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Is it legal to save a picture from the internet and then send it to my friends?
| 0 |
https://law.stackexchange.com/questions/90917/is-it-legal-to-save-a-picture-from-the-internet-and-then-send-it-to-my-friends
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CC BY-SA 4.0
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<p>I'm talking about pictures of cats or flowers or a meme, nothing extreme. Is it technically legal or illegal for me to do this?</p>
| 90,917 |
[
{
"answer_id": 90920,
"body": "<p>Generally speaking, it is illegal for you to do this.</p>\n<p>Copyright gives the creator of the image the exclusive right to copy it, and just making copies to send to other people is probably not going to be <a href=\"https://law.stackexchange.com/questions/32422/is-this-copyright-infringement-is-it-fair-use-what-if-i-dont-make-any-money-o/32423#32423\">fair use</a>. Making copies without a license from the copyright holder would therefore be copyright infringement.</p>\n<p>Are there likely to be any consequences for doing this? Probably not.</p>\n",
"score": 4
}
] |
[
"copyright",
"intellectual-property"
] |
Mental Health and Planning
| -4 |
https://law.stackexchange.com/questions/86614/mental-health-and-planning
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CC BY-SA 4.0
|
<p>There is a 2m height restriction on border fences in the UK.</p>
<p>Can the council allow that planning restriction to be circumvented if the perpetrator is claiming to have mental health problems? Can they allow this if those actions are having a detrimental effect on the lives of the victims?</p>
| 86,614 |
[
{
"answer_id": 86618,
"body": "<h2>Enforcement of the law is discretionary</h2>\n<p>The police, or council, or any other administrative authority can decide if they will enforce the law on a case by case basis. They are entitled to consider the mental state of the alleged perpetrator. They can also consider the victims. They do not have to justify their discretion.</p>\n",
"score": 2
}
] |
[
"united-kingdom"
] |
What's the legality (and potential recourse) of selling something as Tuna that isn't Tuna at all
| 0 |
https://law.stackexchange.com/questions/90876/whats-the-legality-and-potential-recourse-of-selling-something-as-tuna-that-i
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CC BY-SA 4.0
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<p>In the US many sushi places sell "white tuna" which actually isn't a Tuna at all but Escolar, a fish from a different family and genus. That seems to be primarily a popular marketing ploy: Tuna is substantially more expensive than Escolar. It also doesn't remotely taste like tuna either. The practice is akin to selling chicken as "white beef" at beef prices.</p>
<p>Is is not only is it grossly misleading, it is also potentially dangerous. Escolar is banned in (for example) Japan and Italy because they consider it toxic. Being banned in Japan is particularly ironic for a Sushi fish. Anyway: Tuna is much less of a health risk than Escolar.</p>
<ul>
<li>Is this legal or what is the legal interpretation of this mislabeling?</li>
<li>What legal recourse does a customer have if they come across it?</li>
</ul>
<p>If locality matters, let's start with US, Massachusetts.</p>
| 90,876 |
[
{
"answer_id": 90893,
"body": "<p>Federal deceptive advertising regulations do not apply to restaurant menus, and sale of escolar is legal in the US. Legal recourse would have to be via state law. Such legal action is conceivable, for example it would be "menu fraud" to sell chuck steak as "Kobe beef", and the practice of selling shark meat disks as scallops is likewise illegal. Fish are problematic since multiple species can be commonly called by a single name (sole, halibut, cod, snapper, sardine, herring). It is possible that in a certain market, "white tuna" is standardly understood to be albacore tuna, therefore it would be fraudulent to sell escolar as "white tuna". That would be the point that has to be proven in a legal action, that the term has a specific interpretation. Analogously, there are a number of creamed vegetable products sold as "hummus" which contain no chickpeas (by original definition, hummus <em>is</em> chickpeas and not soybeans). By dint of such variant use over time, it is not deceptive to sell mashed soybeans as "hummus". The tuna industry may well hope to limit the use of the term "tuna", but there is no regulation defining "white tuna". It should be noted that there <em>is</em> a regulation, <a href=\"https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/cfrsearch.cfm?fr=161.190\" rel=\"nofollow noreferrer\">21 CFR 161.190</a> for canned tuna, dictating that only albacore tuna may\nbe called "white meat tuna".</p>\n",
"score": 3
}
] |
[
"food",
"false-advertising"
] |
Is it legal to use force against a person who is trying to stop you from rescuing another person?
| 29 |
https://law.stackexchange.com/questions/90856/is-it-legal-to-use-force-against-a-person-who-is-trying-to-stop-you-from-rescuin
|
CC BY-SA 4.0
|
<p>Alice has been severely injured or is otherwise in danger. Eve wants to help Alice, but Bob is somehow preventing her from getting to Alice. Assume that Bob is not threatening to harm Eve; he is only preventing her from helping Alice. Perhaps Eve needs to walk down a narrow hallway and Bob is blocking it and refusing to move; there is no alternative way to rescue Alice.</p>
<p>Is it legal for Eve to use physical force against Bob in order to rescue Alice? Does it matter whether or not Bob is responsible for Alice's injury or endangerment?</p>
| 90,856 |
[
{
"answer_id": 90862,
"body": "<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></p>\n<p>Bob through his actions is harming Alice. Thus Eve may use the minimum necessary force to help Alice as <em>Nothilfe</em>, which is defined as using <a href=\"https://www.gesetze-im-internet.de/stgb/__32.html\" rel=\"noreferrer\">§32 StGB</a> (Self protection/Notwehr) and <a href=\"https://www.gesetze-im-internet.de/stgb/__34.html\" rel=\"noreferrer\">§34 StGB</a> (justifying state of emergency/Rechtfertigender Notstand). As a result, it is allowed to harm someone to the degree of self protection for the benefit of someone else that can't protect themselves - such as Alice. However, the amount of force allowed must be proportional to the harm done to Alice - so Eve may use the <em>least</em> needed amount of force to get Bob from stopping Eve from helping Alice.</p>\n<p>As an example, Eve might shove Bob out of the way, hit him, or use the threat of serious harm (which is usually illegal!) to deter Bob from getting in the way, but unless Alice is actually at risk of dying from Bob keeping her from applying pressure on a lacerated artery this very moment, she can't shoot at Bob - that would overstep the Notwehr, but might not be punished if the overstepping is for the right reasons defined in <a href=\"https://www.gesetze-im-internet.de/stgb/__33.html\" rel=\"noreferrer\">§33 StGB.</a></p>\n<p>Bob <em>also</em> is liable for not rendering aid, <a href=\"https://www.gesetze-im-internet.de/stgb/__323c.html\" rel=\"noreferrer\">§323c StGB</a> <em>unterlassene Hilfeleistung/Behinderung von hilfeleistenden Personen</em> (Failure to provide assistance/hindering persons providing assistance).</p>\n",
"score": 26
},
{
"answer_id": 90874,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>There are dozens of jurisdictions in the U.S. with different criminal laws, but most have adopted the “justification of necessity” from the Model Penal Code of 1967. This created a general defense (§ 3.02(1)(a)) that:</p>\n<blockquote>\n<p>Conduct which the actor believes to be necessary to avoid harm or evil…is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.</p>\n</blockquote>\n<p>This is not actual law, but some sections of it have had great influence, and most states have passed a provision close to this.</p>\n",
"score": 14
},
{
"answer_id": 90858,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>The necessity defence may be available to Eve. In Canada there are three elements to this defence (<em>R. v. Latimer</em>, 2001 SCC 1 at <a href=\"https://canlii.ca/t/523c#par28\" rel=\"noreferrer\">paras. 28-31</a>):</p>\n<ol>\n<li>there must be an urgent situation of “clear and imminent peril”;</li>\n<li>there must be no reasonable legal alternative to disobeying the law;</li>\n<li>there must be proportionality between the harm inflicted and the harm avoided.</li>\n</ol>\n<p>And if Eve believes on reasonable grounds that there is a threat of force against Alice, then the defence called "<a href=\"https://law.stackexchange.com/a/87387/46948\">defence of another</a>" comes into play as well. It is codified at s. 34 of the <em>Criminal Code</em>:</p>\n<blockquote>\n<p>34 (1) A person is not guilty of an offence if</p>\n<p>(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;</p>\n<p>(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and</p>\n<p>(c) the act committed is reasonable in the circumstances.</p>\n</blockquote>\n<p>The Supreme Court noted:</p>\n<blockquote>\n<p>what is relevant is reasonably apprehended “force” of any kind, including force that is the product of negligence. The accused’s response under the new law is also no longer limited to a defensive use of force. It can apply to other classes of offences, including acts that tread upon the rights of innocent third parties... (<em>R. v. Khill</em>, at <a href=\"https://canlii.ca/t/jjlbr#par40\" rel=\"noreferrer\">para. 40</a>).</p>\n</blockquote>\n",
"score": 13
},
{
"answer_id": 90883,
"body": "<p><a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" aria-label=\"show questions tagged 'new-south-wales'\" rel=\"tag\" aria-labelledby=\"tag-new-south-wales-tooltip-container\">new-south-wales</a></p>\n<h2>Self-defence</h2>\n<p><a href=\"https://legislation.nsw.gov.au/view/html/inforce/2023-02-01/act-1900-040?query=VersionSeriesId%3D%2261ad600f-5ef7-4e9b-93d5-043eaf5ceebb%22%20AND%20VersionDescId%3D%22404d3b54-1d51-4dbf-921d-3623779b223f%22%20AND%20PrintType%3D%22act.reprint%22%20AND%20(VersionDescId%3D%22404d3b54-1d51-4dbf-921d-3623779b223f%22%20AND%20VersionSeriesId%3D%2261ad600f-5ef7-4e9b-93d5-043eaf5ceebb%22%20AND%20PrintType%3D%22act.reprint%22%20AND%20Content%3D(%22Self%20defence%22))&dQuery=Document%20Types%3D%22%3Cspan%20class%3D%27dq-highlight%27%3EActs%3C%2Fspan%3E%2C%20%3Cspan%20class%3D%27dq-highlight%27%3ERegulations%3C%2Fspan%3E%2C%20%3Cspan%20class%3D%27dq-highlight%27%3EEPIs%3C%2Fspan%3E%22%2C%20Search%20In%3D%22%3Cspan%20class%3D%27dq-highlight%27%3EAll%20Content%3C%2Fspan%3E%22%2C%20Exact%20Phrase%3D%22%3Cspan%20class%3D%27dq-highlight%27%3ESelf%20defence%3C%2Fspan%3E%22%2C%20Point%20In%20Time%3D%22%3Cspan%20class%3D%27dq-highlight%27%3E01%2F02%2F2023%3C%2Fspan%3E%22#pt.11-div.3\" rel=\"noreferrer\">s418</a> of the Crimes Act (my emphasis):</p>\n<blockquote>\n<p>(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.</p>\n<p>(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—</p>\n<p>(a) to defend himself or herself <strong>or another person</strong>, or</p>\n<p>(b) to prevent or terminate the unlawful deprivation of his or her liberty <strong>or the liberty of another person</strong>, or</p>\n<p>(c) to protect property from unlawful taking, destruction, damage or interference, or</p>\n<p>(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,</p>\n<p>and the conduct is a reasonable response in the circumstances as he or she perceives them.</p>\n</blockquote>\n",
"score": 8
},
{
"answer_id": 90919,
"body": "<p>In <a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a>, if you are in a position to help someone who is in danger, and you decided not to even though there is no immediate danger for yourself, you can be prosecuted. This is defined in <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000037289588/\" rel=\"noreferrer\">article 223-6 du code pénal</a> and is often referred as "non-assistance à personne en danger"; also called <a href=\"https://en.wikipedia.org/wiki/Duty_to_rescue#France\" rel=\"noreferrer\">"duty to rescue"</a> in English.</p>\n<p>Original text and DeepL translation below:</p>\n<blockquote>\n<p>Quiconque pouvant empêcher par son action immédiate, sans risque pour\nlui ou pour les tiers, soit un crime, soit un délit contre l'intégrité\ncorporelle de la personne s'abstient volontairement de le faire est\npuni de cinq ans d'emprisonnement et de 75 000 euros d'amende.</p>\n<p>Sera puni des mêmes peines quiconque s'abstient volontairement de\nporter à une personne en péril l'assistance que, sans risque pour lui\nou pour les tiers, il pouvait lui prêter soit par son action\npersonnelle, soit en provoquant un secours.</p>\n<p>Les peines sont portées à sept ans d'emprisonnement et 100 000 euros\nd'amende lorsque le crime ou le délit contre l'intégrité corporelle de\nla personne mentionnée au premier alinéa est commis sur un mineur de\nquinze ans ou lorsque la personne en péril mentionnée au deuxième\nalinéa est un mineur de quinze ans.</p>\n</blockquote>\n<p>DeepL translation:</p>\n<blockquote>\n<p>Any person who can prevent by his immediate action, without risk to\nhimself or to third parties, either a crime or an offence against the\nphysical integrity of the person, voluntarily refrains from doing so\nis punished by five years' imprisonment and a fine of 75,000 euros.</p>\n<p>Will be punished with the same penalties whoever voluntarily refrains\nfrom giving to a person in danger the assistance that, without risk\nfor him or for the thirds, he could give him either by his personal\naction, or by provoking a help.</p>\n<p>The penalties are increased to seven years' imprisonment and a fine of\n100,000 euros when the crime or offence against the physical integrity\nof the person mentioned in the first paragraph is committed against a\nminor of fifteen years of age or when the person in danger mentioned\nin the second paragraph is a minor of fifteen years of age.</p>\n</blockquote>\n<p>Although it does not directly answer the question as to whether or not it is legal to <em>use force against a person who is trying to stop you from rescuing another person</em>, it does say that you are expected to do what you can to attempt to provide assistance.</p>\n",
"score": 8
}
] |
[
"self-defense",
"assault",
"any-jurisdiction",
"hypothetical",
"use-of-force"
] |
Do the Ohio sheriffs suing Afroman have any legal standing in their claim of "invasion of privacy and misappropriation of their likenesses" lawsuit?
| 40 |
https://law.stackexchange.com/questions/90806/do-the-ohio-sheriffs-suing-afroman-have-any-legal-standing-in-their-claim-of-in
|
CC BY-SA 4.0
|
<p>From <a href="https://hiphopdx.com/news/afroman-sued-ohio-sheriffs-home-raid" rel="noreferrer">this article “Afroman Sued by Sheriffs for Allegedly Profiting from Raid on his Home</a>.</p>
<blockquote>
<p>Afroman is reportedly being sued by a number of Ohio sheriff deputies for allegedly profiting off the raid they conducted on his home last summer.</p>
<p>The Adams County Sheriff’s Department ran up on Afroman’s home last August, where officers searched for illegal narcotics but failed to find anything.</p>
<p>Afroman filmed the entire raid via his security cameras, and in the months since the raid has compiled the footage together to turn it into a music video called “Will You Help Me Repair My Door.” This has reportedly upset the Ohio sheriff’s deputies involved in the raid as they believe Afroman to be profiting off their hard work.</p>
<p>In turn, the police are suing for invasion of privacy and misappropriation of their likenesses, and are claiming the music video has caused them emotional distress, ridicule, humiliation, loss of reputation and embarrassment.</p>
<p>“My house is my property, my video camera films, everything on my property as they begin, stealing my money, disconnecting plus destroying my video camera system, they became my property,” Afroman said. “Criminals caught in the act, of vandalizing and stealing money. My video footage is my property. I used it to identify the criminals who broke into my house, and stole my money. I used it to identify criminals, who broke into my house, stole my money and disconnected my home security system.”</p>
</blockquote>
<p>Do the Ohio sheriffs suing Afroman have any legal standing in their claim "invasion of privacy and misappropriation of their likenesses" lawsuit?</p>
| 90,806 |
[
{
"answer_id": 90811,
"body": "<h2>The deputies have standing, but they're probably going to lose.</h2>\n<p>"Standing" is just a legal principle that limits the legal process to people who have suffered certain types of injuries. Jen's answer offers a good explanation of why the answer is yes, they do have standing.</p>\n<p>But I assume you're less interested in whether the officers are capable of bringing the case than in whether their case is likely to succeed.</p>\n<p>The answer to that is no.</p>\n<p><strong>Claim 1</strong> alleges a violation of Ohio's right-of-publicity statute. But that statute includes a carveout for any "use of the persona of an individual that is protected by the First Amendment to the United States Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue." <a href=\"https://codes.ohio.gov/ohio-revised-code/section-2741.09\" rel=\"noreferrer\">Ohio Rev. Code 2741.09</a> .</p>\n<p>So the officers lose if Afroman's videos are protected by the First Amendment. And they almost certainly are, as the assumption is that <a href=\"https://law.stackexchange.com/questions/56001/in-the-usa-can-treason-be-protected-by-the-first-amendment/56002#56002\">all speech is protected unless it falls into one of several very narrow categories</a> -- incitement, defamation, fighting words, etc. -- that are pretty clearly not applicable here.</p>\n<p><strong>Claim 2</strong> alleges misappropriation of persona. This claim strikes me as the strongest, but probably still pretty weak. To win this claim, the deputies must prove:</p>\n<ol>\n<li>that Afroman appropriated to his own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of their name or likeness;</li>\n<li>that their names or likenesses have some intrinsic value; and</li>\n<li>that that value was taken by defendant for its own benefit, commercial or otherwise.</li>\n</ol>\n<p><a href=\"https://casetext.com/case/jackson-v-playboy-enterprises-inc\" rel=\"noreferrer\"><em>Jackson v. Playboy Enters.</em>, Inc., 574 F. Supp. 10, 13 (S.D. Ohio 1983)</a>. <em>See also</em> <a href=\"https://casetext.com/case/zacchini-v-broadcasting-company\" rel=\"noreferrer\"><em>Zacchini v. Scripps-Howard Broad. Co.</em>, 433 U.S. 562, 576 (1977)</a> ("No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.").</p>\n<p>It seems like it will be difficult to argue that the deputies' names or likenesses have any intrinsic value on which to premise damages. If the idea of this tort is to give the plaintiff the benefit of the commercial value of the misapporpriation, the court must evaluate whether there's any commercial value to the use of the deputies' names or images. Are these deputies moonlighting as models? Would they have licensed the use of their likenesses if Afroman had so requested? It seems unlikely. Instead, the value of using them in these contexts arises only from their connection with a newsworthy event on which Afroman wishes to comment. That seems to move us out of privacy territory and into protected speech territory, which means Claim 2 should fail.</p>\n<p><strong>Claim 3</strong> alleges false-light invasion of privacy. To win this claim, the deputies must prove:</p>\n<ol>\n<li>that Afroman gives publicity to a matter concerning them;</li>\n<li>that the publicity placed the deputies before the public in a false light;</li>\n<li>that the false light in which the other was placed would be highly offensive to a reasonable person; and</li>\n<li>that Afroman acted with actual malice.</li>\n</ol>\n<p><a href=\"https://casetext.com/case/welling-v-weinfeld-2005-1964-6-6-2007\" rel=\"noreferrer\"><em>Welling v. Weinfeld</em>, 113 Ohio St. 3d 464, 473 (2007)</a>.</p>\n<p>The complaint does not identify any statements Afroman made that were false or that placed the deputies in a false light before the public. The only things I can see as possibly "false" are the hyperbolic statements mocking the police officers, such as those suggesting that a female deputy is actually a man because her voice was "three octaves lower" than his, or his suggestions that the police are members of the KKK.</p>\n<p>Without something more substantial that reasonable people would have been likely to truly believe was true, this claim is likely to fail also, as hyperbole and opinion are generally protected under the First Amendment. <a href=\"https://casetext.com/case/vail-v-the-plain-dealer-publishing-co\" rel=\"noreferrer\"><em>Vail v. the Plain Dealer Publishing Co.</em>, 72 Ohio St. 3d 279, 283 (Ohio 1995)</a> (“The ordinary reader would accept this column as opinion and not as fact. Therefore, the statements are protected.”).</p>\n<p><strong>Claim 4</strong> alleges unreasonable publicity given to private lives. To win this claim, the deputies must prove:</p>\n<blockquote>\n<ol>\n<li>there is publicity;</li>\n<li>the facts disclosed concern an individual's private life;</li>\n<li>the matter publicized was one that would be highly offensive and objectionable to a reasonable person of ordinary sensibilities;</li>\n<li>the publication was made intentionally, rather than negligently; and</li>\n<li>the matter publicized was of no legitimate concern to the public.</li>\n</ol>\n</blockquote>\n<p><a href=\"https://casetext.com/case/cox-v-hausmann-1\" rel=\"noreferrer\"><em>Cox v. Hausmann</em>, No. 3:17-cv-02420, 2020 U.S. Dist. LEXIS 181458, at *33 (N.D. Ohio Sep. 30, 2020)</a>.</p>\n<p>From my review of the complaint and some of Afroman's media, it doesn't look like Afroman has publicized any facts that are subject to a legitimate claim of privacy. Instead, Afroman has published video of government officials, engaged in the work of government, and commented on those videos. Those are matters about the deputies' public lives, not private, and the conduct of police is of legitimate concern to the public. Claim 4 should therefore also fail.</p>\n<p>It seems more likely that this case was brought to intimidate Afroman or to create some kind of leverage in the civil-rights claim Afroman will probably be bringing based on potential violations of his Fourth Amendment rights. If this is correct, the deputies will be lucky to have the case simply dismissed. Sanctions and an abuse-of-process counterclaim are more likely.</p>\n",
"score": 59
},
{
"answer_id": 90830,
"body": "<p>Digital Fire in the comments to the question is wrong in believing that:</p>\n<blockquote>\n<p>My layman's interpretation of [standing] would be; Do you cops have\na real case here or are they just mad they got embarrassed and seeking\nsome type of legal retribution that has no chance?</p>\n</blockquote>\n<p>Standing is a much narrower inquiry. It involves #1 if the thing that the complaint alleges was harmed was an injury legally recognized right, and if #1 is true, #2 figuring out if the person bringing the lawsuit was the person to whom legally recognized right actually belonged (or if the person bringing the lawsuit may properly vindicate harm to a legally recognized right because that person has a legally recognized relationship to the person to whom it belonged, like the next of kin of a dead person or a guardian of a minor).</p>\n<p>For example, if you allege that someone breached a contract with you, you have a legally recognized right to enforce that contract right, and you are a party to the contract so you are the right person to enforce that right. But, your neighbor doesn't have standing to sue alleging that someone breach a contract with you in most cases (unless the neighbor is an intended third-party beneficiary of the contract). You have standing to sue, however, even if, actually, the contract wasn't breached because you were mistaken about the facts or your interpretation of the contract is incorrect.</p>\n<p>Similarly, you can't sue someone for destroying my car unless you have some relationship with me that allows you to assert rights in my shoes (e.g. if you are an insurance company that paid my claim in exchange for the right to take over might right to sue the person who caused the damage, which is called a subrogation right). You have standing to sue even if it turns out that the person you are suing isn't at fault because the damage was actually caused by a meteor falling from the sky and not by the person you are suing actively trying to crush your car. You don't lack standing just because the argument you are making doesn't win.</p>\n<p>Jen is correct in <a href=\"https://law.stackexchange.com/a/90807/9517\">her answer</a> that they have standing on the claims that they are pursuing, i<em>f they are valid claims on the merits as pleaded</em>. But if there are flaws in the theories asserted, those flaws could give rise to genuine standing to sue concerns.</p>\n<p>But, the question you asked doesn't seem to be the one you meant to ask, which is really whether they have stated a claim upon which they are entitled to legal relief if the facts are as they allege. The <a href=\"https://law.stackexchange.com/a/90811/9517\">answer from bdb484</a> identifies some good arguments that these claims should not prevail on the merits. The right of publicity claim seems to fail on the face of the statute. The other three common law claims are also weak on their face even without considering standing to sue.</p>\n<p>Still, there are also at least a couple of standing-like arguments to make over whether there was really a concrete, cognizable injury to the plaintiff applying Ohio's standing law to these facts.</p>\n<p><strong>Who Suffers The Misappropriation Of Likeness Injury (If Any)?</strong></p>\n<p>One argument that they genuinely do not have standing to pursue misappropriation of their likenesses claims is that when a public official is carrying out his or her official duties, his image and likeness when doing so, like written work product and other creative works he makes in that capacity, are really basically "work for hire" and that any right to economic gain from appropriation of their likeness belongs to their employer, the government entity, and not them. Getting photographed is part of the job so the economic return on anything that is part of the job belongs to the employer.</p>\n<p>The misappropriation of likeness claims was originally developed when businesses used images of models in advertisements without compensating or entering into a contract to compensate the models. But if someone is paying you to do things that may involved being photographed or videotaped in public as part of your job, this starts to sound like a case where a model tries to sue for misappropriation of likeness despite being paid pursuant to a contract to model.</p>\n<p>Maybe their employer has a misappropriation of likeness claim, but under this theory, the individual officers do not. Also, maybe even if any misappropriation of likeness claim is available for employers in general, maybe a government employer is not allowed to seek compensation from citizens engaging in constitutionally protected, otherwise lawful activity.</p>\n<p>An alternative and related non-standing argument is that the misappropriation of likeness claim should not be allowed for public employees as a matter of state law public policy concerns, because it amounts to a claim seeking to be paid by a private party for doing your public job with compensation in addition to what the government is paying you, which looks like some form of graft or corruption or double recovery for your labor. This is particularly true if the employer has a policy of not permitting moonlighting or at least not permitting moonlighting during hours you are billing the employer for your work.</p>\n<p><strong>Is There An Injury To A Cognizable Privacy Interest To Invade?</strong></p>\n<p>There can only be standing to pursue an injury to your privacy interests if there is a cognizable concrete interest in privacy that belongs to the officers to protect.</p>\n<p>In this context, that is a hard argument to make, and the state tort law also needs to be interpreted in resolving that question in a manner consistent with the U.S. Constitution.</p>\n<p>There is a well-established constitutional right to film law enforcement officers acting under color of law. This right is critical to documenting violations of civil rights by those officers. The real strategic purpose of the officers in this lawsuit is not to make an extra buck from a TV appearance, but to find a back door way to discourage people from exercising their constitutional right to film police officers so it is harder to sue them for violating the rights of public citizens.</p>\n<p>One way to resolve the potential conflict between the constitution and state tort law with respect to the invasion of privacy tort is to argue that a government employee in the course of official duties does not have any reasonable expectation of privacy while carrying out official duties in the plain view of members of the public.</p>\n<p>If there is no legally cognizable privacy interest to injure in that context, then there may be no cognizable injury that can be harmed, and therefore there is no standing to sue, because there is no privacy right to injure.</p>\n<p>One could also make a similar non-standing legal argument on the merits that a public policy exception or simple supremacy clause analysis should cause a state law tort to yield to a federal constitutional right. In the same way, there are certain kinds of defamation lawsuits that states are not allowed to permit because the First Amendment limits the scope of state tort law.</p>\n<p><strong>Why Care?</strong></p>\n<p><em>In General</em></p>\n<p>There are good reasons to care about whether the problem, if any, with these lawsuits is a question of standing or simply a failure to state a valid legal claim on other grounds.</p>\n<p>Standing is a question of a court's subject-matter jurisdiction. And, questions of subject-matter jurisdiction can be considered at any stage of the litigation, even if not preserved as a legal issue in the trial court or any other lower court.</p>\n<p>Indeed, subject-matter jurisdiction is one of the few issues which courts are not only allowed but required to raise <em>sua sponte</em> (i.e. on its own without prompting) even if none of the parties in the case argue that subject-matter jurisdiction (including standing) is not present.</p>\n<p>Subject-matter jurisdiction defects like standing cannot be waived. They can also be used to set aside court judgments or orders long after they are entered, when the deadline to raise other kinds of problems with a court judgment or order has long since expired. There is never a statute of limitations on contesting a judgment or order for lack of subject-matter jurisdiction on the part of the court that entered it (although if the issue has been actively litigated and resolved on the merits, doctrines like res judicata or collateral estoppel may prevent relitigation of the issue).</p>\n<p><em>Standing in State v. Federal Court</em></p>\n<p>Also, it is important to note that while in federal court, Article III of the U.S. Constitution (which applies only to federal courts) makes standing a U.S. Constitutional requirement, Article III of the U.S. Constitution does not apply to state courts.</p>\n<p>In state courts, standing may be a state constitutional, or statutory, or common law requirement for a party bringing a lawsuit.</p>\n<p>But, while standing is usually a matter of subject-matter jurisdiction even in state court (often with some narrow exceptions involving the legislative or electoral process), a state can allow people who would not have standing under federal law to bring lawsuits in state courts, and a state can also require standing without making it a matter of subject-matter jurisdiction if it wishes to do so, without violating the U.S. Constitution.</p>\n<p><em>Litigation Cost Considerations</em></p>\n<p>Also, most standing issues (and some of the non-standing issues) can be resolved very early in the case on motion to dismiss the complaint, rather than having to wait until evidence can be considered in a motion for summary judgment or at trial following long and expensive litigation, and if it can't be resolved on a motion to dismiss can often be resolved in a motion for summary judgment or an early pre-trial hearing.</p>\n<p>This can dramatically reduce the litigation costs of the case of the defendants relative to some other kinds of defenses that may be valid and could be raised but don't immediately kill the claim dead.</p>\n",
"score": 22
},
{
"answer_id": 90807,
"body": "<p>Yes, individuals do have personal standing in suits for invasion of privacy and the like.</p>\n<p>Ohio generally follows the federal approach to standing law, which requires that a litigant alleges a (1) concrete (2) personal injury (3) caused by the defendant (4) which can be redressed by the court. See generally: Kristen Elia, "Ohio's Standing Requirements and the Unworkable Public-Rights Exception", <a href=\"https://scholarship.law.uc.edu/uclr/vol86/iss3/5\" rel=\"nofollow noreferrer\">86 U. Cin. L. Rev. 1019</a> (2018)</p>\n<p>A person clearly has standing to bring a tort suit on one's own behalf, alleging personal harms flowing from the defendant, requesting money damages. Suits such as this are perhaps the oldest and most well-established examples of standing.</p>\n<ul>\n<li>I defer to <a href=\"https://law.stackexchange.com/a/90811/46948\">bdb484's answer</a> about the likelihood of success on the merits</li>\n<li><a href=\"https://law.stackexchange.com/a/90830/46948\">ohwilleke has written a good answer</a> raising potential standing issues in the case that the claims are founded on injuries that are just not legally possible (I find the line between standing and merits difficult to draw in cases like this)</li>\n</ul>\n",
"score": 18
}
] |
[
"united-states",
"privacy",
"first-amendment",
"ohio",
"right-of-publicity"
] |
Could Julian Assange have elected for the portions of his extradition proceedings conducted at Westminster magistrates to have been in crown court?
| 1 |
https://law.stackexchange.com/questions/90906/could-julian-assange-have-elected-for-the-portions-of-his-extradition-proceeding
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CC BY-SA 4.0
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<p>Parts of the extradition proceedings thus far of Julian Assange have taken place in Woolwich Crown Court, others in the old Bailey, others like his post-triumph bail hearing and also monthly case management hearings and also the “approval” of the extradition order happened at Westminster magistrate’s court which is apparently statutorily designated to handle extradition request proceedings for England and Wales.</p>
<p>In most Criminal cases however, perhaps as an additional safeguard on people’s due Process rights, they have an option to elect for a crown court (ie jury) trial if they like. Why was this principle not available for Julian? (Or was it?)</p>
<p>Furthermore, why was the first iteration of his extradition proceedings (I gather based on the original indictment) at Woolwich crown court, when the proceedings related to the superseding and second superseding indictments were undertaken seemingly all at the old Bailey? Does this not imply that these “substantive” rather than “ceremonial” parts of the proceedings actually were at crown courts in both cases, including at the old Bailey / central criminal court? Even if so, why was the first iteration at Woolwich and the second in central London?</p>
<p>And finally, if it was in fact at a crown court in both cases, does that imply that there was a jury involved? (I assume not because then they would have been mentioned in many of the countless media reports on the proceedings. )</p>
| 90,906 |
[
{
"answer_id": 90913,
"body": "<p>Extradition is a special procedure that is tightly governed by statute - currently the <a href=\"https://www.legislation.gov.uk/ukpga/2003/41/contents\" rel=\"noreferrer\">Extradition Act 2003</a>. That Act provides that, for extradition from England (as opposed to Scotland, etc.) to the United States (an example of a Category 2 Territory), an initial hearing is to take place before "the appropriate judge". This is, per <a href=\"https://www.legislation.gov.uk/ukpga/2003/41/section/139\" rel=\"noreferrer\">s.139(1)(a)</a>, a designated "District Judge (Magistrates' Courts)". A DJMC sits in a magistrates' court, and is a professional judge as opposed to a layperson like an ordinary Justice of the Peace. The hearing is meant to resemble summary proceedings in the magistrates' court, but it has its own special rules. Those include a special appeals procedure which is different from the ordinary way that criminal cases can be appealed. Some things that could normally happen in a magistrates' court cannot happen here, such as varying an order at a later date (see R (Mann) v Westminster Magistrates Court [2010] EWHC 48 (Admin)).</p>\n<p>The way that this is phrased means that the jurisdiction is not conferred <em>on the magistrates' court</em> (which happens to have a DJ sitting in it), but <em>on the DJMC</em> themselves. The <a href=\"https://www.legislation.gov.uk/uksi/2014/1610\" rel=\"noreferrer\">Criminal Procedure Rules 2014, Rule 17.2(a)</a> are careful to say that when they say "magistrates' court" in this context, they are talking about the court that the judge has convened for the purposes of the Extradition Act. These rules are only applicable because the Act specifically provides for them in its s.210; they don't come in automatically as they would for criminal proceedings in a magistrates' court, because this is a special process with its own law, as expounded in the Explanatory Notes to the rules.</p>\n<p>In the Assange case, the DJMC was Vanessa Baraitser, including at Woolwich and the Old Bailey. The proceedings were under the Extradition Act as explained above.</p>\n<p>The court chose to sit in various buildings, other than Westminster Magistrates Court, for practical reasons due to the high level of public interest in the case, and related security considerations. The hearing was booked to last four weeks, which is <em>very</em> unusually long. Proceedings were live-streamed to other court buildings to allow members of the public and media to follow along.</p>\n<p>All of that does not mean that the proceedings were in a Crown Court or County Court. They were in buildings used by those courts, but took place before the designated DJMC according to the special procedure of the Extradition Act. That procedure, among other things, means that the extradition hearing cannot take place as a hearing of some other court, and there is no jury no matter how much the defendant wants one.</p>\n",
"score": 5
}
] |
[
"united-kingdom",
"england-and-wales",
"court",
"criminal-procedure",
"extradition"
] |
Does property include money in the sense of ECHR right of peaceful enjoyment?
| 0 |
https://law.stackexchange.com/questions/90897/does-property-include-money-in-the-sense-of-echr-right-of-peaceful-enjoyment
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CC BY-SA 4.0
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<p>ECHR protocol 1 article 1 protects the right to peacefully enjoy one’s property. Does this include money? For example if one has frozen, seized or confiscated by fines, would this be Applicable as much as with forfeiture of a house?</p>
| 90,897 |
[
{
"answer_id": 90908,
"body": "<p>The ECHR protocols are not meant (and not generally understood) to prohibit taxation or fines by the state in accordance with the rule of law. See e.g. this explanation by the <a href=\"https://www.coe.int/en/web/echr-toolkit/protocole-1\" rel=\"nofollow noreferrer\">Council of Europe</a>. As to the specific question, this explanation enumerates shares and leases as property, and the text makes it clear that bank accounts or cash would also be covered:</p>\n<blockquote>\n<p>[...] in the general interest or to secure the payment of taxes or penalties; [...]</p>\n</blockquote>\n",
"score": 4
},
{
"answer_id": 90912,
"body": "<p>ECHR Protocol 1 Article 1 is:</p>\n<blockquote>\n<p>Article 1 – Protection of property</p>\n<p>Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.</p>\n<p>The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.</p>\n</blockquote>\n<p>There is nothing in this article to suggest that it would only apply to certain kinds of property and not to others (e.g. real estate, money, moveable property, intellectual property). However, since taxes are mentioned, we can conclude that money is definitely part of this article's concept of property/possessions.</p>\n<p>You mention issues such as confiscation. It is important to note that the right to property is a <em>qualified right</em> that can be restricted by law. For example, note that this Article 1 expects the right to property to be limited in the following ways:</p>\n<ul>\n<li>Depriving people of their property is allowed for a public interest, subject to conditions established in law and international law.</li>\n<li>States have the right to enforce laws that control the use of property in accordance with a "general interest"</li>\n<li>States have a right to enforce laws to secure the payment of taxes, contributions, and penalties.</li>\n</ul>\n<p>That is, the state can't just seize your money or other property – they have to do it on the basis of a law, and may have to satisfy further criteria such as a public interest.</p>\n<p>Few fundamental rights are <em>absolute rights</em>, and even those can clash with other rights. For example, the right to life from ECHR Article 2 along with Protocol 13 Article 2 is pretty absolute, and forbids the death penalty – but it still allows people to be killed as the result of reasonable force.</p>\n",
"score": 1
}
] |
[
"european-union",
"property",
"human-rights",
"peaceful-enjoyment"
] |
Can my employer sue me for copyright infringement if the client owns the work product and copy rights?
| 0 |
https://law.stackexchange.com/questions/90904/can-my-employer-sue-me-for-copyright-infringement-if-the-client-owns-the-work-pr
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CC BY-SA 4.0
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<p>I used to work for a company, and i was part of a team who produced work product for the clients. In the contract between the employer and client, it says that the client owns the rights, title, and interest in any and all intellectual property or other products or materials created or developed pursuant to this agreement.</p>
<p>The client authorized me to use some of the work product in my portfolio of work, but the previous employer is stating that its their work product and they sent me a cease and desist letter.</p>
<p>Can the employer legally claim ownership and copyright infringement if the contract says that the client owns everything we created? Thank you for your help</p>
| 90,904 |
[
{
"answer_id": 90907,
"body": "<p>Certain details of copyright vary between different jurisdictions. But to me, it looks like a <em>misunderstanding</em>:</p>\n<ul>\n<li>As an employee, you assigned all rights (all of those which can be transferred) to your employer.</li>\n<li>The employer then sold them to the client.</li>\n<li>The client then granted you certain rights, without necessarily telling your employer.</li>\n</ul>\n<p>So it could be that the employer <em>thinks</em> they are protecting their professional reputation by making sure that employees do not re-use the content. If you haven't done so, you can contact your employer and inform them of the permission you were granted, and ask if they still want you to cease and desist.</p>\n<p><em>Also,</em> in some jurisdictions you are required to keep interactions between yourself and the employer regarding work like this (but also business plans, pricing decisions, ect.) confidential. Basically, an employment contract implies some sort of NDA. Elsewhere, such confidentiality may be routinely written into employment contracts. The client cannot release you from your duty towards your employer to keep internal communications (<em>including the result of your work</em>) confidential. So the employer might actually have a valid complaint against you, but not on copyright grounds.</p>\n",
"score": 2
}
] |
[
"copyright",
"intellectual-property"
] |
Under what conditions could a police force enlist the help of a minor?
| 4 |
https://law.stackexchange.com/questions/50471/under-what-conditions-could-a-police-force-enlist-the-help-of-a-minor
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CC BY-SA 4.0
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<p>Would it be illegal for a fourteen year old to assist the police in solving a murder in New York City? What kind of red tape would the department need to navigate in order to enlist their help?</p>
| 50,471 |
[
{
"answer_id": 90851,
"body": "<p>There are various ways in which a minor <em>cannot</em> assist a police investigation, and it might be useful to say in what ways any civilian could do so (TV shows notwithstanding). A civilian cannot conduct a custodial interrogation, nor can most of them gather physical evidence (so that a proper evidence log is maintained including relevant information on method of collection, the evidence isn't contaminated etc. – stuff that requires a modicum of training). They cannot execute a search warrant.</p>\n<p>On the other hand, anyone can provide information that is useful to the police, and it can be done without giving your name or indicating that you are a minor. A minor can serve as a witness at a trial, and it can be helpful to police to know that they have a witness to a crime. A minor can also be used the same way an adult is used, as a confidential informant. There is not a lot of data on that practice given the confidentiality of juvenile records, but there is an article to read (<a href=\"https://www.researchgate.net/publication/311826315_Juvenile_Police_Informants_Friendship_Persuasion_and_Pretense\" rel=\"nofollow noreferrer\">"Juvenile Police Informants: Friendship, Persuasion, and Pretense"</a>. The article does suggest that parental consent may be necessary in some cases (such as wearing a wire to a drug transaction).</p>\n<p>There is a <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=10.56&full=true\" rel=\"nofollow noreferrer\">law in Washington</a> requiring every county's prosecutor to have a local protocol for using informants, and there should be guidelines developed by a work group, however the results (if any) of that group's meetings are not available on the internet. It is possible that there are specific restrictions on the use of minors as informants in some jurisdiction. The article explores the subtle distinction between "informant" and "friend", applied to minors. California has a <a href=\"http://leginfo.ca.gov/pub/97-98/bill/asm/ab_2801-2850/ab_2816_cfa_19980629_110142_asm_comm.html\" rel=\"nofollow noreferrer\">law that limits the use of minors</a> – none under 15, those above with approval of a judicial officer and parent, though those 13 and older can be used as bait in a cigarette or alcohol sales case.</p>\n<p>New York does not have a blanket prohibition against using a minor as an informant, but there may be relevant guidelines for a particular department.</p>\n",
"score": 3
},
{
"answer_id": 90840,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<ul>\n<li><strong>Short Answer:</strong></li>\n</ul>\n<p>They must be a registered informant, with set parameters and only conduct agreed activities.</p>\n<ul>\n<li><strong>Long Answer:</strong></li>\n</ul>\n<p>For a juvenile (i.e. someone under 18 years old) to provide proactive assistance to the police in the way suggested by the question, they must be authorised under <a href=\"https://www.legislation.gov.uk/ukpga/2000/23/part/II?timeline=false\" rel=\"nofollow noreferrer\">Part 2</a>, Regulation of Investigatory Powers Act 2000 (RIPA, pronounced <em>ripper</em>) as a Covert Human Intelligence Source (CHIS, rhymes with <em>fizz</em>), or more accurately a JCHIS.</p>\n<p>In addition to Part 2, there is the <a href=\"https://www.gov.uk/government/publications/covert-human-intelligence-sources-code-of-practice-2022/covert-human-intelligence-sources-revised-code-of-practice-accessible#fn:7\" rel=\"nofollow noreferrer\">CHIS Code of Practice</a>, and the <a href=\"https://www.legislation.gov.uk/uksi/2000/2793/contents/made\" rel=\"nofollow noreferrer\">Regulation of Investigatory Powers (Juveniles) Order 2000</a> (as amended by the <a href=\"https://www.legislation.gov.uk/uksi/2018/715/contents/made\" rel=\"nofollow noreferrer\">2018 Order</a>) which, as well as providing for the authorisation and agreed conduct for all registered CHIS, they ceate specific safeguards for a juvenile CHIS.</p>\n<p>In particular, the 2000 Order requires:</p>\n<blockquote>\n<p>Article 3</p>\n<p>No authorisation may be granted for the conduct or use of a source if:</p>\n<ul>\n<li><p>(a) the source is under the age of sixteen; and</p>\n</li>\n<li><p>(b) the relationship to which the conduct or use would relate is between the source and his parent or any person who has parental responsibility for him.</p>\n</li>\n</ul>\n</blockquote>\n<blockquote>\n<p>Article 4</p>\n<p>(1) Where a source is under the age of sixteen, the arrangements referred to in section 29(2)(c) of the 2000 Act must be such that there is at all times a person holding an office, rank or position with a relevant investigating authority who has responsibility for ensuring that an appropriate adult is present at meetings to which this article applies.</p>\n<p>(2) This article applies to all meetings between the source and a person representing any relevant investigating authority that take place while the source remains under the age of sixteen.</p>\n<p>(3) In paragraph (1), “appropriate adult” means:</p>\n<ul>\n<li><p>(a) the parent or guardian of the source or;</p>\n</li>\n<li><p>(b) any other person who has for the time being assumed responsibility for his welfare or is otherwise qualified to represent the interests of the source.</p>\n</li>\n</ul>\n</blockquote>\n<blockquote>\n<p>Article 5</p>\n<p>[<em>succinctly as the content is too long to reproduce here: a comprehensive risk assessment must be in place</em>]</p>\n</blockquote>\n<blockquote>\n<p>Article 6</p>\n<p>In relation to an authorisation for the conduct or the use of a source who is under the age of eighteen at the time the authorisation is granted or renewed, section 43(3) of the 2000 Act shall have effect as if the period specified in paragraph (b) of that subsection were four months instead of twelve months.</p>\n</blockquote>\n<p>The Act also allows for, in certain circumstances, an authorisation for a CHIS to <a href=\"https://www.legislation.gov.uk/ukpga/2000/23/section/29B?timeline=false\" rel=\"nofollow noreferrer\">commit criminal conduct</a>, but I cannot find any example where this has been carried out by a JCHIS.</p>\n<p>For completeness, <a href=\"https://www.bailii.org/ew/cases/EWHC/Admin/2019/1772.html\" rel=\"nofollow noreferrer\">R (Just for Kids Law) v Secretary of State for Home Department [2019] EWHC 1772 (Admin)</a> was a challenge against the lawfulness of using JCHIS. The challenge failed, and the court determined that:</p>\n<blockquote>\n<p>The scheme to authorise juvenile CHIS adequately safeguarded the interest and welfare of juvenile CHIS and did not therefore give rise to an unacceptable risk of breach of the Article 8 rights [<em>i.e. respect for private and family life</em>] of a juvenile CHIS.</p>\n</blockquote>\n",
"score": 1
},
{
"answer_id": 90902,
"body": "<p>In NYC minors need a work permit to work. They can’t work in a factory, they can’t work on cars, their working hours are restricted. So, mainly the kid has to fill out and get the correct paperwork done (at their school) and signed by their guardian. The employer has to keep a copy of certificate.</p>\n<p>There could be some problems with firearms, if they want to arm the minor. The requirements for being a NYPD Detective state that you have to be at least 21, I imagine that is policy and not law. Private Investigator has an age limit of 25, which I believe is law.</p>\n",
"score": 0
}
] |
[
"united-states",
"criminal-law",
"minor",
"new-york-city",
"law-in-fiction"
] |
What are the “protocols” to the ECHR?
| 0 |
https://law.stackexchange.com/questions/90898/what-are-the-protocols-to-the-echr
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CC BY-SA 4.0
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<p>The European convention of human rights has “protocols” to it. What essentially are these?</p>
| 90,898 |
[
{
"answer_id": 90899,
"body": "<p>The <a href=\"https://treaties.un.org/Pages/overview.aspx?path=overview/definition/page1_en.xml#protocols\" rel=\"nofollow noreferrer\">protocols</a> are listed and linked in this <a href=\"https://echr.coe.int/Documents/Library_Collection_ProtocolsTable_ENG.pdf\" rel=\"nofollow noreferrer\">pdf</a>. It also explains:</p>\n<blockquote>\n<p>Over the last 50 years additional protocols have been repealed, integrated into the Convention or replaced, and today, the text of the ECHR contains the basic version as amended by Protocol 11 and 14, and 8 other protocols: the Additional Protocol (also called "Protocol No. 1") and Protocols Nos. 4, 6, 7,12, 13, 15 and 16.</p>\n</blockquote>\n<p>No protocol is the same. To understand what one is and its relationship to a related treaty, you need to read it. For example <a href=\"https://www.echr.coe.int/Documents/Library_Collection_P1postP11_ETS009E_ENG.pdf\" rel=\"nofollow noreferrer\">Protocol 1</a> directly says:</p>\n<blockquote>\n<p>As between the High Contracting Parties the provisions of Articles 1, 2, 3 and 4 of this Protocol shall be\nregarded as additional articles to the Convention and all the provisions of the Convention shall apply\naccordingly.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"european-union",
"human-rights",
"european-court-of-human-rights"
] |
How can anti-hate-speech laws be inconsistent with the First Amendment when (for instance) libel laws are consistent with it?
| -3 |
https://law.stackexchange.com/questions/90881/how-can-anti-hate-speech-laws-be-inconsistent-with-the-first-amendment-when-for
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CC BY-SA 4.0
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<p>Although the first article of amendment to the Constitution of the United States states that</p>
<blockquote>
<p>Congress shall make no law ... abridging the freedom of speech</p>
</blockquote>
<p>this proscription is far from absolute, as various forms of speech that cause harm to others can give rise to civil or criminal liability.</p>
<p>Given the numerous forms of harmful speech <em>not</em> protected by the First Amendment (many of which are <em>less</em>-potentially-harmful or less-<em>directly</em>-harmful than many forms of hate speech), it strikes me as extremely odd that <a href="https://en.wikipedia.org/wiki/Hate_speech" rel="nofollow noreferrer">hate speech</a> <em>is</em> a form of protected speech which cannot constitutionally be restricted by Congress or the states:<sup>1</sup></p>
<ul>
<li>If Dỳo libels Isabel's restaurant in his magazine column, causing his readers to avoid her restaurant and resulting in her losing business, Isabel can sue him for causing her financial loss via his libel.</li>
<li>If Sirleck kills Francine by speaking a lethal auditory cognitohazard, he can be arrested and tried for murder. (Even if he "merely" puts her in a vegetative state or drives her insane, he can still be arrested and tried for that.)</li>
<li>Yet, if Ronald kills Kayleigh by using incessant transphobic hate speech to drive her to suicide (or "merely" causes massive psychological trauma resulting in various delightful severe psychological and psychiatric disorders), he gets off scot-free.</li>
</ul>
<p>Why this perplexing inconsistency in what, harmful-speech-wise, is constitutionally-permissible and what is not?</p>
<hr />
<p><sup>1</sup>: The argument given in <a href="https://law.stackexchange.com/a/57068/12499">this answer</a> to <a href="https://law.stackexchange.com/q/13367/12499">a related question</a>, that</p>
<blockquote>
<p>The key is that holding these beliefs, and stating these beliefs, hurts nobody.</p>
</blockquote>
<p>doesn't hold water, as, while <em>holding</em> hateful beliefs (<em>without</em> stating or acting on them in any way) is indeed harmless, <em>stating</em> hateful beliefs can cause real, concrete, immense, and potentially-<em>lethal</em><sup>2</sup> psychological harm to the victim of this speech.</p>
<p><sup>2</sup>: As (among many many other examples) the countless LGBTQ+ children and teenagers who've been driven to suicide by being victims to incessant hateful speech could testify (were you to reanimate them with their mental faculties intact, at least).</p>
| 90,881 |
[
{
"answer_id": 90895,
"body": "<p>One notes your third example is rather more specific: you describe someone as being driven to suicide. People have been held accountable for counselling people to commit suicide (as in this <a href=\"https://ottawacitizen.com/news/local-news/two-14-year-old-girls-charged-with-counselling-suicide-in-criminal-harassment-probe\" rel=\"nofollow noreferrer\">Ottawa case</a>, where two girls were charged). What does "hate crime" add to the situation, especially given it covers only a small subset?</p>\n<p>As for the claim that "hate speech" in general causes suicide in the group, it is impossible to establish a direct connection between the speech and the death, let alone that it caused the death, given that you have to exclude other factors.</p>\n<p>Alleging direct psychological harm from the speech means, basically, that anyone, anywhere, can be silenced at any time in the absence of actual evidence.</p>\n<p>Furthermore, a lot of forms of speech can cause people to commit suicide. A son may commit suicide on hearing that his comatose father is recovering, because he was embezzling his father's property and realizes he will be found out. That speech is not punishable, and it's far more direct.</p>\n",
"score": 2
},
{
"answer_id": 90890,
"body": "<h2>Because the US has a different history from the rest of the developed world</h2>\n<p>Anti-hate speech laws <em>are</em> consistent with free speech in Canada, Australia, the UK, most of Europe etc. They just aren’t consistent with free speech <em>as it is practiced in the USA</em>.</p>\n<p>The legal basis is simple: the Constitution prohibits government interference in free speech in simple and straightforward language and the Supreme Court has interpreted that to mean that anti-free speech laws are subject to <a href=\"https://en.wikipedia.org/wiki/Strict_scrutiny\" rel=\"nofollow noreferrer\">strict scrutiny</a>. Defamation laws are not an abridgement because the government is not involved: defamation involves one person suing another.</p>\n<p>The philosophical basis for the distinction between the US and Europe is also straightforward. The US was a colonial nation who fought a war of independence against what they saw as a <em>foreign</em> tyrannical government and most of the Constitution is about placing limits on government so that wouldn't happen again. European nations mostly have Constitutions that were developed after the Second World War where they had seen their <em>own</em> governments taken over by people who weaponised hate speech (or if not them then their neighbours who then invaded them) and used it to kill millions of people and they wanted to prevent that from ever happening again. The UK and the rest of the Commonwealth, as with many things, tend to fall somewhere in the middle.</p>\n",
"score": 0
}
] |
[
"united-states",
"constitutional-law",
"freedom-of-speech",
"first-amendment"
] |
Before being overturned, did Roe v Wade grant pregnant men the right to have abortions, in addition to pregnant women?
