question_title
stringlengths 15
182
| score
int64 -12
227
| link
stringlengths 57
135
| license
stringclasses 2
values | question_body
stringlengths 38
15.9k
| question_id
int64 1
94.7k
| answers
list | tags
list |
|---|---|---|---|---|---|---|---|
Alimony on gross salary
| 0 |
https://law.stackexchange.com/questions/89918/alimony-on-gross-salary
|
CC BY-SA 4.0
|
<p>How does someone pay alimony on their gross salary if they are employed by someone else?
Suppose the partners agree on giving half of the gross monthly salary as alimony. If said person has X gross income per month which is taxed before having it in their bank account, how can they first pay X/2 to their ex-partner and then be taxed on the remaining X/2? Do they have to wait one year to claim the alimony as costs in their tax return or can they tell the tax office right away so that each month they are taxed on X/2?
The countries I am concerned are Netherlands and Belgium.</p>
| 89,918 |
[
{
"answer_id": 89924,
"body": "<blockquote>\n<p>How does someone pay alimony on their gross salary if they are\nemployed by someone else? Suppose the partners agree on giving half of\nthe gross monthly salary as alimony. If said person has X gross income\nper month which is taxed before having it in their bank account, how\ncan they first pay X/2 to their ex-partner and then be taxed on the\nremaining X/2? Do they have to wait one year to claim the alimony as\ncosts in their tax return or can they tell the tax office right away\nso that each month they are taxed on X/2? The countries I am concerned\nare Netherlands and Belgium.</p>\n</blockquote>\n<p>There are two senses of the word "how".</p>\n<p>One is, "how can one possibly do this?"</p>\n<p>The answer to that is easy. Pay more than half of your after tax income as alimony and let that have the tax implications that it does under the relevant laws (which might include not only Belgian domestic tax law, and Dutch domestic tax law, but also one more more Belgian-Dutch tax treaties).</p>\n<p>The other sense of the word "how" is, "what is a sensible way to go about doing this?"</p>\n<p>I'm not familiar enough with Dutch and Belgian withholding taxes do know the mechanics of how this is done. Probably either the family law lawyer who was involved in setting up the arrangement, or an accountant, would be the best place to do for advice on how this is handled in terms of withholding tax obligations at a detailed, bureaucratic level.</p>\n<p>It might be true, for example, that someone can pay half of the after-tax income as alimony along with an assignment of the tax credit for half of the tax withheld.</p>\n<p>Alternatively, it might be the case that alimony payments withheld from a paycheck, if set up that way with the employer using the proper withholding tax form, impact how much of tax is withheld from the part of the wage payable to the employee.</p>\n",
"score": 1
}
] |
[
"divorce",
"netherlands",
"salary",
"belgium"
] |
What does endorse mean?
| 0 |
https://law.stackexchange.com/questions/89913/what-does-endorse-mean
|
CC BY-SA 4.0
|
<p>According to Oxford Languages,</p>
<blockquote>
<p>sign (a check or bill of exchange) on the back to make it payable to
someone other than the stated payee <strong>or to accept responsibility for
paying it</strong>.</p>
</blockquote>
<p>I'm having trouble understanding the bolded part. "sign (a check or bill of exchange) on the back to make it payable to someone other than the stated payee" is clear. This basically means that if my father is the stated payee on the cheque, and he <em>endorses</em> the cheque using my name, then I will be able to encash the cheque as well. However, what does "to accept responsibility for paying it" mean?</p>
| 89,913 |
[
{
"answer_id": 89929,
"body": "<h2>It means if the check bounces, you still have to pay</h2>\n<p>A check is a negotiable instrument which means it can be passed from hand to hand as a promise to pay before eventually being converted to cash.</p>\n<p>However, if I hold the check from you but it’s originally from someone else, you are promising to pay me irrespective of if the original drawer makes good on their promise to pay you.</p>\n",
"score": 2
},
{
"answer_id": 89928,
"body": "<p>One kind of negotiable instrument which illustrates the point most familiarly is a negotiable promissory note.</p>\n<p>If you sign a promissory note even if the loan is made to someone else, i.e. if you endorse the promissory note, by doing so, you accept responsibility for paying it.</p>\n<p>The language in the sentence breaks out:</p>\n<blockquote>\n<p>sign (a check or bill of exchange) on the back</p>\n<p>[a] to make it payable to someone other than the stated payee or</p>\n<p>[b] to accept responsibility for paying it.</p>\n</blockquote>\n<p>There are two different purposes for which you could endorse the instrument. One is the change the payee and another is to change the payor.</p>\n<p>The language is somewhat awkward, because usually when you sign to accept responsibility for paying it, you sign on the front and not the back.</p>\n<p>For example, if your bank "certifies" your personal check, it is basically co-signing the promise to pay the payee that you made by signing the check.</p>\n",
"score": 1
}
] |
[
"legal-terms",
"banking"
] |
Can a court-declared unconstitutional law become valid when it's added to the constitution?
| 0 |
https://law.stackexchange.com/questions/89922/can-a-court-declared-unconstitutional-law-become-valid-when-its-added-to-the-co
|
CC BY-SA 4.0
|
<p>Idaho is one of the states with citizen initiative and referendum rights in the state constitution (hereafter referred to as "Init.".) State constitution changes are not allowed under this right. Only the legislature can pass constitutional amendments, then subject to voter approval of just >50% votes.</p>
<p>There have been conflicts over the Init. right because the legislature sets the conditions in state laws to get a petition onto the ballot.</p>
<p>The constitution statement is:</p>
<blockquote>
<p>The people reserve to themselves the power to approve or reject at the
polls any act or measure passed by the legislature. This power is
known as the referendum, and legal voters may, under such conditions
and in such manner as may be provided by acts of the legislature,
demand a referendum vote on any act or measure passed by the
legislature and cause the same to be submitted to a vote of the people
for their approval or rejection.</p>
<p>The people reserve to themselves the power to propose laws, and enact
the same at the polls independent of the legislature. This power is
known as the initiative, and legal voters may, under such conditions
and in such manner as may be provided by acts of the legislature,
initiate any desired legislation and cause the same to be submitted to
the vote of the people at a general election for their approval or
rejection.</p>
</blockquote>
<p>Essentially, the citizen initiative and referendum rights have been used as checks and balances by the people against the legislature. The legislature has become hostile to citizen initiatives and referendums after some laws were overturned and some laws were passed by citizens on popular subjects the legislature refused to pass or even consider for years.</p>
<p>In 2018, the legislature changed the law to make it much more difficult to get Inits. on the ballot. Previous law (and current as of 2023) requires that valid signatures must equal 6% of the total votes cast in Idaho in the last presidential election, and at least 6% of signatures must come <strong>from each of 18 of Idaho's 35 districts</strong> (51%). The new law required 6% of signatures <strong>from all 35 districts</strong> (100%).</p>
<p>Because of Idaho's vast geography and many rural districts, this makes the process nearly impossible. It effectively empowers <strong>just one district out of thirty-five (3%) to effectively veto</strong> the Init. from getting on the ballot for all of the state voters to decide for themselves whether to make it law or not.</p>
<p>To illustrate the challenge of getting rural signatures in Idaho, legislators are paid extra money for constituent services like fuel to drive around to speak with voters and are paid according to the square miles of each county. Urban county legislators are given $400, while some rural county legislators are paid $3,200 to reach out to their constituents. Those vast distances are what make some areas too difficult to gather 6% of the required signatures.</p>
<p>However, the state supreme court unanimously declared the law unconstitutional because it "was so restrictive that it violated a fundamental right under the state’s constitution."</p>
<p>Judicial quotes included:</p>
<blockquote>
<p>"the legislature’s duty to give effect to the people’s rights is not a
free pass to override constitutional constraints and legislate a right
into non-existence, even if the legislature believes doing so is in
the people’s best interest."</p>
<p>"dramatic check on the ballot qualification process without showing a
compelling need for such a check,"</p>
<p>"all qualifying initiatives or referenda are already subjected to a
statewide vote."</p>
<p>"The legislature’s actions amounted to ... a law that made the
initiative and referendum process more difficult for proponents of
future ballot propositions, while simultaneously making it more
difficult for those opposed to the new law to pass a referendum to
repeal that very law."</p>
</blockquote>
<p>An example given was that the largest urban district, Boise, could stop an agricultural initiative that is popular in the other 34 districts. When Medicaid expansion was passed in 2018 by the citizen initiative process (61%), one single rural district could have vetoed the question from even getting onto the ballot where all voters (urban and rural) got to decide on it.</p>
<p>This year, 2023, the legislature is close to passing a constitutional amendment that does the same thing as the law that was ruled unconstitutional. Because the people have no power to change the constitution, it's likely to be a permanent death for citizen Inits.</p>
<p><strong>1. Before the election, can a lawsuit prevent the amendment question from being put on the ballot?</strong></p>
<p><strong>2. If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional?</strong></p>
| 89,922 |
[
{
"answer_id": 89923,
"body": "<blockquote>\n<ol>\n<li>Before the election, can a lawsuit prevent the amendment question from being put on the ballot?</li>\n</ol>\n</blockquote>\n<p>No. Generally speaking, the constitutionality of an otherwise procedurally proper ballot initiative is not ruled upon until after it has passed (eliminating the need to rule unnecessarily on the constitutionality of failed initiatives).</p>\n<p>Of course, if someone tried to put it in the ballot when the existing law conditions for putting it on the ballot were not met (e.g. because a deadline for doing so wasn't met) that could be challenged in court by a party with standing to do so.</p>\n<blockquote>\n<ol start=\"2\">\n<li>If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional?</li>\n</ol>\n</blockquote>\n<p>Probably not. The constitution as newly adopted doesn't sound like it would forbid doing that. This seems to be the whole point of the constitutional amendment in the first place and it the amendment to the constition is approved, that requirement is gone.</p>\n",
"score": 5
}
] |
[
"statutes",
"legislature",
"judicial-review",
"constitutional-rights",
"initiative"
] |
Should a hung jury mis-trial create reasonable doubt for acquittal?
