movie goers in writing is to leave the situation ambiguous so as to discourage someone whose case would be clear even if for a small dollar amount, if the terms of the contact were clear, from suing them over issues like this one. When the stakes are small and the outcome is always uncertain, it almost never makes sense to sue. There is certainly a colorable argument that you breached the contract by being present without an adult at an R-rating movie when the public statements about an R rating made available to the movie goers says that rated R means only admitted with a person over the age of 17, contrary to the theater's policies on that issue, although it isn't perfectly clear if this is a suggestion or a binding term of the agreement. Another fair interpretation of the contract between a movie goer and the movie theater is that a movie goer can be removed from any movie whenever, if in the reasonable opinion of the movie theater management, good cause exists to do so, and that its discretion should be upheld so long as it acts in good faith and in a non-discriminatory manner. I don't agree, however, that the question of whether or not you breached a contract was unambiguously clear, because the terms of the agreement are not well defined. I would give you at least a 20% chance of prevailing if you took the issue to court although I would agree that it is more likely than not that you would not prevail if you took the issue to court. | So, in England and Wales your son assaulted Mario. (From Wikipedia: "Assault is committed if one intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence". I expect Mario expected your son was going to thump him, and that would certainly be unlawful.) You were both trespassers on the property; however it sounds like there was nobody there who could require you to leave, so that probably doesn't matter. Both of these would be true whatever the age of your daughter. Finally, in England and Wales, if you had forced your 16-year old daughter to come with you against her will, you would both have been guilty of kidnapping. (16 is the age at which children become independent in terms of deciding where to go.) She can choose to leave home and live with her boyfriend, and there is nothing you can do to stop her. Edit: The question did not originally mention a jurisdiction. This is an area where the legal situation is likely to be very jurisdiction dependent. | Police officers can lie to you He asked to search your car. He’s allowed to do this. You said no. You’re allowed to do this. He lied to you when he said he would get the K9 to search the car - this would not be legal. But he’s allowed to tell you lies. You made an admission of criminal activity. He now has probable cause to search. He legally searched, confirmed your admission and booked you. Seems legit to me. | 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. | You're missing some pretty important details in describing the facts of this case. The most important of which is: What were the agreed terms upon which Alice obtained possession of the car prior to paying? Your description says: Alice takes the car and doesn't pay. If that's literally true, then this case is both criminal theft and the tort of conversion — not breach of contract. Since the remainder of your question references a breach of contract, then I have to conclude that the fact as you stated it is not literally correct and there is some important missing detail about the terms upon which Alice was in possession of the car when she crashed it. So, I will have to invent some scenarios that would fit two other facts you describe: The jury awarded Bob $5,000. The jury found Alice to be in breach of contract. The following are the scenarios I can think of that would match the facts (as I understand them and speculated where important details are missing from the question). Maybe this is a small claims court and the damages are capped at $5,000? I never heard of a jury trial in small claims court but I guess it could be possible. Or maybe it was actually a judge and use of the term jury was careless or otherwise inaccurate? Maybe the terms under which Alice was in possession of the car when she crashed it put the parties in position where they effectively shared liability or risk of damage to the car? Like maybe Bob (or both parties) was/were required to carry insurance on the car while Alice was "test driving" it. I only use the term "test driving" as a placeholder for whatever she was doing with the car prior to paying for it which is left unclear by the question. Maybe Bob was found to have contributed to the breach of contract by something he did or didn't do. Similar to the above speculation about insurance. All this would be much easier to analyze if we knew how and under what terms Alice came to possess the car. Maybe there was only $5k of damage done to the car? Or, alternatively, the car was only found to be worth $5k and, for whatever reason (again, which we can not fully analyze given only the partial set of facts presented) the liquidated value of the car was the basis for the damage award and not the contracted price. (Consistent with @jimsug's comment.) I can easily imagine a scenario where Bob and Alice are close friends or family so the entire transaction is handled very loosely and informally and Bob let's Alice drive the vehicle while she is gathering the money to pay him. In this case, the jury might decide Bob shares the liability with Alice since the terms of the sales contract did not transfer the risk of liability to Alice during the time she was driving prior to payment. | The statement ABCGym refuses to refund payment it accepted for membership to a gym ABCGym closed. ABCGym has substituted an inferior-to-me option. could certainly be considered as defamatory. However, in the US and many other countries, truth would be a valid defense, if the person making the statement could prove that the statement is true. I don't see how it could be construed as solicitation. If worn on a shirt into ABC, the management could surely ask the wearer to remove it. If that request is refused, they could ask the wearer to leave. If the wearer has a valid membership, then it would depend on the exact terms of the membership contract, and provisions of local law, whether ABC could insist that the wearer leave, or have the wearer arrested for trespass should the wearer refuse. Any regulations incorporated by reference into the contract would also matter. At least in the US. walking back and forth on a public sidewalk just outside ABC's door, wearing such a shirt or carrying a classic picket sign with such a message would be pretty clearly legal, provided that others are not unduly obstructed, and no valid local ordinance is violated. In the wear-the-shirt-inside case, if the wearer refuses to remove the shirt or leave, the management would probably call law enforcement. LE will not want to decide whether wearer has the legal right to remain in the club wearing the shirt. They will probably ask the wearer to leave. If the wearer protests that s/he has a valid membership and thus a contractual right to stay, who knows what they would do. If they still ask the wearer to leave, the wearer would be wise to comply and perhaps take legal action to enforce his or her membership rights, which will depend on the contract details as mentioned above. A lawyer would probably be very helpful if the wearer wants to take that route. The wearer would be wise to remain polite and appear calm, not yelling or using epithets. | Legally, they can kick you out for any reason that isn't illegal discrimination. They can't kick you out for being black. They also can't kick you out for being white. But they can kick you out for not liking your face. Now the question is: Who can kick you out? The store owner obviously can. Anyone who is given the authority by the store owner can. Actually, anyone with the apparent authority can kick you out. However, everyone other than the store owner has been hired to work towards making profits. If throwing you out is bad for business, then whoever did it would have to answer to the store owner. So the ex-friend can't go to court for throwing you out, but they might get into trouble with their boss about it. PS. I interpreted "kicking out" as saying "Please leave our premises. If you don't leave then you will be trespassing and I will call the police", not actually kicking the person with your foot which would be most likely assault. | I do not have anything official proving that I gave him the 2-months worth deposit What did you do, hand him a wad of cash? Pay by check, and put what it's for on the memo line. You've been there for nine months and there are several other people who can testify that you've been living there, so it would be difficult to claim that you aren't a renter. If you can show that the landlord is aware of your residence, that definitely helps even further, as does receiving mail there, registering to vote or with the DMV with that address, etc. Question 1 : what would be the best course of action to force the landlord to give me the requested lease agreement? You can't "force" someone to give you an agreement. That's kinda part of the definition of the word "agreement". If you find the conditions unacceptable, you can find another place to rent. When I asked the landlord about what he was planning to do regarding that, his answer was that it was not his business. It doesn't seem like it is. You could take the money you would have given to the other roommate, and give it to the power company instead. If paying for the utilities is part of the renters' responsibilities, and the renters are not paying for the utilities, then it's their choice to not have power. In California, landlords are required to make power available, but that just means that they can't interfere with you purchasing it from the power company, not that the landlord has to pay for it (if the landlord had agreed to pay for it, and isn't, then you can deduct the cost from the rent, but you can't simply withhold all rent, and your question indicates that the landlord hasn't agreed to pay for power anyway). Am I protected in any way, or can the landlord just come in my room and throw everything away, or worse just point me with a gun and force me to move? It would be difficult for the landlord to get rid of you, and would probably take several months to do legally. Performing an eviction himself, rather than getting the sheriff's department to do it, would expose him to serious charges, especially if a gun were used. Besides criminal charges, "If this or other unlawful methods, such as locking a tenant out or seizing his possessions before an eviction process has ended, are used to force a tenant to leave a property, a landlord may be subject to fees up to $100 per day of unlawful method use." http://homeguides.sfgate.com/tenants-rights-utility-billing-california-8073.html However, while the legal process will take a long time, at the end you will still be liable for back rent, and you will have an eviction on your record, which will make it harder to rent in the future. |
What happens when someone sells a found item? I got into a discussion about finder's law yesterday. I live in Canada, so that's the law we were looking at, but I'd be interested in law from any jurisdiction. Most of our discussion was based on this page: What is Finders Law?, and this one: All is not lost: the law of lost and found. During our discussion, someone proposed this hypothetical: Alice loses something of value, let's say a necklace. Bob finds the necklace. He puts up FOUND posters, makes phone calls, and generally does his due diligence in searching for the original owner. After a week, Bob is convinced that the original owner isn't showing up, and with no desire to keep the necklace for himself, sells it to Charlie for a fair price. After Charlie buys the necklace from Bob, Alice shows up, sees the necklace, and asks for it back. Let's assume that she has proof that it was originally hers. Does she get it back? Who pays? Under the law as we understand it, Alice, as the original owner, has the superior claim to the necklace no matter what. However, Charlie paid for the thing, and he's not the finder. Bob can't give it back, because he doesn't have it anymore. What is the legal situation here? | Alice owns the necklace If this goes to court there are a couple of ways this could turn out. If this is settled by negotiation or ADR there are even more. For example, Alice may have always had a secret crush on Bob and may be satisfied if Bob goes on a date with her - this is a fine and dandy settlement, it’s just not one available to a court. A court will resolve the matter in one of these ways assuming the facts are proven: Bob pays damages to Alice for the conversion - probably the fair market value. Charlie keeps the necklace. Alice gets the necklace back. Charlie can either: Treat the contract with Bob as void due to complete failure of consideration and get his money back. Affirm the contract and seek damages - again, probably the fair market value but if Charlie can prove that there was a specific buyer willing to pay $X, then $X. The court will look for the most just outcome in the circumstances. It’s just that Bob pays because he is the lawbreaker. Option 1 is most just because it interferes least with the innocent Charlie’s rights. If the necklace is just a necklace. However, if the necklace has more than monetary value to Alice (e.g. it’s the necklace her mother gave her on her 16th birthday just before her mother died in tragic circumstances) then Option 2 might be more just. | 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. | 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. | The crime of theft generally requires two elements - taking control of property, and the intent to deprive the rightful owner of it. If Bob had no intent to leave without paying, he may lack the intent often required for theft. In the scenario described, it's possible Bob has not committed theft, but his actions may indeed constitute theft depending on the jurisdiction. As pointed out in the comments, some jurisdictions codify the concealment of merchandise as prima facie presumption of an intention to steal, or may even codify the act of concealment itself as a crime. There are some shoplifting laws statues that specifically call out "willful concealment", which does not require leaving the premises of a store to have committed a crime - merely concealing the item may be a crime in itself, although perhaps not the crime of "theft". Whether a court would find Bob guilty of theft will depend on a number of factors, depending if there is leeway in inferring intent, and how that intent is inferred. If Bob's actions are found to be sufficiently inconsistent with the behavior of someone who truly intended to pay, the court may find him guilty. If a reasonable person would infer a lack of intent to pay from Bob's actions, he may be found guilty. | You're missing some pretty important details in describing the facts of this case. The most important of which is: What were the agreed terms upon which Alice obtained possession of the car prior to paying? Your description says: Alice takes the car and doesn't pay. If that's literally true, then this case is both criminal theft and the tort of conversion — not breach of contract. Since the remainder of your question references a breach of contract, then I have to conclude that the fact as you stated it is not literally correct and there is some important missing detail about the terms upon which Alice was in possession of the car when she crashed it. So, I will have to invent some scenarios that would fit two other facts you describe: The jury awarded Bob $5,000. The jury found Alice to be in breach of contract. The following are the scenarios I can think of that would match the facts (as I understand them and speculated where important details are missing from the question). Maybe this is a small claims court and the damages are capped at $5,000? I never heard of a jury trial in small claims court but I guess it could be possible. Or maybe it was actually a judge and use of the term jury was careless or otherwise inaccurate? Maybe the terms under which Alice was in possession of the car when she crashed it put the parties in position where they effectively shared liability or risk of damage to the car? Like maybe Bob (or both parties) was/were required to carry insurance on the car while Alice was "test driving" it. I only use the term "test driving" as a placeholder for whatever she was doing with the car prior to paying for it which is left unclear by the question. Maybe Bob was found to have contributed to the breach of contract by something he did or didn't do. Similar to the above speculation about insurance. All this would be much easier to analyze if we knew how and under what terms Alice came to possess the car. Maybe there was only $5k of damage done to the car? Or, alternatively, the car was only found to be worth $5k and, for whatever reason (again, which we can not fully analyze given only the partial set of facts presented) the liquidated value of the car was the basis for the damage award and not the contracted price. (Consistent with @jimsug's comment.) I can easily imagine a scenario where Bob and Alice are close friends or family so the entire transaction is handled very loosely and informally and Bob let's Alice drive the vehicle while she is gathering the money to pay him. In this case, the jury might decide Bob shares the liability with Alice since the terms of the sales contract did not transfer the risk of liability to Alice during the time she was driving prior to payment. | Yes, they are. A business can decide not to do business with someone for pretty much any reason. The obvious prohibited reason is due to your race. But I don't see how eBay would even know your race. Some State laws might protect you, but I don't think there's any that applies in this case. For example, California might give you a means of appeal if someone stole your identity and they performed those transactions, not you. But I don't know of any Federal or State law that would change the very, very basic principle of law that a property owner gets to decide who can and cannot access their property. eBay owns eBay. One key benefit of ownership is precisely that you can make decisions that other people consider to be unfair, discriminatory (other than the specifically prohibited categories) and draconian. Other people don't have to agree with your decisions for them to be lawful. | The rule you are alluding to with respect to a television set is called the "first sale doctrine" which basically prohibits copyright and trademark owners from limiting the ability of a buyer of a good (like a CD or authorized logo T-Shirt) protected by copyright or trademark, from limiting further sales of that good (or the manner in which the good is used by its new owner) after a first retail sale of the good with copyright or trademark protections. This doctrine was derived from an old common law rule that invalidated "restraints on alienation" of property other than intellectual property on public policy grounds, and like the "restrain on alienation" rule for tangible property, the first sale doctrine that applies to intellectual property was also (at least originally) a court created common law rule. But Minecraft isn't, conceptually, a good. It is a continuing service provided over the Internet, and firms that provide continuing services on a licensed basis, as Minecraft does, can impose terms of service (a.k.a. an "end user license agreement" a.k.a. EULA) which must be complied with in order for users to be allowed to continue to utilize the service. So, its prohibition on exchanges of things of real world value for things of game value, except as the terms of service authorize, is permitted. A user of Minecraft is more analogous legally to someone skating at an ice rink than to someone who buys a CD or book. If you buy a ticket to skate at an ice rink, the people granting you the license to use the ice rink have the right to set rules governing how you utilize that service, and to terminate your license if you don't follow the rules (e.g. by skating in the wrong direction at the wrong time). Indeed, a ticket to an event is also known in legal parlance as a form of "license" just like a EULA, and licenses to use real property are the origin of the body of law that now governs the licensing of intangible intellectual property. A Minecraft license isn't something that you own (even if you have a license of unlimited duration), it is a qualified and limited right to use something that someone else owns, that you aren't allowed to purchase, but you are allowed to use on the owner's terms. How can they enforce servers to follow that rule if the server's are not using Mojang's proprietary software. The EULA or TOS obligation in the Minecraft business model is enforceable because Minecraft isn't in the business of selling proprietary software, even though it does do that. Minecraft is in the business of licensing access to data and online resources. The EULA regulates your access to the data on servers, and the computing power of those servers, not your ownership of an app which facilitates your use of the licensed services. And, while there are various contractual remedies for violating a EULA, the most basic one is a self-help remedy: to cut you off from your ability to use the service if you violate the owner's rules. Indeed, at least heuristically, the easiest way to distinguish an intellectual property good, which is subject to the first sale doctrine, from an intellectual property service, which can be licensed pursuant to a EULA, is whether, as a practical matter, the firm distributing the intellectual property has a practical ability to deny you service going forward without resort to the courts. If the owner of the intellectual property has no practical ability to do that, the intellectual property being distributed will probably be classified as a good and be subject to the first sale doctrine. But, if the owner of the intellectual property has the practical ability to cut you off from the intellectual property being distributed without resort to the courts, the intellectual property being distributed will probably be classified as a service, which is not subject to the first sale doctrine and may be licensed. | 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. |
What is the worst scenario if I stop paying the last four months of rent? So here's my situation. I have signed a pretty standard rent contract saying that I would rent an apartment in Atlanta for 12 months (August 2019 to July 2020). Because of COVID, I have vacated the apartment and will not be returning. So, the apartment is empty and noone will be living in it, yet I still have to pay $XXXX/month for the next four months. Does anyone know a way around this? What is the worst thing that could happen if I just don't pay my rent? | Financially, the landlord can take you to court and get a judgment against you where you have to pay that rent, so you won't save any money. If you hire an attorney to defend you in the lawsuit, that will cost you extra money, so you could be worse off than just paying rent and staying there. The lease might have late payment fees, and if you that would be additional money that you would owe. In addition, there could be some reputational damage to you that could affect your ability to secure a lease in the future (a black mark on your credit history). Also note that in Georgia, a landlord has no obligation to seek an alternative tenant, so he can let the unit sit empty for 4 months (though he cannot collect twice on the same unite). | This would be pointless and wouldn't work. Eviction due to defaulting on rent requires the landlord to give 3 business days notice, in writing. This must include a method by which the tenant can settle their debt. Either the landlord would be forced to accept a payment or this would not be valid. Source Additionally, in this case, there is nothing stopping you physically handing an envelope of cash to the landlord as they live upstairs. However, there is no reason for your landlord to do this. If your landlord hates you that much it would be far easier for them to simply give you 60 days notice and terminate your tenancy that way. | The landlord may be confused about what is legal. Growing pot without a license (they do not have one: it cannot be grown at home, and certainly not if there is a minor present) is not legal, not even in Seattle (medical marijuana now requires a general marijuana license, and home-grown is not legal – some Dept. of Health pages don't reflect the new law). Under RCW 59.18.065, the landlord must provide a copy of the executed agreement to each tenant, and a replacement copy on request. Under RCW 59.18.150, the landlord may enter the unit in case of an emergency, and otherwise shall give the tenant at least two days' written notice of his or her intent to enter and shall enter only at reasonable times. The notice must state the exact time and date or dates of entry or specify a period of time during that date or dates in which the entry will occur, in which case the notice must specify the earliest and latest possible times of entry. The notice must also specify the telephone number to which the tenant may communicate any objection or request to reschedule the entry. The tenant shall not unreasonably withhold consent to the landlord to enter the dwelling unit at a specified time where the landlord has given at least one day's notice of intent to enter to exhibit the dwelling unit to prospective or actual purchasers or tenants A lease cannot be terminated without cause and a legal process (eviction hearing), rather, it runs out at a specific time (the end of July). The situation with dog-washing is unclear, since normally a landlord can't decide to use a person's apartment for a dog-washing operation (the common law right to quiet enjoyment). If there is such a clause in the lease then that would be allowed, but they can't now decide that they have this right (the terms of a lease can't be changed in the middle). They can restrict the cats from areas outside your unit. You may however have some (legal) misunderstanding about what exactly "your unit" is, specifically, is the dog wash part of a "common area" that isn't actually part of what you have an exclusive right to. | Your title doesn't quite match your question. "Reneging" would mean saying that a lease would be offered at the reduced rent, and then not offering the lease. Here, they offered the lease, and you accepted. So now the question is not whether they can refuse to offer you the reduced-fee lease, but whether they are owed the back rent. Verbal agreements are indeed binding, but they are rather sticky from an evidential point of view. Also, there are other possible complications. If your original lease stated that verbal agreements are not binding, or that only specific people are authorized to modify the terms and the person you talked to is not such a person, then this is not binding. If after they said you could keep the rent reduction, you signed a lease for the full amount or otherwise indicated acceptance of the full amount, then it may be considered not binding. Even if the agreement is not binding, you have further arguments. If you believed that it was binding, and did so out of good faith, then there was not a meeting of the minds, and they can't go after you for breach of contract. They may have other claims, such as damages if they can show that they could have gotten more money from another prospective client, but them accepting the rent makes that difficult to pursue. Now, again, verbal agreements do have evidentiary problems. If your case were nothing than your word claiming that they agreed, you would not have much of a case. But here, you have: -They were willing to take the lower rent for the initial period -You stated that you would leave unless given a continued discount, and you stayed -They didn't make any attempt to collect the full rent for three months -They are willing to give you the discount if you pay the back rent All of this points rather strongly towards your claim being true. You also say "this situation is not unique to me." It's not clear what they means, but if other tenants also got verbal assurances that the discount would continue, and they testify to that effect, then your case is even stronger. | Yes, you have to give 2 months notice and you have to pay £145 + VAT The first clause says your notice cannot end within 6 months of the start of the lease: that is long gone. You pay the lower fee because you will have stayed longer than 12 months by the time your 2 months notice expires. You can try to negotiate a shorter notice period - they have advantages in relenting if you move out earlier. | If the lease has expired and the tenant does not have an option then the landlord is under no obligation to offer a new lease; they do not have to give any reason. They would still need to comply with the notice periods in the lease or it will revert to a month-by-month contract; in that case, the notice period is 1 month. | There are several questions in the OP. The answers to all of them depend on the lease terms. If Person A wants out of the lease, is the only option to just try to negotiate a way out of their portion of the lease with the landlord, presumably by payment or other means? Yes, usually. Regardless of who is on the lease, Person A is on the lease. In order to terminate or break the lease, Person A will have to negotiate termination. Most residential leases provide for joint and several liability for lease obligations. That means the co-signed lease is like three non-exclusive leases, one each between landlord and Persons A, B, and C. So Person A has to find a way to break the Person A lease. Other than a breach by either party, that likely can only be done by negotiation with landlord. What rights do Person B and C have if Person A does stop paying? Absent some other relationship or understanding between them (that is, other than the lease,) likely none. Persons B and C are each fully responsible to pay all of the rent. In other words, as far as the landlord is concerned it does not matter who pays the rent as long as it gets paid. If it doesn't get paid, the landlord can evict and sue all 3 for non-payment of rent. But the lease likely does not discuss the relationships between A, B, and C - whether they pay pro rata by time in the unit, by space used, per capita, or whatever. Landlord doesn't care, and is not the counterparty to those decisions. That said, if there is a relationship between A, B, & C (for instance, if A & B had a contract describing who would pay what, and B entered into another contract with C,) that will determine their relative obligations. The landlord agrees to allow the lease to be amended for another person, person C to be on the lease. Person B negotiated this with the landlord without consent of person A. This may create liability between B to A, C to A, or B & C to A. It is even conceivable that it creates a liability from landlord to A, if A had a reasonable expectation that the lease would not be amended absent A's consent. And the amendment may not be enforceable against A. So, for instance, A may be able to kick C out of the unit and bar C from reentry. It will not effect A's liability to pay rent. | You signed the lease In general, this is definitive of your intention to have a month-to-month lease. Any correspondence that you have prior to you signing that you wanted or even agreed on a yearly lease is only evidence that such things formed part of the negotiations but, for whatever reasons, what was ultimately agreed was a month-to-month lease. If you can prove misrepresentation you might be able to get what you want but the usual remedy is recission (ending) of the contract, not a change to the contract. However, given that the type of lease is such a fundamental feature and is usually prominent on the document, proving you were misled rather than agreeing to a month-by-month lease will be difficult. |
The "focus" of a statute (RJR Nabisco v. European Community) In the US Supreme Court's decision in RJR Nabisco v. European Community, the court utilizes a two-step framework for analyzing matters of extraterritoriality. In the second step of this framework, the court states: "If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U. S. territory". See: https://www.supremecourt.gov/opinions/15pdf/15-138_5866.pdf What exactly is meant by the "focus" of a statute? | As there is no any applicable special definition of "focus" in that context, the plain meaning rule applies: the "focus" of a statute is what the statute is focused on. Any ordinary synonyms apply: concentrated on, revolves around, addresses itself to. What exactly a statute is focused on is determined by way of its interpretation and analysis. This is part of what judges do. | No. Imagine, for instance, that you're a dairy and poultry farmer in Ohio. You grow a small crop of wheat every year to feed your animals. From whatever is leftover, you take enough to make flour for yourself and your family. After that, you sell whatever is left to someone locally. You could argue that your wheat-related activities would not be interstate, that they would not be commerce, and that they would have at most indirect effects on interstate commerce. But the Supreme Court would reject that argument, as it did in Wickard v. Filburn, 317 U.S. 111 (1942). Even if appellee's activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect." So the general rule is that any activity that has a "substantial economic effect" on interstate commerce -- by reducing demand, for instance -- is within the reach of the federal government's authority to regulate. While there continues to be controversy over this broad interpretation of Commerce Clause authority, it's a well-settled principle, and everyone recognizes that practically speaking, there's virtually no commercial activity that Congress cannot regulate. | Overview The list in this answer is not comprehensive merely listing some of the leading SCOTUS cases on point, but the approach taken, analyzing the way the term is used in a context specific, case by case approach, rather than trying to ascribe a trans-substantive meaning to it in all contexts is, I believe the correct approach. There are 30 SCOTUS cases that use the term discussing perhaps 15-20 treaties and statutes, and hundreds of circuit court cases that do so. It turns out that the term foreign national often paraphrases treaty language that is not identical when there is no ambiguity in the case before the court. The EO language is probably merely the product of sloppy drafting since the statute uses the word "alien". In many contexts where "foreign national" is used to paraphrase the exact treaty language, the term is relevant because it is used in a context where a relationship between the person and their nation is at issue in some respect as in the VCCR below and the Public Vessels Act. So, in those contexts, the term would often exclude "stateless persons". But, there is really no way to know in the absence of context whether dual citizens are or are not intended to be included in the term. The VCCR: Paraphrase One place that the term "foreign national" is used is Article 36 of the Vienna Convention on Consular Relations (VCCR) which gives a foreign national a right to diplomatic assistance in the criminal justice process. See Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). The same section of the same treaty was at issue in Torres v. Mullin, 540 U.S. 1035 (2003). In this context, a stateless person is clearly not a foreign national, as a stateless person has no ambassadors or counsels from the country in which the stateless person is a foreign national to seek recourse. The term "foreign national" also paraphrases the treaty language which actually uses the phrase "nationals of the sending state" (where the "sending state" is the country with diplomats in the territory of the "receiving state") which could in a plain reading include dual citizens. Specifically it says: 1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. The Trading With the Enemy Act: Paraphrase The term was also used in a case discussing the Trading with the Enemy Act, as amended by the First War Powers Act of 1941, and Executive Order 9095, as amended, which allowed for an "Alien Property Custodian" to seize property of a foreign national (in this case a German) in connection with World War II. See Silesian-American Corp v. Clark, 332 U.S. 469 (1947). It isn't clear, however, that this case has continuing legal validity and relevance. And, the "foreign national" terminology in this case appears to be a paraphrase of the phrase "enemy or ally of enemy" that appears in the underlying text of the authorizing statute. U.S-Mexico Extradition Act and 4th Amendment: Synonym For Alien The term was used in the case of United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), in which a Mexican citizen was kidnapped in Mexico by U.S. agents and tried in the U.S. on drug trafficking charges without regard to the U.S.