| -2 |
https://law.stackexchange.com/questions/90888/before-being-overturned-did-roe-v-wade-grant-pregnant-men-the-right-to-have-abo
|
CC BY-SA 4.0
|
<p>The language in the Roe v Wade decision refers over and over to the rights of a "pregnant woman". Does this mean it protected only the rights of pregnant women, and not pregnant men, to procure abortions?</p>
| 90,888 |
[
{
"answer_id": 90891,
"body": "<p><em>Roe</em> and <em><a href=\"https://supreme.justia.com/cases/federal/us/505/833/case.pdf\" rel=\"nofollow noreferrer\">Casey</a></em> refer to the category "pregnant woman." But in many places, the reasons talk only about a "person" and the interests that underpin the reasoning would clearly apply to all pregnant people:</p>\n<ul>\n<li>constitutional protection of the decision to terminate one's pregnancy "derives from the Due Process Clause of the Fourteenth Amendment... The controlling word in the cases before us is 'liberty'" (<em>Casey</em>, p. 846)</li>\n<li>"Our cases recognize 'the right of the <em>individual</em>, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.'" (<em>Casey</em>, p. 851)</li>\n<li>"the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear." (<em>Casey</em>, p. 852)</li>\n<li>the plurality in <em>Casey</em> characterized "<em>Roe</em>'s central holding" being that "viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions." (p. 860)</li>\n<li>and so forth</li>\n</ul>\n",
"score": 2
}
] |
[
"privacy",
"us-supreme-court",
"abortion",
"transgender"
] |
common law vs civil law differences
| 5 |
https://law.stackexchange.com/questions/90805/common-law-vs-civil-law-differences
|
CC BY-SA 4.0
|
<p>I am trying to get a better understanding of differences between common law and civil law legal systems. Here is what I was able to find online:</p>
<ol>
<li><p>in common law there is the idea of a precedent, while in civil law not</p>
</li>
<li><p>in common law a judge plays a role of a person evidence at a court is provided to, while in civil law a judge tries to investigate too in addition</p>
</li>
<li><p>distance between public law and private law is smaller in common law legal system</p>
</li>
</ol>
<p>Are these three points correct? What are other differences between common law and civil law legal systems?</p>
<p>(if necessary it is possible to simplify it to USA vs EU)</p>
<p>Thank you.</p>
| 90,805 |
[
{
"answer_id": 90808,
"body": "<blockquote>\n<p>if necessary it is possible to simplify it to USA vs EU</p>\n</blockquote>\n<p>The European Union is by no means a homogeneous area of law. I will assume <a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a> because it is the one I am most familiar with, but bear in mind that much of what follows might not apply to Spain/Germany/etc.</p>\n<p>The USA is a federal state. In particular, <a href=\"https://en.wikipedia.org/wiki/Law_of_Louisiana\" rel=\"noreferrer\">Louisiana law is heavily influenced by civil law for historical reasons</a>. Other states and federal law do, however, follow more or less the same general principles.</p>\n<blockquote>\n<p>in common law there is the idea of a precedent, while in civil law not</p>\n</blockquote>\n<p>The first part is true. Common law usually hold the principle of <a href=\"https://en.wikipedia.org/wiki/Precedent\" rel=\"noreferrer\"><em>stare decisis</em></a> according to which precedents are binding. That means that the holding of a court binds the same court to rule the same way on similar matters raised later. I would note, however, that courts can be... let’s say "creative"... in finding ways to differentiate the case at hand from the previous one, when the judge is motivated to do so.</p>\n<p>The latter part is false, or at least, exaggerated. It is true that courts in civil law are not <em>bound</em> by previous holdings; an appeal that raises as its only argument "the court’s decision in my case was different from that in another case without offering any differentiation" would be rejected. However, there is the concept of <a href=\"https://en.wikipedia.org/wiki/Jurisprudence_constante\" rel=\"noreferrer\">jurisprudence constante</a> where <em>repeated</em> precedent is highly persuasive. In practice, even simple precedent is persuasive.</p>\n<p>Furthermore, lower courts are bound by the holdings of higher courts, both in civil law and common law jurisdictions. (That’s more or less the meaning of "higher court".)</p>\n<blockquote>\n<p>in common law a judge plays a role of a person evidence at a court is provided to, while in civil law a judge tries to investigate too in addition</p>\n</blockquote>\n<p>That is a distinction between the <a href=\"https://en.wikipedia.org/wiki/Inquisitorial_system\" rel=\"noreferrer\">inquisitorial</a> and <a href=\"https://en.wikipedia.org/wiki/Adversarial_system\" rel=\"noreferrer\">adversarial</a> systems. The distinction does not exactly map to the civil/common law systems, but in practice the criminal part of civil law systems is often inquisitorial whereas common law systems are often adversarial.</p>\n<p>I will first note that the "inquisitorial" part where the judge conducts investigations is vastly overblown. That only occurs in complex cases that require extended investigations with more coercitive powers (for instance seizing documents etc.) Wikipedia says:</p>\n<blockquote>\n<p>In 2005, there were 1.1 million criminal rulings in France, while only 33,000 new cases were investigated by judges.[5] The vast majority of cases are therefore investigated directly by law enforcement agencies under the supervision of [the equivalent of district attorneys].</p>\n</blockquote>\n<p>The numbers sound plausible to me, but <a href=\"http://www.justice.gouv.fr/art_pix/1_chiffrescles06.pdf\" rel=\"noreferrer\">here’s the ref it gives if you want to check</a> (which I did not bother to do).</p>\n<p>The most visible part of the distinction is the way witnesses at trial are handled. In an adversarial system, the parties will ask to cite certain witnesses. There are pre-trial motions to exclude certain witnesses for certain reasons, but parties have a wide latitude of which witnesses they want to call. Each witness will come labelled as to which party asked for its appearance.</p>\n<p>At trial, the witness will be asked questions by the party who called them (direct examination), which will usually take a long time and include nondisputed background information (who are you, for how long have you worked with the defendant, etc.). Then, the opposing party will ask questions (cross-examination), emphasizing points that cast doubt on the witness’s reliability (because they are lying, because they do not remember well, etc.) or on the other parties’ narrative (highlighting details that were conveniently "missed" in direct examination).</p>\n<p>In an inquisitorial system, witnesses are chosen by the judge. Parties can ask to have witnesses added to the list, but the list does not come with labels that X is coming from the prosecution, Y from the defense.</p>\n<p>When a witness is called, the judge will ask most of the questions at the start, before giving the floor to the parties. Roughly speaking, the judge does the direct examination, and parties do a cross-examination afterwards. Note that in many cases the parties will ask few or no questions - high-profile cases that you read about in the media are abnormal in that respect.</p>\n<p>In particular, an inquisitorial-system court maintains a list of expert witnesses, which are called when technical points are required. That expert is paid by the court, not by the parties (however, when one party requests an expertise and the other party opposes it, the requesting party has to pay the cost upfront - they will shift it to the other party if they win the case). That is very different to the adversarial system of having each party introduce testimony by an expert they commissioned and paid.</p>\n<blockquote>\n<p>distance between public law and private law is smaller in common law legal system</p>\n</blockquote>\n<p>I am not sure I understand that question.</p>\n<p>It is true that "private" (tort) law operates in an adversarial system both in civil-law and common-law. Therefore, one could argue that the distance between civil-law’s criminal system (inquisitorial) and tort system (adversarial) is higher than between common-law’s criminal and tort systems (both adversarial).</p>\n<p>However, that is in my view a highly artificial distinction. The distance between practice areas within a single (common law or civil law) jurisdiction is large in any case. You would not want a lawyer specialized in drug-dealing cases to take your case about sexual harassment or unlawful dismissal, and vice-versa, in any jurisdiction.</p>\n",
"score": 6
},
{
"answer_id": 90873,
"body": "<p>Here are six select differences between the systems which is hardly comprehensive.</p>\n<p><strong>1. Taking of evidence, finality, and scope of appeal.</strong></p>\n<p>In common law systems, evidence is usually taken in a consolidated single trial, after which a decision on the merits of the case is made. There are fairly strict rules of evidence regarding what can be considered.</p>\n<p>The factual determinations made at that trial are final. No new evidence can be received on appeal and generally speaking an appellate court can't second guess interpretation of the evidence presented (such as credibility determinations) made in the trial court on appeal. There is, however, a verbatim record of what happened in the trial court for an appellate court to review.</p>\n<p>In civil law systems, evidence is usually taken piecemeal over multiple hearings at which only a small number of the total number of witnesses in a case are presented. There are fairly loose rules of evidence. Detailed notes are taken of evidentiary hearings by the judge(s), but a verbatim record of the trial court proceedings is usually not taken.</p>\n<p>On a first direct appeal of a first instance court decision, the appellate court can review both legal and factual determinations made in the first instance court and can receive new evidence in a partial trial <em>de novo</em> of the case.</p>\n<p><strong>2. Decision-maker.</strong></p>\n<p>In the U.S., in a very large share of civil cases and in all criminal cases, there is a right to trial by jury. This right is actually exercised in the vast majority of serious criminal cases and personal injury cases and fraud cases, and in a large share of less serious criminal cases and breach of contract cases.</p>\n<p>In most other common law legal systems, jury trials are available in civil cases only in a handful of exceptional circumstances that probably make up less than 1% of civil cases, and in serious criminal cases.</p>\n<p>In a jury trial, a single judge presides of pre-trial proceedings, and orchestrates the jury trial itself such as overseeing jury selection, ruling on evidence objections, and instructing the jury prior to its deliberations regarding the applicable law. The jury's verdict is generally only the bottom line result with no explanation and the means by which it came to its conclusion are secret.</p>\n<p>In civil law systems, all civil cases and all or all but the most serious criminal cases are decided by judges only. Minor criminal offenses and civil cases with a small amount in controversy are heard by a single judge and appealed to a panel of three more senior judges. More serious criminal offenses and civil cases with higher stakes are heard by a three judge panel and appealed to a panel of five more senior judges. There are some variations from country to country, but often an extremely serious criminal offense will be heard in the first instance by a mixed panel of three senior judges and significantly more "lay judges" who are a bit like jurors, or by a panel of five senior judges. In some countries extremely weighty civil cases are heard in the first instance by a panel of five senior judges. In civil law systems, there is often a second level of appeal that like a common law appeal only considers the law and does not receive new evidence.</p>\n<p>In the U.S., judges are generally in a second career after a successful career as a lawyer (often as a prosecutor but not exclusively), and are usually politically connected and tend to be very politically aware. Higher level judicial posts are frequently filled by people who have not previously held lower level judicial posts.</p>\n<p>In the U.K. and in civil law countries, judges generally choose that career early on in their working life, and progress up the ranks from lower courts to higher courts as civil servants.</p>\n<p><strong>3. Contempt of Court.</strong></p>\n<p>In a common law system, a judge has contempt of court power. One part of this power is the power to summarily, without a trial, punish people who in the court's presence disrupt its proceedings or show disrespect to the court with a fine and/or incarceration. Another part of this power is to fine or incarcerate someone who is not complying with a court order, either by fining and/or incarcerating them until they comply, or by issuing a fixed fine and/or period of incarceration for violating it (e.g. when compliance is no longer possible).</p>\n<p>This power is used to give judges broad power to issue injunctive relief, i.e. to order them to do something or refrain from doing something.</p>\n<p>In civil law systems, judges don't have broad contempt of court power. Misconduct in court is dealt with through the criminal justice system just like any other setting. Injunctive relief power in civil law systems is more limited.</p>\n<p><strong>4. Judicial Review.</strong></p>\n<p>In the U.S., all judges have the right and the obligation to rule on the constitutionality of laws and government action in cases tried before them. (This is not the case in the U.K.)</p>\n<p>In most civil law systems, constitutional violations can only be raised in a separate constitutional court.</p>\n<p><strong>5. Sources Of Law.</strong></p>\n<p>In common law countries, most of the core principles of private law are determined through interpretation of case law precedents with no statutory foundation. Case law precedents are also pivotal in interpreting other sources of law like statutes and a constitution.</p>\n<p>In civil law countries, the core principles of all areas of law are codified in statutes, and the role of precedents in interpreting them is smaller.</p>\n<p><strong>6. Public law.</strong></p>\n<p>In common law systems, the judges who handle cases involving public law disputes between private persons and the government, and between governmental entities are predominantly handled by ordinary senior judges who also handle serious civil and criminal cases.</p>\n<p>In civil law systems, public law cases are usually handled in a separate legal system (which is one of the factors that make their ordinary courts less political) and ordinary judges have little or no authority over governmental officials in their official capacity outside criminal cases.</p>\n<p>For example, in France, if you have a dispute with the government, you fill out a simple form available at your local convenience store and send it to the Council of State. It assigns senior public law lawyers to both you and the state and they litigate the matter in a very different procedure than ordinary courts. The Council of State, if it identifies a systemic problem will insist that the agency reform itself not just in the case identified but in all cases arising from the systemic problem.</p>\n",
"score": 1
}
] |
[
"common-law",
"civil-legal-system"
] |
What happens if an international student doesn’t pay rent and then leaves the country?
| -2 |
https://law.stackexchange.com/questions/90859/what-happens-if-an-international-student-doesn-t-pay-rent-and-then-leaves-the-co
|
CC BY-SA 4.0
|
<p>Already moved out of an unhabitable apartment 4 months ago. Can’t really sue or break lease (at least I don’t think) cause I messed up. What happens if I stop paying rent?</p>
<p>Location: PA, USA</p>
<p>Okay, here’s the situation. I will preface by saying, I know I messed up. This is being written in March 2023.</p>
<p>In January, I faced a number of issues in my apartment. The heating stopped working and the smoke detector started beeping every 2 minutes. It was living hell. Earlier, in September when I first moved in, I arrived to a fridge infested with hundreds of fruit flies and a ton of left over food from the tenant whose place I took over during the summer. I cleaned it all, and then the flies kept returning. I then noticed the fridge gasket was very loose in several parts which was what was causing the flies to go in. I learned that the only way to contact maintenance was through submitting a work order online - no phone number. I submitted a work order, it took around two weeks for anything to happen, i then got an email where they said they fulfilled it, but when i checked the fridge there was no change, not even a replaced gasket. (I have photos and videos for all of this if it makes a difference.) I accepted the situation and made do with my mini fridge.</p>
<p>Now fast forward to January. After September’s experience, I was pretty cynical that submitting a work order would actually fix anything (this was my mistake) and I spoke to management in person about it. They did tell me to submit a work order. I had also run into a maintenance worker and verbally told him about the situation and he verbally told me he’d come the next day to fix it, but he didn’t. I got a respiratory infection (documented) and when I told my parents abroad about the situation, they told me to move out, so I did. At the same time I went through some other difficult circumstances and got diagnosed with ADHD. The work order never got submitted. I completely forgot about it. This was a year long lease so I was stuck paying for every month since then while not living there.</p>
<p>I am an international student and this is my first time being an adult so I was unfamiliar with what these actions entailed and the amount of money I am paying every month in addition to my new place’s rent.</p>
<p>I get that because I didn’t put the work order in at the time, I probably have no legal standing because of the lack of a paper trail. But this is seriously taking a financial and mental toll on me and I would really benefit from saving the 5,500 dollars in rent I still have left to pay from the lease. I just thought of something that is potentially reckless so I came here to check if it’s an option. Can I just stop paying rent? I get that eviction is a potential consequence, but I already moved out in January. What are the other probable legal consequences? This is a big company that owns the apartment building in addition to many other properties in the city, so I don’t know if that means they are more or less likely to make use of every legal action against me.</p>
<p>I am leaving the country in August. I know the country’s legal system is slow, so even if the company does take legal action against me, is it likely for me to face consequences within these few months?</p>
| 90,859 |
[
{
"answer_id": 90872,
"body": "<p>Two different questions here, damaged housing and the rights of a tenant, and leaving the country to get away from a debt.</p>\n<p>If you simply leave the US with the debt left unpaid, you won't have problems at the border crossing going out. But the debt will not go away simply because you don't answer the mail. Quite possibly, the landlord will sell the debt to a collection agency, which adds interest and fees to the claim if they ever find you in the US again. They may or may not find you. But you risk complicating your future. Can you imagine telling an employer "sorry, I cannot work in the US?"</p>\n",
"score": 1
}
] |
[
"landlord",
"tenant",
"tenancy-rules"
] |
Am I free to use Intel syntax in an Apache/BSD-3 licensed disassembler?
| 8 |
https://law.stackexchange.com/questions/84793/am-i-free-to-use-intel-syntax-in-an-apache-bsd-3-licensed-disassembler
|
CC BY-SA 4.0
|
<p><a href="https://github.com/omarandlorraine/strop/" rel="nofollow noreferrer">My project, strop</a>, includes a disassembler for each of the CPUs it supports. One of the CPUs is the KR580VM1, an Intel 8080 derivative from Soviet Ukraine. Like many projects in the Rust ecosystem, strop is dual-licensed, BSD-3 and Apache.</p>
<p>Another Intel 8080 derivative, the Zilog Z80, has a completely different syntax for its assembler. <a href="https://en.wikipedia.org/wiki/Zilog_Z80#New_syntax" rel="nofollow noreferrer">The story goes</a>, that Zilog needed to use a different assembler syntax, even though their CPU was binary compatible with the 8080, due to the fact that Intel had copyrighted the assembler mnemonics.</p>
<p>I get the impression that this kind of legal idiocy did not apply in the USSR, so a KR580VM1 assembler mostly uses the same assembler mnemonics as what Intel came up with. Of course, being an extension to the 8080 instruction set, there are a few more mnemonics beyond the Intel ones.</p>
<p>So the same machine code instruction is called <code>ACI</code> in Intel's documentation and in the KR580VM1 documentation, but is called <code>ADC</code> in Zilog's documentation. To be clear, these are different names for the same thing, and Intel claims copyright on <code>ACI</code>.</p>
<p>I'm unclear if Zilog really <em>needed</em> to use different mnemonics, or if they were just being cautious. Are these mnemonics protected by copyright?</p>
| 84,793 |
[
{
"answer_id": 89629,
"body": "<p>17 United States Code, Section 102 must be applied by Intel or any programming company on software, where the law states that any object must be given protection if it meets the following specific condition:</p>\n<blockquote>\n<p>original works of authorship fixed in any tangible medium of expression, now known or later developed</p>\n</blockquote>\n<p>Mnemonics are not a <code>tangible medium for expression</code>, if that was the case then Bjarne could have copyrighted the keyword <code>cout</code> or the word <code>print</code> be copyrighted for any new language not to choose.</p>\n<p>Another key legal concept that has been invoked in cases involving functional elements of software is the "merger doctrine," which holds that when there are only a limited number of ways to express a particular idea or function, those expressions merge with the idea or function and are not subject to copyright protection. This concept has been applied in cases involving programming languages and command names, among other things.</p>\n<p>Also, a major legal concept is an idea-expression dichotomy, which holds that copyright protects the expression of an idea but not the underlying idea itself. This concept has been invoked in cases involving software APIs like <em>Google v Oracle</em>, where the underlying function or method is seen as an idea rather than an expression and thus not subject to copyright protection.</p>\n<p>One notable case is <em>Lotus v Borland</em>, a lawsuit filed by Lotus against Borland in the 1990s over the latter's Quattro Pro spreadsheet software. Lotus claimed that Quattro Pro's "menu command hierarchy" (i.e., the specific names and organization of commands in the software's menu system) infringed on Lotus's copyright in its 1-2-3 spreadsheet software. However, the court ultimately ruled that the menu command hierarchy was a "method of operation" rather than a creative expression, and thus was not protected by copyright.</p>\n<p>These cases suggest from <em>Google v Oracle</em> and <em>Lotus v Borland</em> that courts are generally hesitant to extend copyright protection to programming languages, command names, or other functional elements of software, viewing them as "methods of operation" that are not subject to copyright protection. While there may be some limited exceptions to this general rule, it seems unlikely that the specific names of instruction mnemonics in the Intel 8080 instruction set would be among them.</p>\n<blockquote>\n<p>Zilog really needed to use different mnemonics, or if they were just being cautious. Are these mnemonics protected by copyright?</p>\n</blockquote>\n<p>The mnemonics are not copyrightable. Zilog seems to be cautious as it is worth noting that patent protection could potentially apply to certain aspects of the Intel 8080 instruction set, such as specific methods for executing instructions or the design of the CPU itself. However, patents have a limited lifespan and expire after a certain number of years, so it is unlikely that any such patents would still be in force for a derivative CPU like the KR580VM1.</p>\n<p>It is possible that Zilog chose to use different mnemonics out of an abundance of caution, to avoid any potential legal challenges from Intel. Alternatively, they may have simply wanted to differentiate their assembler from Intel's. Regardless of the reason, it seems unlikely that the specific names of instruction mnemonics would be protected by copyright. While it is true that some software companies have tried to assert copyright over programming languages or specific command names in the past, courts have generally been reluctant to extend copyright protection to such things.</p>\n",
"score": 2
}
] |
[
"copyright"
] |
Can one elect one's style/title of address in judicial proceedings?
| -2 |
https://law.stackexchange.com/questions/90146/can-one-elect-ones-style-title-of-address-in-judicial-proceedings
|
CC BY-SA 4.0
|
<p>If one wishes to be referred to as "Dr. Franklin," "Lord Jones" or "Lady Smith" (or Sir, or Dame) but does not actually possess the title, will judges use these titles in judicial proceedings? If so, can one extend elective titles of to "King Johnson" or "Queen Black"?</p>
| 90,146 |
[
{
"answer_id": 90868,
"body": "<p>There do not appear to be any specific judicial rules or legislation covering this, other than the common law principle that you can use whatever name pleases you provided it is not done with intent to deceive. Therefore, the use of elective titles seems be at the discretion of the judge.</p>\n<p>It's unlikely that they would entertain the notion of using those titles unless properly held by the person in question, as there's no positive obligation on the judge to address the person by anything other than the title(s) they actually hold.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"rules-of-court",
"litigation",
"name"
] |
Is there any statutory timeframe for how long one may be forced to wait for a Care Act 2014 need assessment?
| 0 |
https://law.stackexchange.com/questions/90119/is-there-any-statutory-timeframe-for-how-long-one-may-be-forced-to-wait-for-a-ca
|
CC BY-SA 4.0
|
<p>If one is left in housing limbo having applied to a local authority as homeless for an unreasonable amount of time (I've heard it may be six months), one may be entitled to thousands in compensation from the LA.</p>
<p>I am wondering what the legal basis for this is, and whether it would be applicable to inordinate waits for Care Act <em>need assessments</em> (which are admittedly newer and also less commonly invoked than homelessness duties of LAs, so less opportunities for courts to weigh in on them), or if there are independent provisions governing the amount of time that one may be forced to wait for a care need assessment by their local authority, and whether any compensation may be due if it is exceeded.</p>
| 90,119 |
[
{
"answer_id": 90867,
"body": "<p>The legal basis for damages would stem from the local authority's duties under <a href=\"https://www.legislation.gov.uk/ukpga/1996/52/part/VII/crossheading/duties-to-persons-found-to-be-homeless-or-threatened-with-homelessness\" rel=\"nofollow noreferrer\">Part VII of the Homeless Act 1996</a>, common law duties of care, and obligations under <a href=\"https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/7\" rel=\"nofollow noreferrer\">Article 8 of the European Convention on Human Rights as implemented by the Human Rights Act 1998</a>, as affirmed by <a href=\"https://www.bailii.org/ew/cases/EWHC/Admin/2018/1287.html\" rel=\"nofollow noreferrer\"><em>McDonagh, R (on the application of) v London Borough of Enfield</em> (2018) EWHC 1287 (Admin)</a> although in that case, there was no Article 8 infringement so no damages were awarded.</p>\n<p>An Article 8 infringement claim was made possible by <em>Morris v The London Borough of Newham</em> (2002) EWHC 1262 (Admin) and <a href=\"https://www.bailii.org/ew/cases/EWHC/Admin/2002/2282.html\" rel=\"nofollow noreferrer\"><em>R (Bernard) v Enfield London Borough Council</em> (2002) EWHC 2282 Admin</a>.</p>\n<p>Following the same reasoning as the prior cases above, it is obvious that the local authority has a common law duty of care to provide a needs assessment in a reasonable time period, subject to resource constraint, under the Care Act 2014.</p>\n<p>It also has a duty to facilitate respect for someone's private and family life. In this case, an inordinate wait for a needs assessment is highly likely to infringe on that right, causing a breach of the duty. However, what constitutes an "inordinate wait" would be a matter for the courts to determine.</p>\n<p>The quantum (amount) of damages would also be fact-specific, but it seems likely that any award would be more than merely minimal, to reflect the fact that the statutory provision of care to someone who needs it is a fundamental part of their rights under Article 8, and unnecessary delay to facilitating those needs could be akin to humiliating or degrading treatment.</p>\n",
"score": 1
}
] |
[
"united-kingdom",
"england-and-wales",
"compensation",
"local-authorities"
] |
did the International Criminal Tribunal for Rawanada have the power to grant pardons and remissions?
| 2 |
https://law.stackexchange.com/questions/90863/did-the-international-criminal-tribunal-for-rawanada-have-the-power-to-grant-par
|
CC BY-SA 4.0
|
<p>the information on it that I've found so far doesn't have any information on this aspect. it appears they had desvretion to decide which setances to pass up to life imprisonment but did it have broad powers of pardon ?</p>
| 90,863 |
[
{
"answer_id": 90864,
"body": "<p>Yes. Article 27 of the <a href=\"https://digitallibrary.un.org/record/198038?ln=en\" rel=\"nofollow noreferrer\">Statute of the International\nCriminal Tribunal for Rwanda, made under UN Security Council Resolution 955 (1994)</a> states the following:</p>\n<blockquote>\n<p><strong>Article 27</strong></p>\n<p><strong>Pardon or commutation of sentences</strong></p>\n<p>If, pursuant to the applicable law of the State in which the convicted\nperson is imprisoned, he or she is eligible for pardon or commutation of\nsentence, the State concerned shall notify the International Tribunal for Rwanda accordingly. There shall only be pardon or commutation of sentence if the President of the International Tribunal for Rwanda, in consultation with the judges, so decides on the basis of the interests of justice and the general principles of law.</p>\n</blockquote>\n",
"score": 2
}
] |
[
"international"
] |
germany insurance company is asking for their referral bonus back after they said it is mine
| 2 |
https://law.stackexchange.com/questions/90839/germany-insurance-company-is-asking-for-their-referral-bonus-back-after-they-sai
|
CC BY-SA 4.0
|
<p>I was wrongly transferred a referral bonus of 12k euros spanned across 10 transactions for a year starting Summer 2021 from my insurance company. I did not refer anyone however.</p>
<p>I reported the problem after the 2nd transaction saying that I wasn't expecting any money and I just got around 5k in 1 day as I did not submit any invoices for reimbursement or anything of that sort. The insurance company replied back a day later saying this is indeed my money and thank me for all my referrals.
I just assumed someone was using my referral code and didn't bother to bring this up again especially when it's cumbersome to find an english speaking support agent here.</p>
<p>Fast forward, I get around 7k in 8 transactions in around 9 months bringing the total to 12k in 1 year (ended in Summer 2022).
A week ago, I get a letter from my insurance company saying that they have found a glitch in their system and I was wrongfully transferred 12k during the time period mentioned above and kindly ask me to transfer it back as well as acknowledging that I reported this problem back in Summer 2021 but they weren't able to detect it.</p>
<p>From a legal point of view, what are my chances of keeping the money based on the above information?</p>
| 90,839 |
[
{
"answer_id": 90843,
"body": "<blockquote>\n<p>From a legal point of view, what are my chances of keeping the money based on the above information?</p>\n</blockquote>\n<p>None, unless a period of more than 3 years (<a href=\"https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p0573\" rel=\"nofollow noreferrer\">§195 - Standard limitation period</a> ) has past before the return request was made.</p>\n<blockquote>\n<p><a href=\"https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p3458\" rel=\"nofollow noreferrer\">§812 - Claim for restitution</a> - German Civil Code (Bürgerliches Gesetzbuch BGB)<br />\n(1) A person who obtains something as a result of the performance of another person or otherwise at his expense without legal grounds for doing so is under a duty to make restitution to him. This duty also exists if the legal grounds later lapse or if the result intended to be achieved by those efforts in accordance with the contents of the legal transaction does not occur.</p>\n</blockquote>\n<p>§818(3) would also not apply (where you no longer have the money), since you have acknowledged that the reception of the money was incorrect (i.e. you spent it knowning that it was not yours)</p>\n<blockquote>\n<p>§818 Scope of the claim to enrichment<br />\n...<br />\n(3) The liability to undertake restitution or to reimburse the value is excluded to the extent that the recipient is no longer enriched.<br />\n...</p>\n</blockquote>\n",
"score": 5
}
] |
[
"germany",
"civil-procedure"
] |
are there any states that allow broad powers to the supreme court?
| 0 |
https://law.stackexchange.com/questions/90848/are-there-any-states-that-allow-broad-powers-to-the-supreme-court
|
CC BY-SA 4.0
|
<p>Are there any states where judges have broad powers to interpret the constitution to the point of even allowing them to exceed clear language and legislative intent ?</p>
| 90,848 |
[
{
"answer_id": 90849,
"body": "<p>The United States would be one such country. I'm sure it is not the only one.</p>\n<p>In the case of countries with constitutional courts there is basically no one to second guess their interpretations which is also true when the apex court in a country provides an opinion. Since no one can overrule many of these courts, they are allowed to do what they want.</p>\n",
"score": 3
},
{
"answer_id": 90850,
"body": "<p>Supreme Courts are generally granted the power to decide cases and issue orders (e.g. Canada's <a href=\"https://laws-lois.justice.gc.ca/eng/acts/s-26/FullText.html\" rel=\"nofollow noreferrer\"><em>Supreme Court Act</em></a>). But that power is not granted on the condition that the judges adhere to a particular legal theory guiding their decision-making.</p>\n<p>Theories of judicial decision-making, such faithfulness to plain language, or attempts to ascertain legislative intent, are often not self-consciously deployed during their birth. The judges just <em>decide</em>. It is only after reflection on a series of cases, maybe by the judges themselves, maybe by external observers, that theories of decision-making become clearer and can be expressed as you have done so. See generally, Jeremy Kessler & David Pozen, "<a href=\"https://scholarship.law.columbia.edu/faculty_scholarship/603/\" rel=\"nofollow noreferrer\">Working Themselves Impure: A Life Cycle Theory of Legal Theories</a>", 83 U. Chi. L. Rev. 1819 (2016), particularly pages 1835–38.</p>\n<p>At a less abstract level, not all constitutional law is based in written text or sourced in the legislature. Canada's Constitution, for example, contains unwritten unconstitutional principles: "[b]ehind the written word is an historical lineage stretching back through the ages." See <em>Reference re Secession of Quebec</em>, <a href=\"https://canlii.ca/t/1fqr3#par49\" rel=\"nofollow noreferrer\">[1998] 2 S.C.R. 217 at paras. 49-54</a>.</p>\n",
"score": 1
}
] |
[
"constitutional-law"
] |
Must an Incoming Passenger Card/Arrival card be done as a citizen
| -2 |
https://law.stackexchange.com/questions/90793/must-an-incoming-passenger-card-arrival-card-be-done-as-a-citizen
|
CC BY-SA 4.0
|
<p>Are you legally required to do a customs declaration before you enter into Australia/any other western country?</p>
<p>As a citizen with a valid passport it seems crazy that a tiny piece of cardboard could prevent us entry into the country of our birth, provided customs found no evidence of law breaking.</p>
<p>I am struggling to find an example where someone is forced to make a declaration before being able to access a location they have full legal rights to be in.</p>
<p>It might even be in breach of self criminalisation protections.</p>
<p>Does anyone know what would happen?</p>
<p>Thanks</p>
| 90,793 |
[
{
"answer_id": 90801,
"body": "<h2>No, you can pay the <a href=\"https://Migration%20Regulations%201994\" rel=\"nofollow noreferrer\">fine</a> instead</h2>\n<blockquote>\n<p><strong>MIGRATION REGULATIONS 1994 - REG 3.08</strong></p>\n<p>Offence--failure to complete a passenger card</p>\n<p>(1) A person who is required by these Regulations to complete a passenger card must not fail to do so.</p>\n<p>Penalty: 10 penalty units.</p>\n<p>(2) Strict liability applies to subregulation (1).</p>\n</blockquote>\n<p>This is <a href=\"https://asic.gov.au/about-asic/asic-investigations-and-enforcement/fines-and-penalties/\" rel=\"nofollow noreferrer\">presently</a> $2,750.</p>\n<p>You have 2 business days after you arrive to provide the card, otherwise you get the fine.</p>\n",
"score": 4
},
{
"answer_id": 90813,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>The form is obligatory – 19 CFR 122.27, 19 CFR Part 148. If you bring in anything that must be declared (even an amount that is free of import duties), it can be confiscated for a civil forfeiture proceeding. Under <a href=\"https://www.law.cornell.edu/uscode/text/19/1497\" rel=\"nofollow noreferrer\">19 USC 1497</a>, you are also subject to a fine equal to the amount of the item(s), assuming that the items are not controlled substances. Ultimately, even with refusal to provide the declaration form, as a citizen you are entitled to admission, after "inspection" to determine that you are a citizen. Once you have been processed for violating the requirement to declare, you can go about your business.</p>\n",
"score": 2
},
{
"answer_id": 90847,
"body": "<blockquote>\n<p>As a citizen with a valid passport it seems crazy that a tiny piece of\ncardboard could prevent us entry into the country of our birth</p>\n</blockquote>\n<p>This is the flaw in the question's reasoning. Failure to declare isn't a basis from excluding you from entering the country of your citizenship. The consequence for disobeying the rule is punishing you criminally or with a civil fine for failing to comply with a government disclosure requirement.</p>\n<p>In the same vein, you have a duty to file certain tax returns. But the punishment for a citizen who doesn't file a tax return isn't to deport that citizen to some other random country. It is to prosecute you for failing to file a tax return for which you could be fined and/or imprisoned.</p>\n",
"score": 1
}
] |
[
"immigration",
"customs-law"
] |
Would funding the Sentinel Program violate the equal Protection clause?
| 3 |
https://law.stackexchange.com/questions/90803/would-funding-the-sentinel-program-violate-the-equal-protection-clause
|
CC BY-SA 4.0
|
<p>For today's exercise into comic book law, let's take a look at another X-men storyline.</p>
<p>As we <a href="https://law.stackexchange.com/questions/90142/is-there-a-line-that-excludes-preaching-religious-murders-from-first-amendment-p">previously established</a> using the Purifiers as an example, people can talk all they want about wanting to murder other people as long as no <em>imminent lawless action</em> happens. That's the Brandenburg test. However, let's look at what happens if that rhetoric is finding its way into the government and there actually is action. So for our thought experiment of today, let's use <a href="https://en.wikipedia.org/wiki/Days_of_Future_Past" rel="nofollow noreferrer">Days of Future Past</a> as the basis, which was also the basis for the <a href="https://en.wikipedia.org/wiki/X-Men:_Days_of_Future_Past" rel="nofollow noreferrer">film version</a>. Let's take the synopsis as following as true as the amalgamation of which facts both stories tell:</p>
<ul>
<li>Senator Robert Kelly is assassinated in 1980 (1973 in the film) by a carrier of the X-Gene.</li>
<li>As a result, Kelly's advocating for funding the <em>Sentinel Program</em> by Bolivar Trask is getting traction.</li>
<li>The publicly known target of the Sentinel Program is to hunt down and kill X-Gene carriers, especially US Citizens.</li>
<li>The funding goes through and Trask starts building hunter-killer robots for the government.</li>
</ul>
<p>For our analysis, let's stop here, as the rest of the plot is time-travel shenanigans. Does the funding count as government action, making the program an action or law that violates the equal protection clause of the 14th amendment?</p>
| 90,803 |
[
{
"answer_id": 90818,
"body": "<p>In the comic timeline (seen in <em>Uncanny X-Men</em> #141, Jan 1981), as mainly narrated by Kitty Pryde,</p>\n<ul>\n<li>In 1984, "a rabidly anti-mutant candidate was elected President", and "within a year" had arranged to pass "the first Mutant Control Act". This is struck down by the Supreme Court as unconstitutional.</li>\n<li>Then (let's say this is 1985-1986ish), "the Administration responded by activating the Sentinels", who promptly proceed to take over the country. Whoops!</li>\n<li>There is a further Mutant Control Act in 1988, which makes mutants "pariahs and outcasts" to be hunted down and for the most part killed. Presumably this is under the Sentinel-controlled version of the U.S. government.</li>\n<li>By 2013, society is split between baseline humans (H), "anomalous" carriers of the mutant gene (A), and full-blown mutants (M). The A-class people are forbidden from reproducing. All this is said to derive from, and be in accordance with, the law of 1988.</li>\n</ul>\n<p>While we don't know what the 1985 law did, it's presumably not too different from the 1988 version. The newer one is only constitutional insofar as the Sentinels have taken over. Their orders, made in response to the Supreme Court's action, were to "eliminate the mutant menace once and for all", and deposing the government is their chosen path to that end.</p>\n<p>Although the robot coup was not what the President was hoping for, we can still interpret that the intent behind using the Sentinels was to (1) achieve similar effects to the rejected law of 1985, and (2) do so in a way that the Supreme Court could not block. The idea is that the use of the Sentinels probably <em>is</em> just as unconstitutional as the original law, but is something the government could get away with. In the movie, Trask says that Congress refused to fund the program, and so he is appealing to the executive branch for clandestine financing: this is a similar dynamic of trying to evade the lawful process.</p>\n<p>It is plausible that the grounds for striking down the 1985 law would include equal protection, as well as protection against search and seizure, and requirements of due process. It would have been a broad enough ruling that the administration felt justified in taking an entirely different approach, rather than attempting to tweak the law. For example, if the Supreme Court held that mutants were not a protected class, and not even human anyway, <em>but</em> that the proposed law infringed the rights of humans in some minor way, then the creation of the Sentinels seems less obvious as a response. They must have concluded something broad enough to cover anti-mutant laws in general. I'd estimate that whether or not mutation was deemed within scope of the equal protection clause of the Fourteenth Amendment, the other obvious civil rights violations are more likely to be biting. Certainly in the case of the giant murderbots, the Fourth and Fifth Amendments are clearly engaged, and the Supreme Court might be more comfortable applying them straightforwardly, compared to reading a novel class into the Fourteenth.</p>\n<p>Politically - and the use of Nixon in the film makes this apt - the problem was not to stay within the bounds of the law, but to evade its power. Secretly funding a private-sector program doesn't make the outcome any more or less constitutional, but it does make it harder for plaintiffs to challenge. They have to find out about it. They have to demonstrate standing, which is difficult - see for example <a href=\"https://www.law.cornell.edu/supremecourt/text/418/166\" rel=\"nofollow noreferrer\"><em>U.S. v Richardson</em> 418 U.S. 166 (1974)</a> holding that a taxpayer did not have standing to challenge Congressional funding of the CIA. And if the Sentinels haven't been turned on yet, then nobody has been actually harmed; all we have is a robot that <em>might</em> hurt mutants. Once they are activated, the secret is out, but at that point if all goes "well" then there are no mutants left to object. In the event, a legal challenge was impossible for different reasons (robot tyranny).</p>\n",
"score": 4
},
{
"answer_id": 90846,
"body": "<blockquote>\n<p>Does the funding count as government action, making the program an\naction or law that violates the equal protection clause of the 14th\namendment?</p>\n</blockquote>\n<p>Without really thinking it through in great depth, there might be action that violates the equal protection clause or other constitutional protections. But, the funding alone probably doesn't give anyone standing to challenge the program in court on that ground.</p>\n<p>Generally speaking there is no such thing as citizen standing or taxpayer standing for constitutional violations that flow merely from spending money for an unconstitutional end. Other non-spending acts would have to be identified. As noted <a href=\"https://en.wikipedia.org/wiki/Standing_(law)\" rel=\"nofollow noreferrer\">here</a>:</p>\n<blockquote>\n<p>The United States Supreme Court has held that taxpayer standing is not\nby itself a sufficient basis for standing against the United States\ngovernment.</p>\n</blockquote>\n<p>People who are ultimately pursued by the program may have standing to assert that the program improperly discriminates against them or denies them due process. But merely building a robot to do that at some future date doesn't give potential targets of the program a right to sue at that point.</p>\n<p>This isn't an individualized injury to them at that point.</p>\n<p>Maybe the robots will never be deployed and that threat won't materialize. Maybe the robots will be repurposed to repelling a military invasion of Wisconsin by Canadians bent on conquest of American breweries with military force.</p>\n",
"score": 3
},
{
"answer_id": 90804,
"body": "<p>Government funding does make it a government action, however, it's important to note that the law in the story that funded the sentinels could have resulted in unintended consequences for the bad future.</p>\n<p>Considering that the Sentinels were capable of detecting mutants at the time and had been since their introduction 16 years prior to the publication of this story. It would make sense that in the wake of an assassination of a U.S. Senator by known mutant criminals, the general public mood turned to favor a screening system that would want better screening and protection against mutants... similar to how the President riding in convertible Motorcades stopped following Kennedy's assassination in real life OR the increase of TSA restrictions on items one can take on airplanes following the 9/11 attacks.</p>\n<p>Thus the Sentinels were funded to act only as a security deterrence. At the time of the story, the Sentinels were the only system that could identify Mutants AND carry enough onboard weapons systems to neutralize them. It would have been sold to the public as a security tool. Nothing more than a cop with a gun and a metal detector.</p>\n<p>Of course, the Sentinels being an AI, had in prior stories gone off mission from taking their job to an extreme (Their debut story had them turn on non-mutant humans because non-mutants gave birth to mutants and thus were the source of mutants... they were only stopped when Cyclops tricked them by exploiting this logic and explaining that humans weren't the true source of mutation, the sun was, which convinced the entire fleet of Sentinels to try and stop the sun... and went about as well as you would think). This is a consistent fatal flaw, and by the 2013 storyline, it's implied Sentinels had gone off the rails, usurped the U.S. government, and were now working to nuke the world because killing everyone would stop mutation from occurring. Essentially, it was a Skynet scenario where the computer AI was operating on a "Garbage In, Garbage Out" programing, and by the time the people in power could do anything about it, the Sentinels had too much power to be stopped.</p>\n<p>At one point in the storyline, future!Kitty walks by a graveyard and narrates that by this point, the Sentinels had targeted the non-mutant heroes of Marvel as well (including Spider-Man, Dare Devil, the Fantastic Four, and a good number of the Avengers (at the time of publishing, none of the heroes could be counted as mutants because Mutants were defined in the Marvel comics as people who were innately born with their powers, whereas all of the heroes were non-mutants who developed their powers due to outside forces they interacted with.).</p>\n<p>As such, it's possible the law was compliant with the Constitution (After all, you do have to go through a metal detector when you go to Congress and other government buildings... why not a Mutant detector... you know... just to be sure...).</p>\n",
"score": 0
}
] |
[
"united-states",
"us-constitution",
"law-in-fiction"
] |
Is there a law that punishes cowardly cops?
| 0 |
https://law.stackexchange.com/questions/90736/is-there-a-law-that-punishes-cowardly-cops
|
CC BY-SA 4.0
|
<p>In the military, According to <a href="https://www.law.cornell.edu/uscode/text/10/899" rel="nofollow noreferrer">10 U.S. Code § 899 - Art. 99. Misbehavior before the enemy</a>. Acts of cowardly conduct are punishable.</p>
<blockquote>
<p>Any member of the armed forces who before or in the presence of the
enemy—</p>
<ol>
<li>runs away;</li>
<li>shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;</li>
<li>through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;</li>
<li>casts away his arms or ammunition;</li>
<li><strong>is guilty of cowardly conduct</strong>;</li>
<li>quits his place of duty to plunder or pillage;</li>
<li>causes false alarms in any command, unit, or place under control of the armed forces;</li>
<li>willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other
thing, which it is his duty so to encounter, engage, capture, or
destroy; or</li>
<li>does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging
to the United States or their allies when engaged in battle;</li>
</ol>
<p>shall be punished by death or such other punishment as a court-martial
may direct.</p>
</blockquote>
<p>Is there a similar law that punishes cops who show acts of cowardly conduct?</p>
| 90,736 |
[
{
"answer_id": 90755,
"body": "<p>The only time cops are violating the law for cowardice is when they fail to intervene in misconduct by another cop, <em>see, e.g.</em>, <a href=\"https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0047p-06.pdf\" rel=\"nofollow noreferrer\">here</a> at page 10 (two police carry out a blatantly unlawful arrest, but there is also liability for the two other junior officers watch and do nothing about their superiors' misconduct), or when an arrested or incarcerated person has been placed in peril by the cop, <em>see, e.g.</em>, <a href=\"https://www.nbcnews.com/news/us-news/officers-charged-train-hits-police-car-handcuffed-woman-rcna56198\" rel=\"nofollow noreferrer\">here</a> (police arrest woman and put her in a squad car on train tracks and fail to try to rescue her when a train is about to and then does smash into the squad car where she is helplessly handcuffed and locked in).</p>\n<p>This said, cops are routinely disciplined or fired for cowardice as an employment matter (<em>see, e.g.</em>, <a href=\"https://www.nytimes.com/2019/06/04/us/parkland-scot-peterson.html\" rel=\"nofollow noreferrer\">here</a> where a policeman who fails to rush in to stop a school shooting in progress was "suspended in the immediate aftermath of the attack and later resigned" and also <a href=\"https://www.nbcdfw.com/news/local/texas-news/uvalde-schools-to-consider-firing-police-chief-arredondo-in-wake-of-school-massacre/3019505/\" rel=\"nofollow noreferrer\">here</a> in a similar case).</p>\n<p>But, they are rarely disciplined or fired for being too aggressive even if it crosses the legal line unless the facts are unequivocally clear.</p>\n",
"score": 5
}
] |
[
"united-states",
"police"
] |
US: Using a fake name and profile photo to provide freelance services online - anything illgeal?
| -2 |
https://law.stackexchange.com/questions/90831/us-using-a-fake-name-and-profile-photo-to-provide-freelance-services-online-a
|
CC BY-SA 4.0
|
<p>I want to anonymously perform freelancing services online, so I used an AI generator to create a picture of a human face and chose a fake name. That fake name is also the business name on my PayPal business account. Recently, I've also launched a website that sells the freelance services under that fake name. I'm planning to deduct the costs associated with the website as business expenses when doing taxes.</p>
<p>Sometimes I also use that name to sign contracts with a made-up signature by me.</p>
<p>Will any of this be questionable to the IRS, count as potential employee fraud, or somehow counts as impersonation?</p>
<p>Edit: the wording of this might be confusing, but I'm NOT using any fake names or images when filing taxes or dealing with the government. It's just towards clients.</p>
| 90,831 |
[
{
"answer_id": 90844,
"body": "<p>If you aren't publicly registering a trade name you are probably engaged in illegal conduct. Among other things, by doing this, you are effectively hiding yourself from any lawsuits arising from the business that accurately name the defendant.</p>\n<p>You can have a business mascot or trade name, but you have to disclose that this is what it is and provide a means by which a reasonable person who needs to sue you could properly identify you.</p>\n",
"score": 4
}
] |
[
"united-states",
"tax-law",
"business",
"fraud"
] |
Is it legal in England for unpasteurised dairy products to be sold in retail stores?
| -4 |
https://law.stackexchange.com/questions/90819/is-it-legal-in-england-for-unpasteurised-dairy-products-to-be-sold-in-retail-sto
|
CC BY-SA 4.0
|
<p><a href="https://i.stack.imgur.com/rzfqy.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/rzfqy.jpg" alt="Isigny Ste Mère Crème d’Isigny" /></a></p>
<p>I understand that it is not legal to sell unpasteurised dairy products in retail stores in England, at least in the case of raw milk. (It must be purchased directly from farmers.)</p>
<p>But then one sees other dairy products like raw butter or crème fraîche.</p>
<p>In particular, I understand that the Isigny Ste Mère dairy production cooperative produces raw dairy products and see their butter and crème fraîche sold in chain grocery stores. What is the legality of that?</p>
| 90,819 |
[
{
"answer_id": 90821,
"body": "<h2>It’s legal</h2>\n<p>The <a href=\"https://www.legislation.gov.uk/uksi/1995/1086/made\" rel=\"nofollow noreferrer\">regulations</a> provide limits on various bacteria. If the product is made from raw milk, the manufacturer must implement a testing regime for those bacteria. If it’s made from treated milk, they avoid this cost.</p>\n",
"score": 4
}
] |
[
"england-and-wales",
"food",
"food-processing",
"retail"
] |
Vandalism, or free speech?
| 3 |
https://law.stackexchange.com/questions/5606/vandalism-or-free-speech
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CC BY-SA 3.0
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<p>I'm in Michigan. There are a few scenarios. </p>
<ol>
<li>I hang a sign by a string to a person's car</li>
<li>I attach a sticker to the window of a car</li>
<li>Using washable window paint, I draw on a car window. </li>
</ol>
<p>Are any of these illegal? Are any considered to be vandalism, defacing, or malicious destruction?</p>
| 5,606 |
[
{
"answer_id": 79121,
"body": "<p>Damaging someone else's property is not protected free speech in the US. Nor is using someone else's property without permission and against the owner's wishes.</p>\n<p>Scenario 3 would surely be vandalism or "Malicious Mischief" or some similar offense, even if the paint can be fairly easily removed. The same would be petty surely true of scenario 2, as it would take at least some effort to remove the sticker, and it could be a safety hazard until it is removed (obstructed vision).</p>\n<p>Scenario 1 would probably not be even a minor crime, unless perhaps the person trespassed to attach the string. But the person has no right to insist that the car's owner not remove the sign.</p>\n<p>I am assuming that the car is owned by someone else, and the the person placing the sign, sticker or paint acted without permission from the owner or any authorized person.</p>\n",
"score": 4
}
] |
[
"united-states",
"criminal-law",
"property",
"michigan",
"vandalism"
] |
Would federal copyright be constitutional without the Copyright Clause?