| -10 |
https://law.stackexchange.com/questions/89916/should-a-hung-jury-mis-trial-create-reasonable-doubt-for-acquittal
|
CC BY-SA 4.0
|
<p>Read all of this and tell me where I'm wrong. So I agree, that a hung jury is in fact reasonable doubt by lack of concurrence, the defendant should be acquitted. If we don't believe in this basic math result then we shouldn't trust having a jury as an integral part of the legal process. If we use this current failed logic of our legal system then why not just from the beginning have 24 or 36 or 48 or 96 jurors and come up with some magical percentage that removes reasonable doubt in their decision. Let alone it will cost the defendant another $100,000 to go to trial again for a mistrial. Every trial thereafter is adding yet another 12 jurors, however it doesn't change the fact that there still remains, after 2 or 3 trials, a juror or jurors who found reasonable doubt out of the 24, or 36 jurors that could not convict. This basic logic to continue trying the defendant with even one past juror saying not guilty by having reasonable doubt, whether the juror is flawed or not as we can't judge a juror, negates the original intent of the Constitution. The Constitution doesn't say you have a right to "an unflawed perfect human jury of your piers", it says just simply "a jury of your piers". For the prosecution to get the right to roll through as many jurors as they want beyond 12 to "fish" for a group that concurs to get a conviction is also unconstitutional.</p>
| 89,916 |
[
{
"answer_id": 89917,
"body": "<h2>You're wrong in the first sentence</h2>\n<blockquote>\n<p>So I agree, that a hung jury is in fact reasonable doubt by lack of concurrence, the defendant should be acquitted.</p>\n</blockquote>\n<p><strong>No.</strong> A hung jury just means they can't decide on <strong>any</strong> item they should decide about, for whatever reason. Maybe they all want to see the defendant guilty but can't decide if it is murder 1st or 2nd degree, or one of them is just trying to stay out of work and just is contrarian to <em>whatever</em> the jury deliberates, wether guilty or not guilty. In either case <strong>they can not tell the judge what they can't agree about</strong>. They can only tell the judge that they can't agree on a verdict.</p>\n<p>Since the judge can't assume anything about the deliberations, he can only reset trial and swap the jury for one that actually might be able to decide. The whole Jury is tossed out, their deliberations don't matter anymore - their hung state does <strong>not</strong> influence the re-trial.</p>\n",
"score": 3
}
] |
[
"criminal-law"
] |
Is it legal for a parent to take items from their children
| 1 |
https://law.stackexchange.com/questions/76587/is-it-legal-for-a-parent-to-take-items-from-their-children
|
CC BY-SA 4.0
|
<p>Hypothetically, if a child has a cell phone that they paid for with their own money that they saved by doing chores or whatnot, can a parent take it away as a punishment for doing something wrong?</p>
<p>Please don't send a complicated answer, just a yes or no. I am not a lawyer.</p>
| 76,587 |
[
{
"answer_id": 76588,
"body": "<h2>Yes</h2>\n<p>The child owns what they own - it would be illegal for the parent to take the item and dispose of it or otherwise permanently keep if from the child (once they became an adult).</p>\n<p>However, parents are their children’s legal guardians and are responsible for the raising of their children including matters of discipline. It is both legal and appropriate for a parent to limit access of a child to their possessions.</p>\n",
"score": 5
},
{
"answer_id": 76598,
"body": "<p>Where I live (and as the comment pointed out, laws vary from place to place), children may <em>own</em> property. And it is the right and duty of the parents to raise their children, which may mean controlling what the children <em>do</em> with their property.</p>\n<ul>\n<li>If I give my niece $100, she owns that money.</li>\n<li>If she wants to spend it all on ice cream, her parents may forbid that commercial transaction. They can take that money away from her, for safekeeping until she reaches her majority. Or more likely, to disburse it in smaller chunks that do not lead to stomach problems.</li>\n<li>If I give her $100 worth of ice cream, storage for a couple of years is unrealistic. But the parents can still control if and when (and how much) she gets to eat.</li>\n</ul>\n<p>I guess your hypothetical child would be older than the niece I've been talking about. Again the parents would have a role to play.</p>\n<ul>\n<li>The parents' signature would be required on any contract involving recurring payments, like most phone contracts.</li>\n<li>While the parents <em>should</em> educate the minor about living in the real world, which usually involves having a phone, they are <em>also</em> supposed to supervise media use and to keep harmful content away from the minor. This may include taking the phone away, as long as they return it by the 18th birthday ...</li>\n</ul>\n",
"score": 3
}
] |
[
"ownership",
"parental-rights"
] |
GDPR, PII, and UUIDs
| 3 |
https://law.stackexchange.com/questions/56107/gdpr-pii-and-uuids
|
CC BY-SA 4.0
|
<p>GDPR states that</p>
<blockquote>
<p>An individual is ‘identified’ or ‘identifiable’ if you can distinguish them from other individuals.</p>
</blockquote>
<p>and also that</p>
<blockquote>
<p>The GDPR provides a non-exhaustive list of identifiers, including:
name;
identification number;
location data; and
an online identifier.</p>
</blockquote>
<p>With that in mind, I am trying to wrap my head around what that means in practical terms. If I have two database tables, both encrypted.</p>
<p>One table is globally available and contains user sessions. For the sake of conversation assume that globally means it's physically hosted in countries that EU might now deem equivalent in terms of protection. It holds no PII, just session status and expiry time. It also holds a user UUID that's been randomly generated but is tied to the lifespan of the user i.e. once assigned to a user it does not change.</p>
<p>The other table is physically hosted in EU, and holds a UUID to email mapping.</p>
<p>If a breach results in the first table being leaked the data is anonymous, it is only when joined with the second that that the user session can be tied to PII (email address).</p>
<p>Does this mean that both tables fall under GDPR and thus must be placed in EU (or equivalent), or is it sufficient that only the table containing PII is located there?</p>
| 56,107 |
[
{
"answer_id": 56113,
"body": "<p>The way you describe this UUID, it is <strong>pseudonymous</strong> data (see <a href=\"https://gdpr-info.eu/art-4-gdpr/\" rel=\"nofollow noreferrer\">GDPR Art 4(5)</a> and Recitals <a href=\"https://gdpr-info.eu/recitals/no-28/\" rel=\"nofollow noreferrer\">28</a>–<a href=\"https://gdpr-info.eu/recitals/no-29/\" rel=\"nofollow noreferrer\">29</a>). That is, it is not directly identifying, but you have a mapping between pseudonyms and identifiers that can be used to re-identify this data. Effective pseudonymisation requires not only that the data is logically separate, but that there are effective organisational and technical measures preventing re-combination by unauthorized persons. Alongside with encryption, pseudonymisation is one of the safety measures that the GDPR explicitly requires whenever appropriate (see Art 25, Art 32).</p>\n<p>Pseudonymous data is still personal data, because you can easily re-identify the data. The PII concept is US-specific and is misleading in a GDPR context, where it is not the inherently identifying characteristics of the information that matters, but the realistic ability of the data controller to single out data subjects to whom this data relates (compare Art 4(1) and Recital 26).</p>\n<p>However, were you to irrevocably erase the UUID–email mapping, things are more tricky. There is no longer any connection with directly identifying data, so this data might be anonymous. On the other hand, such a persistent UUID still allows you to recognize/distinguish persons, so it might still be personal data. This might be the case especially when the UUID is used in long-lived cookies of website visitors, thus matching the GDPR's concept of an “online identifier”. This conclusion could be avoided by limiting reuse of UUIDs, e.g. creating a new UUID after some context-dependent appropriate duration.</p>\n<p>The GDPR does not require all data to be stored in the EU, but requires international transfers of personal data to have sufficient protections. If you're processing these data in countries without adequate legal protections (like the United States), additional safeguards have to be used. Pseudonymisation could be part of such safeguards, and has been suggested by some data protection authorities in the wake of the Schrems II ruling. However, pseudonymisation alone does not make the international transfer legal, it is more of a strategy to reduce remaining risks.</p>\n<p>I think that your systems has a good chance of being OK, but not neccessarily so. If in doubt, perform a DPIA and possibly consult your data protection authority under GDPR Art 36. If feasible, storing/processing data only in the EEA or in countries with an <a href=\"https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/adequacy-decisions_enk\" rel=\"nofollow noreferrer\">adequacy decision</a> will simplify compliance. Safeguards such as pseudonymisation could be strengthened by rotating UUIDs, and by restricting access to the table with identifiers.</p>\n",
"score": 5
},
{
"answer_id": 56108,
"body": "<blockquote>\n<p>Does this mean that both tables fall under GDPR and thus must be placed in EU (or equivalent), or is it sufficient that only the table containing PII is located there?</p>\n</blockquote>\n<p>There is no requirement for data falling under GDPR to be physically located in the EU. It can be held in a country deemed to provide the same level of protection as existing EU data laws.</p>\n<p>Both tables will fall under GDPR since the "sessions" table can theoretically be joined with the "emails" table and used to identify a natural person.</p>\n",
"score": 2
}
] |
[
"gdpr"
] |
No online access to online only bank?