-Mexico extradition treaty, which Judge Kennedy uses the term synonymously with "alien" in his concurring opinion in a case involving facts where any definition of the two terms applies. Hague Service Convention: Concept Not Used In Treaty The term was used in the case of Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) interpreting the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), [1969] 20 U.S.T. 361, T.I.A.S. No. 6638 which governs service of process of foreign nationals to determine if it applies to service of process on foreign nationals within the United States. The treaty language of the Hague Service Convention itself, however, makes no reference at all to the nationality of the person served and depends entirely upon whether the person is served abroad in the territory of a signatory or not. Under the plain language of the treaty itself, a U.S. citizen in France has to be served pursuant to the Hague Service Convention, although a U.S. court would usually be in a better position to compel compliance from its own national than it would be from a foreign national. In a nutshell the facts and circuit splitting legal issues presented by the service of process in a product liability case in a state court in the United States in Chicago were as follows: VWAG, a corporation established under the laws of the Federal Republic of Germany, has its place of business in that country. VWoA is a wholly owned subsidiary of VWAG. Schlunk attempted to serve his amended complaint on VWAG by serving VWoA as VWAG's agent. VWAG filed a special and limited appearance for the purpose of quashing service. VWAG asserted that it could be served only in accordance with the Hague Service Convention, and that Schlunk had not complied with the Convention's requirements. FWIW, SCOTUS held that the treaty did not apply to service of process within the territory of the country whose courts issued the process. The Public Vessels Act: Context Specific Usage In United States v. United Continental Tuna Corp., 425 U.S. 164 (1976), per the official syllabus: Prior to 1960, the Suits in Admiralty Act authorized suit against the United States in cases involving vessels owned by, possessed by, or operated by or for the United States, if such suit could have been maintained had the vessel been a private one, and provided further that such vessel was employed as a merchant vessel. In 1960, Congress amended the Act by deleting.the latter proviso. The Public Vessels Act authorizes suit against the United States in cases involving "a public vessel of the United States," but bars such a suit by a foreign national unless it appears that his government [96 S.Ct. 1321] allows a United States national to sue in its courts under similar circumstances. Respondent, a Philippine corporation, alleging jurisdiction under both Acts, sued the United States to recover damages resulting from the sinking of its fishing vessel after a collision with a United States naval destroyer. The District Court dismissed the complaint on the ground that, since the destroyer was a "public vessel of the United States," the suit was governed by the Public Vessels Act, that therefore respondent was subject to that Act's reciprocity provision, and that, since there was no such reciprocity, the suit was barred. The Court of Appeals reversed on the ground that the suit, although involving a public vessel, was maintainable under the Suits in Admiralty Act, as amended in 1960 to delete the "employed as a merchant vessel" proviso, free from the restrictions, including the reciprocity requirement, imposed by the Public Vessels Act. Held: Claims within the scope of the Public Vessels Act remain subject to its terms after the 1960 amendment to the Suits in Admiralty Act, and, since respondent's claim falls within the Public Vessels Act, the Court of Appeals erred in concluding that that Act's reciprocity provision did not apply. Here the focus is on the relationship of the foreign national to a home state court which may or may not offer reciprocity. The statute is 46 U.S.C. § 781. The case at issue involved a Philippine corporation owned mostly by Americans, which was held to be Philippine nationality and the reciprocity of Philippine courts applied. Presumably in this case a dual national would count as an American and a stateless person would not. | No The importance of following precedent, and the principle of stare decisis were inherited by the early US legal system from the British Common Law system, and have been taken as part of the natural order of the legal system by US courts ever since. This extends even to a court overruling itself. US Courts are notoriously reluctant to overrule their past decisions, even when current court members agree, However they will do so from time to time. The US Supreme Court in particular will flatly overturn previous decisions, especially on Constitutional issues, when it thinks there is no other way to achieve a proper outcome, although it often prefers to distinguish the prior decision without actually overruling it. I think the fastest and most extreme case where the US Supreme Court overruled itself was that of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the second flag-salute case. (This was also a particularly significant case.) This reversed Minersville School District v. Gobitis, 310 U.S. 586 (1940) a case on the exact same issue, only three years previously, and a vote of 8-1 on the first case became a vote of 6-3 the other way, with only one new Justice on the Court. Only Justice Frankfurter, the author of the fist decision, issued a dissenting opinion in the Barnette case, and no other Justice formally joined that opinion. | united-states But what is that legal reason? Why would an organization not be able to state their position with respect to the issue, such as "We believe we acted correctly, but this will be decided in court"? Is there a law saying that commenting a court case is illegal? Who does this apply to? Or is this just some guideline or established advice to avoid problems (which ones)? Legal Ethics Considerations There are circumstances when commenting publicly on litigation violates the ethical rules for lawyers related to trial publicity See Rule of Professional Conduct 3.6 (the numbering system for professional conduct rules for lawyers is uniform nationally in the U.S. although the substance of the rules can differ in detail from state to state - Colorado's rule is fairly typical). Mostly this rule calls for avoiding statements that could prejudice a jury unless the other side has already done so and those statements need to be rebutted. This rule states (in its Colorado version): (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;(iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). Statements such as "We believe we acted correctly, but this will be decided in court" are allowed and are not terribly uncommon. But, making a comment about something that can be easily inferred from the publicly available documents filed in court provides little or no positive advantage for a litigant. Also, one doesn't have to say much to create at least a colorable Rule of Professional Conduct 3.6 issue that a mediator can raise in settlement talks, or that a judge can be forced to analyze. Even if the claim of unethical trial publicity ultimately doesn't hold water, it still muddies the waters and distracts lawyers and litigants from dealing with the substance of the dispute. The Risk That A Statement Will Be Used Against You Usually, the main concern is similar to the concern about talking to police: Anything you say can and will be used against you at trial. For example, this week former President Trump's public statement about his knowledge of classified documents, which are the subject of an ongoing federal criminal investigation of him, seriously harmed his position legally. (His statement was made quite a while ago in a semi-private forum, but at a time when the possibility of a criminal investigation still should have been on his radar screen.) In the civil rape-defamation case against him (as noted, for example, in this Law.SE answer), Trump's decision to continue to speak publicly about matters that were the subject of active litigation against him in an earlier case resulted in an extended statute of limitations and an opportunity to refile the case without having to worry about Presidential immunity from liability for statements he made while in office. It isn't just former President Trump that does things like this, but his conduct provides good textbook examples of what lawyers worry about when their clients talk about cases that are being litigated. Social media statements about pending cases by litigants routinely provide powerful evidence against them in trials. Some clients (particularly politicians and many senior executives of big and medium sized businesses, but also more ordinary people with big egos) are "forces of nature" who can't resist running their mouths, usually to their detriment, when given the least leave to do so. It is easier to teach them to say "no comment" across the board about pending litigation, than to transmit the depth of understanding necessary to comment without saying something potentially harmful. Lawyers spend many hours and sometimes days preparing their clients for depositions for a reason. Avoiding Annoyance To Opposing Counsel, Parties, And Judges Making a comment about pending litigation has the potential to aggravate opposing counsel and can emotionally influence non-lawyer opposing parties with whom a negotiated settlement will be reached 90%+ of the time (only about 1-2% of civil cases go to trial, but some are resolved by default judgments or on motion practice as opposed to by settlement). It can also irritate a judge who frequently prefers to be out of the public spotlight when necessary, even when the statements made aren't prohibited, and judges in the U.S. have lots of discretionary authority. | Yes More exactly, nations will not regard places outside of their physical limits as outside of their jurisdictions. Overview Traditionally, a nation has regarded any ship flying its flag as under its jurisdiction, and a place where it may enforce its laws. More recently, many nations will undertake to enforce laws in cases where their citizens are the victims, or in some cases the perpetrators of crimes even within other nations, and more freely on the high seas outside the physical limits or territorial waters of any country. Historically, all nations undertook to enforce laws against piracy wherever they might be committed. Several countries, including the UK and the US, now treat the UN Law of the Sea convention as part of their national law, which defines as piracy: "illegal acts of violence or detention ... against persons or property on board such ship or aircraft" This would include the situation described in the question. Therefore such actions could and quite likely would be prosecuted by any of several countries, depending on the registry of the vessel and the nationalities of those involved. Sources 18 U.S. Code § 7 provides that: The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. ... (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States. (8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States. This US DOJ page says: Among the offenses within the special maritime and territorial jurisdiction of the United States are the crimes of murder, manslaughter, maiming, kidnapping, rape, assault, and robbery. Pursuant to 18 U.S.C. § 7(1) there is also jurisdiction over such offenses when they are committed on the high seas or any other waters within the admiralty and maritime jurisdiction of the United States that is out of the jurisdiction of any particular state. See JM 9-20.000 et seq. The page "Maritime Offenses" from the law offices of Trombley and Hanes says: The Federal government also exercises jurisdiction over certain maritime offenses. There is Federal jurisdiction for offenses committed on American vessels in the territorial waters, harbors and inland waterways of foreign nations. See United States v. Flores, 289 U.S. 137 (1933). ... A number of Title 18 sections specifically declare certain conduct to be a Federal crime if committed “within the special maritime and territorial jurisdiction of the United States.” See, e.g., murder, 18 U.S.C. § 1111. In some instances, the Assimilative Crimes Act, 18 U.S.C. § 13, is also applicable. See also, 15 U.S.C. § 1175; 15 U.S.C. § 1243; 16 U.S.C. § 3372. 18 U.S. Code § 1111 (b) provides that: (b) Within the special maritime and territorial jurisdiction of the United States, Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. The Britannica Article on "Piracy" says: Because piracy has been regarded as an offense against the law of nations, the public vessels of any state have been permitted to seize a pirate ship, to bring it into port, to try the crew (regardless of their nationality or domicile), and, if they are found guilty, to punish them and to confiscate the ship. The UN page on Piracy says: The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the framework for the repression of piracy under international law, in particular in its articles 100 to 107 and 110. The Security Council has repeatedly reaffirmed “that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (‘The Convention’), sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities” (Security Council resolution 1897 (2009), adopted on 30 November 2009). Article 100 of UNCLOS provides that “[a]ll States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” The General Assembly has also repeatedly encouraged States to cooperate to address piracy and armed robbery at sea in its resolutions on oceans and the law of the sea. For example, in its resolution 64/71 of 4 December 2009, the General Assembly recognized “the crucial role of international cooperation at the global, regional, subregional and bilateral levels in combating, in accordance with international law, threats to maritime security, including piracy”. The UK Piracy Act of 1837 defined as a crime: Whosoever, with intent to commit or at the time of or immediately before or immediately after committing the crime of piracy in respect of any ship or vessel, shall assault, with intent to murder, any person being on board of or belonging to such ship or vessel, or shall stab, cut, or wound any such person, or unlawfully do any act by which the life of such person may be endangered, shall be guilty of felony... The more modern UK law, the Merchant Shipping and Maritime Security Act of 1997 embodies the UN law of the Sea convention, including its article 101, which says: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed— (a) (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (a) (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; | The country where the accused person was arrested would extradite that person to one of the countries where the crimes had been committed. The extradition treaties or the law of the arresting country might have a rule to define how to choose which country took precedence. (Perhaps the earlier crime, or the more serious crime if they were different, or the closer ally might get priority.) Once the accused was extradited, s/he would be tried, and if convicted, sentenced. Once the sentence was completed, that person would be turned over to the second country for trial and possible sentence there. Sometimes, particularly if the sentence is long, an accused will be turned over to the second country for trial soon after conviction in the first country, under an agreement that the person would be returned to serve the sentence in the first country after the trial was over, whatever the outcome, and then sent back to the second country to serve any sentence imposed there. Or the second country could choose to count time served in the first country against its sentence, but I believe that this is not usual. Consider the case of Frank Abagnale who was sought by some 12 different countries when he was arrested in France. He was convicted and served time in France, then extradited to Sweden, where he was also tried, convicted and served time. Italy had requested his extradition, but he was deported to the US, where he was also tried, convicted, and served time. | This is known as the rule of lenity. A common formulation of the rule of lenity is as follows: If a federal criminal statute is grievously ambiguous, then the statute should be interpreted in the criminal defendant's favor. Importantly, the rule of lenity does not apply when a law merely contains some ambiguity or is difficult to decipher. As this Court has often said, the rule of lenity applies only when “ ‘after seizing everything from which aid can be derived,’ ” the statute is still grievously ambiguous. The rule “comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Kavanaugh J., concurring, in Wooden v. United States, 595 U.S. ___ (2022), citing Ocasio v. United States, 578 U.S. 282, 295, n. 8 (2016), internal citations removed. |
Can reading a something mean agree to to a contract? I understand that a contract can be created by the actions undertook by the involved parties. When you visit a website you agree to the ToS by using the website (regardless if you read it or not). Related to my previous question I had an employer deduct a small fee to process my payment, they argued that they were allowed to because it stated they would on the website I had to use for the job. Does this even form a contract? Another example, I went to a library and started using a computer. The librarian came up to me and pointed out a sign saying I had to pay before using the computer (which is uncommon where I live). Is there a contract formed by just having a sign? Hypothetically could the library sue me for not paying? Further, if there was a sign on the door to a private building saying you have to pay $20 to enter, if you didn't read the sign and entered, could the owner demand $20 from you? | Can reading a something mean agree to to a contract? Just reading — no. Reading and acting as if you have agreed — yes. This is called "acceptance through conduct". I had an employer deduct a small fee to process my payment, they argued that they were allowed to because it stated they would on the website I had to use for the job. Does this even form a contract? Yes — because you read and continued to use the website. librarian came up to me and pointed out a sign saying I had to pay before using the computer (which is uncommon where I live). Is there a contract formed by just having a sign? Hypothetically could the library sue me for not paying? Provided that you read the sign and started using the computer — yes. However, because you did not see the sign, the library had failed to communicate the terms of the offer to you, which means there was no contract. However to however, if you continue using the computer even after the librarian tells you that you have to pay, you now accept the offer through conduct. In this case, the library could sue you for damages should you not pay. if there was a sign on the door to a private building saying you have to pay $20 to enter, if you didn't read the sign and entered, could the owner demand $20 from you? If the sign was so conspicuous that no reasonable person would have missed it — yes (because you should have read it and then you entered the building. But you could get away if you convinced the judge that you genuinely did not see/read the sign, for which you would have to have a plausible excuse (e.g. vision impairment). | 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. | The contract would be binding Many people make the mistake of thinking that the document is the contract - it isn’t. The contract is the binding legal relationship between the parties of which any documents are just evidence for. As this is a simple mistake on the document misidentifying one of the parties, it’s irrelevant. You and the company are clearly the parties to the contract - you because you signed it and they because they sent it to you. Minor errors in one or more of the documents that make up a contract are immaterial. | Yes. Contracts do not excuse a site from obeying the law, and the law requires sites to obey court orders. "It violates my contract with a third party" is not a valid reason to disobey a court, and disobeying a court order is contempt. On the other hand, contract law (at least in the U.S. and U.K.) says that contracts that violate the law or public policy are invalid, and so you could not win a breach of contract suit if the defendant could not legally comply with the contract. Now, a contract might require the company to attempt all possible legal ways to get the court to revoke its order, or to avoid the order in the first place (for instance, if Google does no business in China, a U.S. court might not excuse them from a contract because they capitulated to the Chinese government). However, when push comes to shove, private contracts are lower priority than court orders. | If I enter into a contract that a previous contract I entered into says cannot be entered, what happens next? Your question is unclear on whether both contracts are entered by the same parties. Generally speaking, it is valid for parties A and B to enter both contracts unless the formation of the subsequent contract contravenes the rights of another entity who also is a party to the initial contract. If the initial contract only binds A and B, a subsequent contract between A and B is tantamount to mutually agreeing to modify the initial contract. If the initial contract between A and B prohibits entering a contract with C, A's formation of a contract with C constitutes A's breach of the initial contract. The specifics of both contracts and the circumstances would help determining whether the subsequent contract is void and null; whether it is valid at law or in equity for A to have indulged in forming a contract with C (for instance, if B breached the initial contract in a way that frustrates its purpose); or whether compelled performance of the [initial] contract between A and B results in A breaching his contract with C (or in the alternative, whether rescission of the subsequent contract is permissible). If both B and C an "innocent" parties, the court supposedly would look for a solution that preserved their rights to the extent possible, leaving A to carry the cost. | Terms and clauses are the apples and oranges of a contract. First of all — from a conceptual point of view, does a contract contain anything other than terms, name of the signing parties and clauses? — most contracts do not even need to be in writing (and thus do not need to contain any "signing parties" or "clauses"). What makes up a contract is a separate question but, again, a writing is only necessary for certain types of contracts (e.g. real estate contracts). Terms of a contract exist regardless of whether it is in writing or not: they are plainly specific information (or knowledge) about the contract that the parties have agreed on: who the parties are, what they do for each other and what they get in return, times, places, numbers and whatever the parties consider essential to the contract. This information/knowledge may just stay in the minds of the parties and never be rendered in a readable form. The contract will be perfectly valid and enforceable. Clauses are what written contracts composed of. They are just blocks of text each addressing specific aspect or concern of the contract e.g. Parties, Payment, Delivery, Force majeure, Termination, Jurisdiction etc. | 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. | If two parties have a contract, where one party is required to do X in exchange for the other party doing Y, then the terms specified in that contract would determine what happens. You would have to see exactly what it says, especially if the other party has the option to not give you money. A contract might say "A shall at his option give B $5,000 by date X; if A elects not to make payment, notice must be given 60 days before X". Failing to give timely notice is thus breech of contract. However if the clause only says "A shall at his option give B $5,000 by date X", then there is no requirement for advance notice. And this assumes that there is a contract whereby both parties have some obligation to the other. A gift, on the other hand, carries no obligations on the giving party. There may be some social code to the effect that they should have told you by now, but failing to give advance notice is at most rude and certainly not legally actionable. |
Working in the US after a J1 visa I can have a 6-months J1 visa to work in the US and I'm wondering how I could stay working in the US after the visa expires. On http://j1visa.state.gov/basics/common-questions/ it says: My visa has expired during the program. What do I do? If your visa has expired and you do not plan to travel outside of the U.S., you do not need to renew the visa. So, is it legal to stay in the US after the visa expires? Also, what about my girlfriend, could see come too? | According to the Common Questions you have 30 days to leave the country after your program is over. However, this implies that you may not work unless you have obtained an extension to your program. The answer that you quote seems to mean that if your visa expires but the original program is still continuing, then you can stay. Otherwise you have to leave within 30 days. Can I participate in another J1 program after finishing my current program? Your current J-1 visa is ONLY applicable for your current J-1 exchange program and under your current program sponsor. Upon completion of your current J-1 program, you are expected to depart the United States. If you intend to pursue a 2nd J-1 exchange program (in a different category and with a different J-1 sponsor), you will need to apply for a new J-1 visa for your new exchange program and new J-1 sponsor – in order to reenter the U.S. for the 2nd program. How long before my J-1 program starts can I arrive in the United States? How long can I remain after my program ends? You may not arrive more than 30 days before the program start date shown on your DS-2019. Upon completion of your exchange program, you have a grace period of 30 days to depart the United States. The remainder of the answer that you quote is relevant. Your sponsor is responsible for assisting and advising you on all matters relating to your J-1 program, including authorizing travel outside of the U.S. and ensuring that your J-1 non-immigrant documents are valid at all times. | When can I re-apply for the citizenship, there is no date mentioned on the letter received. You can reapply as soon as you meet the criteria. If you don't move again to another state or USCIS district, and if you don't spend so much time outside the US that you fail to meet the physical presence requirement, then you can reapply on the three-month anniversary of your move to your current place of residence. The criteria are available at USCIS's Naturalization Information page: Naturalization Eligibility Requirements Before an individual applies for naturalization, he or she must meet a few requirements. Depending on the individual’s situation, there are different requirements that may apply. General requirements for naturalization are below. Be at least 18 years old at the time of filing Form N-400, Application for Naturalization. Be a permanent resident (have a “Green Card”) for at least 5 years. Show that you have lived for at least 3 months in the state or USCIS district where you apply. Demonstrate continuous residence in the United States for at least 5 years immediately preceding the date of filing Form N-400. Show that you have been physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing Form N-400. Be able to read, write, and speak basic English. Have a basic understanding of U.S. history and government (civics). Be a person of good moral character. Demonstrate an attachment to the principles and ideals of the U.S. Constitution. | There is a general common law doctrine of contract interpretation which tells us that ambiguities are construed against the drafter. In your case, had the employer intended to require two years of work (or else reimbursement back to them) they could have explicitly stated this. The fact is, the contract is written as it is for a reason, likely to entice you to accept the offer of employment. They softballed the requirements to get you to take the job and now they are trying to play hardball. I would hope that a court would find this and tell the employer to think about these clauses next time. The fact is, after a deal goes south is a bad time for an employer to start explaining what these terms mean. You have fulfilled your half of the bargain. If the facts are as you say they are then you satisfied the "best of my ability" condition. Another problem you might have is if the employer does not take you to court but instead continues to make threats, maybe sends a collections agency after you. In that case you will need to get an injunction to stop the employer. In other words, get a court to state that you do not owe them any money and enjoin them from continuing to as if you do. EDIT: as a commenter mentioned, a contract may explicitly provide that ambiguous terms will not be construed against either party. | It is not illegal to treat the employees differently. As long as nobody is being paid for less than the time worked, this is legal. Treating employees differently because of protected characteristics is unlawful discrimination. However, the duration you have worked there is not a protected characteristic. It is perfectly legal for the employer not to mandate new employees clock in and out. It would even be legal (if not a great idea) to hire new employees for twice as much. | You need to be very clear with B that you intend to continue to operate A. You need to be clear whether you are to be an actual employee of B, or a hired contractor for B. If an employee, you need to agree with B how much time you can devote to A while employed by B, or to put it another way, how much time (per day, week or whatever) you are expected to devote to B before doing stuff for A. Are there to be restrictions, such as a ban on your doing things for A while at B's worksite? Above all, you need to agree on who owns what rights to both the existing A code, and any new code will be held by you, and what rights will be held by B. All the above should be in a written agreement, and you would be wise to have a lawyer draft or at least review the language. If B will not agree to this, you will have a choice to make: put A on hold while working for B, or not accept B's offer. Do not lie to B about what you are doing with A. Oh, and if you had any sort of non-compete agreement at the job you quit four months ago (let's call them C) be sure that you comply with it, or are prepared to fight it. If there is any question, this is another area where you would do well to consult a lawyer. Many non-compete agreements claim more than local law allows, and are not enforceable. Many others are very much enforceable. It depends on the wording of the agreement, and the provisions of the law where you are located. Also, do not use any confidential data from C without C's written permission. | I think that the plain meaning points to (1). The "other than an alien lawfully admitted for permanent residence" modifies who "is admissible", in the present tense, i.e. at the time of seeking admission. It doesn't modify the departure. Also, if it were (2), there would be weird issues like, if the departure doesn't count as a departure for the purposes of this section, then what about the unlawful presence? Does it stay accrued until a future departure, or does it just get wiped clean with no consequences? If it stays accrued, then in some cases it may be worse than interpretation (1), because interpretation (1) starts the 10-year period earlier while it doesn't affect you while you are a permanent resident, so that if you lose your permanent residency in the future the ban will be over earlier. The only case I know where a departure doesn't count as a departure for the purposes of this ban is when you leave on a grant of Advance Parole, as ruled by the BIA decision in Matter of Arrabally. But the reasoning in that case was that Advance Parole was specifically granted to allow the person to travel abroad an preserve their eligibility for Adjustment of Status, which a ban would defeat. But this reasoning wouldn't really apply to the case in this question, because permanent residency isn't specifically granted for travel abroad, and a returning permanent resident isn't subject to this ban anyway, so interpreting it as a departure doesn't defeat the maintenance of permanent residency. The issue you are asking about is rare. In most cases, when people become permanent residents, they stay permanent residents or naturalize to become US citizens, in which case they do not have to worry about this ban after becoming permanent residents. Only if they lose permanent residency would this question come up. I am not aware of any guidance or case law regarding this case. | You are entitled to at least see, and probably get a copy of, any document you sign. If you insist, they will have to show you or give you a copy. It may well be that they are supposed to give you a copy even if you do not ask. But if you are going to insist, allow a bit of extra time at such appointments. If they describe the document, even in rather general terms, your signature is probably binding, unless they have significantly misrepresented the document. If they tell you it is consent to be treated and it is actually an agreement to purchase a timeshare, that would be fraud and the document would not be valid, but that would be very unlikely. There might be some provision that you do not like, but such agreements are usually fairly standard, and also usually not very negotiable if you want service at that office. Still, it is better practice to at least look over and get a copy of any document you agree to. | As the comment by Ron Beyer mentions when a company wants to impose such restrictions they are normally done through non-compete, non-solicitation, and non-disclosure agreements, as well as via trade secret law. Note the word "agreements". "Restrictions on working in the field" are simply a form of non-compete agreements. A company cannot, legally, simply impose such agreements on its employees. It can require an employee to sign such an agreement as a condition of employment, and it can often require such an agreement from a departing employee as a condition of a severance payment. Exactly what is covered by such an agreement depends on its terms, and those vary widely. In most US states there are limits on the scope and duration of such an agreement. In some states the restrictions can be broad and of fairly long duration, in others they must be narrow and of fairly short duration. An agreement that goes beyond a given state's limits will not be enforceable in court, if the defendant brings that fact up. Trade secret law can prevent an employee from disclosing the trade secrets of a former employer to a new employer, or indeed to anyone else. But that does not prevent a former employee from getting a new job in the field, as long as the employee does not disclose any trade secrets. If an employee has signed, or is asked to sign, such an agreement, it is a good idea to consult a lawyer with employment law experience. If the state is known, I could edit this answer to include the limits, if any, on such agreements in that state. |
Posthumous publishing My deceased father wrote three novels and my sister and I now possess the manuscripts for two. What copyright law applies if we were to publish these works? He has been dead for thirteen years and left his wife, our stepmother as his sole heir, though the manuscripts are not mentioned in the Will. Would they be copyright to us, to him, to her? Does possession of the physical manuscripts matter? | In the US, the right to publish is vested in the copyright holder, who is initially the author. That right can be transferred for example by a transfer agreement, and it can be inherited just as other property can be inherited. Under the terms of the will, it is most likely that the copyright was transferred to the spouse even if the will didn not say "including all copyright". There is a small chance that it wasn't disposed of if the wording of the will is restrictive enough (for example "I bequeath all real estate and tangible property to my wife", which doesn't include intellectual property). If so, that would definitively require the assistance of an attorney, and a court proceeding to dispose of the copyright. If there was no provision under the will for copyright, then the copyright could be divided accounting to the rules of succession of your state, however, the courts would want to be persuaded that it was not his intent that his wife receive the copyright as well. Possession of the physical manuscript is largely irrelevant – it does not give the manuscript-holder the right to override copyright law, although if you are in lawful possession of the only copy of the manuscript, you may be able to thwart plans to publish. Publishers generally require decent evidence that the person submitting the manuscript does legally hold copyright, when a work is submitted by someone other than the author. | 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. | Here is an example: The Author agrees to hold harmless and indemnify the Journal and The University against any legal claim or action or expense of any nature arising from any claim of infringement of copyrights or proprietary rights resulting from publication of the manuscript or claims of libel, obscenity, unlawfulness or invasion of privacy arising out of anything contained in the manuscript as furnished by the Author. Suppose Author infringes the copyright of Jones, by copying large parts of it into Author's work. Author is now in legal trouble because he illegally copied stuff into his manuscript, but Journal is also in big (bigger) legal trouble, because it made many copies of Jones' word and sold them. Jones will now sue everybody, mostly the Journal (since Journal has money, and Author doesn't). Thanks to the indemnity clause, when Journal gets sued, all of the costs (of litigation and judgment) have to be born by Author. The primary purpose is to protect Journal from suits by third parties. Nothing can keep you from getting sued, but such a clause (theoretically) means that the person whom your contracting with has to cover the cost of his wrong-doing (assuming that he is not a turnip). The term "hold harmless" is there to guarantee that Author can't decide to sue Journal for publishing a libelous or infringing article. The functions are similar, but not totally the same: this and references therein could be interesting reading, by way of more details. He argues against using both terms, and instead you should use only "indemnify". In this case, the court said "When two words are used in a contract, the rule of construction is that the words have different meanings", which caused the court to assign distinct meanings to the words (which are typically used as though they mean the same thing), which doesn't seem to have been the original intent. | I assume these are digital photos that were electronically transferred (not prints physically delivered). If they were prints physically delivered, he owns those prints, since you used to own them but you unconditionally transferred ownership to him by giving them. No backsies under the law. The photos are protected by copyright law, which means that the person who took the pictures has the exclusive right to make copies, disseminate them, and authorize making copies. In order for anyone to make a copy, they need permission – a license – from you. In the world of pre-planned business deals, the copyright holder writes up a document granting B some right to use the protected material, which typically means "you can install it on your various devices but may not give copies to others". In this case, however, you didn't create an explicit written license. So if this ends up in court, the question is what implicit license you granted. The courts will not decide that you granted him the license to unrestrictedly sell or give away copies of the protected material. The most likely outcome would be that he can only keep his copy, i.e. he will not be forced to erase the copy that you sent him. What the courts would do is try to discern what license you most likely intended to grant to him. There is a provision in copyright law that allows a licensee to make backup copies of a computer program (17 USC 117), but a digital photo is not a computer program. So the lifespan of the copy that you sent would be the lifespan of the phone (I assume) that you sent it to. Since actually using a digital photo technically requires making a copy (from disk storage to computational memory), there is a legal direction (dead-end) that you could go where the photo could exist on the phone, but never be opened again. Again, the courts would have to discern what license you probably intended w.r.t. ever opening the photo – obviously you intended that the file could be opened / viewed any number of times. You could argue that the license which you granted was conditional, i.e. "you can have and use these pictures as long as we are a thing", but establishing that this was part of the license would be tricky. Free digital content often has some "as long as" condition attached to it, i.e. "you can use this program as long as you are affiliated with University of Whatever". I don't consider a conditional license to be a ridiculous interpretation, on the other hand the particular court (judge) might decide that people who sext should be forced to live with the unpleasant consequences of their decisions. If we exclude such a line of thinking, I don't see a compelling counter-argument that your ex-partner inequitably loses a right by construing the license as conditional. I don't know if there is any case law that addresses this: at any rate, copyright law would severely limit what he could do with the pictures (the tort "invasion of privacy" also limits dissemination). | Copyright is automatic: when you write something original, it is thereby copyrighted. Thus there is no act of "copyrighting". The only important act is registering. All versions of a work are covered by copyright protection. When you revise a work, the existing copyright still exists, and you have created a derivative work. If copyright is held by a known person, the expiration date is author's death + 70 years. In a work made for hire (the company owns the copyright), it is the earlier of is 95 years from first publication or the shorter of 120 years from creation. A revision does not generally affect the duration of copyright: however, if a joint work is created, the copyright on the underlying work expires relative to the death of the original author and the copyright on later parts created by a second (added) author is relative to the second author's death. So if A writes ch. 1-4 of a book, then adds ch. 5-8 subsequently with a new co-author B, duration of copyright for ch. 5-8 is determined relative to the death of B. None of that matters for a company web page. | Can he use another commercial product that is copyrighted, e.g. a map of a location (the map is a political map and has nothing to do with trees), for his tree research purposes, if such a map won't be part of the book he works on? Yes. Copyright protects particular expressions of ideas and knowledge, not the ideas and knowledge themselves. Using a map for research purposes when the map or a modified version of it does not appear in the final work does not make the final work a "derivative work" covered by copyright. | 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. | Wills are governed by state law, but yes you may. Almost anything that can be legally owned/possessed can be bequeathed. When a copyright holder dies their copyrights (intangible property) are transfer to the estate or heirs as proscribed in the will or state law if no will exists. |