| 0 |
https://law.stackexchange.com/questions/90841/would-federal-copyright-be-constitutional-without-the-copyright-clause
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CC BY-SA 4.0
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<p>If the Constitution did not contain the Copyright Clause, would Congress still be able to implement copyright under the Commerce Clause or another part of the Constitution? Assume that the Constitution never contained the Copyright Clause, rather than the clause being repealed.</p>
| 90,841 |
[
{
"answer_id": 90842,
"body": "<p>Eventually. <a href=\"https://www.copyright.gov/history/Copyright_Enactments_1783-1973.pdf\" rel=\"noreferrer\">This was a state matter</a> prior to the enactment of the Constitution. Without the Copyright Clause, it would have been up to each state to enact such a law (apparently Delaware did not bother). This would have quickly led to inter-state disputes (a New York author being infringed by a New Jersey party), therefore the matter would have been heard by the federal courts.</p>\n<p>The current understanding of the Commerce Clause easily allows Congress to enact a copyright law, because copyright is quite commercial and potentially crosses state lines. It took a while for that clause to be interpreted by the courts the way it is now. <a href=\"https://en.wikipedia.org/wiki/Lochner_era\" rel=\"noreferrer\">This</a> is a brief summary of historically shifting views on the Commerce Clause.</p>\n",
"score": 6
}
] |
[
"copyright",
"us-constitution"
] |
UK Law - Legal consequences of marriage/divorce
| 11 |
https://law.stackexchange.com/questions/90822/uk-law-legal-consequences-of-marriage-divorce
|
CC BY-SA 4.0
|
<p>I'm trying to find a list of legal rights that partners within an existing family with children gain when they get married (or lose when they get divorced, while still living together).</p>
<p>For example, in some situations a married couple may get certain rights (immigration scenarios).</p>
<p>Is there a comprehensive list of rights that partners with children gain when they get married (or lose when they get divorced)?</p>
<p>I'm interested in UK law specifically.</p>
| 90,822 |
[
{
"answer_id": 90823,
"body": "<p><strong>Short Answer</strong></p>\n<blockquote>\n<p>Is there a comprehensive list of rights that partners with children\ngain when they get married (or lose when they get divorced)?</p>\n</blockquote>\n<p><strong>No.</strong></p>\n<p>There are lots, and lot, and lots of things in the law that depend upon marital status or involve rights gained in connection with marriage. These are scattered across the law and no one primary source or official government source compiles them all in one place. It isn't possible to comprehensively list them all in one answer in this forum, due to restrictions of answer writer time and length. You could easily write an 80 page law review article on the subject if you wanted to be really thorough and you also wanted to cover all U.K. jurisdictions.</p>\n<p>Many, but not all, of the rights and legal consequences associated with marriage can be created with agreements and legal instruments outside of marriage. But for an unmarried couple, this has to be done piecemeal in order to deviate from the default rules in the absence of marriage one by one. In contrast, marriage has many legal consequences for spouses that arise by default without additional documentation, and there are a few rights and legal consequences of marriage that can not be conferred upon someone in any other way than marriage.</p>\n<p>Nonetheless, this answer highlights the more notable and important distinctions below.</p>\n<p><strong>Caveats Regarding The Scope Of the Answer</strong></p>\n<p><em>Rights v. Consequences</em></p>\n<p>It is more helpful to think in terms of "legal consequences incident to marriage" rather than "marital rights" as some of the legal consequences of marriage are less natural to explain in terms of rights.</p>\n<p><em>U.K. Law Is Mostly Not Uniform On This Subject</em></p>\n<p>Unless otherwise clearly indicated, I am referring solely to the law of England and Wales. Most laws related to rights incident to marriage are not uniform in the U.K. Instead, Northern Ireland, Scotland, and England and Wales, each have their own separate laws on these subjects, although the differences between them are more differences of detail than of broad conceptual structure at a "forest" level. All references to England below are to England and Wales whether this is expressly stated or not.</p>\n<p><em>Who Is Compared?</em></p>\n<p>The comparison I am making is generally between married people and unmarried cohabitants, as the law that applies between total strangers isn't really analogous in most cases. (Even though it is theoretically possible to have a married couple that never significantly cohabitates.)</p>\n<p>While the question is specific to a couple with children, formal rights in relation to the children of a couple are only slightly different in theory. But, as discussed below, the limited size of child support payments make the differences between married couples with and without children in divorce cases, significant anyway because there is a right to property division and spousal maintenance in addition to child support for married couples but not for unmarried couples.</p>\n<p><em>Marriage v. Civil Partnerships In England</em></p>\n<p>In most, if not all, circumstances, couples in a "<a href=\"https://en.wikipedia.org/wiki/Civil_Partnership_Act_2004\" rel=\"nofollow noreferrer\">civil partnership</a>" receive the same legal treatment as married couples in English law, and you may assume that they are mostly equivalent for the purposes described below. England also has same sex marriage, but a significant number of civil partnerships, most entered into between 2004 when they become available and 2013 when same sex marriage was allowed, remain in existence and have not been converted into marriages.</p>\n<p><strong>Getting Married And Ending A Marriage</strong></p>\n<p><em>Common Law Marriage v. Formal Marriage</em></p>\n<p>Despite being the source of the doctrine historically, England no longer has "<a href=\"https://en.wikipedia.org/wiki/Common-law_marriage\" rel=\"nofollow noreferrer\">common law marriage</a>". Common law marriage was abolished in England in the Marriage Act (1753), although it wasn't as clearly established as it is now in common law marriage jurisdictions even before then. An unmarried couple can now become a legally married couple in England and Wales only by filling out the proper government forms and presenting them to the proper government officials.</p>\n<p>According to the same source, Scotland began formal marriage registration in 1855 (which was previously documents only by the church) and once had four forms of "irregular marriage", three of which were abolished prospectively (i.e. new marriages could not be formed in this way) in 1940, and the last of which was abolished prospectively in 2006. Common law marriage outside of England and Wales, when it did exist elsewhere in the British Commonwealth, was or became closer to the Scots law practice than the historical English practice. Other parts of the British Commonwealth and United Kingdom mostly also abolished common law marriage, but did so later than England did. India, however, has a legal doctrine quite similar to common law marriage today as a legacy of British law, for members of some religions, and Australia, Canada, and Ireland have recognized somewhat similar concepts by statute or local case law innovations. Notably, common law marriage had not been abolished in the American colonies at the time that the United States gained independence in 1776 (although it took a while for the British to diplomatically recognize this political reality).</p>\n<p>In the time period from 1753 to 2006, the formalities required to get married were more lax in Scotland than in England, so it was common in that time period for couples for whom the formalities of the English marriage system were inconvenient to travel to Scotland to marry. In addition to the reality of this situation, this is a prominent feature in many fictional novels set in this time period. As a result, there is an ample case law in English and Scottish courts over choice of law issues related to this reality. This case law was referred to regularly in the late 19th century and early 20th century by U.S. courts addressing choice of law issues related to marriage and divorce, particularly in cases involving marriages and divorces entered into in Mexico and the Caribbean in an effort to evade legal restrictions present in the home states of the couples involved.</p>\n<p>In most circumstances, however, the law of England and Wales will recognize the validity of a marriage which was legally entered into under the law of the place where the marriage where it was entered into, even if that marriage didn't comply with English law regarding what is necessary to get married.</p>\n<p><em>Terminating A Marriage In England Then And Now</em></p>\n<p>Also, like all other common law jurisdictions (and so far as I know, all other civil law jurisdictions), but unlike the situations in Islamic law, it is impossible in England and Wales to end a validly existing marriage by any means other than the death of a spouse or a court order decreeing that the marriage has been dissolved. Also, if a couple was not validly married, even though there could reasons someone might think that they were validly married, a court can clarify the situation by annulling a putative marriage.</p>\n<p><a href=\"https://en.wikipedia.org/wiki/History_of_Christianity_in_Britain\" rel=\"nofollow noreferrer\">Historically</a>, since England Christianized for the last time (after becoming almost entirely pagan after Anglo-Saxon invasions by the end of the 6th century that had been preceded by partial Christianization). The restoration of Christianity in England began about 600 CE, and had run its course well before the Norman invasion of 1066 CE, which is at the root of the modern English legal system. Divorce was then prohibited in England until the Anglican Church broke away from the Roman Catholic Church in 1532 in the English Reformation.</p>\n<p><a href=\"https://www.smithsonianmag.com/history/heartbreaking-history-of-divorce-180949439/\" rel=\"nofollow noreferrer\">The first Christian era marriage in England terminated by divorce</a> since long before the Norman invasion in England was in the case of King Henry VIII's marriage to Anne which was terminated in 1552. The next divorce in England took place no earlier than 1670 (although there were a handful of aristocratic annulments in that time period), and divorce was only available by parliamentary decree until 1857 when the Matrimonial Causes Act (1857) was enacted, with just 324 divorces granted by parliament from 1670 to 1857. The same source notes that:</p>\n<blockquote>\n<p>Only four of the 324 cases were brought by women. A husband needed to\nprove adultery to obtain a divorce. By contrast, a wife was required\nto prove adultery and some other especially aggravating circumstance\nto have the same grounds. Over the years, women learned that\nbrutality, rape, desertion and financial chicanery did not count.</p>\n</blockquote>\n<p><a href=\"https://www.family-lawfirm.co.uk/blog/divorce-in-the-uk-a-brief-history/\" rel=\"nofollow noreferrer\">Under the 1857 Act</a> divorce could be granted on the grounds of marital fault, for which adultery by itself sufficed for a man seeking a divorce and adultery by a husband together with cruelty, or rape and/or incest of someone else was required for a wife seeking a judicial divorce. Then according to the same source:</p>\n<blockquote>\n<p>A private members’ bill in 1923 made it easier for women to petition\nfor divorce for adultery – but it still had to be proved. In 1937, the\nlaw was changed and divorce was allowed on other grounds, including\ndrunkenness, insanity and desertion, although there was a bar on\npetitions for the first three years of the marriage.</p>\n</blockquote>\n<p>Divorce <a href=\"https://www.parliament.uk/business/publications/research/olympic-britain/housing-and-home-life/split-pairs/\" rel=\"nofollow noreferrer\">remained particularly rare</a> even after judicial divorce was authorized, especially prior to the 1923 reforms in English divorce law.</p>\n<blockquote>\n<p>In the first decade of the 20th century, there was just one divorce\nfor every 450 marriages. . . . it was not until the\nDivorce Reform Act 1969 that they reached the level we are familiar\nwith today. This legislation marked an important shift not merely\nbecause it added further grounds for divorce, on the basis of two\nyears' separation with the other party's consent, or five years'\nwithout, but because it removed the concept of ‘matrimonial offences'\nand hence the idea of divorce as a remedy for the innocent against the\nguilty.\nToday, there are just two marriages for every divorce each year.</p>\n</blockquote>\n<p>Finally, starting <a href=\"https://www.thetimes.co.uk/money-mentor/article/financial-divorce-settlement/\" rel=\"nofollow noreferrer\">in April 2022</a> the divorce regime there became an almost fully no-fault divorce regime. So, basically, either member of a married couple can unilaterally divorce at will, without that five year waiting period required from 1969 to 2021, but with still having the economic consequences discussed below.</p>\n<p><em>Ummarried Couples Compared</em></p>\n<p>Unmarried couples can break up at will, and court intervention is only available to resolve specific disputes over title to specific property, child custody type issues, and child support type issues, which married couples if they broke up would address in a divorce case. If unmarried couples resolve all issues of property division, child custody, and child support by mutual agreement without ever having resorted to court intervention, court involvement in their break up is not required at all. As noted <a href=\"https://en.wikipedia.org/wiki/Cohabitation_in_the_United_Kingdom#Social_security_law\" rel=\"nofollow noreferrer\">here</a>:</p>\n<blockquote>\n<p>In response to the increase in cohabitation, several legal changes\nwere made in the UK in recent years. In Scotland, the Family Law\n(Scotland) Act 2006 provides cohabitants with some limited rights. [<em>ed.</em> England does not currently have similar legislation in force.]</p>\n<p>In addition, since 2003 in England and Wales, 2002 in Northern\nIreland, and 2006 in Scotland, an unmarried father has parental\nresponsibility if he is listed on the birth certificate. . . .</p>\n<p>While 49% of cohabiting couples that aren't married or in a civil\npartnership believe they have rights under a 'common law marriage',\ncommon law marriage has no legal standing in England and Wales.\nCohabiting couples aren't automatic beneficiaries or have protections\nregarding non-joint bank accounts, mortgages, tenancies or pensions,\nunless the other person is explicitly mentioned as a joint account\nholder or in the terms as a beneficiary, for example in the event of\ndeath.</p>\n</blockquote>\n<p><strong>Notable Legal Implications Of Marriage In England and Wales</strong></p>\n<p>I'll list only a sampling of the legal incidents of marriage which are now, or have historically been, among the most important (some of which have been repealed but are mentioned because many people are not aware that the historic legal situation is no longer the case):</p>\n<ol>\n<li><strong>Paternity</strong></li>\n</ol>\n<p><a href=\"https://fnf.org.uk/law-information-2/the-law/paternity-law\" rel=\"nofollow noreferrer\">Marriage creates a strong legal presumption</a> (which is in some cases rebuttable) that children born to a married woman are children of her husband.</p>\n<blockquote>\n<p>Until officially declared otherwise, a man is deemed to be a child’s\nlegal father if he is married to the mother at the time of the child’s\nbirth[.]</p>\n</blockquote>\n<ol start=\"2\">\n<li><strong>Rape</strong></li>\n</ol>\n<p>England no longer recognizes an immunity between spouses for rape. <a href=\"https://www.citizensadvice.org.uk/family/living-together-marriage-and-civil-partnership/living-together-and-marriage-legal-differences/\" rel=\"nofollow noreferrer\">Spousal rape is a crime in England</a> just as it would be for non-married cohabitants.</p>\n<ol start=\"3\">\n<li><strong>Duty of Support</strong></li>\n</ol>\n<p>A spouse has a <a href=\"https://www.citizensadvice.org.uk/family/living-together-marriage-and-civil-partnership/living-together-and-marriage-legal-differences/\" rel=\"nofollow noreferrer\">duty to economically support a current spouse</a> (beyond child support), while unmarried cohabitants do not have a duty of support to each other.</p>\n<blockquote>\n<p>If your partner won't support you, you can ask a court to order them\nto support you.</p>\n</blockquote>\n<p>When it was nearly impossible or at least very difficult to get legally divorced, this right was used in about <a href=\"https://www.smithsonianmag.com/history/heartbreaking-history-of-divorce-180949439/\" rel=\"nofollow noreferrer\">a dozen cases a year</a> almost always by women, often in the form of a lawsuit seeking <em>divortium a mensa et thoro</em> ("separation from bed and board") in the canon law courts of the Anglican Church, usually on the basis of adultery or life threatening cruelty and usually with the woman receiving regular spousal maintenance but losing all custody of her children as a result unless there were extenuating circumstances.</p>\n<p>These days, most spouses who are not being supported simply get divorced and receive spousal maintenance and a share of marital property (and possibly child support as well), instead, so the right to bring a lawsuit to enforce this right has largely fallen into dessitude and is rarely utilized in practice. The doctrine is mostly used to justify policies in other areas of the law that assume spouses provide economic support for each other (which they usually do even though this right is rarely enforced with lawsuits).</p>\n<ol start=\"4\">\n<li><strong>Property Rights During Marriage</strong></li>\n</ol>\n<p>During a marriage, the property rights of spouses are essentially identical to those of non-spouse cohabitants.</p>\n<p>This is as a result of the <a href=\"https://en.wikipedia.org/wiki/Married_Women%27s_Property_Act_1870\" rel=\"nofollow noreferrer\">Married Women's Property Act (1870)</a> which abolished the doctrine of <a href=\"https://en.wikipedia.org/wiki/Coverture\" rel=\"nofollow noreferrer\">coverture</a> (which treated a husband and wife as a single economic unit managed by the husband) in England and Wales.</p>\n<p>During the marriage title to property controls who owns and controls property in England and Wales for the vast majority of purposes for members of the married couple, just as it does for unmarried cohabiting couples, even though title may be disregarded for married couples in a divorce, and in some cases in connection with inheritance rights.</p>\n<p>As discussed in Part 9 below, England and Wales does not have a "community property" regime that is effective during the course of a marriage (although it might recognize the "community property" character of property acquired during a marriage while the couple lived in a community property jurisdiction for some purposes.</p>\n<ol start=\"5\">\n<li><strong>Income Taxation</strong></li>\n</ol>\n<p>Marriage has <a href=\"https://www.gov.uk/income-tax-rates\" rel=\"nofollow noreferrer\">income tax implications</a> in he U.K.</p>\n<blockquote>\n<p>If you’re married or in a civil partnership</p>\n<p>You may be able to claim Marriage Allowance to reduce your partner’s\ntax if your income is less than the standard Personal Allowance.</p>\n</blockquote>\n<ol start=\"6\">\n<li><strong>Government Benefits, Pensions, And Employee Benefits</strong></li>\n</ol>\n<p>Marriage is relevant to rights under some government benefit including "welfare", programs, but the details are too numerous to set forth here. Likewise, marital status is frequently relevant to the rules for public and private pension plans, and sometimes for other public and private sector employee benefit plans as well.</p>\n<p>One isolated area where cohabitation can confer rights similar to marriage, however, <a href=\"https://en.wikipedia.org/wiki/Cohabitation_in_the_United_Kingdom#Social_security_law\" rel=\"nofollow noreferrer\">is in English Social Security laws</a>:</p>\n<blockquote>\n<p><em>Social security law</em></p>\n<p>Living together has been part of the law since the beginning of the\nmodern welfare state in 1948. The term "Living together as husband and\nwife" was introduced from 4 April 1977 to mean the same as "cohabiting\nwith a man as his wife" which was used before that date. The term is\nnow "living together as a married couple".</p>\n<p>To be regarded as "living together as a married couple" or\ncohabitating, there are various questions to consider. The question of\ncohabitation should take into consideration all the six questions, and\nlooking at the relationship as a whole.</p>\n</blockquote>\n<p>Additional details on the six factor test for recognition of an unmarried couple for English Social Security benefits purposes can be found <a href=\"https://en.wikipedia.org/wiki/Cohabitation_in_the_United_Kingdom#Social_security_law\" rel=\"nofollow noreferrer\">here</a>.</p>\n<ol start=\"7\">\n<li><strong>Court Testimony</strong></li>\n</ol>\n<p>Historically, England had a privilege that excluded from evidence in court cases certain testimony from spouses against each other and certain testimony about confidential communications between spouses. This has <a href=\"https://en.wikipedia.org/wiki/Spousal_privilege\" rel=\"nofollow noreferrer\">now been abolished</a>.</p>\n<blockquote>\n<p>The form of privilege, restricting the admissibility into evidence of\ncommunications between spouses during a marriage, existed in English\nlaw from 1853 until it was abolished in 1968 (for civil cases) and in\n1984 (for criminal cases).</p>\n</blockquote>\n<p>The testimonial part of the spousal privilege was mostly abolished in the late 1800s with further clarification through 1984 in certain domestic violence settings.</p>\n<ol start=\"8\">\n<li><strong>Immigration</strong></li>\n</ol>\n<p>Spousal status is relevant to <a href=\"https://www.visalogic.net/uk/uk-spouse-visa/4/103\" rel=\"nofollow noreferrer\">an immigration application</a> when one spouse is a British subject and the other is not.</p>\n<blockquote>\n<p>Also known as a UK marriage visa, a spouse visa allows married\npartners of UK citizens to immigrate to the UK because they are\nmarried to someone who is 'settled in the UK' - i.e. a person who is\nordinarily resident in the UK and has no immigration restrictions on\nhow long they can stay in the UK.</p>\n</blockquote>\n<ol start=\"9\">\n<li><strong>Rights Upon A Divorce Or Breakup</strong></li>\n</ol>\n<p>As a practical matter, <strong>differing rights if the couple breaks up are the single most important difference between being a cohabiting unmarried couple with kids and a married couple with kids.</strong></p>\n<p>The difference matters because the less affluent member of the couple gets a much better deal upon a break up if the couple is married than if they couple is not married. The strong rights of a less affluent member of a couple primarily matter because this makes it economically safer for a woman in married couple who has kids to sacrifice her own economic prospects to focus on those kids than for a woman who is an unmarried cohabitant. This also matters because the economic incentive for a husband not to divorce a wife who is economically dependent upon him is much stronger than the economic incentive for an unmarried cohabitant boyfriend/father to not break up with an unmarried cohabitant girlfriend/mother.</p>\n<p>Upon <a href=\"https://en.wikipedia.org/wiki/Divorce_in_England_and_Wales\" rel=\"nofollow noreferrer\">divorce</a>, a divorced spouse is entitled to share of the couple's property and/or <a href=\"https://www.family-lawfirm.co.uk/divorce-settlements/spousal-maintenance/\" rel=\"nofollow noreferrer\">spousal maintenance</a> (a.k.a. alimony) in excess of child support, which are far in excess of the rights of a non-spouse cohabitant, especially in the case of a long marriage in which the couple's wealth has grown during the marriage.</p>\n<p>Non-spousal cohabitants who split up divide their property based upon title to property and have no spousal maintenance obligations to each other so only child support (if applicable) is at issue. Child support and custody are still present between unmarried cohabitants or co-parents who have children together.</p>\n<p>In the arena of property division, England does not have what in the U.S. is called "<a href=\"https://www.actec.org/estate-planning/what-is-community-property-states/\" rel=\"nofollow noreferrer\">community property</a>". There is, instead, a distinction between marital property acquired during the marriage and separate property, and England and Wales has an "equitable division" regime rather than one in which there is a fixed percentage right of each spouse, and marital property rights remain inchoate (rather than vested and presenting existing) until death or divorce. If a property settlement is not reached by mutual agreement a court <a href=\"https://www.thetimes.co.uk/money-mentor/article/financial-divorce-settlement/\" rel=\"nofollow noreferrer\">considers factors including</a>:</p>\n<blockquote>\n<ul>\n<li><p>Each partner’s individual assets</p>\n</li>\n<li><p>Contributions to the marriage or civil partnership, both financially and emotionally</p>\n</li>\n<li><p>Time out of the workplace</p>\n</li>\n<li><p>Earning capacity</p>\n</li>\n<li><p>Standard of living before the break-up</p>\n</li>\n<li><p>Requirements such as catering for disabilities</p>\n</li>\n<li><p>Length of marriage</p>\n</li>\n<li><p>How old you both are</p>\n</li>\n</ul>\n</blockquote>\n<p>In practice, the fact that a couple has children together also tends to influence what is equitable in a property division.</p>\n<p>The presence or absence of spousal maintenance greatly impacts the practical effect of a split up for a couple with children who are married v. a couple with children who are not married. A marital property settlement and spousal maintenance in addition to child support makes life a lot easier for a less affluent ex-spouse than child support alone.</p>\n<ol start=\"10\">\n<li><strong>Inheritance</strong></li>\n</ol>\n<p>Upon death, a surviving spouse has inheritance rights different from and greater than a non-spouse cohabitant, in the estate of the deceased spouse.</p>\n<p>Generally speaking, if there is no will, <a href=\"https://www.citizensadvice.org.uk/family/death-and-wills/who-can-inherit-if-there-is-no-will-the-rules-of-intestacy/\" rel=\"nofollow noreferrer\">a spouse has significant inheritance rights</a>, while a non-spouse cohabitant does not. There are also legal limitations on the extent to which a spouse can be denied an inheritance even if there is a will.</p>\n<p>While in general, a spouse has testamentary freedom to disinherit a spouse in English law (unlike the vqst majority of U.S. and civil law jurisdictions), <a href=\"https://www.co-oplegalservices.co.uk/media-centre/articles-jan-apr-2017/can-you-disinherit-your-spouse/\" rel=\"nofollow noreferrer\">in England</a>, the Inheritance (Provision for Family and Dependents) Act (1975) "sets out categories of people that have the legal standing to challenge another person's Will on the basis that they have not been left reasonable financial provision."</p>\n<p>Spouses also have greater rights at death than unmarried cohabitants with regard to management of a probate estate of a decedent partner and disposition of a partner's body, at least in the absence of estate planning documents to the contrary.</p>\n<p>Transfers to a spouse at death are also <a href=\"https://imperiallegal.com/media/articles/inheritance-in-the-uk-how-it-works/\" rel=\"nofollow noreferrer\">exempt from inheritance taxation</a>.</p>\n<p>Marital status is also highly relevant in England to the rules for succession to aristocratic titles and for the titles of someone who is married to someone with an aristocratic title. While English law normally makes little or no distinction between legitimate and illegitimate children (which is a function of whether their parents were married), in the area of succession to aristocratic titles and eligibility for titles that imply marriage to someone with an aristocratic title (like the former Queen's Consort), the distinction between married couples and their children, and unmarried couples and their children is very important.</p>\n<ol start=\"11\">\n<li><strong>Incapacity</strong></li>\n</ol>\n<p>Unlike most U.S. jurisdictions, marriage does not, in and of itself, grant strong rights relative to a cohabitating partner, to a role in medical decision making or guardianship proceedings in England.</p>\n<p>An adult's "next of kin" is generally their spouse or civil partnership partner, which is not automatic in the case of a cohabitating partner. But, the <a href=\"https://www.howellslegal.co.uk/news/post/Next-of-Kin-What-are-my-Rights\" rel=\"nofollow noreferrer\">rights associated with next of kin status</a> are generally limited to notice or information until another basis to be involved in decision-making is established:</p>\n<blockquote>\n<p>As far as the law is concerned next of kin means nothing with the\nexception of children aged under 18. The next of kin of a child under\n18 may be legally entitled to make decisions for or on behalf of the\nchild.</p>\n<p>The term usually means your nearest blood relative. In the case of a\nmarried couple or a civil partnership it usually means their husband\nor wife.</p>\n<p>Next of kin is a title that can be given, by you, to anyone from your\npartner to blood relatives and even friends. It is also possible to\nname more than one person as your next of kin. This is a title that is\nprimarily used in order for emergency services to know who to keep\ninformed about an individual’s condition and treatment.</p>\n<p>This means that you have no legal rights as a result of this title.\nThis can create difficulties if you haven’t put additional measures in\nplace to manage your relative or loved one’s affairs. If you do not\nhave any legal rights, you cannot make decisions on their behalf.</p>\n</blockquote>\n<p>Similarly, <a href=\"https://www.thorntons-law.co.uk/for-you/wills-trusts-and-succession-planning/power-of-attorney/guardianship-for-adults#:%7E:text=A%20Guardianship%20Order%20is%20a,although%20it%20can%20be%20more.\" rel=\"nofollow noreferrer\">pretty much anyone can be appointed to be an adult's guardian in England</a>, with no absolute priority for a spouse or a blood family member over a cohabitating partner or any other person expressing interest in the care of an incapacitated person. Marriage is just one factor among many considered in a fairly wholistic manner when deciding between competing applications to serve as someone's guardian.</p>\n<p><strong>Cohabitation Post-Divorce By A Formerly Married Couple</strong></p>\n<p>A married couple with children that gets divorced and then cohabits post-divorce are not on quite the same footing as a cohabiting couple with children who have never married.</p>\n<p>The starting point in such a couple for the rights of the former spouses vis-a-vis each other begins with the divorce decree and any incorporated settlement between the spouses in connection with the divorce. Provisions related to child custody and child support may be modified over time as the children grow and circumstances change. In some unusual but not unheard of circumstances, spousal support duties arising from the prior marriage can be imposed long after the divorce even if spousal support was not immediately imposed at the time of the divorce or was only nominal at that time.</p>\n<p>Provisions related to court ordered child custody arrangements, child support, and spousal support normally continue in force until they are spent by the their own terms (e.g. when the children become adults or spousal support established for a fixed time period ends), are modified by a later court order, or the couple remarries.</p>\n<p>It is uncommon, but not completely unheard of, for the children of a couple for whom child custody arrangements have been imposed between unmarried coparents or in a divorce at one point, to ever cease to be subject to some sort of court order related to child custody.</p>\n<p>Court orders related to children or spousal maintenance cannot normally be adjusted by mutual agreement after a divorce without court intervention.</p>\n<p>Remarriage will generally abrogate and cause to become void all provisions in a divorce decree, settlement, or post-divorce court order related to the children, and all provisions with spousal maintenance, while the property ownership and debt obligations of the parties to the remarriage restart from scratch at whatever state they were in immediately prior to the remarriage. Sometimes a remarriage after a divorce legitimatizes the paternity of children born between the marriages.</p>\n<p><strong>First Marriages Of A Cohabiting Couple With Children</strong></p>\n<p>When a cohabiting couple with children marry, they have all of the incidents of a married couple.</p>\n<p>Sometimes, but not always, this will help establish the father's paternity of their children. Court orders related to the custody and child support of their shared children will usually be dissolved (I don't know if any formal legal action is required to do this or not).</p>\n<p>Property acquired by the couple prior to marrying while cohabiting will generally be separate property owned by the spouse who was in title to that property prior to getting married.</p>\n<p>In a subsequent divorce of that couple, the length of the marriage will not include the full time of their cohabitation, but their cohabitation prior to marriage is a factor which a divorce judge is not prohibited from considering entirely in making an equitable division of marital property and in awarding spousal maintenance.</p>\n",
"score": 11
}
] |
[
"united-kingdom",
"marriage"
] |
What provision of the CPR requires any parties who might possibly be claimants to an action to be made defendants if they are not?
| 3 |
https://law.stackexchange.com/questions/90750/what-provision-of-the-cpr-requires-any-parties-who-might-possibly-be-claimants-t
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CC BY-SA 4.0
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<p>A blog site mentions a provision requiring all parties who might be a party to a claim to be listed as defendants if they are not participating as claimants, but I cannot find it again now that I want to. What provision of the civil procedure rules is this, what is the logic of it, and how does it actually work in practice?</p>
| 90,750 |
[
{
"answer_id": 90786,
"body": "<p><a href=\"https://www.legislation.gov.uk/uksi/1998/3132/rule/19.3?timeline=false\" rel=\"nofollow noreferrer\">Civil Procedure Rule 19.3</a> provides <em>Provisions applicable where two or more persons are jointly entitled to a remedy</em>:</p>\n<blockquote>\n<p>(1) Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.</p>\n<p>(2) If any person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.</p>\n<p>(3) This rule does not apply in probate proceedings.</p>\n</blockquote>\n<p>My reading is that it is a technical device to deal with circumstances where a number of people are <strike>severally</strike> jointly entitled to a remedy or redress but not all wish to make a claim for some reason or another.</p>\n<p>Imagine the simplistic scenario (but hopefully not <em>too</em> simplistic that it loses its meaning) where Dave the defendant destroys an asset jointly <strike>and severally</strike> owned by Alice, Bob and Carol thus causing a loss to all three.</p>\n<p>Carol does not wish to be a party to the claim so she becomes a co-defendant next to Dave, but she remains a joint <strike>and several</strike> owner - for now anyway.</p>\n<p>If Alice's and Bob's claim is successful one potential outcome is that an order is made to award Carol's <strike>"share"</strike> ownership of the asset jointly <strike>and severally</strike> over to Alice and Bob - in effect removing Carol from the equation. Dave is then ordered to pay Alice and Bob damages.</p>\n<p>One example of joint ownership is <a href=\"https://hmlandregistry.blog.gov.uk/2022/11/02/what-kind-of-joint-ownership-do-i-have/\" rel=\"nofollow noreferrer\">joint tenants</a> who...</p>\n<blockquote>\n<p>...have equal rights to the whole property – neither one [of you] has a specific “share” in the property</p>\n</blockquote>\n",
"score": 3
}
] |
[
"england-and-wales",
"civil-procedure",
"rules-of-court"
] |
Is a company liable if someone leaves their bank logged in on a company PC?
| 10 |
https://law.stackexchange.com/questions/90768/is-a-company-liable-if-someone-leaves-their-bank-logged-in-on-a-company-pc
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CC BY-SA 4.0
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<p>If a company sets up computers in a break area for employees to access their timecard, payroll, bank accounts, etc., can the company get in trouble if an employee leaves their private accounts logged in?</p>
| 90,768 |
[
{
"answer_id": 90777,
"body": "<p>The party providing the computer, ISp connecting the computer to the internet, or manufacturer of the computer would not be liable. A person wishing to sue for damages would have to establish that the defendant was negligent in their action. The underlying premise is that all parties have some obligation to all other parties to care, to some extent. The inquiry ask haw\na reasonable\nprudent person would behave in this context when pursuing their goals to avoid harming others. A reasonably prudent person would not provide a rack of sharp carving knives on the floor of a daycare center. A reasonably prudent person would provide a rack of sharp carving knives on a work-table at a fish-cleaning business. In both cases, it is possible that a person might cut themselves. In the daycare center, the toddlers on the floor are not assumed to share any of the burden of care, in the fish-store, the employees are assumed to share some of the burden of care.</p>\n<p>The ISP knows that it is possible that a person will harm themselves when they surf the web, but that does not make them liable for damages when an irresponsible party deliberately and knowingly connects to a nest of viruses, likewise the computer maker. The alternative is that providing an internet connection always makes you liable, or building a computer: that would be the end of SE. Two parties can significantly and reasonably mitigate the risk: the bank, and the customer. The customer can either decline to use this unsafe computer, or they can take precautions, in particular remembering to log out. The bank can also do certain things without harming their interest: providing ample warnings (which they do), or automatically logging a customer out after a period of inactivity (a metric of the fact that the customer just up and left). Banks do that too.</p>\n<p>The only control that could be reasonably be expected from the company, short of simply not providing a computer in the break room, would be filtering to prevent any access to certain kinds of web sites, such as porn sites, banks, or SE. Filtering for the first type of site is overall consistent with reasonable company objectives (which is to accommodate reasonable employee interests in accessing or transmitting information during the work day). Given the reasonable goals of the company, the jury would not likely find that the company had breached their duty to the employee. The jury balances these interests of the parties, and would determine that the company could not be expected to filter out connection requests to banks, and that they can reasonably rely on prudent actions by the employee and bank to prevent whatever happened.</p>\n",
"score": 14
},
{
"answer_id": 90781,
"body": "<p>The usual question for questions like this, "what legislation?"</p>\n<p>When a company sets up IT infrastructure for use by their employees, it <em>may</em> have to take steps to assure that no personal data is stored there outside established procedures (which would go against the purpose of a break room computer). It <em>may</em> be sufficient if they post a sign, "do not leave personal data," or make the employees read and sign a policy to that effect.</p>\n<p>But all this will not excuse the employee from taking care with bank credentials.</p>\n",
"score": 5
},
{
"answer_id": 90773,
"body": "<p>As far as I know, providing a computer for people to use does not make one liable for subsequent theft due to people using that computer carelessly. If the computer stores passwords so that a subsequent user can easily access an account there might be liability. There are ways to safeguard against this.</p>\n<p>Similarly, if I let someone borrow my car, I am not liable if they take it to the mall and leave their wallet in it and the wallet is stolen in the parking lot. If the locks don't work and I didn't tell them I might have liability.</p>\n",
"score": 2
}
] |
[
"privacy",
"data"
] |
Is murder unconstitutional?
| 17 |
https://law.stackexchange.com/questions/90752/is-murder-unconstitutional
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CC BY-SA 4.0
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<p>I've heard a number of times now that the U.S. Constitution regulates the government and not private entities. This is why, for example, private organizations can limit free speech but the government cannot.</p>
<p>I got to thinking: <strong>Is murder unconstitutional?</strong> Obviously, I know of no state that allows murder, but would anything in the U.S. Constitution bar one private person from taking the life of another private person?</p>
<p>Again, murder is both illegal and immoral, but to ensure I'm following just how far the Constitution does <em><strong>not</strong></em> regulate private persons, would the U.S. Constitution alone fail to prohibit murder? It's wrong and illegal, but is it unconstitutional?</p>
| 90,752 |
[
{
"answer_id": 90780,
"body": "<p>The Constitution does not define any crimes (except for an explicit limit on what can be considered 'treason.') It places limits on what penalties the government may apply for crimes and how crimes are tried in court, but it does not itself actually create any criminal offenses. Rather, state and federal law do that.</p>\n<p>Having said that, if a state government creates a crime of murder (which, obviously, they all do,) the <a href=\"https://en.wikipedia.org/wiki/Equal_Protection_Clause\" rel=\"noreferrer\">Equal Protection Clause</a> of the 14th Amendment does require that that law protect all people within the jurisdiction of that state. That is, a state cannot make a law criminalizing the murder of a white person, but not of a black person, for example. States can't just pick and choose who is protected by their laws. It would not violate the U.S. Constitution if a state completely decriminalized murder, though. It's exceptionally unlikely to happen, but it would not be a violation of the Constitution.</p>\n<p>Depending on exactly what you mean by 'murder,' it could be argued that murder <em>by the government</em> is unconstitutional, though. The <a href=\"https://www.law.cornell.edu/constitution/amendmentxiv\" rel=\"noreferrer\">14th Amendment</a> bans states from depriving anyone of life without due process of law:</p>\n<blockquote>\n<p>No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; <strong>nor shall any state deprive any person of life, liberty, or property, without due process of law</strong>; nor deny to any person within its jurisdiction the equal protection of the laws.</p>\n</blockquote>\n<p>Similarly, the <a href=\"https://www.law.cornell.edu/constitution/fifth_amendment\" rel=\"noreferrer\">5th Amendment</a> provides an equivalent protection from the federal government:</p>\n<blockquote>\n<p>No person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law</p>\n</blockquote>\n",
"score": 28
},
{
"answer_id": 90754,
"body": "<p>The U.S. Constitution sets up the structural framework of the government and the restraints upon it.</p>\n<blockquote>\n<p>While much of the Constitution consists of a general framework for the federal government’s form and functions, a central, and perhaps counterintuitive, purpose of the Constitution is to restrain the government, by, among other things, immunizing certain values and principles from government interference.</p>\n<p><em>The Constitution Annotated</em>: "<a href=\"https://constitution.congress.gov/browse/essay/intro.7-1/ALDE_00000028/\" rel=\"noreferrer\">Overview of Basic Principles Underlying the Constitution</a>"</p>\n</blockquote>\n<p>The Constitution does not have <a href=\"https://en.wikipedia.org/wiki/The_Concept_of_Law#Primary_rules\" rel=\"noreferrer\"><em>primary rules</em></a> of obligation directed at individuals. It contains what H.L.A. Hart refers to as <a href=\"https://en.wikipedia.org/wiki/The_Concept_of_Law#Secondary_rules\" rel=\"noreferrer\"><em>secondary rules</em> of change and recognition</a>. There is nothing in the Constitution prohibiting murder.</p>\n",
"score": 25
},
{
"answer_id": 90785,
"body": "<p>The only crime defined in the Constitution itself is treason. There are statutes defining “murder,” but those could be changed or repealed. There is also a common-law definition of murder, which some judges might rule applies in the absence of any statute superseding it. (This theory has applied to some other areas of law, but so far as I know, this situation has never arisen with murder.)</p>\n<p>As others have mentioned, the Fourteenth Amendment does prohibit both the federal and state governments (and by extension, other local governments created by either) from depriving any person of life “without due process of law.” Government agents such as police, though, are allowed by law to kill people under some circumstances, such as when they reasonably feel that they’re in danger, and this is deemed due process of law.</p>\n<p>The Fourteenth Amendment also guarantees each person equal protection of the law, which might be the basis of an argument that it’s unconstitutional to allow some people to be murdered with impunity but not others. Historically, this did not force states to do anything about lynchings, though. There is also a prohibition on “cruel and unusual punishment” that, some have argued, prohibit execution at least for some offenses where it would be disproportionate. Some activists would like the courts to declare that capital punishment or abortion are always unconstitutional, but the courts have declined to do so.</p>\n<p>There have also been a small number of times in history—most famously, the Nuremberg Trials—where people whose government authorized them to commit genocide have been tried for crimes against humanity. There is no way to force a nuclear power to submit to such a tribunal (although this has not always stopped the International Criminal Court from issuing symbolic indictments it has no power to enforce).</p>\n",
"score": 7
},
{
"answer_id": 90774,
"body": "<p>you are simply confusing two bodies of law, criminal law and constitutional law...\nmoreover, States generally as sovereigns often grant themselves abusus over their subjects or citizens, i.e. the right of life and death (over one thing, the republics often inherit this right of slavery over people of law...</p>\n<p>although they can no longer call themselves "absolute owner" or sovereign of people and land... however this could be precisely a case, a constitutional amendment aimed, not at abolishing, but at prohibiting the use of this right to a republic, because these citizens are not things, personal property, but human beings by right, free and who must remain so</p>\n",
"score": 3
},
{
"answer_id": 90826,
"body": "<p>Murder by a private citizen is not unconstitutional, in the same way the same way that it doesn’t violate Roberts Rules of Order, or the rules of the FIDE (International Chess Federation).</p>\n<p>Crimes and government structure are entirely separate areas of what is loosely known as The Law, with very little overlap.</p>\n",
"score": 3
}
] |
[
"constitutional-law",
"us-constitution",
"murder",
"constitutional-rights"
] |
Payment made by LLC debit/credit card, but order placement done through a personal account
| -2 |
https://law.stackexchange.com/questions/90769/payment-made-by-llc-debit-credit-card-but-order-placement-done-through-a-person
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CC BY-SA 4.0
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<p>I recently formed a multi-member LLC, opened its bank account and have its debit/credit cards.</p>
<p>To buy inventories for the business, I logged into eBay/Amazon using my personal account, and then bought some stuff using the LLC's debit/credit cards.</p>
<p>So, the payment is done through the LLC, but the order itself is placed under my personal account.</p>
<p>Is this allowed? I vaguely feel like the best practice is to create a merchant account under the business's name and deal with everything there. But as long as financial transactions are completely separated from my personal ones, the means through which the transactions occur shouldn't matter.</p>
| 90,769 |
[
{
"answer_id": 90817,
"body": "<p>You can buy things however you want, but cash outlays from the business should be from business accounts, which you have done. No one cares what Amazon or eBay account you used to place the orders. You won't find anywhere in your accounting software (or physical ledger book if you do it that way) a place to enter which account you used to place an order. You just need the amount, purpose, and receipt.</p>\n",
"score": 0
}
] |
[
"united-states",
"payment",
"limited-liability-company",
"accounting"
] |
Is it ever illegal to spread true facts with malicious intent?
| 5 |
https://law.stackexchange.com/questions/90523/is-it-ever-illegal-to-spread-true-facts-with-malicious-intent
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CC BY-SA 4.0
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<p>Crimes such as defamation usually require that the statement being said is false - truth is an absolute defense.</p>
<p>Are there any situations or jurisdictions where truth is <strong>not</strong> a defense against defamation, incitement to hatred, or similar crimes or torts?</p>
<p>For example:</p>
<ul>
<li>Malicious gossip: widely spreading word that someone cheated on their wife. Their employer hears about it and fires them. Otherwise their employer had no reason to know this.</li>
<li>Facts out of context: "Mr XYZ won't deny being a pedophile" but only because he hangs up every time the reporter asks.</li>
<li>Plain old defamation, in some jurisdictions.</li>
<li>Contextual implication: "Black people commit more than 50% of violent crimes" [because they are inherently violent beings and something should be done to control them]</li>
<li>Stock price manipulation: "XYZ Corp is doing terribly" [so is every company in that sector but I want the price of XYZ Corp in particular to go down]</li>
</ul>
| 90,523 |
[
{
"answer_id": 90572,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p><strong>Yes</strong></p>\n<p>As well as the general offence of <a href=\"https://www.gov.uk/contempt-of-court\" rel=\"noreferrer\">comtempt of court</a> by publishing facts in breach of a court order, there are also two statutory provisions making it an offence if those facts reveal a person's identity (maliciously or not):</p>\n<ul>\n<li><a href=\"https://www.legislation.gov.uk/ukpga/1992/34/section/1?timeline=false\" rel=\"noreferrer\">section 1</a>, Sexual Offences (Amendment) Act 1992:</li>\n</ul>\n<blockquote>\n<p>(1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.</p>\n<p>(2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication.</p>\n<p>[...]</p>\n</blockquote>\n<p>The relevant offences are listed in <a href=\"https://www.legislation.gov.uk/ukpga/1992/34/section/2?timeline=false\" rel=\"noreferrer\">section 2</a> (being rape and a number of other serious sexual offences).</p>\n<ul>\n<li><a href=\"https://www.legislation.gov.uk/ukpga/Geo5/23-24/12/section/49?timeline=false\" rel=\"noreferrer\">section 49</a>, Children and Young Persons Act 1933:</li>\n</ul>\n<blockquote>\n<p>(1) No matter relating to any child or young person concerned in proceedings to which this section applies shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as someone concerned in the proceedings.</p>\n<p>(2) The proceedings to which this section applies are—</p>\n<ul>\n<li><p>(a) proceedings in a youth court;</p>\n</li>\n<li><p>(b) proceedings on appeal from a youth court (including proceedings by way of case stated);</p>\n</li>\n<li><p>(c) proceedings in a magistrates' court under Schedule 7 to the Sentencing Code (proceedings for breach, revocation or amendment of youth rehabilitation orders);</p>\n</li>\n<li><p>(d) proceedings on appeal from a magistrates' court arising out of any proceedings mentioned in paragraph (c) (including proceedings by way of case stated).</p>\n</li>\n</ul>\n<p>[...]</p>\n</blockquote>\n",
"score": 5
},
{
"answer_id": 90583,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a> except as otherwise stated.</p>\n<blockquote>\n<p>Is it ever illegal to spread true facts with malicious intent?</p>\n</blockquote>\n<p>This is not a comprehensive answer, but illustrates some examples and counterexamples.</p>\n<p><strong>Confidentiality Obligations</strong></p>\n<p>The most common circumstance where it is illegal to spread true facts with malicious intent is when the person doing so has a legal duty, that obligates that person to keep certain information secret and maliciously breaches that duty in a way that harms someone whose information was protected.</p>\n<p>This could arise, for example:</p>\n<ul>\n<li><p>out of a contract (such as a non-disclosure agreement or confidentiality term in a settlement agreement or a confidentiality provision related to a bid),</p>\n</li>\n<li><p>a relationship (such as attorney-client, or psychotherapist-patient or an intimate sexual relationship in which photos or videos are taken without consent), or</p>\n</li>\n<li><p>some other circumstance (such as cheating on an official government exam by spreading the answers, holding a position of trust in a publicly held company, grand jury service, providing health insurance to an insured, working for the IRS or a bank or an adoption agency or a spy or a soldier).</p>\n</li>\n</ul>\n<p>It could also happen in the absence of any specialized duty, for example, when national security is impaired as a result, or when it has the practical effect of foreseeably aiding and abetting someone imminently about to commit a crime against someone (e.g. telling an assassin or kidnapper that his target is hiding in the closet).</p>\n<p><strong>Extortion</strong></p>\n<p>Threatening to maliciously disclose truthful information, without actually disclosing the information, to make someone do something that otherwise wouldn't do, is in some circumstances illegal extortion. This is obvious not, however, actual dissemination of true facts with malicious intent. The perpetrators goal is to get compliance not to carry out the threat.</p>\n<p><strong>Intentional Infliction Of Emotional Distress (a.k.a. Outrageous Conduct)</strong></p>\n<p>The tort of intentional infliction of emotional distress could qualify, but then the gravamen of the tort is not spreading true information, but the manner in which an interaction is framed to humiliate someone.</p>\n<p>This tort (and crimes in a handful of jurisdictions) could conceivably include "pushing someone's buttons" by means including dissemination of truthful facts with malicious intent with the purpose of trying to make them commit suicide. In these cases the goal to be accomplished and the intended effect on the vulnerable victim, rather than the actual content of the communication in the abstract is what matters.</p>\n<p><strong>Verbal Acts</strong></p>\n<p>Some statements that are true in a tautological sense (i.e. by definition) but not because they convey information about pre-existing facts, can give rise to liability.</p>\n<p>For example, if I say "Your fired" which becomes true when I say it, and I was not allowed to terminate someone's employment that could give rise to liability.</p>\n<p>Or, if I have a contract to deliver widgets and I say, "I'm not going to deliver the widgets" that could give rise to liability as a repudiation of a contract that breaches a contract.</p>\n<p>Or, if I have a contract that obligates me to sell something to one person, and I sell it to someone else saying "I hereby sell this to you.", that is a verbal act which could also create liability for breaching the original contract.</p>\n<p><strong>Examples From The Question</strong></p>\n<p>The examples given in the question mostly don't give rise to liability. For example, if none of the duties of confidentiality illustrated above apply:</p>\n<blockquote>\n<p>Malicious gossip: widely spreading word that someone cheated on their\nwife. Their employer hears about it and fires them. Otherwise their\nemployer had no reason to know this.</p>\n</blockquote>\n<p>No, if true.</p>\n<blockquote>\n<p>Facts out of context: "Mr XYZ won't deny being a pedophile" but only\nbecause he hangs up every time the reporter asks.</p>\n</blockquote>\n<p>A few states recognize the tort of "<a href=\"https://www.law.cornell.edu/wex/false_light\" rel=\"noreferrer\">false light</a>", although this would be a minority rule. It flows from linguistic context that falsely implies an untrue fact without actually saying so.</p>\n<blockquote>\n<p>Plain old defamation, in some jurisdictions.</p>\n</blockquote>\n<p>Germany recognizes insults and disrespect as offenses and classifies them as defamation even though U.S. law would not classify this kind of conduct as defamation. The mere facts alone, moreover, as opposed to the context and manner as well as what is said, impact whether this is wrongful conduct in Germany.</p>\n<p>In the U.S. the closest one gets are crimes and torts like disturbing the peace, interfering with a law enforcement officer, harassment, and inciting a riot. Mostly, these offenses are not focused on any particular banned truthful content. They are focused on the intended effect of the communication and the manner and context of the communication.</p>\n<p>Historically, statements dishonoring the dead, or pointing out the natural frailties of the disabled could be grounds for civil or criminal defamation in the U.S. although these grounds have virtually vanished and are currently legally in doubt.</p>\n<p>Egging someone on to engage in illegal or violent conduct (i.e. taunting them) with truthful statements made with malicious intent could have impacts on the right to self-defense and could mitigate the offense of someone who rises to the taunts (but is rarely a complete excuse).</p>\n<blockquote>\n<p>Contextual implication: "Black people commit more than 50% of violent\ncrimes" [because they are inherently violent beings and something\nshould be done to control them]</p>\n</blockquote>\n<p>Not under U.S. law.</p>\n<blockquote>\n<p>Stock price manipulation: "XYZ Corp is doing terribly" [so is every\ncompany in that sector but I want the price of XYZ Corp in particular\nto go down]</p>\n</blockquote>\n<p>Very unlikely to give rise to liability. There is securities fraud in the form of market manipulation, but generally this doesn't include spreading truthful information.</p>\n<p>Usually market manipulation flows from conduct (as opposed to statements of fact or concealment of information) related to securities that is part of a scheme to defraud.</p>\n<blockquote>\n<p>Hate crimes</p>\n</blockquote>\n<p>Under U.S. law "hate crimes" are generally always sentence enhancers for other acts that already constitute crimes. Disseminating truthful information with a malicious purpose is essentially never a hate crime.</p>\n<blockquote>\n<p>incitement to hatred</p>\n</blockquote>\n<p>This concept is not recognized in U.S. law. U.S. law does impose liability for conduct that is discriminatory based upon improper considerations, but this is more along the lines of liability for verbal acts than malicious distribution of true information.</p>\n<p>U.S. law does recognize crimes such as inciting a riot and solicitation of a crime, both of which contemplate urging other people to <em>imminently</em> commit a crime.</p>\n",
"score": 5
},
{
"answer_id": 90567,
"body": "<h2>Yes</h2>\n<p>The “truth” of a publication is determined not just by whether it is facially true but by the impression that the totality would create in a reasonable person. This is known as defamation by implication. Here’s some discussion of this from <a href=\"https://www.virginiadefamationlawyer.com/defamation-by-implication-is-an-intentional-tort/\" rel=\"nofollow noreferrer\">Virginia</a>, <a href=\"https://www.rcfp.org/true-statements-can-be-defamatory-implication/\" rel=\"nofollow noreferrer\">Iowa</a>, and the general <a href=\"https://kellywarnerlaw.com/defamation-by-implication\" rel=\"nofollow noreferrer\">US</a> on the basis that if its defamation in the USA, its defamation anywhere.</p>\n<blockquote>\n<p>Defamation by implication cases are nuanced. To win, you must have rock solid arguments and evidence to support your side.</p>\n</blockquote>\n<p>For your examples:</p>\n<ul>\n<li>Malicious gossip - not defamatory. “Someone” cheated on their wife and that’s exactly what you are saying. Your motives for saying it are irrelevant.</li>\n<li>Out of context facts - may be defamatory. Your specific example would depend on the total context where the statement is made - in an article about allegations of child abuse, it’s probably defamatory without the specifics. It implies something more than “Mr XYZ gave no comment when asked”.</li>\n<li>Contextual implication - may be defamatory. Your particular example because “black people” is not a person who can be defamed. If the statement is made with some relationship to an individual so that the implication is that that person is more likely a criminal then it could be defamation.</li>\n<li>Talking down a company - may be defamatory. “XYZ corp is doing terribly” isn’t though because it’s a statement of opinion.</li>\n</ul>\n",
"score": 3
},
{
"answer_id": 90816,
"body": "<p><a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a></p>\n<p>A bit far from defamation etc. but given that stock manipulation is listed among the OP’s examples, I think "swindling" qualifies:</p>\n<blockquote>\n<p>L'escroquerie est le fait, soit par l'usage d'un faux nom ou d'une fausse qualité, <strong>soit par l'abus d'une qualité vraie, soit par l'emploi de manoeuvres frauduleuses,</strong> 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.</p>\n</blockquote>\n<blockquote>\n<p>It is swindling to deceive a natural or moral person by using a false name or title, <strong>or by abusing a true title, or by fraudulent maneuvers</strong>; such that this person [gives money or does some stuff]</p>\n</blockquote>\n<p>(<a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006418192\" rel=\"nofollow noreferrer\">Code Pénal, article 313-1</a>; my emphasis. Under 313-3 an unsuccessful attempt is punished as well.)</p>\n<p>"Fraudulent maneuvers" is a rather ill-defined thing. Cases about it regularly reach the Cour de Cassation (<a href=\"https://www.dalloz-actualite.fr/flash/escroquerie-necessite-de-manoeuvres-frauduleuses-determinantes-de-remise-et-anterieures-celle-\" rel=\"nofollow noreferrer\">here’s one two weeks ago (March 2023)</a>); most such appeals fail, but there is still enough uncertainty that many litigants will "roll the dice". Essentially it must be multiple actions or assertions designed to give a false belief to the recipient(s) (a one-time lie is not sufficient).</p>\n<p>For instance, suppose a policeman intends to steal money from a bank and then run out of the country. He puts on his uniform, enters the bank, and tells the clerk: "I am from the police; someone is going to try to steal your money today, please give it to me." He did not lie (he is from the police, and someone - him - is trying to steal the money). Arguably he is not using "fraudulent maneuvers" either. He is still guilty of swindling (regardless of whether he succeeds), because his authority as a policeman is crucial for the scam to work.</p>\n",
"score": 2
}
] |
[
"defamation",
"libel",
"securities",
"hate-crime"
] |
Can a corrupt sherriff cause all cases from a department to be dismissed?