| 0 |
https://law.stackexchange.com/questions/89920/no-online-access-to-online-only-bank
|
CC BY-SA 4.0
|
<p>I have an account at an online only bank. There are no physical branch locations for me to visit. 8 months ago I had an issue trying to log in and called their customer support to try to get it resolved. They told me it's a technical issue, gave me a case number and told me they'd contact me once it's resolved.</p>
<p>I've since called a few times and each time they tell me that it's already been escalated and as a technical issue they don't have any timeline for how long it will take for my access to be restored.</p>
<p>I can still check my balance etc. over the phone, but I can't use mobile deposit for example. Are there any legal requirements for allowing access to my account that I might be able to cite when trying to get this issue further escalated?</p>
<p>(When I asked what I was supposed to do about not being able to mobile deposit, I was told I could send the check in by mail to get it processed, so I'm not sure if they could claim I still legally have access to my account, or if there even is such a concept as having legal access to an account.)</p>
| 89,920 |
[
{
"answer_id": 89921,
"body": "<p>Online banks in the US are <a href=\"https://www.lawyer-monthly.com/2023/01/online-banks-money-saving-a-legal-perspective/\" rel=\"nofollow noreferrer\">not legally special</a>: they have to comply with the obligations of brick and mortar banks. I assume that this is actually a US bank, and not a Nigerian bank that you access from the US. However, there is no regulation that requires a bank to be able to handle mobile deposits. If the problem is just that you can't make online deposits, that is legally allowed. For example, my own bank did not have the facility for processing mobile deposits until a few years ago, and even now I have to use a smart phone to make such deposits (it is a traditional bank). The only way in which your situation would be legally problematic would be if your contract with the bank promises that you can make mobile deposits. You could reasonably argue that an 8 month delay in solving the problem was unreasonable.</p>\n<p>Presumably there is some benefit to maintaining this bank, one which you'd like to keep rather than closing the account and moving on. It might be something like "if you close this account, we will claw back the interest that we paid". That is the point at which it might be worthwhile to talk to your lawyer about taking legal action.</p>\n",
"score": 4
}
] |
[
"united-states",
"banking"
] |
Isn't a hung jury proof of reasonable doubt?
| 39 |
https://law.stackexchange.com/questions/74523/isnt-a-hung-jury-proof-of-reasonable-doubt
|
CC BY-SA 4.0
|
<p>I don't understand the logic with allowing additional trials after a hung jury. Isn't the fact that the prosecution can't get 12 jurors to agree the accused is guilty proof that guilt was not proven beyond a reasonable doubt, and so he should be acquitted?</p>
<p>Why does a not guilty verdict have to be unanimous as well?</p>
| 74,523 |
[
{
"answer_id": 74526,
"body": "<h3>No. It means the existence of reasonable doubt is in doubt...</h3>\n<p>One cannot conclude the question of guilt in either direction, so one must try again to see if a different jury can answer the meta-question, to then answer the legal question of guilt.</p>\n<h3>... or is not being addressed</h3>\n<p>If only one person is voting against the consensus, or as many as are allowed by the jurisdiction, they are overruled. That's the allowance made for bias that has somehow reached the jury despite the filtering done beforehand.</p>\n<p>If more people are voting against the majority so that consensus is not possible, it is potentially because someone has made up their mind on the question of guilt regardless of what (some significant part or the weight of) the evidence indicates, defeating the purpose of the trial and providing all the evidence.</p>\n<p>A person not accounting for all the evidence can't be said to have reasonable doubt of guilt, since the doubt may be excluded by the remaining evidence. Similarly, guilt beyond reasonable doubt cannot be supported by only partial evidence, as exculpatory evidence may be among the part not accounted for.</p>\n<h3>... or cannot be addressed by that jury at all.</h3>\n<p>Finally, a jury split on the decision of how to weigh the evidence cannot claim either to have or to have dismissed reasonable doubt, because they cannot agree on what a reasonable doubt is, in the first place.</p>\n",
"score": 33
}
] |
[
"united-states",
"criminal-law"
] |
In US, does an investigator always present the evidence of guilt of a suspect no matter what?
| -3 |
https://law.stackexchange.com/questions/89909/in-us-does-an-investigator-always-present-the-evidence-of-guilt-of-a-suspect-no
|
CC BY-SA 4.0
|
<p>In US criminal justice system, must the investigator always provide the evidence that the particular suspect is the one who indeed perpetrated the crime, no matter what investigation procedures and assets were used(access to a particular computer system or software, access to encryption keys, IP logs, etc.)?</p>
<p>I ask such goofy questions because US has so many interesting laws that make nonsense to me and this is the reason why I ask some of the basics which should make sense in any justice system.</p>
| 89,909 |
[
{
"answer_id": 89912,
"body": "<p>So typically, in the U.S., the investigators (police) will give the case to a prosecutor who will review the case and the evidence and decide if they will present the case to a judge and if so, what will be charged. The prosecutor is the ultimate authority of how to present the case to the court. The investigator(s) will likely be called to testify as their expertise's and actions that lead to certain evidence is required. If there is a certain expert in some type of evidence, that person may testify on conclusions of their findings (for example, if the coroner's report concluded that some was the victim of a homicide, the coroner who wrote the report will be called in to testify to his findings... but since the coroner did not have access to the Detective's witness, they wouldn't talk about the evidence with respect to that which came from eye-witness statements.</p>\n<p>If you're basing you question off of TV or Film depictions of Court rooms, keep in mind that many court room scenes are not accurate and the investigator presenting all of the case could be a result of a limited cast, budget, or time for specialists to present the case. Some shows explicitly separate the roles (Law and Order and its spin offs are a one-hour shows, with half an hour being police procedural and the second half being a legal drama. CSI and its spin-offs would frequently bundle the CSI field workers as investigators for storytelling purposes (in the original show, most of the cast were not detectives and did not interrogate witnesses. Jim Brass was specifically the detective who affected the arrests, often having the CSIs explain the science. The show also never got to the trial phase, and in some cases, what if any crime was committed is never stated, as the story focused on getting to "how and why something happened" not the legal ramifications. In one episode, Grissom explicitly tells someone he doesn't have enough evidence to prove the fraud in criminal court... but the insurance companies will see his report and it's enough that they would be able to refuse to pay.</p>\n<p>In shows that are not explicitly legal procedurals, it might be that the cast of characters is not sufficient to cast for all the witnesses AND/Or the characters are not in professions where they would know how to properly run a court. For example, in one episode of the Brady Bunch, the Brady kids, all of them are High School age or less, hold an ad hoc trial with Alice (the family's maid) as the judge. The case descends into childish bickering and Alice calls a recess when she realizes that her Roast is burning.</p>\n",
"score": 3
}
] |
[
"united-states",
"evidence",
"investigation"
] |
Why is the standard for proof of guilt much lower in civil law systems?