Withholding information about a problem as extortion - computer security research Over at Security.StackExchange, a discussion broke out over the use of the term "extortion" in a situation where an anonymous security professional sent an email to a business to say that they found a vulnerability in the business' website, but the security professional asked for money upfront before they would discuss any details. The rest of the context of the email suggests that it is likely a scam (they likely have nothing of value to offer), but I want to put that aside. The actor could or could not have an actual vulnerability to discuss. Does the situation satisfy the general legal understandings of "extortion"? I see that New York State law and this discussion about extortion in the Doha Declaration suggests that it could be, but it might not fit perfectly. There is an implied threat of future harm to the site or business, not by the actor themselves necessarily, that a specific, potentially existential problem exists that anyone could take advantage of. And because all security vulnerabilities are exploited by people, whether by malicious intent, accident, or mistake, then extortion laws that say that the loss/damage could be caused by another, appear to be relevant here. Protection racket discussions seem to also be relevant. We could reframe the situation to something non-technical: PersonA calls PersonB, who is on vacation, and says, "I know you are away from home. There is something wrong with your house. Pay me money and I will tell you what is wrong." Ethics and morality aside, does the situation cross over into a general legal understanding of extortion? This has an impact on how security professionals contact people with whom they have no pre-existing relationship with, to discuss the vulnerabilities they find, while hoping to offer commercial services. | Ethics and morality aside, does the situation cross over into a general legal understanding of extortion? No. Extortion necessarily includes coercion. An offer to tell what is wrong (and from the point of view of the target — only allegedly wrong) is neither threat nor force, therefore no coercion. It would have been coercion (and therefore extortion) if the guy said along the lines "If you don't pay I will exploit the vulnerability, and/or tell a bunch of bad guys about it — they will be sooo thankful to me". Provided that the guy does not say/imply he will do something if not paid, there are no legal issues here. | Assuming that the documents were either true, or Manning reasonably believed that they were true, there would be no cause of action for defamation. Many of the documents disclosed would have been confidential in some sense, but usually a violation of a confidentiality statute has a criminal sanction associated with it, but does not carry with it a private cause of action – in part, because conceptually, the party actually harmed is considered to be the government and not the person about whom information is revealed. It is also possible that Manning could utilize the state secrets privilege as a defense and have such a suit dismissed on the grounds that a full and adequate defense of the claims would require the disclosure of official state secrets. For example, if a covert agent were murdered due to a wrongful disclosure of information, usually official disclosure of the fact of being a covert agent would be required to prove the case, and that evidence would be barred by the state secrets privilege, effectively barring the lawsuit entirely. Constitutional claims of privacy violations under the 4th Amendment generally relate to the wrongful acquisition of information and not its wrongful disclosure. The constitution bars unreasonable search and seizure, not unreasonable disclosure of information. The only privacy tort that might be applicable is "Public disclosure of embarrassing private facts." (A sister privacy tort, Intrusion upon seclusion or solitude, or into privacy affairs, is directed at the collection of data phase and not the dissemination phase). See Restatement of the Law (Second) of Torts, §§ 652B and 652D. But, this tort raises serious First Amendment concerns and has not been widely adopted. Realistically, this tort is unconstitutional in the absence of an affirmative contractual or quasi-contractual duty not to reveal facts that runs to the person making the disclosure, and in general, Manning would not have that kind of relationship. The classic public disclosure of embarrassing private facts case would involve a lawyer's or psychotherapist's revelations about a client. Also, in the case of the public disclosure tort the basis for damages is largely personal emotional distress and violation of trust, as opposed to damage to reputation, per se. The requirement is that the disclosure be embarrassing or breach of contract, not that it harm someone's reputation since you have no legal right to a reputation that differs from the truth. | Yes, although whether you get any response depends on a lot of factors. Specific, credible threats are much more likely to get a response than "I'm gonna kick your ass, amphibient, you (insert opposing viewpoint/sports team/etc)." The law broken in question would be: 18 U.S. Code § 875.c: Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. As you are in different states, this would need to be reported at a national level. This would be done at https://www.ic3.gov/complaint/default.aspx. Whether or not this is the best option depends on what you hope to accomplish and whether the other person is likely to act on those threats. | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | This paper describes a website created to test the hypothesis that nobody bothers to read the TOS, and it contained a privacy clause saying that "we may share everything, and a clause that by agreeing to these Terms of Service, and in exchange for service, all users of this site agree to immediately assign their first-born child to NameDrop, Inc. If the user does not yet have children, this agreement will be enforceable until the year 2050. All individuals assigned to NameDrop automatically become the property of NameDrop, Inc. No exceptions. Since this was not a real webpage, there was no attempt to enforce. TOS is just another kind of contract, so the question is which kinds of contract conditions are enforceable and which kinds are not. It depends on whose laws you are operating under, which explains the use of expressions like "void where prohibited by law". There are innumerable conditions that could be included in a contract which are unenforceable. A contract requiring a person to commit a crime is unenforceable. Many jurisdictions have laws prohibiting a person from waiving certain rights, for example you cannot sign away your right to be represented by legal counsel in a dispute. There are related "unfair / deceptive" practices laws, which might include meta-conditions that any clause disclaiming liability must be prominently displayed. These are terms that a reasonable person would clearly know in advance are illegal and unenforceable. There is also a concept of "unconscionability", a finding that a certain condition favors the business to the point of "shocking the conscience", which may take a deeper legal analysis to evaluate. A requirement to litigate small disputes in California might be deemed unconscionable for a customer in an East Coast state, but it might not be. A typical characterization of an unconscionable contract is one that "leaves one party with no real, meaningful choice and is unreasonably advantageous to the other party", especially when due to asymmetrical negotiation power. For example, Ellis v. McKinnon , 18 Cal. App. 4th 1796 (employment contract for a salesman, commissions were forfeit if company had not received payment from the customer by the termination of employment). The main case law in the US in this area is Williams v. Walker-Thomas Furniture, 350 F.2d 445, where a customer bought furniture on credit, with a clause allowing repossession of all of the furniture in case of default by the customer. The doctrine is encoded in UCC 2-302. However, "unconscionable" does not mean "I don't like it". In lieu of statutory price controls, a customer probably cannot avoid paying an agreed on exorbitant price for a product ($100 for a dozen rolls of toilet paper). Here is a bit more legal analysis of unconscionability, which focuses on three factors: one-sidedness, oppressiveness, and likeliness to result in unfair surprise. | You can hire someone to locate the defendant with the information that you have, or you can apply to a court for permission to serve them with process via "substituted service" because their physical address can't be determined. But, in general, better business practice is to not enter into contracts with people with whom you have more than a name that might be false, and an email address, unless you have some means of non-judicial enforcement of your agreement (like the practical ability to shut down access to an internet subscription). If you don't even know if someone's name is real and have done nothing to confirm that then you also have no assurances that they have any assets from which you could collect if you won a breach of contract lawsuit. If you deal with large numbers of people in low value contracts, it may be worth treating the fact that some contracts are effectively unenforceable as a cost of doing business. But, if a contract is important, it was foolish from a business perspective to rely on a contract on that basis alone, even if it is legal to do so. | She could refer this to the Cyrpriot Commissioner for Personal Data Protection, but I would try contacting the company first and telling them to remove her Personal Data from the public website - or delete it completely. If they don't give a satisfactory response, mention the CPDP. This could lead to the data being removed within a few days, while an official complaint is likely to take longer. She may have grounds for legal action which would result in the company being compelled to take down the data (or to close the website), but if your friend is thinking in terms of compensation, what compensation would she seek? If she can demonstrate and quantify financial losses that occurred specifically because of this disclosure there might be a possibility, but I suspect that would be difficult to prove. | There have been cases in the UK where paying someone's legal bills was interpreted as joining their case. So when A with no money libels someone, and B with deep pockets pays A's lawyer, then B risks being held liable for damages if A gets convicted. So B should be very careful. Just giving you money is probably the safest. But attorney-client privilege is between attorney and client. I have been laid off twice with my company asking me to take an employment lawyer and paying for it. (Interestingly each time the bill was exactly the maximum amount the company was willing to pay :-) It would have been absurd if my company could demand information that is under attorney-client privilege just because they paid the bill. Why did two companies pay the lawyers bill? Because that way they ensure that the separation is without problems. The lawyer explained the settlement contract and what it meant exactly. They also checked that the contract didn’t contain anything unacceptable which the company would have fixed. So if I had tried to sue them later I would have no chance to win (but there was no reason to sue). Another reason not to sue was that the company offered I settlement that was very significantly more than was legally required, but if you sued them you would only get what you got in court - most likely less than you would get without suing. So basically they paid to make sure I would have no reason to sue them later. |
Can an employer charge employee/contractor a processing fee for payment? I had worked for a company (whether as an employee or contractor is disputed). They would e-transfer me payments and take a small amount off to cover the cost of e-transfer. I told them I never agreed to this. They said it was in my contract and it also said so on the website we did our work from. Can an employer deduct from a payment, the cost to actually do the payment? Does it matter if it was agreed to or not? Does simply stating something on a website count as an agreement? I actually never signed the contract as it was never really discussed and it just popped up on the website and I closed it. However I've heard cases where a person implicitly agrees to a contract by attending work. If they aren't allowed to do this, do I have any recourse for such a small amount of money that isn't worth starting a law suit over? | Can an employer charge employee/contractor a processing fee for payment? No. The matter depends on whether the person qualifies as employee for purposes of the British Columbia Employment Standards Act. Your description suggests that you meet criterion (b) of the definition of employee insofar as you are (i.e., if you are) "a person an employer allows, directly or indirectly, to perform work normally performed by an employee". See section 1(1) of the Act. Section 21(1) prohibits an employer to "directly or indirectly, withhold, deduct or require payment of all or part of an employee's wages for any purpose", and item (2) prohibits the employer to "require an employee to pay any of the employer's business costs except as permitted by the regulations". There is no indication that the alleged business cost of e-transfers would be one such exception. do I have any recourse for such a small amount of money that isn't worth starting a law suit over? You have the option to file a complaint in "an office of the Employment Standards Branch". See sections 74 et seq for further details. You are not specifying the amount of the e-transfer that is being deducted from your compensation. The smaller the amount(s) at issue, the more important it will be for your complaint to persuasively explain how it is not "frivolous, vexatious or trivial". See section 76(c). Directing the employer's attention to the aforementioned statutory prohibition prior to filing a complaint tends to disprove allegations of vexation. That is because you are giving the employer an opportunity to mend its conduct and avert the proceedings that otherwise would take place. That being said, a very occasional cost of few cents is very likely to lead to a conclusion of vexation or bad faith regardless of your preliminary steps. In most other contexts, though, it is in your best interest to stay aware of the obligations that are being presented/proposed to you so that your actions do not constitute an acceptance of terms & conditions you would rather reject. Not all contracts come in the form of a written document signed by the parties. | Usually, your landlord is going to deduct this from your security deposit rather than invoice you for it. As a practical matter, your options to dispute the charges are generally going to be excessively expensive relative to a $40 charge to make it worth fighting, particularly if you don't have contemporaneous evidence that is indisputable like photos that you can authenticate at a hearing, to prove that the landlord is wrong. Your testimony would be admissible to contradict the landlord's claim, and the judge would have to decide who to believe, but generally, it only makes any sense at all to litigate over small dollar amounts if you have unmistakably clear evidence that shows you should win. | You're probably making an “international transfer” here, but that doesn't mean it is illegal. The GDPR has a very broad concept of “personal data” and of “processing”. Per Art 4(2), ‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction Which I would summarize as: pretty much anything you do with the personal data counts as “processing”. So yes, your non-EU servers would be processing the personal data in HTTP requests, even when those servers aren't directly storing the personal data. Chapter V of the GDPR applies to Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country […] Per this definition, the question whether an international transfer occurred is inextricably linked with the question whether the data is being processed in the destination country. The generally accepted interpretation here is that mere transfer through a country does not constitute processing. For example, if your requests happen to take a network route through other countries, that wasn't an international transfer. But your HTTP server is definitely doing processing, even if it doesn't store the data persistently. If the HTTP server is in a non-EU country, then you have to consider how this transfer of data is protected. You're supposed to uphold the high GDPR data protection standards regardless of where the processing occurs. Some countries have been granted an EU adequacy decision, meaning that their data protection laws are sufficiently similar to EU laws and no extra bureaucracy is needed for that transfer. The transfer still needs to be noted in your privacy notice (compare Art 13(1)(f)). In other cases, you may be able to rely on “standard contractual clauses” (SCCs), which are pre-formulated contracts provided by the EU that translate relevant GDPR aspects into a private contract between the data exporter and data importer. However, you as a data controller must make sure that the data importer is legally able to enter into that contract. For example, the terms of these SCCs are incompatible with US national security laws, meaning that US companies might not be able to enter into the SCCs. There are a couple of other ways to authorize international transfers, but they are mostly relevant for multinational groups of companies, or in exceptional situations. In any case, other GPDR requirements like the need to have a suitable contract with your data processors remain unaffected. Also unaffected is the obligation to implement appropriate technical and organizational measures to ensure the compliance and security of your processing activities (e.g. see Art 24 and Art 32 of the GDPR). For example, this may imply the need to implement suitable encryption. In the wake of the Schrems II ruling that struck down the EU–US “Privacy Shield” adequacy decision, the EDPB published recommendations on extra compliance measures that could allow SCCs to remain valid for EU–US data transfers. But it's not easy to defend data processing activities when potential adversaries include literally the NSA, and measures such as end-to-end encryption (E2EE) are incompatible with cloud services that are more interesting than backup storage. Practically speaking, I would reconsider an architecture that would allow failover of EU data processing operations to non-EU locations, unless those target countries are covered by an adequacy decision. If you need a high availability setup for EU activities, it may be more appropriate to maintain multiple deployments within the EU. | There is no fixed definition in the law of "outside activities" that is applied generally. This will depend entirely on how the employment agreement defines it, and/or how the management of your company defines it. There may be a useful definition in the agreement, ideally there will be. In the far too common case that the agreement leaves this key term undefined, you will have to ask them how they define it. While it is true legally that when they draft the contract and it is ambiguous, you may adopt any reasonable definition, as a practical matter, if you do not disclose something and they consider it an "outside activity" They may claim this is grounds for discharge. If the employment contract requires you to disclose outside activities, you must disclose them or be in breach of that contract, which is surely grounds for discharge, and possibly grounds for a breach of contract suit. Even if it is not part of the contract, saying that you have no such activities when you in fact do is arguably fraud. Saying that you decline to inform management of your outside activities is probably legal, but might well cause them to cancel the offer of employment. If you do inform management, and the activities are approved, there would be no automatic transfer of any existing IP rights. No transfer could occur without an agreement saying so. Some companies, in their employment agreements (or other related agreements) demand that an employee transfer the IP of any project created or worked on using company resources (such as a company computer or network). Some demand a transfer for any project worked on during the employee's working hours. Some demand a transfer for any project done during the period of employment, but they must clearly specify this for it to be effective. That last is unusual, because many employees dislike it enough to go elsewhere as soon as they can, which tends to be bad for the employer. But in no case can a transfer of IP for a project unrelated to the employer's business, not using company equipment or resources, and not done during work hours, be effective without a specific agreement to this effect. | The criteria used by the IRS suggest that for federal tax purposes, the cashier would be properly classified as a contractor. Behavioral Control: A worker is an employee when the business has the right to direct and control the work performed by the worker, even if that right is not exercised. There is probably some training involved here, but it seems negligible. Has the company actually retained the right to direct and control the cashier? Is he obligated to use their register, as they tell him to use it? Is his work evaluated for compliance with those instructions? I'd guess that in most cases, the company doesn't actually care about any of this. As long as the company got all the money it was owed, would it really care if the cashier just stuck the money in his pockets until the end of the day? I'd also argue that it isn't really the employer controlling the when and where of the contractor's work, but rather the circumstances. Classifying him as an employee because he has to be at the event doesn't really make any more sense than saying your plumber is an employee because he has to come to your house to do the job. Financial Control: Does the business have a right to direct or control the financial and business aspects of the worker's job? The investment in the cash register seems relatively nominal. The company probably does not reimburse the cashier for expenses incurred in getting the job done. The cashier is presumably free to offer his services to others. The cashier is presumably being paid a one-time, flat fee. As you noted, though, the fact that there isn't much profit-loss opportunity is one factor pointing in the other direction. Relationship: The type of relationship depends upon how the worker and business perceive their interaction with one another. The fact that this is a single, hours-long job is probably the strongest evidence that the cashier is a contractor. Further, the cashier's job is not a key part of the business, as it is only a minor portion of an event that the company has never performed before and has no apparent intention of repeating. I assume that the company is not providing health benefits, sick time, etc., and that any contract with the cashier includes no language suggestive of an employer-employee relationship. Conclusion: The employee-contractor distinction is pretty fact-intensive, but based on what you've provided, there seems to be a much stronger argument that the cashier would be a contractor. | If the employment contract treats base pay as an advance on future commissions when an employee has not earned the minimum number of units, then the company is probably entitled to repayment of advances not earned out. On the other hand, if it treats the base pay as a guaranteed minimum, the company would not be entitled to a refund. The specific wording of the contract will be vial here. There may also be state laws regulating such an arrangement. Under Nebraska Revised Statute 48-1230.01 commissions not earned when an employee leaves must be paid: on the next regular payday following the employer's receipt of payment for the goods or services from the customer from which the commission was generated. | I've litigated cases like these before. The IRS enforcement reaction is swift and severe. Penalties for the employer are heavy and rarely waived. It would be rare for a business like this to stay operational long enough to issue a W-2. A business like this would probably be shut down by the IRS and have the people responsible for the payroll function, at a minimum, promptly burdened with tax liens, within four to six months. These cases also constitute a significant share of all criminal tax prosecutions. The odds of someone doing this spending several years in federal prison is high. Generally speaking, if the wrongdoing is fully on the part of the employer without the collusion or knowledge of the employee, the IRS will not force the employee to double pay the taxes that should have been withheld by the employer in this situation. Instead, this IRS will try to recover the amounts that were withheld from the employees but not delivered to the IRS. It will seek to recover these amounts from the employer and also from other responsible persons in the organization (and from outsourced professionals) with the authority to pay the IRS who did not do so. There may be circumstances, if push comes to shove, where the IRS could collect from the employees in a case like this one (I've never had occasion to need to research that issue), but that would be the rare exception and not the rule, in practice. On the other hand, if the employer simply does not withhold taxes or prepare W-2s at all, and either 1099s people who should have been classified as employees (or files no information tax returns at all), the IRS will generally insist that the employee pay income taxes on the full amount owed and that they pay the employee part of payroll taxes. It will also pursue the employer for the employer's share of payroll taxes. The employer will also be jointly and severally liable for any taxes that should have been reported and subjected to withholding that are not paid by the employee (perhaps because the employee spent all the money). Sometimes cases like this are also criminally prosecuted, but it is less common to do so. | There are not enough facts to draw a conclusion First, it’s not clear that the document you signed amounts to a contract. For example, what consideration did the school give you in return for the permission you gave them? Providing you with an education doesn’t count - they were legally obliged to do that already. If it is a contract then whether and how it can be revoked would depend on the terms of that contract witch I’m guessing you don’t have a copy of. Notwithstanding, as a minor, you have the right to void the contract until a reasonable time after you turn 18. Even if it is now many years since that happened, it might be reasonable since you only just discovered the website. If it isn’t a contract, then it would be revocable at any time. Practicalities Make a fuss and they may take the photos down even if they are not obliged to. They presumably have plenty of photos of kids who aren’t you and aren’t complaining and if you make it so it’s easier to change the website than to deal with you, thy’ll change the website. I suspect their inertia is because they once paid a web developer to create the site, it has never since been updated, they don’t know how to do it, and they don’t want to have to pay someone to find out. Otherwise, why would they have photos of ex-students rather than current students? If so, an offer by you to cover the costs, might solve your problem. |
Are Steam account IDs (and telemetry data associated with Steam IDs) deemed personal data? A few friends and were having an argument on the following situation: People can sign up for Steam accounts for free, letting them purchase games and play games over their network. Users are able to create public profiles for their accounts, a nickname, real name, location, etc - but this is not essential (sometimes people put fake information, but a considerable number of people put legitimate information). Via OpenID, users are able to authenticate and identify themselves to various other websites. Some games, for example Dota 2 (published by Valve, who also run the Steam network) use publicly visible Steam IDs of players as unique identifiers within their games - in order to track information about their users, including reports, statistics, etc. Provided that a user consents, part of their data from matches they play in is exposed via an API. This includes stuff like what character you played, your performance in game, etc. This allows 3rd party websites to show you interesting statistics about the games you play. There is another API (also run by Valve) which allows users to download "replays" of the matches, so users can rewatch what happened. Within these replays are, regardless of what a user's consent status may be, users' uniquely identifiable Steam IDs. This allows 3rd parties to track users even if they've not opted into 3rd party sharing. My questions are: Is a Steam ID "personal data"? Is the sharing of data to a 3rd party by Valve without consent against the GDPR? If #2, How would I make a formal complaint about this. Answer mostly important for an EU user, but would be interested if there were US comparisons. | Since the Steam ID contains or may contain enough information for it to be possible to link your account to you as a physical person, it would definitely be considered "personal data" according to Article 4 of the GDPR. However, by agreeing to the DOTA2 terms of service, you have given consent for them to show your information to other players (or at least that is included in most terms of service I have read for other games. I have not read the one for DOTA2 specifically). Replays are an interesting corner case. If download of replays are only possible for other players or if the wording of the ToS says that you consent to displaying your user ID to anybody, that would mean that they would have covered their bases. As long as they comply with other parts of GDPR, like "the right to erasure" (Article 17) that is. If the API is accessible to anyone and not covered by the ToS you might have a case. If you only want to remove the traceability between you and the replays, you can always evoke Article 17 and delete your account. | Obtaining consent for cookies is not required by the GDPR at all. Instead it is covered by the e-privacy directive, which as a directive rather than a regulation, must be implements by specific legislation in each individual country. The exact requirements vary with the law of each country. An e-privacy regulation has been proposed, which would have scope similar to the GDPR, would replace the Directive, and would not require national implementing legislation. However it has not yet been adopted. Proposed versions have significantly different requirements than the current Directive. Nor does the GDPR require consent for advertising that does not involve the processing of personal information, unlike some other privacy laws such as the California CCPA. However, if the Google package sets cookies without consent that are not strictly necessary for operation of the web site, it might well fail compliance with some of those national laws implementing e-privacy. Also, even necessary cookies must be disclosed to the user, as I understand it, possibly only in general terms. Several national Data Protection agencies have said that cookie compliance is not a major priority, at least not until an e-privacy regulation is in place. But that does not mean that lack of compliance is legal. Unfortunately I see no way for a developer using the Google package to correct this issue within the package. One would either have to implement a different solution, or trust that Google will fix this before enforcement becomes a serious issue. However, the app developer could add a separate general cookie consent banner, and turn off all adds if consent is not given, I believe. | Yes, their waiver has no legal basis and is invalid under the GDPR. They should have hired a better lawyer. GDPR rights cannot be waived (mrllp.com). The last bit should have been: Therefore, in consideration of my participation in any project, I understand that retaining my name and email address, as described above, does not require my consent and that the right of erasure, as spelled out in the GDRP Article 17 (1) b does not apply. The legal basis for our lawful processing of this personal data is Article 6 (1) f ("processing is necessary for the purposes of the legitimate interests pursued by the controller"). I.e. there is nothing in the GDPR that compels GitLab to erase this information, but their waiver is bogus. Keeping track of individual contributions in a software projects is necessary for a number of reasons, including security (if somebody contributes code that jeopardizes security, you want to audit everything that person has contributed). | The data controller is obliged to use “all reasonable measures to verify the identity” of the person exercising their data subject rights (GDPR, Recital 64). That sentence has caused a lot of confusion: “all reasonable”: does this mean all measures the controller can be reasonably burdened with, or all measures that are necessary for identifying the data subject with reasonable certainty? “identity”: does that mean the identity of a natural person, or just a check that the person exercising their data subjects rights is identical with the data subject? So depending on how the company interprets this, there is a lot of leeway regarding which info may be requested from you. In general, being able to log in to the service should be all that is necessary (compare also Recital 57). Note that the company doesn't just have to satisfy your data subject rights, they also have to protect your data against unauthorized access. Giving an attacker access just because they control a particular email address might not be secure enough (but is in practice because the attacker could use a password-reset functionality to get the full credentials anyway). You do not lose your data subject rights if you used pseudonymous/fake data: the service may still contain other personal data regarding you, for example usage profiles. You are still a data subject. Pseudonyms can also be identifying data, e.g. Art 4(1) calls online handles out as a kind of personal data. However, this does lead to complications with companies that interpret identity verification as ensuring that the person making a request is a particular natural person. If the controller isn't sure about your identity, they can request additional information (Art 12(6)). If the data subject cannot be identified, the data subject rights do not apply (Art 11(2)). However, that describes a subtly different scenario: that the data held by the controller lacks identifying data. You do have a right to access and a right to rectification (correcting the data they hold about you). However, they require the exact same identity verification as the right to erasure. That you were underage at the time of account creation is likely irrelevant now, if the data in the account doesn't indicate your true age. Unless the subject matter of the online service makes an age restriction necessary, the relevant age limits are 13-16 years (Art 8 GDPR, subject to EU member state laws) or 13 years (COPPA, U.S.). If you believe you have provided all data that is reasonably necessary to verify your identity and your data subject rights are denied to you, you can issue a complaint with your local data protection authority. In Germany, each Bundesland has their own Datenschutzbeauftragte agency. Below, relevant GDPR excerpts used in this answer. “Erasure” is Art 17 but Art 12 covers modalities for exercise of data subject rights. Recitals are explanatory but not normative. Art 12(6): 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. Art 11(2): Where […] the controller is able to demonstrate that it is not in a position to identify the data subject, […] Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification. Recital 57: Identification 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 64: The controller should use all reasonable measures to verify the identity of a data subject who requests access, in particular in the context of online services and online identifiers. | According to my knowledge I am not allowed to share other people's full name nor phone number nor email address without their permission. That is not correct. According to GDPR Article 2: This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. This Regulation does not apply to the processing of personal data ... ... (c) by a natural person in the course of a purely personal or household activity; GDPR Recital 18 states in relevant part: (2) Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. Personal data that is not processed by "automated means", for example data which is transmitted verbally, by hand writing, or by manually sent email, is not covered by the GDPR. Data which is used by a natural person for "personal activities" is also not covered. Consulting one's personal lawyer might well be a personal activity unless it is a business matter. Even if such a transfer of data were in scope for the GDPR, consent of the data subject (DS) is not the only available lawful basis. GDPR article 6 permits any of several possible lawful bases to be used, particularly paragraph 1 point (f) which reads: (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Also possibly relevant is point (c) which reads: processing is necessary for compliance with a legal obligation to which the controller is subject; In short, providing one's personal lawyer with the names and addresses of relevant people in connection with a legal issue is not at all likely to be prohibited by the GDPR, nor to require the consent of the people whose names and contact info are provided. However, a comment by user PMF reads: The Data Protection laws are mostly for companies, not for individuals. This is an overstatement. The laws do apply to natural persons as DCs, although enforcement is largely targeted at businesses, particularly large, for-profit businesses. | The site would combine the data in novel ways, which is processing the data. Processing personal data which is publicly available is still processing personal data. You would have to take GDPR into account. That does not mean the processing is forbidden, but you need a legal basis for doing it. In many ways, having the informed consent is the easiest legal basis, but there are others. The data subject would have the right to demand information about the data you hold, and to demand the correction of wrong data. There is not necessarily a right to demand deletion, but if consent is withdrawn and you have no other basis for data processing, you have to delete. Note also that the consent basis would mean you have to actively contact the people whose consent you seek before the processing starts, and document how you do it. That makes pay-per-request models difficult. But consider that the news media can process some data about some people without the consent of the subjects of their activities. They just need to balance privacy and other legitimate interests all the time. | IP addresses are personal data. That means you need a legal basis to process them, but not necessarily consent from the user. That IP addresses should be treated as personal data in most contexts is clear, regardless of whether you can associate the IP address with a user ID. That you make such an association affirms that both the IP address and user ID are personal data in your context though. As the answers in the questions you linked indicate, there are alternative legal bases to consent. The GDPR offers a choice of six legal bases (Art 6(1) lit a–f). In most cases, you would instead rely on a “legitimate interest” for logging. But it's not enough to claim that you have a legitimate interest. You must have a clear purpose for which such logs would be necessary, and you would then have to weigh this legitimate interest against the interests, rights, and freedoms of the affected data subjects. If such logs are necessary for security and anti-abuse purposes, your legitimate interest test is likely to prevail. However, you must limit retention of the logged data and the included information to what is actually necessary. For example, keeping user IDs in there might not be necessary. If the association of IP addresses and user IDs is not necessary for a legitimate interest, then you would indeed need consent. Discussion on why IP addresses are personal data. You see many answers and opinions that IP addresses might not be personal data. Some of these are technically correct, but most are misinformed or outdated. I know only a single well-informed person that still disagrees. For everyone else such as the EU Commission, IP addresses are clearly personal data. Under the GDPR, personal data is any information that relates to an (indirectly) identifiable natural person. In the context of log files we can assume that the entries usually “relate” to a person, namely the person making the request. The exception would be requests triggered by automated systems. The more interesting question is whether the person to which the log entry relates is identifiable. While the GDPR does provide further guidance on the concept of identification in Recital 26, it does not provide clear unambiguous criteria. Thus, there is lots of debate about what that precisely means. One approach is to sidestep that debate and and notice that the GDPR's definition of personal data explicitly notes that a person might be identified “in particular by reference to an identifier such as a name, an identification