| 0 |
https://law.stackexchange.com/questions/90459/can-a-corrupt-sherriff-cause-all-cases-from-a-department-to-be-dismissed
|
CC BY-SA 4.0
|
<p>A <a href="https://www.youtube.com/watch?v=JcrEbcFxBGk" rel="nofollow noreferrer">video</a> detailing the incident</p>
<blockquote>
<p>Victor Hill, the former sheriff of Clayton County, Georgia, was charged with seven counts of willfully depriving detainees at the Clayton County Jail of their constitutional right to be free from unreasonable force by law enforcement officers. Specifically, the grand jury who indicted him alleged that Hill caused the seven victims to be strapped into restraint chairs at the jail without any legitimate nonpunitive governmental purpose and for a period exceeding that justified by any legitimate nonpunitive governmental purpose. The grand jury further alleged that these offenses caused physical pain and resulted in bodily injury to the victims.</p>
<p>The trial is already over. On October 26, 2022, a jury convicted Hill
on six of the seven counts. As to each of those six guilty counts, the
jury further found that the offense caused physical pain and resulted
in bodily injury to 6 different victims.</p>
</blockquote>
<p>It's safe to assume that if leadership at a department is corrupt. Rank & File officers were likely corrupt as well. Can a corrupt sheriff cause all cases from his department to be dismissed while he was in charge?</p>
| 90,459 |
[
{
"answer_id": 90465,
"body": "<blockquote>\n<p>Can a corrupt sheriff cause all cases from his department to be\ndismissed while he was in charge?</p>\n</blockquote>\n<p>There have been cases of mass dismissals when the corruption by the law enforcement officer involves a pattern and practice of falsification of evidence provided to courts in those cases. One of the most notable such cases was <a href=\"https://www.aclum.org/en/news/report-shows-more-24k-wrongful-convictions-dismissed-drug-lab-scandal\" rel=\"nofollow noreferrer\">this one</a>:</p>\n<blockquote>\n<p>More than 24,000 convictions in 16,449 cases tainted by former state\nchemist Sonja Farak have been dismissed in a court case brought by the\nACLU of Massachusetts, the Committee of Public Counsel Services\n(CPCS), and law firm Fick & Marx LLP. The new numbers appear in a\nreport issued by a court-designated “Special Master.” . . .</p>\n<p>For nearly nine years, former state chemist Sonja Farak used drugs\nthat she stole from or manufactured in the Amherst Lab, causing\nthousands of people to be wrongfully convicted of drug crimes based on\nunreliable evidence. Since her arrest in 2013, Farak’s lab misconduct\nhas been compounded by prosecutorial misconduct, including by former\nprosecutors with the Attorney General’s Office who – according to a\njudge’s findings – intentionally deceived a court and defense lawyers\nabout the massive scope of Farak’s misconduct. In 2017, the ACLU of\nMassachusetts and CPCS, together with Fick & Marx LLP, called for\ndismissal of every case tainted by Farak and subsequent years of\nprosecutorial misconduct. In April 2018, the Supreme Judicial Court\nordered that thousands of convictions be dismissed.</p>\n</blockquote>\n<p>But, misconduct in how detainees are treated in jail does not go to the guilt or innocence of those defendants and therefore would not usually lead to mass dismissals.</p>\n<p>A prosecutor could decide on a non-legal basis that a defendant has suffered enough from mistreatment in jail and dismiss the charges, and sometimes this is done on an isolated basis. But, mistreatment of detainees would rarely if ever be a basis for a mass dismissal of charges and would be in the sole discretion of the prosecutor as an exercise of discretion not compelled or suggested by any legal requirement.</p>\n",
"score": 3
},
{
"answer_id": 90460,
"body": "<blockquote>\n<p>It's safe to assume that if leadership at a department is corrupt.\nRank & File officers were likely corrupt as well.</p>\n</blockquote>\n<p>No, that would be an assumption of guilt for those "rank & file" deputies of the office. Each one may be investigated to see if they had knowledge of and participated in any illegal activities. It's possible, perhaps even likely, that there are honest deputies working in a department under a corrupt Sheriff.</p>\n<blockquote>\n<p>Can a corrupt sheriff cause all cases from his department to be\ndismissed while he was in charge?</p>\n</blockquote>\n<p>No, a Sheriff, corrupt or otherwise, does not decide whether cases are dismissed or not. A prosecutor may choose to drop charged or a judge may dismiss the charges based on something illegal by the Sheriff or the department's deputies. But that would be a matter for someone other than the Sheriff to decide.</p>\n",
"score": 2
},
{
"answer_id": 90463,
"body": "<p>No.</p>\n<p>The fact that a defendant was assaulted or otherwise mistreated in jail has no bearing on his culpability for the crimes that he's been accused of. A prosecutor would remain free to continue pursuing charges against any of the sheriff's victims, and evidence regarding their mistreatment in jail would likely be inadmissible at trial.</p>\n<p>A prosecutor may, however, elect to drop the charges against one or more of these defendants, perhaps thinking that they have been adequately punished already or even just that doing so would be politically advantageous.</p>\n",
"score": 2
}
] |
[
"united-states",
"police",
"georgia"
] |
Forging a signature on NC car title
| 2 |
https://law.stackexchange.com/questions/90770/forging-a-signature-on-nc-car-title
|
CC BY-SA 4.0
|
<p>My now ex boyfriend and I had 4 cars. They are all in my name, my insurance. One needed some "repairs" I was told so he took it to a mechanic. A week later I drive by the mechanic shop to see "my" car with updated accessories (camper thing on top). I asked my ex boyfriend and he said he sold it to the owner of the shop. Surprised, by the deception, I still asked "Don't I need to go buy and sign the title?" to which he answered no he took care of it. Isn't is a crime to forge my name on a title that is supposed to be signed by a notary? He also up and left and took the other cars and the titles in my name to Florida. I can't cancel insurance on them because they are all still in my name. What can I do?</p>
| 90,770 |
[
{
"answer_id": 90778,
"body": "<blockquote>\n<p>Isn't is a crime to forge my name on a title that is supposed to be signed by a notary?</p>\n</blockquote>\n<p>Yes, this is absolutely a crime. I'm not a lawyer, but at a minimum this is theft (and possibly fraud). You own the cars, not him; he definitely does not have the legal right to sell something that legally belongs to someone else. In fact, given the value of what was stolen, this would likely be grand larceny (or the equivalent) in many jurisdictions.</p>\n<blockquote>\n<p>He also up and left and took the other cars and the titles in my name to Florida.</p>\n</blockquote>\n<p>This is unquestionably theft.</p>\n<p>As far as options, I'd encourage you to file a police report right away; they should be able to help you recover your stolen property. You could also talk to a lawyer about your options for a civil lawsuit.</p>\n",
"score": 1
}
] |
[
"forgery",
"car"
] |
Religion is a "protected class" in California. Does that extend to things like homophobia/transphobia due to religion?
| 0 |
https://law.stackexchange.com/questions/90791/religion-is-a-protected-class-in-california-does-that-extend-to-things-like-h
|
CC BY-SA 4.0
|
<p>In California, I'm pretty sure employers aren't allowed to discriminate based on religion (e.g. you can't not hire someone just because they're Jewish). In other words, religion is a "protected class".</p>
<p>So Eric the Employer hires Chris the Christian. Afterwards, Chris goes to his personal social media and posts</p>
<blockquote>
<p>I believe in the Bible, which says "The woman shall not wear that
which pertaineth unto a man, neither shall a man put on a woman's
garment: for all that do so are abomination unto the LORD thy God." -
Deuteronomy 22:5</p>
</blockquote>
<p>The public sees this as extremely transphobic, and it leads to a huge backlash against Eric's company (and Eric personally may find such views repugnant). Does Eric have any grounds to fire Chris, or is Chris protected from being fired over it?</p>
<p>To be clear, Chris <strong>isn't</strong> just spouting things like "I hate trans people" or calling for violence against them or anything. He is explicitly making religious statements that link directly to his commonly-accepted religion.</p>
<p>While I gave a random specific example here, my question is more general. If any religion has any views (e.g. homophobia, or they don't like pineapple on pizza, or what have you) that are controversial, is an employer not allowed to discriminate based on that?</p>
| 90,791 |
[
{
"answer_id": 90800,
"body": "<p>The fact pattern that</p>\n<blockquote>\n<p>The public sees this as extremely [objectionable], and it leads to a huge backlash against Eric's company</p>\n</blockquote>\n<p>gives cover to Eric to fire Chris. That decision would be, provably, based on the expected impact on the company business, not on Chris’ views. The exact nature of the statement does not matter. For example, any of the following could conceivably snowball into a social media uproar:</p>\n<ul>\n<li>"homosexual sex is sinful"</li>\n<li>"pineapple does not belong on pizza"</li>\n<li>"dogs are better than cats"</li>\n</ul>\n<p>Of course, that is only the theoretical view when everyone agrees on what happened. In the real world, Chris would argue that Eric fired him for his views, Eric would argue that it was because of the public backlash, and the finder of fact would have to decide which is more credible. Some factors in play would be :</p>\n<ul>\n<li>if the "social media uproar" is five Twitter accounts with ten followers each, Eric's defense of "there was an angry mob, I <em>had</em> to fire him" will not seem very credible.</li>\n<li>if Eric unwisely wrote to Chris that they are fired "because of their statement", or worse, "because of your fundamentalist Christian views", that will make Eric’s lawyer job much harder.</li>\n</ul>\n<hr />\n<p>On a side note (not asked in the OP but raised in comments), Chris’s statement is undoubtedly protected speech under the First Amendment. That means the <em>government</em> cannot take legal action against Chris. However, <em>other people</em> can: Eric can fire him, Twitter can ban him, his buddy can stop going to the pub with him, his girlfriend can dump him, etc. As the trope goes, freedom of speech does not mean freedom from consequences.</p>\n",
"score": 3
},
{
"answer_id": 90795,
"body": "<p>I think just posting that quote cannot be the grounds for a backlash, since it undoubtedly exists. Of course it is transphobic, but it's also around 3000 years old. It will depend on what you make out of it.</p>\n<p>When Chris says that he hates trans people or even calls for violence against them, that's certainly worse than when he just (based on this quote) expresses his opinion that people must not wear clothes of the opposite sex. That opinion is certainly protected by his freedom of speech, while calling for violence against someone is probably not.</p>\n<p>Now if Chris really calls for violence and other illegal activities against trans people, and that backfires on Erics company, <em>that</em> would be a reason to fire him. Not because he's Christian, but because he's calling for violence (which, btw, is highly unchristian).</p>\n",
"score": 1
},
{
"answer_id": 90799,
"body": "<h2>Religious belief is not a protected class</h2>\n<p><a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" aria-label=\"show questions tagged 'new-south-wales'\" rel=\"tag\" aria-labelledby=\"tag-new-south-wales-tooltip-container\">new-south-wales</a></p>\n<p>Anti-discrimination law does not cover religion at either the <a href=\"https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/discrimination/what-is-discrimination.html\" rel=\"nofollow noreferrer\">state</a> or <a href=\"https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/discrimination/what-is-discrimination.html\" rel=\"nofollow noreferrer\">Federal</a> level. Efforts by the conservative Commonwealth government to do so <a href=\"https://www.abc.net.au/news/2022-02-10/religious-discrimination-bill-transgender-protection-explained/100818484\" rel=\"nofollow noreferrer\">foundered</a> prior to their loss in the 2022 election.</p>\n<h2>However, this is probably not grounds for <a href=\"https://www.fwc.gov.au/job-loss-or-dismissal/unfair-dismissal/about-unfair-dismissal/what-unfair-dismissal\" rel=\"nofollow noreferrer\">dismissal</a>.</h2>\n<p>If the employee is protected against unfair dismissal under the Fair Work Act, an employer "should not dismiss an employee if it is harsh, unjust or unreasonable".</p>\n<p>Dismissal would almost surely be "harsh" as an "extreme response to the situation" with a "very big ('disproportionate') impact on the employee’s economic and personal situation." This may not be the case if the employee were a 'face' of the organisation i.e. someone whose role involves representing the organisation and its values to the public; such a breach might reach the level where dismissal is not "harsh".</p>\n<p>The employer would certainly be within their rights to investigate the matter and counsel the employee about their behaviour and establish appropriate boundaries. Should the employee continue to make posts that are against the employer's policy, dismissal may be warranted.</p>\n",
"score": 0
}
] |
[
"united-states",
"employment",
"california",
"discrimination",
"religion"
] |
Commonsclause with LGPL - is it legally bounding/strong to defend
| 0 |
https://law.stackexchange.com/questions/90797/commonsclause-with-lgpl-is-it-legally-bounding-strong-to-defend
|
CC BY-SA 4.0
|
<p>Found this license:</p>
<blockquote>
<p>“Commons Clause” License Condition v1.0</p>
<p>The Software is provided to you by the Licensor under the License, as defined below, subject to the following condition.</p>
<p>Without limiting other conditions in the License, the grant of rights under the License will not include, and the License does not grant to you, the right to Sell the Software.</p>
<p>For purposes of the foregoing, “Sell” means practicing any or all of the rights granted to you under the License to provide to third parties, for a fee or other consideration (including without limitation fees for hosting or consulting/ support services related to the Software), a product or service whose value derives, entirely or substantially, from the functionality of the Software. Any license notice or attribution required by the License must also include this Commons Clause License Condition notice.</p>
</blockquote>
<blockquote>
<p>Software: softwarename (<a href="https://github.com/vendor/softwarename" rel="nofollow noreferrer">https://github.com/vendor/softwarename</a>)
License: LGPL 2.1 (GNU Lesser General Public License, Version 2.1)
Licensor: Company</p>
</blockquote>
<p>Is somebody breaks this condition? Will it be hard/easy to litigate?</p>
<p>Is Commons Clause ok to be used with LGPL 2.1?</p>
<p>Interested for using this LGPL + Commons Clause for my Open Source project.</p>
| 90,797 |
[
{
"answer_id": 90802,
"body": "<p>The Commons Clause is problematic because</p>\n<ol>\n<li>it makes the software non-Open-Source</li>\n<li>the resulting license is often ambiguous and possibly contradictory.</li>\n</ol>\n<p>The first aspect is not a legal matter, but it's worth pointing out that the idea of Open Source <a href=\"https://opensource.org/osd-annotated\" rel=\"nofollow noreferrer\">as defined by the OSI</a> is based on the concept of Software Freedom: the recipient's right to use, inspect, modify, and share the software for <em>any</em> purpose. To avoid confusion, it may be better to refer to Commons Clause licensed software as "Source Available".</p>\n<p>The second aspect is more tricky, especially in the context of Copyleft Licenses like the LGPL. The core feature of copyleft licenses is that derivatives can only be published under the same license terms. For example, if you modify the GPLv2-covered Linux kernel, you can only share or sell your modified kernel under GPLv2-terms.</p>\n<p>The good news is that the LGPL-2.1 copyleft provisions only apply to recipients, not to the original author. That is, if you created all of the LGPL-2.1 covered material yourself, then you are not bound by this copyleft provision, and could alter the license terms by adding the Commons Clause. However, the result would not be LGPL-covered in any meaningful way, and it could be confusing to recipients to describe the resulting license as LGPL.</p>\n<p>This confusion might lead some recipients to invoke clause 10 of the LGPL-2.1, which says:</p>\n<blockquote>\n<p>You may not impose any further restrictions on the recipients' exercise of the rights granted herein.</p>\n</blockquote>\n<p>This could lead recipients to think that the Commons Clause terms are invalid and can be ignored. However, the "you" in that sentence is a recipient, and you as the original author would not be bound by this term.</p>\n<p>When interpreting such unclear contracts, courts could apply a variety of techniques, depending on jurisdiction and context. They might try to figure out the intent, which here would be to disallow certain commercial uses. Or they might apply a doctrine like <em>contra proferentem</em>, that any ambiguity should be interpreted <em>against</em> the drafter of the contract. Here, the drafter would be you.</p>\n<p>The effect of the Commons Clause is currently being litigated in the <em>Neo4j v. PureThink</em> case, which will be heard later in 2023. Neo4j published software under an AGPLv3 + Commons Clause license. This is slightly different to the LGPL-2.1 because the A/L/GPL-3 license family explicitly tells recipients that they can remove "additional restrictions" from the license, a term that is intended to prevent Commons Clause style restrictions. So the question is whether the resulting license is the AGPL (with additional restrictions that can be ignored), or a completely new license that overrides this AGPL terms.</p>\n<p>In the face of this uncertainty, it would probably be wiser to avoid the Commons Clause, and instead get a lawyer to write you a custom Source Available license with the terms that you need.</p>\n",
"score": 1
}
] |
[
"licensing",
"open-source-software"
] |
Did I sign a non-solicitation agreement? If so, how do I get out of it? [US, Massachusetts]
| 1 |
https://law.stackexchange.com/questions/90792/did-i-sign-a-non-solicitation-agreement-if-so-how-do-i-get-out-of-it-us-mas
|
CC BY-SA 4.0
|
<p>Exactly as I described: Wondering if the below contains a non-solicitation agreement or is it referring if any was signed in the past?</p>
<p>What are the terms here exactly?</p>
<p><em>You acknowledge your continuing obligations to the Company contained in any proprietary rights or other confidentiality agreements that you signed in favor of the Company during your employment, including the Continuing Obligations Agreement you have previously signed related to confidentiality, non-solicitation of customers and employees, and intellectual property protection/inventions assignment. Notwithstanding the above, any prior noncompete restrictions are now waived by this Agreement.</em></p>
| 90,792 |
[
{
"answer_id": 90794,
"body": "<p>It does not contain a non-solicitation agreement. The relevant bits are "You acknowledge your continuing obligations to the Company contained in any ... agreements that you signed".</p>\n<p>In other words, this doesn't create any new agreements - just reminds you about the existing ones.</p>\n<p>I suspect <em>this</em> agreement actually has very little legal effect at all; if they want to sue, they will sue on the actual agreement where you agreed not to solicit customers. What it does (they hope), is reduce the <em>need</em> to sue, by reminding you not to do it.</p>\n",
"score": 1
}
] |
[
"massachusetts",
"non-disclosure",
"non-compete"
] |
Can my mom take away my phone on police order?
| 1 |
https://law.stackexchange.com/questions/89484/can-my-mom-take-away-my-phone-on-police-order
|
CC BY-SA 4.0
|
<p>Let's say there is a minor. He/she buys and currently pay for his/her phone. The minor's guardian demanded that the minor relinquish his/her phone and the minor did not agree. After the police were called the officer claimed it is a parent's right to discipline a child. Police quite essentially claimed minors have no rights.</p>
<p>Is this true, and if it is, in what law is it mentioned?</p>
| 89,484 |
[
{
"answer_id": 89488,
"body": "<p>I guess you are <em>interpreting</em> the answer of the officer the wrong way. Minors <strong>do have rights.</strong> Plenty of them. But using a phone to contact people their legal guardian does not approve, or to consume media their legal guardian does not approve, is usually <strong>not a right</strong> minors have. And to make those restrictions stick, your mother took your phone away. Ask for it on your 18th birthday.</p>\n<p>But when one of you has called the police on a family situation like this, <em>both</em> of you have a problem that goes way beyond property rights. Do you have an adult you can talk to? A teacher? An uncle or aunt? A coach? Try talking to them. If they <em>all</em> side with your mother, consider that she might be right and you are wrong. But often both sides talk themselves into a corner, and a neutral viewpoint helps.</p>\n<p>If you are truly desperate about your situation, call Child Protective Services. But that could backfire if they believe your mother, and make the family situation worse. Taking a phone away is <em>not</em> neglect or abuse.</p>\n",
"score": 11
}
] |
[
"united-states",
"property",
"minor",
"ownership"
] |
Penalty for trespassing on a gas station parking lot in Kentucky
| -1 |
https://law.stackexchange.com/questions/90782/penalty-for-trespassing-on-a-gas-station-parking-lot-in-kentucky
|
CC BY-SA 4.0
|
<p>My brother was parked at a gas station before they opened at 4:45 am to rest his eyes. At 5:00 am when they opened, he went inside, used the restroom, and did not buy anything. Owner asked him to leave and that it was not a rest area. Owner of gas station called the cops, cops showed up gave him a chance to leave, but he told them he was tired and didn't feel safe to drive yet. They arrested him for criminal trespassing. What type of punishment could he face?</p>
| 90,782 |
[
{
"answer_id": 90783,
"body": "<p>This violation of <a href=\"https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=52944\" rel=\"nofollow noreferrer\">KRS 511.080</a>, criminal trespass in the third degree, is a "violation", which results in a <a href=\"https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=20098\" rel=\"nofollow noreferrer\">fine</a> not more than $250. The fine shall not be imposed if he is indigent pursuant to <a href=\"https://apps.legislature.ky.gov/law/statutes/chapter.aspx?id=37178\" rel=\"nofollow noreferrer\">KRS Chapter 31</a>.</p>\n",
"score": 3
},
{
"answer_id": 90784,
"body": "<p>Criminal Trespass in Kentucky <a href=\"https://apps.legislature.ky.gov/law/statutes/chapter.aspx?id=39377\" rel=\"nofollow noreferrer\">has three degrees:</a></p>\n<blockquote>\n<p>511.060 Criminal trespass in the first degree.</p>\n<p>(1) A person is guilty of criminal trespass in the first degree when he or she knowingly\nenters or remains unlawfully in a dwelling.</p>\n<p>(2) Criminal trespass in the first degree is a Class A misdemeanor [...]</p>\n</blockquote>\n<blockquote>\n<p>511.070 Criminal trespass in the second degree.</p>\n<p>(1) A person is guilty of criminal trespass in the second degree when he or she\nknowingly enters or remains unlawfully in a building or upon premises as to which\nnotice against trespass is given by fencing or other enclosure</p>\n<p>(2) Criminal trespass in the second degree is a Class B misdemeanor, [...]</p>\n</blockquote>\n<blockquote>\n<p>511.080 Criminal trespass in the third degree</p>\n<p>(1) A person is guilty of criminal trespass in the third degree when he knowingly enters\nor remains unlawfully in or upon premises.</p>\n<p>(2) Criminal trespass in the third degree is a violation [...]</p>\n</blockquote>\n<p>Parking and not leaving after being told to does not trespass on a dwelling or building, so it is only fitting the third degree possible. As such the prescribed punishment is a <em>violation</em>, <a href=\"https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=20098\" rel=\"nofollow noreferrer\">which comes out to a fine of at maximum 250 USD.</a></p>\n<blockquote>\n<p>534.040 Fines for misdemeanors and violations.</p>\n<p>(2) Except as otherwise provided for an offense defined outside this code, a person who\nhas been convicted of any offense other than a felony shall be sentenced, [...] , to pay a fine in an amount not to\nexceed:</p>\n<p>(a) For a Class A misdemeanor, five hundred dollars ($500); or</p>\n<p>(b) For a Class B misdemeanor, two hundred fifty dollars ($250); or</p>\n<p>(c) For a violation, two hundred fifty dollars ($250).</p>\n</blockquote>\n<p><br><br></p>\n",
"score": 2
}
] |
[
"kentucky",
"trespassing"
] |
Is it illegal to block, on social media, a person who sends a legal threat?
| 17 |
https://law.stackexchange.com/questions/90679/is-it-illegal-to-block-on-social-media-a-person-who-sends-a-legal-threat
|
CC BY-SA 4.0
|
<p>I live in the middle east, and two weeks back I left a negative factual review on a certain hostel in Abu Dhabi. They gave me a scare threat today, saying that they will file a police case for this. I responded by blocking them. They responded with contacting another one of my family member with the same, stating that blocking them would only increase the problem.</p>
<p>Is what they say really correct? Does blocking communications with those giving legal threats make things worse?</p>
| 90,679 |
[
{
"answer_id": 90681,
"body": "<p>There does seem to be a meme in the UAE of people threatening legal action for negative reviews, as a form of <a href=\"https://www.khairallahlegal.com/uae-law/slander-on-social-media-in-the-uae-what-you-need-to-know/\" rel=\"noreferrer\">defamation</a>. The police will simply tell them that this is not a crime, go hire a lawyer if you want to sue them. If you block them, perhaps they don't have any other way to contact you (seems that was the point of blocking them), which means that you cannot receive their offer "If you pay us AED 1,000 we will not sue you", which could be a problem if they win their court case. Still, it is perfectly legal to ignore or block them, up to the point that you are actually served with legal papers. When they actually sue you, "blocking" is irrelevant, they will hire a process server to hand you the legal papers that command you to appear in court.</p>\n",
"score": 38
}
] |
[
"rental-property",
"uae"
] |
Fired (seemingly) for finding paycheck inconsistencies. What kind of legal recourse might exist?
| 13 |
https://law.stackexchange.com/questions/90435/fired-seemingly-for-finding-paycheck-inconsistencies-what-kind-of-legal-recou
|
CC BY-SA 4.0
|
<p>Not me, but a friend.</p>
<p>They found some paycheck inconsistencies for them and a bunch of other employees, and asked about it. The response from management was "oh, oops. We'll fix it"</p>
<p>A few days later she came in to fill a shift for someone, but was blocked from coming in and told she was fired. Being somewhat in shock, she tried to ask why, to which they responded "we'll call the cops if you don't leave right now."</p>
<p>There had been no issues up until this point, so the whole thing kind of reeks of red flags.</p>
<p>Is there any recourse for this? My sense is that this should be investigated, some amount of auditing should be done, and -- if it seems plausible she was fired for finding it -- unemployment might be an option.</p>
| 90,435 |
[
{
"answer_id": 90436,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p>Protections for workers from wrongful termination from employment in the U.S. are among the weakest in the developed world.</p>\n<p><strong>Unemployment benefits</strong></p>\n<p>If you are fired and there is not a "good cause" basis to fire you, you are entitled to unemployment insurance in almost all U.S. states (at least if you have worked for the employer long enough). Firing you because you discovered a payroll accounting problem and brought it to the employer's attention would ordinarily not constitute "good cause" for unemployment insurance purposes.</p>\n<p>Unemployment benefits last only a limited period of time, are for only a fraction of what you earned when you were employed, and can be terminated if you fail to actively look for work or find new employment.</p>\n<p><strong>Whistleblower protections</strong></p>\n<p>There are whistleblower statutes that prohibit employers from firing someone for reporting certain kinds of employer misconduct (although the remedy is usually a large dollar damages award - typically more than unemployment benefits, rather than reinstatement).</p>\n<p>But it isn't entirely clear that one would apply in this case, particularly without knowing which state if it is in the U.S., is involved.</p>\n<p>There is not one omnibus whistleblower protection statute at the federal level or in most U.S. states that prohibits firing or punishing an employee in every case where misconduct is revealed (this kind of conduct by an employer is also sometimes called "retaliation" or a "retaliatory firing").</p>\n<p>Instead, there is <a href=\"https://en.wikipedia.org/wiki/Whistleblower_protection_in_the_United_States\" rel=\"noreferrer\">a patchwork of whistleblower protections for particular kinds of misconduct</a> that is reported by the employee. One would have to determine if this particular kind of misconduct would fit one of those statutes.</p>\n<p>For example, there are <a href=\"https://www.dol.gov/general/topics/whistleblower\" rel=\"noreferrer\">at least five different agencies</a> that enforce whistleblower protections at the federal level:</p>\n<blockquote>\n<p><strong>Occupational Safety and Health Administration (OSHA)</strong></p>\n<p>With the Occupational Safety and Health Act of 1970, Congress created\nthe Occupational Safety and Health Administration (OSHA) to ensure\nsafe and healthful working conditions for workers by setting and\nenforcing standards and by providing training, outreach, education and\nassistance.</p>\n<p><strong>Mine Safety and Health Administration (MSHA)</strong></p>\n<p>The U.S. Department of Labor's Mine Safety and Health Administration\n(MSHA) helps to reduce deaths, injuries, and illnesses in the nation's\nmines with a variety of activities and programs. The Agency develops\nand enforces safety and health rules for all U.S. mines, and provides\ntechnical, educational and other types of assistance to mine\noperators.</p>\n<p><strong>Office of Federal Contract Compliance Programs (OFCCP)</strong></p>\n<p>The Office of Federal Contract Compliance Programs (OFCCP), protects\nworkers, promotes diversity and enforces the law. OFCCP holds those\nwho do business with the federal government (contractors and\nsubcontractors) responsible for complying with the legal requirement\nto take affirmative action and not discriminate on the basis of race,\ncolor, sex, sexual orientation, gender identity, religion, national\norigin, disability, or status as a protected veteran. In addition,\ncontractors and subcontractors are prohibited from discharging or\notherwise discriminating against applicants or employees who inquire\nabout, discuss or disclose their compensation or that of others,\nsubject to certain limitations.</p>\n<p><strong>Wage and Hour Division (WHD)</strong></p>\n<p>The Wage and Hour Division (WHD) mission is to promote and achieve\ncompliance with labor standards to protect and enhance the welfare of\nthe nation's workforce. The agency enforces federal minimum wage,\novertime pay, recordkeeping, and child labor requirements of the Fair\nLabor Standards Act. WHD also enforces the Migrant and Seasonal\nAgricultural Worker Protection Act, the Employee Polygraph Protection\nAct, the Family and Medical Leave Act, wage garnishment provisions of\nthe Consumer Credit Protection Act, and a number of employment\nstandards and worker protections as provided in several immigration\nrelated statutes.</p>\n<p><strong>Veterans’ Employment and Training Service (VETS)</strong></p>\n<p>The Veterans’ Employment and Training Service prepares America's\nveterans, service members and their spouses, for meaningful careers,\nprovide them with employment resources and expertise, protect their\nemployment rights and promote their employment opportunities.</p>\n</blockquote>\n<p>There are also typically whistleblower protections related to union activity at an employer.</p>\n<p><a href=\"https://www.cpsc.gov/About-CPSC/Inspector-General/Whistleblower-Protection-Act-WPA\" rel=\"noreferrer\">Employees of the government and government contractors</a> have stronger protections for whistleblowers than most employees.</p>\n<p>The Wage and Hour division whistleblowing rules might apply, but that would depend upon detailed facts not present in the question about the exact nature of the errors in the payroll system.</p>\n<p>Whistleblower protections might apply under the <a href=\"https://en.wikipedia.org/wiki/Sarbanes%E2%80%93Oxley_Act\" rel=\"noreferrer\">Sarbanes–Oxley Act (SOX) of 2002</a>, but typically that protects only employees of large or publicly held companies. Similarly, whistleblower protections arising from securities laws are typically only applicable to publicly held companies or companies that are going public.</p>\n",
"score": 26
}
] |
[
"employment",
"colorado",
"unemployment",
"whistleblower"
] |
Can I use MasterCard and Visa logos as examples in a scientific publication?
| 3 |
https://law.stackexchange.com/questions/90763/can-i-use-mastercard-and-visa-logos-as-examples-in-a-scientific-publication
|
CC BY-SA 4.0
|
<p>I have a peer-reviewed paper about to get published, in an experimental psychology topic. (The journal is <a href="https://www.tandfonline.com/journals/pmem20" rel="nofollow noreferrer">Memory</a>.) In one of the figures in the paper I used MasterCard and Visa card logos as examples (which were also used in my experiment). An editor however highlighted that there might be a copyright problem with this.</p>
<p>It would be nice if I could include these logos, but it is not crucial. Should I play it safe and remove them?</p>
<p>I tried to google this issue but all I can see that these logos can be used for relevant business purposes (e.g., at stores where these cards can be used) -- using them as examples in a scientific paper seems to be a different matter.</p>
<p>I'm looking for a fairly definitive legal source that decides on the matter. If there is none, I'll just remove the logos.</p>
| 90,763 |
[
{
"answer_id": 90767,
"body": "<p>I will note from the outset that journal editors might require things from you that go beyond what is legally necessary. A typical case is that they will require one to obtain permission before reusing a figure from another article/journal/author (even though in the vast majority of cases no such permission would be needed). The legal answer might allow you to push back on the editor’s demands, but they still have the last word.</p>\n<p>There are two kinds of intellectual property to consider. Unless otherwise noted, this answer is valid for <a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a> and <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a>.</p>\n<h1>Trademark is almost certainly not an issue</h1>\n<p>Trademark is a right to <em>branding</em>. A trademark holder can prevent others from using certain elements to promote their own products. The elements need not be complex, they just need to be recognizable by the public as related to the brand in question.</p>\n<p>For instance, "Tesla" is the name of an 19th century Serbian-American inventor known among other things for discoveries related to radio transmission. You would probably be able to market a radio transmitter under a "Tesla" brand (assuming there are no existing trademarks, which I have not checked). If you try the same thing with electrical vehicles, <a href=\"https://en.wikipedia.org/wiki/Tesla,_Inc.\" rel=\"noreferrer\">you will get sued</a>.</p>\n<p>For a research paper, as long as you do not imply that Visa or MasterCard support your research or its results in any way, that should not be an issue.</p>\n<p>I assume, but cannot guarantee, that the above applies to most Western jurisdictions.</p>\n<h1>Copyright</h1>\n<p>Copyright is a protection or creative elements. Whoever authors a creative work can forbid others from distributing it under certain conditions.</p>\n<h2>Are the Visa and MasterCard logos copyrighted?</h2>\n<p>The first question is whether the elements at hand are protected under copyright. In the case of the Visa and MasterCard logos, this might depend on the jurisdiction. The criterion for "creativity" varies a lot.</p>\n<p>Some jurisdiction have adopted (some version of) the <a href=\"https://en.wikipedia.org/wiki/Sweat_of_the_brow\" rel=\"noreferrer\">sweat of the brow doctrine</a>, according to which work suffices to produce a "creative element" with copyright protection. The typical example are databases of facts where each individual entry is unoriginal but the collection might take some time to collect, curate and maintain (such as a phone book).</p>\n<p>In the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a>, the Supreme Court <a href=\"https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co.\" rel=\"noreferrer\">rejected the sweat of the brow doctrine in 1991</a>. Accordingly, a work needs to reach the <a href=\"https://en.wikipedia.org/wiki/Threshold_of_originality\" rel=\"noreferrer\">threshold of originality</a>.</p>\n<p>Determining whether the threshold is met for a given work is done on a case-by-case basis at trial. However, it seems very likely that both logos are not protected by copyright in the United States. The Visa logo is a simple font with no significant creative elements; the MasterCard logo contains two overlapping circles.</p>\n<p>I note that Wikimedia Commons hosts both logos on their website and claims they are public-domain under that rationale (<a href=\"https://commons.wikimedia.org/wiki/File:Visa_2021.svg\" rel=\"noreferrer\">Visa</a>, <a href=\"https://commons.wikimedia.org/wiki/File:Mastercard_2019_logo.svg\" rel=\"noreferrer\">MasterCard</a>). Wikimedia Commons usually follows copyright fairly closely, and they are a high-profile website hence a prime target for takedown requests by IP lawyers at Visa or MasterCard, so that is weak evidence that their claim is correct. But there is always the possibility that Visa / MasterCard just have not decided to sue yet.</p>\n<p>In <a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a>, the statute makes no explicit reference any threshold of originality: <a href=\"https://www.legifrance.gouv.fr/codes/id/LEGISCTA000006161634/\" rel=\"noreferrer\">(article L-112-1 of the code of intellectual property)</a></p>\n<blockquote>\n<p>Les dispositions du présent code protègent les droits des auteurs sur toutes les oeuvres de l'esprit, quels qu'en soient le genre, la forme d'expression, le mérite ou la destination.</p>\n</blockquote>\n<blockquote>\n<p>The present code [containing all copyright statutes] protect copyrights for any works of mind, whatever their style, form of expression, artistic worth, or intended use.</p>\n</blockquote>\n<p>However, various court cases have tended to require "works of mind" to exhibit some amount of intellectual originality. For instance, <a href=\"https://juricaf.org/arret/FRANCE-COURDECASSATION-20090122-0811404\" rel=\"noreferrer\">Civ. 1ère 22 janv. 2009, n°08-11404</a> held that a perfume cannot be copyrighted because</p>\n<blockquote>\n<p>la fragrance d'un parfum, qui procède de la simple mise en oeuvre d'un savoir-faire, ne constitue pas la création d'une forme d'expression pouvant bénéficier de la protection des oeuvres de l'esprit par le droit d'auteur</p>\n</blockquote>\n<blockquote>\n<p>the smell of a perfume comes from the simple application of a know-how and does not constitute the creation of a form of expression subject to the protection of works of mind by copyright</p>\n</blockquote>\n<p>After a fifteen-minute look at various cases, I still do not have any strong idea of whether the Visa or MasterCard logo would be copyrighted in France. Let’s assume for the sake of the argument that they are.</p>\n<h2>"Fair use"</h2>\n<p>Even copyrighted works can be used without the copyright holder’s agreement under certain exceptions. Here again, any precise answer is jurisdiction-specific.</p>\n<p>"Fair use" is a US-specific doctrine, resulting from a string of court cases eventually codified into law (<a href=\"https://en.wikipedia.org/wiki/Fair_use\" rel=\"noreferrer\">Wikipedia has a decent history</a>). It is a rather general doctrine (any use case can be analyzed under the four balancing factors) and results can be hard to predict. I believe research articles usually fall on the right side, but because the logos under discussion are not under copyright in the US (see above), I will not attempt to make any in-depth analysis.</p>\n<p><em>Pedantic note: it is sloppy wording to use the term "fair use" for similar clauses in other jurisdictions. "Fair use" is a US doctrine.</em></p>\n<p>In <a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a>, the corresponding doctrine is given by a rather strict but precise statute at <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000043975029\" rel=\"noreferrer\">article L122-5 of the code of intellectual property</a>:</p>\n<blockquote>\n<p>Lorsque l'oeuvre a été divulguée, l'auteur ne peut interdire :</p>\n<p>(...)</p>\n<p>3° Sous réserve que soient indiqués clairement le nom de l'auteur et la source :</p>\n<p>a) Les analyses et courtes citations justifiées par le caractère critique, polémique, pédagogique, scientifique ou d'information de l'oeuvre à laquelle elles sont incorporées ;</p>\n</blockquote>\n<blockquote>\n<p>When the work has been published, the author cannot forbid:</p>\n<p>(...)</p>\n<p>3° As long as the name of the author and the source are clearly mentioned:</p>\n<p>a) Analysis and short citations justified by the inclusion in a work with an aim of criticism, debate, pedagogy, science or information</p>\n</blockquote>\n<p>A research article is the typical case of a "work of science" (science means here "scholarly research", not STEM). I have little doubt that it would be a covered use, especially if the paper discusses the reason behind the choice of those logos (easily recognizable by test subjects? simple shapes? etc.).</p>\n",
"score": 4
}
] |
[
"copyright",
"licensing",
"trademark",
"public-domain"
] |
What counts as word mark (or trade mark) violation?
| 1 |
https://law.stackexchange.com/questions/90761/what-counts-as-word-mark-or-trade-mark-violation
|
CC BY-SA 4.0
|
<p>I'm trying to create my own website, and on the landing page, I'm planning to have the words:</p>
<p>Your Content Matters.
Whether it be blog posts, how-tos, buying guides, or more, I’m always here to make it happen.</p>
<p>But the phrase Your Content Matters seems quite possible to be taken/used by some other company already. I did go onto tmsearch.uspto.gov -> New User (Basic Search) and searched that phrase with all other settings on default, and no results came up. However, I have no idea if that means I'm good to go or not.</p>
<p>So, does words on a landing page even count towards possible trademark or copyright violation? For example, I found this website:</p>
<p><a href="https://www.amysuto.com/" rel="nofollow noreferrer">https://www.amysuto.com/</a></p>
<p>And if you scroll down a bit, you'll see the words YOU ARE WHAT YOU CREATE .</p>
<p>Searching that phrase shows that " fusian inc CORPORATION " already claimed it. And yet, amy is a well-established writer, and that phrase being on there doesn't seem like a problem.</p>
| 90,761 |
[
{
"answer_id": 90775,
"body": "<p>For a trademark violation, several conditions must be fullfilled. For two companies that use the same trademark / company name, all of these must be true:</p>\n<ul>\n<li>The companies operate in the same domain or with similar products (e.g. they both sell clothes)</li>\n<li>The companies operate in overlapping geographical locations (e.g. both in the same city)</li>\n<li>The companies target the same audience</li>\n<li>There's a possibility that potential customers get confused about the fact that there are two companies with said name/trademark.</li>\n</ul>\n<p>If any of the above is not true, a trademark violation lawsuit is not very likely to succeed. However, the detailed analysis will also need to consider how well known a certain brand is. You can probably safely open a restaurant with the same name another restaurant has at the other end of the country, while it might be difficult to open a "Microsoft Pizza Service", even though Microsoft does not sell pizzas (yet).</p>\n<p>Reference: <a href=\"https://gewerblicherrechtsschutz.pro/markenrechtsverletzung\" rel=\"nofollow noreferrer\">https://gewerblicherrechtsschutz.pro/markenrechtsverletzung</a></p>\n",
"score": 1
}
] |
[
"copyright",
"internet",
"trademark",
"trade-name"
] |
prosecutorial discretion and selective prosecution?
| 2 |
https://law.stackexchange.com/questions/90253/prosecutorial-discretion-and-selective-prosecution
|
CC BY-SA 4.0
|
<p>Have there ever been any selective prosecution defences that have been successful ? A lot of news outlets claim that various racial groups are disproportionately targeted by prosecutors while framing charges. But has this as a legal defence ever succeeded and do courts take statistics into account ?</p>
| 90,253 |
[
{
"answer_id": 90766,
"body": "<p>Yes. The earliest case in the U.S. serves as the basis of the SCOTUS case of <a href=\"https://en.wikipedia.org/wiki/Yick_Wo_v._Hopkins\" rel=\"nofollow noreferrer\">Yick Yo v. Hopkins (1886)</a> which struck down a San Francisco law that targeted Laundry services run by Chinese Immigrants. The case was later cited in 150 SCOTUS decisions and was used as a basis to reverse the Plessy v. Ferguson (1896) decision that permitted Jim Crow Laws in the Deep South.</p>\n<p>That said, an affirmative defense of selective prosecution is hard to win, as selective enforcement has non-biased reasons to exist. For example, it is impossible for cops to ticket all speeders, so most departments may prioritize ticketing speeders who are egregious or overly reckless over speeders who are 5-10 miles over the limit but are keeping with the flow of the rest of traffic. The defense must show that the enforcement has a pattern of bias against a constitutionally protected class. If a cop writes 5 tickets in a day, of which only 1 ticket is for a woman, it does not inheritably mean that the cop is targeting men (but rather that men were 4 times as likely to be aggressive drivers), and it would have to be shown that there was a conscious choice by the officer (either personal or institutional) to pull over men violating the law and ignore women.</p>\n",
"score": 2
}
] |
[
"united-states",
"canada",
"prosecutorial-discretion"
] |
Mobile network in 915 MHz ISM frequency band
| 4 |
https://law.stackexchange.com/questions/90696/mobile-network-in-915-mhz-ism-frequency-band
|
CC BY-SA 4.0
|
<p>Is it legal in the United Stated to operate a mobile/cellular network in the "unlicensed" 915 MHz <a href="https://en.wikipedia.org/wiki/ISM_radio_band" rel="nofollow noreferrer">ISM frequency band</a>? I mean given I have all other permissions needed (mobile network service license etc.) except the frequency spectrum license.</p>
<p>The technology used may be GSM/UMTS/LTE. The mobile network frequencies (<a href="https://en.wikipedia.org/wiki/GSM_frequency_bands" rel="nofollow noreferrer">2G</a>/<a href="https://en.wikipedia.org/wiki/UMTS_frequency_bands" rel="nofollow noreferrer">3G</a>/<a href="https://en.wikipedia.org/wiki/LTE_frequency_bands" rel="nofollow noreferrer">4G</a>) partially overlap the 902-928 MHz ISM band so this should be technically possible (channels in 902-915 + 925-928 MHz) even though naturally this limits the network bandwidth while respecting the <a href="https://www.digikey.com/en/articles/unlicensed-915-mhz-band-fits-many-applications-and-allows-higher-transmit-power" rel="nofollow noreferrer">maximum ISM band radio power</a>.</p>
| 90,696 |
[
{
"answer_id": 90710,
"body": "<p>Yes you can, subject to your equipment meeting applicable FCC Part 15 regulations. <a href=\"https://en.wikipedia.org/wiki/Ricochet_(Internet_service)\" rel=\"nofollow noreferrer\">Ricochet Wireless</a> did exactly what you proposed, running a mobile data network at 900 MHz.</p>\n<p>Currently, carriers including Verizon run <a href=\"https://en.wikipedia.org/wiki/LTE_in_unlicensed_spectrum\" rel=\"nofollow noreferrer\">LTE in the 5 GHz Wi-Fi band</a>.</p>\n<p>However, there's a potentially better choice, the <a href=\"https://en.wikipedia.org/wiki/Citizens_Broadband_Radio_Service\" rel=\"nofollow noreferrer\">Citizens Broadband Radio Service</a>. This is a "lightly" licensed service, with cheaper and free licenses that are coordinated in shared spectrum. Companies run private CBRS LTE and you can buy <a href=\"https://www.commscope.com/product-type/in-building-cellular-systems/cbrs-lte/\" rel=\"nofollow noreferrer\">small base stations</a> like Wi-Fi access points. More importantly, many commercial handsets support this frequency band, like newer iPhones.</p>\n",
"score": 4
}
] |
[
"licensing",
"business",
"radio"
] |
Exemption for "conduct of litigation" as a lay representative?
| 3 |
https://law.stackexchange.com/questions/57784/exemption-for-conduct-of-litigation-as-a-lay-representative
|
CC BY-SA 4.0
|
<p>The following activites are <em>"reserved legal activities"</em> per the Legal Services Act 2007 ("LSA 2007"), s 12(1):</p>
<blockquote>
<p>(a) the exercise of a right of audience; (b) the conduct of litigation</p>
</blockquote>
<p>Only authorised and exempt persons are allowed to carry out reserved legal activities (LSA 2007, s 13). In relation to the exercise of a right of audience, a person is exempt if they have <em>"a right of audience before that court in relation to those proceedings granted by or under any enactment"</em> (LSA 2007, s 19 and sch 3(1)(3)).</p>
<p>The Courts and Legal Services Act 1990, s 11(1) provides that:</p>
<blockquote>
<p>The Lord Chancellor [may] by order provide that there shall be no
restriction on the persons who may exercise rights of audience, or
rights to conduct litigation, in relation to proceedings in the county
court of such a kind as may be specified in the order.</p>
</blockquote>
<p>Such an order has been passed in relation to rights of audience for the small claims track of the County Court. The Lay Representatives (Rights of Audience) Order 1999, art 3(1) provides that:</p>
<blockquote>
<p>[any] person may exercise rights of audience in proceedings dealt with
as a small claim in accordance with rules of court.</p>
</blockquote>
<p>I have checked Westlaw and there does not appear to be an equivalent order made under the Act for the conduct of litigation.</p>
<p>The right of audience is confirmed in the Civil Procedure Rules in relation to the small claims track. CPR 27 PD 3.2(1): <em>"A party may present his own case at a hearing or a lawyer or lay representative may present it for him"</em> and CPR 27 PD 3.2(4): <em>"Any of its officers or employees may represent a corporate party."</em></p>
<p>Further rights are granted to company representatives for other tracks. CPR 39.6: <em>"A company or other corporation may be represented at trial by an employee if (a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and (b) the court gives permission."</em></p>
<p>My question: is there any associated exemption for the conduct of litigation, to mirror the rights of audience for lay representatives? It seems somewhat strange that a lay representative on the small claims track can address the judge and interview witnesses, but cannot issue the claim or conduct any other ancillary administrative tasks relating to the proceedings. On the other hands, I believe barristers using the direct access scheme face a similar restriction so perhaps this is a deliberate omission in the exemptions.</p>
| 57,784 |
[
{
"answer_id": 90764,
"body": "<p>I too cannot find anything that exempts a lay representative from conducting litigation, but it is extremely difficult to prove a negative.</p>\n<p>My assumption is that it is a deliberate decision due to the lack of any regulatory oversight that could impose sanctions on a lay representative outside of the court; the judge, obviously, can perform this function within it.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"small-claims-court",
"rules-of-court",
"litigation",
"legal-representation"
] |
Why is it really bad to publicly talk about a case you are involved in on social media?
| 5 |
https://law.stackexchange.com/questions/90729/why-is-it-really-bad-to-publicly-talk-about-a-case-you-are-involved-in-on-social
|
CC BY-SA 4.0
|
<p>I was inspired to ask this question due to these related Reddit AMA</p>
<ul>
<li><a href="https://www.reddit.com/r/IAmA/comments/11ha0ii/im_jaime_rogozinski_founder_of_wallstreetbets_and/" rel="nofollow noreferrer">I’m Jaime Rogozinski, Founder of WallStreetBets and I’m suing Reddit. AMA.</a></li>
<li><a href="https://www.reddit.com/r/law/comments/11ha7sf/help_me_understand_the_trademark_battle_for/" rel="nofollow noreferrer">Help me understand the trademark battle for WallStreetBets</a></li>
</ul>
<p>The author of the questions is suing Reddit for trademark violations. These links are him publicly talking about his case. In both of the links, the commenters tell him that what he is doing is really bad (for him) and that his lawyer would most definitely advise against it.</p>
<blockquote>
<blockquote>
<blockquote>
<p>Did your lawyers advise you to not do this AMA?</p>
</blockquote>
<p>I can't imagine a sane lawyer that would advise this...</p>
</blockquote>
<p>"I have the worst fucking client." - his attorney</p>
</blockquote>
<p>My question is, what is so bad about what he is doing? People who sue others go on news all the time to talk about the case. Just by searching google news for <a href="https://news.google.com/search?q=is%20suing%20over%20trademark%20violation" rel="nofollow noreferrer">is suing over trademark violation</a> leads to many articles regarding a trademark lawsuit. In many of those cases there is a statement from at least one of the sides. Are all those results (I know, many are about the same case, but still, a lot) full of stupid clients?</p>
| 90,729 |
[
{
"answer_id": 90739,
"body": "<p>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?</p>\n<p>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:</p>\n<ul>\n<li><p>If you are a witness whose credibility is in issue, any public statement could potentially become a <a href=\"https://en.wikipedia.org/wiki/Prior_consistent_statements_and_prior_inconsistent_statements\" rel=\"nofollow noreferrer\">prior inconsistent statement</a> 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.</p>\n</li>\n<li><p>In Commonwealth countries, there is a significant risk that public comment on a case before the court could amount to <a href=\"https://en.wikipedia.org/wiki/Sub_judice\" rel=\"nofollow noreferrer\">sub judice</a> 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.</p>\n</li>\n</ul>\n<p>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.</p>\n",
"score": 5
},
{
"answer_id": 90758,
"body": "<p>In the U.S., Rule of Professional Conduct 3.6 governs trial publicity, and while it is directly applicable only to lawyers, lawyers can't try to circumvent it through others and if others take actions that would violate the law it would cast doubt on the integrity of the lawyer. The rule says:</p>\n<blockquote>\n<p><strong>Rule 3.6. Trial Publicity</strong></p>\n<p>(a) A lawyer who is participating or has participated in the\ninvestigation or litigation of a matter shall not make an\nextrajudicial statement that the lawyer knows or reasonably should\nknow will be disseminated by means of public communication and will\nhave a substantial likelihood of materially prejudicing an\nadjudicative proceeding in the matter.</p>\n<p>(b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state:</p>\n<p>(1) the claim, offense or defense involved and, except when prohibited\nby law, the identity of the persons involved;</p>\n<p>(2) information contained in a public record;</p>\n<p>(3) that an investigation of a matter is in progress;</p>\n<p>(4) the scheduling or result of any step in litigation;</p>\n<p>(5) a request for assistance in obtaining evidence and information\nnecessary thereto;</p>\n<p>(6) a warning of danger concerning the behavior of a person involved,\nwhen there is reason to believe that there exists the likelihood of\nsubstantial harm to an individual or to the public interest; and</p>\n<p>(7) in a criminal case, in addition to subparagraphs (1) through (6):</p>\n<p>(i) the identity, residence, occupation and family status of the\naccused;</p>\n<p>(ii) if the accused has not been apprehended, information necessary to\naid in apprehension of that person;</p>\n<p>(iii) the fact, time and place of arrest; and</p>\n<p>(iv) the identity of investigating and arresting officers or agencies\nand the length of the investigation.</p>\n<p>(c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a\nstatement that a reasonable lawyer would believe is required to\nprotect a client from the substantial undue prejudicial effect of\nrecent publicity not initiated by the lawyer or the lawyer's client. A\nstatement made pursuant to this paragraph shall be limited to such\ninformation as is necessary to mitigate the recent adverse publicity.</p>\n<p>(d) No lawyer associated in a firm or government agency with a lawyer\nsubject to paragraph (a) shall make a statement prohibited by paragraph (a).</p>\n</blockquote>\n<p>This isn't the only reason, but it is an important one. And, there are isolated circumstances, some alluded to in the rule, where a different approach is ethical and appropriate (e.g. to rebut improper public statements by others).</p>\n",
"score": 2
}
] |
[
"trademark",
"court",
"social-media"
] |
What is the maximum number of countries in which one can simultaneously be tax resident?
| 14 |
https://law.stackexchange.com/questions/90706/what-is-the-maximum-number-of-countries-in-which-one-can-simultaneously-be-tax-r
|
CC BY-SA 4.0
|
<p>Inspired by this Reddit thread and other stories of people working remotely from all over the world, apparently without giving too much thought to the legal implications,
<a href="https://www.reddit.com/r/UKPersonalFinance/comments/11wi578/working_abroad_remotely_and_uk_taxes/" rel="nofollow noreferrer">Working abroad remotely and UK taxes</a>:</p>
<blockquote>
<p>I work remotely abroad for most of the year (usually a new country every month). I'm registered as self employed in the UK and pay 40% on tax. I've taken the UK tax residency test on the Gov UK website and it states i'm not a tax resident of the UK. I don't pay tax in any other country and the company i'm contracting for is not registered in the UK (its in the EU).</p>
<p>I'm confused about where / if i should be paying tax.</p>
</blockquote>
<p>I am wondering - what is the worst-case scenario? Could one hypothetically end up in a situation in which two (or more) countries all simultaneously consider one to be <a href="https://en.wikipedia.org/wiki/Tax_residence" rel="nofollow noreferrer">tax resident</a> for the same year, and each demand their headline rate of income tax on the same income?</p>
<p>Tie-breaker - which combination of simultaneous tax residencies would result in the highest total marginal rate of income tax? Is a figure of over 100% possible?</p>
<p>For full credit, answers should take into account:</p>
<ul>
<li>The tax residency rules of each country (obviously!)</li>
<li>All relevant <a href="https://en.wikipedia.org/wiki/Tax_treaty" rel="nofollow noreferrer">double tax treaties</a></li>
<li>All instances where one country would offer a tax credit/refund based on tax paid in any of the others, based on its own domestic law, in the absence of a treaty.</li>
</ul>
<p>You may assume any nationality or level of income you like as long as you state it in your answer.</p>
<hr />
<p>After undertaking a small amount of initial research, it turns out that owning or leasing a private residential property is a very easy way of acquiring tax residency in a large number of countries. On reflection, however, since this question was inspired by digital nomads, let's also assume that the individual in question is reasonably nomadic and owns or leases a private residential property for their personal use in at most one country.</p>
| 90,706 |
[
{
"answer_id": 90708,
"body": "<p>Sample answer:</p>\n<ul>\n<li>Be a US citizen - automatic US tax residency</li>\n<li>Own a UK property and live there for 91 days to gain UK tax residency</li>\n<li>Spend 60 days in India plus a total of 365 days over the previous 4 years</li>\n<li>Spend 62 days in Norway, having been tax resident there the previous year. If I understand correctly, this status can be maintained indefinitely by spending 62 days there per year once first gained.</li>\n<li>Spend 120 days in Paraguay</li>\n<li>On the last day of the tax year, start working in the Philippines on an indefinite contract</li>\n<li>Spend 183 days or more in Singapore during the prior tax year</li>\n<li>Spend a total of 270 days in Mauritius over the current tax year and the previous two years (our calendar is getting pretty constrained at this point but I think this is still all technically possible)</li>\n<li>Have access to a spare room that a friend informally keeps available for you in Germany</li>\n<li>Be a member of the crew of a vessel registered in Mozambique</li>\n<li>Have at least one essential connection to Sweden, having been tax resident there less than 5 years previously</li>\n<li>Have a spouse who lives as a permanent resident in Spain and is somehow a contributing member of the Commonwealth Superannuation Scheme (triggering Australian tax residency)</li>\n</ul>\n<p>Total tax residencies: 13</p>\n<p>Total marginal income tax rate after double tax treaties and reliefs for the tie break: no idea</p>\n",
"score": 26
}
] |
[
"international",
"tax-law",
"income-tax"
] |
Outsourcing work without informing the employer: is that illegal or punishable?