| 0 |
https://law.stackexchange.com/questions/89887/why-is-the-standard-for-proof-of-guilt-much-lower-in-civil-law-systems
|
CC BY-SA 4.0
|
<p>and a lot of guarantees like right against self incrimination are also not available in civil law systems. What is the reason behind this? It is said that the stakes are much lower in civil cases, but how is that?</p>
<p>I mean civil cases in common law systems. I misunderstood that a country can have multiple legal systems since its stated that my country (India) has a mixed legal system</p>
| 89,887 |
[
{
"answer_id": 89891,
"body": "<p>I understand that by "civil law systems" the OP means to refer to civil (vs criminal) cases, not to the civil law (vs common law) systems.</p>\n<p>The standard for proof of "guilt" (which is not actually called "guilt") is indeed "much lower" in civil cases, but the reason for that is not that it has to be so, but that the standard of proof in criminal cases <em>has</em> to be much higher.</p>\n<p>In civil cases none of the parties face criminal conviction. One party will just lose some money or property, will have to perform some work, will lose some opportunities etc. So, initially, both parties play the same game and each of them is in to lose it down to a similar level of peril.</p>\n<p>What follows is that, at the baseline, neither of the two parties should be in more advantageous position to prove their rightness than the other. In other words, if any of them proves that they are more than 50% likely to be right than the other, they should win.</p>\n<p>Indeed, why would one party have to prove their rightness beyond reasonable doubt? If it was so, it would mean that the other party would effectively have to prove their rightness to only a small degree, which would be utterly unjust.</p>\n<blockquote>\n<p>lot of guarentees like right avainst self incrimination are also not available in civil law systems. what is the reason behind this ?</p>\n</blockquote>\n<p>False. If saying something from a witness stand would risk <em>you</em> being prosecuted, you can refuse to say it regardless of whether you are giving evidence in a civil or a criminal case.</p>\n",
"score": 3
},
{
"answer_id": 89890,
"body": "<p>One problem is that "civil law" can mean "Roman-like law" as exists in France, Germany etc, or it can mean, in common law jurisdictions, non-criminal cases i.e. lawsuits. In common-law jurisdictions, there are distinct burdens of proof for reaching a verdict: "beyond reasonable doubt" for criminal cases, vs. "preponderance of evidence" for civil cases. The fundamental reason for this is that is was a feature of English law, and common law was inherited by the various colonies, which did not decide to abandon their legal system. The current shape of that principle is highly influenced by <a href=\"https://en.wikipedia.org/wiki/Blackstone%27s_ratio\" rel=\"nofollow noreferrer\">Blackstone</a>, who suggested a seat of the pants statistical view (the "Blackstone ratio") that you can translate into a probability of error in wrongly convicting a person.</p>\n<p><a href=\"https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1231&context=facpub\" rel=\"nofollow noreferrer\">This article</a> discusses civil law systems vs. common law systems, noting that civil law systems call for a judge to have an inner, deep-seated personal conviction, which applies to all cases. That basically means that in civil law systems, it is harder to sue someone than in common law systems. It is thus not clear whether civil law systems make it easier to convict for a criminal charge: the author of the article suggests that it does not, and the difference lies in higher standards of proof for civil cases in civil-law systems.</p>\n",
"score": 2
},
{
"answer_id": 89892,
"body": "<p>In a criminal case, the defendant faces the possibility of loss of life or freedom. The legal system treats this as a far more serious consequence than the loss of property associated with civil cases, so it insists on a higher threshold before imposing those sanctions.</p>\n",
"score": 0
},
{
"answer_id": 89896,
"body": "<p>In a criminal case, it’s you against the state. In a civil case, it’s one citizen against another. So in a civil case, both sides should be treated equal. Say I claim you damaged my car. One of us has to pay the repair because it doesn’t repair itself. If we meet in court, the judge cannot just decide that you pay or you don’t pay, he or she has to decide which one of us pays for the damage. We are both in the same situation, so the amount of evidence needed should be the same.</p>\n<p>That’s different in criminal court. The prosecutor won’t go to jail if you are found “not guilty beyond reasonable doubt”.</p>\n",
"score": 0
},
{
"answer_id": 89898,
"body": "<h2>You have this backwards</h2>\n<p>The correct question is why is the standard of proof much <em>higher</em> in criminal cases?</p>\n<p>The independent jury that decides guilt or innocence is a relatively recent phenomena; early juries were as witnesses and investigators as they were decision makers. It is in this transition that the “beyond reasonable doubt” formula came to be.</p>\n<p>Why it is this way is <a href=\"https://supremecourt.nt.gov.au/__data/assets/pdf_file/0008/727064/beyond-reasonable-doubt-supreme-and-federal-court-judges-conference.pdf\" rel=\"nofollow noreferrer\">both unknown and historically contested</a>.</p>\n<p>One school of thought holds that it arises from the seventeenth century view that there are three levels of knowledge: the physical - what you have personally sensed, the mathematical - things that can be actually proved, and the moral - what you believe from what you are told. Since an independent jury can’t rely on either the first or the third, they have to use the moral. If you have doubt, then that is a sign that you have not made the right or moral decision.</p>\n<p>Another school holds that it is there to protect the jury in capital cases. The rule as it originally arose is to protect the souls of the jury from condemning a possibly innocent person to death. It was a theological doctrine that if you believed “beyond reasonable doubt”, because doubt came from the conscience, then, even if you were wrong you could convict without risking eternal damnation.</p>\n<p>The first use of the actual phrase “beyond reasonable doubt” is in the 1770 Boston Massacre trials. However, it is clear that the concept wasn’t new as the judge emphasised that this was according to traditional English law.</p>\n<p>Since then, Enlightenment ideals of “inalienable rights” have shifted the reason for the standard. It’s now about protecting the rights of the accused but that’s a reason for keeping it. The fact that its been there for more than 300 years is another reason for keeping it.</p>\n<p>Neither issue arose in civil trials because there the decision is between competing rights.</p>\n",
"score": 0
}
] |
[
"civil-law"
] |
Received an unexpected check for a "settlement" - should I cash it?
| 2 |
https://law.stackexchange.com/questions/89708/received-an-unexpected-check-for-a-settlement-should-i-cash-it
|
CC BY-SA 4.0
|
<p>I received a check in the mail for about $1000. It's from "Huntington National Bank", and the issuer is "Saylor v. RealPage Inc. c/o Settlement Administrator". I've never heard of these people or this settlement. What's going on?</p>
<p>The letter attached to the check includes the following excerpts:</p>
<blockquote>
<p>payment you are entitled as a Settlement Class Member Who Disputed or a Claiming Settlement Class Member from the Claims Fund in the Saylor v. RealPage, Inc settlement</p>
</blockquote>
<blockquote>
<p>pertains to a lawsuit under the Fair Credit Reporting Act</p>
</blockquote>
<blockquote>
<p>you will be sent a Form 1099 reflecting the total amount received in 2023</p>
</blockquote>
<blockquote>
<p>cash or deposit this check within 60 days</p>
</blockquote>
| 89,708 |
[
{
"answer_id": 89710,
"body": "<p>There is a class action lawsuit, <a href=\"https://unicourt.com/case/pc-db5-saylor-v-realpage-inc-1119122\" rel=\"noreferrer\">Joshua Saylor v. RealPage, Inc.</a>, where it is alleged that</p>\n<blockquote>\n<p>Defendant fails to take reasonable steps to ensure that its reports do\nnot inaccurately identify people as sex offenders. Defendant routinely\nfails to consult either the United States Department of Justice’s\nNational Sex Offender Website or the online state sex offender\nsearchable databases before falsely labeling consumers, including\nPlaintiff, as sex offenders. Based on Defendant’s pattern and practice\nof related violations, Plaintiff asserts FCRA and NJ FCRA claims on\nbehalf of himself and the Classes</p>\n</blockquote>\n<p><a href=\"https://www.sorsettlement.com/\" rel=\"noreferrer\">A settlement</a> was proposed; they indicate that if you "do nothing" then you would get about $300, but the amount depends on circumstances.</p>\n<p>There's no way to know why you received a check at all: perhaps you rented a residence and were "screened" by the offending company.</p>\n",
"score": 5
}
] |
[
"settlement"
] |
lose primary, run as independant?
| 0 |
https://law.stackexchange.com/questions/89850/lose-primary-run-as-independant
|
CC BY-SA 4.0
|
<p>There has been some speculation that a certain political candidate in a particular party might lose a primary election, and then stand as an Independent.</p>
<p>Is that even legally possible?</p>
<p>According to what somebody once told me, there are specific laws to prevent that from happening. At least in some States. Is that correct?</p>
<p>If correct, how far in the process does it have to go before it applies? If a politician has simply announced an intention to stand for a certain party, can he then withdraw and stand as Independent? Does it have to get to the stage where votes are cast?</p>
<p>I'm mainly talking about US Presidential elections, but information about elections at any level of Govt would be welcome.</p>
| 89,850 |
[
{
"answer_id": 89861,
"body": "<p>In a good many states there are so-called "sore loser" laws. These specifically prohibit a person who has been a candidate in a primary election and has lost that election from being eligible to be a candidate in the general election for the same office as an independent or as a candidate for a different party. See <a href=\"https://en.wikipedia.org/wiki/Sore_loser_law\" rel=\"nofollow noreferrer\">the Wikipedia article "Sore loser law"</a> for more detail on such laws.</p>\n<p>Some states achieve the same effect by having registrations for the general elections on the same date as for the primary, so that it is not possible for a candidate to know that s/he will lose the primary in time to file for the general election. According to the Wikipedia article, "Only the states of Connecticut, Iowa, and New York have neither a sore loser law nor simultaneous registration deadlines."</p>\n<p>However, in many states these "sore loser laws" apply to candidates for the state legislature, and to candidates for Congress, but <strong>not</strong> to candidates for President of the United States.</p>\n",
"score": 2
},
{
"answer_id": 89858,
"body": "<p>There are three ways that a person can be candidate for president: as a candidate in a particular party, as a write-in candidate, and as petitioned independent candidate. Some states don't allow write-in candidates. In fact, Lisa Murkowski won a write-in campaign for Alaska Senator after being defeated in the Republican primary. Write-ins are distinct because the name is not on the ballot.</p>\n<p>Each state has particular laws regarding placing independent candidates names on the ballot. The <a href=\"https://codes.findlaw.com/ar/title-7-elections/ar-code-sect-7-7-103.html\" rel=\"nofollow noreferrer\">law of Arkansas</a> requires the petition (with sufficient signatures) to be file\nby 12:00 noon on May 1 that year, also you cannot start collecting signatures more than 90 days before that deadline. March 5 is the date of the next presidential primary in Arkansas: so there is no timing impediment. John Anderson was defeated in his 1980 bid via Republican primaries, so he then registered as an independent, was blocked in Ohio, whereupon SCOTUS ruled in <a href=\"https://supreme.justia.com/cases/federal/us/460/780/\" rel=\"nofollow noreferrer\">Anderson v. Celebrezze</a>, 460 U.S. 780 that the registration law (requiring registration months before the primary) was unconstitutional, because it placed too high a burden on petitioning the government.</p>\n",
"score": 1
},
{
"answer_id": 89859,
"body": "<p>Typically, not in the same elections in the modern political system. This is due to the timing of events. Ballot access for the general election close prior to the point where most candidates who could due this viably are aware they are going to lose the party nomination. By the time they could make the determination to go rogue, it's too late to do so.</p>\n<p>The closest we have is Teddy Roosevelt, who lost the 1908 Republican Primary to William Taft, who would go on to win the Presidency that year. Roosevelt created the Bull-Moose Party in 1912 ran against President Taft's re-election as well as Democrat Nominee Woodrow Wilson. Since we know that Wilson won, all that Roosevelt managed was to remove the Republicans from office (though, considering he was a former mentor to Taft, I'm sure it was a victory for Roosevelt, who seemed to be more concern about getting revenge for the betrayal, this might have been a victory for him.).</p>\n",
"score": 0
}
] |
[
"united-states",
"elections"
] |
Can blockchain be declared illegal?