number, location data, an online identifier” (Art 4(1)). Another but otherwise unrelated part of the GDPR mentions “internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags” as examples of online identifiers (Recital 30). We can also look more deeply into Recital 26 and see that “singling out” already counts as identification. We can use the IP address to single out one person's log entries from the set of log entries, so this could be interpreted as meaning that any stable user ID renders the data personal data – and an IP address is sufficiently stable in this context. Another part of Recital 26 says that we must consider “all the means reasonably likely to be used” for identification, even if this involves additional information from third parties. This phrasing is virtually identical to the GDPR's predecessor, the EU Data Protection Directive. On the basis of that DPD, the EU's top court (ECJ/CJEU) was asked to rule on the question whether dynamic IP addresses are personal data (the Breyer case, C‑582/14, judgement from 2016-10-19). It said yes. “It did not say yes”, some people will object. And they are technically correct. When someone rents an internet connection from an ISP, the ISP will have logs that connect the user's real-world identity to the IP address they were assigned at a time. You don't have access to the ISP's logs. But, if that user violated your rights (e.g. a cyberattack or copyright infringement), then you could (depending on civil vs criminal matters) report this to the appropriate authorities or to petition the court and they would have the right to order the ISP to disclose this information. The CJEU said that if this chain (you → authorities → ISP → user identity) is grounded in law, then the IP address would be identifiable. But whether there are suitable laws to compel the ISP to disclose this data would be up to national laws, and the CJEU doesn't concern itself with that. Spoiler: such laws are pretty common. To summarize typical objections: The IP address doesn't relate to a person: Can be a valid objection, but is not typically the case for user-facing web services. The Recital 30 argument is not valid because it's about profiling, not identification, and it only says that IP addresses may be used for profiling, not that they are always identifying: Technically correct, but I think that Recital 30 merely expresses the implied understanding that of course an IP address is an online identifier and permits identification by itself. “Singling out” does not apply because SOME_REASON: Indeed, this is an ill-defined term with no case law to guide us. However, regulators such as the EDPB and their predecessor WP29 routinely use “singling out” to mean being able to distinguish one person's data from other people's data. An IP address lets us do that. The Breyer judgement is not applicable because the defendant in that case was the German state, and the state has other legal means than ordinary website operators: Nothing in that case was specific to the website operator being a state or other authority. If the website operator can contact the appropriate authority and if they have the right to order the ISP to disclose the relevant data, then the IP address is identifiable. The CJEU didn't say “yes” in Breyer, it said “if”. So I'll take that as a “no”: The CJEU concerns itself with the interpretation of EU law, not with national laws. Specifically in the Breyer case, lower courts confirmed that German law has the necessary means. In other EU member states, further checks would be necessary but it would surprise me if there wouldn't be equivalent subpoena powers. If the ISP doesn't have the data, then the IP addresses are anonymous: Indeed, the CJEU scenario collapses if there is no additional data to be linked with the IP address. However: The CJEU used this scenario as an example to show that IP addresses can be identifiable. If that particular scenario fails, there could be other scenarios that still allow identification. The question of whether IP addresses are identifiable had of course been the subject of wider debate at the time. That the GDPR explicitly mentions IP addresses can be seen as a reaction to this debate. Thus, in a sense, the Breyer case is moot. It is still useful as an explanation of how broad “reasonably likely means” must be interpreted. | You are having difficulty understanding the GDPR because you have an improperly narrow idea of “identification”. In contrast, the GDPR uses an extremely broad definition. In Art 4(1), personal data is defined as any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person It is worth noting that your “auto-generated identifier” would quite clearly be “an identifier such as … an identification number” and/or “an online identifier”. It is also worth noting that indirect identification is still identification. Recital 26 explains the concept of identifiability in more detail: ³To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. ⁴To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. Key observations: Singling out a data subject already counts as identification, meaning that it isn't necessary to infer their real-world identity! The data subject is still identifiable if you can only identify them with additional data. The data subject is still identifiable if identification can be performed by others. The main limit to this concept is the “means reasonably likely to be used” criterion: as long as there is a reasonable scenario in which the data subject could be likely identified, they are identifiable. Identifiability does not depend on your current intentions or policies, only on objective factors. As an illustration of these points, consider the Breyer case (C-582/14). The pre-GDPR Data Protection Directive had an essentially equivalent concept of identification, except for the “singling out” factor. The CJEU was asked to decide whether this meant that IP addresses collected in a server log file of some website were personal data. Quite clearly, such IP addresses do not directly identify a person, unless you happen to be the data subject's ISP. But here the CJEU constructed a reasonably likely scenario that shows that IP addresses will typically be personal data even without the “singling out” criterion: in the event of cybercrime, the website operator would reasonably provide the IP addresses of visitors to the police for investigation, and they in turn would have the means to get a subpoena/court order to get the ISP to provide the information necessary for identification. What does this mean for your identifiers? These identifiers and any linked information relate to a particular user, the data subject. Thus, these identifiers and any linked information are personal data if the user is identifiable. Since these identifiers allow you to single out a particular data subject, i.e. allow you to distinguish one user from another, the users are identifiable within the meaning of Recital 26 GDPR. Additionally, identification is possible if it is performed by someone other than you – such as the user themselves. How does this mesh with data subject rights? You correctly point out the problem that when a user contacts you to exercise their data subject rights, you wouldn't be able to find their records. But Art 11 GDPR prepares for this: If your processing activities do not require identification, then you are not required to acquire or maintain additional information just for the purpose of complying with data subject requests (this encourages data minimization). If you can demonstrate that you are unable to fulfill a data subject request because you can't identify the data subject, then the data subject rights in Art 15 to 20 do not apply. These are the rights to access, rectification, erasure, restriction, and data portability. Unaffected are the right to information, the right to object, and rights related to profiling. However, you still have to comply if the data subject provides additional information enabling their identification. You have intuitively grasped the correct solution: you can provide a feature where the user can see their automatically generated user identifier. Then, they can provide this ID to you when invoking their data subject rights. A note on privacy-preserving analytics. When it comes to analytics, the GDPR and ePrivacy issues must be looked at separately. From a GDPR perspective, any client IDs or other identifiers are likely to be personal data, regardless of how they are stored or created. But the GDPR does not necessarily require that the user gives consent to such analytics – a legitimate interest (opt out) solution might also work. The ePrivacy Directive does not care about whether such IDs or fingerprints are personal data, only about how they are created and stored. Any access or storage to information on the end user's device is only permissible with consent, unless the access or storage is strictly necessary for a service explicitly requested by the user. Analytics are not strictly necessary from the user's perspective. Thus, while cookies or LocalStorage can be freely used to store user preferences on a site, accessing/storing cookies for analytics purposes, or accessing information for fingerprinting purposes through JavaScript APIs, is only permissible with consent. Compare also the WP29 opinion 9/2014 on fingerprinting (PDF). This leads me to conclude that many so-called GDPR-compliant or cookie-less analytics fail to meet ePrivacy obligations if they include a client-side component such as the typical JavaScript tag without asking for consent, but that they might be OK if they rely on purely server-side data collection. Regardless of how user IDs or fingerprints would be created, those IDs and any linked data would still be personal data though, so that GDPR would still apply. A hash of an identifier is still an identifier and therefore personal data, and at the very least still enables indirect identification. (WhatsApp attempted a “lossy hashing” argument while appealing its fine, but didn't convince many supervisory authorities.) |
Have I not understood what "Uber" is? I just watched a random video where an Uber driver is stopped by the cops, and the cops eventually mention that "there's a lot of history on this vehicle", and mention that it makes sense that there is "history" on the vehicle because he is an Uber driver. The driver then seems to imply that he's just driving the vehicle and that it isn't his. But isn't the whole point of "Uber" that it's like "peer-to-peer taxi"? Isn't an Uber driver just some guy who has registered as a driver on an "app" and then he drives people from point A to point B, just like a traditional taxi, using his own car? If it isn't his car, then whose is it? If you need context, this is the video: https://www.youtube.com/watch?v=-UQKkYWDUQ4 (The relevant part is a few minutes in, maybe 4:30.) | No, you have not misunderstood what "Uber" is. Uber allows private individuals to function as a private car service (much like a Taxi but not as regulated). Individuals must provide their own vehicles, or Uber partners with certain car rental companies to offer discounts to Uber drivers for using rented cars. The video you posted, the individual was told that the officers wanted to run a dog around the car because the driver was refusing a voluntary search. The driver's concern was that if they found something, that they would arrest the driver saying that whatever they found was his. He was trying to say "if you find something, you'll say I'm driving, it's my car, it's my contraband". This is a legitimate concern because police often hold the driver responsible for what they find on the passenger, or if the passenger were to stuff drugs (or whatever) in a place accessible to the driver, the driver could be charged. He is not implying that it isn't "his car", he's trying to reason with the officers saying that if they do find something, they shouldn't attribute that to him automatically. | A law has to be "broad" to include a lot of possible crimes and intent of criminals and account for the good faith of non-criminals. "Intentionally access without authorization/exceed" is actually fairly specific; "intent" is the keyword. Someone making a mistake may have intent to login, but no intent to commit a crime. Someone confused by "different pages of demo and live accounts" can easily defend their actions by pointing out that they were confused. It's up to the reasonableness of the pertinent law enforcement and prosecutors to take into account the evidence that reasonable mistakes were made by little old ladies and not charge them with a crime. And for the most part, 98% of the time, law enforcement and prosecutors are reasonable. | There are limits to what you are allowed to modify on your car. Federal safety regulations require certain features to be installed by the manufacturer, and to be maintained by the owner in a state that they remain functional. Besides obvious things like brakes, you need working headlights, turn signals, bumpers, wipers, etc. Heated seats is an option. A luxury convenience feature. Most cars don't have heated seats. If you had heated seats, but left them off or the switch broke and they weren't working, there would be no reason for the State Patrol to care one bit that your rump was a bit chilly. So, the state doesn't care enough make it illegal to have heated seats or not. It is entirely your choice. The question then becomes, does the state have any reason to care whether you have a manual switch to turn them on or off, or use a special software code to enable the feature? Logic dictates that if they don't care whether or not you have the feature, and don't care if you are using it or not, they would have not reason to care about the particular method you use to turn it on or off... Therefore the only real question is does BMW care? They might, if you came up with a method of enabling heat without a subscription and it became known to them. Especially if you made money publishing a how-to guide that cost them potential revenue. But that would be a civil, rather than a criminal matter. To me this action would be equivalent to buying a burger at a place that charges $.25 for a packet of ketchup, and instead using your own ketchup. It's your burger, and your ketchup, do what you want! ADDENDUM: Based on discussion on the other answer, as well as a suggestion in comments, I would like to briefly address (my opinion) on the applicability of the Digital Millenium Copyright Act (DCMA) of 1998. I actually just looked up this act, and have only a layman's understanding of copyright law, but there is a basic element that needs to be met for a violation to occur: The copyrighted material must be reproduced, altered, repurposed, and distributed in some manner. Private avoidance or selective non-use of a digital feature would not seem to rise to that level. I touched on this above when I alluded to publishing a written hack. It would probably also apply if you offered code that would bypass a feature, or to a car tuner offering to enable the feature for a fee. If there is a commercial benefit, there is a potential "victim", and a copyright issue. However, even code is questionable... There are many examples of companies offering aftermarket Engine Control Module code to enhance performance or improve gas mileage. Of course a manufacturer could always challenge a commercial competitor, but lawsuits cause money and create publicity - positive and negative. About the only "free" enforcement tool a manufacturer has is to not honor the warranty on any owner altered parts. Of note is the fact that seat heating elements are not digital, copyrighted, or otherwise protected work. The digital intellectual property that MIGHT potentially be at the center of a copyright controversy is the function of the pay system and the processing of an access code that unlocks a relay. What that relay sends electrical current to is really immaterial. It could be your stereo, it could be the airbag... One person snipping and splicing wire to avoid the IP "brain" and install a simple on/off switch or rheostat for personal use of seat heat should not be violation of any digital copyright law. | In Spain, most traffic offenses are usually considered administrative sanctions and involve just a relatively small fine, and perhaps losing some points in your licence. In those cases, if the driver if the vehicle cannot be established (your example, or a far regular one of a parking violation in which the officer did not see who did park it and will not wait by the side of the parker until the driver appears), the fine just goes to the registered owner. When the fine is reported to the registered owner of the vehicle, he can report who was the actual driver who broke the law at the time of the offense. I do not know what would happen if the person named does not recognize his responsability, but my guess is that the owner has to pay the fine (HINT: do not lend your car to someone who cannot be trusted). If the infraction is so excessive that it becomes a matter of penal law then there must be a trial and then the accused must be established without reasonable doubt, so in that case such a stunt maybe could work. | Yes, they are. A business can decide not to do business with someone for pretty much any reason. The obvious prohibited reason is due to your race. But I don't see how eBay would even know your race. Some State laws might protect you, but I don't think there's any that applies in this case. For example, California might give you a means of appeal if someone stole your identity and they performed those transactions, not you. But I don't know of any Federal or State law that would change the very, very basic principle of law that a property owner gets to decide who can and cannot access their property. eBay owns eBay. One key benefit of ownership is precisely that you can make decisions that other people consider to be unfair, discriminatory (other than the specifically prohibited categories) and draconian. Other people don't have to agree with your decisions for them to be lawful. | You should file a complaint with the police. If you complain to the police then they might do something. If you don't complain then they certainly won't. Are food trucks licensed? You might try complaining to the license authority. However go to the police first because the licence authority are unlikely to do anything without a police complaint. Even being just another statistic helps increase the pressure for action on the wider issue of racism in society. If all else fails you can just post the incident on YouTube and see what happens. Its an unreliable method of enforcement and can backfire, but it has been known for international embarrassment to kick reluctant authorities into action. | What is the correct way to handle this situation? Strictly speaking, each driver exceeding the speed limit is in violation of the traffic sign even if everybody else also infringes it. Thus it is completely valid for the police to pull & fine anyone from among those drivers. Statutes like the one you mention are intended for scenarios where a driver departs significantly --and for no apparent [lawful] reason-- from the speed limit, such as driving at 20 mph in a 55 mph zone. Typically a driver would not get pulled over in the scenario you mention (driving at 62 mph where everybody else drives at 65 mph). The exception would be some police department(s) requiring its cops to meet a quota of fines per week, but that would be quite a questionable practice having nothing to do with the legislative intent. Speed limits are supposed to represent normal and reasonable movement of traffic. If informed consensus is that a particular speed limit is inconsistent with that principle (for instance, where limit is artificially low and raising it would not compromise safety), then a request could be submitted to the Oregon Department of Transportation. | if the child exchange time and locations are fixed, and the husband can no longer legally drive, does this effectively nullify his visitation rights? No. He can get a ride from someone or get an Uber or Lyft or Taxi or take a bus. The drop off location is near her house, not his, and even if public transportation were an option he would not be the type to use it. He's more the type that would ignore the suspension of his license and go pick up the kids in his car anyway. He is also the kind to try to attempt to manipulate the wife into doing what he wants regardless of what a court order says. Emotional abuse and manipulation were a big part of his game, but fortunately she has gotten much better at ignoring it. What he is inclined to do and why have nothing to do with whether or not it is legal. If he has his license revoked and attempts to pick up the children as always, are there any potential legal repercussions for her if she allows him to pick up the kids? Practically speaking, no, particularly in light of a court order to transfer custody. Theoretically, it is remotely possible, even though it is very unlikely. In theory, she could be held liable for negligent child neglect by allowing this to happen, particularly if the children were then harmed in an automobile accident. If he was visibly drunk or intoxicated at the time of the transfer, however, her risk of criminal liability would be considerable. Would there be any potential legal repercussions for her if she refuses to allow him to pick up the children himself with a suspended license/registration? Potentially, she could be held in contempt of court for refusing to follow a court order. Her better course would be to call the police when he arrived to report that he is driving with suspended license, to not transfer the children and wait until they arrive (seeking cover inside a home and advising the 911 operator again if the situation starts to escalate into a potentially violent situation), and to explain to the police that he is also attempting to endanger the children by trying to drive with them on a suspended license. There is a good chance that he would be arrested and that the police would leave her with the children. The police might, rather than arresting him, drive him home with the kids and tell him not to drive and cite him for driving with a suspended license. Then, she should make an emergency motion to the court, regardless of how it is resolved by the police, seeking permission to formally give her a right to refuse to transfer if he arrives unaccompanied with a suspended license. If he attempts to convince her to drop the kids off somewhere else (presumably at his house) due to the suspension of his license, are there any potential legal repercussions for her if she refuses? Probably not. This time he's not following the court order, not her. It would still be advisable for her to file an emergency motion with the court explaining the situation. |
Is it legal to instruct an employee not to put contract concerns in writing? TL;DR My COO sent me a contract that would amend an existing employment term (salary). I raised concerns regarding the terms of the contact. COO explicitly told me you don't need to put it in writing. With respect to New York State / New York City employment or contact law, is it strictly legal to suggest or instruct employees not to put contract concerns in writing? Background Yesterday my CEO announced via email that they made the decision to cut salaries. My COO responded to that email to everyone individually asking them to sign an attached document by EOD the following day. The attached document was a contract that would reduce my salary by 20% with no other changes to other existing employment terms (e.g. my employment contract). The next day the COO and I had a call discussing the email and attached document. In that call I expressed concerns regarding the terms of the contract. When the COO expressed that they would bring it up w/ the CEO I said that I'd put my concerns in writing. In response to that the COO said you don't need to put it in writing. Obviously this is a red flag. At best the COO suggested to not document the concern. AT worst it was an implied instruction to not document the concern. Additionally, I was explicitly raising concerns over the terms of a proposed contract that would change my existing employment contract. Errata I'm employed in New York City. So New York City, New York State, and United States law would apply here. My employment is not unionized Question With respect to United States / New York State / New York City employment or contract law, is it strictly legal to suggest employees not to put contract concerns in writing? Answers/Responses to comments (Creating this ahead of time in case there is any more explanations or details required) Put it in writing (I'm answering this pre-emptively) Immediately after the call I did put my concerns in writing. | 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. | Can I legally put pressure on the company to get a compensation? (e.g. write an article explaining what they did) Writing an article about being fired doesn't have anything to do with the fact that writing that article is legal or not. Sure, you can write an article - or likely an opinion piece - about being fired for what you say are unjust reasons and hope it results in pressure on your old company. This happens all the time in the press; that's what Op-ed and opinion pieces - and also "objective" journalism - do every day. A big corporation isn't going to care about some bad PR from a disgruntled freelancer. Bad PR is not legal pressure. So consider the answer to your last question Can I be sued for warning of a potential crowdfunding scam? which is an outline of defamation law. If you're not very careful (and the publication's editor, if there is one and if they are not well-versed in defamation law), you will defame someone at the company (publish provably false facts) in your article and they (and/or the compnay) can take action against you. And self-publishing a piece has even greater risks of defamation, because it's likely you don't know the boundaries of defamation. Defamation is complex (especially in an international context) and turns on many details of the facts, how they were published, and more. But: how much money do you have to defend yourself against a libel suit? Another point to consider is this: even if you don't clearly libel someone at the company, the company can still take action against you. They can retaliate against bad PR with a lawsuit. You say they have lawyers and can afford it, and you're alone. Can you afford to defend yourself? Is it worth suing them (they're US-based), considering the cost or the legal action would not come cheap (I guess)? As a side note I am based in Europe (I avoid putting the country here, as a means to protect my privacy) That's entirely up to you. No one here will advise you about that. Only you can make that decision, or your lawyer can advise you on that. Talk to an attorney who might take on such an action, and one involving international jurisdictions (a US state and the unnamed European - possibly EU - country). Aside from potential libel, the other important aspect is to determine what legally can be done internationally in terms of defamation, both with any potential action you take and what actions the company can take against you. That will be determined by different laws and international agreements between the US (and possibly the state) and the unnamed (possibly EU) European country. The minor aspect of your dispute is your termination and the employment contract: The company engaging with the contractor has the right to terminate the agreement after several warnings have been issues.... However, no FORMAL warning has ever been issued. That's legally vague enough to allow the company to fire you at any time. (Update from comments: Virginia is a "Right to Work" state which means that the employer may fire the employee for any reason without cause unless the employee is being fired for being a member of a protected class, i.e.race, religion, sex, etc.) Again, international jurisdictions come into play concerning labor laws. Can you find a lawyer who will take on an international labor dispute? | Does it matter whether employer is company or individual? No. Must certain amount of notice be given? Yes - the notice period maybe specified in the contract but even if it isn't there are statutory notice periods that apply depending on length of employment etc. So if the following criteria are met they are legally classed as an employee they have worked for the employer for at least a month Then certain minimums apply: If they have worked for the employer for: 1 month to 2 years – statutory notice is 1 week 2 to 12 years – statutory notice is 1 week for each full year they have worked 12 years or more – statutory notice is 12 weeks A notice period in the contract (i.e. "contractual notice") can exceed the statutory minimums but it can't reduce them. What other requirements are there that must be followed? This is pretty broad and I don't really want to reproduce everything here but the ACAS page on dismissals covers the basics. Can notice be dispensed if the task is of an urgent nature and employee must be replaced as a matter of urgency? Dismissal without notice is possible in cases of Gross Misconduct but that is about what the employee has done - nothing to do with the urgency of replacing them. However, if both parties agree a notice period can end early: The employee can ask if they can leave before their notice period ends. They should get agreement from their employer in writing. If the employee does not get agreement to leave early they could be in breach of contract. If the employee leaves early, the employer only has to pay them for the time that they’ve worked. If an employer wants them gone immediately they can do that if it's either in the contract but they still have to pay them for the notice period. They can also offer payment in lieu of notice if it's not in the contract but it's then up to the employee if they agree. | With respect to the first question, discussing an idea in a non-encrypted email is not a publication that forfeits the right to patent an idea, even though it is not 100% secure. In the same way, talking about an idea for a patent with your patent lawyer in a secluded booth of a coffee shop in person does not constitute publication of the idea for this purpose, even if someone is secretly spying on you at the time. Since I am at the moment employed by a company, even though the idea originates from myself, it seems that I should quit my job first not to have my current company have any claim over my idea. It is possible that the contract makes even ideas that you come up with yourself while employed by the company the property of the company. If so, you are legally in the wrong and the idea belongs to the company. But, proving the reality that you are stealing the idea from the company is harder if there is nothing in writing. An email discussing an idea while you are employed would have to be disclosed in litigation with your employer over whether the patent applied for belongs to you or to your employer under an employment agreement. If you didn't put it in an email, it wouldn't exist to turn over in litigation. | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | could they make a realistic claim that I had voluntarily terminated my contract before the year was over? The employer's act would forfeit its entitlement to reimbursement of bonus. The clause clearly indicates that the triggering event is termination, not the anticipatory notification thereof. Furthermore, the employer's act would be a breach of the [contract law] covenant of good faith and fair dealing. That would be in stark contrast with your compliance with, and/or kindness in, giving a two-week notice. The employer's termination of your employment seems improper in equity insofar as it was aware of your notice and thus took advantage thereof. | Yes, your clause specifically limits you to only working for COMPANY, even in your off time. Canada does not have a law protecting your right to work secondary jobs (moonlighting) in your off-duty hours. This means that any contract clause specifically limiting you to work with the employer only is valid, and breaking it is cause for justified dismissal. Based on this, do I need to ask for explicit permission to work on such projects? Yes, you will need to disclose any potential "business or occupation whatsoever". You could play contract games by saying "it's only a hobby" or "it doesn't make any money", but you will be opening yourself up to issues. The best thing to do is to disclose your project to your employer and get in writing their permission to work on it with specific terms that you will not be using company time or resources in any way. See: Patterson V. Bank of Nova Scotia | 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). |
Is It Illegal To Test A Website For Exploits Regarding My Personal Info? American here. I'm not a hacker or anything, just a normal computer science student. Anyways, I believe that my university has left an exploit open through their hub where anyone can use the modular apps to gain access to your: Last 4 digits Of SSN, University ID, and possibly your password. If I were to test the exploit by only using the public interface they provide, on myself, would this be considered illegal? I would need to use a selenium script to automate attempts on finding the last 4 digits of the SSN - because it appears the database doesn't have a limit on how many attempts you can make. Of course I would be trying to gain access to my own data, not anyone elses. Oh and of course I would tell the Uni that this was a problem. I just didn't want to message them for nonsense. | In a narrow sense, since you are a student at the U, you are bound by a contract you signed when you registered for classes. Read it, and you'll probably find a clause or two that states that you are not allowed to abuse, script, attempt logins or otherwise use the computer systems in any way other than typical, day to day use. The U's recourse is to kick you out and possibly take you to civil court to recover damages, and possibly refer you to the local county attorney for criminal charges, depending on the existence of criminal statutes for computer access in your jurisdiction. In a broad sense, pentesting can be either a civil infraction or a crime, depending on the terms of service for the system you are trying to exploit, what exactly you do, the jurisdiction, etc. See State Computer Crime Statutes and Federal Computer Fraud and Abuse Act - Wikipedia. See also LE answer When is a permission required to attack a system? | You can't own a database; you might, however, own (have) the copyright to a database if you created it or the creator transferred that right to you. You can also possess a copy of a database: the question is whether it is legal. "Leaked" implies that it is taken without permission, so you might be in violation of copyright law by possessing a copy. The only databases that would escape copyright protection would be those US government works, things put in the public domain, and things publically licensed to allow copying. Plus, any database whose content fails to exhibit a modicum of creativity (Feist). A database might be inherently illegal (at least in your hands), so it would depend on what the content is. The first thing that comes to mind is a database from a child-porn website, which contains numerous illegal images: see section 110 of Title 18. "Leaked" information might involve violation of 18 USC 1030 (Computer Fraud and Abuse Act), which prohibits unauthorized hacking. It does not directly prohibit being in possession of a hacked database: but you might still be prosecuted as an accessory after the fact. (That is one of those ad libitum areas of the law where there's no way to know for sure what is and is not "okay"). If they do prosecute you, you might rely on Bartnicki v. Vopper, 532 U.S. 514, where because it was a matter of "public interest", propagation of illegally obtained material was held to be protected by the First Amendment. Also there is the case of the Pentagon Papers. At the federal level, there are no controls over storing credit card information so if you get a copy of the Target or Home Depot hacked database, there's no federal law against that (if we discount "accessory after the fact"), but there are circumstances in Minnesota where retaining such information could be illegal. | It seems like some law must have been breached during the sharing of this information? Possibly, even probably. The scrutiny of your personal account in order to glean personal data (your IP address) and then using that personal data to match accounts may contravene Recital 50 of the GDPR: The processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. If the website terms which you agreed to don't include this data matching, then that processing is not lawful. The rest of Recital 50 is relevant and worth quoting in full: If the 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, Union or Member State law may determine and specify the tasks and purposes for which the further processing should be regarded as compatible and lawful. Further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be considered to be compatible lawful processing operations. The legal basis provided by Union or Member State law for the processing of personal data may also provide a legal basis for further processing. In order to ascertain whether a purpose of further processing is compatible with the purpose for which the personal data are initially collected, the controller, after having met all the requirements for the lawfulness of the original processing, should take into account, inter alia: any link between those purposes and the purposes of the intended further processing; the context in which the personal data have been collected, in particular the reasonable expectations of data subjects based on their relationship with the controller as to their further use; the nature of the personal data; the consequences of the intended further processing for data subjects; and the existence of appropriate safeguards in both the original and intended further processing operations. It seems to me that an anonymous account could reasonably expect that the "further processing" of data matching is not in the public interest, an exercise of official authority, scientific or historical research or statistical. There is no link between the data matching exercise and the purpose for which IP addresses are normally collected: the operation and physical security of the website. Now, it may well be that the website terms do allow this data matching to discover links between accounts, or in any case prohibit having two accounts and allow reasonable methods to discover such links. It's also possible that a court has ordered the processing (as Iñaki Viggers has mentioned. We don't have that information; but ostensibly one wouldn't normally expect a personal account to be examined in this way, and certainly wouldn't expect any link discovered to be relayed to a third party. | TL;DR In theory there's nothing wrong with your method, it's just a way to authenticate the user, and without authentication a user has no right to request anything anyway. But in practice it looks like your method doesn't have a way to deal with situations where users lose or forget their authentication data and want to be able to recover their account. Failing to deal with that in a modern system might be considered an unacceptable bad practice and so be against the GDPR principles of security and privacy by design. EXTENDED VERSION I might be wrong or not understand the question correctly, but I don't see how this is different from many other common cases where encryption is not involved. Think about it, you aren't able to give the user their own personal data unless they provide the ID and encryption keys. How is this significantly different from the fact you aren't able to (or rather you should not) show a user their own data unless they provide their own username and password, or they convincingly authenticate themselves in any way? Just like you can't ask Facebook to show you all the data collected about Donald Trump only by claiming you are Donald Trump, you can't be required to give a user their own data unless they provide the encryption key. It can be seen as your way to authenticate users (among other things). Edited: multiple IDs/keys I didn't understand your method involved multiple IDs and keys. In theory, the situation is still the same, only with multiple pieces of data for authentication, like the user had to remember multiple usernames and passwords. Failing to provide all IDs and all keys will result in a partial authentication. But with such an approach a potential problem becomes more evident: your authentication scheme might be against the GDPR principles of "security and privacy by design and by default". Basically, your methods might be considered bad practice because they fail to deal with the common issue of lost or forgotten passwords. If a user tells you they have lost a USB drive containing all their IDs and keys and they don't have them anymore, what do you do? You can't delete their data because you aren't able to know what their data is, without another way of authenticating. And their data is now at risk, because somebody else might have their IDs and keys. If you had an email address associated with all the user's IDs and data, then you might be able to confirm their identity (for example sending an email with a link) and delete all their data. As you see, things can get pretty complicated, it all depends on the details of your implementation, and just adding or removing one detail might change the whole scenario. | You haven't suffered a legally cognizable harm because you got your money back, before you even had a chance to complain, so you have no basis for a lawsuit. For what it is worth, pretty much every adult in the United States was affected by the Equifax breach. Also, usually Equifax wouldn't have had access to full bank account numbers in the first place, so that is an unlikely source of the problem. You could open a new account and close the old one (as suggested by @mkennedy in the comments) because then if anyone had access to your bank account number and was abusing it, they could no longer do so. The fact that it only happened once rather than involving many transactions, which is what you commonly see when there is a true identity theft, however, suggests a more benign possibility. There is a pretty good chance that this errant transaction which was reversed was simply a clerical error involving an inaccurate typing in of an account number that got your number instead of the intended one and was reversed when the money didn't leave the intended account (in contrast, identity theft incidents are almost never reversed without a complaint from the account holder). In other words, this may have simply been the banking equivalent of dialing the wrong number by mistake. If this happens again, you should definitely shut down the account, but so far, it seems more likely that this was a one off clerical error. Humans are just not built to input scores of fifteen digit numbers on a daily basis in a 100% accurate fashion. As long as this job is in the hands of humans rather than computers or robots, the humans are going to make mistakes. | Yes (in most jurisdictions), but why should you? There might be some interests in publishing the 1,000 most common passwords, e.g. to support security awareness lectures (or to build rainbow tables for nefarious purposes), but anybody who wants to hash them with a specific algorithm can do so easily. It is probably easier to type the passwords from a printed book and to hash them on the computer than it is to type the hashed passwords -- bad passwords would tend to be easy to type. That being said, computer crime laws are generally lagging behind the state of the art, or they are overly broad, so it might be illegal in some places as a "hacking tool" ... | I can't find any law that would prevent an employer from requiring this. Under current Florida law, an employer can even demand passwords and access to an employee's social media accounts. A bill was proposed to prohibit this, but it hasn't passed. Generally, an employer can require anything they want as a condition of employment, as long as it is not illegal. Florida has at-will employment so the employer could certainly fire the employee if they don't comply. | There are two processes that go on all the time, and are generally considered legal: Encryption algorithms are attacked by cryptographers and weaknesses identified. In most cases this results in a gradual reduction of the work required to break the algorithm by a few orders of magnitude at a time. The history of SHA-1 is a good example of this. People identify security holes in software and follow responsible disclosure rules. This means that they notify the vendor and give them an opportunity to fix the bug before going public. Note that this is merely considered good practice; immediate publication would be legal too. Your scenario sits at the intersection of these two processes: an attack (process 1) which completely destroys the security of many systems (process 2). Responsible disclosure occupies a legal grey area: someone who finds a bug might have had to exploit it to at least some degree to demonstrate it, and there have been cases where vendors have used police or courts to retaliate. However this wouldn't apply to your scenario. In America the First Amendment makes it unconstitutional to use the legal system to stop people saying true things (copyright excepted, and untrue things are often legal too). If your Wunderkind lives in America then a widely published factual description of their solution would therefore be legal. Legal problems only start if they provide the details in secret to people they should reasonably suspect of intending to use them for crime. |