| 2 |
https://law.stackexchange.com/questions/90685/outsourcing-work-without-informing-the-employer-is-that-illegal-or-punishable
|
CC BY-SA 4.0
|
<p>I'm a freelancer and many times I simply outsource or hire a subcontractor (all ghost subcontractors) from like UpWork to do what my clients' ask from me. My clients generally do not know that I outsource my tasks, and they think that they are just simply hiring me.</p>
<p>Obviously, if they find out, they might decide to not work with me anymore, but on the legal aspect, would this count as some sort of employee fraud? If the work I submitted to the client damaged relationships with their clients due to the lack of quality from my subcontractor, would I take legal responsibilities?</p>
<p>Lastly, I believe this outsourcing can be deducted as business expenses when doing taxes. However, this might lead to that business expense being somewhat high. If the IRS founds out about this, would that cause any problems?</p>
| 90,685 |
[
{
"answer_id": 90697,
"body": "<p>What does your contract with your client say?</p>\n<p>What does your contract with your sub-contractor say?</p>\n<p>Typically the client contract will not specify HOW the work gets done, just the deliverable(s), the price and the liability. Unless your client contract says otherwise, it's perfectly legal for you to farm out the work.</p>\n<p>It's also perfectly fine for you to deduct the cost of the sub. As long as that's profitable the IRS will have no problem for that at all: that's a perfectly normal business practice. Things are a bit more complicated if you farm out at a loss since that could be interpreted as a tax evasion scheme. However, as long as it's reasonable, that's fine.</p>\n<p>If there are defects in the work product, the client will come after you, regardless of who did the work. It's generally your responsibility to fix the issues, cover damages etc. You, in turn, can try to recover your damages from the sub, but that depends on the nature of the contract you have with the sub.</p>\n",
"score": 5
},
{
"answer_id": 90695,
"body": "<h2>If you <em>are</em> an employee, you can’t outsource your work</h2>\n<p>One of the features of an employment contract is that it is a contract <em>of</em> service - they employee must perform the services personally.</p>\n<p>If you are a contractor then, unless the contract prohibits it, you are free to outsource.</p>\n<p>In either case, breaking a contract is not a crime but it can allow your employer to terminate it and/or sue for damages.</p>\n",
"score": 3
},
{
"answer_id": 90686,
"body": "<p>Deducting business expenses is legal. Perhaps on Money SE would know if the IRS has alarm thresholds. It is generally legal to subcontract part of a job. There can be exceptions, especially if the contract explicitly says "no subcontracting", or (hopefully obviously) substituting Al Yankovic for Bruce Springsteen at a concert. There are very many business risks associated with subcontracting which are legal, which we can ignore as being too numerous. There can be licensing concerns in a business which is regulated and which requires a license (a doctor cannot subcontract an appendectomy to a mortician). You remain responsible for getting the job done, therefore if your subcontractor does not do what is supposed to be done, you can be sued and you can't say "it's not my fault, I farmed that job out to Jones".</p>\n<p>In order for it to be fraud, you would have to have held out that you personally would do the job, and you knew that you would <em>not</em> be doing the job, also the client would have had to rely on your "personal service" representation.</p>\n",
"score": 2
}
] |
[
"united-states",
"business",
"fraud",
"freelance"
] |
What defences are available to a mandatory reporter who fails to report a crime?
| 2 |
https://law.stackexchange.com/questions/90726/what-defences-are-available-to-a-mandatory-reporter-who-fails-to-report-a-crime
|
CC BY-SA 4.0
|
<p>Many countries have mandated reporting laws. In North America for example medical professionals are required to mandatorily report crimes (specifically sexual offences against children). Some laws intentionally leave out clauses which provide an exception for reasonable excuse while keeping it in other similar laws. In these kinds of cases what types of affirmative defences are used? If someone intentionally doesn't report a crime or if a police officer intentionally doesn't investigate or record information about a crime?</p>
| 90,726 |
[
{
"answer_id": 90759,
"body": "<p>It isn't possible to identify the "usual defences," because mandatory reporting offences are relatively new, technical in nature, and different in each jurisdiction. Also, they are usually minor offences which involve very sensitive information. Even when the facts are disputed, it will often be in the interest of all parties for these offences to be dealt with quietly in a regulatory tribunal or magistrates' court, rather than appealed to a higher court which publishes its decisions.</p>\n<p>However, I am aware of one case which analyses an attempted defence to a mandatory reporting charge in some detail: <em>Webb v Tang</em> <a href=\"https://www.austlii.edu.au/au/cases/wa/WASC/2021/344.html\" rel=\"nofollow noreferrer\">[2021] WASC 344</a>. The appellant was a teacher who was convicted of failing to report a belief on reasonable grounds that a child had been the subject of sexual abuse, a mandatory reporting offence introduced in Western Australia in 2008. He appealed to the state Supreme Court, including on the ground that the verdict was unsafe and unsupported by the evidence, so the decision includes a lot of detail about how this offence could potentially be defended in Western Australia, and perhaps other jurisdictions.</p>\n<p>The teacher was on an international trip arranged by a school sports team. One of the students told the teacher that he had been sexually assaulted by some other students the night before. The student refused to name the perpetrators and said he wanted nothing done about it. The teacher did not report this. Explaining his failure to report at a later date, the teacher said "it's not that I didn't believe him, but … I just didn't think that the group would – that that could have happened." The teacher argued that he did not believe on reasonable grounds that sexual abuse had occurred. However, the court found that the prosecution had established the required state of mind. The teacher received a <a href=\"https://en.wikipedia.org/wiki/Spent_conviction\" rel=\"nofollow noreferrer\">spent conviction</a> and was fined $1,200.</p>\n<p>The teacher did not rely on the statutory defence in <a href=\"https://www.austlii.edu.au/au/legis/wa/consol_act/cacsa2004318/s124b.html\" rel=\"nofollow noreferrer\">s 124B(3)</a> (belief that the issue had already been reported to, or was being dealt with, by the authorities) and there was no generic "reasonable excuse" defence available. However, it is likely that other mandatory reporting offences will also involve disclosures that come as a surprise to the mandatory reporter and leave them with some uncertainty about the meaning or credibility of the disclosure. In these cases there will be scope for the mandatory reporter to give evidence about their own state of mind and claim that they did not know or believe the information required to trigger the reporting obligation.</p>\n",
"score": 2
},
{
"answer_id": 90731,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p>The duty to report is created in provincial statutes relating to child welfare. E.g. British Columbia's <em>Child, Family and Community Service Act</em>, <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96046_01#section14\" rel=\"nofollow noreferrer\">s. 14</a>; Alberta's <a href=\"https://kings-printer.alberta.ca/1266.cfm?page=C12.cfm&leg_type=Acts&isbncln=9780779839162&display=html\" rel=\"nofollow noreferrer\"><em>Child, Youth and Family Enhancement Act</em></a>, s. 4. Both of those (and those in other provinces) make it a regulatory offence to fail to report. The offence is punishable by a fine of up to $10,000 or imprisonment for up to 6 months.</p>\n<h3>The Crown must prove the offence</h3>\n<p>The most common defence would be simply arguing that the prosecution failed to establish the elements of the offence. Generally the offence requires:</p>\n<ul>\n<li>the person to have reason to believe that the child needs protection</li>\n<li>that the person failed to make the required report</li>\n</ul>\n<h3>An <em>exception</em> for solicitor–client privilege</h3>\n<p>There is no statutory defence listed. However, there is an <em>exception</em> that says the duty to report does not apply to information that is privileged as a result of a solicitor–client relationship. That is not technically a defence; instead, the statutes say that the section "does not apply" or applies "except as..."</p>\n<h3>A due diligence defence</h3>\n<p>It is presumed that legislatures do not intend regulatory offences to be absolute-liability offences (Re B.C. Motor Vehicle Act, <a href=\"https://canlii.ca/t/dln\" rel=\"nofollow noreferrer\">[1985] 2 S.C.R. 486</a>, paras. 74-76.) Absent clear legislative language, regulatory offences leave open the possibility of a <em>due diligence</em> defence:</p>\n<blockquote>\n<p>by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused <em>reasonably believed in a mistaken set of facts which</em>, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event</p>\n<p>(<em>R. v. Sault Ste. Marie</em>, <a href=\"https://canlii.ca/t/1mkbt\" rel=\"nofollow noreferrer\">[1978] 2 S.C.R. 1299</a>)</p>\n</blockquote>\n<p>For example, if the person who had a duty to report and failed to report <em>reasonably believed</em> that they had reported, this could make out a due diligence defence.</p>\n",
"score": 1
},
{
"answer_id": 90747,
"body": "<h2><a href=\"https://murrayslegal.com.au/blog/2020/03/02/obligations-to-whistleblow/\" rel=\"nofollow noreferrer\">There isn’t one</a></h2>\n<p><a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" aria-label=\"show questions tagged 'new-south-wales'\" rel=\"tag\" aria-labelledby=\"tag-new-south-wales-tooltip-container\">new-south-wales</a></p>\n<p>Mandatory reporting has common law roots in the now obsolete crimes of misprision of treason and misprision of felony. These have been replaced in all states and territories by statutory crimes of failing to report.</p>\n<p>In every jurisdiction except New South Wales, the general duty to report requires some benefit to flow from the crime to the non-reporter. For certain crimes (e.g. child abuse) the duty to report is absolute.</p>\n<p>However, in NSW, this element is absent and everyone “who knows or believes that a serious indictable offence has been committed by [a person], and who knows or believes that they have information that might be of material assistance in securing the apprehension, prosecution or conviction [that person], fails without reasonable excuse to bring that information to the attention of the NSW Police or other appropriate authority.”</p>\n<p>The prosecution of certain professionals requires the permission of the Director of Public Prosecutions. These professions are “ legal and medical practitioners, psychologists and nurses, social workers including support workers for victims of crime and counsellors who treats persons for emotional or psychological conditions, members of the clergy, researchers for professional or academic purposes, school teachers and principals (in some cases) and arbitrators and mediators.” This doesn't mean they can’t be prosecuted, just that it must be initiated at the highest level (the DPP is the highest level prosecutor in NSW - the Attorney General is a politician with responsibility for the Justice system but does not participate in prosecutions).</p>\n<p><strong>Missing from the list are journalists</strong></p>\n<p>While I have been unable to find a case against a journalist and this section is primarily used by police as leverage against informants, this forbearance appears to be a policy decision by the administration rather Ethan something the law requires.</p>\n",
"score": 1
},
{
"answer_id": 90749,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>Although recent <a href=\"https://www.iicsa.org.uk/reports-recommendations/publications/inquiry/final-report/ii-inquirys-conclusions-and-recommendations-change/part-f-identifying-and-reporting-child-sexual-abuse/f6-mandatory-reporting-england-and-wales.html#:%7E:text=A%20person%20should%20be%20required,criminal%20offence%2C%20as%20discussed%20below.\" rel=\"nofollow noreferrer\">Report of the Independent Inquiry into Child Sexual Abuse</a> recommended mandatory reporting for those offences, it has not (yet) been implemented.</p>\n<p>The only, statutory and mandatory reporting law is the duty to notify the police of female genital mutilation under <a href=\"https://www.legislation.gov.uk/ukpga/2003/31/section/5B?timeline=false\" rel=\"nofollow noreferrer\">section 5B</a> of the Female Genital Mutilation Act 2003:</p>\n<blockquote>\n<p>(1) A person who works in a regulated profession in England and Wales must make a notification under this section (an “FGM notification”) if, in the course of his or her work in the profession, the person discovers that an act of female genital mutilation appears to have been carried out on a girl who is aged under 18.</p>\n<p>(2) For the purposes of this section—</p>\n<ul>\n<li>(a) a person works in a “regulated profession” if the person is—</li>\n</ul>\n<blockquote>\n<p>(i)a healthcare professional,</p>\n<p>(ii)a teacher, or</p>\n<p>(iii)a social care worker in Wales;</p>\n</blockquote>\n</blockquote>\n<p>This section goes on to say:</p>\n<blockquote>\n<p>(6) The duty of a person working in a particular regulated profession to make an FGM notification does not apply if the person has reason to believe that another person working in that profession has previously made an FGM notification in connection with the same act of female genital mutilation.</p>\n</blockquote>\n<ul>\n<li><strong>No criminal offence is created</strong> by the failure to make an FGM notification, instead:</li>\n</ul>\n<blockquote>\n<p>Sanctions for not reporting will be determined by the regulatory authority for the relevant professional. <a href=\"https://www.cps.gov.uk/legal-guidance/female-genital-mutilation\" rel=\"nofollow noreferrer\">Source</a></p>\n</blockquote>\n",
"score": 1
}
] |
[
"criminal-law"
] |
Is there a requirement to provide personal information other than identity to a financial institution to activate a Power of Attorney?
| 6 |
https://law.stackexchange.com/questions/90751/is-there-a-requirement-to-provide-personal-information-other-than-identity-to-a
|
CC BY-SA 4.0
|
<p>If a person has a durable power of attorney that becomes active in the event the Principal becomes disabled, is an investment company for the Principal required to obtain personal financial information, (such as income and net worth) from the Attorney-in-Fact prior to accepting the document and granting access to the account information of the Principal?</p>
<p>Presume that other required documents such as letters attesting to the disability are provided along with the POA.</p>
| 90,751 |
[
{
"answer_id": 90757,
"body": "<p>One set of disclosures would be those necessary to comply with anti-money laundering, counter-terrorism financing regulations, and international sanctions laws (e.g. related to the Ukraine war). Involvement as an agent who is subject to these restrictions would still be something that the firm needs to rule out.</p>\n<p>Another might be compliance with "<a href=\"https://en.wikipedia.org/wiki/Know_your_customer\" rel=\"noreferrer\">know your customer</a>" laws which are a bit tricky because the POA agent is only the "customer" in a partial and limited sense. On one hand, the law wants to avoid exploitation of a vulnerable POA agent to the detriment of the principal by knowing the agent's level of financial sophistication, risk tolerance, and investment goals. On the other hand, ultimately it is the principal's finances that are at stake.</p>\n<p>The disclosures described in the question seem to be questions related to accredited investor status, and it isn't clear that the POA agent needs to financially meet the requirements for <a href=\"https://www.investopedia.com/terms/a/accreditedinvestor.asp\" rel=\"noreferrer\">accredited investor status</a>.</p>\n",
"score": 6
},
{
"answer_id": 90756,
"body": "<p>It's hard to prove non-existence, but there is no evidence of there being a legal requirement on the Agent to provide personal financial information to a third party. Taking <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=11.125.200\" rel=\"nofollow noreferrer\">RCW 11.125.200</a> as a starting point,</p>\n<blockquote>\n<p>(1) Except as otherwise provided in subsection (2) of this section:\n(a) A person shall either accept an acknowledged power of attorney or\nrequest a certification or a translation no later than seven business\ndays after presentation of the power of attorney for acceptance...\n(c) A person may not require an additional or different form of power\nof attorney for authority granted in the power of attorney presented.</p>\n</blockquote>\n<p>"Shall" means that they must accept it, end of discussion. Subsection (2) say when they don't have to accept the form:</p>\n<blockquote>\n<p>(2) A person is not required to accept an acknowledged power of\nattorney if: (a) The person is not otherwise required to engage in a\ntransaction with the principal in the same circumstances; (b) Engaging\nin a transaction with the agent or the principal in the same\ncircumstances would be inconsistent with federal law; (c) The person\nhas actual knowledge of the termination of the agent's authority or of\nthe power of attorney before exercise of the power; (d) A request for\na certification or a translation is refused; (e) The person in good\nfaith believes that the power is not valid or that the agent does not\nhave the authority to perform the act requested, whether or not a\ncertification or a translation has been requested or provided; or (f)\nThe person makes, or has actual knowledge that another person has\nmade, a report to the department of social and health services stating\na good faith belief that the principal may be subject to physical or\nfinancial abuse, neglect, exploitation, or abandonment by the agent or\na person acting for or with the agent.</p>\n</blockquote>\n<p>none of which arises in the situation you describe. This law (the Uniform Power of Attorney Act) exists <a href=\"https://www.uniformlaws.org/committees/community-home?CommunityKey=b1975254-8370-4a7c-947f-e5af0d6cb07c\" rel=\"nofollow noreferrer\">in most states</a>. <a href=\"https://law.justia.com/codes/new-jersey/2022/title-46/section-46-2b-8-6/\" rel=\"nofollow noreferrer\">New Jersey law</a> has somewhat different conditions on acceptance, that</p>\n<blockquote>\n<p>Any third party <strong>may</strong> rely upon the authority granted in a durable power\nof attorney until the third party has received actual notice of the\nrevocation of the power of attorney, the termination or suspension of\nthe authority of the attorney-in-fact, or the death of the principal</p>\n</blockquote>\n<p>but there is no clause saying "only if the agent provides personal financial information".</p>\n<p>It may be necessary to get a court order to force a party to accept a valid POA, especially if the state hasn't enacted the Uniform Power of Attorney Act.</p>\n",
"score": 4
}
] |
[
"united-states",
"business",
"securities",
"power-of-attorney",
"finan"
] |
Can the US House compel a state prosecutor to provide documents about an upcoming state court case?
| 4 |
https://law.stackexchange.com/questions/90718/can-the-us-house-compel-a-state-prosecutor-to-provide-documents-about-an-upcomin
|
CC BY-SA 4.0
|
<p>The US House Judiciary Committee, Oversight Committee, and Administration Committee all sent <a href="https://judiciary.house.gov/sites/evo-subsites/republicans-judiciary.house.gov/files/evo-media-document/2023-03-20-jdj-bs-jc-to-bragg-re-trump-investigation.pdf" rel="nofollow noreferrer">a letter</a> to <a href="https://en.wikipedia.org/wiki/Alvin_Bragg" rel="nofollow noreferrer">Alvin Bragg</a>, the current New York County District Attorney overseeing the New York "Hush Money" case against Trump, asking "to advance our oversight, please produce the following documents and information"...</p>
<blockquote>
<ol>
<li>All documents and communications between or among the New York County District
Attorney’s Office and the U.S. Department of Justice, its component entities, or other
federal law enforcement agencies referring or relating to your office’s investigation of
President Donald Trump;</li>
<li>All documents and communications sent or received by former employees Carey Dunne
and Mark Pomerantz referring or relating to President Donald Trump; and</li>
<li>All documents and communications referring or relating to the New York County District
Attorney Office’s receipt and use of federal funds.</li>
</ol>
</blockquote>
<p>The letter claims...</p>
<blockquote>
<p>Your decision to pursue such a politically motivated prosecution—while adopting
progressive criminal justice policies that allow career “criminals [to] run[ ] the streets” of
Manhattan —requires congressional scrutiny about how public safety funds appropriated by
Congress are implemented by local law-enforcement agencies. In addition, your apparent
decision to pursue criminal charges where federal authorities declined to do so requires oversight
to inform potential legislative reforms about the delineation of prosecutorial authority between
federal and local officials. Finally, because the circumstances of this matter stem, in part, from
Special Counsel Mueller’s investigation, Congress may consider legislative reforms to the
authorities of special counsels and their relationships with other prosecuting entities.</p>
</blockquote>
<blockquote>
<p>Pursuant to Rule X of the Rules of the House of Representatives, the Committee on the
Judiciary has jurisdiction over criminal justice matters in the United States. The Committee on
House Administration has jurisdiction over matters concerning federal elections. The Committee
on Oversight and Accountability may examine “any matter” at any time.</p>
</blockquote>
<p>It seems highly problematic for the US House to be intervening in a New York state criminal investigation, especially when no indictment has yet been made. Given that the letter cites such prestigious legal journals as the NY Post, Fox News, and The Daily Mail, I'm skeptical of their legal standing.</p>
<p>What happens if Mr. Bragg refuses? Can they compel him to produce these documents? If so, under what authority?</p>
| 90,718 |
[
{
"answer_id": 90721,
"body": "<p><a href=\"https://www.supremecourt.gov/opinions/19pdf/19-715_febh.pdf\" rel=\"nofollow noreferrer\">This recent SCOTUS ruling</a> on a related matter sums up Congressional subpoena power, in holding (b):</p>\n<blockquote>\n<p>Each House of Congress has the power “to secure needed information” in\norder to legislate. McGrain v. Daugherty, 273 U. S. 135,\n161. This power is “indispensable” because, without information, Congress would be unable to legislate wisely or effectively. Watkins\nv. United States, 354 U. S. 178, 215. Because this power is “justified\nsolely as an adjunct to the legislative process,” it is subject to\nseveral limitations. Id., at 197. Most importantly, a congressional\nsubpoena is valid only if it is “related to, and in furtherance of, a\nlegitimate task of the Congress.” Id., at 187. The subpoena must serve\na “valid legis- lative purpose.” Quinn v. United States, 349 U. S.\n155, 161. Furthermore, Congress may not issue a subpoena for the\npurpose of “law enforcement,” because that power is assigned to the\nExecutive and the Judiciary. Ibid. Finally, recipients of\ncongressional subpoenas retain their constitutional rights and various\nprivileges throughout the course of an investigation.</p>\n</blockquote>\n<p>The lower court found "that the subpoena issued by the\nOversight Committee served a valid legislative purpose because the\nrequested information was relevant to reforming financial disclosure\nrequirements", but SCOTUS does not agree in that case that there is such a legislative purpose.</p>\n<p><a href=\"https://sgp.fas.org/crs/misc/R44247.pdf\" rel=\"nofollow noreferrer\">This</a> is a summary of house and senate rules for issuing a subpoena, and <a href=\"https://en.wikipedia.org/wiki/Contempt_of_Congress\" rel=\"nofollow noreferrer\">here</a> is a summary of the House procedure and legal framework for a resolution of contempt. It is not clear that a subpoena has been issued (per House rules), let us assume that at some point a subpoena <em>is</em> issued. Then Mr. Bragg might argue in court that the members of the House are not acting within a legitimate legislative sphere. The letter does not purport to intervening in a New York state criminal investigation, and the non-existence of an indictment is irrelevant.</p>\n<p>Whereas in Trump v. Mazars there was a real separation of powers issue regarding the executive vs. legislative branch, the letter spells out the legitimate congressional interest at stake, which is that the investigation:</p>\n<blockquote>\n<p>requires congressional scrutiny about how public safety funds\nappropriated by Congress are implemented by local law-enforcement\nagencies. In addition, your apparent decision to pursue criminal\ncharges where federal authorities declined to do so requires oversight\nto inform potential legislative reforms about the delineation of\nprosecutorial authority between federal and local officials. Finally,\nbecause the circumstances of this matter stem, in part, from Special\nCounsel Mueller’s investigation, Congress may consider legislative\nreforms to the authorities of special counsels and their relationships\nwith other prosecuting entities.</p>\n</blockquote>\n",
"score": 2
},
{
"answer_id": 90745,
"body": "<p>Regarding “What happens if Mr. Bragg refuses?”</p>\n<p>Congressional subpoenas do not have much teeth. If a congressional subpoena is ignored (as Jim Jordan himself did in regard to a May 12 2022 subpoena) nothing happens unless the whole house votes a contempt resolution.</p>\n<p>The Inherent Contempt of Congress where the Sargent at Arms drags the person into the chamber is no longer used. Under the Statutory Contempt of Congress <a href=\"https://www.law.cornell.edu/uscode/text/2/192\" rel=\"nofollow noreferrer\">(2 USC 192)</a> Congress would need to rely on the DOJ to pursue the case.</p>\n<p>In the recent past the DOJ has done so in only a few cases.</p>\n",
"score": 2
}
] |
[
"united-states",
"new-york-state",
"jurisdiction",
"us-house-of-reps"
] |
When is threatening legal action illegal?
| 1 |
https://law.stackexchange.com/questions/90704/when-is-threatening-legal-action-illegal
|
CC BY-SA 4.0
|
<p>Follow up to this <a href="https://law.stackexchange.com/q/90679/38492">question</a>. When is it illegal to threaten someone with taking them to court?</p>
| 90,704 |
[
{
"answer_id": 90705,
"body": "<h2>Threat of lawsuit can't be illegal</h2>\n<p>It is a basis of functioning legal systems, that if you have a case, you can sue. However, nothing in any such legal system <strong>requires</strong> them to sue. Instead, offering a resolution out of court - like arbitration or offering to relinquish a claim for payment - is legal. Adding pressure by saying "This is my offer, otherwise I sue" is not extortion, because after the suit is filed, it is with the courts. Should the claimant file a frivolous lawsuit, then the court will deal with it - dismissing the case and sanctioning the claimant and their lawyer.</p>\n<p>See also these questions:</p>\n<ul>\n<li><a href=\"https://law.stackexchange.com/questions/38432/why-is-threatening-to-sue-not-considered-extortion\">Why is threatening to sue not considered extortion?</a></li>\n<li><a href=\"https://law.stackexchange.com/questions/55207/why-should-one-never-threaten-to-sue\">Why should one never threaten to sue?</a></li>\n<li><a href=\"https://law.stackexchange.com/questions/33331/what-is-the-point-of-sending-a-demand-letter\">What is the point of sending a demand letter?</a></li>\n</ul>\n",
"score": 4
},
{
"answer_id": 90712,
"body": "<h2>When you make “unwarranted demands with menaces”</h2>\n<p><em>NSW Crimes Act</em> 1900 <a href=\"http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s249k.html\" rel=\"nofollow noreferrer\">s249K</a>.</p>\n<blockquote>\n<p>"unwarranted" unless the person believes that he or she has reasonable grounds for making the demand and reasonably believes that the use of the menaces is a proper means of reinforcing the demand.</p>\n</blockquote>\n<blockquote>\n<p>"menaces" includes--</p>\n<p>(a) an express or implied threat of any action detrimental or unpleasant to another person, and</p>\n<p>(b) a general threat of detrimental or unpleasant action that is implied because the person making the unwarranted demand holds a public office.</p>\n</blockquote>\n<p>A threat of a lawsuit is a “menace”. If you do not believe that your lawsuit can survive summary dismissal then it is “unwarranted”.</p>\n",
"score": 4
},
{
"answer_id": 90709,
"body": "<p>In <a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a>, such threats can be extortion, depending on the surrounding circumstances.</p>\n<p>Extortion is defined by <a href=\"https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006070719/LEGISCTA000006149834/\" rel=\"nofollow noreferrer\">article 312-1 du Code Pénal</a>:</p>\n<blockquote>\n<p>L'extorsion est le fait d'obtenir par violence, menace de violences ou contrainte soit une signature, un engagement ou une renonciation, soit la révélation d'un secret, soit la remise de fonds, de valeurs ou d'un bien quelconque.</p>\n</blockquote>\n<blockquote>\n<p>It is extortion to obtain by violence, threat of violence, or constraint; either a signature, a commitment or renunciation; or the disclosure of a secret; or the gift of money or goods.</p>\n</blockquote>\n<p>"Constraint" is of course a rather vague word and there is a decent amount of case law on the subject. In particular, it can be applied by making threats to do entirely legal things. The case in point is <a href=\"https://www.legifrance.gouv.fr/juri/id/JURITEXT000033345295\" rel=\"nofollow noreferrer\">Cour de cassation, criminelle, Chambre criminelle, 3 novembre 2016, 15-83.892</a>.</p>\n<p>In that case, a student threw something at a teacher and injured him. The teacher went to the parents' house and threatened to press charges as well as ask the high school to kick out the child. The teacher then came back shortly thereafter with a settlement document, which the parents signed, agreeing to pay €7500.</p>\n<p><em>Sidenote: "press charges" is in French "porter plainte". With that fact pattern (violence causing personal injury), you would seek court action via a police criminal complaint to which you add yourself as "partie civile". The court then rules on both the criminal case and the associated tort.</em></p>\n<p>The teacher was condemned for extortion for the way he made the parents sign the document (as well as how he pursued them thereafter but let’s leave that aside). He appealed to the Cour de Cassation, arguing among other things that</p>\n<blockquote>\n<p>(...) la contrainte propre à caractériser un fait d'extorsion portant sur un engagement s'entend d'agissements préalables de l'auteur tendant, <strong>par leur illicéité</strong> et leur gravité, à forcer directement la volonté du signataire qui, autrement, ne se serait pas engagé ; que la contrainte, au sens de l'article 312-1 du code pénal ne peut résulter du déséquilibre prétendu de l'engagement ni du statut respectif des signataires, ni de l'insistance prêtée au prévenu dans la recherche d'une réparation amiable, ni enfin dans le sentiment exprimé a posteriori par le plaignant de s'être senti « obligé » ou « contraint »</p>\n</blockquote>\n<blockquote>\n<p>constraint means previous actions that are <strong>illegal</strong> and grave, which force the victim to grant a signature they would otherwise have refused; constraint under article 312-1 cannot be the result of a claimed imbalance in the terms agreed, nor of pushiness by the one who proposes a settlement, nor of an after-the-fact feeling of "I had to do it" by the appellee</p>\n</blockquote>\n<p><em>My emphasis. The translation is a bit loose, in particular "illéicité" is an ambiguous word; it usually means "unlawfulness", but could also be a stronger version of "immorality". That ambiguity might have been intentional from whoever drafted the appeal.</em></p>\n<p>The Cour de Cassation rejected that argument. While the teacher was allowed to press resolution by either police or administrative action, he threatened those to build up pressure on the parents, and the surrounding circumstances meant that it constituted constraint.</p>\n<hr />\n<p>That does not mean that one cannot make threats to induce settlements in France. Imagine a bar owner telling unruly customers to pay their drinks or else he will call the police - that would not be extortion. It just means that all circumstances have to be considered, and the exact content of the threats does not suffice to make them legal.</p>\n",
"score": 3
}
] |
[
"uae"
] |
Is a landlord required to explain how utility is assessed
| 1 |
https://law.stackexchange.com/questions/89422/is-a-landlord-required-to-explain-how-utility-is-assessed
|
CC BY-SA 4.0
|
<p>here is a hypothetical story.</p>
<p>A tenant is renting an apartment in San Francisco CA, and they started noticing that their utility bill keeps climbing every month. They started looking closely and noticed the following trend:</p>
<p><a href="https://i.stack.imgur.com/SiVty.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/SiVty.png" alt="enter image description here" /></a>
(it would amount $16-$20 per trash bag thrown away)</p>
<p>A hypothetical lease states:</p>
<p><a href="https://i.stack.imgur.com/oTFkj.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/oTFkj.png" alt="enter image description here" /></a>
<a href="https://i.stack.imgur.com/Nd49V.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/Nd49V.png" alt="enter image description here" /></a></p>
<p>My question to the community is, would the tenant have any right to demand detailed explanation how to the bill is calculated or the lease is pretty solid and the tenant must absorb whatever charges the landlord throws at them.</p>
<p>The concern is that there is not accountability or transparency in how these fees are assessed. What if the landlord decides to send a bill of $500 for trash. That would unreasonable. Does this hypothetical tenant have any legal standing to demand itemized computation. Would such a tenant have a chance of winning a case if they would pursue a case against a landlord in the California Court of Law demanding either reduction of the cost or rendering this porsion of the lease invalid.</p>
<p>Thanks in advance</p>
| 89,422 |
[
{
"answer_id": 89437,
"body": "<blockquote>\n<p>would the tenant have any right to demand detailed explanation how to the bill is calculated or the lease is pretty solid and the tenant must absorb whatever charges the landlord throws at them.</p>\n</blockquote>\n<p>The clause is valid, but it does not entitle the landlord to arbitrariness or discretion. The method is explicit in that tenants are to be charged "<em>[t]he provider's bills</em>".</p>\n<p>Landlord's evasion of tenant's scrutiny causes reasonable suspicion of <em>breach of contract</em> and/or <em>breach of the covenant of good faith and fair dealing</em>. That covenant is implied in every contract.</p>\n<p>During court proceedings, the tenant will be entitled to conduct discovery on the defendant landlord, the non-party provider, and other non-parties who might be relevant to the claim(s).</p>\n<p>Since the clause is valid, relief in the form of striking that clause from the lease seems unlikely to be granted. In case of overcharge, the relief for breach of contract will be primarily in the form of reimbursements plus interest (see sections <a href=\"https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=4.&title=2.&part=1.&chapter=2.&article=1.\" rel=\"nofollow noreferrer\">3300</a> <em>et seq</em> of CA Civil Code), or the corresponding deductions on subsequent bills. Additionally, the tenant may pursue injunctive relief to the effect of securing transparency on landlord's billing practices.</p>\n",
"score": 2
}
] |
[
"landlord",
"tenant"
] |
Procedural Rules v Federal Law?
| 0 |
https://law.stackexchange.com/questions/90719/procedural-rules-v-federal-law
|
CC BY-SA 4.0
|
<p>This question is inspired by <a href="https://law.stackexchange.com/a/90483/36096">@ohwilleke response</a> to <a href="https://law.stackexchange.com/questions/90478/conflict-between-third-circuit-and-nj-appellate-division-regarding-stay-pending">my previous question</a>.</p>
<p>In his response, <em>ohwilleke</em> highlighted the following point:</p>
<blockquote>
<p>Isn't the the Appellate Division in NJ required to uphold the ruling
of the Third Circuit in such matters?</p>
<p>It is not.</p>
</blockquote>
<blockquote>
<p>There can be no conflict on <strong>procedural issues</strong> between the Third
Circuit, which is interpreting federal rules of civil and appellate
procedure, and a ruling of a New Jersey court which is interpreting
<strong>state rules</strong> of civil and appellate procedure.</p>
</blockquote>
<p>What's the difference between state laws that are subject to federal law & "procedural" issues ("state rules of civil procedure") that apparently are not? At the heart of <em>Coinbase v. Bielski</em> is whether the FAA intended that an appeal divests the district court's jurisdiction of the case. It is not a question of federal "procedure".</p>
<p>If the FAA so intended, what legal right does a state court have to devise a "procedural" rule that is in direct conflict with federal law? A rule that is in violation of federal law is no better than a state law that violates federal law.</p>
<p>Assuming the intent of the FAA was to divest jurisdiction when an appeal is filed, on what basis can a state create a "rule" that gives it jurisdiction? If the state were to create a law that is inconsistent with federal law it would be struck down as illegal. Why does that change because it is a state rule?</p>
<p>I might be missing something basic but something doesn't sound right.</p>
<p>Can someone explain the difference in approach between a rule and a law that is in direct conflict with federal law?</p>
| 90,719 |
[
{
"answer_id": 90720,
"body": "<p>The <em>interpretation</em> of state rules of civil procedure is a matter purely for state courts.</p>\n<p><em>Whether</em> a state procedural rule (or even substantive approaches to jurisdiction) violates federal law, including the U.S. Constitution, is a question of federal law, but state courts are still competent to answer such questions that arise in the process of state litigation, subject only to precedent from the Supreme Court of the United States.</p>\n<p>I may be starting to just repeat things now, but <em>even if</em> the legal issue you're interested in (the extent to which trial courts are divested of jurisdiction during non-frivilous interlocutory appeals in matters controlled by the FAA) is substantive or jurisdictional rather than procedural, <a href=\"https://law.stackexchange.com/questions/87110/in-the-united-states-must-state-courts-follow-rulings-by-federal-courts-of-appe\">Federal circuits do not bind state courts</a>.</p>\n<p>However, the Supreme Court of the United States <em>can</em> provide binding prcedent on federal law that state courts must apply. I could see the reasons in <em>Coinbase</em> being written broadly enough to apply to both state and federal proceedings.</p>\n",
"score": 4
}
] |
[
"united-states",
"civil-procedure",
"us-federal-government",
"federal-courts"
] |
In India is the Judiciary empowered to make reasonable exceptions to a law in a trial?
| 2 |
https://law.stackexchange.com/questions/90728/in-india-is-the-judiciary-empowered-to-make-reasonable-exceptions-to-a-law-in-a
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CC BY-SA 4.0
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<p>In case a statute is clearly of General application or doesn't allow affirmative defences, is it still possible for the Judiciary to interpret the law in a way to accommodate exceptional cases ? or would this be against the principles of public policy and their role ?</p>
<p>For example for crimes against women, children and underclasses the law seems to be interpreted very broadly.</p>
| 90,728 |
[
{
"answer_id": 90730,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>Absolutely not. This would be contrary to the principle of the supremacy of parliament. If it's written in the statute, that's what the law says.</p>\n<p><em>However</em> judges do show some flexibility in interpreting the wording of laws. Furthermore, in the case of crimes, they are also (usually) able to pass a sentence of an "absolute discharge" which means no fine, or prison, or risk of further punishment (but still a criminal record).</p>\n<p>Note that it is usually for a crime to have a "without lawful excuse" or similar clause, so the question doesn't arise.</p>\n",
"score": 2
}
] |
[
"india"
] |
At What Point Does a Supreme Court Ruling Become Binding on Lower Courts?
| 11 |
https://law.stackexchange.com/questions/90716/at-what-point-does-a-supreme-court-ruling-become-binding-on-lower-courts
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CC BY-SA 4.0
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<p>When the Supreme Court hears a case it can take a while for it to issue a verdict. Typically, after hearing oral arguments, the Justices have to decide the case. They do so at what is known as the Justices' Conference. When Court is in session, there are two conferences scheduled per week – one on Wednesday afternoon and one on Friday afternoon.</p>
<p>After each Justice states their views on the casein confrence, the justices cast their vote starting with the Chief Justice.</p>
<p>When exactly does the Supreme Court's decision become binding on lower courts in the country?</p>
<p>Does the opinion become binding right after the justices cast their vote or not until they publish their opinion months later? Assuming not until later, would a unanimous decision be binding right away?</p>
<p>If not, are lower courts free to disregard the Supreme Court's votes until an official opinion is published during the summer?</p>
| 90,716 |
[
{
"answer_id": 90717,
"body": "<p>The Supreme Court's order is not official and binding until it is "delivered in open Court." See uscourts.gov, "<a href=\"https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1\" rel=\"noreferrer\">Supreme Court Procedures</a>."</p>\n<p>Until that point in time, the Court has not produced any legal information for lower courts to follow or disregard.</p>\n<p>When the Court hears an appeal on the merits, it will generally delay issuing its order until the reasons are prepared. On <a href=\"https://en.wikipedia.org/wiki/Shadow_docket\" rel=\"noreferrer\">emergency motions</a> (e.g. requesting a stay of execution), these orders are often released immediately after the Court votes, and often without reasons.</p>\n<p>If there were an urgent matter requiring an order as soon as possible after hearing, I do not see anything that would prevent the Court from announcing the order and delaying written reasons until later, but even in <em>Bush v. Gore</em>, they were able to decide the case and produce written reasons in one day.</p>\n<p>There is also a narrow and seldom-used ground for the Court to revisit a final order by petition for rehearing (see <a href=\"https://www.supremecourt.gov/filingandrules/2023RulesoftheCourt.pdf\" rel=\"noreferrer\">Rule 44</a> and Brian De Vito, "<a href=\"https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1035&context=student_scholarship\" rel=\"noreferrer\">When U.S. Supreme Court Decisions Are Not Final: An Examination of the Rehearing Rule and the Court's Application of it in <em>Kennedy v. Louisiana</em></a>" (2010)).</p>\n",
"score": 16
}
] |
[
"united-states",
"court",
"us-supreme-court"
] |
Minimum penalty for extradition makes no sense?
| 7 |
https://law.stackexchange.com/questions/90677/minimum-penalty-for-extradition-makes-no-sense
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CC BY-SA 4.0
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<p>I have been looking into extradition law, focusing on the United Kingdom (England and Wales jurisdiction) wanting to extradite an individual back from a country abroad.</p>
<p>There are many factors to consider when it comes to an extradition, however just focusing on the minimum sentence part I am rather confused. Admittedly, I might be interpreting things rather literally.</p>
<p>Usually, the minimum sentence for a crime has to be 12 months for an extradition to be allowed. This, however, makes no sense to me. Many crimes (even serious crimes) have a minimum sentence of a fine, and a maximum sentence of perhaps decades in prison. We could use the <a href="https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/supplying-or-offering-to-supply-a-controlled-drug-possession-of-a-controlled-drug-with-intent-to-supply-it-to-another/" rel="noreferrer">Misuse of Drugs Act 1971</a> as an example, where the minimum is community service and the maximum is 16 years in prison as I quoted below.</p>
<blockquote>
<p>Offence range: High level community order – 16 years’ custody</p>
</blockquote>
<p>Does this mean that a hypothetical offender could commit a crime, disappear to another country, and successfully fight the extradition because the minimum sentence was under a year? It seems like a rather serious loop-hole in the law...</p>
| 90,677 |
[
{
"answer_id": 90678,
"body": "<h3>You might be misreading the extradition criterion</h3>\n<p>The <a href=\"https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/243246/7146.pdf\" rel=\"nofollow noreferrer\">UK–USA extradition treaty</a> has an example of the clause you're asking about:</p>\n<blockquote>\n<ol>\n<li>An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty.</li>\n</ol>\n</blockquote>\n<p>Similar wording is used in all other treaties that I have reviewed:</p>\n<ul>\n<li><a href=\"https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/238374/7920.pdf\" rel=\"nofollow noreferrer\">UK–Algeria</a> ("offences which\nare punishable under the laws of both Parties by imprisonment or other deprivation of liberty for at least a period of one year")</li>\n<li><a href=\"https://www.oas.org/ext/Portals/33/Files/TreatiesB/arg_bil_ext_ca_en.pdf\" rel=\"nofollow noreferrer\">UK–Argentina</a> (no extradition when "the maximum punishment for the offence is imprisonment for less than one year")</li>\n<li><a href=\"https://www.oas.org/ext/Portals/33/Files/TreatiesB/bol_bil_can_en.pdf\" rel=\"nofollow noreferrer\">UK–Bolivia</a> (same as Argentina)</li>\n<li><a href=\"https://www.oas.org/ext/Portals/33/Files/TreatiesB/can_ext_bil_chl_en.pdf\" rel=\"nofollow noreferrer\">UK–Chile</a> (same as Argentina)</li>\n<li>...</li>\n<li><a href=\"https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/243395/7382.pdf\" rel=\"nofollow noreferrer\">UK–U.A.E.</a> ("offence is based is punishable under the laws of both Parties by deprivation of liberty for a period of at least one year")</li>\n</ul>\n<p>If there is a treaty that requires there to be a mandatory minimum punishment of at least one year, I have not found it. While you say that "[u]sually, the minimum sentence for a crime has to be 12 months for an extradition to be allowed" and "[e]xtraditions are based on minimum sentence in the UK," my review of the treaties makes me doubt that. The rest of this answer explains how to interpret the clauses quoted above.</p>\n<h3>It is enough that the offence gives rise to the "<em>possibility</em> of a term of imprisonment or other form of detention of more than one year."</h3>\n<p>The inquiry is focused on the offence that the conduct is alleged to give rise to and the range of punishment available for that offence generally. E.g. an offence with a minimum punishment of a fine and a maximum punishment of 16 years in prison is an offence that is "punishable... by deprivation of liberty for a period of one year or more."</p>\n<p>Said another way: it is not necessary that the offence have a mandatory minimum of one year imprisonment. It is enough that the offence gives rise to the "<em>possibility</em> of a term of imprisonment or other form of detention of more than one year." See <em>Canada v. Barrientos</em>, <a href=\"https://canlii.ca/t/2dcck#par103\" rel=\"nofollow noreferrer\">1995 ABCA 468 (CanLII) at para 103</a>, Hetherington J., dissenting; but appeal allowed, for the reasons of Hetherington J. by the SCC in <em>Canada v. Barrientos</em>, <a href=\"https://canlii.ca/t/1fr2n\" rel=\"nofollow noreferrer\">[1997] 1 S.C.R. 531</a>. In <em>Barrientos</em>, the courts were interpretating Article 2 of the Canada–U.S. extradition treaty, with wording substantially similar to the UK extradition treaties I reviewed above: "provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year."</p>\n<p>One remaining question is whether the decision-maker needs to consider the specific facts of defendant's conduct and make a preliminary estimation as to whether <em>in fact</em> a term of imprisonment more than one year is likely. This position has not been adopted in Canada. At the stage where a judge or Minister of Justice is determining the authority to proceed, this is not to become a "sort of sentencing hearing." See <em>USA v. English</em>, <a href=\"https://canlii.ca/t/1r4xt#par23\" rel=\"nofollow noreferrer\">2002 BCSC 1902 at para 23</a>.</p>\n",
"score": 15
}
] |
[
"united-kingdom",
"england-and-wales",
"common-law",
"jurisdiction",
"extradition"
] |
Does publishing a copyrighted painting, for the purpose of making fun of the artist, constitute parody? (USA)
| 0 |
https://law.stackexchange.com/questions/90713/does-publishing-a-copyrighted-painting-for-the-purpose-of-making-fun-of-the-art
|
CC BY-SA 4.0
|
<p>I want to write a short story that re-imagines the lives of several prominent artists, and uses their paintings to tell a new, fictional, story of their lives.</p>
<p>An example would be using Picasso paintings to tell a story about how he was actually a famous musician, and then using that platform to make fun of both Picasso and musician culture. The paintings would serve as a reference point for how the story relates to the real life artist. For example the painting "<a href="https://www.pablopicasso.org/old-guitarist.jsp" rel="nofollow noreferrer">The Old Guitarist</a>" would be renamed to "My First Guitar Teacher" and then some paragraphs written telling the story of the teacher and his relationship to Picasso, which is entirely fiction (this painting is actually in the public domain, but let's pretend it's not).</p>
<p>Would this type of work count as a parody, and therefore allow me to use copyrighted works in a for-profit publication? If not, why?</p>
| 90,713 |
[
{
"answer_id": 90715,
"body": "<p>First, there's a step missing: parody does not "therefore" allow you to copy protected works. You have to determine whether this is <a href=\"https://www.law.cornell.edu/uscode/text/17/107\" rel=\"nofollow noreferrer\">"fair use"</a>, where you get in the neighborhood of parody in identifying "purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research". Therefore you have to go through the balancing act that is fair use analysis.</p>\n<p>In <a href=\"https://www.law.cornell.edu/supct/html/92-1292.ZO.html\" rel=\"nofollow noreferrer\">Campbell v. Acuff-Rose Music, Inc.</a>, SCOTUS considered parody as a form of criticism or comment, noting that "This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court's equal division". For that case, the court continues</p>\n<blockquote>\n<p>Suffice it to say now that parody has an obvious claim to\ntransformative value, as Acuff Rose itself does not deny. Like less\nostensibly humorous forms of criticism, it can provide social benefit,\nby shedding light on an earlier work, and, in the process, creating a\nnew one. We thus line up with the courts that have held that parody,\nlike other comment or criticism, may claim fair use under § 107.</p>\n</blockquote>\n<p>The important step in this ruling is tha</p>\n<blockquote>\n<p>For the purposes of copyright law, the nub of the definitions, and the\nheart of any parodist's claim to quote from existing material, is the\nuse of some elements of a prior author's composition to create a new\none that, at least in part, comments on that author's works.\nIf, on the contrary, the commentary has no critical bearing on the\nsubstance or style of the original composition, which the alleged\ninfringer merely uses to get attention or to avoid the drudgery in\nworking up something fresh, the claim to fairness in borrowing from\nanother's work diminishes accordingly (if it does not vanish), and\nother factors, like the extent of its commerciality, loom larger.</p>\n</blockquote>\n<p>In other words, you can't catch a free ride on "parody" to reach a fair use judgment. Even if it were parody, "parody may or may not be fair use", as the court said.\nThat does not preclude establishing that the work in some other way comments or criticizes. Get a lawyer before you go doing this, in case you end up involuntarily making new law.</p>\n",
"score": 3
},
{
"answer_id": 90714,
"body": "<h2>No</h2>\n<p>Parody under copyright law requires making fun of the literary or artistic artwork itself. You are proposing to use the artwork to tell a humorous story about the <em>artist</em> - this is not parodying the art.</p>\n",
"score": 0
}
] |
[
"united-states",
"copyright",
"parody"
] |
What are some jurisdictions where a "no-strike clause" is illegal?
| 12 |
https://law.stackexchange.com/questions/90672/what-are-some-jurisdictions-where-a-no-strike-clause-is-illegal
|
CC BY-SA 4.0
|
<p><a href="https://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1365&context=lawreview" rel="noreferrer">This paper</a> (PDF file) gives the following example of a typical no-strike clause in a collective bargaining agreement in the United States (the paper is from 1984, so I'm not sure to what extent it reflects the current reality in the US):</p>
<blockquote>
<p>The union agrees that it will not collectively, concertedly or
individually engage in or participate, directly or indirectly, in any
strike, slowdown, stoppage or any other interference with or
interruption of the work or operations of the employer during the term
of this agreement; and the employer agrees that during the term of
this agreement it will not lock out any of the employees in the
bargaining unit covered by this agreement.</p>
</blockquote>
<p>What are some jurisdictions where this kind of clause would be legal/illegal?</p>
<p>If the scope of the question is too large, I'm interested in particular in European Union countries. The question is simply for my personal culture relative to workers' rights.</p>
<p>Thanks,</p>
| 90,672 |
[
{
"answer_id": 90674,
"body": "<p>In <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a>, this is called <a href=\"https://de.wikipedia.org/wiki/Friedenspflicht\" rel=\"noreferrer\">Friedenspflicht</a>. Both employers and employees (and their unions) are required to refrain from strikes and lockouts in disputes on issues which are covered by a currently valid collective bargaining agreement. The agreement <em>may</em> also stipulate that there will be no labor actions on issues which are not covered, as long as the agreement is in force, but that is not necessary.</p>\n<p><em>Example: There is a collective bargaining agreement on wages, which is still running. Strikes for higher wages are prohibited. Strikes to get better staffing for the night shift would be allowed, if the agreement doesn't say how many employees should be on duty even during slack hours.</em></p>\n",
"score": 19
},
{
"answer_id": 90683,
"body": "<p><a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a></p>\n<blockquote>\n<p><em>Une convention ou un accord collectif ne peut pas limiter ou réglementer l'exercice du droit de grève.</em><br />\nA collective or bargaining agreement may not limit or restrict the exercise of the right to strike.</p>\n</blockquote>\n<p>Source: <a href=\"https://www.demarches.interieur.gouv.fr/particuliers/droit-greve-salarie-secteur-prive\" rel=\"noreferrer\">French Interior ministry</a>, my translation.</p>\n<p>In France, the right to strike is enshrined in the constitution, via the <a href=\"https://en.wikisource.org/wiki/French_Constitution_of_1946#PREAMBLE\" rel=\"noreferrer\">preamble of the 1946 Constitution</a> which the current <a href=\"https://www.conseil-constitutionnel.fr/sites/default/files/as/root/bank_mm/anglais/constiution_anglais_oct2009.pdf\" rel=\"noreferrer\">1958 Constitution</a> grants continued constitutional power.</p>\n<blockquote>\n<p><em>Le droit de grève s'exerce dans le cadre des lois qui le réglementent.</em><br />\nThe right to strike may be exercised within the framework of the laws that govern it.</p>\n</blockquote>\n<p>Generally speaking, in France, striking is a collective action but an individual right. Unions cannot take this right away. Only a law enacted by Parliament can do so, and even so, under a strict legal standard of necessity as approved by the Constitutional Council. A union can neither force nor prevent its members from striking.</p>\n<p>I'm not completely sure if a bargaining agreement could include a clause <em>preventing</em> a union from calling for a strike. (Of course, in practice, if representatives from a union sign an agreement, they would presumably call for resuming or not stopping work.) I suspect this would be considered an undue limitation to the right for unions to exercise their role as representatives of workers, but I don't know if there's jurisprudence to that effect. And even if it did, it wouldn't affect the right of workers to strike, even if they're members of that union.</p>\n<p>As for the employer's side, it's always illegal for an employer to prevent willing workers from working, or to discriminate against workers who choose to strike. So in France, that side of the agreement would only be the employer agreeing to respect the law.</p>\n",
"score": 14
},
{
"answer_id": 90675,
"body": "<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<h2>Such a clause is unnecessary</h2>\n<p>Under the Fair Work Act which governs all Federal industrial relations (i.e. all those involving companies, the Federal government, and, for reasons, everyone in Victoria) only allows strikes or lockouts during bargaining periods and these are limited to 7 days either way.</p>\n<p>This only leaves employees of States and with non-incorporated employers which is a tiny minority.</p>\n",
"score": 9
}
] |
[
"european-union",
"labor-law",
"unions",
"strike"
] |
Can a bank sue someone that disseminates information that starts a bank run that destroys the bank?