| -1 |
https://law.stackexchange.com/questions/89857/can-blockchain-be-declared-illegal
|
CC BY-SA 4.0
|
<p>Some blockchains allow to embed arbitrary data in it.</p>
<p>What happens if someone embeds some illegal data, for example, a copyright-protected movie, or a collection of illegal pornography, inside a block?</p>
<p>Imagine, that it was found several years later. Can court declare distribution of offending block illegal, basically forcing a fork and erasing those several years of transactions from history (since that block is nessesary to validate them)? Will people who continue to use original chain (and dustribute original block with illegal data) be held liable for distribution of illegal content?</p>
| 89,857 |
[
{
"answer_id": 89876,
"body": "<h2>It’s already is illegal</h2>\n<p>At least, possession of child pornography is. It doesn’t matter if it’s a physical photo, a stand-alone file, or embedded in a larger file like a block chain.</p>\n<p>In general, ignorance that you possess the material might protect the first few people to be charged. However, once it became widely known that the material was in the blockchain, that defence will not be available to anyone continuing to host it.</p>\n",
"score": 1
}
] |
[
"blockchain"
] |
Is it legal to 3D print your own firearms?
| -3 |
https://law.stackexchange.com/questions/89776/is-it-legal-to-3d-print-your-own-firearms
|
CC BY-SA 4.0
|
<p>Lets say Bob wants to 3D print his own firearms that are not considered NFA items.</p>
<ul>
<li>Is it legal for Bob to 3d print his own firearms?</li>
<li>Is it legal for Bob to gift the 3d printed firearm to his son?</li>
<li>Is it legal for Bob to sell his 3d printed firearm via a private transaction?</li>
</ul>
| 89,776 |
[
{
"answer_id": 89780,
"body": "<p>Bob can probably print the firearm for personal ownership if Bob is not prohibited from possessing a firearm himself, but after that it gets problematic. This is ignoring any potential safety violations and liability issues or patent violations which might arise.</p>\n<p>According to an ATF spokesman quoted in <a href=\"https://freebeacon.com/issues/atf-explains-law-surrounding-3d-printed-guns/\" rel=\"noreferrer\">this article</a> :</p>\n<blockquote>\n<p>it is legal for Americans to build their own firearms without a license so long as they are not prohibited by law from possessing firearms, the firearms are legal to own, for personal use, and <strong>not for sale or transfer to others</strong>. Whether the gun parts are printed, created by other ways of manufacturing, or legally purchased from a licensed dealer has no impact on whether it is legal for an American to build a gun for personal use, though some states like California have placed additional requirements on the process.</p>\n</blockquote>\n<p>So transfer of ownership is possibly problematic.</p>\n<p>It's notably not a way to avoid normal firearm possession restrictions :</p>\n<blockquote>\n<p>Knight [the ATF spokesman] emphasized it is not legal for felons or somebody otherwise prohibited from possessing firearms to build their own guns under any circumstance.</p>\n</blockquote>\n<blockquote>\n<p>"Title 18 of the United States Code, section 922(g) prohibits several categories of persons (i.e., persons convicted of a crime punishable by imprisonment for more than a year) from possessing firearms in or affecting interstate commerce," Knight said. "Title 18 of the Unites States Code, section 922(d) prohibits persons from disposing of any firearm to a person the transferor has reason to believe is prohibited from possessing firearms under federal law."</p>\n</blockquote>\n<p>Finally there's a rather crucial point to note about the design of such firearms :</p>\n<blockquote>\n<p>He said the Undetectable Firearms Act of 1988 outlaws the manufacture or possession of firearms that can pass through a walk-through metal detector or X-ray machine commonly employed at airports without being detected.</p>\n</blockquote>\n<blockquote>\n<p>"A person or manufacturer cannot produce an undetectable firearm as prescribed in Title 18 of the United States Code, section 922(p)," he said.</p>\n</blockquote>\n<p>So making a weapon that's undetectable by a metal detector is not allowed (at least according to the ATF).</p>\n",
"score": 5
},
{
"answer_id": 89873,
"body": "<h2>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>, private manufacture is banned anyway</h2>\n<p>To manufacture any firearms, you already need certification as a gunsmith in Germany. Because a gunsmith has to register any gun they make and sell, as well as having to undergo <em>Beschuss</em> (<em>proof</em>) for any firearm to show it is safe, the <a href=\"https://www.deutschlandfunk.de/waffen-dreiddrucker-100.html\" rel=\"nofollow noreferrer\">laws did not have to be changed at all</a>:</p>\n<ul>\n<li>It is illegal to make 3D-printed firearms at home because that is manufacturing firearms without a license.</li>\n<li>As the quality of 3D printed weapons generally is poor, they can't manage to gain proof marks after having shown their suitability at a proofing test and not gain the proof mark.</li>\n<li>A firearm without a proof mark can not legally be sold.</li>\n<li>The shape and color of a firearm or its accessories may not give the weapon the appearance of a toy or any other item. If it does, it is an illegal concealed weapon. Examples of such banned items are belt-buckles, shooting canes or pen-guns, but also a "hello Kitty" themed hunting rifle or many pure-plastic 3D printed guns.</li>\n</ul>\n<p>Relatedly, the sale or gifting of firearms is regulated and requires a registration of the transfer. The receiver of the firearm needs to have a weapon ownership card.</p>\n<p>The same principle applies to accessories that are not defined as an integral part of the weapon: they are treated as what they are. Custom grip panels or mounting hardware are unregulated, while silencers are regulated for hunters only while targeting lasers or firearm-mounted lights are illegal in any shape or form - no matter if those are 3D printed or otherwise made.</p>\n",
"score": 0
}
] |
[
"united-states",
"firearms"
] |
Is "not available for resale" a legally enforceable statement?
| 3 |
https://law.stackexchange.com/questions/58893/is-not-available-for-resale-a-legally-enforceable-statement
|
CC BY-SA 4.0
|
<p>I've seen this label on coke cans at one point, and I was wondering: is this legally enforceable?</p>
<p>If it's not, is it possible for a retailer in any way to disallow the resale of an item purchased?
Something like, I don't know, maybe a license you have to agree to in order to be allowed to purchase said item?</p>
<p>This comes in the larger context of these new tech releases (GPUs, consoles) and how the producers/retailers could legally prevent scalpers.</p>
| 58,893 |
[
{
"answer_id": 58894,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" rel=\"tag\">united-states</a></p>\n<h3>No, the <a href=\"https://en.wikipedia.org/wiki/First-sale_doctrine\" rel=\"nofollow noreferrer\">first-sale doctrine</a> makes this unenforceable</h3>\n<p>Once a product is sold to a retail consumer, it is generally theirs to do with as they wish, including reselling it. The company likely intends this restriction to apply to distributors/retailers with whom it has contracts: it would likely be a violation of their distribution contract to, say, open a 12-pack of Coke and sell the individual cans.</p>\n<p>An exception to this doctrine is licensed software. Because it is licensed and not sold, there's not a product that the consumer could legally resell; the license is not required to be transferrable.</p>\n<p>As far as license agreements to prevent this go, it's been tried: Lexmark sold toner cartridges with a patent license agreement banning refilling and reuse. It ended up at the Supreme Court in <a href=\"https://www.oyez.org/cases/2016/15-1189\" rel=\"nofollow noreferrer\">Impression Products, Inc. v. Lexmark International, Inc.</a>, where Lexmark lost.</p>\n",
"score": 4
}
] |
[
"contract-law",
"business"
] |
Can patents be featured/explained in a youtube video i.e. are patent descriptions/images in public domain?