Are lawyers permitted to advise what the best decision is likely to be? I have engaged lawyers (who I have not dealt with before) to convey my property. New Zealand being "in lockdown" due to COVID19 has somewhat complicated the transaction. The advice I have received from my lawyers has been inconsistent due, I expect, to lack of case history and certainty. After their providing guidelines/suggestions I was a bit surprised that the lawyer stated "As lawyers we are not permitted to advise you what decision to make and it is up to you which risk you see as the 'best'" Is it legally correct that a lawyer is not permitted to provide advice on what decision to make (in New Zealand)? I'm just wondering if they have said this to 'cover their backs' and are dressing it up as a legal constraint? | There is a firm difference between giving advice on "what the best decision is likely to be" and "what decision to make". The former is what lawyers must do, which comes from: Conduct and Client Care Rules: Whatever legal services your lawyer is providing, he or she must— discuss with you your objectives and how they should best be achieved: give you clear information and advice: Lawyers and Conveyancers Act 2006: legal work includes— advice in relation to any legal or equitable rights or obligations: So, there is nothing in the law that requires lawyers to advise you on "what decision to make". Instead, they explain to you the range of possible decisions and what ramifications / implications / consequences they have. They won't make the choice for you — it's always yours. Is it legally correct that a lawyer is not permitted to provide advice on what decision to make It is not strictly true that a lawyer "is not permitted". Rather, they are not obliged to do so. And they have a damn good reason not to: there is a huge difference between being responsible for legal facts based on which you make decisions, and being responsible for decisions themselves. | Doctors are obliged to act in the best interest of their patients. If it would be in your best interest to see another doctor (due to the doctor being out of practice for that particular diagnosis), your current doctor would be obligated to tell you and refuse treatment. The physician‑patient relationship is fiduciary in nature and certain duties arise from that special relationship of trust and confidence. These include the duties of the doctor to act with utmost good faith and loyalty[.] MvInerney v. MacDonald Now, onto your question about the counselors assessment; probably not worth it's weight in salt. They likely have little to no training regarding diagnostic medicine and are by no means an expert. | I think the Washington law and order is fairly clear: you must stay home unless you are engaged in certain allowed activities. The underlying law, RCW 43.06.220(h) empowers issuing an order prohibiting "Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace". Therefore I can walk my dog. When I do, there are a lot of people also out walking their dogs, so that provides a letter-of-the-law permitted exception to the stay-at-home order. Nothing in the order specifically addresses the situation where you pause your dog-walk to talk to a neighbor (the "appropriate social distancing" sub-rule only applies to recreational departures from your home). It is well-established that the central legal issue is what the "compelling government interest" is, and whether these restrictions fail on grounds of narrow-tailoring or least-restrictiveness. The failure to include "go to your brother's place for lunch, provided you follow appropriate social distancing guidelines" as a permitted activity is a candidate for not being least-restrictive. The problem is that the courts will not engage in an infinite regress of second-guessings about whether certain measures are "truly necessary". There is a SCOTUS challenge where the Pennsylvania Supreme Court upheld that's state's order, but a SCOTUS order requires the state to reply to a petition by Monday. The "status quo" is that these orders are legal, until someone constructs a compelling argument that they are not, and that matter is then resolved in favor of petitioner by SCOTUS (which has not happened). So far, governors have prevailed at the state level. | Yes Deciding a case on a basis the parties have not raised is a denial of natural justice (or procedural fairness) and invalid. The reason is very simple, the parties have not had the opportunity to produce evidence or make submissions about C or D that might have changed the judge’s mind about them. Notwithstanding, to successfully appeal, the aggrieved party must show there were arguments that could have been raised which could reasonably have altered the outcome. That said, it’s the judge’s courtroom and they can say “That’s interesting but what about C and D?” and then the parties can make submissions about them. They do have to be circumspect and make sure that they do not become one party’s advocate - one party might be well aware of C and D and don’t want them brought up because they damage their case and they are hoping the other party misses that - and then the bloody judge come charging in with his bloody duty to wider interests of justice. Non-judicial decision makers like arbitrators, adjudicators and other tribunals need to be even more circumspect because they generally don’t have a duty to anyone but the parties. Unlike in civil law systems, the role of the judge is to decide the dispute between the parties as a referee, not to determine some objective”truth” as an investigator. To keep things simple: if the plaintiff contends that the light was red and the defendant contends the light was green then, assuming there is no evidence opening the possibility, it is not open to the judge to find that the light was amber. Similarly, if the parties agree that red means go and green means stop, it is not the judge's role to tell the parties they are wrong (I'm sure questions would be asked but if the parties are adamant ...): since there is no dispute over this issue the judge would be wrong to agitate one. Now, a judge is free to apply the law that was argued as a whole - if arguments centred on Section 14 of the Relevant Act 1875 but Section 15 is applicable and germane the judge is not wrong for applying Section 15. However, they are on shakier ground if the bring in Other Slightly Relevant Act 1956. | What's the use of contracts if you can't take a contract violator to court? A clear, thoughtful contract can be a deterrent to misconduct, and Australia is one of many jurisdictions where pro se litigation is allowed. Self-represented litigants certainly have to undergo a steep learning curve and are expected to comply with a code of conduct, procedural law, and so forth, but my point is that hiring a lawyer is not compulsory. Even if for some reason the defrauded party declines to sue the tortfeasor (thereby forfeiting the recovery of the losses), there is a societal obligation to alert others about the tortfeasor's misconduct. Making the contract available to others facilitates alerting them on objective grounds so they don't become the tortfeasor's next victim, and it simultaneously helps for setting the record straight that the damages/losses were not one's own fault. Without a contract, it would be more difficult for others get a sense of whether misconduct occurred at all. Or worst, halfway down the line, you don't have any money left to pay your lawyers, and they leave the case. Hence the importance to litigate in pro per from the start. It is easy for a person retaining a lawyer to postpone (be it due to family obligations, workload, and so forth) his learning of the law. But that postponement only makes the client more vulnerable to his lawyer's subsequent withdrawal when court proceedings are midway: the client would have the dilemma of either finding another lawyer to resume the case --predictably at a higher cost--, or cram the learning curve in trying to keep up with the proceedings. | As of present moment, under no circumstances. That said, the law may and probably will change around that. But the time has not come just yet. Trying to predict what the law will be is out of scope of this site. | 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. | There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files. And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity. |
Is revision history (audit/change log) compliant with GDPR's right to rectification? Assume, there's a model called CustomerDetails, which contains the following properties: ContactEmail - an email address for contacting purposes, ContactAddress - a postal address for contacting purposes, DefaultDeliveryAddress - default address for delivery when creating orders, DefaultInvoiceAddress - default address to be printed on invoice, when creating orders, and other properties. All entities in the system are by default audited, ie. they contain change log / revisions history. Any user can change own CustomerDetails data by himself/herself. If user changes that information via web-interface, then what is correct: there can be no trace of previous information: no revisions history for the CustomerDetails entity, or there must be a possibility to delete own revisions for user: extra user interface to view+delete revisions, or there is only obligation to delete revisions of CustomerDetails, if Right to erasure (‘right to be forgotten’) is exercised? | The GDPR does not mandate specific features, but that any processing is lawful and transparent etc. So what would be the purpose of storing a revision history? Once that is clear you can work out an appropriate legal basis (e.g. a legitimate interest) and then figure out which data subject rights apply. For example, let's assume that there is a security interest in keeping a revision history, so that (a) mistaken edits can be rolled back, and (b) the user can be notified of possibly unauthorized changes. This would be a legitimate interest primarily of the account holder, secondarily of you as the system operator. Of course, such security requirements have to be proportional, but I'd see that as given when there's a payment method on file. You are required to apply appropriate safety measures and to apply the data minimization principle. E.g. is it necessary to store this revision history for all eternity? No, one or two months will likely be sufficient. Who should have access to this data? If the purpose is to defend against unauthorized access, it could make sense to only give out this data on request, and otherwise only make it available to support and security staff. Now we can discuss how this interfaces with rectification or deletion. That the user is able to rectify their data themselves is very good. However, that doesn't imply a prohibition on keeping a revision history: the revision history indicates what data was stored at what point in time, and is by definition correct. This assumes that you are not using the revision history for any other purposes. When the legal basis is a legitimate interest, a request for erasure has to be preceded by (or implies) an objection (opt-out) to further processing. The objection must weighed against the legitimate interest: the objection can be denied when there are overriding grounds to continue processing. This might be the case for a security purpose: if someone with unauthorized access can just erase their traces, the purpose cannot be achieved. But perhaps the user could opt out when they create their account? Or opt-out later, but with some delay to still achieve the security purpose at the time of opt-out? In any case, erasure is required when the data is no longer necessary for its purpose – this ties back to picking an appropriate retention period, as discussed above. So it's not really possible to provide a general answer, and it really depends on the specific purpose you are trying to achieve. | You seem to have a solid understanding of the ePrivacy implications, but lack a fundamental insight: your organization does not have a right to achieve its mission or a right to disseminate unwanted marketing. But other people do have a right to not be subject to excessive marketing. Of course, reality is more complex, so it's probably not entirely impossible to do marketing. In your point 1, you note that some EU/EEA/UK countries distinguish ePrivacy protections between consumer and business subscribers. You can research the exact rules in the potential customer's country. This may allow you to email corporate/business accounts. I would strongly advise against messaging via Linkedin if there is a chance that the person is using that account for personal purposes like networking or hunting jobs, not just for conducting official company business. ePrivacy has markedly different rules for email marketing vs phone marketing. Whereas there are pretty strict rules for electronic messages and robocalls, manual cold calling can be OK from an ePrivacy perspective. However, many EU/EEA/UK countries have rules that go beyond ePrivacy, and may have a kind of do-not-call registry that you must respect. Of course manual calls take more effort than spamming emails, but recall the above point that you don't have a right to spam other people. Phone calls are probably the most appropriate approach when the company lists individuals' phone numbers on its website. This will at least give you a few seconds of attention with a real human, more than you can expect from an email that is likely to be caught by spam filters. Marketing via physical mail tends to have very lax rules. Note that every company/business that has a website will have to disclose its contact details including an address there, so this information is easy to acquire. However, chances are low that anyone would seriously engage with that marketing. You can consider alternatives to direct marketing, so that interested companies eventually come to you. Things like press releases, writing guest articles in industry publications, speaking at relevant conferences, working on search engine optimization, buying ads. On the GPDR aspects: GDPR and ePrivacy overlap, and it is necessary to comply with both sets of rules (GDPR likely applies here via Art 3(2)(a)). But where they potentially contradict each other, ePrivacy as the more specific law has precedence. For example, ePrivacy overrides the default GDPR legal basis rules when it comes to email marketing to existing customers (opt-out basis, no consent needed) or to using cookies (needs consent unless strictly necessary). Information that relates to corporations is not personal data, but information that relates to individual employees or to sole proprietors would typically be personal data. Since you are unlikely to obtain consent for using this data, you would need an alternative GDPR legal basis such as a "legitimate interest". Relying on a legitimate interest requires that you conduct a balancing test, weighing your interests like marketing against the recipient's interests, rights, and freedoms. Core question in this context is whether the data subject can reasonably expect their personal data to be used like this, taking into account the nature of their relationship with you. Since there is no pre-existing relationship, claims of a legitimate interest are weak to start with. However, it may be possible to argue that when a company makes employee contact details available via its website (not LinkedIn!) then relevant marketing can be reasonably expected. I would rather not rely on such arguments, though. | The status of any PII (Personally Identifiable Information) is the same in GDPR regardless of location, or who enters it. Its goals are (among others) to stop any actor (company / government or other) from hiding responsibility about their use and practices around people's data. GDPR does even apply to anything offline and on paper. Basically it means you have to validate any entry field is free of PII before processing it. Or make it clear in your privacy statement how you handle this use-case. | If you mean the Regulation of Investigatory Powers Act 2000 (aka RIPA), it doesn't provide for mandatory retention of communications data. Broadly speaking, RIPA is about interception as opposed to mass surveillance or retention just in case. The Data Retention (EC Directive) Regulations 2009 obliged "public communications providers" to retain what is commonly known as 'metadata', i.e. information about the communication - the originating phone number, the receiving phone number, the date, time and duration (if relevant), the type of call or message - not the content of the communication. See Schedule 1. In April 2014, in the case known as Digital Rights Ireland the Court of Justice of the European Union declared the EC Directive invalid. In response, the UK made the Data Retention and Investigatory Powers Act 2014 (DRIPA) - sunsetted on 31 December 2016. This provided for the Secretary of State to issue a data retention notice to a communications services provider (CSP), requiring it to retain the data types set out in the Schedule to the 2009 Regulations. DRIPA's Explanatory Notes support my claims above with a summary of the history. This was replaced by the Investigatory Powers Act 2016 (IPA), Part 4 of which deals with the retention of communications data. Here too the retention is of the metadata not the content (see s11(87) and the Explanatory Notes). | 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. | The GDPR does not provide specific rules about password resets. However, the GDPR contains a general obligation for the data controller to implement “appropriate technical and organisational measures” (TOMs), see Art 24 + 32 GDPR. What is appropriate depends on the “state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity”. A password reset functionality is complicated from a security perspective. On one hand, such functionality is really good because it ensures availability of the service for the user. On the other hand, such features can provide a backdoor to the service, undermining security goals such as confidentiality and integrity. These aspects must be balanced, and there is not necessarily one correct balance for every scenario. What the one-person IT department of a small company does can reasonably be different from what a multi-million user social network does. TOMs do not have to be purely technical – they can also include organisational aspects, for example training for customer service employees, and occasional checks to ensure that customer service staff doesn't abuse their access. But nevertheless, TOMs must be measured against the state of the art. Password reset by sending a time-limited one-time reset link with a cryptographically secure nonce to an email address is a state of the art method, assuming that no 2FA/MFA is involved. In some contexts, having customer service staff assign a new, random, one-time password could also be appropriate, for example if implementing a more secure workflow would be prohibitively expensive. Then, organizational measures would be more important. Failing to notify the account holder that someone requested a password reset is not state of the art, and represents a possible security risk. The data controller is required to defend against such risks! Resetting the password to a fixed default value is a very grave security risk, since it could aid unauthorized account takeover by a third party. It is unlikely that such a password reset approach could be GDPR-compliant. | Is there any sources of information where extraction of data from a closed source application and provided to a data subject is further defined? No, the GDPR is based on "general principles" and does not concern itself with implementation details for such matters. It's possible there's EU case law on this, but I can't find any. Am I within my rights to insist on this, even if to comply they would have to do some software development? Yes you can demand it, but they don't have to comply with your demand. The information only has to be provided in a "concise, intelligible and easily accessible form, using clear and plain language." and they only have to provide the information electronically where "reasonably practical" to do so, and they only have to take "reasonable steps" to do all this per Section 52 of the Data Protection Act 2018 which implements GDPR into UK law. You can complain to the Information Commissioner's Office, and they will decide if Section 52 has been complied with or not. 52 Form of provision of information etc (1) The controller must take reasonable steps to ensure that any information that is required by this Chapter to be provided to the data subject is provided in a concise, intelligible and easily accessible form, using clear and plain language. (2) Subject to subsection (3), the information may be provided in any form, including electronic form. (3) Where information is provided in response to a request by the data subject under [the Right of access by the data subject], the controller must provide the information in the same form as the request where it is practicable to do so. | 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. |
Coronavirus Lockdown Laws - New Zealand It is widely understood that New Zealand is in a "Level 4" lockdown due to the Coronavirus. While this is sensible and logical - can someone point me to the obvious f I am missing - how have these restrictions been made legal and enforceable? (Specifically how can I be stopped from opening my shop, or driving to the beach to walk, or meeting with my friends). The only information I've been able to find refers to the Emergency Powers Act 2002 - but I struggle to believe it allows for the sweeping suspension of many fundamental rights particularly as except where the act provides otherwise - according to section 6 - " Act does not limit, is not in substitution for, and does not affect the functions, duties, or powers of any person under the provisions of any enactment or any rule of law." - meanwhile the Bill of rights act 1990 specifically allows a raft of things not allowed under Level 4 - including peaceful assembly (section 14), freedom of association, freedom of movement, liberty of the person. | S88 Closing roads and public places: ...totally or partially prohibit or restrict public access, with or without vehicles, to any road or public place... S91(1)(a) Power to give directions: direct any person to stop any activity that may cause or substantially contribute to an emergency That is what "this Act otherwise provides"; S6 that you cited only works "unless": Unless this Act otherwise provides, this Act does not limit, is not in substitution for, and does not affect the functions, duties, or powers of any person under the provisions of any enactment or any rule of law. Also, from another angle, "functions, duties, or powers" are not the same thing as "rights": the Act does not limit the former (unless provides otherwise), but nowhere does it say it does not limit the latter. | I can think of three ways that your hypothetical bill could fail to become enforceable law. The Canadian Constitution contains unwritten constitutional principles. Among other things, in Reference Re Secession of Quebec [1998] 2 S.C.R. 217, the Supreme Court recognized that protection of minorities is an independent and fundamental part of the Constitution: Canadians have long recognized the existence and importance of unwritten constitutional principles in our system of government. [...] the preamble invites the courts to turn those principles into the premises of a constitutional argument that culminates in the filling of gaps in the express terms of the constitutional text. [...] the protection of minority rights is itself an independent principle underlying our constitutional order [...] The Supreme Court of Canada could rule such a law unconstitutional in order to protect minority rights. The Queen of Canada via her Governor General could decline to give such a bill royal assent, preventing it from becoming law. The Queen/Governor General can dissolve Parliament at any time to trigger an election. | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | Can a shopowner in Thailand ban someone from entering their shop on the grounds of their citizenship? The first tweet, explains the context properly: I’m at my local hospital this afternoon to get a medical certificate. My work permit expires soon and so I need to run around getting all the documents in order. At the hospital they wanted to check my passport before letting me in to see if I had been abroad recently. Thailand has been very popular with visitors for decades and if laws existed that discriminated against foreigners this would be commonly known. So in this case the 'discrimination' probably not because of citizenship, but more about a faulty assumption that the virus is spread by foreigners. This will have nothing to do with Thai law. The (tweet) OP quotes only another persons claim. The OP states in the first tweet that they checked his passport only to see if he was abroad recently. So he didn't share the same experience of the American. Based on that, this second hand source (that can't be verified) is probably unreliable. Due to the present (global) uncertainties, caused by the Coronavirus, one should look at the whole picture. 2020-02-04: Coronavirus: Chinese targeted as Italians panic - BBC News In Italy and elsewhere, panic is spreading much faster than the coronavirus itself. Chinese businesses are empty, shopkeepers are shutting down and Chinese nationals are being targeted. At a bar beside the Trevi fountain, a notice was put up banning customers from China. So the the situation described by the original (tweet) OP is understandable, but the quoted (but not varified) second hand source as well as the events in Italy are not. The incidents have prompted condemnation from the Italian authorities. Prime Minister Giuseppe Conte reprimanded the regional governors, telling them that they were not competent to make such a call and that nothing justified such fear. Discrimination, solely due to citizenship, would be against Human Rights prevention of discrimination. Special cases may exist for prices that are subsidized and thus only for residents. Dual pricing was common in the Czech Republic until 1999, when it was ruled illegal (but still persisted). Then a foreign resident had to supply proof of residency to avoid paying the higher price. 2007: Illegal practice of dual pricing persists in Czech Republic At the time we assumed that this was legal (it was certainly understandable), but it seems that was not the case. Are the "Human Rights prevention of discrimination" written down somewhere? Also, who enforce them? Universal Declaration of Human | United Nations Human Rights Enforcement Mechanisms of the United Nations | ESCR-Net European Convention on Human Rights - Wikipedia European Court of Human Rights How these international laws/conventions are implemented into national laws will differ from country to country. For Germany they are anchored into the constitution: Basic Law for the Federal Republic of Germany Article 25 Primacy of international law The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory. and are enforced by the Federal Constitutional Court (Bundesverfassungsgericht) and can be passed on to the European Court of Justice (or European Court of Human Rights) should the need arise. Thailand: Part of Section 30 of the Constitution of the Kingdom of Thailand 2007: Unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, disability, physical or health condition, personal status, economic or social standing, religious belief, education or constitutionally political view, shall not be permitted. | "Explanations relating to the Charter of Fundamental Rights" on the website you linked to is very clear that the Charter of Fundamental Rights only means the EU institutions can't discriminate based on age, and that EU law is not allowed to be age discriminatory. It doesn't mean that individual acts of age discrimination are illegal: In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. The practice of youth and senior discounts is older than the charter of fundamental rights. The charter will be interpreted in the light of continuity, it definitely wasn't the intention to outlaw price discrimination. There are specific laws that make price discrimination based on certain principles legal, e.g. UK equality act: Age discrimination - when discrimination is allowed in the provision of goods or services | The specifics are set at the provincial level. In British Columbia, consent is required for medical treatment except in certain circumstances like being incapable of consenting. However, the law also says that A health care provider must not provide health care under section 12 if the health care provider has reasonable grounds to believe that the person, while capable and after attaining 19 years of age, expressed an instruction or wish applicable to the circumstances to refuse consent to the health care. In some circumstances (i.e. as laid out in section 12), such a tattoo could trigger a "DNR" effect, but the "must not" provision has a narrower range of application, where it limits the exception to the consent requirement in the case of life saving emergency measures for an unconscious patient. More general advance directives can be given, but such a directive has more detailed requirements, and usually takes the form of filling out a printed form and including the signature of the individual and two witnesses. The aforementioned tattoo would not pass muster as a legal advance directive (even if the text were "don't transfuse me"). It might suffice under the "reasonable ground to infer consent refused" clause. | Let's look at the Ur-example of a free-speech law, and the most wide-ranging, the First Amendment to the Constitution of the United States of America. It says (my emphasis): Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This limitation applies only to the government. Indeed, it has been argued that this limitation only applies to the legislative branch of government and not to the executive (except when exercising legislatively delegated power) or judicial branches. Certainly, the courts have held that it is within their power to issue "gag" restraining orders. Notwithstanding, it imposes no restrictions on how non-government actors can limit your free speech. The owner of a shopping centre can require you not to evangelise, the owner of a stadium can require you not to use offensive language and the owner of a social media platform can restrict your speech in any way they wish. You have a right to talk - they have a right not to give you a platform. |
Do rights come with responsibilities? After some google research, many (1, 2, 3) points of view that suggest that rights come with responsibilities are related (bottom line) to "community" and/or "feelings". So, if you apply rules in school, condominium... although they tend to mirror the "Rights" that you have, they are more about local rules and the responsibilities related to those rules. So, since I'm not North American but I follow some of those discussions especially in the political context, I tend to favor the short straight answer some people would throw right in the beginning of the discussion: "There is nothing in the Bill saying 'Freedom of speech as long you behave responsibly'". So, in terms of law, how would that proceed? Is there implicit or explicit ways to relate Responsibilities to Rights? | In the US, rights are independent of "responsibilities". But, responsibilities is a very broad concept: some aspects of responsibility are encoded in law, others are not. You have an absolute legal obligation to not murder or steal, as defined by the law. Some people say you have a social responsibility to put others before your own interest: this may be legally true in certain contexts, especially fiduciary contexts where your broker is supposed to make decisions on your behalf that benefit you (regardless of personal effect on the broker). Contracts are another source of obligations – you gain a right (access to someone else's property) in exchange for something, which may include standards of behavior. You thus have a legal obligation on SE to not be hurtful in your postings (enforcement is via suspension, in the worst case). The rights spelled out in the Bill of Rights are about the government – it says what the government may not do, it isn't a source of permission for you to exercise your rights. Generally, the traditional US understanding of "rights" is that they are inherent in people and are not "granted" by the government, so the Bill of Rights is a codification of what that means. Therefore, (morally, intellectually) irresponsible speech is also protected. | 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. | Your distinction between civil rights and civil liberties does not enjoy support from the legal perspective. Typically, the law addresses rights, and "liberty" is invoked only in rhetorical flourishes (at least in the US legal context). "Right" is about the relationship between a person and actions. Liberty may be a consequence of certain rights. Government protection of rights typically takes the form of forbidding the government to do certain things (things that interfere with a person's right to do certain things). The right to due process protects your right to live your life free from government interference, except when certain conditions are present (as stated in a law). Due Process (as a procedural requirement on government action) is neither a right nor a liberty, it is a restriction addressed to government power. Its purpose is to protect the rights of individuals. | 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. | A US state's constitution cannot "put restrictions on" the Federal constitution, or any of the rights guaranteed by it, if by that is meant limiting the rights Federally guaranteed. The so called "Supremacy clause" of Article VI says: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (The above was more relevant before the question was edited to remove the 'put restrictions on" language. But it is still accurate and somewhat relevant.) Similarly, and because of the Supremacy clause, the content of a US State's constitution cannot change the interpretation of the federal constitution, in either state or federal courts, including the presence or absence of rights similar to those protected by the Federal Constitution. However, a number of state constitutions have guarantees which parallel the federal First Amendment, particularly its freedom of speech and freedom of religion aspects. This is particularly true of state constitutions written prior to the ratification of the Fourteenth Amendment. At that time, the Federal Bill of Rights only restricted the federal government, and so when similar restrictions were wanted against a state government, they had to be in the state constitutions. See Barron vs Baltimore for the limitation of the bill of rights to restricting the federal government at this time. Such provisions did not usually reference the Federal First Amendment explicitly, they simply had more or less similar language. Since the passage of the 14th, and the incorporation of the various provisions of the Federal bill of rights against the states (largely starting in the 1920s) most court cases have refereed to the Federal provision rather than any similar state provision, unless, as is sometimes the case, the state provision offers greater rights or wider scope than the federal one does. | Firstly, your "apartment" doesn't prohibit anything; Your tenancy contract does. A terminology nitpick, but one that can shed some light on what is actually happening. TLDR: Your right to bear arms isn't being infringed, its being traded away. An unreasonable trade may be invalidated by the courts. Firearms restrictions are far less likely to be voided than speech content limitations. Yes, you have the right to bear arms(whatever exact meaning of that is). You also have the right to voluntarily agree to a binding agreement limiting that right, in exchange for a consideration. Compare a Non-Disclosure Agreement (NDA). You have the right to freedom in your speech: you also have the right to agree to binding limits on your freedom of speech, in return for consideration (such as money or access to information). Every contract is structured in the same general way: Party A agrees to do or avoid doing certain things, in exchange for Party B agreeing to do or avoid doing certain things. So, in essence, what the apartment contract says is, that you agree to do or not do some things (including paying rent), in return for your landlord temporarily granting you some rights(such as the right to reside(generally exclusive), the right to control the space, etc. ), and imposing some obligations on themselves (which vary from place to place). In your case, one of the things that you are trading is a limitation on your right to bear arms(note that you can still bear arms, just not on the property in question). Now one thing to note is that courts have the power to enforce contracts; they also have the power to void contracts, in part or in full, if they are illegal or "unconscionable". In general, restricting (the content of) speech is not reasonable (e.g. having a general noise level restriction is reasonable), so is more likely to be struck down than one restricting firearms on the rented property. | Now after 4 years I still can't get it off my mind and it's consuming me thinking that I was fooled into believing that the rule of law was the norm in this country (not the jungle law) and the beautiful constitution we have is not there just to look pretty, but something we can rely on. So, at this point, do I need legal help? Or mental help or some kind of miracle pill to help me cope with the situation (?) I know that 6' under we can have peace, but can I live a peaceful (bully free) life here too? We do have rule of law as a powerful norm in this country. But, we also live in a very complex society and the exact content of the law will always be the subject of fierce dispute. The solution is, pretty much, to lower your expectations. The vast majority of the time the law works. Your beliefs about exactly how far you are allowed to disobey an order from a law enforcement officer as a matter of practical reality, were miscalibrated. But, you did get out of jail the next day and the punishment you received was very survivable. In much of the world, this wouldn't be true. The rule of law doesn't mean that everyone perfectly obeys the law. It means that when the law is seriously broken in a manner that has big consequences that there is usually a way to legally mitigate the harm or to obtain a remedy. Pushing the limits of the freedoms the law gives you is rarely wise. But, that is no reason to refuse to live your life. It is one thing to learn from experience. But, sometimes, you can overlearn from experience and need to recognize that your anecdotal experience on a single occasion is not all that there is the law. | Sometimes rights conflict with each other, and the courts decide which right takes priority. The Sixth Amendment provides that a defendant is entitled to "compulsory process for obtaining witnesses in his favor". The Fifth Amendment says "No person... shall be compelled in any criminal case to be a witness against himself". And the First Amendment gives the right to free speech, which includes the right to not be compelled to speak. If you're on trial and try to get someone else to confess on the stand, his Fifth Amendment right against self-incrimination trumps your Sixth Amendment right to have him testify. But if he couldn't take the fifth (for example, if he had already been acquitted), your Sixth Amendment right would override his First Amendment right to free speech. |