| 32 |
https://law.stackexchange.com/questions/90480/can-a-bank-sue-someone-that-disseminates-information-that-starts-a-bank-run-that
|
CC BY-SA 4.0
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<p>Specifically, could Silicon Valley Bank sue the Founders Fund and other VCs that had companies they invested in withdraw their funds?</p>
<p>Has any bank ever successfully done this?</p>
<p>To clarify, I'm not asking about the act of withdrawing funds, but encouraging others to do so.</p>
| 90,480 |
[
{
"answer_id": 90482,
"body": "<blockquote>\n<p>Can a bank sue someone that starts a bank run that destroys the bank?</p>\n</blockquote>\n<p>No (assuming, of course, as is the usual case, that the person who starts the bank run is not engaged in perpetrating a defamatory falsehood).</p>\n<p>Most bank runs are, and certainly the Silicon Valley Bank bank run was, based upon wide disclosure of a true fact. In the case of SVB, the bank run was triggered by the fact that its balance sheets failed to reflect the true value of fixed nominal rate bonds that it held as assets.</p>\n<p>In the usual case, a lawsuit also isn't a very helpful option to a bank that suffers a bank run. In the case of SVB, the bank had a book value (which is often a fair measure of a bank's value since its assets are so monetized) of $34 billion which was reduced to a pittance by the run on it. Even if someone who started a run on the bank had a moderately high net worth of $3.4 million that could be collected in a money judgment, that would cover a mere 0.01% of the loss to the bank, and there would be serious issues over the causation of any loss (i.e. how much of the losses suffered bound to occur sooner or later anyway due to causes unrelated to someone who triggered a panic).</p>\n<p>Another fine point of procedure is that when a bank becomes insolvent, it is promptly taken over by the FDIC or similar regulatory agency, which installs a receiver. This makes it effectively impossible for the bank itself to sue anyone. If the bank would otherwise have had a right to sue, the receiver for the bank would have the right to sue rather than the bank itself. But, this subtly while not irrelevant, doesn't capture the core reason for the question.</p>\n",
"score": 52
},
{
"answer_id": 90494,
"body": "<p><a href=\"/questions/tagged/netherlands\" class=\"post-tag\" title=\"show questions tagged 'netherlands'\" aria-label=\"show questions tagged 'netherlands'\" rel=\"tag\" aria-labelledby=\"tag-netherlands-tooltip-container\">netherlands</a></p>\n<p>In The Netherlands, <a href=\"https://en.wikipedia.org/wiki/DSB_Bank\" rel=\"nofollow noreferrer\">DSB Bank</a> went bankrupt after investigator Pieter Lakeman, representative of a foundation of unsatisfied customers of the bank, called for a bank run, his argument being that it would allow for better handling of the cases of the victims he represented.</p>\n<p>According to professor Doorenbos, as quoted in <a href=\"https://www.volkskrant.nl/economie/dsb-oproep-lakeman-mogelijk-misdrijf%7Eb5a66b15/\" rel=\"nofollow noreferrer\">an article in <em>De Volkskrant</em></a> (in Dutch), Lakeman could be prosecuted on basis of three separate articles of Dutch law, neither of which are specific for bank runs.</p>\n<ul>\n<li>Article 142, causing a disturbance by a false alarm or signal</li>\n<li>Article 261 (incorrectly identified as 126 in the article), defamation</li>\n<li>Article 334 (incorrectly identified as 324 in the article), influencing share prices with false information</li>\n</ul>\n<p>He was, however, never prosecuted.</p>\n<p>As a reaction to the actions of Lakeman and the following bank run on and bankruptcy of DSB Bank, a law was proposed that would've made it illegal to call for a bank run. The proposal seems to have died quietly.</p>\n",
"score": 27
},
{
"answer_id": 90525,
"body": "<p>I recall an actual case where there was a threat to prosecute: it was over 35 years ago in Auckland, where I was living at the time.</p>\n<p>A woman who was a customer of the Building Society attempted to withdraw a large amount of money while visiting a branch in another city. They asked for some time to check with Auckland before allowing the withdrawal (this was the late 1980s before most people had mobile phones or Internet access). Instead she called up a talkback radio show and said that the building society was in trouble and wasn't honouring deposits, thereby starting a run.</p>\n<p>As I recollect, some other banks extended a line of credit to the building society, as they saw the potential for themselves to be victims of similar behaviour in the future. After a couple of days, most people who had withdrawals funds realized that they had been silly, and put the money back (the building had been paying a high rate of interest). There was some talk of suing the woman, but I'm not sure of the outcome, as I left the country soon after. If they sued, the outcome would have depended on malice vs stupidity.</p>\n",
"score": 8
}
] |
[
"united-states",
"tort",
"banking"
] |
Have wives ever been legally a man's property in the US?
| 6 |
https://law.stackexchange.com/questions/22640/have-wives-ever-been-legally-a-mans-property-in-the-us
|
CC BY-SA 4.0
|
<p>I'm studying A Level English literature at the moment and we are reading <em>The Great Gatsby</em>. I have a teacher who alluded that during the time the text was written, 1925, wives were considered to be a man's property. This raised red flags for me, as I know this may be true <em>figuratively</em>, but I want to know if that was <em>legally</em> the case ever in the United States, and particularly in 1925.</p>
| 22,640 |
[
{
"answer_id": 22642,
"body": "<p>Not exactly,</p>\n<p>There were limited instances of the institution of wife selling in Britain in the early modern period, but this practice was never transferred to the United States and received as part of its common law. The institution of wife selling had been abolished long, long before the year 1925 in Britain and had never existed in the U.S., and was quite rare even when it had existed in Britain (where it functionally served as a poor man's alternative to divorce if a substitute husband could be located for an unfaithful or unwanted wife).</p>\n<p>Also, even in the early English common law, a marriage only arose with a woman's consent (sometimes implied from cohabitation or pregnancy in cases of common law marriage), even though <em>de facto</em> arranged marriages were common. While the wedding ceremony, in part, contemplated a notion that a father sold his daughter to the groom and at some times a father actually did have veto power over his children's marriage in England (causing many elopements to Scotland), the woman actually still had to consent in England, at least in principle, to the marriage.</p>\n<p>Married women did have greatly diminished legal rights, but they lacked important aspects of being property such as transferability. At common law, the legal status of a married woman was very different from that of an unmarried adult woman (a "femme sole"), and was more like that of a child, and the legal rights of men and women in marriage were, in general, very different.</p>\n<p><a href=\"https://law.stackexchange.com/a/22641\">Phoog's answer</a> is correct in identifying the doctrine of coverture and the suspension of the legal personality of the wife upon marriage as the dominant aspect of the differential treatment of women in marriage, but I will spell out in this answer the pervasive nature of the doctrine as applied since some of the practical consequences of this general idea are not obvious.</p>\n<p>In the most pure version of the traditional English common law, rules included the following:</p>\n<ul>\n<li><p>Upon marriage, all property of the married woman became property of her husband instead, which the husband had sole authority to manage. A wife's earnings were her husband's property and not her own. But, trusts could be established by third parties (often a father or uncle) for the benefit of a married woman that did not become a husband's property, and her blood relations would often give a woman gifts that in the case of personalty were not always in the full control of the husband.</p>\n</li>\n<li><p>A married woman could not enter into binding contracts except for "necessities", and could not enter into executory contracts (i.e. contracts to be performed in the future).</p>\n</li>\n<li><p>There was no criminal liability for offenses other than murder committed by a husband against a wife or vice versa (e.g. rape and domestic violence of a husband directed at a wife was legal).</p>\n</li>\n<li><p>A husband had a right to physically discipline his wife or to hire a third-party public official to do so on his behalf and many local governments had an official whose responsibilities included physically disciplining wives at a husband's request for a scheduled fee.</p>\n</li>\n<li><p>Adultery was a crime and wives were generally the ones most likely to be prosecuted for it.</p>\n</li>\n<li><p>A wife was legally obligated to maintain her domicile with her husband and could be legally compelled (with third-party assistance if necessary) to return to it.</p>\n</li>\n<li><p>There was no civil liability between spouses who were one person under the law (i.e. spouses could not sue each other in court). This changed mostly in the mid-20th century. But, a husband was often held to civil liability for the acts of his wife to a similar extent to the liability he would have for the acts of his children or his dogs and livestock.</p>\n</li>\n<li><p>Wive could not (and still cannot in most circumstances) testify against their husbands in court on any matter.</p>\n</li>\n<li><p>A lawsuit of a wife against a third person would generally be brought by the husband either on her behalf or in cases such as personal injury suits for "loss of consortium" (a legal right of the man to companionship and service from his wife).</p>\n</li>\n<li><p>Wives generally had no right to inherit from their own families (at least for real property, inheritance of personalty in early common law England was vested in the Church of England, another part of the common law not carried over to the U.S.), and spousal inheritance rights were governed by principles of curtsey and dower (often leaving a surviving spouse a life estate in property, rather than ownership of it).</p>\n</li>\n<li><p>Women, in general, could not vote or run for public office or serve on juries or be drafted to serve in the military.</p>\n</li>\n<li><p>In the early common law era, divorce could only be secured by legislation, not by a court. A wife could, however, apply to a court for "separation from bed and board" that would leave the marriage intact, but would allow her to live at a different domicile and to have her husband compelled to support her with what amounted to alimony. This was available on grounds comparable to early 20th century fault based divorce. Custody of children and full authority over them in the event of a dispute was generally vested in a husband.</p>\n</li>\n<li><p>Children born during a marriage were conclusively presumed to be a husband's children even if this was highly implausible as a matter of fact, and children born outside of marriage were illegitimate and had no legal rights at all vis-a-vis their fathers.</p>\n</li>\n</ul>\n<p>But, in most cases, a free adult femme sole (as opposed to an indentured servant or slave) had the same legal rights as a man. In practice, this was only viable for wealthy women or self-employed women as few forms of regular employment were available to women (most commonly entering into a relationship with an employer as a domestic servant which was a bit like indentured servitude except that the servant was paid money in addition to room and board, and had the right to quit).</p>\n<p>Also, a man could vest authority to manage the couple's estate in his wife, which would not be uncommon, particularly if the husband was away at war or on business.</p>\n<p>Not every U.S. state followed this regime in a pure manner, but a substantial part of this regime governing the rights of married women was adopted almost everywhere in the U.S. at some point (except for the states entering the union in the 20th century).</p>\n<p>This changed on a state by state basis, partially due to evolution of the common law, but in substantial part due to the passage of "Married Women's Property Acts" mostly in the 19th century. Remaining vestiges of this regime that were not changed legislatively by the 20th century were mostly later struck down by courts, often on 14th Amendment grounds, although removal of some of the criminal law immunities (the last of which was the marital rape exemption) was legislative and came in the later 20th century.</p>\n<p>The 19th century was also the time period during which legislative divorce was replaced on a state by state basis with court-granted fault-based divorce, which in turn was replaced on a state by state basis in the late 20th century and early 21st century (New York State was the last to adopt no-fault divorce).</p>\n<blockquote>\n<p>I have a teacher who alluded that during the time the text was\nwritten, 1925, wives were considered to be a man's property. This\nraised red flags for me, as I know this may be true figuratively but I\nwant to know if that was legally the case ever in the United States,\nand particularly in 1925.</p>\n</blockquote>\n<p>In 1925, most U.S. states had passed Married Women's Property Acts (including the states featured in the Great Gatsby), and court-granted divorces on the basis of fault were available (although rare), but there were still many residual aspects of the early common law regime in place. Divorce was, in practice, hard to obtain and expensive.</p>\n<p>Adultery was a crime and marital rape was not. A husband was generally immune from criminal liability concerning a wife, although often this would be in the form of a privilege similar to the self-defense privilege for "reasonable discipline of a wife" similar to the exclusion today for reasonable discipline of children, rather than an absolute immunity from liability.</p>\n<p>Civil liability exemptions would have still existed. Many "heart balm torts" (which allowed civil remedies for adultery for example against the other man) would have been in existence (a few U.S. states still have them), which effectively gave a husband some "property rights" in his wife's fidelity that had to be observed by third parties. But, by 1925 many states were starting to legislatively repeal cause of action for "heart balm" torts.</p>\n<p>Inheritance laws would not have been gender neutral but would not have so decisively disfavored married women either.</p>\n<p>In divorces, the "tender years doctrine" which awarded children under 12 to wives and older children to husbands would have been in the process of development.</p>\n<p>Some of the presumptions about a husband's authority over a wife's property and a woman's obligation to share a domicile with her husband would have been widely understood even though the legal basis for this living law would have been eroding and it would be outrageous in that time period to use third-party physical force to compel a woman to return to a domicile or to discipline a wife.</p>\n<p>In short, while a wife was not a husband's property in 1925 and had many more legal rights than she did in the early common law era, a wife still had many legal disabilities at that point in time and in the living law in the minds of ordinary people, her rights were even more diminished than the relatively progressive legal rights that she had under relatively newly enacted legislation. The mindset of wives as property, while not strictly true, still have a residual influence and relevance in the form of residual legal disabilities of married women.</p>\n",
"score": 12
},
{
"answer_id": 22641,
"body": "<p>Of course not. There may be legal systems in which wives were considered their husbands' property, but that was never the case in the US.</p>\n<p>As in many legal systems, wives at times had little or no legal personalty, which is not personal<em><strong>i</strong></em>ty, independent of their husbands, but that isn't the same as being the husband's property. An example illustrating the fact that a wife is not her husband's property is the fact that a husband could not sell or otherwise "dispose of" his wife.</p>\n<p>For more on wives' lack of independent personalty, see <a href=\"https://en.wikipedia.org/wiki/Coverture\" rel=\"nofollow noreferrer\">the Wikipedia article on coverture</a>, which includes the Blackstone quote:</p>\n<blockquote>\n<p>By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.</p>\n</blockquote>\n<p>It's worth noting that this area of law belongs to the states in the US, so the details depend on the couple's jurisdiction, but the present question can be answered generally, and accurately, in the negative.</p>\n",
"score": 7
},
{
"answer_id": 90428,
"body": "<p>I think the idea of women being "property" is merely a modern rhetorical spin on the historically subordinate status of women within a household.</p>\n<p>Whilst a man was recognised as having final authority to speak for the household in external affairs, it does not mean that a man had legal licence (or any effective power) to treat his wife as "property", any more so than a parent today could treat their child as "property".</p>\n<p>It's important to recognise that the law is not the only regulatory mechanism that has ever existed in society. The family, the community, and the church have all had powerful influence to regulate behaviour, and the weakening of these influences tends to have corresponded with people looking to the courts to regulate matters on which the law had once been silent, but which other institutions had not been.</p>\n<p>So I would say no, there is no basis to say that any jurisdiction derived from the English common law, has ever treated wives as the property of husbands.</p>\n",
"score": 0
}
] |
[
"united-states",
"marriage"
] |
A Swiss watch company seized my watch, saying it was stolen. I bought it 10 years ago. Is that legal?
| 42 |
https://law.stackexchange.com/questions/90062/a-swiss-watch-company-seized-my-watch-saying-it-was-stolen-i-bought-it-10-year
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CC BY-SA 4.0
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<p>I have a watch from <a href="https://en.wikipedia.org/wiki/Blancpain" rel="noreferrer">Blancpain</a> that I bought in 2014 from an individual in Poland (I have a written contract). I've sent the watch to Blancpain in Switzerland for periodic inspection and they seized it, explaining the watch was stolen 10 years ago in Germany.</p>
<p>In Poland, there is a law that when you bought a thing in good faith, you become the owner after 3 years even if seller was unauthorized to sell, didn't have rights to sell the item, or the item was stolen, etc.</p>
<p><strong>Is there a similar law in Switzerland?</strong> Or, if the item was stolen, it doesn't matter when and you bought it in good faith (a written contract, no special price, so no suspicion of unlawful possession by seller), do I have to give it back? Or is Blancpain wrong and they can't seize it?</p>
| 90,062 |
[
{
"answer_id": 90071,
"body": "<p><a href=\"/questions/tagged/switzerland\" class=\"post-tag\" title=\"show questions tagged 'switzerland'\" aria-label=\"show questions tagged 'switzerland'\" rel=\"tag\" aria-labelledby=\"tag-switzerland-tooltip-container\">switzerland</a></p>\n<p>"Gutgläubiger Erwerb gestohlener Dinge" (buying of stolen goods in good faith) is a big topic in law. Different jurisdictions handle it differently, but most European (civil law) systems have some kind of rule that accept the ownership of a buyer in such a case. <a href=\"https://edoc.unibas.ch/4901/1/20100219154216_4b7ea348e6218.pdf\" rel=\"noreferrer\">Here</a> is a good article that compares different jurisdictions on exactly such an issue. Luxury watches are a kind of art.</p>\n<p>According to Swiss law (Art 934 ZGB), the item must be returned when discovered within 5 years of the theft. However, the rightful owner must pay for any expenses you had. Since the theft was more than 5 years ago, the watch is, in my opinion, rightfully yours.</p>\n<p>Since <a href=\"https://en.wikipedia.org/wiki/Blancpain\" rel=\"noreferrer\">Blancpain</a> is in Switzerland, they are obviously bound to Swiss law. Also, they are not the police, so they cannot seize an item. They can only safekeep it and report to the authorities.</p>\n<p>I would also contact a lawyer for help. It seems to me like a case you should win.</p>\n",
"score": 45
},
{
"answer_id": 90064,
"body": "<p>You describe a case with two or possibly three affected jurisdictions, Poland, Germany, and Switzerland.</p>\n<ul>\n<li>First, you can of course demand that the Swiss company should give you documentation about the theft in Germany. You can contact the German police and ask for confirmation. (The Germans might also want to look at your contract for fingerprints, etc. That's presuming you are interested that the true thief is caught.)</li>\n<li>All three Countries have a rule that lengthy possession of an object <em>in good faith</em> leads to a transfer of ownership, but the length of of the waiting period differs. You don't have the watch long enough for Germany, you may have it long enough for Switzerland.</li>\n<li>There are also special rules (longer periods) when it comes to works of art. I presume the watch isn't one ...</li>\n</ul>\n<p>I expect that the watch is worth so much that you should consult a lawyer.</p>\n",
"score": 36
},
{
"answer_id": 90070,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" aria-label=\"show questions tagged 'england-and-wales'\" rel=\"tag\" aria-labelledby=\"tag-england-and-wales-tooltip-container\">england-and-wales</a></p>\n<p>Not directly applicable to the OP, but in England and Wales (and I suspect most <a href=\"/questions/tagged/common-law\" class=\"post-tag\" title=\"show questions tagged 'common-law'\" aria-label=\"show questions tagged 'common-law'\" rel=\"tag\" aria-labelledby=\"tag-common-law-tooltip-container\">common-law</a> jurisdictions), if the person that purported to sell/give it to you didn't have good title (because it was stolen), you don't have good title either. And it doesn't matter how long you and your ancestors have "owned" it.</p>\n",
"score": 11
},
{
"answer_id": 90138,
"body": "<p>The key point here is the existence of good faith.</p>\n<p>Written contract and usual price might be enough by common goods, but not by special or luxury goods. According to quick google search, Blackpain has service to check the watch authenticity before purchasing. Your failure to use that service might be interpreted as the lack of the good faith, and it looks like the reason why they feel entitled to seize your watch, because the 5 year period apply only if good faith is present.</p>\n<p>Only court can decide if good faith on your account was present or not, and only a lawyer can advice you, what are the chances of winning, but in case of loosing, you'll have to add lawyer costs to your lost. If you have legal protection insurance, it's definitely worth to contact them, otherwise it's up to you if you need to fight or not.</p>\n",
"score": 7
},
{
"answer_id": 90205,
"body": "<p>The manufacturer isn't seizing it, but they're also not going to adjudicate this on their own. They're going to hold that watch in safe-keeping until a court of competent jurisdiction tells them to do something with it.</p>\n<p>So somebody is going to have to file a lawsuit. The judge in that lawsuit is going to expect every party with a stake in the matter is served notice of the lawsuit. That will include the crime victim and the insurance company of the shop that sold it.</p>\n<p>Everyone will make their argument, answers and replies will be written, and any arguments by any party will be cross-examined. The judge will rule, time will be given for dissatisfied parties to file appeals, and then the watch will go where the judge said, as will any other compensation that may be ordered.</p>\n<p>Since some states provide good-faith buyers a limit to how far back theft claims can go, one of the things that will be litigated is which jurisdiction applies and whether the buyer or seller acted in good faith. That would be based on how a 'reasonable person' would behave given the norms of the high-end watch resale market, a sophisticated market by definition. These aren't cheap bicycles. I would expect things to be raised like</p>\n<ul>\n<li>the use if available of stolen-watch databases.</li>\n<li>the category of dealer the seller is in.</li>\n<li>the price relative to norms and the degree to which a notably low price affects good faith.</li>\n<li>the reason for buying such a watch from a non-shopkeeper if one could get the same thing from a reputable and insured shop at same price.</li>\n</ul>\n",
"score": 3
}
] |
[
"criminal-law",
"property",
"is-x-legal",
"switzerland"
] |
Can adult detransitioners who underwent treatment when they were minors, bring a class action lawsuit and against whom?
| -1 |
https://law.stackexchange.com/questions/90647/can-adult-detransitioners-who-underwent-treatment-when-they-were-minors-bring-a
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CC BY-SA 4.0
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<p>I notice that, on social media, there are numbers of videos by detransitioners, or those unable to reverse their procedures, expressing their regret for a childhood decision that was facilitated by medical and other professionals but now regretted.</p>
<p>They may now be adults or indeed still minors but what they have in common is that they transitioned as minors.</p>
<p>If they wanted to band together and bring a class action, who might they sue and on what grounds?</p>
<p>I am mainly interested in US and UK law but other countries are of interest.</p>
<hr />
<blockquote>
<p>Doctors Have Failed Them, Say Those Who Regret Transitioning Written
by Alicia Ault March 22, 2022
<a href="https://www.webmd.com/sex-relationships/news/20220322/doctors-have-failed-them-say-those-who-regret-transitioning" rel="nofollow noreferrer">https://www.webmd.com/sex-relationships/news/20220322/doctors-have-failed-them-say-those-who-regret-transitioning</a></p>
<p>'I feel angry': Why some people regret and reverse their transgender
decisions 'I’m angry that every single doctor and therapist we saw
told us this was the one and only option' Author of the article:Tom
Blackwell Published Dec 14, 2020
<a href="https://nationalpost.com/news/canada/i-feel-angry-why-some-people-regret-and-reverse-their-transgender-decisions" rel="nofollow noreferrer">https://nationalpost.com/news/canada/i-feel-angry-why-some-people-regret-and-reverse-their-transgender-decisions</a></p>
<p>Blockquote</p>
</blockquote>
| 90,647 |
[
{
"answer_id": 90669,
"body": "<p>Informed consent is required for a surgical procedure. "Informed" includes having knowledge of the risks. The relevant legal question would be whether the doctor in question did adequately apprise the patient of the risks.</p>\n<p>On an individual basis, patient A could sue doctor X for the resulting harm. It is possible that 5 patients might sue the same doctor on this basis, which gets expensive and inefficient. If there is a well-defined and large-enough class, it may be possible for the action to be certified as a class action. 20 people might be a large-enough class.</p>\n<p>The defendant would be "whoever is responsible for the wrong". That might be a single practitioner, or a hospital that the practitioner(s) work for. The hospital is an obvious plaintiff, if they failed in their duty to assure that their employees adequately informed patients of the risk.</p>\n",
"score": 3
}
] |
[
"united-states",
"united-kingdom",
"minor",
"class-action",
"transgender"
] |
Sharing name logos made with copyrighted fonts
| -1 |
https://law.stackexchange.com/questions/90694/sharing-name-logos-made-with-copyrighted-fonts
|
CC BY-SA 4.0
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<p>Is it legal to share name logos for free that I made using copyrighted fonts? Do I need to write which font I used?</p>
| 90,694 |
[
{
"answer_id": 90699,
"body": "<p>It depends what the license for the font says.</p>\n<p>The license for Windows fonts, for example, allows pretty much anything including commercial use. You can freely design and distribute a logo containing Comic Sans!</p>\n",
"score": 1
},
{
"answer_id": 90701,
"body": "<p><a href=\"/questions/tagged/united-kingdom\" class=\"post-tag\" title=\"show questions tagged 'united-kingdom'\" aria-label=\"show questions tagged 'united-kingdom'\" rel=\"tag\" aria-labelledby=\"tag-united-kingdom-tooltip-container\">united-kingdom</a></p>\n<p>As far as <strong>copyright</strong> goes, such acts are explicitly allowed in the United Kingdom.</p>\n<blockquote>\n<ol start=\"54\">\n<li>(1) It is not an infringement of copyright in an artistic work consisting of the design of a typeface—<br />\n(a) to use the typeface in the ordinary course of typing, composing text, typesetting or printing,<br />\n(b) to possess an article for the purpose of such use, or<br />\n(c) to do anything in relation to material produced by such use;<br />\nand this is so notwithstanding that an article is used which is an infringing copy of the work.</li>\n</ol>\n<p>— <a href=\"https://www.legislation.gov.uk/ukpga/1988/48/section/54\" rel=\"nofollow noreferrer\">Copyright Designs & Patents Act 1998</a></p>\n</blockquote>\n<p>A licence cannot impose copyright restrictions on acts which are explicitly allowed in legislation. You are using a typeface (section 54(1)(a)) and distributing material produced (section 54(1)(c)).</p>\n<p>The licence could regulate other acts.</p>\n",
"score": 1
}
] |
[
"copyright"
] |
Is it really legal to turn right from the lane nearest and to the right of the yellow line into the lane nearest and to the right of the yellow line?
| 1 |
https://law.stackexchange.com/questions/90670/is-it-really-legal-to-turn-right-from-the-lane-nearest-and-to-the-right-of-the-y
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CC BY-SA 4.0
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<p>Is it really legal (traffic law in Alberta) to turn right from the lane nearest and to the right of the yellow line into the lane nearest and to the right of the yellow line, as shown in the following image? Shouldn't the car turn from the lane nearest and to the right of the yellow line into the lane furthest and to the right of the yellow line instead? I apologize for not being able to share the link that contains the image because it's part of a password protected online video. Thank you!</p>
<p><a href="https://i.stack.imgur.com/BHKN3.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/BHKN3.jpg" alt="enter image description here" /></a></p>
| 90,670 |
[
{
"answer_id": 90673,
"body": "<h1>Probably not.</h1>\n<p>I'm not sure about Canadian traffic laws, but I know that changing lanes while turning is illegal where I live. If you turn from the leftmost lane travelling in your direction on one road into the same lame of the new road, you're remaining in your lane. If everyone remains in their lane, traffic can flow smoothly around the corner. If people can change their lanes while turning, then you open the door for traffic chaos as cars weave around each other while turning. It's not safe.</p>\n",
"score": 1
}
] |
[
"traffic"
] |
Is it legal for a company to require you to delete your account to unsubscribe from marketing emails?
| 22 |
https://law.stackexchange.com/questions/90467/is-it-legal-for-a-company-to-require-you-to-delete-your-account-to-unsubscribe-f
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CC BY-SA 4.0
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<p>I'm subscribed to "Visual Studio Dev Essentials" (so that I can download older versions of Visual Studio from the Microsoft website), but they are sending me unwanted marketing emails regarding both Visual Studio Dev Essentials, and other products.</p>
<p>In the footer of the email, it says that to unsubscribe from the emails, I must unsubscribe from the service, which I don't want to do.</p>
<p>Is this legal? Note that I'm based in the UK, but Microsoft (the parent company at least) is based in the US.</p>
| 90,467 |
[
{
"answer_id": 90493,
"body": "<p>No, it's not legal.</p>\n<p>The General Data Protection Regulations (GDPR) apply given that you are in the UK (regardless of where the Data Processor is based). The <a href=\"https://en.wikipedia.org/wiki/General_Data_Protection_Regulation#United_Kingdom_implementation\" rel=\"nofollow noreferrer\">UK GDPR is slightly modified due to Brexit</a>, but the same principles apply.</p>\n<p>The only plausible legal basis for this actions would be that you <strong>consent</strong> to it, and you're entitled to withdraw that consent at any time.</p>\n<p>Some may claim that <a href=\"https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679#L_2016119EN.01000101-d-002\" rel=\"nofollow noreferrer\">Article 6.1(b)</a> applies, i.e. that it's <em>necessary</em> to send marketing email in order to fulfil the contract, but GDPR is clear that bundling such consent into a contract for service simply to permit the data processor additional actions isn't allowed, as I'll demonstrate.</p>\n<p>UK GDPR requires that consent to use your personal information (in this case, your email address) for the stated purpose be <em>freely given</em>.</p>\n<p>Consent to use your information for direct marketing is not freely given if it's inseparable from the consent to use it for some other service, as per <a href=\"https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679#ntc10-L_2016119EN.01000101-E0010\" rel=\"nofollow noreferrer\">para 43</a>:</p>\n<blockquote>\n<p>Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance.</p>\n</blockquote>\n<p>And <a href=\"https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32016R0679#L_2016119EN.01000101-d-002\" rel=\"nofollow noreferrer\">Article 7.4</a> backs this up with</p>\n<blockquote>\n<p>When assessing whether consent is freely given, utmost account shall be taken of whether, <em>inter alia</em>, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.</p>\n</blockquote>\n<p>The intent of Article 6.1(b) is that only the processing <em>required</em> for the service you have bought is allowed (e.g. if you supply your address for delivery of stuff you've bought, the data processor can use that address to send you the stuff, but is not allowed to add a contract term that allows them to send you unwanted stuff).</p>\n<p>Examples of emails that Article 6.1(b) would allow (in my assessment) include things such as notification of upcoming downtime, or a reminder that subscriptions are due, but not unsolicited advertisements for other products. There's a grey area that's open to interpretation, where adverts are piggybacked onto actual service messages.</p>\n",
"score": 20
},
{
"answer_id": 90468,
"body": "<p>Unless a stipulation in a contract is clearly illegal in the contract's stated jurisdiction, it's legal to have it in a contract, and the Terms of Service (TOS) you clicked through is a contract. If you don't like the TOS, and the fact that you agreed to receive marketing emails, you don't have to use Microsoft's service.</p>\n<p>Edit re: comments:\nYes, processing personal information in terms of emails addresses under the DPA does take place, when signing up for or closing an account. You seem to be interpreting that processing personal information takes place when Microsoft simply <em>sends</em> an email; I don't see that.</p>\n<p>And, don't forget that Microsoft is a huge company with the best lawyers money can buy; they would certainly try very hard to not violate GDPR or DPA with a TOS or marketing tactics, as they have too much to lose in the international market.</p>\n",
"score": 14
},
{
"answer_id": 90473,
"body": "<p>Being in the UK you probably fall under the GDPR (unless the UK removed itself from that, I don't think they did).</p>\n<p>The GDPR gives you the right to have your data removed from a database upon request, it does NOT stipulate that such removal have no consequences when it comes to receiving services and products from the entity your data was stored by. It also requires that only data required for the performance of the service be retained, meaning that the data you requested be removed is data needed to provide the service. Thus you want your email address to be removed, your email address is needed to provide you the service of attaining those downloads, thus removal of your email address makes providing you those downloads impossible.</p>\n<p>You can of course always just create a filter in your email client that automatically deletes any and all emails you don't want to read.</p>\n",
"score": 3
},
{
"answer_id": 90522,
"body": "<p>According to the <a href=\"https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-316\" rel=\"nofollow noreferrer\">CAN-SPAM Act</a>:</p>\n<blockquote>\n<p>§ 316.5 Prohibition on charging a fee or imposing other requirements on recipients who wish to opt out.</p>\n<p>Neither a sender nor any person acting on behalf of a sender may require that any recipient pay any fee, provide any information other than the recipient's electronic mail address and opt-out preferences, or take any other steps except sending a reply electronic mail message or visiting a single Internet Web page, in order to:</p>\n<p>(a) Use a return electronic mail address or other Internet-based mechanism, required by 15 U.S.C. 7704(a)(3), to submit a request not to receive future commercial electronic mail messages from a sender; or</p>\n<p>(b) Have such a request honored as required by 15 U.S.C. 7704(a)(3)(B) and (a)(4).</p>\n</blockquote>\n<p>Looking at § 316.3 Primary purpose, the described messages almost certainly would not be considered transactional since 316.3(a)(3)(ii) says:</p>\n<blockquote>\n<p>A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is the commercial advertisement or promotion of a commercial product or service. Factors illustrative of those relevant to this interpretation include the placement of content that is the commercial advertisement or promotion of a commercial product or service, in whole or in substantial part, at the beginning of the body of the message; the proportion of the message dedicated to such content; and how color, graphics, type size, and style are used to highlight commercial content.</p>\n</blockquote>\n<p>So requiring you to login and delete your account goes beyond what is allowed for compliance with the act ("provide any information other than the recipient's mail address").</p>\n<p>Since Microsoft is a US corporation, they would be held to the CAN-SPAM act. I don't think you can personally make an FTC complaint that they are violating the act, but anyone else in the US should be able to make a claim.</p>\n",
"score": 2
},
{
"answer_id": 90547,
"body": "<p>The corner point here is that the <em>user agreement</em> <strong>is</strong> a contract between you and Microsoft, and that <em>contract</em> clearly states that all along the program life, you will receive marketing emails.</p>\n<p>If that contract is in contradiction with other general laws, what matters is the precedence rule observed in both the UK and the USA. AFAIK (but IANAL) in France and more generally in the EU, the rule is that a European law prevails over a national law which in turn prevails over a private contract. The rule is that if an article of the contract is illegal it is supposed not to exist. But I had been told that in the UK a contract could prevail over a more general law, and the UK is no longer in the EU.</p>\n",
"score": 1
}
] |
[
"terms-of-service",
"email",
"spam",
"email-marketing"
] |
What does it mean for an act to be committed in consequence of abetment? (India)
| 0 |
https://law.stackexchange.com/questions/90609/what-does-it-mean-for-an-act-to-be-committed-in-consequence-of-abetment-india
|
CC BY-SA 4.0
|
<p>There are 3 forms of abetment:</p>
<ol>
<li><p>abetment by instigation</p>
</li>
<li><p>abetment by intentional aiding</p>
</li>
<li><p>abetment by conspiracy</p>
</li>
</ol>
<p><a href="https://devgan.in/ipc/chapter_05.php" rel="nofollow noreferrer">https://devgan.in/ipc/chapter_05.php</a></p>
<p>for further information.</p>
<p>There are different punishments for if an act is commited in consequence of abetment or not in consequence of abetment.</p>
<p>Let's say if someone impressionable (like a child or insane person) does something as a result of instigation and encouragement, would that qualify as an act done in conseuqnece of the abetment ?</p>
| 90,609 |
[
{
"answer_id": 90615,
"body": "<p>While I don't have a definitive answer to this question, I am spelling out the issues latent in the question so it is clear to anyone reading it or looking for cases on point what is really going on in the question.</p>\n<p>The <a href=\"https://devgan.in/ipc/chapter_05.php#s109\" rel=\"nofollow noreferrer\">Indian crime of instigation of abetment</a> is what most U.S. jurisdictions would call solicitation to commit a crime.</p>\n<blockquote>\n<p>let's say if someone impressionable (like a child or insane person)\ndoes something as a result of instigation and encouragement would that\nqualify as an act done in consequence of the abetment?</p>\n</blockquote>\n<p>The general rule is that is you ask or direct someone to commit a crime, and they commit that crime, you are guilty of instigation of abetment of that crime with the same punishment as committing the crime yourself.</p>\n<p>This rule clearly applies when the child or mentally ill person is capable of being guilty of the crime. There is no reason for it not to apply.</p>\n<p>The hard question is whether you can be guilty of abetment of a crime that the person who carries out the acts that would otherwise constitute the crime lacks the mental capacity or age to be guilty of the crime due to insufficient age or insanity or a lack of cognitive ability to form the necessary intent to commit the crime.</p>\n<p>Are you absolved of a crime that you knew was a crime, because the pawn you directed to carry it out lacked the ability to know what they were doing was wrong?</p>\n<p>For example, what if you ask your three year old to shoot the nice lady at the front door in the head with a gun, and the three year old, not realizing what that means, goes ahead and does it. Are you guilty of abetment by instigating of the crime of shooting the women that the three year old child shot?</p>\n<p>The answer clearly should be "yes."</p>\n<p>You should be guilty of abetment by instigating a crime if the person you directed or encouraged to commit a crime did something that would be a crime, if you had done what you directed or encouraged them to do, even if the person who carried out your direction would never be someone who could be found guilty of that due to young age or an insanity defense or some other inability to have the necessary intent.</p>\n<p>But, I don't have access to case law or legal authorities to confirm that conclusion under this statute in India. I'm sure that there is a case on point somewhere, however.</p>\n",
"score": 2
}
] |
[
"india"
] |
Can someone be prosecuted for something that was legal when they did it?
| 14 |
https://law.stackexchange.com/questions/90600/can-someone-be-prosecuted-for-something-that-was-legal-when-they-did-it
|
CC BY-SA 4.0
|
<p>This sounds similar to this question, which keeps being used in AI and web search queries:</p>
<p><a href="https://law.stackexchange.com/questions/24971/what-if-i-did-something-that-was-a-crime-but-has-now-become-legal">What if I did something that was a crime, but has now become legal?</a></p>
<p>Can someone be prosecuted for something that was legal when they did it?</p>
| 90,600 |
[
{
"answer_id": 90604,
"body": "<p>In the US <a href=\"/questions/tagged/usa\" class=\"post-tag\" title=\"show questions tagged 'usa'\" aria-label=\"show questions tagged 'usa'\" rel=\"tag\" aria-labelledby=\"tag-usa-tooltip-container\">usa</a>, at least, the concept of ex post facto laws, which is what you have described, are specifically prohibited:</p>\n<blockquote>\n<p>Article I, Section 9, Clause 3:</p>\n<p>No Bill of Attainder or ex post facto Law shall be passed.</p>\n</blockquote>\n",
"score": 30
},
{
"answer_id": 90636,
"body": "<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a> <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a></p>\n<p><strong>Yes, but only in some jurisdictions, and only under special circumstances.</strong></p>\n<p>What you describe is the retrospective application of a law that didn't exist when the action was committed. The legal term is <a href=\"https://en.wikipedia.org/wiki/Ex_post_facto_law\" rel=\"noreferrer\"><em>ex post facto law.</em></a>.</p>\n<p>In most jurisdictions laws can not be applied retroactively. In the U.S., the constitution forbids <em>ex post facto law</em> both on the federal (Article I, Section 9, Clause 3: "No Bill of Attainder or ex post facto Law shall be passed" and state (Article I, Section 10, Clause 1: "No State shall [...] pass any [...] ex post facto Law") level. In Germany, Art. 103 Abs.2 stipulates: "Eine Tat kann nur bestraft werden, wenn die Strafbarkeit gesetzlich bestimmt war, bevor die Tat begangen wurde." ("An act can only be punished if it was punishable by law before the act was committed.")<sup>1</sup></p>\n<p>The rationale is the very <em>raison d'etre</em> of codified law, namely <em>legal certainty.</em> An individual must ideally be able to determine whether an action is legal or not, at the time they want to commit it. The prospect of future law changes which change the legality retroactively puts the individual in a state of legal insecurity, the exact opposite of what codified law strives to achieve. This very basic consideration makes the non-retroactivity a correspondingly strong principle.</p>\n<p>However, in Germany and probably other civil law jurisdictions, this principle finds its limits where its legal consequences are perceived as unbearably unjust. A relatively recent exception was made in the 1990s when GDR border guards were tried who killed fugitive unarmed GDR citizens. Some of them were convicted even though GDR law at that time probably made the killings legal. For example, the shooters were commended and received bonuses.</p>\n<p>The convictions were challenged in the constitutional court which <a href=\"https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/1996/10/rs19961024_2bvr185194.html\" rel=\"noreferrer\">ruled</a>:</p>\n<blockquote>\n<ol start=\"2\">\n<li><p><strong>Das strikte Rückwirkungsverbot des Art. 103 Abs. 2 GG findet seine rechtsstaatliche Rechtfertigung in der besonderen Vertrauensgrundlage, welche die Strafgesetze tragen, wenn sie von einem an die Grundrechte gebundenen demokratischen Gesetzgeber erlassen werden.</strong></p>\n</li>\n<li><p><strong>An einer solchen besonderen Vertrauensgrundlage fehlt es, wenn der Träger der Staatsmacht für den Bereich schwersten kriminellen Unrechts die Strafbarkeit durch Rechtfertigungsgründe ausschließt, indem er über die geschriebenen Normen hinaus zu solchem Unrecht auffordert, es begünstigt und so die in der Völkerrechtsgemeinschaft allgemein anerkannten Menschenrechte in schwerwiegender Weise mißachtet. Der strikte Schutz von Vertrauen durch Art. 103 Abs. 2 GG muß dann zurücktreten.</strong></p>\n</li>\n</ol>\n</blockquote>\n<p>To paraphrase: The criminal code can only be trusted, and the prohibition of a retroactive application according to Art. 103 Abs. 2 GG is only applicable, if the law has been enacted by a lawful democratic government. This trust in the law is lacking when a government encourages most serious crimes and thusly flagrantly disregards generally acknowledged human rights. In such cases, the strict trust established by Art. 103 Abs. 2 GG must stand back.</p>\n<p>In this decision, the constitutional court explicitly referred to the "<a href=\"https://en.wikipedia.org/wiki/Radbruch_formula\" rel=\"noreferrer\">Radbruch formula</a>",</p>\n<blockquote>\n<p>a legal theory which was first formulated in a 1946 essay by the German law professor and politician Gustav Radbruch. According to the theory, a judge who encounters a conflict between a statute and what he perceives as just, has to decide against applying the statute if – and only if – the legal concept behind the statute in question seems either "unbearably unjust" or in "deliberate disregard" of human equality before the law.</p>\n</blockquote>\n<p>Radbruch had developed this position in 1946 under the impression of the Nazi crimes. Its applicability to GDR crimes was debated. While everybody agreed that the Nazis were objectively evil and unlawful, the assessment of the GDR government was less clear. The constitutional court decided that it was objectively unlawful enough that the border guards should have been able to realize that their actions were objective crimes, regardless of the positive law.</p>\n<hr />\n<p><sup>1</sup>The common exception is that a <em>milder</em> later law takes precedence over the stricter law valid at the time of the action. The rationale is obvious: It would be perceived as unjust to continue a criminal trial, e.g. for smoking pot a couple years ago, while outside the courtroom the prosecutor is sharing a joint with his friends.</p>\n",
"score": 24
},
{
"answer_id": 90635,
"body": "<p>mostly <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a> and <a href=\"/questions/tagged/european-convention-on-human-rights\" class=\"post-tag\" title=\"show questions tagged 'european-convention-on-human-rights'\" aria-label=\"show questions tagged 'european-convention-on-human-rights'\" rel=\"tag\" aria-labelledby=\"tag-european-convention-on-human-rights-tooltip-container\">european-convention-on-human-rights</a></p>\n<p>This is covered by the legal principle <em><strong><a href=\"https://en.wikipedia.org/wiki/Nulla_poena_sine_lege\" rel=\"noreferrer\">nulla poena sine lege praevia</a></strong></em> (no punishment without prior law) or equivalently, the banishment of <em>ex post facto</em> laws. This is encoded in Section 1 of the German Criminal Code (<a href=\"https://www.gesetze-im-internet.de/stgb/__1.html\" rel=\"noreferrer\">German</a>, <a href=\"https://www.iuscomp.org/gla/statutes/StGB.htm#1\" rel=\"noreferrer\">English</a>):</p>\n<blockquote>\n<p>Eine Tat kann nur bestraft werden, wenn die Strafbarkeit gesetzlich bestimmt war, bevor die Tat begangen wurde.</p>\n<p>An act may only be punished if its punishability was determined by law before the act was committed.</p>\n</blockquote>\n<p>However, the <em><strong><a href=\"https://en.wikipedia.org/wiki/Radbruch_formula\" rel=\"noreferrer\">Radbruch formula</a></strong></em> is a principle that overrides this. It briefly states that existing law must be ignored if it is unbearably unjust. It has been applied to prosecute (and sentence) deeds committed in Nazi Germany and East Germany that were arguably legal in those jurisdictions. As far as I can tell, it has been last applied in 2004 against GDR politicians for ordering the shooting of people fleeing the GDR across the German–German border.</p>\n<p>Something similar is encoded in <a href=\"https://en.wikipedia.org/wiki/Article_7_of_the_European_Convention_on_Human_Rights\" rel=\"noreferrer\">Article 7 of the European Convention on Human Rights</a>:</p>\n<blockquote>\n<h3>No punishment without law</h3>\n<ol>\n<li>No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.</li>\n<li>This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.</li>\n</ol>\n</blockquote>\n<p>This encodes <em>nulla poena sine lege praevia,</em> but also an exception for cases where law clashes with fundamental principles.</p>\n",
"score": 18
},
{
"answer_id": 90612,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"tag-canada-tooltip-container\">canada</a></p>\n<p><a href=\"https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art11g.html\" rel=\"noreferrer\">Section 11(g) of the <em>Canadian Charter of Rights and Freedoms</em></a> says that any person charged with an offence has the right:</p>\n<blockquote>\n<p>not to be found guilty on account of any act or omission unless, <strong>at the time of the act or omission, it constituted an offence</strong> under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations</p>\n</blockquote>\n",
"score": 12
},
{
"answer_id": 90641,
"body": "<p>In <a href=\"/questions/tagged/france\" class=\"post-tag\" title=\"show questions tagged 'france'\" aria-label=\"show questions tagged 'france'\" rel=\"tag\" aria-labelledby=\"tag-france-tooltip-container\">france</a>, per <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006417180/\" rel=\"nofollow noreferrer\">article 112-1 du code pénal</a>:</p>\n<blockquote>\n<p>Sont seuls punissables les faits constitutifs d'une infraction à la date à laquelle ils ont été commis.</p>\n<p>Peuvent seules être prononcées les peines légalement applicables à la même date.</p>\n<p>Toutefois, les dispositions nouvelles s'appliquent aux infractions commises avant leur entrée en vigueur et n'ayant pas donné lieu à une condamnation passée en force de chose jugée lorsqu'elles sont moins sévères que les dispositions anciennes.</p>\n</blockquote>\n<p>Which DeepL translates into:</p>\n<blockquote>\n<p>Only acts constituting an offence on the date they were committed are punishable.</p>\n<p>Only the penalties legally applicable on the same date may be imposed.</p>\n<p>However, the new provisions apply to offences committed before their entry into force and which have not given rise to a conviction that has become res judicata when they are less severe than the old provisions.</p>\n</blockquote>\n<p>This can be summarised as "non-rétroactivité de la loi pénale", which means you cannot be charged for something you committed before the law came to exist.</p>\n<p>As far as I know, there are only two exceptions to that:</p>\n<ul>\n<li>If you were in the process of being prosecuted for something which was already forbidden and a new law decreed a reduced sentence, you shall benefit from it. Example: if you were to be condemned to death sentence, and a new law abolished it, then you will no longer be sentenced to death.</li>\n<li><a href=\"https://en.wikipedia.org/wiki/Crimes_against_humanity\" rel=\"nofollow noreferrer\">Crimes against humanity</a> is a notion that came to existence only after the events of World War II. Even so, you can be prosecuted for crimes you committed even before the laws existed, per <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006417551/2000-09-21\" rel=\"nofollow noreferrer\">article 213-5 du code pénal</a>:</li>\n</ul>\n<blockquote>\n<p>L'action publique relative aux crimes prévus par le présent titre, ainsi que les peines prononcées, sont imprescriptibles.</p>\n</blockquote>\n<p>Translated by DeepL into:</p>\n<blockquote>\n<p>There is no statute of limitations on the prosecution of the crimes provided for in this Title, nor on the penalties imposed.</p>\n</blockquote>\n",
"score": 3
},
{
"answer_id": 90666,
"body": "<p>In theory, if a law changed at midnight, Jan 1st, and you committed something that changed from non-crime to crime or vice versa, just around midnight, you could be prosecuted. The prosecutor would have to prove beyond reasonable doubt not only that you did the act, but also that you acted on the wrong side of the time of the law change. So far that is normal, if the prosecutor sees a good chance to convict you, they will take you to court, and sometimes they lose.</p>\n<p>But courts get it wrong sometimes, so you <em>might</em> even be convicted when you shouldn't be. For example if you committed an act at 15 minutes past midnight, and a witness claims they say you do it 15 minutes before midnight - and doesn't realise their watch stopped.</p>\n",
"score": 2
}
] |
[
"criminal-law",
"ex-post-facto"
] |
What is plagiarism legally?
| 5 |
https://law.stackexchange.com/questions/90629/what-is-plagiarism-legally
|
CC BY-SA 4.0
|
<p>We all learn from books and our environment.</p>
<p>I was trying to teach my kids what is money so I told and wrote:</p>
<p>"<strong>Money is the third good that everyone wants.</strong>"</p>
<p>The above is an idea that I read in some book long time ago (I cannot recollect the name of the book) or some teacher/friend told me in class/conversation (I could not even remember).</p>
<p>If I was writing that statement in the school or some other public settings, who should I give the credit to?</p>
<p>On a more simple level, if I write following two statements.</p>
<blockquote>
<p>Earth is larger than moon.</p>
</blockquote>
<blockquote>
<p>Sun is larger than earth.</p>
</blockquote>
<p>Then who should I give credit for so I am not blamed for plagiarism?</p>
| 90,629 |
[
{
"answer_id": 90632,
"body": "<p>Plagiarism is an <strong>academic</strong> category about the thoughts from another scholar/author. Copyright is a <strong>legal</strong> category about the words of another writer.</p>\n<ul>\n<li>When a student or a degree candidate present a paper or a thesis, they implicitly or explicitly claim that it is <em>their original work</em>, except for sections which are marked as the work of others. With a thesis for a degree, there may be a form where the candidate confirms this in writing, which brings the law back into the academic sphere.</li>\n<li>There are many situations in a school or even university context where there is no such claim of originality. Imagine the exam question "what is the third law of thermodynamics?" There would be no need for the student to give a source, because nobody asked for it and nobody could possibly believe that the student just invented that law. If the question was about who discovered the third law, they should say so.</li>\n</ul>\n<p>Schools which prepare their students for academic work should introduce both concepts and train their students in proper citation at some point. But not too early.</p>\n",
"score": 15
},
{
"answer_id": 90657,
"body": "<h2>Plagiarism is not a legal concept</h2>\n<p>Copyright violation is. Patent infringement is. Plagiarism is not.</p>\n<p>Plagiarism is academic misconduct - it has no legal definition. It is a matter for the academy in general and any specific institutions involved to deal with.</p>\n<p>Just like cheating in a sporting event is not a matter for the law. Lance Armstrong faced no legal sanction for doping, just sanctions within the sport of cycling and the court of public opinion.</p>\n<h2>What is plagiarism?</h2>\n<p><a href=\"https://www.ox.ac.uk/students/academic/guidance/skills/plagiarism\" rel=\"noreferrer\">Oxford University</a> defines it as:</p>\n<blockquote>\n<p>Plagiarism is presenting work or ideas from another source as your own, with or without consent of the original author, by incorporating it into your work without full acknowledgement. All published and unpublished material, whether in manuscript, printed or electronic form, is covered under this definition, as is the use of material generated wholly or in part through use of artificial intelligence (save when use of Artificial Intelligence - AI for assessment has received prior authorisation e.g. as a reasonable adjustment for a student’s disability). Plagiarism can also include re-using your own work without citation. Under the regulations for examinations, intentional or reckless plagiarism is a disciplinary offence.</p>\n</blockquote>\n<p>Other institutions will have slightly different definitions but the general concept is that plagiarism is failure to give credit where credit is due.</p>\n<p>If you credit work and ideas you aren’t committing plagiarism. But you might be committing copyright violation if you copy work without permission even if you credit it.</p>\n<p>Similarly, you aren’t committing copyright violation if you have permission, the work is public domain, or are only copying ideas (because ideas don’t have copyright). But you will be committing plagiarism if you don’t credit it.</p>\n<h2>What is the domain of plagiarism?</h2>\n<p>Primarily academia. A work submitted for assessment or publication should be free of plagiarism. If it isn’t, that would generally be considered academic misconduct and expose the perpetrator to, at least, criticism and possibly sanction. How strictly plagiarism is enforced depends on both the author and the institution- a professor will be held to a higher standard than an undergraduate who will be held to a higher standard than a high school student and so on. Pre-school students are hardly ever sanctioned for plagiarism.</p>\n<p>Secondarily in literature or art. An author or artist whose work is highly derivative (even if not copyright violation) might be accused of plagiarism. For example, at the time of publication, <em>The Lord of the Rings</em> was criticised for plagiarising Wagner’s opera <em>Der Ring des Nibelungen</em>.</p>\n<h2>Must everything be cited?</h2>\n<p>Back to Oxford:</p>\n<blockquote>\n<p>If you are substantially indebted to a particular argument in the formulation of your own, you should make this clear both in footnotes and in the body of your text according to the agreed conventions of the discipline, before going on to describe how your own views develop or diverge from this influence.</p>\n<p>On the other hand, it is not necessary to give references for facts that are common knowledge in your discipline. If you are unsure as to whether something is considered to be common knowledge or not, it is safer to cite it anyway and seek clarification. You do need to document facts that are not generally known and ideas that are interpretations of facts.</p>\n</blockquote>\n<h2>Your examples</h2>\n<p>"Money is the third good that everyone wants" definitely needs citation. It’s a pithy little quote and you don’t want people thinking it’s yours. So, despite your best efforts, you can’t find who said it; what do you do?</p>\n<ol>\n<li>Don’t use it.</li>\n<li>Cite it as “Author unknown, circa. 1975”. That way you aren’t claiming credit for it and you give further investigators somewhere to start.</li>\n</ol>\n<p>The relative size of heavenly bodies can be considered “facts that are common knowledge in your discipline” as these would be learnt very early in any academic career and can be safely uncited. Of course, any publication that relies on such basic facts is probably not sufficiently “academic” that plagiarism is an issue.</p>\n",
"score": 7
},
{
"answer_id": 90630,
"body": "<p>Plagiarism is assuming your authorship of what you did not write/create.</p>\n<blockquote>\n<p>who should I give credit for so I am not blamed for Plagiarism</p>\n</blockquote>\n<p>You don't have to give credit to anyone. Just don't give it to yourself.</p>\n<p>For statements that bear originality (like the one about money) it would be always nice of course to give credit to the actual author.</p>\n<p>Mere statements of well-known facts (like about the sizes of celestial bodies) lack originality and do not need credits.</p>\n<p>Note that not committing plagiarism does not mean not committing copyright infringement: you are not allowed to make copies just by virtue of being sincere as to who the real author is.</p>\n",
"score": 5
},
{
"answer_id": 90684,
"body": "<p>Plagiarism is an academic concept, which in some cases is formalized in a rule or contract that has some legal force. The penalty is normally to allow the school to take some action on its own, without the legal system ever getting involved, such as expulsion.</p>\n<p>A court might get involved in a situation where your publisher claims you violated your book contract and wants to get back the advance it paid you, where you sue someone for defaming you by falsely calling you a “plagiarist,” or where you sue a college that punished you. All of these would be civil cases, not criminal, and typically the accused plagiarist is the one who would sue over the harm done by the allegation.</p>\n<p>If the case turns on the semantics of whether what you did constitutes “plagiarism,” a judge would first look for some specific definition that applies to this context, such as a written policy on academic misconduct that the student agreed to abide by. If there isn’t one, the judge often consults one or more dictionaries and then decides what the word means, or it might be up to the jury to decide whether what someone said is legally defamatory in the context where they said it.</p>\n<p>Sometimes, a jurisdiction makes an official regulation against plagiarism, relating to a school it runs. For instance:</p>\n<p><a href=\"/questions/tagged/oregon\" class=\"post-tag\" title=\"show questions tagged 'oregon'\" aria-label=\"show questions tagged 'oregon'\" rel=\"tag\" aria-labelledby=\"tag-oregon-tooltip-container\">oregon</a></p>\n<p>There is one official regulation about Plagiarism in the state of Oregon. <a href=\"https://oregon.public.law/rules/oar_259-012-0010\" rel=\"nofollow noreferrer\">Oregon Administrative Rule Rule 259-012-0010 </a>, covering “Standards of Student Conduct” for the Oregon Department of Public Safety Standards and Training, lists “plagiarism” as a form of misconduct that “may result in dismissal from the Academy.” It’s not defined further.</p>\n",
"score": 1
}
] |
[
"copyright",
"intellectual-property"
] |
What is the “prayer” in a claim?