| 9 |
https://law.stackexchange.com/questions/89867/can-patents-be-featured-explained-in-a-youtube-video-i-e-are-patent-description
|
CC BY-SA 4.0
|
<p>Is it legally allowed to use images, which are obtained from patent forms, possibly with modifying/coloring them or left as is, inside youtube videos? In the same vein with images how about the text i.e., are patent description texts in the public domain so that the patent description can be contained in a video?</p>
| 89,867 |
[
{
"answer_id": 89869,
"body": "<h3>The government's position is that material in the patent documents is generally in the public domain</h3>\n<p>See <a href=\"https://www.dol.gov/general/aboutdol/copyright\" rel=\"noreferrer\">Public Domain Copyright Trademark & Patent Information Schedule</a>:</p>\n<blockquote>\n<p>As part of the terms of granting the patent to the inventor, patents are published into the public domain.</p>\n</blockquote>\n<p>And slightly more specific, see <a href=\"https://www.uspto.gov/terms-use-uspto-websites\" rel=\"noreferrer\">Terms of Use for USPTO websites: Patents</a>:</p>\n<blockquote>\n<p>Subject to limited exceptions reflected in 37 CFR 1.71(d) & (e) and 1.84(s), the text and drawings of a patent are typically not subject to copyright restrictions.</p>\n</blockquote>\n<p><a href=\"https://www.uspto.gov/web/offices/pac/mpep/mpep-9020-appx-r.html#d0e320131\" rel=\"noreferrer\">1.71(d)</a> allows for the patent author to specifically indicate that some of the material is protected by copyright.</p>\n<h3>But that position has not actually been tested in courts</h3>\n<p>However, there is no actual statute explicitly exempting material in the patent documents from copyright nor any case law holding that in the absence of a notice, the material in fact becomes public domain. See Alderucci, "<a href=\"https://web.archive.org/web/20160304112209/http://home.uchicago.edu/%7Ealderucci/Copyright%20in%20patents.pdf\" rel=\"noreferrer\">The surprising consequences of exempting patents from copyright protection</a> (2016), at p. 13 and footnote 62.</p>\n",
"score": 14
}
] |
[
"intellectual-property",
"patents",
"public-domain",
"youtube"
] |
Are there any precedents for sombody being held accountable for a mistake in a textbook?
| 6 |
https://law.stackexchange.com/questions/44170/are-there-any-precedents-for-sombody-being-held-accountable-for-a-mistake-in-a-t
|
CC BY-SA 4.0
|
<p>In most modern-day textbooks, especially the ones I've read, a disclaimer is always present which states that the author or the publishing body has tried its best to siphon out all errors, however, in case of any losses due to the errors present the author or the publisher shall not be held accountable.</p>
<p>It was always amusing to see such a disclaimer, however I was wondering: Has there ever been a case when there was no such disclaimer and the author or publisher was sued? Or is was there some incident which lead to this disclaimer being added?</p>
| 44,170 |
[
{
"answer_id": 44171,
"body": "<p>In the US, due to free speech protections (i.e. the first amendment), it seems that the majority of lawsuits for <em>negligent publication</em> <a href=\"http://www.rightsofwriters.com/2011/03/oops-i-poisoned-my-readers-can-i-be.html\" rel=\"nofollow noreferrer\">fail</a>. It's worth noting that the author might be more liable than the publisher, since the publisher typically isn't expected to have the expertise to catch such errors. More cases and details can be found <a href=\"https://web.archive.org/web/20220415114450/http://www.kaner.com/pdfs/sigdocContent.pdf\" rel=\"nofollow noreferrer\">here</a>.</p>\n<p>The only case I've found where a publisher was held liable for negligent publication of a textbook is the following. Note that it's somewhat old, and standards for products liability have likely changed since.</p>\n<p><a href=\"https://heinonline.org/HOL/LandingPage?handle=hein.journals/jcolunly9&div=18&id=&page=\" rel=\"nofollow noreferrer\">D. Wallis, "Negligent publishing" Implications for University Publishers</a>:</p>\n<blockquote>\n<p>On September 4, 1980, a jury in the U.S. District Court in Springfield, Massachusetts awarded C. Carter $100,000 in her suit against Rand McNally Publishing Company. C. Carter, an eighth grade chemistry student had been severely burned during a chemistry class while attempting an experiment described in a textbook published by Rand McNally. This experiment called for the use of methyl alcohol, a highly inflammable substance. The plaintiff argued, and the jury agreed, that her injuries were caused, in part, by the publishing company's negligent failure to adequately warn students and teachers about the dangerous qualities of these experiments. Rand McNally did not appeal the verdict.</p>\n<p>This case is of special interest to publishing companies because it is the first time a book had been considered a "product" and the first time products liability theory has been used to impose liability upon a publishing house for an injury caused by technical information contained within a textbook.</p>\n</blockquote>\n<p>In this case it's not clear whether the disclaimer was present or not. However, there is nothing magical about a disclaimer that would stop lawsuits from occurring, nor do they automatically protect against <a href=\"https://corporate.findlaw.com/intellectual-property/publisher-liability-incitement-amp-negligent-publication.html\" rel=\"nofollow noreferrer\">liability</a>:</p>\n<blockquote>\n<p>The "disclaimer," although it will rarely be effective in shielding the publisher from liability if the court finds that the publisher breached its duty of care to the reader, is more likely to be effective by demonstrating that the publisher did not make any specific guarantees regarding the safety or reliability of the contents of the publication.</p>\n</blockquote>\n<hr />\n",
"score": 11
}
] |
[
"authorship"
] |
What does a search warrant actually look like? How can I recognize one?
| 26 |
https://law.stackexchange.com/questions/89862/what-does-a-search-warrant-actually-look-like-how-can-i-recognize-one
|
CC BY-SA 4.0
|
<p>Suppose the police come to my door. “Open up,” they say. “We have a warrant to search the premises.”</p>
<p>How can I tell if they are telling the truth? Do they show me the warrant? If they do, how do I know I am looking at one? What does a real search warrant look like? I could not find a single example online.</p>
<p>(In the U.S. there is some sense in which it doesn't matter, because if it later transpired that the claimed warrant didn't exist, the fruits of the search could be suppressed. That is not the question I am asking.)</p>
| 89,862 |
[
{
"answer_id": 89865,
"body": "<p>The exact form used can vary based on the court. At the federal level, the Administrative Office for the US Courts has a <a href=\"https://www.uscourts.gov/sites/default/files/ao093.pdf\" rel=\"noreferrer\">standardized form</a>, although I don’t know that district courts <em>have</em> to use it. State courts obviously wouldn’t be expected to use the federal form, and I’m having a harder time turning up a blank state warrant form.</p>\n<p>The standard elements are in the federal form, though. A search warrant will have a header identifying it as a search warrant and will have something identifying the court that issued it. It will be signed by some sort of judge. The body of the warrant will be written as a command to the police to do a search, telling them where to search and what to look for. There will generally be some standard language about what to do with the property once it’s seized.</p>\n",
"score": 18
},
{
"answer_id": 89868,
"body": "<p>So it's going to vary from state to state, but typically a warrant will be presented as a printed document on white paper. The may be a letter head or official symbol at the top.</p>\n<p>As per the documents content, a Warrant should list the property that is to be searched, the evidence they expect to find (usually evidence of a specific crime), and any personal property they intended to seize for forensics lab work (Often this will be phones or computers, as they will run searches to test, but vehicles or even smaller items that could have been used in the crime will be seized as well.). It will also have the signature of the judge who authorized the warrant.</p>\n<p>In most of the U.S. the organization delivering the warrant will either be the county Sheriff (usually a deputy, not the Sheriff themselves, in 47 states, the sheriff is the highest law enforcement officer in the county and while duties vary from county to county, almost all Sheriff's are responsible for enforcing the civil law of the state within their county (which 9/10 times, is enforcing what a judge says). 2 states do not have Sheriff's, Viriginia sheriff's have no jurisdiction in parts of their county that have a municipal police force so it gets weird. Additionally, most major cities with their own police forces might do the heavy lifting of the search while one single deputy hands you the paperwork) if it's a state crime (the vast majority of crimes in the U.S. are prosecuted by the state) or the FBI and/or some combination of federal law enforcement agencies AND/OR the U.S. Marshals (U.S. Marshals are the equivalent of the Sheriff in the Federal Courts, although usually they lack general investigation capability that the FBI, so if they bother to show up, it's just to be official. The Marshal's typical duties revolve around tracking fugitives, protection of federal court assets, and the witness protection program, so if they show up, you will probably be leaving with them.).</p>\n<p>At either rate, if someone claims to be with any law enforcement organization and has a warrant, it's best to comply (again, unless it's a "no knock" they can read the warrant before you have to open up.).