Executive Powers In The United States Recently, Trump placed a travel ‘ban’ on non-citizens of the US and people from some other countries without direct relations with citizens of the US from travelling to the US during the pandemic. All executive powers are explicitly stated in Article II of the United States Constitution no? If so, what part of Article II gives the president the ability to ban travel in any way, as no part of the Constitution even states the word “travel”. What executive powers for the president of the United States are implied? The president has the ability to make executive orders without congressional approval, and they take the same affect as a law. Where in Article II is there anything about executive orders? What implied powers are not stated in Article II of the US Constituion, but are also non-disputed over and why is this? | The President has the power under Article II of the U.S. Constitution to faithfully execute the laws enacted by Congress. Any power that the President has to regulate international travel of non-U.S. citizens arises from statutes enacted by Congress that give the President (or the executive branch more generally) that authority. Immigration laws, in practice, give very substantial discretionary authority to the President, and public health laws probably also do so. I don't have chapter and verse to cite to you regarding which specific statutes provide that authority, without considerably more research, but that is the general idea. The primary statute regulating immigration is the Immigration and Nationality Act of 1965 (and more generally, Title 8 of the United States Code). It is not uncommon in the United States for there to be disputes over how much discretion a President has under a particular statute in the United States, because unlike parliamentary systems of government, the execution of laws and the passage of law is split between different branches of the federal government in the Presidential system of the United States, rather than being fused with a Prime Minster who serves at the pleasure of the legislature. | In the US, Congress may pass an act, and this creates one kind of law (if it is promulgated: signed, ignored, or re-passed with a super-majority). Some of those acts direct the executive branch to do things, and pursuant to that act, a regulation is promulgated. Together with case law, the whole thing is "law". A bill (in the House, or the Senate) may result in an act being passed by both houses. It may go through a number of drafts between the point when it is first introduced and the time it becomes an act. | Article I, Section 3, Clause 6 says The Senate shall have the sole Power to try all Impeachments. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. Therefore, the House cannot try an impeachment. The wording of the Constitution does not say "The Senate must try any impeachment delivered by the House". The option to reject an impeachment by simple majority runs completely counter to Senate tradition. But analogous to deployment of the "nuclear option" to change Senate rules, it is a conceivable outcome. The first impeachment presented to the Senate was against a Senator, William Blount in 1797, and in that instance the Senate appears to have voted that Blount was not an impeachable officer (so they did not vote on impeachment, but they did vote to expel him). In Nixon v. US, SCOTUS ruled that Senate impeachment actions are not justiciable. While current Senate rules require a trial, the rules can be changed by the Senate by a majority vote, and SCOTUS will not review such actions. The Senate can also adjourn and not take up one or more articles, as happened in Andrew Johnson's case. | First of all, as noted in the comments, Babylon Bee is SATIRE. It's not intended to be news, just entertainment. But the real question is whether or not a President COULD do such a thing. Or perhaps better, could a President attempt to do something like this. If a President did attempt to do this, it would be totally without precedent and also without any constitutional authority. Since the US Constitution enumerates the powers between the branches and gives the President only the authority to appoint, with the advice of the Senate, a SCOTUS justice, trying to change things by giving an existing justice 2 votes would almost certainly be immediately challenged by the Senate. It also seems unlikely that such an action would be upheld as constitutional. Of course this is all speculative since nothing of this nature has happened. | 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). | Governments have power to do whatever their constitutions (written or unwritten) allow them to do. For example, the constitution of Australia provides: The federal Parliament can make laws only on certain matters. These include: ... post and telecommunications; ... The telecommunications power covers VPN and any software that uses the Internet for delivery or communication (i.e. virtually all modern software). In addition the federal government has power over inter-state and international trade (any software that crosses state or international borders) and corporations (any software made, sold or used by companies). If they want to ban a piece of software they have pretty strong constitutional power to do so. | Art. 1 Sec. 9(8) says two different things. The first says that "No Title of Nobility shall be granted by the United States". That means that the US cannot grant a title (hereditary or otherwise) like "Duke of Detroit", "Prince of Princeton". It does not prohibit the practice of speaking of POTUS as "His Highness, the President of the United States", likewise "His Elective Majesty" or "His Excellency", but early discussions in the Senate put paid to even calling a president this, and instead he is just called "Mr. President" (just as judges are called "your honor"). An appellation such as "Chief Justice" is not a title of nobility, it is a job description. We don't have titles of nobility granted by the government. There is a constitutional amendment, the Titles of Nobility Amendment, which was considered but not ratified, which is stricter on the anti-nobility statce. Then there is second thing, that prohibits officials from "accept[ing] of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state", without Congressional approval. Accordingly, the president, sec'y of state or a congressman cannot accept a gift, such as a car, from a foreign power, unless it is approved by Congress. Every congressional "exception" was approved by Congress; moreover, such benefits are not from a foreign power. The Speech or Debate Clause Art. I, Sec.6(1) in fact gives congressmen a privilege (immunity from arrest) which ordinary citizens do not have. So there is no connection between titles of nobility and free bean soup or whatever legal exemptions Congress may give itself. | Your gut feeling is reasonably close, but not precisely correct. The Constitution sets the baseline rules for the powers of and interactions among the branches of the federal government, as well as the powers of and interactions between the state and federal governments. With only one exception (the dilution of a state's representation in the Senate), the Constitution can be amended to basically anything. It can make anything legal and it can make anything illegal. It generally addresses fairly high-leval legal principles, but there's no reason that it couldn't be amended to include a 9,000-page law specifically addressing every conceivable aspect of the regulation of nuclear energy. As it stands now and as it always has, the Constitution permits the federal government to write laws only with respect to certain topics. The states, meanwhile, retain authority to write laws on virtually any other topic. There are a variety of legal and historical reasons why prohibition took the form of a constitutional amendment while drug laws are handled legislatively, but one important consideration is the scope of Congress's power to regulate "interstate commerce." At the time of prohibition, it was not clear that Congress could regulate commercial activity that took place entirely within a single state. So if you grew all the ingredients for your whiskey in Kentucky, and you distilled those ingredients in Kentucky, and then you sold your whiskey in Kentucky exclusively to residents of Kentucky, it seemed that your conduct was outside the reach of Congress, and that any attempt to regulate it would be vulnerable to a constitutional challenge. The solution, therefore, was to amend the constitution and give that authority to Congress. About a decade after prohibition ended, though, the Supreme Court decided that the power to regulate interstate commerce includes not just transactions that cross state lines, but also any conduct that “exerts a substantial economic effect on interstate commerce” Wickard v. Filburn, 317 U.S. 111, 125 (1942). This broadens the Commerce Clause authority to cover virtually any economic activity. So even if you buy marijuana seeds from your next door neighbor, plant them in your own back yard, grow them for strictly personal use in your own home, and never sell anything to anyone, the courts will hold that your conduct affects the interstate market for marijuana, and is therefore subject to federal regulation. This standard substantially lowers the bar for Congress to act without a constitutional amendment, which is a big part of the reason there hasn't been an amendment to address narcotic use. |
How many witnesses are required to a tenancy contract in England? We need to get a new AST rental contract between ourselves and existing tenants. Given the current rules on minimising contact and travel in the UK we'd like to minimise how many people are involved. Many contract templates have different witness requirements, what legally what is actually required? | There is no legal requirement for an Assured Shorthold Tenancy agreement in England and Wales to be witnessed. Signatories to the agreement are legally free to have it witnessed. Some people may prefer it to be witnessed. | You inspected the property online and based on that inspection you signed the lease. You have a legally binding contract. Now, it is not at all like the pictures How? I mean, are these pictures of a different house? If that is so then your contract is void for fraud. However, if the pictures are of the actual house and you just imagined from them that the house would be other than it is then tough luck for you. the stairwell in the house is a huge safety hazard for children OK. Does it comply with relevant building codes? If not then the landlord needs to bring it up to standard: you cannot walk away from the contract. Is it in need of repair? If so, the landlord needs to repair it: you cannot walk away from the contract. If it is compliant and in good repair and you think it is a hazard notwithstanding then you need to manage that hazard: this is not the landlords problem. I refused to move into the house That's fine: so long as you keep paying the rent there is no obligation on you to move in. If you stop paying the rent then it would appear that you have repudiated the contract and the landlord can sue you for damages - probably the costs of finding a new tenant and the rent up until that tenant takes over. | Inferring from the question, it appears that: The tenancy is an Assured Shorthold Tenancy. The tenancy agreement started on 16 December 2014. The initial fixed term was for 12 months. (Please comment below if any of this is incorrect). A Section 21 order gives notice that, unless the tenant leaves by the date given in the document, the landlord will begin legal proceedings against the tenant, in order to obtain a court order forcing the tenant to leave. To answer the OP's questions: Does it mean that she wants to use her right to cancel the contract after 2 months? It looks like that to me but I am not 100% sure. Yes - but if this is before the end of the fixed term (which I'm assuming is 15 December) there must be a clause in the tenancy agreement (normally called a "break clause") allowing the fixed term to be terminated early. If there is no break clause, then you cannot be asked to leave before the end of the fixed term. What does it mean "after 16/11/2015"? After can mean anything... even end of contract in December. Yes. The landlord would like you to leave before the date shown - but if you don't, the landlord can begin legal proceedings any time after that. Is this a legal document or just something she made up? It is a legal document. Section 21 of the Housing Act 1988 allows a landlord to ask a tenant to leave without having to give a reason. The landlord must meet certain conditions in order for the notice to be valid. What happens if I want to leave the house later because I don't find alternative? You'll need to discuss that with the landlord. However, if you don't leave by the end of the fixed term, you are entitled to stay (and pay rent!) until a court (not the landlord) orders your eviction. EDIT: This website goes into a lot more detail about the whole Section 21 procedure. | There are several questions in the OP. The answers to all of them depend on the lease terms. If Person A wants out of the lease, is the only option to just try to negotiate a way out of their portion of the lease with the landlord, presumably by payment or other means? Yes, usually. Regardless of who is on the lease, Person A is on the lease. In order to terminate or break the lease, Person A will have to negotiate termination. Most residential leases provide for joint and several liability for lease obligations. That means the co-signed lease is like three non-exclusive leases, one each between landlord and Persons A, B, and C. So Person A has to find a way to break the Person A lease. Other than a breach by either party, that likely can only be done by negotiation with landlord. What rights do Person B and C have if Person A does stop paying? Absent some other relationship or understanding between them (that is, other than the lease,) likely none. Persons B and C are each fully responsible to pay all of the rent. In other words, as far as the landlord is concerned it does not matter who pays the rent as long as it gets paid. If it doesn't get paid, the landlord can evict and sue all 3 for non-payment of rent. But the lease likely does not discuss the relationships between A, B, and C - whether they pay pro rata by time in the unit, by space used, per capita, or whatever. Landlord doesn't care, and is not the counterparty to those decisions. That said, if there is a relationship between A, B, & C (for instance, if A & B had a contract describing who would pay what, and B entered into another contract with C,) that will determine their relative obligations. The landlord agrees to allow the lease to be amended for another person, person C to be on the lease. Person B negotiated this with the landlord without consent of person A. This may create liability between B to A, C to A, or B & C to A. It is even conceivable that it creates a liability from landlord to A, if A had a reasonable expectation that the lease would not be amended absent A's consent. And the amendment may not be enforceable against A. So, for instance, A may be able to kick C out of the unit and bar C from reentry. It will not effect A's liability to pay rent. | It primarily depends on the title that you have to the house: are you "joint tenants with right of survivorship". This could have happened when you bought the house; it also could have been done after the fact in various ways. In that case, the house is outside of your wife's estate (which, under the circumstances, is divided between children and you). The lender might be confused about the status of the property, but they might be right, so the question is, what is your legal "interest" in the house, that is, does the title document say "tenants in common"? Assuming that the property is not recorded as JTWROS, then there are two matters to attend to. First, the lender may need to be satisfied, somehow, that they aren't taking a risk by refinancing when you aren't really the full owner. The second is clarifying actual ownership. Estates Code 201.0002-.003 govern intestate succession with a surviving spouse, where the dividing question is whether it is a community estate or not, which then implies shares for children. In that case, the children are part-owners, so you need their consent to e.g. sell the house (that is, this is a complication that needs to be fixed). Basically, you have to get a lawyer, and straighten this out. | You would need to know the landlord's reasons for refusal in order to determine their reasonableness or otherwise. If there is a dispute about this (i.e. They think they are reasonable and you don't) you can seek a court order requiring the landlord to accept the sublease or alternatively, that since the landlord has breached the contract, you are entitled to terminate it. Hire a lawyer before you do this. | Most leases have a provision allowing a landlord to make entry without notice in an emergency, but the better course of action, as noted in a comment by @BlueDogRanch, is to call the police and ask them to make a "welfare check." You would ordinarily be permitted to cooperate with police by unlocking doors in furtherance of their welfare check. The police are trained to do this properly in a way that properly balances the need to aid someone who is sick or ill, the need to preserve evidence if there was a death or crime that needs to be understood legally, and to protect the legitimate privacy interests of the tenant. You are not. You could incur liability for failing to prevent death or aggravating injury, could be wrongfully implicated if physical evidence from you contaminates the scene or you destroy evidence showing the true cause, and could be sued for invading the tenant's privacy if it was found that you entry was unreasonable and that it wasn't really an emergency, which is always easier to conclude with 20/20 hindsight. As it is, your biggest potential source of liability is delaying in calling the police seeking a welfare check. They often respond quite quickly to these by the way, although it is not the very highest priority for law enforcement. | 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.) |
Does the 4th Amendment have a Miranda-like precedent? The Supreme Court decided in Miranda v. Arizona that people had to be told their rights under the 5th and 6th Amendments, since if people don't know that they have those rights, they don't really protect them. Those rights, of course, can be waived, as can the right not to be searched without a warrant. If a police officer comes to your house without a warrant, says that they think you have illegal drugs, and asks if they can enter to search the property, do they have to disclose that it isn't legally required since there isn't a warrant? A reasonable person may feel as though they don't have a choice. | There is no search analog to the Miranda requirement. The Supreme Court in Miranda didn't just decide that people had to be told their rights, for all rights in all contexts. Miranda applies just to 5th and 6th Amendment rights, in case a person is being held coercively. If you are free to go, you need not be apprised of your rights: so, if the police are just asking questions when you are not being held, they are not required to give a rights warning. Likewise, they are allowed to request permission to conduct a search. It is true than many people do not understand that a request is distinct from an order. A useful phrase to remember is "Am I free to go?". If the answer is no, you are busted and they can search you. If the answer is yes, you don't have to let them search you (to avoid the ambiguity of silence, refusing permission to search is not a bad strategy, unless you want then to search you – e.g. if you want to get on the plane). | 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. | Warrants are issued upon probable cause The Supreme Court defined this in 1964 in Beck v. Ohio as: whether at [the moment of arrest] the facts and circumstances within [an officer's] knowledge and of which they had reasonably trustworthy information [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense In the context of warrants, the Oxford Companion to American Law defines probable cause as: information sufficient to warrant a prudent person's belief that the wanted individual had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in a search (for a search warrant) In Brinegar v. United States, the U.S. Supreme Court defines probable cause as: where the facts and circumstances within the officers' knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed In the scenario that you describe the testimony of the child almost certainly gives rise to probable cause. A warrant issued on that basis is likely to be broad enough for the investigation to follow the path that you suggest - if the child claims there were inappropriate photos sent to them and there was evidence of subsequent deletion, law enforcement are entitled to trace that back to wherever it leads. | There are a variety of situations like border crossings, entry into official buildings, etc. in which there is a general right for law enforcement to demand identification on a suspicionless basis, none of which seem to apply in this case. But, the most common justification for demanding ID is to make what is called a Terry stop (after the name of the U.S. Supreme Court case that upheld the legality of these stops in the face of 4th Amendment limitations on searches and seizures). Wikipedia accurately summarizes the law in this area as follows. A Terry stop is: a brief detention of a person by police on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest. The name derives from Terry v. Ohio, 392 U.S. 1 (1968), in which the Supreme Court of the United States held that police may briefly detain a person whom they reasonably suspect is involved in criminal activity; the Court also held that police may do a limited search of the suspect's outer garments for weapons if they have a reasonable and articulable suspicion that the person detained may be "armed and dangerous". To have reasonable suspicion that would justify a stop, police must be able to point to "specific and articulable facts" that would indicate to a reasonable police officer that the person stopped is, or is about to be, engaged in criminal activity (as opposed to past conduct). Reasonable suspicion depends on the "totality of the circumstances", and can result from a combination of facts, each of which is by itself innocuous. The search of the suspect's outer garments, also known as a patdown, must be limited to what is necessary to discover weapons; however, pursuant to the "plain view" doctrine, police may seize contraband discovered in the course of a frisk, but only if the contraband's identity is immediately apparent. In some jurisdictions, persons detained under the doctrine of Terry must identify themselves to police upon request. In Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), the Court held that a Nevada statute requiring such identification did not violate the Fourth Amendment's prohibition against unreasonable searches and seizures, nor, in the circumstances of that case, the Fifth Amendment's privilege against self incrimination. New York is one of the many states that has a stop and identify statute, that allows an officer to insist on presentation of an identification any time there is a legal basis for making a Terry stop. The New York stop and identify statute is N.Y. Crim. Proc. Law §140.50. This says: 1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct. 2. Any person who is a peace officer and who provides security services for any court of the unified court system may stop a person in or about the courthouse to which he is assigned when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct. 3. When upon stopping a person under circumstances prescribed in subdivisions one and two a police officer or court officer, as the case may be, reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person. 4. In cities with a population of one million or more, information that establishes the personal identity of an individual who has been stopped, questioned and/or frisked by a police officer or peace officer, such as the name, address or social security number of such person, shall not be recorded in a computerized or electronic database if that individual is released without further legal action; provided, however, that this subdivision shall not prohibit police officers or peace officers from including in a computerized or electronic database generic characteristics of an individual, such as race and gender, who has been stopped, questioned and/or frisked by a police officer or peace officer. In this particular case, if the law enforcement officer were more clever, he would have said that he was concerned that the crew might be using the drone to case the property in order to commit a crime there in the future. And, if he had said that, this would surely pass muster for reasonable suspicion for a Terry stop and would have provided a legal justification for demanding ID. The "about to commit a crime" justification for a Terry stop makes it, in practice, much broader than probable cause for an arrest, which requires that the police believe that a crime has actually already been committed or is in progress, not just that someone is about to commit a crime (a person may be subjected to a Terry stop even if his actions which tend to show he is about to commit a crime have not yet progressed to the level of an attempted offense for which someone may be convicted and are not truly imminent). (Actually, strictly speaking, the officer is only entitled to determine the information that an ID would reveal, and not to insist that someone actually have the ID on his person, under state law, although a local ordinance or court interpretation of the law could possibly give him the authority to actually demand an ID to determine this information. For example, California courts have held that a duty to provide basic information implies a duty to provide it in a verifiable manner.) The fact that the law enforcement officer failed to articulate any legal basis for the stop, yet went on to arrest the individuals, weakens the case that the stop was valid considerably, because generally, at least in theory, a law enforcement officer is supposed to be able to articulate the reasonable suspicion for the stop at the time that the stop is made and not days later after the fact. In addition to stop and identify laws, some states (including Colorado) have held that failing to provide an ID on demand, under the "totality of the circumstances" can sometimes constitute obstructing a police officer and provide a basis for an arrest. It isn't inconceivable that a law enforcement officer in this situation could make that argument and prevail at least in showing probable cause for arrest on that basis, even if it wasn't a sufficiently solid argument to give rise to an obstructing a police officer conviction. | It does matter if you invoke your right to silence. First, if you do, that affects what police can do (they have to stop interrogating you). Second, it plays a role in "adoptive admissions". If the police are asking you questions (you are not under arrest) and they make some statement that implies that you committed a crime, your silence can be used against you: it can be taken to be a form of admitting that you committed the crime. The premise is that if they imply that you murdered X, such an accusation if false would be so outrageous to a reasonable, innocent person that they would protest, therefore your lack of protest (denial) is tantamount to a confession. However, you can protect yourself by preemptively invoking your right to silence. See Salinas v. Texas: a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it... the Fifth Amendment guarantees that no one may be“compelled in any criminal case to be a witness against himself,” not an unqualified “right to remain silent.” Since any right can be waived, at any time, there is no magic expression that you can utter that nullifies a future waiver of a Constitutional right. The closest that you can come is asserting that you hereby exercise your right to an attorney and that you will not speak until you have consulted with your attorney (then you better shut up). Lawyering up only prevents them from further interrogating you. Don't hedge: say "I am asserting my right to silence and refuse to speak without a lawyer". "I think I should..." is not a definitive assertion of your rights. If you are (briefly) stopped, police may ask if they can search you or your property. If they have a warrant or probable cause, there's really no point in saying anything. In the case that consent is required, you just have to remember to not consent, and it would not be a bad idea to explicitly deny consent. Each and every time they ask. The same with their statement "It would really help us if you would come to the station to answer a few questions". If you are under arrest, then you have to go with them: ask "Am I free to go?". You can say "I do not consent to any search". Your proposed declaration of rights is pretty vague. Exactly what rights are you talking about? Your right to freedom of religion? Your right to bear arms? Your right to not have to quarter soldiers in your house? Your right to an education? Many detainee statements have been found by the courts to be ineffective because they were unclear. You could give it a shot and see if the Supreme Court accepts your "universal assertion of rights" as effectively invoking your specific 4th and 5th amendment rights. Unless you have something in mind (like, the 6th amendment), the most effective statement is a very specific one. Silence, lawyer, no search. | In the US, they would not be automatically prosecuted. The prosecutor would have to find out about the testimony, decide to prosecute, and go through all the normal processes they otherwise would, but they have an additional piece of evidence. Per the 5th Amendment to the US Constitution, a witness cannot be forced to answer a question that would incriminate them. If the question was objected to on this ground and the objection overruled, the witness' answer would not be admissible against that witness at trial, and the prosecutor would have to prove the case using other evidence. | Yes. At international borders and international airports (because those are the equivalent of a border), US customs officers may do searches of people and belongings without a warrant and without any particular reason to think they'll find contraband. This includes the authority to do some level of disassembly of the car, if they then reassemble it. See United States v. Flores-Montano, 541 U.S. 149. This is known as the "border search exception." Moreover, police normally don't need warrants to search your car if it was mobile when they found it and if they have probable cause to believe they'll find contraband. This is known as the "automobile exception" or the "motor vehicle exception." It was established in Carroll v. US, 267 U.S. 132. Individual states may have stricter requirements on police searches, but the Fourth Amendment doesn't require police to get a warrant to search your car if, say, you drove it up to a checkpoint and they have probable cause. The difference at a border is that they don't need probable cause and the car never had to be mobile: they can search you on a hunch. | In the US, a person is "within their rights" to invoke the Fifth Amendment, i.e. refuse to self-incriminate. However, the government can give a person immunity from prosecution for offenses having to do with the testimony, in which case he can be compelled to testify. A person is not required to guess about whether they could actually be convicted based on their testimony. It is the privilege of the court (judge) to determine whether a witness has "a reasonable cause to apprehend danger from a direct answer" (Ohio v. Reiner, 532 U.S. 17). |