| 4 |
https://law.stackexchange.com/questions/90627/what-is-the-prayer-in-a-claim
|
CC BY-SA 4.0
|
<p>A blog refers to certain things not having been pleaded/specified in the “prayer”. What does this refer to?</p>
| 90,627 |
[
{
"answer_id": 90628,
"body": "<p>the <a href=\"https://dictionary.law.com/Default.aspx?selected=1571\" rel=\"nofollow noreferrer\">Legal Dictionary</a> includes this definition:</p>\n<blockquote>\n<p>the specific request for judgment, relief and/or damages at the conclusion of a complaint or petition.</p>\n</blockquote>\n",
"score": 6
}
] |
[
"england-and-wales",
"legal-terms"
] |
Amazon 3rd party seller shipped me a book in US which clearly say "For sale in Indian subcontinent only"
| 2 |
https://law.stackexchange.com/questions/59260/amazon-3rd-party-seller-shipped-me-a-book-in-us-which-clearly-say-for-sale-in-i
|
CC BY-SA 4.0
|
<p>What legal options do I have if an Amazon 3rd party seller shipped me a book in US which clearly says "For sale in Indian subcontinent only" ?</p>
<p>I'd like to get a US edition book and get some penalties enforced on the seller who is selling illegal items in US.</p>
<p>I ordered a new book in US from a 3rd party seller on Amazon.com, to be shipped to a US address.</p>
| 59,260 |
[
{
"answer_id": 59271,
"body": "<p>First, the seller has not violated copyright law by selling you this book. <a href=\"https://arstechnica.com/tech-policy/2013/03/thai-student-protected-by-first-sale-supreme-court-rules/\" rel=\"noreferrer\">Kirtsaeng v. John Wiley & Sons, Inc.</a> provides the precedent. The Supreme Court ruled that the First Sale doctrine applies to "grey market" imports of books, so buying a book cheaply in another country and then shipping it to the USA is entirely legal, regardless of what the publisher would like.</p>\n<p><a href=\"https://supreme.justia.com/cases/federal/us/568/519/\" rel=\"noreferrer\">The court</a> wrote:</p>\n<blockquote>\n<p>Putting section numbers to the side, we ask whether the “first sale” doctrine applies to protect a buyer or other lawful owner of a copy (of a copyrighted work) lawfully manufactured abroad. Can that buyer bring that copy into the United States (and sell it or give it away) without obtaining permission to do so from the copyright owner? Can, for example, someone who purchases, say at a used bookstore, a book printed abroad subsequently resell it without the copyright owner’s permission?</p>\n</blockquote>\n<blockquote>\n<p>In our view, the answers to these questions are, yes.</p>\n</blockquote>\n<p><a href=\"https://en.wikipedia.org/wiki/Kirtsaeng_v._John_Wiley_%26_Sons,_Inc.\" rel=\"noreferrer\">Wikipedia</a> also has an article on the case.</p>\n<p>As for your recourse against the seller, this would seem to be very limited unless they specifically promised you the US edition, or the content is materially different between US and Indian editions. You don't say what kind of book this is. Textbooks typically have identical content. Fiction and other entertainment books generally have local idioms and terminology changed (e.g. "pavement" versus "sidewalk") but will otherwise be the same. You <em>might</em> be able to claim that this is a material difference, but its likely to be difficult.</p>\n",
"score": 8
},
{
"answer_id": 59263,
"body": "<p>I assume that this is Amazon US and a US used-book dealer. The "For sale in India only" condition is a contractual relationship between the publisher and sellers in India. From the perspective of US law, it is perfectly legal to buy an India-only copy in India, then re-sell it in the US. For all you know, somebody brought a copy with them to the US and did just that. The reseller (presumably) has no contractual relation with the publisher, and even if they did, <em>you</em> can't sue the reseller for breach of the India-only contract with the publisher. The only party that has legal recourse based on the "India sale only" restriction is the publisher. However, given the likely physical differences between the US edition and the India edition, you have arguably been harmed (therefore can sue) – you didn't get what you reasonably believed that you were buying. If there was a clear sign that this deal was too good to be true (new copy of a book at 10% of market price) then the courts would probably say that you should have known what you were getting.</p>\n<p>The publisher might have some interest in the matter and might pressure the reseller (but more likely will not). Amazon, on the other hand, is more interested in happy customers, and will smack sellers for bad behavior. The courts are very unlikely to punish the reseller.</p>\n",
"score": 5
}
] |
[
"united-states",
"international"
] |
What if I did something that was a crime, but has now become legal?
| 9 |
https://law.stackexchange.com/questions/24971/what-if-i-did-something-that-was-a-crime-but-has-now-become-legal
|
CC BY-SA 3.0
|
<p>There was a question recently about what happens if I do something that is legal today but becomes illegal in the future. The obvious question is what happens in the opposite case? If I do something today that is a crime by today's laws, and next week the law changes and makes the act legal? </p>
<p>Can I be convicted by a judge for something that is today legal? Where everyone in the court room, including the judge, would be allowed to do it today? Does it make a difference if I got caught before or after the law change? Would a judge have legal leeway (that is it's up to him to decide if I should be prosecuted or not?) If I was already convicted, would I have reasons for an appeal with the argument that my actions are not illegal (anymore)? </p>
| 24,971 |
[
{
"answer_id": 24983,
"body": "<p>According to United States federal law, <a href=\"https://www.law.cornell.edu/uscode/text/1/109\" rel=\"noreferrer\">1 U.S. Code § 109 - Repeal of statutes as affecting existing liabilities</a>:</p>\n\n<blockquote>\n <p>The repeal of any statute shall not have the effect to release or\n extinguish any penalty, forfeiture, or liability incurred under such\n statute, unless the repealing Act shall so expressly provide, and such\n statute shall be treated as still remaining in force for the purpose\n of sustaining any proper action or prosecution for the enforcement of\n such penalty, forfeiture, or liability. The expiration of a temporary\n statute shall not have the effect to release or extinguish any\n penalty, forfeiture, or liability incurred under such statute, unless\n the temporary statute shall so expressly provide, and such statute\n shall be treated as still remaining in force for the purpose of\n sustaining any proper action or prosecution for the enforcement of\n such penalty, forfeiture, or liability.</p>\n</blockquote>\n\n<p>So it depends on whether Congress expressly said what to do, and if they didn't say anything, it defaults to being able to still prosecute. But this only applies to federal laws, not state laws.</p>\n\n<p>There's also an exception to this. In <a href=\"https://supreme.justia.com/cases/federal/us/291/217/case.html\" rel=\"noreferrer\">United States v. Chambers, 291 U.S. 217 (1934)</a>, the Supreme Court said that a prosecution for a violation of the National Prohibition Act could not be continued. However, this was a special case, as the constitutional provision (the 18th Amendment) that allowed the act in the first place had just been repealed (by the 21st Amendment).</p>\n",
"score": 8
},
{
"answer_id": 24980,
"body": "<blockquote>\n<p>Can I be convicted by a judge for something that is today legal? Where\neveryone in the court room, including the judge, would be allowed to\ndo it today? Does it make a difference if I got caught before or after\nthe law change? Would a judge have legal leeway (that is it's up to\nhim to decide if I should be prosecuted or not?) If I was already\nconvicted, would I have reasons for an appeal with the argument that\nmy actions are not illegal (anymore)?</p>\n</blockquote>\n<p>Context would matter, but usually, the answer would be yes, you could be convicted, even if you were arrested after the change in the law. The judge would have no say in the matter and this would not generally be a ground for appeal.</p>\n<p>For example, suppose that you were charged with failing to honor a curfew imposed in the aftermath of a Hurricane and that curfew has now been lifted. You could still be prosecuted and convicted for violating the curfew.</p>\n<p>Similarly, suppose that you are convicted of possessing heroin in 2017, but in 2018 heroin is legalized, and the case against you for possession of heroin is prosecuted in 2019. You could be convicted of heroin possession in 2019 as a matter of federal constitutional law in the U.S., even though many prosecutors would decline to press charges in those circumstances, even though a jury might be inclined to engaged in jury nullification, and even though some state constitutions or state jurisprudence might discourage or forbid this prosecution.</p>\n<p>There is something subtly different which doesn't really line up with your question but is easily confused for it.</p>\n<p>Suppose that you are convicted of a crime, but after your conviction, a court holds as a binding precedent in another case, that the crime that you were convicted of is unconstitutional or otherwise invalid in your circumstances (e.g. in a U.K. scenario, you are convicted of trespassing on the walkway to someone's front door since that is private property, but a later precedent hold that members of the public are legally entitled to use such a walkway unless there is a "no trespassing" sign posted which no one disputes wasn't present in your case).</p>\n<p>As a matter of constitutional U.S. law, your conviction remains valid and you must serve the sentence, if your conviction was final and all appeals had been exhausted when the new court decision was announced unless it was a "new rule" of law rather than a mere interpretation of existing law, but if your conviction was not yet final because post-conviction motions or appeals were still pending, the new rule of law could be utilized to challenge your conviction. Under the U.S. Constitution, "new rules" have retroactive effect, while interpretations of existing law do not.</p>\n<p>In France, in contrast, the constitution states that all people convicted of crimes that cease to be crimes under a change in the law, are entitled to benefit from the change in the law.</p>\n<p>I don't know what English law says about this question.</p>\n",
"score": 5
},
{
"answer_id": 33986,
"body": "<p>Since this is also tagged UK, there's a different answer there.</p>\n\n<p>In Gouarré Patte v. Andorra, the EHCR decided that the most lenient of laws must be applied. In the actual case, Andorra had merely reduced the possible penalty, but in the hypothetical case posed in the question that would mean no penalty at all would be possible.</p>\n\n<p>Note that this is the EHCR, not the EU/ECJ, so this is not affected by Brexit.</p>\n",
"score": 1
}
] |
[
"united-states",
"united-kingdom"
] |
Access rights to professional photographs
| 3 |
https://law.stackexchange.com/questions/90650/access-rights-to-professional-photographs
|
CC BY-SA 4.0
|
<p>An independent professional photographer uses a sales tactic of candidly taking photos of others in public and then approaching them and offering them copies for a price. Suppose one of these photographed subjects turns around and subject-access-requests their photo under the Data Protection Act.</p>
<p>Are there intellectual property / creative work / other exemptions that may apply that would allow the photographer to insist on charging for access to the work? Or is the subject entitled to (even full resolution) versions of the photos?</p>
| 90,650 |
[
{
"answer_id": 90663,
"body": "<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<h2>You must be given <a href=\"https://www.oaic.gov.au/privacy/your-privacy-rights/your-personal-information/access-your-personal-information\" rel=\"nofollow noreferrer\">access</a></h2>\n<p>The organisation may charge a reasonable administration fee for this.</p>\n<p>They may impose a licence on copyrighted materials such as prohibiting use other than verifying the information held and they you must destroy it once that purpose is accomplished.</p>\n<p>So, yes, you can <em>get</em> the photo but you can’t practically <em>use</em> the photo</p>\n",
"score": 2
},
{
"answer_id": 90664,
"body": "<h2>The photograph committed a felony in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></h2>\n<p>Making photos of a person in Germany and then offering to sell it to them is considered <em>Nötigung</em> in Germany, which is a felony, and a violation of the identity rights of the photo subject.</p>\n<h2>The GDPR requires access.</h2>\n<p>The photo of the subject is data about the data subject, so it has to be given via GDPR unless it is destroyed before the request is given. There's no requirement for a lack of a watermark or a resolution that is better than required to recognize it is the data subject.</p>\n",
"score": 2
}
] |
[
"gdpr",
"england-and-wales",
"data-ownership",
"subject-access-request",
"data-protection-act"
] |
Can a customer of a business make a recording of an employee on the business’s privately premises?
| 0 |
https://law.stackexchange.com/questions/90648/can-a-customer-of-a-business-make-a-recording-of-an-employee-on-the-business-s-p
|
CC BY-SA 4.0
|
<p>Suppose a customer enters a store. The business, through an employee, treats the customer unlawfully. Perhaps this is by verbally or physically abusing them, discriminating against them, or denying their consumer rights or rights as a member of the public. The customer begins to film the employee using their phone, and the employee strongly objects to the recording. Meanwhile, in case it is relevant, the business is constantly recording everyone within the premises with its CCTV.</p>
<p>The customer is an individual who will only be using their recording for private household purposes. But they are informed by the indignant employee(s) that they have no right to record anyone without their permission.</p>
<p>Does the employee, in a purportedly individual capacity, have any grounds to object to the customer recording them “without their consent“?</p>
| 90,648 |
[
{
"answer_id": 90662,
"body": "<h2>The customer must stop recording</h2>\n<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<p>The customer is on the store’s premises and an agent of the store has told them to stop. If they continue recording in spite of this they are now trespassing and can be ordered to leave. If they stay in spite of this, the police can remove them.</p>\n<p>Filming from a public place cannot be prohibited. So, if the person were to leave the store and film into it, that would be fine.</p>\n",
"score": 2
},
{
"answer_id": 90651,
"body": "<h2>The filming is illegal in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></h2>\n<p>In Germany, people have a <em>Recht am Eigenen Bild</em> (right of pictures taken of them* under § 22 Kunsturheberrechtsgesetzes (KUG). It is part of personality rights.</p>\n<p>Due to those rights, combined with the <a href=\"/questions/tagged/gdpr\" class=\"post-tag\" title=\"show questions tagged 'gdpr'\" aria-label=\"show questions tagged 'gdpr'\" rel=\"tag\" aria-labelledby=\"tag-gdpr-tooltip-container\">gdpr</a>, you can under no circumstances publish or give away the recordings without the agreement of the recorded person.</p>\n<p>Since a case from 2000 at the highest court, making recordings while there is express non-consent of the subject and the subject is the center of the picture or video is a violation of the law. It can even be a felony if the picture depicts anything intimate, such as someone's flat or even worse, their undressed body.</p>\n<p>In general, the following rules can make photography hard:</p>\n<ul>\n<li>Filming or Photographing on someone else's property without the consent of the owner is illegal - that includes publicly accessible areas. That is part of the Hausrecht.\n<ul>\n<li>If the employee demands you to stop filming, you have to do so based on Hausrecht. He is agent of the Owner.</li>\n</ul>\n</li>\n<li>Because the subject loses control of the publication after the photo is made and can't control the publication after the fact, they can prohibit the recording from being taken in the first place, as the highest court ruled in <strong>BVerfGE NJW 2000, 1021</strong>\n<ul>\n<li>The employee is no person of public interest. Even if a person of public interest can bar photos made of them.</li>\n</ul>\n</li>\n</ul>\n",
"score": 0
}
] |
[
"gdpr",
"england-and-wales",
"consent",
"any-jurisdiction",
"journalism"
] |
The legally-binding equivalent of the Hippocratic Oath
| 1 |
https://law.stackexchange.com/questions/90642/the-legally-binding-equivalent-of-the-hippocratic-oath
|
CC BY-SA 4.0
|
<p>I have read that the <a href="https://en.wikipedia.org/wiki/Hippocratic_Oath" rel="nofollow noreferrer">Hippocratic Oath</a> is not actually legally binding. However, I wonder if there are certain laws that apply specifically to doctors acting in a professional extent (or perhaps beyond as well), that are somewhat equivalent to the Hippocratic Oath. I would think that a doctor mistreating a patient could suffer criminal prosecution of a different sort than that of a non-doctor mistreating a non-patient. I am not interested in civil lawsuits regarding medical malpractice here. So, what are these laws, if they exist?</p>
<p>Jurisdiction of interest is that of the US.</p>
| 90,642 |
[
{
"answer_id": 90643,
"body": "<p>Most of the oath has no enforceable criminal law counterparts. In a number of US states, there is enforcement of the promise that "I will not give to a woman a pessary to cause abortion". Also in most states, "Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course", though there would need to be discussion of what a "poison" is. If we assume that the clause "I will abstain from all intentional wrong-doing and harm" is part of the original oath, that would be criminally or civilly enforceable, even against non-doctors. The obligation to teach for free is definitively not enforceable.</p>\n<p>However, there do exist "medical ethics", which tell doctors things that then must or must not do. The HIPAA privacy rule is one of thousand of such enforceable requirements. A doctor has a special duty of care to his patients that goes beyond ordinary person-to-person duty of care, and to the extent that some code of ethics prohibits an action by a doctor (and the doctor harms the patient), the doctor can be sued. A further action for violation of medical ethics would be suspension or revocation of the license to practice medicine.\nSince you're apparently looking beyond civil actions, I assume you are referring to criminal prohibitions, but also criminal prohibitions of actions by doctors (not general "don't rape" prohibitions). Laws against abortion are directed against doctors, though they are written with the presumption that a non-doctor could <em>never</em> perform an abortion. Also, negligence (by anyone) could rise to the level of being a crime, e.g. in <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9A.08.010\" rel=\"nofollow noreferrer\">Washington</a> "A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation".</p>\n<p>There are numerous things that only doctors can do, such as prescribing medicines. There are, correspondingly, prohibitions against doing those things outside of legally-prescribed boundaries, they can be prosecuted, but again prosecution of a doctor for "running a drug mill" is for violation of <a href=\"https://www.law.cornell.edu/uscode/text/21/841\" rel=\"nofollow noreferrer\">21 USC 841</a>, which everyone can be prosecuted for. As far as I know, there are no actions which are criminally prosecutable and illegal for a doctor – and no one else – to undertake.</p>\n",
"score": 1
},
{
"answer_id": 90658,
"body": "<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<h2><a href=\"https://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx\" rel=\"nofollow noreferrer\">Good medical practice: a code of conduct for doctors in Australia</a></h2>\n<p>Adherence to the code is a condition of registration with the Medical Board of Australia, the body authorised by law to regulate doctors.</p>\n<p>Breach of the code is not criminal although it can lead to sanctions including deregistration.</p>\n<p>Doctors who commit crimes are prosecuted just like everybody else.</p>\n",
"score": 1
}
] |
[
"united-states",
"medical"
] |
Does a county court circuit judge’s decision in Birmingham bind a district judge in London?
| 0 |
https://law.stackexchange.com/questions/90622/does-a-county-court-circuit-judge-s-decision-in-birmingham-bind-a-district-judge
|
CC BY-SA 4.0
|
<p>They are more senior but in a different region of the English “county court.”</p>
<p>So how does this work?</p>
| 90,622 |
[
{
"answer_id": 90623,
"body": "<p>Yes, if it's a binding precedent.</p>\n<p>And it could be the other way round, also. The main difference is that district judges hear the higher value, more complex and/or protracted cases.</p>\n",
"score": 2
},
{
"answer_id": 90655,
"body": "<h2>Maybe</h2>\n<p>Your <a href=\"https://en.wikipedia.org/wiki/Circuit_judge_(England_and_Wales)\" rel=\"nofollow noreferrer\">circuit judge</a> could be a member of the Crown Court, the County Court or a specialized sub-division of the High Court of Justice.</p>\n<p>The hierarchy of the courts of England and Wales is:</p>\n<p><a href=\"https://en.wikipedia.org/wiki/Courts_of_England_and_Wales#/media/File:Diagram_of_the_court_system_of_England_and_Wales_2014.svg\" rel=\"nofollow noreferrer\">Court hierarchy England and Wales</a></p>\n<p>The Crown Court and the County Court are the same level so they do not create binding precedent on themselves or each other. If your circuit judge is a member of the High Court then their decisions do bind the County Court.</p>\n<p>England and Wales is a unified jurisdiction so it doesn’t matter where the courts are located. There is no such thing as a “circuit split” as can happen in the US Federal system.</p>\n",
"score": 0
}
] |
[
"england-and-wales",
"jurisdiction",
"appeal",
"precedent"
] |
Why is it called Civil Law? What's "civil" about it?
| 0 |
https://law.stackexchange.com/questions/90605/why-is-it-called-civil-law-whats-civil-about-it
|
CC BY-SA 4.0
|
<p>Why is a civil legal system referred to as a system of “civil” law? In what sense is it “civil”? Does the name derive from origins in or association with the civil code or <em>code civil</em>? In this case, what was “civil” about the civil code? Was it distinct from a separate criminal code?</p>
| 90,605 |
[
{
"answer_id": 90645,
"body": "<p>Civil comes ultimately from <em><a href=\"https://en.m.wiktionary.org/wiki/civis#Latin\" rel=\"nofollow noreferrer\">civis</a>,</em> meaning citizen, but its roots lie in (reconstructed) proto-Italic <em><a href=\"https://en.wiktionary.org/wiki/Reconstruction:Proto-Italic/keiwis\" rel=\"nofollow noreferrer\">*keiwis</a>,</em> meaning "society," coming from the Indo-European <a href=\"https://en.wiktionary.org/wiki/Reconstruction:Proto-Indo-European/%E1%B8%B1ey-\" rel=\"nofollow noreferrer\">*ḱey</a>, meaning "to settle." The obvious semantic connection is through the concept of a settlement, a village or town (indeed, by Latin times, <a href=\"https://en.wiktionary.org/wiki/civitas#Latin\" rel=\"nofollow noreferrer\">civitas</a>, "city").</p>\n<p>Civil codes themselves are concerned with the orderly operation of society, defining and governing relationships that people have with each other and with the state. It is therefore not difficult to see how this relates to both senses for which the <em>civ-</em> root has been used, denoting both social constructs that bind people together as well as the people so bound.</p>\n<p>The people who came up with the name "code civil" did not likely have all of this etymological history in mind; but I would add to Dale M's correct assertion "civil means <em>of the citizen</em>" that it also means <em>of society</em>.</p>\n",
"score": 4
},
{
"answer_id": 90634,
"body": "<h2><a href=\"https://m.interglot.com/fr/en/civil\" rel=\"nofollow noreferrer\">Civil</a> means "of the citizen"</h2>\n<p>In both French and English and, originally, Latin.</p>\n<p>So, "civil code" is the law of the people - more or less.</p>\n<p>It's original use in describing law was in the 6th century <a href=\"https://en.wikipedia.org/wiki/Corpus_Juris_Civilis\" rel=\"nofollow noreferrer\">Corpus Juris Civilis</a> ("Body of Civil Law") in Byzantium (the Eastern Roman Empire).</p>\n<blockquote>\n<p>A collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperor. It is also sometimes referred to metonymically after one of its parts, the Code of Justinian.</p>\n</blockquote>\n<p>The Latin <a href=\"https://softca.tistory.com/1620\" rel=\"nofollow noreferrer\">root word</a> gives us many English words: citizen, city, civic, civilian, civilisation, and, of course, the word civil with its multitude of definitions, including its three legal meanings:</p>\n<blockquote>\n<p>3</p>\n<p>a : of, relating to, or based on civil law</p>\n<p>b : relating to private rights and to remedies sought by action or suit distinct from criminal proceedings</p>\n<p>c : established by law</p>\n</blockquote>\n",
"score": 3
},
{
"answer_id": 90652,
"body": "<p>One part of the question wasn't very squarely answered by the other two very solid answers.</p>\n<blockquote>\n<p>what was “civil” about the civil code? Was it distinct from a separate\ncriminal code?</p>\n</blockquote>\n<p>The civil code was distinct from a separate criminal code.</p>\n<p>The civil code covers "private law" which is the law regarding the rights of citizens vis-a-vis each other.</p>\n<p>The criminal code covers actions of people which the state may intervene of its own accord and in its own right to criminally punish.</p>\n<p>The Napoleonic Code in early 19th century France, which was the first modern civil code and was patterned after the 6th century Corpus Juris Civilis in the eastern Roman Empire, was part of a package of French revolutionary reforms which also mandated that all crimes be codified.</p>\n<p>The goal in both cases was to protect the average person from being abused by secret laws known only to elites that could be used against them.</p>\n<p>Civil law countries are countries which have at their core a civil code comparable to the original French Civil Code (which remains on the books with only minor modifications from its original version in the very early 1800s).</p>\n<p><strong>Common Law Systems Compared And Other Senses Of The Term "Civil"</strong></p>\n<p>In contrast, in "common law" countries, whose legal systems are all derived from the English legal system, the body of private law set forth in the civil codes of civil law countries are instead mostly embodied in a tradition of case law precedents. Those case law precedents are ultimately traceable back to English case law precedents and to its system in which judges make law through the process of decided cases that serve as common law legal precedents. The body of law made in England and its successors through these case law precedents is called the "common law", with the commonality referring to the fact that these precedents were originally common to and binding upon all English people subject to the authority of the British monarch.</p>\n<p>Confusingly, <em>in common law countries, the term "civil" also refers to the non-criminal law aspects of the law, sometimes including not just "private law" but also non-criminal parts of the "public law" which governs the relationship between the individual and the state, or between and among state entities.</em></p>\n<p>Also confusingly, in common law countries, some jurisdictions still have, and many jurisdictions once had, non-codified criminal offenses defined in case law formed by the same method of accumulated precedents traceable back to English precedents. These non-codified crimes are called "common law crimes".</p>\n<p>The term "common law crime" is also used to refer to codified crimes that were also crimes at common law, in contrast to crimes that exist solely as a result of statutes and are often regulatory in nature (e.g. criminal traffic offenses).</p>\n",
"score": 2
}
] |
[
"civil-law",
"legal-terms",
"legal-history",
"civil-legal-system"
] |
Is Entrapment illegal by the officer committing it?
| -1 |
https://law.stackexchange.com/questions/90611/is-entrapment-illegal-by-the-officer-committing-it
|
CC BY-SA 4.0
|
<p>It's fairly well known that Entrapment can be considered a valid affirmative defense for the person who was induced to commit a crime. However, say that a police officer entrapped someone to, e.g.:</p>
<blockquote>
<ol>
<li>Commit a murder or assault.</li>
<li>Commit a "victimless" crime, e.g. an officer induces someone to pay for a prostitute.</li>
</ol>
</blockquote>
<p>Would that officer be committing a crime or doing something illegal? The officer could be charged for e.g. coercion or as an abettor. But, is entrapment itself illegal for the officer? Do officers who commit entrapment get charged with a crime or penalized somehow?</p>
<p>Answers for different countries and legal systems are welcome, but, I understand that most potential answers will be from the US, and that's okay. The US has a great legal corpus and I enjoy reading about precedent, especially from the SCOTUS.</p>
| 90,611 |
[
{
"answer_id": 90617,
"body": "<p>It depends on where you are. In the US, <a href=\"https://www.justice.gov/archives/jm/criminal-resource-manual-645-entrapment-elements\" rel=\"nofollow noreferrer\">entrapment is a defense</a> to a criminal charge. There is a threshold question: is "solicitation" sufficient encouragement, there must be "inducement" by the government agent which is</p>\n<blockquote>\n<p>at least persuasion or mild coercion... pleas based on need, sympathy,\nor friendship... extraordinary promises of the sort 'that would blind\nthe ordinary person to his legal duties' such that 'a law-abiding\ncitizen's will to obey the law could have been overborne', or that the\ngovernment created 'a substantial risk that an offense would be\ncommitted by a person other than one ready to commit it'"</p>\n</blockquote>\n<p>Any person can be charged with the crime of <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9a.28.030\" rel=\"nofollow noreferrer\">"solicitation"</a> (RCW 9a.28.030 in Washington), which however pairs some sort of request with a reward (money or other valuable thing). In Nevada, <a href=\"https://www.leg.state.nv.us/nrs/nrs-199.html#NRS199Sec500\" rel=\"nofollow noreferrer\">solicitation</a> refers to a person who "counsels, hires, commands or otherwise solicits another", but also the crimes are limited to kidnapping, arson and murder. A police officer is not rendered immune from criminal prosecution just because he intended the criminal act to have a "good outcome" such as leading to the criminal conviction of a bad person. But whether what he said is a crime depends on what the officer said, and what the laws of that state are.</p>\n",
"score": 4
},
{
"answer_id": 90653,
"body": "<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<h2>Entrapment of itself, is not illegal</h2>\n<p><strong>However, it is likely that in using entrapment, police may commit other crimes</strong></p>\n<p>The leading case on point is <a href=\"https://www.armstronglegal.com.au/criminal-law/national/defences/entrapment/\" rel=\"nofollow noreferrer\">Ridgeway v The Queen</a>. Unlike the US, evidence obtained though state wrongdoing, including entrapment, is not automatically excluded but may be excluded at the discretion of the judge.</p>\n<blockquote>\n<p>When deciding the matter of Ridgeway, the High Court of Australia held that there was no practical defence of entrapment. However, the court did recognise that as a matter of public policy, courts need to exercise their discretion to exclude any evidence of an offence that was brought about by the unlawful conduct of law enforcement officers. This discretion exists to discourage unlawful conduct by police and to preserve the integrity of the administration of justice.</p>\n</blockquote>\n<blockquote>\n<p>In the Ridgeway decision, the High Court ultimately held that the evidence which established that the heroin had been illegally imported should be rejected. Their Honours drew attention to the ‘calculated’ and ‘grave’ nature of the AFP’s actions, especially that:</p>\n<ul>\n<li><p>their actions constituted an offence in that they allowed the heroin to be imported;</p>\n</li>\n<li><p>the police officers involved had not been prosecuted despite having also committed an offence;</p>\n</li>\n<li><p>there was no evidence of any official disapproval or retribution; and</p>\n</li>\n<li><p>the AFP’s objective would have been achieved if the evidence were admitted.</p>\n</li>\n</ul>\n<p>The court weighed these factors up against the public interest of a finding of guilt against Ridgeway. It determined that the public interest could be satisfied by the availability of a variety of offences that the offender could be prosecuted for that did not involve illegally importing the drug.</p>\n</blockquote>\n<p>As you can see, it was open for the police to be charged with importing heroin but not with entrapment.</p>\n",
"score": 1
}
] |
[
"criminal-law",
"police",
"assault",
"entrapment"
] |
Does a purely accidental act preclude civil liability for its resulting damages?
| 11 |
https://law.stackexchange.com/questions/90556/does-a-purely-accidental-act-preclude-civil-liability-for-its-resulting-damages
|
CC BY-SA 4.0
|
<p>A recent answer by Dale M. States that:</p>
<blockquote>
<p>A pure accident without any negligence on your part does not expose you to liability.</p>
</blockquote>
<p>Is this the general rule? What is the basis for that being so if it is? If you weren’t negligent then sure you didn’t do anything wrong, but it’s definitely more your fault than the person whose property you damaged, so why should they have to suffer rather than you?</p>
<p>All jurisdictions welcome, but please specify a particular jurisdiction for which your answer applies when answering.</p>
| 90,556 |
[
{
"answer_id": 90558,
"body": "<p><strong>In Common Law Countries</strong></p>\n<p>In common law countries, Dale M. is right (the vast majority of the time).</p>\n<p>Without negligence there is usually no liability for damage to property in an accident. The general rule in the common law rule is that "shit happens" and no one is responsible for the damage, when no one was negligent and everyone defendant acted reasonably under the circumstances. The "shit happens" defense is generally a valid defense to a claim for property damages or personal injury in common law countries.</p>\n<p>"No negligence despite causation" findings are rare in auto accident or plane crash cases (absent truly extraordinary weather conditions or freak intervening causes like meteors falling from the sky that cause car accidents), but are common, for example, in professional malpractice cases.</p>\n<p>For example, suppose a reasonably competent surgeon does surgery on you in a fairly high risk case. The best surgeon in the hospital could have saved you. You didn't get that surgeon and died. There is no basis for a suit for medical malpractice against the surgeon since the surgeon was not negligent, even though the surgeon was not perfect.</p>\n<p>Also, sometimes the victim is the person primarily or totally at fault. For example, suppose a drunk driver T-bones your WellsFargo armored cash delivery car, which is built like a tank, in violation of a red light, with their SmartCar, and the SmartCar is totaled, while your armored car doesn't even have a scratch. Your car was a cause of the damage to the drunk driver's vehicle, but you have no liability for the drunk driver's losses, because you weren't negligent.</p>\n<p><em>Strict Liability Exceptions To Negligence Based Liability</em></p>\n<p>There are some exceptions if you have provided a warranty, guarantee, or insurance that the property won't be damaged (since contractual liability is generally strict liability unless otherwise provided by agreement). For example, you might be liable under a lease for any damage in excess of reasonable wear and tear from any cause other than the landlord's negligence.</p>\n<p>Sometimes there can be negligence by someone your are responsible for even if you aren't personally negligent (which is called "vicarious liability").</p>\n<p>There is strict liability for accidents caused by defective products even in the absence of negligence, and for accidents caused by ultra-hazardous activities (e.g. explosives).</p>\n<p>U.S. states are divided about liability for animals that roam free with the main divide being between fence in states (mostly in the eastern U.S. and other more urbanized places) and fence out states (mostly in the west and more wild frontiers).</p>\n<p>There are a few other exceptions, but they are rare and somewhat inconsistent between jurisdictions.</p>\n<p><em>Comparative Fault</em></p>\n<p>Also, the modern trend in common law countries is to allocate liability for accidents based upon comparative fault or modified comparative fault. So, everyone who was negligent (including the victim), or would otherwise have had strict liability for the damage, is assigned a percentage of fault (adding up to 100%) that is their share of responsibility for the overall loss. If no one is negligent at all, there is no recovery. In modified comparative fault, if the victim is at least either 50% or 50%+ at fault (depending upon the state), there is no recovery.</p>\n<p>Some systems of comparative fault make negligent people who owe money jointly and severally liable with a right to contribution if you pay more than your fair share of the loss. Other systems limit each person's liability to their percentage of fault with no implicit guarantee of other negligent parties who are judgment proof.</p>\n<p><em>Who Determines Liability And Damages?</em></p>\n<p>In the U.S., and a small number of other jurisdictions, liability and damages are frequently decided by juries (and there is a right to a jury the vast majority of the time even if it isn't always elected). In most common law jurisdictions, liability and damages are always or almost always decided by judges (exceptions apply in perhaps 1% or less of cases).</p>\n<p><strong>In Civil Law Countries</strong></p>\n<p>In civil law countries (continental Europe, Quebec), the standard of liability for accidents in the absence of special cases like the ones discussed in the common law is that you are liable for damage that is your "fault." <em>See, e.g.</em> <a href=\"https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=1213&context=jcls\" rel=\"nofollow noreferrer\">this article</a> discussing civil law tort liability under Central American civil codes. It states:</p>\n<blockquote>\n<p>Much like in Europe (think of art. 1382 of the Napoleonic Code), in\nthe Central American civil codes, the concept of tort ordinarily rests\non a general clause imposing fault-based liability, though it is\npossible to identify among these civil codes some interesting\nvariations. For example, only in Honduras (art. 2236) and Panama (art.\n1644) tort liability is characterized using elements such as: action\nor omission, fault or negligence, and obligation to compensate.\nWhereas, Costa Rica (art.1045) and Nicaragua (art. 2509) add other\nelements to the characterization, such as fault and imprudence, and in\nthe Nicaraguan text, the notion of malicious acts is also included.\nThe Salvadoran Civil Code (arts. 2065 and 2080) is rooted in the\nclassic construction of delict, quasi-delict or fault, although it\nalso adds features such as malice and negligence. The exception to\nthis trend will be the Guatemalan Civil Code (art. 1645). Although it\nuses terms such as intention, carelessness or recklessness as defining\ncriteria, this provision is not really describing a fault based\nliability model, because it contains a rebuttable presumption of fault\nor negligence.</p>\n</blockquote>\n<p>The civil law concept of tortious fault is not spelled out in great detail in civil codes, although there are a few specific situations that are covered (e.g. bailments when your property is in the possession of another person and collapsing buildings). Civil law countries have instead been developed in legal doctrine in those countries that is not apparent from the civil code text.</p>\n<p>Basically, civil law tortious fault involves some culpability greater than mere "but for" causation of an accident, but involves a lower threshold of wrongfulness than the concept of "negligence" in the common law, which is a failure to act as reasonable person would have to prevent harm to others under the circumstances. You can have civil law tortious fault even if you were acting as a reasonable person, but you still have to have at least done something slightly wrong. So, there is still a "shit happens" defense in civil law countries, but it tends to be much harder to establish.</p>\n<p><em>Who Determines Liability And Damages?</em></p>\n<p>In civil law countries, the call is always made by judges (or by panels of judges in cases involving larger damages).</p>\n",
"score": 21
},
{
"answer_id": 90565,
"body": "<p>This is a rule, indeed a common law expression, about a "pure accident without negligence on the part of" a person, dating back in England to at least 1863; in the US found in <a href=\"https://cite.case.law/del/26/253/\" rel=\"noreferrer\">Culbert v. Wilmington & Philadelphia Traction Co</a>., 26 Del. 253, 3 Boyce 253</p>\n<blockquote>\n<p>A pure accident without negligence on the part of the defendant is not\nactionable, and if the jury should believe from all the evidence that\nwhat happened in this case was of such a character, it would come\nunder the head of unavoidable accident and the plaintiff cannot\nrecover</p>\n</blockquote>\n<p>and <a href=\"https://www.govinfo.gov/content/pkg/USCOURTS-nhd-1_19-cv-00031/pdf/USCOURTS-nhd-1_19-cv-00031-1.pdf\" rel=\"noreferrer\">invoked in 2020</a> in New Hampshire in connection to a boating accident. As stated in <a href=\"https://casetext.com/case/maletis-v-portland-traction-co\" rel=\"noreferrer\">Maletis v. Portland Traction Co., 160 Or. 30</a>, 83 P.2d 141,142,</p>\n<blockquote>\n<p>The words "mere accident" or "pure accident" imply that the accident\nwas caused by some unforeseen and unavoidable event over which neither\nparty to the action had control and exclude the idea that it was\ncaused by the carelessness or negligence of the defendant, in which\ncase, of course, the defendant would not be liable. 1 C.J., p. 395 and\nnote.</p>\n</blockquote>\n<p>Also, read <a href=\"https://law.stackexchange.com/questions/14109/is-there-liability-for-pure-accidents\">this local Q&A</a> on pure accidents.</p>\n",
"score": 16
},
{
"answer_id": 90559,
"body": "<p>I'm in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a>.</p>\n<p>If this were true in general, there wouldn't be any need for <a href=\"https://en.wikipedia.org/wiki/Liability_insurance\" rel=\"noreferrer\">liability insurances</a> to cover exactly these cases that <a href=\"https://law.stackexchange.com/a/90558/9286\">ohwilleke describes as "shit happens"</a>, i.e. where the level of fault is below even being negligent.</p>\n<p>However, there are also situations where the statement would apply. E.g., over here, if an employee accidentally* causes damage to their employer (say, break their work laptop) during some work activity the employee is not liable.</p>\n<p>*or even negligently, as long as it isn't gross negligence</p>\n<hr />\n<blockquote>\n<p>If you weren’t negligent then sure you didn’t do anything wrong</p>\n</blockquote>\n<p>There is a concept of <a href=\"https://en.wikipedia.org/wiki/Strict_liability\" rel=\"noreferrer\">strict liability</a>, where someone can be held liable even if they were not at fault. The idea is that some things are inherently dangerous but legal.</p>\n<p>Examples (here in <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a>) would e.g. be</p>\n<ul>\n<li><p>A car is considered to pose a certain inherent risk. There are certain requirements to minimize this (safetying, driver's licence, forbidding drunk driving ...), and the keeper of the car must have a liability insurance (to mitigate the financial risk for others).</p>\n<p>However, <a href=\"https://www.gesetze-im-internet.de/englisch_stvg/englisch_stvg.html#p0014\" rel=\"noreferrer\">§7 StVG</a> does not require the keeper of the car to be at fault or negligent:</p>\n<blockquote>\n<p>(1) If, during the operation of a motor vehicle, a person suffers death, the body or health of a person is injured or an item of property is damaged, the vehicle holder is liable to make compensation to the injured person for the resulting damage.</p>\n</blockquote>\n<p>Thus, e.g. if there is a bicycle - car accident, damage (and liability) the car will be assigned at least partial liability unless the bicyclist is proven to have been in gross violation of traffic regulations. (Below that, the bicyclist is liable for partial damage to the extent they are <em>proven</em> to have violated traffic regulations, but every uncertainty i.e. the mere <em>possibility</em> of the driver having been negligent is assigned to the car's inherent danger. Even a properly parked, switched off and locked car can lead to liability.)</p>\n</li>\n<li><p>Similarly, <a href=\"https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p3516\" rel=\"noreferrer\">§833 BGB</a> for pets:</p>\n<blockquote>\n<p>If a human being is killed by an animal or if the body or the health of a human being is injured by an animal or a thing is damaged by an animal, then the person who keeps the animal is liable to compensate the injured person for the damage arising from this. [... exception: for non-pet domestic animals as long as the keeper was not negligent...]</p>\n</blockquote>\n<p>Example: I have a watch dog. The grounds are fenced, and the door closed. The door post has a sign on eye level saying that there is a dog running freely inside, and tells people to ring. We had hired a builder, who came half an hour earlier than they had said. They opened the door by putting their hand through the bars right beside the sign, and drove in. The dog was still out and got excited and jumped at the car, and some stone at his paw scratched the paint. While this was solved amicably (when we showed the sign to the builder he said he doesn't understand how he could have overseen the sign; and the scratch turned out to be shallow enough to be repaired by polishing), my animal liability insurance told me that regardless of any trespassing, as keeper of the dog I have full liability for any damage he causes.</p>\n</li>\n</ul>\n<p>My gut feeling for how German law works says that similarly, there is an inherent danger in drinking a coffee that it may be spilt - even without negligence - causing some damage. So if someone sits next to in a cafe me and I spill my coffee over their book, I am liable for that damage. And we both accepted the inherent danger of a coffee being accidentally spilt. The reader by accepting the risk of being without a nicely stain-free book until I replace it, and I by accepting the risk that I may have to pay for damaging the book. (A library would often not accept this risk: no eating or drinking inside)</p>\n",
"score": 10
},
{
"answer_id": 90562,
"body": "<blockquote>\n<p>it’s definitely more your fault than the person whose property you damaged</p>\n</blockquote>\n<p>That begs the question of <em>whether</em> there was fault, and whether the owner put the goods at known risk.</p>\n<p>If you put goods out on a shelf for handling by the browsing public, then you're going occasionally to get those things dropped, and if they are fragile, then broken.</p>\n<p>You wouldn't expect the <em>same</em> person to come in every day and drop something else, but amongst tens of thousands of handlings of items a day by countless people, there are sure to be accidents which do not involve anyone in particular.</p>\n<p>It's also not an argument to say that the public should not handle goods, or that it is somehow improper for them to do so, since it is the express purpose of the retailer that prospective customers should browse and handle the goods (including things that may not be of familiar shapes and sizes to the public).</p>\n<p>Insofar as someone has to pay for the damage, there is no reason why it shouldn't be the retailer who treats it as the cost of doing business in his chosen way and distributes the cost across all sales. The retailer also has the greatest experience with particular goods and a particular style of laying them out for sale, and is in the best position to make alterations to the circumstances when the level of breakage is not acceptable.</p>\n",
"score": 4
}
] |
[
"civil-law",
"accident",
"civil-damages"
] |
Can I build something that is patented? Assume I don't share, sell or profit off the item
| 3 |
https://law.stackexchange.com/questions/52310/can-i-build-something-that-is-patented-assume-i-dont-share-sell-or-profit-off
|
CC BY-SA 4.0
|
<p>I found a few posts but they were a bit ambigous a a lot was left to the uneducated imagination of mine. Title says it all really. Say I wanted to build a special type of laser, I do NOT want to sell OR profit off the device. </p>
<p>All I know is this device has a global patent, or perhaps a UK one, whats the difference if it was a UK patent and I was in the UK or what if it was a UK patent and I was in the USA?</p>
<p>Say if this laser was very good at cutting things in a 3D printer but I didn't sell any of the items that the 3D printer produced. Is this illegal?</p>
<p>I'm in the UK BTW. But I would also really appreshiate it if you just assumed it was what ever your country is.</p>
<p>Thanks.</p>
| 52,310 |
[
{
"answer_id": 52319,
"body": "<p><strong>Yes you can do this in the UK.</strong></p>\n<p>Section 60 of the Patents Act 1977 has a <a href=\"https://www.gov.uk/guidance/the-patent-act-1977/section-60-infringement-meaning-of-infringement\" rel=\"noreferrer\">specific carve-out</a> for this kind of activity:</p>\n<blockquote>\n<p>(5) An act which, apart from this subsection, would constitute an infringement of a patent for an invention shall not do so if;</p>\n<p>(a) it is done privately and for purposes which are not commercial;</p>\n<p>(b) it is done for experimental purposes relating to the subject-matter of the invention;</p>\n</blockquote>\n<p>So if you build and operate your laser without selling anything you are in the clear. You can also experiment with potential improvements.</p>\n<p>There is no such thing as a "global patent": patents are issued in each country and the national law of each country applies (<a href=\"https://www.epo.org/\" rel=\"noreferrer\">except for Europe</a>). If an inventor wants patent protection in lots of countries they have to file for a patent in each country. So if this laser is patented only in the USA and you are in the UK then you could make and sell as many lasers as you wanted, as long as you didn't export them to the USA. And vice-versa for a UK patent and a USA engineer.</p>\n",
"score": 8
}
] |
[
"civil-law",
"patents"
] |
Can data protection rights of a subject be voluntarily waived?
| -1 |
https://law.stackexchange.com/questions/90618/can-data-protection-rights-of-a-subject-be-voluntarily-waived
|
CC BY-SA 4.0
|
<p>Presumably not on protrusion by a service provider as a condition of their service. But what if someone writes to someone super busy whom they admire and says “look I really respect you and don’t want to get on your nerves so I don’t intend to compel you to prepare a SAR response for me but if it happened to be really convenient and you felt like doing it then it would be really helpful to me to have this information. Just don’t feel compelled to comply with this request as a statutory obligation.”</p>
<p>Would that be a valid waiver of one’s subject access entitlement?</p>
| 90,618 |
[
{
"answer_id": 90631,
"body": "<p>GDPR rights and obligations cover different things:</p>\n<ul>\n<li>A duty of the data processor towards the government of the country where they operate to present certain documentation, and <em>to implement technical and organizational measures</em> to protect data. These would be audited by government agencies, not the individual customer. A single data subject cannot waive them.</li>\n<li>A duty of the data processor to process and store personal data only with a legal justification. User consent is one possible justification, if it is informed, revokable, etc. So a single data subject can waive a "ban" on storing his or her data in a database along with all the other users who waived that "ban," but the duties towards the government regarding that data would still apply.</li>\n<li>A duty of the data processor to respond to an Article 15 request by the data subject in a certain way and timeframe. If a data subject writes a letter to the data processor and explicitly states that the letter is <strong>not</strong> an Article 15 request, then Article 15 does not apply. The data subject would of course have the right to make an Article 15 request at a later time.</li>\n</ul>\n",
"score": 3
},
{
"answer_id": 90637,
"body": "<p>GDPR data subject rights cannot be waived. Data protection is a fundamental right, based on Art 8(1) of the <a href=\"https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT\" rel=\"nofollow noreferrer\">Charter</a> and Art 16(1) <a href=\"https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12016ME%2FTXT\" rel=\"nofollow noreferrer\">TFEU</a>. However, GDPR balances this right to data protection against other rights, and explains modalities around how this right is guaranteed.</p>\n<p>The GDPR does allow data subjects to agree to processing activities that might be against their interests, by giving <em>consent</em>. However, consent must be freely given, specific, and informed, a high bar intended to protect data subjects. Explicit consent can be used to authorize certain activities that would otherwise be prohibited, e.g. processing health data, or transferring data into countries without an adequate level of data protection. “Do whatever you want” carte blanche permission cannot be valid GDPR consent, because it is not sufficiently specific.</p>\n<p>The data subject rights in Arts 12 to 22 GDPR cannot be waived. The rights are necessary to hold data controllers accountable. These rights already include limitations to protect data controllers from data subjects that exercise these rights abusively. There is no mechanism that would make it possible to make contracts requiring the non-exercise of these rights, that would go against their purpose.</p>\n<p>However, data subjects are not required to invoke the Art 12–22 data subject rights. They can voluntarily not exercise them. This is in contrast to the fundamental GDPR principles like lawfulness or accountability, that data controllers must always fulfil, regardless of whether a data subject explicitly invokes them.</p>\n<p>You suggested this phrasing in a request for information:</p>\n<blockquote>\n<p>I don’t intend to compel you to prepare a SAR response for me but if it happened to be really convenient and you felt like doing it then it would be really helpful to me to have this information.</p>\n</blockquote>\n<p>That does not sound like a valid Art 15 data subject access request, because it clearly does not try to invoke the <em>right</em> to access. But it's not a general waiver of that right – the right to access could still be properly invoked at any later time.</p>\n",
"score": 2
}
] |
[
"gdpr"
] |
If a man's name is on the birth certificate, but all were aware that he is not the blood father, and the couple separates, is he responsible legally?