</p>\n<p>Regardless, in the U.S. police must provide you with a copy of the warrant with little redaction (done for the purposes of preserving investigation integrity.). They must tell you the evidence they are searching for and the places they are authorized to search (If they search places they are not authorized to search, that's a warrantless search.). Additionally they can open up any containers in the searchable areas so long as it is reasonable that such a container could hold evidence they are searching for (so if they were looking for stolen Big Screen TV's and open up a sugar bowl and find Weed, which they weren't looking for, that weed isn't admissible, since you should know better than suspect a Big Screen TV is being hidden in a sugar bowl. They can still seize the weed, since it's contraband, but they can't use it as evidence for a possession charge. Do not argue about this, because those statements could be used against you for possession charges. Take the win).</p>\n<p>Because each state (50), territory (5), district (1), and the federal government each have different court systems, there are easily 57 different formats the warrants can take, to say nothing of other special governments such as tribal reservations, some of which have their own independent court systems with the full authority akin to a state court system, it's best not to look for a clear identifying mark (Fun fact: The age old question of "if you kill a man on the four corners, who can prosecute, the answer is "all seven of them" since the four corner's monument marks the meeting point of four state borders, and sits on the border of two tribal reservations with full court systems and crosses state lines, which brings in the feds. You can be convicted for the same crime seven times because Double Jeopardy only applies to one court system trying you twice for the same crime. They might be a slight pause to determine if everyone can do something, since the actual marker may not be on the actual location of the four borders as it's poorly surveyed.).</p>\n",
"score": 17
}
] |
[
"united-states",
"search-and-seizure",
"warrant"
] |
States' rights and the 14th amendment
| -2 |
https://law.stackexchange.com/questions/89863/states-rights-and-the-14th-amendment
|
CC BY-SA 4.0
|
<p>The 14th amendment guarantees equal protection under the law for all citizens of the US. It's my understanding that this means from the Federal Government, and doesn't exactly apply when it's a "states' rights" kind of issue.</p>
<p>My #1 question then is, what if something is illegal in all 50 states and US territories at the state level? Is that not a de facto Federal Law that all citizen's should have the equal protection of, even if they reside outside of the United States?</p>
<p>I don't want to dish too much dirt, but the specifics are I'm a US citizen, full time resident of Peru. I have a son who is a US/Peruvian dual citizen, and an estranged Peruvian wife. She has been abusing him mentally, physically, and possibly sexually, and I have ABSOLUTELY 0 LEGAL STANDING HERE TO DO ANYTHING. To make matters worse, the National Police here have been unwittingly helping her continue her abuse and continue the whole fraud that predicated our marriage and his birth etc. So, basically I'm now having to literally watch my back now that they know I've got them on the hook.</p>
| 89,863 |
[
{
"answer_id": 89866,
"body": "<blockquote>\n<p>The 14th amendment guarantees equal protection under the law for all citizens of the US. It's my understanding that this means from the Federal Government, and doesn't exactly apply when it's a "states' rights" kind of issue.</p>\n</blockquote>\n<p>Your understanding is incorrect. The primary original purpose of the 14th amendment was to prevent states from passing laws that treated former slaves differently from other citizens, and indeed to clearly declare that they were in fact citizens, thus reversing the decision in <a href=\"https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford\" rel=\"nofollow noreferrer\"><em>Dred Scot v Sandford</em> 60 U.S. (19 How.) 393 (1857)</a>. That decision held that black people could not be US citizens and had no rights granted to citizens under the US Federal Constitution.</p>\n<p>Of course the amendment is applied in a much wider scope than merely granting citizenship to the former slaves freed by the 13th amendment. The <a href=\"https://en.wikipedia.org/wiki/Equal_Protection_Clause**\" rel=\"nofollow noreferrer\">Equal Protection Clause</a>** generally requires that laws not make arbitrary and unjustified distinctions between people, nor treat different people in the same legal situation differently.</p>\n<p>The clause does not, however, prevent laws from treating who are in some significant legal sense in different positions differently. What is and is not a violation of the clause has been the subject of many legal cases and much debate. The clause requires "state action" to be invoked. and is generally only applies to state and local governments, and those in their employ or acting on their behalf. However, the US Supreme Court held in <a href=\"https://en.wikipedia.org/wiki/Bolling_v._Sharpe\" rel=\"nofollow noreferrer\"><em>Bolling v. Sharpe</em>, 347 U.S. 497 (1954)</a> that the 5th amendment imposes a similar requirement of equal protection on the Federal government.</p>\n<p>The amendment, and the equal protection clause, do not guarantee any particular outcome in judicial cases. It is not clear from the question what equal protection issue, if any, might be at issue in the particular matter described.</p>\n<p>If the issue is one of treatment under the laws of a country other than the US, even though the people involved are US citizens, the US constitution, including the amendment will not apply.</p>\n",
"score": 3
},
{
"answer_id": 89864,
"body": "<p>Theft is against the law in all US states. However that does not create a US law under which you could seek prosecution in federal courts of a person in Peru or North Korea who steals your stuff in that country. The US does not have jurisdiction over criminal acts carried out in a foreign country. Also, Arkansas (and the other states) do not have jurisdiction over acts committed outside of their territory.</p>\n<p>There can be extraterritorial federal jurisdiction, as outlined <a href=\"https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-extraterritorial-sexual-exploitation-children\" rel=\"nofollow noreferrer\">here</a> – six specific offences. <a href=\"https://www.law.cornell.edu/uscode/text/18/2423\" rel=\"nofollow noreferrer\">This crime</a> is at least in the general ballpark. The accused must, however, be a US citizen or LPR in order to be prosecuted under US law. Theft is not one of the offenses for which extraterritorial prosecution is possible.</p>\n",
"score": 1
}
] |
[
"international",
"family-law",
"fourteenth-amendment",
"tenth-amendment"
] |
Where can FOIA requests be found?
| 10 |
https://law.stackexchange.com/questions/89802/where-can-foia-requests-be-found
|
CC BY-SA 4.0
|
<p>United States federal (e.g. <a href="https://en.wikipedia.org/wiki/Freedom_of_Information_Act_(United_States)" rel="nofollow noreferrer">FOIA</a>) and state law allow people to request public records. The requests themselves are public record. Does any public or private entity maintain a database of those requests?</p>
| 89,802 |
[
{
"answer_id": 89810,
"body": "<p>Here is an example for Washington state under <a href=\"https://apps.leg.wa.gov/rcw/default.aspx?cite=42.56&full=true\" rel=\"noreferrer\">RCW Ch. 42.56</a>. First, you cannot request "all public records requests", because (RCW 42.56.080)</p>\n<blockquote>\n<p>(1) A public records request must be for identifiable records. A\nrequest for all or substantially all records prepared, owned, used, or\nretained by an agency is not a valid request for identifiable records\nunder this chapter, provided that a request for all records regarding\na particular topic or containing a particular keyword or name shall\nnot be considered a request for all of an agency's records.</p>\n</blockquote>\n<p>Second, there is no central agency that maintains all records – you would have to make a request of the State Patrol for all State Patrol records, the Department of Transportation for all Transportation requests, Department of Labor and Industries for their records, Ecology; Gambling; Liquor etc.</p>\n<p>There are numerous private persons willing to take your money to make records requests, but they all seem to be "name-driven", that is, they get records about a specific person (pursuant to RCW 42.56.080). There is no Department of Central Records to whom you can make such a records request.</p>\n",
"score": 9
},
{
"answer_id": 89828,
"body": "<p>You won't find a single repository of all FOIA requests, but you will find many large repositories of requests:</p>\n<ul>\n<li><a href=\"https://www.muckrock.com/foi/\" rel=\"noreferrer\">Muckrock</a> permits users to submit FOIA requests basically anywhere, and then it publishes both the request and the resulting records to the Internet.</li>\n<li><a href=\"https://foiaonline.gov/foiaonline/action/public/home\" rel=\"noreferrer\">FOIA Online</a> tracks requests for many federal agencies.</li>\n<li><a href=\"https://www.justice.gov/oip/available-documents-oip\" rel=\"noreferrer\">Department of Justice</a> FOIA logs are published online.</li>\n<li><a href=\"https://www.sec.gov/foia/docs/foia-logs\" rel=\"noreferrer\">SEC FOIA</a> logs are also published online.</li>\n</ul>\n",
"score": 8
},
{
"answer_id": 89825,
"body": "<p>The Department of Justice's Office of Information Policy has information about FOIA requests they've received, including some of the released documents: <a href=\"https://www.justice.gov/oip/available-documents-oip\" rel=\"nofollow noreferrer\">https://www.justice.gov/oip/available-documents-oip</a></p>\n",
"score": 2
}
] |
[
"united-states",
"foia"
] |
How does the US legal system treat car accidents with pedestrian casualties?