Why is RKelly being sent to Prison and not my case? I live in CA and I was sexually assaulted by my sister father around 1985 or 1986. I went to the police and made a report regarding my sister father sexually assaulting me without using a condom I was around 11 or 12 years this was around 1985 or 1986. He wouldn't allow me to go to the police or a doctor I was a little girl and I was afraid of him and to speak out. I went to the police and they say the statute of limitations is up and it's too late. How could I file if I did not know? | Unfortunately, the police are correct The limit on filing a civil claim (a lawsuit where you seek monetary compensation) is before you turn 40. If you were 11 in 1985 then it is too late to sue your assaulter. For criminal prosecution, the law was changed in 2016. Prior to the change, the limitation was the same as for civil cases. After the change, there is no limit but only if the offence was committed on or after 1 January 2017. Assuming that your reference to Kelly is to this guy - the alleged offences were committed in the 1990s and the prosecutions are under Illinois, Minnesota and Federal law (the Federal crimes alleged are not the sexual assault of a minor). Each state has it's own rules. | Your question (when read with your follow-up comments) is somewhat complex, so I am going to make a few assumptions and break it down into several sub parts. Assumptions The conviction occurred in a state where the expungement statute allows you to tell employers that you were never arrested and convicted. When you say “public records websites” you’re asking about sites like atlaspublicrecords.com. That atlaspublicrecords.com is a US based company. They don’t list an address and the website used a private registration services, so can’t easily determine that they are US-based. Your questions and follow-up Considerations After I get it expunged, will it be removed from public records websites . . . . No. Websites like atlaspublicrecords.com do not link to actual public records. I searched a couple of common names and feel safe in assuming that it only collects and publishes the information—it does not actually link to court records. Nevertheless, it would not be available from the actual government agencies that keep those records. By getting your records expunged the convictions and arrest would no longer be available as public records that someone could request from the courthouse, police department, or whatever state agency does criminal history in your jurisdiction. do I have to show them proof of the expungement . . . . Yes, if you believe what the website claims. I can’t find a physical address for the website and don’t know if they are real or a scam, so understand that when you give them information about your expungement—or pay their silly fee, they might collect the money and do nothing. My opinion is that the company is shady and seems to operate in a gray area of the law that I will explain below. Options if they don’t remove the post: You could try to sue them for some type of secondary dignitary tort like defamation or false light. But these would have some significant legal hurdles. See G.D. v. Kenny, 15 A.3d 300 (N.J. 2011), where the New Jersey Supreme Court held that commenting on an expunged criminal records was not defamation or invasion of privacy because it was the truth. You could try to argue that they are a consumer reporting agency under the Fair Credit Reporting Act (“FCRA”). If they're governed by the FCRA, you have some additional legal remedies (like civil penalties/fines) if they don't remove/clarify an expunged record. The Fair Credit Reporting Act applies to credit reporting agencies, like Experian & Equifax but also covers companies that compile and sell information for background checks. This includes criminal records. See the Federal Trade Commission’s Advisory Opinion to LeBlanc (06-09-98). But . . . this website is operating in a gray area that appears to comply with the law. The FCRA only applies to consumer reporting agencies, which are defined as: Any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. 15 U.S.C. § 1681a(f) Because they’re not charging money or a fee to access the reports and they’re not a nonprofit cooperative, they probably do not meet the definition of a CRA. Bottom-line is that you're best option is to give them the expungement documents once you obtain them. | Yes, the correct forum is the Local Court in the relevant state (in some states these are called Magistrate's Courts). The amount is too large ($10,000) to qualify as a small claim . If you want to do it yourself the court websites are very informative and in NSW, at least, the process can be initiated online including your paying for the Sheriff to serve the summons (they will not find the person, you have to give them an address). After being served they have 28 days to file a defence or you can get a default judgement and begin recovery. If they do file a defence then things will get more expensive. Of course, you may want to hire a local lawyer. | First of all, Sally can't charge Bob, or anyone else. She can file a complaint with the police, or with the District Attorney. It may or may not be investigated, and if it is, charges may or may not be brought, and she has no control over any of that, although she may be able to use persuasion or political pressure to influence the decision. In New York, persuading a child to make pornography is a class C felony. Possessing child pornography is a class E felony. Promoting an obscene sexual performance by a child is a class D felony. Disseminating obscene material to a minor is a class E felony, unless the defendant solicits the child to engage in sexual activity, in which case it's a class D felony. All of these have 5-year statutes of limitation. (N.Y. Pen. Law § § 70.00, 80.00, 235.21, 235.22, 263.05, 263.10, 263.11, 263.16.) I can't find any NY law that makes it a crime to ask for a naked image of a child and be refused, although there may well be one. Note that it is not a crime in NY to posses sexual or nude pictures of a person 16 or older, although it is a crime to create them. There are also federal laws against child pornography, but federal policy is not to bring federal cases where the accused are under 18 and a state case could be brought. In fact, the federal authorities generally do not bring cases except against major producers when a state case can be brought instead. But that is a matter of policy, not law. NY has a pre-trial diversion program for teen-ages involved in "sexting". They can agree to take special classes, and avoid a criminal conviction or any jail time. The court must approve candidates individually for this program, but it is widely used. In the given scenario, the statute of limitations would not have expired (if the law I couldn't find makes this a felony, misdemeanor SoL is 2 years). In theory bob could be charged and tried for his solicitation. If charges were levied, the prosecution would need to prove at trial that Bob had made the request, and that it was serious, not a joke. It would also need to persuade a jury to convict when no sexual image had ever been transmitted. In practice I doubt that a case would be pursued after several years. That would depend entirely on the DA, or the relevant assistant DA who handled the case. Nothing would legally prevent such a case that I know of. | If this judge is truly biased, won't the litigants be all the more glad to have a jury of their peers? You are proposing to abandon your duty to others. At trial you serve the community, not the judge. Back on scope for Law SE: If you refuse to serve on a jury, that could be a separate offense or general criminal contempt, for which you (this all depends on your jurisdiction) could get 30-90 days in jail. Edit: like several others have pointed out, I would not expect much trouble if you politely told the court that you felt you would be biased b/c of past connections. Even if the judge doesn't dismiss you, one of the litigants is likely to strike you. P.S. In most states, no one except a prosecutor (sometimes another state employee) can "take someone" to a criminal court. Individuals can only take someone to civil trial, where one cannot be sentenced, only ordered to pay a judgement. | If the younger person starts a civil suit against the older person for statutory rape, can the older person countersue for "actual" rape? There is no civil action counterpart to statutory rape. Is there any way that the older person can use the "actual" rape as a defense in either a civil or criminal charge? Statutory rape does not give the person who is defined as a victim of statutory rape to bring a civil action for money damages against the adult with whom that individual had sex. Sometimes there might be a civil action for breach of a fiduciary or confidential relationship, or intentional infliction of emotional distress/outrageous conduct. But that would be the exception, rather than the rule, and the civil action tort would not be a strict liability offense. While statutory rape is sometimes a "strict liability crime" in the sense that actual subjective consent is not a defense, and reasonable mistake of age is not a defense, a prosecution for statutory rape still requires proof of a voluntary act by the defendant charged with the offense. The claim that someone did not voluntarily have sex with the underaged person and instead was forced to engage in sex with the underaged person without their consent would be a valid defense to the crime. This is because it would prevent the prosecutor from proving that the defendant committed the voluntary act element of the crime beyond a reasonable doubt. This kind of defense could also be conceptualized as the affirmative defense of duress which would still apply to this offense. My understanding is that if the older person has been convicted criminally for statutory rape, that would bar that person from prevailing in a civil suit for "actual" rape. Would this be true[?] One could bring a civil action for assault and battery in connection with a rape not implied in law by virtue of age (i.e. what you mean when you say "actual" rape). A criminal conviction for statutory rape (for which all appeals have been exhausted) would probably be a valid defense to such a civil action pursuant to the doctrine of collateral estoppel (i.e. because a binding determination of the same issue with the same or stronger burden of proof was finally resolved on the merits in another case involving the same people). This is only true, however, because the lack of voluntary act defense would have been available in the criminal case for statutory rape. has such a sequence of events actually happened anywhere in the United States? Probably. The United States has had states with statutory rape laws for many, many decades and many hundreds of millions of people, if not billions of people, have lived in that time period. So, almost anything that could happen with respect to a widely enacted law involving activities that are possible for ordinary people to engage in has probably happened. This said, however, I've never heard of a legal case with this fact pattern in the news media or in reported case law (although admittedly, this isn't my area of practice). The more common case which does come up from time to time is a case of brother-sister incest where there is dispute over who should be charged (usually, but not always, the older sibling, and in rare instances, both are charged). Historically, in the overwhelming majority of cases where statutory rape charges could easily be proven, they are not brought by prosecutors. Sometimes this is because that is what the victim wants. Historically, victims have frequently wanted this outcome, either out of hope for an ongoing relationship with the adult, or doesn't want to relive a traumatic event, or out of the well founded believe of the victim that the case would do more to harm her reputation and well being than it would to suitably punish the adult (and keep in mind that statutory rape is often a misdemeanor offense which might be punished fairly lightly at sentencing depending upon the judge). Sometimes this is because the prosecutor sees keeping the perpetrator employed and able to pay child support when a pregnancy results as a preferable options. Sometimes this is because proving that sexual intercourse happened with someone beyond a reasonable doubt in cases that did not result in pregnancy, when the only witnesses are the alleged defendant and the allege child victim whose credibility may be questioned, was very difficult prior to DNA evidence, widespread use of rape kits, and cheap, ubiquitous video and photography use. Furthermore, factually, it is exceedingly uncommon for young minor girls to rape adult men, and until quite recently, the statutory rape laws applied only to female victims. Even now, with gender neutral statutory rape laws being the norm, prosecutors are much less likely prosecute an alleged statutory rape involving a male victim than a female victim. Finally, many prosecutors feel morally justified in invoking their authority to press statutory rape charges only when they believe that there was a non-consensual sexual act committed against the victim which happened even if it was hard to prove and are reluctant to bring such charges if the prosecutor believes under the circumstances that the act was consensual in fact, even if legally the defendant is still legally guilty in those circumstances. Generally speaking, attitudes towards this have grown more harsh towards men who have sex with young minors in recent years, but historically, this was a pretty important factor. | 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. | When a criminal act takes place, the state in which the act took place has jurisdiction. State of residence of perpetrator or victim is not at all relevant. It also would not matter where the minor was "staying", all that matters is where the act took place. If that was California, California Penal Code 261.5(c) says Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. Additionally, (261.5(e)(1) states Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:... (C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000) |
Third party client made in Unreal Engine Suppose that I made an MMORPG which has interesting gameplay, but rather bad graphics. One day, a fan of the game writes a client in Unreal Engine that lets them play the game with HD graphics (but they still need to buy subscription from me to connect to the server). Because of this, my game becomes more popular and I'm making twice as much money. Epic's license for Unreal Engine asks for 5% royalties, but I never agreed to this licence, the person who made the third-party client did. Do I have to pay royalties to Epic? If yes, is it just on the portion of profits from players that connect using the third-party client? | Technically, as I've read the unreal license agreement, the person who made the mod would owe Epic 5% royalties on all your sales related to the mod, even if they did not collect the sale price. You cannot be a party to a license you did not agree to, but Epic has very strange royalty terms that seem unreasonable on the surface and I'm not sure they've tested that in court. Here is what the license says: Royalty You agree to pay Epic a royalty equal to 5% of all worldwide gross revenue actually attributable to each Product, regardless of whether that revenue is received by you or any other person or legal entity, as follows: a. Gross revenue resulting from any and all sales of a Product to end users through any and all media, including but not limited to digital and retail; b. Gross revenue resulting from any and all in-app purchases, downloadable content, microtransactions, subscriptions, sale, transfer, or exchange of content created by end users for use with a Product, or redemption of virtual currency, either within a Product or made externally but which directly affect the operation of the Product; c. Gross revenue from any Kickstarter or other crowdfunding campaign which is directly associated with Product access or in-Product benefit (e.g., in a multi-tiered campaign, if an amount is established in an early tier solely for Product access, your royalty obligation will apply to that amount for each backer with the same access, but not on additional amounts in higher tiers based on ancillary benefits); d. Your revenue from in-app advertising and affiliate programs; e. Revenue from advance payments for a Product (from a publisher or otherwise); f. Revenue received in connection with a Product’s inclusion in a streaming, subscription, or other game-delivery service (e.g., Apple Arcade, Microsoft GamePass, or any similar or successor services), including without limitation development funds and bonuses; and g. Revenue in any other form actually attributable to a Product (unless excluded below). So the first part says "regardless of whether that revenue is received by you or any other person or legal entity". So somebody else may have revenue attributable to the product (aka a 50% increase in sales due to this mod), and you owe it even if you are not collecting or receiving that money directly. The last part (g) also says that revenue in any other form attributable to the product. Epic's license doesn't allow you to make a "front-end" to a paid product and release the front-end free, and collect money on the back-end. So if revenue is attributable to the product you develop, you owe royalties on the sales related to the product regardless of you collecting that income or not. Notice how it doesn't say "directly attributable to each Product...", it says "actually attributable to each Product". This is the part I find a bit egregious and not sure it will hold up in court, however the terms of the license are written so that the developer of the Unreal product has to pay royalties even if they don't collect money from it themselves. | You can licence your copyright under as many licences as you like to as many people as you like It's your copyright - you can do what you want with it. What you can't do is give someone an exclusive licence and then give licences to others - that would be a breach of contract with the exclusive licensee. How you let people know about the available licences is also up to you - your bio on Stack Exchange is fine. | This is not (necessarily) copyright violation It's possible that Quora's usage falls within Fair Use. At the very least, the argument could be made. If it does, then there is nothing that Stack Exchange or the OP can do. Stack Exchange can choose not to protect their copyright Unlike trademarks, which lapse if not protected, copyright endures. Therefore Stack Exchange can pick and choose the copyright fights they want to get involved in and those they don't. If you have brought it to the attention of the copyright owner (or, in this case, licensee) and the copyright owner chooses not to act then you have done all you can and significantly more than you have to do. The OP has copyright I note that one of the examples is your question. As the copyright holder, you are free to issue a DCMA takedown notice on Quora if you feel your copyright has been violated. | Copyrights don't apply to the names used. You mean trademarks. You copyright your game and you trademark the name. http://www.reddit.com/r/gamedev/comments/11v69k/using_a_guns_name_in_your_video_game/ Basically, it wouldn't be wise to use trademarked names in your game. Even though it's unlikely you would be sued and even if you were, you could possibly fight it under Fair Use, but do you want to take the chance? If some gun company decided they didn't like how you used their name, even if they have little to no grounds for a case, they can STILL sue. Anybody can sue for pretty much any reason where there is doubt. If they have enough money to throw around, they can drag you through the mud, ruin your business and then just lift their lawsuit. They don't need to win in court, just destroy you. Keep in mind that even if you don't use the name, if the gun in your game is an accurate replica of the real thing, it could still be a trademark issue. EDIT: Something you could consider though is asking permission. You never know. They may simply not care. You might even try propositioning them to pay YOU to have their gun showcased in your game. It's not entirely uncommon for companies to be willing to pay for a bit of endorsement advertising. | Monopoly is a trademark of Parker Brothers. You would need to get permission to use that trademark. The artwork of the game is copyrighted and cannot be duplicated without violating that copyright. In general, the labels meaning phrases like "Go to Jail" and "New York Avenue" are probably copyrighted and some court decisions have decided that labels are a copyrightable element. However, there is some gray area. The game mechanics are not copyrightable and can be duplicated. What this means is that if you clone the game and use new labels (like new property names and card titles) then you are probably fine. You would have to make a novel board design. If you clone the game, but use the game's labels, then you could potentially lose in court. Of course, remember that corporations will sometimes sue just to intimidate people, even if they have a losing case. Just because your clone is non-infringing doesn't mean they won't sue you. It costs them money to sue people, so if your clone is obscure or not used by many people it could fly under the radar and be ignored by the company. If your clone was a success and became widely used, that would significantly increase the chance you could get sued. In most cases a company will threaten infringers before they sue them, because it is a lot cheaper to threaten somebody than sue them. Therefore, you could make your clone and just plan on discontinuing it if they threaten you. Of course, there is a small risk they would sue you anyway. If you made no money then you are probably safe because it would be a lot harder for them to argue that you commercially damaged them if you made no money. | Can anybody create their own license? That is to say, can I for example create my own license under which I can license software? Yep. It's just a contract granting rights to use a copyrighted work. You can write your own contracts, so you can write your own software license. It's just often recommended that you don't, because common licenses are more well-understood, and inexperienced drafters may make errors that could result in problems, such as unintended restrictions, failing to restrict things that were intended to be restricted, or creating provisions that aren't enforceable in some/all jurisdictions. Can you mandate how a software will be released? Yes. Many software licenses, including GPL, do. The restrictions you describe in your example sound similar to CC BY-NC-SA. Also, would the following clause even be legal? Using this software you agree that any work and intellectual property based on or created with this software will be under the [INSERT_NAME_LICENSE] license, even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up I'm not entirely certain, but "even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up" seems, in my opinion, unlikely to be enforceable—especially "even if the work is rebuilt from the ground up." How would you differentiate a complete rebuild from a totally new piece of software? More broadly, once your copyrighted code is no longer in the product, there's nothing for them to license from you. It's hard to imagine how you'd be able to claim that you're harmed by someone releasing a new version of a product that used to contain your code under a different license. Without harm to you, there's nothing for a court to redress. | When you license your IP (like a song) you can specify the terms and conditions of its use by the licensee, including revenue shares from any derived work. However, if, as your comment suggests, you grant an "informal" license, and later decide that you want to "firm things up" with a license having different terms, that's a matter you would have to either negotiate or litigate with your counterparty. If you want a common reference point for negotiation of this sort of license, you might have a look at compulsory license terms. | The book teaches you how to draw horses. Once you learned how to do it, and you draw a really nice horse, you have drawn it yourself. You have the copyright. You use it any way you like. Of course it's different if instead of drawing the horse yourself you just make a copy of an image in the book. That would be the author's copyrighted drawing. Added since the question reappeared: One way to learn drawing horses is to start by making copies by hand of others' good drawings, practicing, practicing more, until eventually you can draw your own horses, which was the purpose of the book. So these copies made as part of the learning process might be treated differently. And the might not actually be copies, just your best attempt at making a copy. On the other hand, taking this book, making ten copies using a scanner, framing and selling them, is obvious copyright infringement. |
Does 7 USC 136j(a)(2)(G) ban the use of a pesticide labeled for use against a pest not mentioned on the label? In one of the answers to the recent question, Is it illegal to kill honeybees in Oregon or in the USA?, 7 USC 136j (a)(2)(G) was cited, which says: It shall be unlawful for any person... to use any registered pesticide in a manner inconsistent with its labeling The argument was then made that, if the label does not specifically allow use against honeybees, then the use of pesticide against them is a violation of the this law, as it would be using the registered pesticide in a manner inconsistent with its labeling. Is this a correct interpretation of this law? Is it really illegal under 7 USC 136j(a)(2)(G) to intentionally use a pesticide against a pest that the label does not mention? (Note that this question is not concerned with the ultimate answer to the cited question, so whether any other law may exist that limits or bans pesticide use against honeybees is not of concern for this question, though it might make an interesting answer to the cited question.) | No, it is not illegal under 7 USC 136j (a)(2)(G) to use a pesticide labeled for use against one pest against another pest... at least not anymore. It turns out that there apparently were cases of the EPA interpreting the language of that portion of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in an overly broad manner. This included the interpretation in question here, as well as even interpreting it to ban using doses or concentrations less than those specified by the label. In response, Congress amended FIFRA in 1978 to add a definition of the term "To use any registered pesticide in a manner inconsistent with its labeling" as 7 USC 136 (ee): The term “to use any registered pesticide in a manner inconsistent with its labeling” means to use any registered pesticide in a manner not permitted by the labeling, except that the term shall not include (1) applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency, (2) applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless the Administrator has required that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling after the Administrator has determined that the use of the pesticide against other pests would cause an unreasonable adverse effect on the environment... [other exceptions not relevant to this question] The act that included the amendment became Public Law 95-396 (PDF), also known as the Federal Pesticide Act of 1978, upon being signed into law by President Carter on Sept 30, 1978. A question was raised on the linked question that this exception might have been referring to accidental use against one pest when another was being targeted, however, the following description of the meaning was given in a summary of the bill on the Senate floor when the final version of the bill was being considered for passage: Third, the new definition will permit farmers to use pesticides that are already registered for a crop or site for pests not listed on the labeling. It is rather foolish to tell farmers that they can put a pesticide on a crop for one bug, but that they cannot apply it to the same crop for another bug. Senator Herman Talmadge (D-GA), Senate Floor, Sept 18, 1978 (Source: Congressional Record vol. 124 (1978), part 22, page 29760 (Warning: 584 MB PDF)) Senator Talmadge was Chair of the Senate Committee on Agriculture, Nutrition, and Forestry at the time and so had been heavily involved in crafting the bill. So, allowing the use of a registered pesticide against a pest not mentioned on its label was indeed the expressed intent of Congress in adding this exception to the definition of using a pesticide in a manner inconsistent with its labeling. As long as the pesticide in question is being applied to a plant, animal, or site specified on the label and the Administrator of the EPA hasn't required the specific pesticide in question to expressly prohibit use against other pests on its label, then intentionally using it against a pest not specified on its label is not a violation of 7 USC 136j (a)(2)(G). | Laws against such actions are not stated in terms of popular and fluid concepts like "computer virus", they are stated in terms of clear concepts like "unauthorized access". There are federal and state laws against this. This web site lists and links to all of the state laws on the matter. There is also a federal law: a detailed legal analysis by DOJ is given here. There are some limits to federal jurisdiction, for example "protected computers" include "computers used in or affecting interstate or foreign commerce or communication". The term "affecting interstate or foreign commerce or communication" is widely used in federal law, and can be used to prohibit growing feed for your own animals. Anything that you "send" clearly affects interstate commerce (the internet is internationally connected). 18 USC 1030(a) says Whoever ... (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains...(C) information from any protected computer Essentially, a computer connected to the outside world is protected. The key here is "without authorization". If you authorize MS to report back stuff about your computer, that is not unauthorized. It may not be possible to use their product without giving such authorization, in which case you can use a different product that doesn't require that you grant authorization. There is also the possibility that some software producer has technically violates the law because they think that it's okay for them to access the computer as long as they do no harm. Typically, people are not aware that they have granted software publishers access to their computer. The concept of "harm" is pretty much irrelevant to computer-crime criminal law. It would be relevant, though, if a plaintiff were to sue someone for sniffing around their computer: then you'd have to show that you were damaged. | Against Bob: yes; Against Cindy: no I'm going to borrow @Trish's example because it's a good one although the conclusions they reach are wrong. Alice made a green box. Bob signs an NDA never to tell anyone that Alice made a green box, and there is a clause in it that if the NDA is breached, the box is red. Bob tells Cindy that Alice made a green box. Cindy has a patent on making green boxes. Cindy sues Alice and in the lawsuit puts Bob on the stand. Situation 1 So, the box is objectively green and objectively a breach of Cindy's patent on green boxes. Bob is on the stand and is required to answer questions honestly and no contract can prevent him from doing so. He testifies that the box is green. This would be a breach of contract except that a clause that requires a breach of the law (perjury in this case) is void for public policy reasons so Bob cannot be sued for this. However, he can be sued for the initial breach - he may have a public policy defense here because Alice was breaking the law, however, it’s easy enough to construct a scenario where Alice was innocent but suffered loss from Bob’s disclosure. Cindy can say what she likes because she is not bound by the NDA. Cindy wins, Alice loses. Situation 2 Cindy dies - after a long and happy life so we won't grieve too much. To Bob's surprise, he inherits Cindy's green box patent of which he was previously in complete ignorance of. Bob sues Alice for breaching Cindy's now his, patent. So, the box is objectively green and objectively a breach of Cindy's patent on green boxes. However, Bob agreed with Alice in the contract that the box is red and so, legally for matters between Alice and Bob the box is legally red (notwithstanding that everyone knows it's green) and is not in breach of Bob's patent. This sort of stuff has a name - a legal fiction. Adoption is a legal fiction - adoptive parents are (legally) parents; biological parents of adopted children are (legally) strangers. Alice wins, Bob loses. | We can't really know until the ruling is made. The Supreme Court might issue a ruling that encompasses all software APIs, or may predicate its ruling on this more specific situation, e.g. that because Oracle's library is so extensive its structure can be copyrighted even if that does not necessarily mean that any individual function signature can be copyrighted. They could also decide based on something unrelated to the heart of the copyright question - skimming through the petition for a writ of certiorari, they could make a decision based on the original implied license from Sun, for example. Hopefully their decision will answer the copyright question of function declarations completely, but it isn't required to. | 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. | There appear to be no explicit federal laws against the practice. Each state has its own laws and many would depend on the individual interpretation of the genera "Humane Treatment of Animals" statutes. It appears that individual states do have laws against killing cats and dogs for food. The California law also protects "any animal traditionally or commonly kept as a pet or companion," Is it legal to eat your cat? Few states have specific laws barring the use of pets for food. The ones that do typically ban the slaughter or sale of dog and cat meat. The state of New York expressly prohibits "any person to slaughter or butcher domesticated dog (canis familiaris) or domesticated cat (felis catus or domesticus) to create food, meat or meat products for human or animal consumption." It's not clear whether the eating itself is outlawed or only the butchery. If you managed to buy dog or cat flesh from someone else who broke the anti-slaughter law, you might be OK. The law also doesn't cover ferrets, gerbils, parakeets, or other less familiar pet species. (Although the general anti-cruelty law might protect exotics.) California's anti-pet-eating law has a broader reach. It bars possession of the carcass, so having bought your cat steaks from someone else wouldn't be a useful alibi. The California law also protects "any animal traditionally or commonly kept as a pet or companion," rather than just Fido and Fluffy. The statute is somewhat untested, though, so no one really knows which animals are included. Pigs are not, even though they are commonly kept as pets, because they are farm animals. Horses are specifically covered by a different section of the code. There's no precedent on iguanas, goldfish, or boa constrictors. In most of the country, the legality of pet-eating would come down to the specific language of the general animal cruelty statute and how a judge interpreted it. Some states, such as Virginia, bar the unnecessary killing of an animal, with a specific exemption for "farming activities." In those places, it's very likely that killing a cat for dinner would get you in trouble, because the killing wouldn't be necessary, and cats aren't commonly associated with farming. On the other end of the spectrum are states like Missouri, where very few restrictions are placed on when, why, and how an owner can kill his pet. In these areas, it would be difficult to lock up a cat-eater, unless his chosen means of slaughter were particularly inhumane. There was also a report that a Los Angeles restaurant had been granted permission to consume and sell dog meat (American Restaurant Granted Permission To Sell Dog Meat - link now dead). However, according to fact checking site Snopes.com, this is not true: Fact Check - American Restaurant Granted Permission to Sell Dog Meat: Claim: A restaurant in Los Angeles or New York has been granted legal permission to serve dog meat. FALSE | From what I can see on the USPTO registry, "tweet" is still not trademarked for the purposes you're talking about. Twitter has been working to secure that trademark, but I can't find any record of them having actually secured it. Just the same, I'd predict that using it will get you at least a cease-and-desist letter, and possibly a lawsuit. Whether you'd win that case seems to be a very open question, but that presumes you have the resources to litigate. | Generally, no. Legislatures pass laws. The fact that someone else knows more about the thing they're passing laws about is utterly irrelevant -- the power to make laws is given to the legislature, not to experts. If the legislature thinks experts should make the rules on something, they can delegate (this is why the FDA approves medicine rather than Congress), but the legislature of a state generally has the power to pass any law that is not unconstitutional. Your analogy to paper money is a poor one: that's a federalism thing, not an expertise thing. Congress has established a system of paper money, and states can't interfere with that. It's not that the Fed thinks paper money is good, it's that Congress said paper money shall be a thing. That could stop a state from banning an FDA-approved drug; however, since marijuana is illegal under federal law, it would be odd to conclude that banning it at the state level as well is preempted. Legislators aren't inherently experts on anything (except being elected). That doesn't matter. They have the authority to pass laws, even if those laws directly go against the views of people who are recognized experts in the area. You appear to think there must be a judicial remedy against bad policy. You would be wrong. The role of the courts is not to decide what policies are good or bad; they are concerned only with what is legal. Deciding what policies are good or bad is a matter for the democratically elected representatives of the people, or for the people themselves in states with ballot questions. It is not the job of the courts. |
Does spousal privilege apply in the case of criminal conspiracy? My understanding is that attorney-client privilege does not apply if the attorney and client are conspiring to commit a crime. My understanding is the basis for nullification is the theory that the relationship between the parties is no longer one between an attorney and their client — which is privileged. But rather, between two criminals. Which is not. Does the same legal theory apply to spousal privilege? I researched it and found this article but there is no mention I could find that answers this question. | You're asking about what is generally referred to as the "joint-participant exception." In the United States, the answer varies from jurisdiction to jurisdiction, as each state sets its own rules on which communications are privileged and which are not. Even in the federal courts, where the law should be relatively consistent, there is some disagreement on this question. After the Tenth Circuit recognized the exception in Trammel v. United States, 445 U.S. 40, (1980), the Supreme Court gave a vague statement suggesting that the exception does not exist, but it was not clear enough to settle the question. Since then, the Seventh Circuit has said the exception applies, but the First, Second, Third, and Ninth circuits have said it does not. So until the Supreme Court weighs in again, the answer is "it depends where you live." Keep in mind also that what is often referred to as "spousal privilege" actually encompasses two very distinct privileges: (1) the spousal communications privilege, which is a defendant's right to block testimony about his statements to his spouse; and (2) the spousal testimonial privilege, which is a witness's right to refuse to testify against his spouse. It may be that in some jurisdictions, the joint-participant exception applies to one but not the other. | Attorneys’ Duty to Report Child Abuse addresses your question. Based solely on Rule 1.6(1) of the ABA's model rules (A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm...), some people read an exception to attorney-client privilege in the case of child abuse. Many states have mandatory reporting for people that become aware of child abuse. Some states make all people mandatory reporters. Others make only certain professions (e.g. teachers, firefighters, physicians, clergy, many others) mandatory reporters. Some of these states include attorneys as mandatory reporters. Some states that include attorneys as mandatory reporters allow for the attorney to invoke the attorney-client privilege as a reason to not report. The laws in each state as of 2004 are summarized in the table on pages 69-71 of the article. I'm not familiar with the law in every state today, but California's is not significantly different from 2004. Attorneys are not mandated reporters. | Strictly speaking, that principle isn't even true everywhere in the US. The maxim "nulla poena sine lege" (i.e. "no punishment without a prior penal statute") was historically applicable to civil law systems, such as are found in continental Europe. In common-law systems, there was never a tradition in which a crime wasn't a crime unless it violated a penal law, because crimes themselves were traditionally defined by court precedent instead of by statute. In US federal court, the only allowable common-law offense is contempt of court. This is due to a court decision (United States v. Hudson), in which the Supreme Court ruled that federal courts do not have the constitutional authority to hear a case in which someone is accused of committing a common-law crime. Even so, and even though there is a federal contempt statute, the Supreme Court has ruled that contempt is an inherent power of any court, and statutes around it only regulate the power (but the power would be there even without a statute). At the state level, some states have explicitly passed laws saying something is not a crime if it doesn't violate the penal code (although this doesn't necessarily apply to contempt); see section 6 of the California Penal Code for an example. In other states, like Florida, common-law crimes still exist; Florida has a statute saying that any common-law offense is still a crime unless a statute has explicitly covered that same subject matter (section 775.01), and specifies a generic penalty for anything which is an offense at common law and not addressed by any Florida penal statute (section 775.02). While this is sort of statutory (as it's a statute giving the penal provision), it's also basically not (as no statute has to say "X is illegal," because it's enough that English common law makes X illegal). | 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. | Double jeopardy applies to the same facts, not to the same sorts of crimes. Say if you are tried and acquitted of murder of person A, that won't later save you from being tried for murder of person B. Same applies to your question: if the documents/testimony on the second occasion are different from the first occasion, there is no protection. If they are the same, there is. | No That is nothing but fiction. Assuming that this is in the US, the police would (probably, there are some exceptions) have had to deliver the well-known "Miranda" warnings, that the suspect has the right to silence, the right to consult a lawyer, and the right to have a free lawyer if unable to afford one, and that statements may be used against the subject. If, after those warnings, the suspect chooses to confess, or to make a statement, that confession or statement would be fully admissible, even if the suspect did not have a lawyer present, unless there was some other reason for the statement to be excluded. No such reason is mentioned in the question. It is simply not the case in the US that a confession is excluded just because no lawyer was present, nor is that the law anywhere that I know of. If the police failed to give the warnings when they were required, then any statements or confessions would be excluded. The decision in Miranda v. Arizona, 384 U.S. 436 (1966) says: law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said "I didn't shoot Manuel, you did it," they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible. ... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Footnote 4] As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. That tells you exactly what the police are forbidden to do. Nowhere does it say that a lawyer must be present. Indeed it says the opposite: The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. That means that s/he can confess after being warned, and such confession would be admissible, provided that s/he knew and understood those rights. | The evidence will almost certainly be inadmissible And, of course, you will be disbarred and never work as a lawyer again, you might also go to jail for attempting to pervert the course of justice. Whether the person is convicted or not will depend on the strength of the other evidence the state has. In the notorious case of Lawyer X, Nicola Gobbo was acting as a barrister for a number of Melbourne underworld figures while simultaneously acting as a police informer. A number of those convicted have successfully appealed their convictions on the basis that they didn’t get a fair trial. In their judgement on AB (a pseudonym) v. CD (a pseudonym); EF (a pseudonym) v. CD (a pseudonym) [2018] HCA 58 the High Court said: But where, as here, the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield. EF's actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF's obligations as counsel to her clients and of EF's duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. | Are defendants legally obliged to provide all culpatory evidence to prosecution? The question here is whether or not all evidence requested by prosecution must be provided by the defense? If the defense plans on only using the evidence of the prosecution, does the prosecution get to demand evidence the defense would rather not release? No. Usually only specific kinds of evidence related to specific kinds of claims such as alibi evidence, an insanity claim, or expert testimony must be disclosed prior to trial by a defendant in a criminal case. A defendant in a criminal case does not have to disclose evidence harmful to the defendant's case prior to trial as a general rule. Sometimes there is a requirement to disclose witnesses anticipated to be called, or exhibits to be possibly used very shortly prior to trial, but that is more the exception than the rule. Does the answer depend on the whether or not the case is criminal or civil? Yes. A plaintiff in a civil case can compel disclosure prior to trial of all evidence in the custody, control, or possession of the defendant that is relevant or is reasonably calculated to be relevant to a disputed issue identified in the complaint, answer, and other pleadings (e.g. counterclaims, replies to counterclaims, third-party complaints, cross-claims, etc.). The scope of discovery is slightly different in jurisdictions that don't follow the federal model. This can include pre-trial depositions of the parties, although a defendant can claim the 5th Amendment at the risk of being exposed to an adverse inference communicated to the jury at trial if the defendant does so. Furthermore, most jurisdictions require the pre-trial disclosure of expert testimony that will be used at trial, of exhibits that will or may be used at trial, of witnesses who will or may be called a trial, of all documents that are relevant to a disputed issue identified in the complaint, answer, and other pleadings, of all insurance coverage that could cover the claim, of all persons with knowledge of the disputed facts, and of an expected damages calculation. In the federal system, however, one need pro-actively disclose only witnesses and documents that support your case without being asked. Is there consistency on this or is it at the discretion of the judge? The rules of procedure applicable to a case govern the scope of discovery, but judges have considerable discretion to determine that requests are excessive relative to what is at stake in the case, are irrelevant, or unduly burden some other legitimate interest of the person subject to discovery. Is there punishment for non-compliance? Yes. First of all, a failure to disclose when there is a duty to do so is a ground to exclude presentation of that evidence at trial. Secondly, in civil cases, attorney fees incurred to obtain the discovery can be awarded, facts that might have been disclosed can be declared to be true as a matter of judicial sanction where there is not disclosure, claims can be dismissed, etc. The main relevant federal rule in civil cases is Federal Rule of Civil Procedure 37. It is an unlawful request that must nonetheless be followed with only a hypothetical remedy left to the defendant as is the case in most of these united states to comply with an obviously unlawful arrest that doesn't present an immediate threat to life? I don't understand this long and convoluted sentence. The part about an unlawful arrest seems divorced from the issues in the rest of the the question. It isn't clear what kind of unlawful request is involved either. |