| 13 |
https://law.stackexchange.com/questions/90569/if-a-mans-name-is-on-the-birth-certificate-but-all-were-aware-that-he-is-not-t
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CC BY-SA 4.0
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<p>Mother was already pregnant with twins when they got back together. She asked him to be on the birth certificate so that the bio dad couldn't have any claims on them.</p>
<p>The bio dad has not ever even asked about them or their well being.</p>
<p>The man in question here, has helped raise them, in doing 90% of the care for the twins who are now six. The couple separated and she now is trying to threaten him with having to keep the kids 50% of the time and pay child support and they're not even really his children.</p>
<p>Can she do this???</p>
| 90,569 |
[
{
"answer_id": 90577,
"body": "<p><a href=\"/questions/tagged/british-columbia\" class=\"post-tag\" title=\"show questions tagged 'british-columbia'\" aria-label=\"show questions tagged 'british-columbia'\" rel=\"tag\" aria-labelledby=\"tag-british-columbia-tooltip-container\">british-columbia</a></p>\n<h3>Parentage</h3>\n<p>For all purposes in British Columbia law, a child's parent is the person determined under Part 3 of the <em>Family Law Act</em> (see <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_03#division_d2e2143\" rel=\"noreferrer\">s. 23(b)</a>).</p>\n<p>Outside of the context of assisted reproduction, there are a series of presumptions that apply unless the contrary is proved. A "male person" is <em>presumed</em> to be a child's biological father in any of the following circumstances:</p>\n<ul>\n<li>he was married to the child's birth mother on the day of the child's birth (s. 26(2)(a))</li>\n<li>he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended by his death, a divorce, or voiding (s. 26(2)(b))</li>\n<li>he married the child's birth mother after the child's birth and acknowledges he is the father (s. 26(2)(c))</li>\n<li>he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child's birth (s. 26(2)(d))</li>\n<li>he has acknowledged that he is the child's father by having signed a statement to register as the father on the birth certificate or agreement (s. 26(2)(e))</li>\n<li>he has acknowledged that he is the child's father by having signed an agreement under section 20 of the Child Paternity and Support Act, R.S.B.C. 1979, c. 49 (s. 26(2)(f))</li>\n</ul>\n<p>If by operation of the presumptions, more than one person may be presumed to be the biological father, then no presumption applies.</p>\n<p>If parentage can be resolved by one of these presumptions (based on the facts in the hypothetical, it is possible that presumption s. 26(2)(d) might apply, and also likely s. 26(2)(e), since he is on the birth certificate), that answers the question, unless someone attempts to prove that the presumption is incorrect.</p>\n<p>If someone wants to disprove the presumption, they can apply for an order declaring parentage. <strong>When hearing such an application, the judge will consider all relevant evidence, including testimony of parties and witnesses, physical evidence, genetic testing, expert opinion, etc. The burden is on the party seeking the order to displace the presumption, on a balance of probabilities.</strong></p>\n<h3>Parenting arrangement</h3>\n<p>Parenting arrangements ("trying to threaten him with having to keep the kids 50% of the time") can not be imposed by one party on another. Parenting arrangements must be by agreement, or by court order (<a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_04#division_d2e3638\" rel=\"noreferrer\">s. 40</a>). If done by court order, the court "must consider the best interests of the child only" (<a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_04\" rel=\"noreferrer\">s. 37</a>).</p>\n<h3>Child support</h3>\n<p>If a person is a parent, they generally have a duty to provide child support for the child (<a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_07#section147\" rel=\"noreferrer\">s. 147</a>).</p>\n<h3>Child support from stepparent</h3>\n<p>Even if the person demonstrates that they are not a parent, they can owe child support by court order if they are a stepparent ("a person who is a spouse of the child's parent and lived with the child's parent and the child during the child's life") who has contributed to the support of the child for at least one year (s. 147(4), (5)).</p>\n",
"score": 22
},
{
"answer_id": 90580,
"body": "<p><a href=\"/questions/tagged/colorado\" class=\"post-tag\" title=\"show questions tagged 'colorado'\" aria-label=\"show questions tagged 'colorado'\" rel=\"tag\" aria-labelledby=\"tag-colorado-tooltip-container\">colorado</a></p>\n<blockquote>\n<p>The couple separated and she now is trying to threaten him with having\nto keep the kids 50% of the time and pay child support and they're not\neven really his children.</p>\n<p>Can she do this?</p>\n</blockquote>\n<p>Yes. Absolutely, although actual parenting time orders have to be entered by a court in the best interests of the child, and 50% is not a magic number in that regard.</p>\n<p>More generally, children are "really your children" even if you aren't biologically related to them under Colorado law. Someone does not have to be biologically related to a child to be their legal father.</p>\n<p>In Colorado, a man is presumed by law to be the father if the man consents to having his name placed on the birth certificate of a child of his wife after the children is born, even if the marriage took place after the child was born.</p>\n<blockquote>\n<p>(1) A man is presumed to be the natural father of a child if: . . .\n(c) After the child's birth, he and the child's natural mother have\nmarried, or attempted to marry, each other by a marriage solemnized in\napparent compliance with law, although the attempted marriage is or\ncould be declared invalid, and: . . . II. With his consent, he is\nnamed as the child's father on the child's birth certificate[.]</p>\n</blockquote>\n<p>Colo. Rev. Statutes § <a href=\"https://law.justia.com/codes/colorado/2020/title-19/article-4/section-19-4-105/\" rel=\"noreferrer\">19-4-105</a>.</p>\n<p>In Colorado, and most other jurisdictions there is a statute of limitations from the birth of the child to contest paternity established by a birth certificate. In Colorado that is five years. In some jurisdictions it can be as little as two or three years.</p>\n<blockquote>\n<p>(1) A child, his or her natural mother, or a man presumed to be his or\nher father pursuant to section 19-4-105 (1)(a), (1)(b), or (1)(c) or\nthe state, the state department of human services, or a county\ndepartment of human or social services, pursuant to article 13 or 13.5\nof title 26 or article 5 of title 14 may bring an action: . . .</p>\n<p><strong>For the purpose of declaring the nonexistence of the father and child relationship presumed under section 19-4-105 (1)(a), (1)(b), or\n(1)(c) only if the action is brought within a reasonable time after\nobtaining knowledge of relevant facts but in no event later than five\nyears after the child's birth.</strong> After the presumption has been\nrebutted, paternity of the child by another man may be determined in\nthe same action, if he has been made a party.</p>\n</blockquote>\n<p>Colo. Rev. Statutes § <a href=\"https://law.justia.com/codes/colorado/2020/title-19/article-4/section-19-4-107/\" rel=\"noreferrer\">19-4-107</a>.</p>\n<p>If the conditions for the five year statute of limitations applies, other statutes of limitations that would otherwise seemingly also apply cannot be utilized. <em>See e.g., People ex rel. S.L.H.</em>, 736 P.2d at 1228; <em>see also M.R.D. by P.D. v. F.M.</em>, 805 P. 2d 1200, 1201-03 (Colo. App. 1991).</p>\n<p>If the children are six years old, the statute of limitations to disestablish the paternity of the father listed on the birth certificate shortly after the children were born has passed and the presumption of paternity is conclusive and cannot be rebutted with even conclusive evidence of a lack of a biological relationship between the father and the child.</p>\n<p>The statute of limitations is longer in cases in which no man has been established to be, or is presumed to be, the father of the child, or when the basis of the presumption of paternity one of several grounds which are each different than the one in this case. But, that isn't the situation in this question.</p>\n<p>Also, if the man agreed knowing the facts, he may be estopped from changing his position later on even if he contests paternity in a time frame consistent with the statute of limitations. <em>See generally</em>, Colo. Rev. Statutes § 19-4-105(2).</p>\n<p>Furthermore, only certain people are allowed to bring suit to raise the issue that the husband of the mother is not the father - only the mother, the legally recognized father-husband, or the child (through a guardian ad litem). In the fact pattern of this question, "the other man" or his relatives are not allowed to bring a lawsuit to have the paternity of "the other man" (a provision of the law that the U.S. Supreme Court has held to be constitutional in a case arising in another state). The government also lacks standing to bring a lawsuit in it own right to declare that the father-husband is not the child's parent.</p>\n<p>Child support is owed by the legally recognized father of a child regardless of the existence or absence of a biological relationship to the child, unless at least such time as a court determines that this person is not the legal father of a child. And, often due to a conclusive presumption or a statute of limitations the legal father's paternity can't be disputed at all.</p>\n<p>The substantive and most of the procedural details are spelled out in the <a href=\"https://law.justia.com/codes/colorado/2020/title-19/article-4/\" rel=\"noreferrer\">Colorado Uniform Parentage Act</a>.</p>\n",
"score": 19
},
{
"answer_id": 90576,
"body": "<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" aria-label=\"show questions tagged 'australia'\" rel=\"tag\" aria-labelledby=\"tag-australia-tooltip-container\">australia</a></p>\n<p>A person is presumed to be a father (with all the rights and liabilities this entails) if the:</p>\n<ul>\n<li>person is named as the father on the birth certificate or adoption certificate</li>\n<li>person signs a statutory declaration (a legal document) saying he is the father</li>\n<li>child was born during the marriage or period of living together</li>\n<li>person lived with the mother at any time in the period between 44 weeks and 20 weeks before the birth of the child</li>\n<li>court makes an order or finding that identifies a person as the father of the child.</li>\n</ul>\n<p>You score a 3/5 so you are the father.</p>\n<p>Of these, the last is definitive and overrides the other four, however, the Family Court will only order a paternity test on application, where parentage is seriously in doubt, and if it is in the best interests of the child(ren).</p>\n",
"score": 11
},
{
"answer_id": 90591,
"body": "<p><a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"tag-germany-tooltip-container\">germany</a></p>\n<p>German law says, in <a href=\"https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html#p5506\" rel=\"noreferrer\">§1592 BGB</a>:</p>\n<p>The father of a child is the man</p>\n<blockquote>\n<p>1. who is married to the mother of the child at the date of the birth,</p>\n<p>2. who has acknowledged paternity or</p>\n<p>3. whose paternity has been judicially established under section 1600d or section 182 (1) of the Act on the Procedure in Family Matters and in Matters of Non-contentious Jurisdiction [Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit].</p>\n</blockquote>\n<p>In OPs case, being on the birth certificate clearly fulfills 2. of acknowledging paternity. So, the question of biological parenthood is irrelevant.</p>\n<p>Interestingly, the father can't just get a genetic test, claim he's been falsely "made" the father when in reality he isn't, and abandon fatherhood. A genetic test is deemed highly personal information which can only be done when the person agrees, or in case of a minor, <em>all</em> legal guardians agree. In order to legally fight parenthood, the father would have to file a lawsuit, establish evidence (that wasn't known at the time of establishing fatherhood), with an illegally obtained DNA test not being admissible, in which case the court might order a DNA test to be conducted. So, renouncing your fatherhood is not completely impossible, but very hard to do.</p>\n<p>More about this, in German, <a href=\"https://www.anwalt.org/vaterschaftstest/\" rel=\"noreferrer\">here</a>.</p>\n<p>As to the question "can she make him do this" (spend time with the kids, pay for them): yes she can. Both parents share the "Sorgerecht" (custody), which can only be given up under specific circumstances.</p>\n<p>The mother can apply for sole custody, which will generally be granted if the father agrees, so this is a way of getting rid of custody but needs the mother's cooperation. This will not have an effect on the father's duty to pay child support, however. The only other option would be neglecting the kids to an extend that makes the Jugendamt (CPS) revoke custody, but this is unlikely to be possible without committing some crimes that would make the endeavor counterproductive. <a href=\"https://rechtsberater.de/familienrecht-ratgeber/sorgerecht-umgangsrecht/sorgerecht-abgeben/\" rel=\"noreferrer\">Link</a> (in German again)</p>\n",
"score": 9
},
{
"answer_id": 90578,
"body": "<p><a href=\"/questions/tagged/washington\" class=\"post-tag\" title=\"show questions tagged 'washington'\" aria-label=\"show questions tagged 'washington'\" rel=\"tag\" aria-labelledby=\"tag-washington-tooltip-container\">washington</a></p>\n<p>Depending on specific facts, Q (the man in question) is legally a presumed parent under <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=26.26A&full=true\" rel=\"noreferrer\">RCW 26.26A.115</a> because "The individual resided in the same household with the child for the first four years of the life of the child, including any period of temporary absence, and openly held out the child as the individual's child" (feel free to correct that). A assume the two were just living together and there was no legal marriage or state registered domestic partnership. Note that "presumed parent is a specific kind of legal parent relation.</p>\n<p>There is also an "adjudicated parent" RCW 26.26A.400-515 which involves going to court to have Q declared to be a parent (I assume that didn't happen, you didn't mention it). Then there is an "acknowledged" parent per §200 where a would-be acknowledged parent and the woman who gave birth to a child "may sign an acknowledgment of parentage to establish the parentage of the child". This is generally required in the kind of case that you describe, in order to "put Q on the birth certificate". Things are a little tricky if B (biological father) was married to the woman or in a legal relation with the female, but you didn't mention that so I assume the acknowledgement was not illegal.</p>\n<p>RCW 26.26A.235 states how either party the mother can rescind the acknowledgment of parentage – a form and a court hearing. This does not obliterate the fact that Q is the legal father of the children, and the mother can petition for child support on that basis. It is unlikely that the court would order a person to take 50% custory when they want 0% custody and the mother is at least willing to have full custody. On the third hand, if both parents are being obstreperous, the court might speak harshly to them and order a 50-50 custody and support arrangement.</p>\n",
"score": 5
},
{
"answer_id": 90633,
"body": "<p><a href=\"/questions/tagged/north-carolina\" class=\"post-tag\" title=\"show questions tagged 'north-carolina'\" aria-label=\"show questions tagged 'north-carolina'\" rel=\"tag\" aria-labelledby=\"tag-north-carolina-tooltip-container\">north-carolina</a></p>\n<p>You seem to have ties to North Carolina. The following quotes are from <a href=\"https://www.northcarolinadivorcelawyersblog.com/fathers-natural-legal-and-presumed/\" rel=\"nofollow noreferrer\">https://www.northcarolinadivorcelawyersblog.com/fathers-natural-legal-and-presumed/</a>:</p>\n<p>If the mother is married at the time of birth, the husband is the <em>presumed father:</em></p>\n<blockquote>\n<p>A presumed father is the husband of a person who gives birth to a child during the course of marriage to the husband. This father is presumed to be the natural father, but this is a rebuttable presumption.</p>\n</blockquote>\n<p>If the biological and the legal father are not the same person:</p>\n<blockquote>\n<p>If the natural father has not taken any action to establish paternity, then the father married to the mother is still the presumed father. However, actions to establish paternity may also be brought by the director of social services if and only if the child is likely to become a public charge. [...]</p>\n<p>To say the least, this area of law is very nuanced.</p>\n</blockquote>\n<p>I like the last sentence.</p>\n<p><a href=\"https://www.arnoldsmithlaw.com/paternity-fraud.html\" rel=\"nofollow noreferrer\">https://www.arnoldsmithlaw.com/paternity-fraud.html</a> has another bit of information:</p>\n<blockquote>\n<p>If the mother is married to someone who is not the child’s biological father: North Carolina law requires that a mother’s husband be listed as the father on the child’s birth certificate. Even if the biological father voluntarily signs the Affiant of Parentage, this does not establish his paternity in this circumstance. A hearing will be held and the judge, after considering the evidence, will rule on paternity.</p>\n</blockquote>\n<p>Again, it seems that <em>the biological father</em> needs to contest the legal fathership of the husband. I understand that the legal father cannot unilaterally rescind fathership.</p>\n<p>Assigning fathership to the husband at time of birth is the rule in the vast majority of jurisdictions inside and outside the U.S. In all jurisdictions it is not trivial to change fathership. The motivation for this automatism is to provide an unambiguous legal situation which gives security to the child and their mother, and, to a lesser degree, to the husband. Clearly, the marriage's goal is to establish a family with the privileges and responsibilities that come with it, and the law makes this as clear as possible.</p>\n",
"score": 3
}
] |
[
"divorce",
"children",
"parental-rights",
"child-support",
"custody"
] |
What is needed to access the written materials in a case?
| 0 |
https://law.stackexchange.com/questions/90624/what-is-needed-to-access-the-written-materials-in-a-case
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CC BY-SA 4.0
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<p>County court decisions tend to be public. Some refer to other case documents such as particulars of claim or defence statements etc, sometimes by precise paragraphs.</p>
<p>Suppose a member of the public reading such a decision wishes to see the cited materials submitted by the parties in the case to the court. What world be needed to obtain these?</p>
| 90,624 |
[
{
"answer_id": 90626,
"body": "<p>In the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a>, you would go to the clerk of courts' website and look up the case. For federal courts, that's <a href=\"https://pacer.gov\" rel=\"nofollow noreferrer\">PACER</a>.</p>\n<p>For courts that don't put these materials online, you would just walk into the clerk of courts's office, and ask to see the case file, which contains all the documents filed in the case. In my experience, it's exceedingly uncommon for anyone to ask anything further of you before providing these materials.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"legal-research",
"any-jurisdiction"
] |
Can a School Give a Student's Property to Another Student?
| 0 |
https://law.stackexchange.com/questions/90619/can-a-school-give-a-students-property-to-another-student
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CC BY-SA 4.0
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<p>I live in Ontario, Canada, and I'm still confused about something that happened to me in kindergarten.</p>
<p>It was my birthday, and I was given a gift by the office and told to put it in my bag. (So, I would assume that this toy is now mine, right?) Being the dumb child I was, I decided to keep it on me so that I could play with it during naptime, so I wouldn't get so bored.</p>
<p>Anyway, my teacher saw me, and she took away said toy. I assumed she'd give it back after. She didn't. Weeks later, I saw her give it to another student for being good.</p>
<p>For context, I'm not looking to get the teacher in trouble, ha ha. Just confused, and wondering what in the world happened. But is this legal? Can teachers give the student's confiscated personal items to another student as a prize, or did she do that because the school gave it to me? Thanks.</p>
| 90,619 |
[
{
"answer_id": 90621,
"body": "<p>Children have the same rights to property as everyone else in Canada. <a href=\"https://publications.gc.ca/Collection-R/LoPBdP/BP/bp268-e.htm\" rel=\"nofollow noreferrer\">Here is one take</a> on Canadian property rights.\nBy act of parliament the <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-12.3/page-1.html\" rel=\"nofollow noreferrer\">Canadian Bill of Rights</a> declares that</p>\n<blockquote>\n<p>there have existed and shall continue to exist without discrimination\nby reason of race, national origin, colour, religion or sex, the\nfollowing human rights and fundamental freedoms, namely, (a) the right\nof the individual to life, liberty, security of the person and\nenjoyment of property, and the right not to be deprived thereof except\nby due process of law...</p>\n</blockquote>\n<p>Age is not precluded as a basis for discrimination. The Canadian government ratified <a href=\"https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/crc-crde/conv2a.html\" rel=\"nofollow noreferrer\">The Convention on the Rights of the Child</a>, with two exceptions (related to customary care among Aboriginal peoples and incarceration). However the <a href=\"https://www.ohchr.org/sites/default/files/crc.pdf\" rel=\"nofollow noreferrer\">CRC</a> does not assert that children have property rights, nor does <a href=\"https://www.canlii.org/en/commentary/doc/2019CanLIIDocs2584#!fragment//BQCwhgziBcwMYgK4DsDWszIQewE4BUBTADwBdoByCgSgBpltTCIBFRQ3AT0otokLC4EbDtyp8BQkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA\" rel=\"nofollow noreferrer\">this summary</a> of children and the law in Canada assert anything about children having a right to not be deprived of their property except by due process of law. I expect that Jen will know more about where there is such a right asserted in Canadian law.</p>\n<p>Moving somewhat to the south, <a href=\"https://law.stackexchange.com/questions/24455/in-the-usa-do-parents-have-the-right-to-control-their-childrens-possessions\">children do have property rights</a>. In that country, a school would have the right to seize a child's property for disciplinary reasons, but could not keep it indefinitely and could not give it to someone else (other than the child's parent or guardian).</p>\n",
"score": 1
}
] |
[
"ontario",
"school"
] |
Is there a path through the courts to sue the US government to allow a national referendum?
| -4 |
https://law.stackexchange.com/questions/90602/is-there-a-path-through-the-courts-to-sue-the-us-government-to-allow-a-national
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<p>I know there’s not an existing avenue to get a national referendum on the ballot, but is there a path through the court system, the damages being that the elected representatives are benefiting from a system (specifically campaign funding) that actually hurts the democratic processes and all citizens?</p>
| 90,602 |
[
{
"answer_id": 90608,
"body": "<p>This would require a constitutional amendment (overriding the First Amendment), which can be done in <a href=\"https://www.archives.gov/federal-register/constitution/article-v.html\" rel=\"nofollow noreferrer\">two ways</a>. Congress can write an amendment and submit it to the states; or the states can call for a convention. None of these methods can be implemented by any number of courts.</p>\n",
"score": 4
},
{
"answer_id": 90603,
"body": "<blockquote>\n<p>...but is there a path through the court system, the damages being that\nthe elected representatives are benefiting from a system (specifically\ncampaign funding) that actually hurts the democratic processes and all\ncitizens?</p>\n</blockquote>\n<p>No there is not. The remedy envisioned by the Founders is that those elected officials who are found by their constituents to be abusing the powers of their office can be unseated in the next election.</p>\n<p>Is it possible that some "progressively" minded court would attempt to "legislate from the bench" and implement such a scheme? I'd say anything is possible given today's judicial environment but getting courts to agree on this all the way to SCOTUS is quite a stretch.</p>\n",
"score": 3
},
{
"answer_id": 90620,
"body": "<p>Such an order would be unconstitutional under Article I Section 1:</p>\n<blockquote>\n<p>All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.</p>\n</blockquote>\n<p>A referendum would vest legislative powers in the electorate instead of Congress.</p>\n",
"score": 0
}
] |
[
"constitutional-law",
"federal-courts",
"elections"
] |
What is the dresscode for jurors in Australian courts?
| -3 |
https://law.stackexchange.com/questions/90589/what-is-the-dresscode-for-jurors-in-australian-courts
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CC BY-SA 4.0
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<p>Are there any rules and regulations jurors in Australian courts have to abide by when it comes to how they are dressed in court? If so, what would be the consequences of violating them? Can jurors be reported for contempt of court if their outfit is considered improper?</p>
| 90,589 |
[
{
"answer_id": 90614,
"body": "<p><a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" aria-label=\"show questions tagged 'new-south-wales'\" rel=\"tag\" aria-labelledby=\"tag-new-south-wales-tooltip-container\">new-south-wales</a></p>\n<blockquote>\n<p>Make sure you are dressed neatly. You do not need to wear a suit but you should not wear singlets, thongs, untidy, revealing or ripped clothing. </p>\n</blockquote>\n<p><a href=\"https://www.lawaccess.nsw.gov.au/Pages/representing/getting_ready_for_court/lawassist_what_to_do_say_and_wear_in_court.aspx\" rel=\"nofollow noreferrer\">What to do, say and wear in court</a></p>\n<p>Failure to adhere to the dress code is unlikely to be, of itself, <a href=\"https://www.judcom.nsw.gov.au/publications/benchbks/local/contempt_in_the_face_of_the_court.html\" rel=\"nofollow noreferrer\">contempt of court</a>. Depending on the circumstances and the temperament of the presiding officer, it might be ignored or the person might be ordered to leave the court, possibly with an order to return suitably dressed. Failure to follow an order of the court <em>is</em> contempt. So, for example, if a person called for jury service was inappropriately dressed, the judge might order them to attend the next day correctly attired: if they didn’t, then they might hold them in contempt for failing to follow the order, not for being inappropriately dressed.</p>\n",
"score": 1
}
] |
[
"australia",
"rules-of-court",
"jury"
] |
Does a YouTuber have any copyrights over a mirrored video?
| 1 |
https://law.stackexchange.com/questions/90585/does-a-youtuber-have-any-copyrights-over-a-mirrored-video
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CC BY-SA 4.0
|
<p>On YouTube, it is common for users to upload videos that they have created or own the rights to. However, some users may attempt to avoid copyright infringement by uploading <a href="https://www.youtube.com/watch?v=KndG-2l8jsg" rel="nofollow noreferrer">mirrored versions</a> of videos that they do not own the rights to. In these cases, does the original YouTuber still have any copyrights over a mirrored version of their video? Can they still make a claim against the uploader for using their content without permission?</p>
| 90,585 |
[
{
"answer_id": 90592,
"body": "<p>First of all, taking a video made by someone else, making alterations and then distributing the resulting work is probably already a copyright violation. There are exemptions like fair use (check the comments for an example), but just taking a whole video, mirroring it and reposting it without any own contribution very likely does not constitute fair use. The people who do that don't avoid copyright infingement. They just try to avoid getting caught by any automatic system YouTube has in place to detect copyright infringements. But avoiding automatic filters does not mean to avoid DMCA takedown notices, cease&desist letters or lawsuits from real humans who find a mirrored version of their video and feel that their copyright was violated.</p>\n<p>However, alterations to a creative work can be a creative work in itself. So regardless of the fact that one violated copyright in creating a derivative work, that derivative work might still be eligible for copyright in its own right. That means someone who reposts a video originally made by party A and then altered by party B would violate the copyright of both A and B at once and thus expose themselves to potential legal actions from either party.</p>\n<p>But the question is if simply mirroring a video constitutes the necessary <a href=\"https://en.wikipedia.org/wiki/Threshold_of_originality\" rel=\"nofollow noreferrer\">threshold of originality</a> to make the resulting work eligible for copyright. In most courts, it probably would not.</p>\n",
"score": 3
},
{
"answer_id": 90586,
"body": "<h2>Mirroring is copyright violation</h2>\n<p>A mirror of an image is either a copy or a derivative work. Doing either without permission is copyright violation.</p>\n",
"score": 0
}
] |
[
"software",
"youtube"
] |
Legal recognition of polygamy around the world?
| 1 |
https://law.stackexchange.com/questions/90606/legal-recognition-of-polygamy-around-the-world
|
CC BY-SA 4.0
|
<p>Are you aware of any country of the world in which polygamy (with no restrictions over the gender of the involved people) is legally recognized or at least there is some battle for it?</p>
| 90,606 |
[
{
"answer_id": 90607,
"body": "<p>Nowhere is this legal. Polygamy is legal in 58 countries, <a href=\"https://worldpopulationreview.com/country-rankings/countries-where-polygamy-is-legal\" rel=\"nofollow noreferrer\">polyandry</a> is possibly legal in Sri Lanka and <a href=\"http://www.bhutanwatch.org/wp-content/uploads/2022/03/G-Rizal.pdf\" rel=\"nofollow noreferrer\">Bhutan</a>. Neither country recognizes <a href=\"https://www.pewresearch.org/religion/fact-sheet/gay-marriage-around-the-world/\" rel=\"nofollow noreferrer\">same-sex marriage</a>, ruling out a marriage between three women. The <a href=\"https://www.nationalcouncil.bt/assets/uploads/docs/acts/2017/Marriage-Act-of-Bhutan-1980_Eng.pdf\" rel=\"nofollow noreferrer\">law of Bhutan</a> is clear on the requirement of male-female mixing, only allowing marriage between 1 man and 1 woman at a time.\nIn Sri Lanka, the <a href=\"http://www.commonlii.org/lk/legis/consol_act/mad132209.pdf\" rel=\"nofollow noreferrer\">Kandyan Marriage and Divorce Act</a> also allows multiple husbands for a woman, but only for Kandyans (Buddhist from the former provinces of the Kandyan Kingdom).</p>\n",
"score": 4
}
] |
[
"marriage",
"civil-rights"
] |
Why no right to a jury trial in Espionage Act trials?
| -5 |
https://law.stackexchange.com/questions/89191/why-no-right-to-a-jury-trial-in-espionage-act-trials
|
CC BY-SA 4.0
|
<p>Why are defendants in trials for alleged criminal violations of the 1917 US Espionage Act, -- as, say, Julian Assange would be if extradited to the US -- not afforded the same right to an open and public jury trial that all other defendants in criminal cases are allowed? Is this patent violation of the defendant's Sixth Amendment right to a jury trial written into the Espionage Act itself,or is it justified by arguments from other legal precedents?</p>
| 89,191 |
[
{
"answer_id": 89194,
"body": "<p>There is no exception arising from the Espionage Act, indeed in <a href=\"https://supreme.justia.com/cases/federal/us/312/19/\" rel=\"noreferrer\">Gorin v. US</a>, 312 U.S. 19, one of the holdings is that "In a prosecution under §§ 1(b) and 2 of the Espionage Act, the jury determines whether the acts of the defendants were connected with or related to the national defense under proper tests laid down by the instructions". This does not mean that the prosecution will not be eager to avoid the possibility of jury nullification and may hope for a bench trial. Here is <a href=\"https://famous-trials.com/rosenberg/2226-verdict\" rel=\"noreferrer\">the transcript</a> of the jury verdict in the trial of the Rosenbergs, and <a href=\"https://www.justice.gov/opa/pr/jury-convicts-former-cia-officer-espionage\" rel=\"noreferrer\">another report</a> of an espionage conviction in a trial by jury. There is no evidence that Assange "would not be afforded a trial by jury" if he requested it.</p>\n",
"score": 9
}
] |
[
"jury",
"sixth-amendment",
"bill-of-rights",
"espionage"
] |
How much money can the owners of an LLC pay themselves to not be accused of "shielding funds from a lawsuit"?
| 1 |
https://law.stackexchange.com/questions/90590/how-much-money-can-the-owners-of-an-llc-pay-themselves-to-not-be-accused-of-shi
|
CC BY-SA 4.0
|
<p>(Context: This question is about US law). Let's say an LLC has two owners and it makes 300k a year in profit. The owners each pay themselves a (reasonable) 150k salary each year, leaving the assets of the LLC itself 0.</p>
<p>In the event the LLC is sued, can a court pierce the corporate veil and go after the salaries that the owners paid themselves? If I understand correctly, it would have to justify that by saying the owners used the LLC as their personal bank account, with the intent to shield the money from lawsuits. But in this case the salaries are reasonable amounts, so how can the court prove illegal intent? In general, is there a maximum salary the owners can collect from an LLC before it's considered as 'shielding funds'?</p>
| 90,590 |
[
{
"answer_id": 90593,
"body": "<p>If your LLC made 300K before paying salaries, and paid 300K total in salaries, that seems quite reasonable. You might have a point if the order of events was: LLC pays 100K in salaries, LLC gets sued for 200K, LLC raises salaries by 200K.</p>\n<p>Note that the owners have to pay income tax on 300k earnings, plus whatever else employers and employees have to pay. And an LLC doesn't pay salaries <em>to owners</em>, it pays salaries <em>to employees</em> who be sheer coincidence are also owners.</p>\n<p>It's a different matter if the company pays dividends. A company must keep dividends low enough so that it can run its business, including paying damages for lawsuits that it knows about. So if the company planned all along to pay 300k in dividends, then is sued for 200k, they likely have to reduce the dividends.</p>\n",
"score": 4
},
{
"answer_id": 90596,
"body": "<p>The legal standard for a fraudulent transfer is typically what it would cost to hire a third-party manager at a current fair market value salary to do the same job. This is also the standard used to distinguish excessively low salaries in S-corporations for FICA tax purposes.</p>\n",
"score": 2
}
] |
[
"united-states",
"limited-liability-company",
"salary"
] |
What legal questions must be answered to determine the international copyright status of generated art?
| 0 |
https://law.stackexchange.com/questions/90594/what-legal-questions-must-be-answered-to-determine-the-international-copyright-s
|
CC BY-SA 4.0
|
<p>Below is my best understanding of how art is generated by machine learning. I understand that the copyright ownership of the final product and any infringement in the process is currently an open question.</p>
<p>Are any of the steps below:</p>
<ul>
<li>already obviously fair use</li>
<li>identified as the core of the legal problem (e.g. "we don't know if step X is transformative")</li>
</ul>
<p>I am asking in the context of international law.</p>
<p><a href="https://mermaid.live/edit#pako:eNptkT9vwjAQxb-K5SlIMMTdMlRK1QaQQopEN5vhlFzAqv8g51KEEN-9TtKywOb7vXf3fPaV175BnvHW-HN9hEDs6025VZokeSDdEUtnM7ZYsDogkP7RdInVK8vTaBJ3k3huEsrlqVxbOCBL94PDaPc9amWUxJ8kHqRSlvn6sxq5RYIGCEZtOUwcqB47_5F4QEu5iYsZdkCHAciH_ahsJjwVu7jDS5J8uIb1HYanO2zlNnh7onvHTu4ujo7Y6dgy0UpWeJ7iu4kUstAODOvQYE3au_0QNY4_el1PtywYn3OLwYJu4g9clWNM8TjaouJZPDbYQm9IceVu0Qo9-Zhd84xCj3Pen-Kz4LuGQwDLsxZMh7dfTQuPjQ" rel="nofollow noreferrer"><img src="https://mermaid.ink/img/pako:eNptkT9vwjAQxb-K5SlIMMTdMlRK1QaQQopEN5vhlFzAqv8g51KEEN-9TtKywOb7vXf3fPaV175BnvHW-HN9hEDs6025VZokeSDdEUtnM7ZYsDogkP7RdInVK8vTaBJ3k3huEsrlqVxbOCBL94PDaPc9amWUxJ8kHqRSlvn6sxq5RYIGCEZtOUwcqB47_5F4QEu5iYsZdkCHAciH_ahsJjwVu7jDS5J8uIb1HYanO2zlNnh7onvHTu4ujo7Y6dgy0UpWeJ7iu4kUstAODOvQYE3au_0QNY4_el1PtywYn3OLwYJu4g9clWNM8TjaouJZPDbYQm9IceVu0Qo9-Zhd84xCj3Pen-Kz4LuGQwDLsxZMh7dfTQuPjQ?type=png" alt="" /></a></p>
| 90,594 |
[
{
"answer_id": 90595,
"body": "<h2>Authorship</h2>\n<p>Copyright can only be granted to a human author. The end user might have a copyright in the prompt, but as it is currently held, nobody can hold a copyright in the resulting images, as they have no human author.</p>\n",
"score": 1
}
] |
[
"copyright",
"international",
"fair-use"
] |
In Ratatouille, did Linguini have a legally legitimate reason to fire Skinner?
| 14 |
https://law.stackexchange.com/questions/90507/in-ratatouille-did-linguini-have-a-legally-legitimate-reason-to-fire-skinner
|
CC BY-SA 4.0
|
<p>In Ratatouille, when Linguini took over Gusteau's by proving he inherited the restaurant, Skinner seemingly lost his job. Was there legal precedent for Skinner to lose his job; would Skinner hiding the fact that Linguini was Gusteau's son be legitimate grounds for dismissal, or would the fact that there was no station left for Skinner (as his former station as sous chef was replaced) be enough (redundancy)?</p>
| 90,507 |
[
{
"answer_id": 90511,
"body": "<p>It's been a while since I've seen the film (and what I remember of it is the ending), but if I recall, Skinner was conspiring to conceal evidence that the restaurant was legally Linguini's so that Skinner could become the legal owner under Gusteau's will. As such, under French Law, an employer may fire an employee for disciplinary reasons that fall into three categories: "Faute Simple", "Faute Grave", "Faute Lourde". In likelihood, since legally Skinner was attempting to steal from the owner of the restaurant, this would likely fall under "Faute Lourde." This is defined as when "when an employee intentionally and willfully attempts to harm the employer or other employees. In this case, the employer must demonstrate intentionality." If not, it would certainly be Faute Grave, which is the same as "Faute Lourde" although the reason does not have to show the intent was malicious, but that it simply harmed either the employer or an employee. At best, Linguini was within his right to fire Skinner without a notice period or pay for the unintentional concealment of his ownership of Gusteau's, though if I recall, Skinner's malicious intention was clear to Linguini by the time he was declared the legal owner. (<a href=\"https://www.safeguardglobal.com/resources/blog/terminating-an-employee-in-france\" rel=\"nofollow noreferrer\">source</a>)</p>\n",
"score": 20
},
{
"answer_id": 90510,
"body": "<p>Ratatouille is set in France, so I'll defer to others on application of French law.</p>\n<p>But in the <a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" aria-label=\"show questions tagged 'united-states'\" rel=\"tag\" aria-labelledby=\"tag-united-states-tooltip-container\">united-states</a>, the general rule is that an employer may terminate any employee, for any reason or for no reason at all.</p>\n<p>There are of course exceptions. You can't fire employees because of their race, religion, sex, and so forth. You can't just fire employees who have a contract for a set period of time or that provides for progressive discipline. And an employee's right to continued employment in a government job may be protected by the Due Process Clause.</p>\n<p>But beyond those rules, an employer can generally be entirely arbitrary in who they hire and fire. An employer can promote you over someone with far more experience simply because you bring doughnuts to the office on Mondays. And the employer can fire you the very next day simply because he thought your shoes were ugly.</p>\n<p>My understanding, though, is that French employment law is quite a bit more protective of workers.</p>\n",
"score": 6
},
{
"answer_id": 90541,
"body": "<p>If we accept the terms of the inheritance as legal, and if we accept that Skinner and Linguini are both designated as heir in the inheritance, Skinner knowing that Linguini is entitled to the restaurant but withholding that information would likely be <em>recel successoral</em> (stealing inheritance basically, <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000020616239\" rel=\"noreferrer\">Code Civil Art 778</a>).</p>\n<p>There's precedent for infractions committed outside of work to be cause for termination. The reason can be that it happened on the workplace, even outside of work hours, or that it is linked in some way to work. So Skinner's tort could become ground for a <em>faute</em> as discussed in <a href=\"https://law.stackexchange.com/a/90511/25215\">hszmv's answer</a>.</p>\n<p><em>Licenciement pour motif économique</em> (<a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000036762081\" rel=\"noreferrer\">Code du travail Art L1233-3</a>) is a possibility but it still requires a cause, the "<em>motif économique</em>". His position would have to be deleted and his functions distributed to various remaining employees, or his position would have to be transformed and it would have to be impossible to train him for it. Simply giving his job to someone else isn't reason enough (<a href=\"https://travail-emploi.gouv.fr/droit-du-travail/la-rupture-du-contrat-de-travail/article/la-definition-du-licenciement-pour-motif-economique#:%7E:text=n%E2%80%99est%20pas%20fond%C3%A9%20sur%20une%20cause%20%C3%A9conomique%2C%20le%20licenciement%20d%E2%80%99un%20salari%C3%A9%20dont%20l%E2%80%99int%C3%A9gralit%C3%A9%20des%20t%C3%A2ches%20est%20reprise%20par%20son%20rempla%C3%A7ant\" rel=\"noreferrer\">as explained here</a>).</p>\n<p>All the above presumes Skinner is employed in the first place and that his employer is Linguini, which is dubious. Linguini can't become the owner of the restaurant or Skinner's employer through sheer wishful thinking. It's been a while, so I can't recall the exact circumstances of Skinner's dismissal. Wikipedia says "Linguini [...] forces Skinner out", so this reinforces the idea Skinner wasn't actually fired.</p>\n<p>"Forcing" someone out in these circumstances might be a form of <em>chantage</em> (blackmail; <a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006418180\" rel=\"noreferrer\">Code Pénal Art 312-10</a>), forcing Skinner to give up the business or else he'll reveal his malfeasance. It would be unlikely to be <em>harcèlement moral</em> (bullying; <a href=\"https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006070719/LEGISCTA000006165282\" rel=\"noreferrer\">Code Pénal Art 222-33-2</a>) as it's a single occurence and not repeated.</p>\n<p>There are legal processes to contest the inheritance and the ownership of the restaurant. Threats isn't one of them. Both Skinner's and Linguini's action would be cause for action.</p>\n",
"score": 5
}
] |
[
"employment",
"france",
"workplace",
"law-in-fiction"
] |
what courts are bound by the decisions of the privy council?
| 3 |
https://law.stackexchange.com/questions/90518/what-courts-are-bound-by-the-decisions-of-the-privy-council
|
CC BY-SA 4.0
|
<p>Which levels of other courts are its decisions binding or not binding on, if English courts don’t actually appeal to it?</p>
<p>To rephrase the question for greater clarity: Essentially, of courts that don’t get appealed from to the JCPC (ie most typical domestic English courts), which are nonetheless bound by its decisions?</p>
| 90,518 |
[
{
"answer_id": 90524,
"body": "<h3>The JCPC's appellate jurisdiction</h3>\n<p>The courts/jurisdictions from which the <a href=\"https://www.jcpc.uk/\" rel=\"nofollow noreferrer\">Judicial Committee of the Privy Council (JCPC)</a> hears appeals is listed <a href=\"https://www.jcpc.uk/about/role-of-the-jcpc.html\" rel=\"nofollow noreferrer\">here</a>. I will just list a few:</p>\n<ul>\n<li><a href=\"https://en.wikipedia.org/wiki/High_Court_of_Chivalry\" rel=\"nofollow noreferrer\">The High Court of Chivalry</a></li>\n<li>Jersey (a Crown dependency)</li>\n<li>Antigua and Barbuda (with leave from the lower court in the Commonwealth)</li>\n<li>The Bahamas (with leave from the lower court in the Commonwealth)</li>\n<li>The Republic of Trinidad and Tobago (an independent republic within the Commonwealth)</li>\n<li>Bermuda (an overseas territory)</li>\n<li>Cayman Islands (an overseas territory)</li>\n<li>Dhekelia (a sovereign base area in Cyprus)</li>\n</ul>\n<h3>Precedential value of old JCPC judgments in jurisdictions that no longer have the JCPC at the apex</h3>\n<p>For jurisdictions that previously had appeals to the JCPC, most now are of the view that their trial and intermediate appellate courts are still bound by the JCPC holdings until the jurisdiction's now highest court says otherwise (Oliver Jones, "Do the Law Lords Bind Lower Courts?" (2013) <a href=\"https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2288234\" rel=\"nofollow noreferrer\">87 Australian Law Journal 383</a>; <em>Bank of Montreal v. Canada Mortgage and Housing Corp.</em> (1990), <a href=\"https://canlii.ca/t/1d7gl\" rel=\"nofollow noreferrer\">44 B.C.L.R. (2d) 247</a>: "[the] decision of the Judicial Committee, rendered while Canadian appeals were still carried to the Privy Council, is binding upon us").</p>\n<h3>Precedential value of "foreign" JCPC decisions</h3>\n<p>Many jurisdictions (e.g. Canada, Barbados, probably New Zealand) also treated/treat "foreign" Privy Council decisions (meaning coming to the JCPC from a different source jurisdiction) as binding, to the extent that there is no difference in the applicable law (<a href=\"https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2288234\" rel=\"nofollow noreferrer\">Jones</a>, p. 387). The precedent at issue in <em><a href=\"https://canlii.ca/t/1d7gl\" rel=\"nofollow noreferrer\">Bank of Montreal</a></em> (cited above), for example, was one that arose from an appeal from the West Indian Court of Appeal affirming a judgment of the Supreme Court of Trinidad and Tobago. It was held to be binding in Canada in 1990, long after Canadian appeals to the JCPC were abolished.</p>\n<h3>Precedential value of JCPC judgments in England and Wales</h3>\n<p>The normal approach is as follows (<em>Willers v. Joyce and another</em>, <a href=\"http://www.bailii.org/uk/cases/UKSC/2016/44.html\" rel=\"nofollow noreferrer\">[2016] UKSC 44</a>, paragraph 12):</p>\n<ol>\n<li>Decisions of the JCPC "cannot be binding on any judge of England and Wales."</li>\n<li>When the JCPC has decided based on common law, these judgments should be normally regarded by any judge, including justices of the Supreme Court "as being of great weight and persuasive value."</li>\n<li>The JCPC should regard itself as bound to follow decisions of the House of Lords or Supreme Court when applying the law of England and Wales.</li>\n</ol>\n<p>However, given the overlap in composition of the JCPC and the UK Supreme Court, and the fact that the president of both is the same person, there is a procedure by which a party can ask the JCPC overrule previous decisions of the House of Lords or Supreme Court and bind domestic courts:</p>\n<blockquote>\n<p>In any case where the Practice Direction applies, I would hold that the following procedure should apply from now on. The registrar of the JCPC will draw the attention of the President of the JCPC to the fact there may be such an invitation. The President can then take that fact into account when deciding on the constitution and size of the panel which is to hear the appeal, and, provided that the point at issue is one of English law, the members of that panel can, if they think it appropriate, not only decide that the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal, was wrong, but also <strong>can expressly direct that domestic courts should treat the decision of the JCPC as representing the law of England and Wales</strong>.</p>\n</blockquote>\n",
"score": 3
}
] |
[
"england-and-wales",
"appeal",
"precedent",
"privy-council",
"commonwealth"
] |
Jury (mis)conduct
| -4 |
https://law.stackexchange.com/questions/90571/jury-misconduct
|
CC BY-SA 4.0
|
<p>If I have to attend a jury in Australia, is it illegal for me to dress up in the goofiest manner? Is it possible for me to be accused of misconduct on that ground?</p>
| 90,571 |
[
{
"answer_id": 90587,
"body": "<h2>Yes</h2>\n<p>When you are called for jury duty, you are given a list of expectations and duties. For example, <a href=\"https://www.courts.qld.gov.au/going-to-court/courtroom-etiquette\" rel=\"nofollow noreferrer\">Queensland</a> requires everyone to dress neatly and <a href=\"https://courts.nsw.gov.au/for-jurors/for-individuals-/summoned-for-jury-service--.html\" rel=\"nofollow noreferrer\">New South Wales similarly so.</a> The wording from NSW is:</p>\n<blockquote>\n<p>What you should wear</p>\n<p>You do not have to wear a suit and tie, but you should dress in neat, comfortable clothes. Do not wear thongs or shorts. As you may be sitting for long periods of time it is important to be comfortable, whilst still showing respect for the court.</p>\n</blockquote>\n<p>Why? Because wearing clothes that can be seen as disrespect to the court - e.g. very flashy or goofy ones - can get you expelled from court, fined or even jailed for <a href=\"https://www.judcom.nsw.gov.au/publications/benchbks/local/contempt_in_the_face_of_the_court.html\" rel=\"nofollow noreferrer\"><em>contempt of court</em> [NSW]</a>. Victoria has a specific <a href=\"https://www.legislation.vic.gov.au/in-force/acts/juries-act-2000/052\" rel=\"nofollow noreferrer\"><em>Juries Act</em></a>, which includes the following language to point to its own contempt of court section:</p>\n<blockquote>\n<p>84 Contempt of court</p>\n<p>Nothing in this Part affects the power of a court to\ndeal with a contempt of court summarily of its\nown motion.</p>\n<p>85 Enforcement of fines</p>\n<p>If a court fines a person under Division 2 or for\ncontempt of the court, the fine is enforceable\nunder the Sentencing Act 1991 as if the person\nhad been found guilty of an offence</p>\n</blockquote>\n",
"score": 4
}
] |
[
"australia",
"jury"
] |
Do tribunals have inquisitorial powers?
| 4 |
https://law.stackexchange.com/questions/90555/do-tribunals-have-inquisitorial-powers
|
CC BY-SA 4.0
|
<p>In England, tribunals are intended to be more informal and therefore accessible venues of justice where the parties cannot be expected to conduct proceedings with full legal competence.</p>
<p>In a pure adversarial system which England is mostly, judges are a passive audience largely precluded from making proactive inquiries (i.e. inquisitorial powers).</p>
<p>Is it that in order to bridge the gap and enable tribunals to have more just outcomes, tribunals' judges are afforded greater latitude to exercise inquisitorial roles than judges in courts?</p>
| 90,555 |
[
{
"answer_id": 90560,
"body": "<p>In answer to the queation in the OP's title, although it isn't actually a "tribunal" the <a href=\"https://www.judiciary.uk/courts-and-tribunals/coroners-courts/\" rel=\"nofollow noreferrer\">Coroner’s Court</a> is inquisitorial:</p>\n<blockquote>\n<p>An inquest is a fact-finding inquiry to establish who has died, how, when and where the death occurred. It is not a trial – no one is on trial in a Coroner’s Court. Unlike other Courts, whether civil or criminal, there is no prosecution or defence. <strong>The Coroner’s jurisdiction is inquisitorial rather than adversarial or accusatorial.</strong></p>\n<p><a href=\"https://coronerscourtssupportservice.org.uk/faq/#:%7E:text=It%20is%20not%20a%20trial,rather%20than%20adversarial%20or%20accusatorial.\" rel=\"nofollow noreferrer\">Source</a></p>\n</blockquote>\n",
"score": 3
},
{
"answer_id": 90575,
"body": "<h2>Tribunals are not courts</h2>\n<p>Tribunals are an arm of administrative government (or of private contract in the case of arbitrations) and must follow the rules the statute that created them sets out. They are no different from other government decision makers like the police officer deciding whether or not to arrest you, the planner deciding whether or not to give you building permission, or the customs officer deciding whether or not to let you into the country.</p>\n<p>This might look “adversarial” or “inquisitorial” but those are really not the correct terms to apply. A tribunal is what Parliament says it is.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"judge",
"tribunal-procedure",
"inquisitorial-system",
"adversarial-system"
] |
Do any judicial bodies in England have inquisitorial powers?
| 1 |
https://law.stackexchange.com/questions/90553/do-any-judicial-bodies-in-england-have-inquisitorial-powers
|
CC BY-SA 4.0
|
<p>England mostly follows common law, an adversarial system which is the opposite of the inquisitorial judicial system.</p>
<p>That said, are there deviations and variations from this in any of its judicial bodies, including courts, and tribunals, and any others?</p>
| 90,553 |
[
{
"answer_id": 90574,
"body": "<h2>Judicial bodies are typically not inquisitorial</h2>\n<p>That said, under the doctrine of Parliamentary Sovereignty in the UK, they can make special purpose courts that are inquisitorial - the Coroner’s Court being an example.</p>\n<p>Tribunals can be because they are administrative decision makers, not judicial decision makers. The statute that creates them will tell them how to operate. The granddaddy of all tribunals, the <a href=\"https://en.wikipedia.org/wiki/Royal_commission\" rel=\"nofollow noreferrer\">Royal Commission</a>, is explicitly inquisitorial.</p>\n",
"score": 0
}
] |
[
"england-and-wales",
"court",
"tribunal",
"inquisitorial"
] |
Why does the high court of chivalry follow “civil law,” and what does this mean?
| 3 |
https://law.stackexchange.com/questions/90552/why-does-the-high-court-of-chivalry-follow-civil-law-and-what-does-this-mean
|
CC BY-SA 4.0
|
<p>The English so called high court of chivalry, archaic and now rarely used, is said by Wikipedia to follow civil law (ie not common law).</p>
<p>How does this work, and how did it come to be?</p>
<p><a href="https://en.m.wikipedia.org/wiki/High_Court_of_Chivalry" rel="nofollow noreferrer">https://en.m.wikipedia.org/wiki/High_Court_of_Chivalry</a></p>
| 90,552 |
[
{
"answer_id": 90573,
"body": "<h2>Because it missed the memo</h2>\n<p>The <a href=\"https://www.theheraldrysociety.com/articles/bringing-proceedings-in-the-high-court-of-chivalry-today/\" rel=\"nofollow noreferrer\">High Court of Chivalry</a> (HCC) was established about 1350 specifically to deal with cases that fell outside of common law. At the time, England had several legal traditions with the common law being primarily concerned with property rights. This left “matters of honour, pedigree, descent, and coat armour” without a home.</p>\n<p>Originally the HCC had a wider remit than just coats of arms but as the common law expanded, the jurisdiction of the HCC narrowed until it fell “into disuse by 1737 and therefore avoided the effect of the Supreme Court of Judicature Act 1873, which formed the modern High Court of Justice. The Court remained a separate jurisdiction, slumbering for some two hundred years.“ Basically all it had left was disputes over heraldry and they just don’t happen very often.</p>\n<p>So, when the various courts of England were merged into what we call the common law of today, this one got missed. As it was never a common law court it follows the rules of royal courts, the closest analog today being the civil law tradition.</p>\n<p>The reason that it hasn’t been swallowed up is that, while we might think of coats of arms as a type of intellectual property, IP is a creature of statute and Parliament has never made laws about them. If it did, then unless the law specified otherwise, it would move these disputes into the mainline judiciary and the HCC would have no function left. The reason it doesn’t is a) it’s not very important and Parliament has better things to do, and b) arcane, weird but harmless traditions are very English.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"common-law",
"court",
"legal-history",
"civil-legal-system"
] |
Merchandise damaged prior to purchase
| 2 |
https://law.stackexchange.com/questions/90514/merchandise-damaged-prior-to-purchase
|
CC BY-SA 4.0
|
<p>Imagine one is browsing items in the aisles of a grocery store and drops one of them accidentally on the floor so it breaks.</p>
<p>Must any grocery store would generally write it off and tell a customer not to worry about an innocent mistake. Of course if you dropped it after checking out and processing it you don’t get to swap it for a new one and it is the customer’s loss.</p>
<p>But what is the legal position here? (Criminal implications? Civil matter only?) If the store wishes to pursue you for leaving without paying with the only recourse be to sue you for the value in civil court? What if you don’t cooperate to give an address for service? Can you be compelled or are they SoL?</p>
| 90,514 |
[
{
"answer_id": 90531,
"body": "<p>One analysis is in <em>Bow Cycle & Motor Co. Ltd. v. Murray</em>, <a href=\"https://canlii.ca/t/1qdvl\" rel=\"nofollow noreferrer\">2006 ABPC 366</a>, by Judge O'Ferrall (now Justice of the Court of Appeal of Alberta). The defendant sat on a motorcycle, positioned it fully upright, and when he returned the motorcycle to rest on the kickstand, the bike crashed to the floor.</p>\n<p>There were three potential paths to liabilty argued, none successfully:</p>\n<ul>\n<li>negligence (for example, if the defendant had repositioned the kickstand at any point—there was no evidence of this)</li>\n<li>trespass to goods (but this would have required intentional or negligent treatment of the good)</li>\n<li>contract (which would have required a clear "you break it, you buy it" policy with express statement that the customer would be liable even for non-negligent damage—there wasn't)</li>\n</ul>\n<p>Context mattered. Liability might be made more strict more easily in a china shop. The judge wrote:</p>\n<blockquote>\n<p>in the end, this case must turn on the presence or absence of negligence because, at least in the circumstances of a motorcycle shop, a “break it, you buy it” arrangement would have required an element of fault on the part of the breaker, absent a very clearly communicated term that the customer pays irrespective of negligence. There being no such term and negligence having not been proven, I find the Defendant not liable. In so doing, I considered the china shop analogy. It may be that in a china shop one could infer that the customer pays for broken items irrespective of fault because there is no need to touch the item in order to make the purchase decision. But in order to make an informed purchase of a motorcycle, the purchaser must try it on for size and the fact that he must do so makes it much more difficult to infer a no-fault promise to pay for damage howsoever caused.</p>\n</blockquote>\n",
"score": 4
},
{
"answer_id": 90542,
"body": "<h2>There are no special laws here</h2>\n<p>That is, the law is the same as if you broke anyone else’s stuff. Unless it isn’t - check your local statutes.</p>\n<p>If you did it intentionally then that’s criminal damage and you can be charged by the police and sued by the owner for restitution.</p>\n<p>If you were negligent, which would require showing you had a duty of care and that you failed in that duty, you could be sued for restitution but it would not be a crime. It would also be subject to reductions for contributory negligence, for example, if the shopkeeper had used the pyramid of produce trope, then you could argue they were partially liable.</p>\n<p>A pure accident without any negligence on your part does not expose you to liability.</p>\n<p>Damages are that you would be liable for the loss - that is the cost of replacing the goods.</p>\n",
"score": 3
}
] |
[
"criminal-law",
"civil-law",
"any-jurisdiction",
"retail",
"shoplifting"
] |
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