Using screen recording of client's products in promotion I work at a company that creates software that developers use in their frontend. We have a free and open source version of our software and a paid, non-open-source version. It is easy to detect if a product uses our product (or not) and doing so doesn't require insider information. We already have a section on our website that shows an image preview of client's products and links to their websites. This is done to promote those companies but also to show off what our product can be used to do. None of our clients have had an issue with this and some even request for their new products to be added to this list. However, I don't believe that we have anything explicitly in our licensing/user agreement saying that we retain the right to promote websites that use our product. Is it legal to make a video compilation of websites that use our product for promotion of our company? We would provide a link to their website like we do with the image showcase section of our website. We would only be showing brief clips of client's products, strung together for a short video. All products that we show would be publicly available and currently live at the time of making the video. | Is it legal to make a video compilation of websites that use our product for promotion of our company? [...] We would only be showing brief clips of client's products, strung together for a short video. This will most probably be both copyright violation and trademark infringement. Copyright is generally violated if you copy a creative work produced by someone else - which is what you want to do. Trademarks are generally violated when you use someone else's trademarks (such as their logo or company name) to promote your product - which, again is what you want to do. There are various exceptions available - copyright may not apply if the work is very simple, trademark use may be allowed e.g. in comparative advertising, etc., etc., but the rules for this are complex, unclear and very different in various jurisdictions. You could risk it and hope no one sues you (and maybe no one will), but the safe route is to ask permission first. | Yes, it does. Using the downloaded content, whether it was scraped or individually downloaded one file at a time, for research or for commercial purposes would violate that TOS provision (unless some other provision contradicts it, or you obtain specific permission). The site owner could sue you for such a violation, should the owner become aware of it. I do not think it would be likely to be a criminal offense, depending on the jurisdiction. | It depends on what you are selling to the enterprises. You could be selling just a licence to use the program, and retain all the rights on the source code. You could be selling the rights to the source code. For #1, the source code is yours and you can do what it pleases with it1. In fact many programs offer both an open-source licence (which usually forces the user to make its changes to the code publicly available) and a commercial one (which allows the user to keep the modifications of the source code for themselves). For #2, the source code is no longer yours so it is not up to you to decide what to do with it. 1I am assuming no other agreements imposing limits on those; for example that none of your contracts to your customers have a clause forbidding you from making the code available to the public. | The U.S. FTC gave extensive guidance on this subject in March 2013. (You may have noticed shortly thereafter that conspicuous disclosures of free samples and compensation started popping up in reviews and posts around the web.) The FTC's FAQ covers this question in such detail I would just encourage people to visit it directly. However, as is the custom on Stack Exchange, I will reproduce the most salient content here: If an endorser is acting on behalf of an advertiser, what she or he is saying is usually going to be commercial speech – and commercial speech violates the FTC Act if it’s deceptive. The FTC (ironically?) refers to 16 CFR §255 as "the Guides." The Guides, at their core, reflect the basic truth-in-advertising principle that endorsements must be honest and not misleading. An endorsement must reflect the honest opinion of the endorser and can’t be used to make a claim that the product’s marketer couldn’t legally make. In addition, the Guides say if there’s a connection between an endorser and the marketer that consumers would not expect and it would affect how consumers evaluate the endorsement, that connection should be disclosed. For example, if an ad features an endorser who’s a relative or employee of the marketer, the ad is misleading unless the connection is made clear. The same is usually true if the endorser has been paid or given something of value to tout the product. The reason is obvious: Knowing about the connection is important information for anyone evaluating the endorsement. | I presume from the fact that you mention "fair use" that you're interested in United States law. In that case, the answer is a clear-cut "no". 17 USC 107: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. Let's look at your proposed use under these four factors: The purpose of use: Commercial use, selling these movie clips for direct profit. You're not making any sort of transformative use (such as critical commentary), you're just re-using them as is. Big strike against you. The nature of the copyrighted work: a work of fiction; your derivative is also an entertainment product. Another big strike. The portion used: I haven't seen the clips in question, but you mention "famous scenes". That would work in your favor if you were using the clips for something like scholarship, but since you're not, the fact that these are the "important parts" works against you; the fact that they're small is irrelevant. The effect on the potential market for the copyrighted work: This is a huge strike against you: your clips are directly displacing licensed use of the movie clips. If I were a movie company and I caught you doing this, I'd bring out the big guns: I'd sue you for every penny you earned, plus substantial penalties, plus lawyer fees, plus everything else I could think of. And given the strength of the case against you, it's virtually certain you'd lose. You might be tempted to compare what you're doing to animated-gif "image macros", but there's one major difference: the "macros" are generally used to compare a movie situation to an out-of-movie situation, making at least a gesture in the direction of transformative use and commentary. By pre-packinging your gifs, you're not commenting on anything. Your only option for making what you're doing legal is to go to the copyright owners and ask for permission. | No You are limited to “your ... use only”. You are not given permission to make this available for 3rd parties either commercially or for free. | Probably not. There are potential problems on the levels of copyright, data protection, and the Youtube terms of service. You should assume that comments are typically covered by copyright. You do not have a license to these comments, only YouTube does. Therefore, YouTube can show the comments but you can't copy them – just like YouTube can stream your videos but others can't download them and host them on their own websites. To cover the copyright angle, you'd either need to obtain a license from the commenters, or get a sub-license from YouTube, or identify a suitable copyright exception. The comments are personal data within the meaning of the GDPR, so that your processing of these comments (including mere storage) would be subject to GDPR as well. You need a legal basis for processing personal data. Which legal basis is suitable would depend on the purpose of processing, and on your relationship with the commenters. Potentially applicable legal bases in this context: you have a contract with the commenters that requires you to show the comments on your website. For example, I could see such a contract if there were a “featured comment” perk for a Patreon subscription. But this is not going to fly with random commenters. you have a legitimate interest (LI) that allows the processing. A LI requires that you conduct a balancing test where you weigh this interest against the commenter's rights. This is very specific to the purposes for which you want to show the comments. However, a LI will generally only apply if you have an existing relationship with the commenters, making it possible for them to expect that this processing will occur – unlikely if you'll be scraping comments from YouTube. you have obtained consent from the data subject. Consent must be specific, informed, freely given, and unambiguous – you can't obtain consent by writing “by commenting under this video you consent to XXX” in the video description. Regardless of legal basis, you would have to inform the commenters under Art 14 GDPR when you scrape their comments from the platform. Finally, consider the platform terms of service. I have not read the YouTube ToS recently, so I don't know what their specific conditions are. But in general, such ToS will not allow you to scrape content from their platform in order to host it somewhere else. The ToS might allow certain actions like embedding a link/iframe to such videos on other sites, without allowing other actions such as copying other user's content to your site. | "Personal use only" does not excuse copyright infringement under US law. The uploader does not hold copyright, and neither gives nor denies permission to copy his creation. The law does not require a copyright holder to deny permission, it requires the user to actually obtain permission. So no matter how you slice it (even as fair use) it is infringement for you to copy that video. |
Legal Right to Own Nukes As per the Second Amendment of the United States Constitution one has to wonder if there are any restrictions with regard to the type (or destructiveness) of arm you shall bear. If someone could afford the bill and be in safety/inspection/regulation compliance and seek to bear the arm of nuclear weapons one has to wonder if this would be their constitutional right. Do people have a legal right to own nuclear weapons? Why or why not and has anyone ever taken such concerns to a court for a legal judgement on the matter? | Almost certainly, there is no such right. It's illegal under 18 USC 831 to possess "nuclear material" without specific authorization. 18 USC 832 forbids the possession of a "radiological weapon". If there is intent to use the device to cause death, serious bodily injury, or damage to property or the environment, that's also a violation of 18 USC 2332i. I don't think these laws have been explicitly tested against the Second Amendment, but related cases suggest they would hold up (if the challenge wasn't simply dismissed as frivolous). The Second Amendment doesn't grant a blanket right to own weapons. Federal law, 18 USC 922 (o) makes it unlawful to own a "machinegun" (as defined in the statute), and in the case of Hollis v. Lynch, the Fifth Circuit held that this law was constitutional, because, as they said, the Second Amendment only protects weapons that are in "common use [...] for lawful purposes like self-defense." This case doesn't seem to have been appealed further, but the reasoning cited by the Fifth Circuit comes from the Supreme Court's opinion in D.C. v. Heller. If machineguns aren't in "common use", and therefore not protected, surely the same would apply to nuclear weapons. | The short answer: No license is required in any U.S. jurisdiction to buy a firearm magazine. There are some jurisdictions that restrict the sale of "high-capacity" magazines to civilians. That's something that is changing often enough that any answer covering the U.S. will probably quickly be obsolete. Suffice it to say: If you can find it in a store there are no legal restrictions or conditions on purchasing it. Technically an "export" license might be required under ITAR to take magazines out of the country, but in practice this has not yet applied to individuals carrying low-tech small-arms accessories (in quantities reasonable for an individual's use). | The First Amendment states Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. It thus protects such videos. An analogous situation is that there is network news coverage of riots, bank robberies, terrorist attacks and assaults. Backpage was seized because it facilitated prostitution, not just reported or even encouraged it. That is basically where the line exists. | It is quite likely that a constitutional amendment was (and is) not needed to ban alcohol. For example, if the Controlled Substances Act is constitutional (and I have no reason to believe it isn't) then alcohol could be added to it tomorrow and it could be removed the day after tomorrow. Right there is the reason that you choose to use a constitutional amendment - it is as hard to reverse as it was to enact; it needs another constitutional ammendment. | Because the courts or the legislature decide they have them There is no doubt that both the courts and the legislature in common law countries have the ability to find, create, or extend rights and this has been done in the past. This is, in fact, where legal rights were created. The US Bill of Rights was created by the people in 1791. If the people in 2191 want to grant rights to AIs then they can do this. This is legally possible. Whether it's a good idea is a matter of philosophy and politics. | It could lead to investigation and wasting of government resources, but it is not a crime and not civilly actionable, under the circumstances described. The First Amendment right to say crazy things is pretty broad. | From what I read, it appears that the final quoted statement is not saying another authority does this so much as the Archivist does not do it. Which would mean that the when the state notifies the Archivist and says "We ratified the amendment" the Archivist accepts that the state did all required steps to ratify the amendment and doesn't need to tick a check box list of steps. Or to put anotherway, the lawful Ratification of a Constitutional Amendment in a State is determined by the state's own institutions and not the Federal Government's. Once the state says it's ratified, the Feds assume it was done so following the states own processes and was not done in an underhanded fashion. | I haven't found any cases where this defence has worked. I strongly suspect that that's because it never has. Every piece of advice I've read on this unsurprisingly suggests you'd be a fool to attempt to rely on this defence in court, including some cases in which defendants have attempted to rely on it and have failed. There are a couple of Freedom of Information requests to the government which state very clearly that it won't work: https://www.whatdotheyknow.com/request/statute_law_4 https://www.whatdotheyknow.com/request/consent_of_the_governed The last link is particularly clear on the matter: every citizen of the UK tacitly consents to be governed, according to Blackstone. And this one makes it even clearer: https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html Under the doctrine of Parliamentary Sovereignty, Acts of Parliament override common law. So it simply wouldn't be possible to argue that you choose to live under the common law alone; no court in the land would allow it, as it's a cornerstone of our legal system that Parliament is sovereign, and therefore that statutes enacted by Parliament will 'trump' the common law. Parliament derives its sovereignty from the fact that the current government is elected and therefore represents the citizens of the UK, and for this reason, Acts of Parliament take priority over case law. On that basis, it wouldn't be possible for a citizen to argue that they choose not to abide by statute: their consent is tacitly assumed. Based on all the above, then, I would say no: the 'common law' defence will never hold water if relied on in court. |
"In a manner inconsistent with its labeling": What's the deal with all the exceptions? 7 USC 136 (ee) defines what it means when the government says "To use any registered pesticide in a manner inconsistent with its labeling". It is loaded with exceptions in a mighty wall of text and run-on sentence. What does it all mean in practical practice? (ee) To use any registered pesticide in a manner inconsistent with its labeling The term “to use any registered pesticide in a manner inconsistent with its labeling” means to use any registered pesticide in a manner not permitted by the labeling.... ..... except that the term shall not include (1) applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency, (2) applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless the Administrator has required that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling after the Administrator has determined that the use of the pesticide against other pests would cause an unreasonable adverse effect on the environment, (3) employing any method of application not prohibited by the labeling unless the labeling specifically states that the product may be applied only by the methods specified on the labeling, (4) mixing a pesticide or pesticides with a fertilizer when such mixture is not prohibited by the labeling, (5) any use of a pesticide in conformance with section 136c, 136p, or 136v of this title, or (6) any use of a pesticide in a manner that the Administrator determines to be consistent with the purposes of this subchapter. After March 31, 1979, the term shall not include the use of a pesticide for agricultural or forestry purposes at a dilution less than label dosage unless before or after that date the Administrator issues a regulation or advisory opinion consistent with the study provided for in section 27(b) of the Federal Pesticide Act of 1978, which regulation or advisory opinion specifically requires the use of definite amounts of dilution. So what are all those exceptions about, in actual practice? | Certified applicator here. Needless to say, every exception has a reason, and was lobbied for by applicators, manufacturers, or common sense. Let's run through them. (1) applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency, This is mainly about rinsate. When you're done spraying, you have a bunch of flushing out to do. The empty jugs or barrels need to be triple rinsed with agitation (fill-shake-dump 3x). The dregs of the premix tank have to go, and the tank rinsed out with clean water. The spray equipment needs to be purged (not least so the acidic or basic pesticide doesn't corrode it). This yields a lot of "contaminated" water which is simply water + the pesticide at a lower-than-normal concentration. This is called rinsate. You also sometimes end up with "leftover mix" or "mistake mix"; like 200 gallons of pre-mixed {Roundup? 2,4-D?) that a non-certified predecessor left behind. I don't know what that is, so I'll dilute it enough that it's definitely below maximums. So you have all this chemical that is highly diluted, of ??? dilution but well below maxima. Can't dump it on the ground. Can't dump it down the drain. My friend says "How do you dispose of old paint? Paint something you don't want, then throw it away." And that's exactly what you do: identify locations that are legal to spray the stuff, and spray it there. It's much weaker, of course. This exception (1) is specifically to allow for this case. Of course you know you need to run a full antibiotic treatment, or you'll just breed antibiotic-resistant bacteria. Some cases are like that, and the product labeling will tell you "don't under-use". That's what the "unless" is for. Presumably in that case they'll tell you what to do with the rinsate. (2) applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless the Administrator has required that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling after the Administrator has determined that the use of the pesticide against other pests would cause an unreasonable adverse effect on the environment, The first part of this is for accidental or collateral damage: think about how civilians figure into the rules of war. You can't go "12 civilians, shoot them", but you can go "11 soldiers, 1 civilian, shoot them". Suppose you're spraying 2,4-D on your yard, at a 1.5 lb/acre rate (max 3.0) to suppress broadleaf (dandelions). "Lawns" are a crop specified on the labeling. Controlling broadleaf there is a labeled use, and therefore legal. Your yard also has butterflies. This is where the exception (2) comes into play. Since "the application is to the crop, animal, or site specified on the labeling" (2,4-D on lawns to control broadleaf), then, when the local butterfly admirer accuses you of applying a pesticide against any target pest not specified on the labeling (2,4-D is definitely not labeled for butterflies), you have a defense. The butterfly is the civilian you can't aim at, but it is not a war crime if you shoot at a soldier and hit a civilian by mistake. If the collateral damage becomes serious, e.g. there are big issues with pollinators (e.g. honeybees) being injured by pesticide use in factory farming, then the "Unless" clause allows the EPA to intervene and cancel exception (2) on a case-by-case basis. A consumer product might be pulled, or a commercial product will mention this in the (lengthy, fold-out) labeling. (3) employing any method of application not prohibited by the labeling unless the labeling specifically states that the product may be applied only by the methods specified on the labeling, That is to give you the versatility to apply as needed. Imagine you are a farmer. Most farm pesticides are sprayed from a land vehicle, and you use the highest concentration that is workable because water is heavy. But suppose you're far enough west that your cornfield is a circle and you use a rotary irrigator. You might mix the pesticide in with the irrigation water (at a dramatically lower concentration). This exception relieves the manufacturer of the obligation to cover every possible application method. But the factory is able to override this. (4) mixing a pesticide or pesticides with a fertilizer when such mixture is not prohibited by the labeling, Simply a labor-saver: to allow you to apply pesticide and fertilizer in one pass, which most gardeners appreciate. It also empowers products like weed-and-feed. (5) any use of a pesticide in conformance with section 136c, 136p, or 136v of this title, or (6) any use of a pesticide in a manner that the Administrator determines to be consistent with the purposes of this subchapter. These are statutory phrasing to enable other legislation or rulemaking. After March 31, 1979, the term shall not include the use of a pesticide for agricultural or forestry purposes at a dilution less than label dosage unless before or after that date the Administrator issues a regulation or advisory opinion consistent with the study provided for in section 27(b) of the Federal Pesticide Act of 1978, which regulation or advisory opinion specifically requires the use of definite amounts of dilution. This locks in the "right to over-dilute" (exception 1) for ag and forestry applications. | Yes, it is legal to sell something that uses another product as one of its ingredients. And yes, you can include the name of the product in the ingredients list. That said, if you do it and are successful enough you will probably get a cease and desist letter! The Supreme Court held a long time ago in Prestonettes, Inc. v. Coty that a buyer can purchase a trademarked good, repackage it, and then resell it. The defendant of course by virtue of its ownership had a right to compound or change what it bought, to divide either the original or the modified product, and to sell it so divided. The court reminds us that trademarks are not copyrights; they not confer a right to prohibit the use of a word or words. ...unquestionably the defendant has a right to communicate... that the trade-marked product is a constituent in the article now offered as new and changed. In this case the name of the original product was included on the package in non-distinct lettering; stating that the original product was contained in the new product. I mention this because the ultimate decision is fact-specific.* So the Supreme Court tells us that we can repackage trademarked goods. The court also tells us a bit about the label - we cannot call out the trademarked name as this might confuse consumers: If the [trademarked name] were allowed to be printed in different letters from the rest of the inscription dictated by the District Court a casual purchaser might look no further and might be deceived. So, what about that FDA, what do we need on the label? You find this answer in 21 CFR 101.4(b)(2). (b) The name of an ingredient shall be a specific name and not a collective (generic) name, except that: (1) Spices, flavorings, colorings and chemical preservatives shall be declared according to the provisions of §101.22. (2) An ingredient which itself contains two or more ingredients and which has an established common or usual name, conforms to a standard established pursuant to the Meat Inspection or Poultry Products Inspection Acts by the U.S. Department of Agriculture, or conforms to a definition and standard of identity established pursuant to section 401 of the Federal Food, Drug, and Cosmetic Act, shall be designated in the statement of ingredients on the label of such food by either of the following alternatives: (i) By declaring the established common or usual name of the ingredient followed by a parenthetical listing of all ingredients contained therein in descending order of predominance except that, if the ingredient is a food subject to a definition and standard of identity established in subchapter B of this chapter that has specific labeling provisions for optional ingredients, optional ingredients may be declared within the parenthetical listing in accordance with those provisions. (ii) By incorporating into the statement of ingredients in descending order of predominance in the finished food, the common or usual name of every component of the ingredient without listing the ingredient itself. Here is an example of (i): But also note the picture of the box. That Hershey's Kisses trademarked image indicates that there is an agreement between the companies. So only use this image as an example of 21 CFR 101.4(b)(2)(i) ingredients labeling - the box cover is not an example of nominative use. *This is nominative fair use and has been discussed in other questions on this site. Court of Appeals for the Ninth Circuit in New Kids on the Block v. News America Publishing, Inc.: one party may use or refer to the trademark of another if 1) The product or service cannot be readily identified without using the trademark; 2) The user only uses as much of the mark as is necessary for the identification; 3) The user does nothing to suggest sponsorship or endorsement by the trademark holder. | What statutory or prerogative authority is the FSA exercising when it allows such false labelling? As other answers have noted, they have executive discretion to "turn a blind eye" to what would normally be a violation of food safety laws and just decide that, right now, their government-mandated priorities are better served by not enforcing that particular letter of the law in these particular circumstances. In theory, someone could probably challenge that decision and take them to court over it, claiming that they were derelict in their duties or not acting impartially and in the public interest. However, in this case they'd probably have a pretty good defense against and such claims, both due to having explicit authority to make such decisions in emergencies (as also noted in other answers), and also because the decision itself seems pretty fair (it applies to all producers using sunflower oil in their products) and justified by the circumstances (more on that below). What public good is supposed to be being served here? It is stated that allowing items to be labelled "sunflower oil" that contain no sunflower oil "[maintains] the supply of certain food products", but this is nonsensical because replacing a product with another product does not maintain its supply, regardless of whether the replacement product is labelled accurately or falsely. Labelling the replacement as being the product it replaced appears to maintain its supply, but it doesn't actually maintain its supply. That is fact rather than opinion. You seem to be assuming that this advice by the FAS is about allowing someone to sell bottles of "sunflower oil" that actually contain rapeseed oil. It's not. It's not even really about products like crisps (potato chips, for those not in the UK) or pesto sauce or margarine that might contain sunflower oil as a major ingredient. For those products, the news page you linked indicates there are separate rules that apparently require, at a minimum, applying a sticker to notify consumers about the substitution: "where sunflower oil is a key ingredient, such as crisps, retailers will imprint information on substitute oil onto existing labels." However, think about all the other foodstuffs sold in stores that might include sunflower oil as a minor ingredient, like, say, granola, mustard sauce, instant noodles, mashed potato powder, microwave popcorn, frozen pizza, bolognese pasta sauce or just plain white bread. (If you're wondering where the random list of products above comes from, I just looked quickly around in my kitchen for products that had sunflower oil, rapeseed oil or some other neutral vegetable oil listed as a minor ingredient. There are surprisingly many.) I assume you would agree that all of these products would still be substantially the same product regardless of which kind of vegetable oil was used in them. The companies making all those products, and many others besides, typically order their product packaging in bulk, often from overseas, getting a new shipment of boxes or wrappers or labels maybe every few months or years. And of course those will all have the ingredients list printed on them, as mandated by law. If they want to change the ingredients, that means they have to send a new design to the company that makes the packaging and wait however many days or weeks or months it takes for the packaging company to make and ship the new packaging with the updated ingredients list to them. Normally that's not much of a problem, because normally food manufacturers don't tend to change ingredients in a hurry. Usually they'd plan such changes months in advance, order the new packaging well ahead of time and probably use up all of the old packaging they have in stock before actually making the switch so that they don't have to throw it away. (Companies that do need to frequently switch ingredients, e.g. due to seasonal or unpredictable availability, usually plan for that in advance e.g. by making their labels generic enough to accommodate the change or, where that's not allowed, finding workarounds like indicating the exact type or origin of the ingredients in codes that are stamped on the packaging late in the manufacturing process. That's why you occasionally see stuff in ingredients lists like "vegetable oils (rapeseed, sunflower or soybean)" or "produced in EU and non-EU countries" or "see last letter of expiration code for country of origin: A = Spain, B = Morocco, C = Israel, D = China".) In this particular case, however, a lot of companies that had been using sunflower oil in their products, and expected it to remain easily available, were caught short when the war in Ukraine broke out and the price of sunflower oil suddenly went way up, as companies selling the oil realized that there probably wouldn't be much sunflower oil exported from Ukraine this year. At that point, the companies that had been using sunflower oil as a generic cooking oil in their products would normally have a limited number of options, none of them particularly good (for either the companies or consumers): Keep using sunflower oil at whatever cost and transfer the increased cost to consumer prices. (To make things worse, the more companies do this, the higher the price of sunflower oil will rise, as they're basically competing for a limited supply.) Switch to a different type of oil and order new packaging ASAP, hoping that it will arrive before your existing stock of sunflower oil runs out. (This might take longer than usual, since presumably other companies are also in the same situation, so the packaging makers are probably swamped with sudden orders. Also, your stock of old packaging is now useless, and you might have to throw it out.) Order the new packaging immediately and pay extra for expedited delivery. Again, you'd be competing with lots of other companies who also really want to be the first to get their new packaging, so premiums for fast delivery are likely to be high if you can get it at all. All of that extra cost will also likely transfer into consumer prices. Use the existing packaging but apply stickers with updated ingredients lists on top of the old ones. That's not nearly as easy and cheap as it sounds, not only because you still have to get the stickers printed (and the printing companies are probably also swamped with orders), but also because you'll have to apply them to every single box or bag or carton, likely by hand. That's a lot of expensive manual labor that will, again, likely increase consumer prices. Just halt production until you can get new, updated packaging (or more sunflower oil at a reasonable price). That's probably the worst option for both the manufacturers and the consumers, since it results in lots of lost income for the manufacturers and product shortages for the consumers. Still, if all the other options are even more expensive, some manufacturers might be forced to do this. The exceptional decision by the FAS to selectively enforce the food labeling requirements in this particular case basically offers these food manufacturers one more option: switch to an alternative type of oil now, but keep using the old packaging until you can replace it. Practically speaking that's probably the best outcome for almost everyone. There's really very little difference between sunflower and rapeseed oil — both are neutral, mostly flavorless vegetable oils suitable for generic cooking purposes — and most people probably can't really tell them apart, especially not when they're used as minor ingredients among many others. Of course, there may still be people who really don't like the taste of rapeseed oil (assuming they can taste it) or are allergic to it (which, as the news article you linked notes, is very rare) or have some ethical or religious objection to consuming it (not that I'm aware of any, but I'm sure someone out there has one). Hence the news release, so that those people who might be affected by the substitution can find about it in advance. | 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. | At the federal level, employment discrimination as prohibited here is at its core a tort rather than a crime. Probably the most pertinent first part of the law is Subpart B, which encompasses procedures. The EEOC (Equal Employment Opportunity Commission) may receive allegations of a violation, and there is a procedure for deciding on the merits of the case. After charges are filed, there is an investigation by the EEOC, which may include a public hearing. Based on the investigation, the commission may dismiss the charge (technical flaws in the complaint); they may issue a letter of determination to that effect if they find that there was no reasonable cause for the complaint. They can also encourage a negotiated settlement. In making this determination, the commission follows its own guidelines, as encoded in the regulations. So if the commission determines by its rules that there was a violation, the courts will generally defer to that finding unless the finding is contrary to what Congress said. If there is no dismissal or settlement, then they issue a determination that there is reasonable cause (§1601.21). Then there is a procedure to rectify unlawful practices, which includes the possibility of a conciliation agreement. Finally, starting at §1601.27, we get to the point that somebody might get their day in court. If the accused still refuses to relent on whatever point was at stake, the matter can go to trial: The Commission may bring a civil action against any respondent named in a charge not a government, governmental agency or political subdivision, after thirty (30) days from the date of the filing of a charge with the Commission unless a conciliation agreement acceptable to the Commission has been secured But also, the aggrieved can take the accused to court at any time. The allegation then must be proven by a preponderance of the evidence. | A reasonable hypothetical example of where your clause "C" would be applied: A defendant is written a citation for "spitting on the sidewalk," in violation of a hypothetical Portland city ordinance. In presenting extenuating details, the defendant indicates that the expectoration occurred because she had taken a bite of vended food that was belatedly discovered to have been infested with maggots. The notion of encountering rotted food would clearly not have been contemplated by the definition of the "spitting on the sidewalk" ordinance, where the notion of having a cheekful of chewing tobacco definitely would be. | Maybe, but it is not an easy thing to do. See MARSH v BAXTER [2014] WASC 187. To be successful the plaintiff would need to prove a failure to observe a duty of care (which would be difficult if regulations on GM crops had been followed) and some actual damage flowing from it. | 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. |
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