| 2 |
https://law.stackexchange.com/questions/31394/how-does-the-us-legal-system-treat-car-accidents-with-pedestrian-casualties
|
CC BY-SA 4.0
|
<p>2 years ago in Bosnia and Herzegovina, a guy was driving 105 km/h (max allowed 60) through red light and killed two teenage girls on crosswalk. He didn't even bother to stop. Instead, he called his sister and friend to get him to Serbia border where he fled to Serbia. Later he turned himself and was extradited to Bosnia where the trial began. Now the trial is over and he is accused of "causing general danger" and "not helping injured", but there is no mention of killing someone. The prosecutors want the maximum sentence for those two crimes which is, I believe, only 8 years. </p>
<p>So, how would the crime be treated in the US? What would be the charges? What is the maximum sentence he could get?</p>
| 31,394 |
[
{
"answer_id": 31402,
"body": "<p>Assuming that this wasn't a planned murder or assault, the most serious charge would be vehicular homicide. In the US, this is governed by state law, but states are not radically different in whether this is a crime. In Washington, under <a href=\"http://app.leg.wa.gov/rcw/default.aspx?cite=46.61.520\" rel=\"nofollow noreferrer\">RCW 46.61.520</a>, vehicular homicide is a <a href=\"http://app.leg.wa.gov/RCW/default.aspx?cite=9A.20&full=true\" rel=\"nofollow noreferrer\">class A felony</a>, punishable by</p>\n\n<blockquote>\n <p>imprisonment in a state correctional institution for a maximum term\n fixed by the court of not less than twenty years, or by a fine in an\n amount fixed by the court of not more than fifty thousand dollars, or\n by both such imprisonment and fine</p>\n</blockquote>\n\n<p>The crimes is defined as causing death while driving</p>\n\n<blockquote>\n <p>(a) While under the influence of intoxicating liquor or any drug, as\n defined by RCW 46.61.502; or (b) In a reckless manner; or (c) With\n disregard for the safety of others.</p>\n</blockquote>\n\n<p>and such speeding is highly likely to be found to constitute the element of recklessness. There are also <a href=\"http://app.leg.wa.gov/rcw/default.aspx?cite=46.52.020\" rel=\"nofollow noreferrer\">hit-and-run charges</a>, which is a class B felony (10 years and $20,000). A person can be found guilty of both charges, and the judge can apply the prison sentences consecutively, meaning you add them up, rather than serve the jail time at the same time (in this case, essentially dispensing with the hit-and-run term). The law is written so that a killing is a crime, and if you kill two people that could be two charges (the question is whether there is a single act or two – most likely there was a single act in this particular case). There is no state where recklessly killing a person while driving is legal.</p>\n\n<p>First degree murder could be considered under <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9A.32&full=true\" rel=\"nofollow noreferrer\">9A.32.030</a> if a person \"Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person\". That kind of charge was applied to the <a href=\"https://www.washingtonpost.com/local/crime/driver-accused-of-plowing-into-charlottesville-crowd-killing-heather-heyer-due-in-court/2017/12/13/6cbb4ce8-e029-11e7-89e8-edec16379010_story.html?utm_term=.dc8dd11b7d35\" rel=\"nofollow noreferrer\">Charlottesville driver</a>, but it is highly unlikely to be applied to even the most extreme speeding.</p>\n\n<p>The actual penalty imposed depends on the sentencing laws of the state. In Washington there is a complex calculation based on the severity of the crime (16 degrees – vehicular homicide is level 11), prior criminal history, whether there are multiple convictions (vehicular homicide and hit-and-run). Aggravating and mitigating circumstances can also be considered to compute the actual sentence; I don't see any way for a non-specialist to guess what the actual penalty would be in this case. </p>\n",
"score": 4
},
{
"answer_id": 31401,
"body": "<p>In the United States, most Speeding in Excess is a misdemeanor as is Failing to Stop for pedestrians, who have the right of way in a crosswalk in all situations (even if they do not have the light).</p>\n\n<p>Leaving the Scene of an Accident is known as Hit and Run and can be anything from an infraction to a misdemeanor to a felony and the status would be based on the nature of the specific incident. To my knowledge, most jurisdictions in the United States will elevated the charge to Felony Hit and Run for bodily injury and all will probably apply it for resulting death.</p>\n\n<p>The United States has a specific crime known as Vehicular Manslaughter, which covers death due to negligent operation of a motor vehicle or in violation of traffic safety laws. This could also take the form of Constructive Manslaughter, which is unintended death resulting from commission of a misdemeanor offense, or Felony Murder (unintended death resulting in the commission of a Felony), though most states will have the Vehicular Manslaughter which requires a lower burden of culpability than traditional murder or manslaughter.</p>\n\n<p>Keep in mind, the prosecutor who receives the case has wide discretion in the charges and typically will reward criminals who make their job easier. For cooperating by turning himself in, the prosecutor may not press the manslaughter charges and may push for Felony Hit and Run, which would carry a lighter sentence. Additionally, 95% of U.S. Criminal Convicitions are done by cutting a deal with the Prosecutor's office for a Guilty Plea (which avoids the trial, which frees up court time for other cases) to lesser charges.</p>\n",
"score": 2
},
{
"answer_id": 31404,
"body": "<p>The laws in the United States vary by state. In Wisconsin, the law on <a href=\"http://docs.legis.wisconsin.gov/document/statutes/940.10(1)\" rel=\"nofollow noreferrer\">homicide by negligent operation of vehicle</a> says:</p>\n<blockquote>\n<p>Whoever causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class G felony.</p>\n</blockquote>\n<p>However, he also fled the scene. Under <a href=\"http://docs.legis.wisconsin.gov/document/statutes/346.67\" rel=\"nofollow noreferrer\">Wisconsin law</a>:</p>\n<blockquote>\n<p>The operator of a vehicle involved in an accident shall reasonably investigate what was struck and if the operator knows or has reason to know that the accident resulted in injury or death of a person or in damage to a vehicle that is driven or attended by a person, the operator shall stop the vehicle he or she is operating as close to the scene of the accident as possible and remain at the scene of the accident...</p>\n</blockquote>\n<p>Fleeing the scene of an accident is a misdemeanor if there were no serious injuries. However, <a href=\"http://docs.legis.wisconsin.gov/document/statutes/346.74(5)(d)\" rel=\"nofollow noreferrer\">if the accident involved death</a>, then it becomes a class D felony.</p>\n<blockquote>\n<p>What is the maximum sentence he could get?</p>\n</blockquote>\n<p>A class G felony is <a href=\"http://docs.legis.wisconsin.gov/document/statutes/939.50(3)(g)\" rel=\"nofollow noreferrer\">punishable</a> by a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both.</p>\n<p>A class D felony is punishable by a fine not to exceed $100,000 or imprisonment not to exceed 25 years, or both. As you can see, this is actually a longer sentence for fleeing than for causing the two deaths in the first place.</p>\n<p>However, it turns out that they can't actually sentence them to prison for that long. The number listed above is the combination of years in prison and extended supervision that he may be sentenced to. Here is what the prison portion of that sentence is <a href=\"http://docs.legis.wisconsin.gov/document/statutes/973.01(2)(b)\" rel=\"nofollow noreferrer\">allowed</a> to be:</p>\n<blockquote>\n<p>For a Class G felony, the term of confinement in prison may not exceed 5 years.</p>\n<p>For a Class D felony, the term of confinement in prison may not exceed 15 years.</p>\n</blockquote>\n<p>As far as I can tell, Wisconsin judges are free to impose the sentences <a href=\"http://docs.legis.wisconsin.gov/document/statutes/973.15(2)(a)\" rel=\"nofollow noreferrer\">concurrently or consecutively</a>.</p>\n<p>So, for 2 counts of homicide by negligent operation of vehicle plus 1 count of hit and run involving death, the maximum prison time could be 5 + 5 + 15 = 25 years, followed by 5 + 5 + 10 = 20 years of extended supervision, along with a fine of $25,000 + $25,000 + $100,000 = $150,000.</p>\n<p>You say he also fled the country. Assuming he did this to avoid prosecution, this would be a <a href=\"https://www.law.cornell.edu/uscode/text/18/1073\" rel=\"nofollow noreferrer\">federal crime</a> punishable by up to 5 years in federal prison, in addition to the state charges.</p>\n",
"score": 2
}
] |
[
"united-states",
"traffic",
"death",
"homicide"
] |
Car for rent and drugs
| -2 |
https://law.stackexchange.com/questions/89846/car-for-rent-and-drugs
|
CC BY-SA 4.0
|
<p>Lets say there is a person who rents a car out to a friend. This arrangement goes well for the first few months. Then a large amount of illegal drugs are discovered in the car while the friend is driving. The friend is pulled over and then tells the officer that the drugs are not his and that they are the car owners. (in this hypothetical the drugs are actually the friends and not the car owners)</p>
<p>In the most likely case who is held responsible for the drugs found in the car?</p>
| 89,846 |
[
{
"answer_id": 89849,
"body": "<p>Both the police and the courts are likely to look at the situation as a whole, rather than adopting any policy specifically in relation to drivers or owners.</p>\n<p>For example, it's unusual for people to rent cars to their friends for months on end. That might suggest there is something untoward about the arrangement.</p>\n<p>Is there evidence of the commercial arrangement, or is the owner pretending to have rented the car out for months, when in reality they had stashed the drugs then let a friend borrow the car for a day?</p>\n<p>It would also be unlikely for a drug dealer to stash a large amount of drugs in a car then lend the car out on a long-term basis, so if the car is out of the owner's hands, that would tend to suggest the drugs belong to the person in possession of the car (and not the owner).</p>\n<p>But if the amount of drugs were small, typical of personal use, then it becomes more credible to imagine they could be forgotten by the car owner before lending the car to a friend.</p>\n<p>Police intelligence might also have a bearing. Does one party or the other have known links to the drugs trade?</p>\n<p>Also, is the lifestyle of one or the other, in particular, inconsistent with known sources of legitimate income?</p>\n<p>My point with all these questions is to highlight how sensitive the issue is to the fine details of the circumstances, and that it's impossible to give a strictly general answer.</p>\n",
"score": 5
},
{
"answer_id": 89847,
"body": "<p>The driver of the car is responsible since they are in possession of it.</p>\n<p>The only situation that the driver might be able to escape a drug conviction is if they're passengers with them at the time of the stop and the location of the drugs is not in the immediate vicinity of the driver.</p>\n<p>For example, if there are drugs in the trunk and neither the driver or passengers admit to owning the drugs. Likely everyone in the car will go to jail but a decent attorney would likely get the charges dismissed.</p>\n",
"score": 0
}
] |
[
"rent",
"ownership",
"drugs",
"car"
] |
If one was groomed as a child, can they be found innocent as an adult?
| -1 |
https://law.stackexchange.com/questions/89836/if-one-was-groomed-as-a-child-can-they-be-found-innocent-as-an-adult
|
CC BY-SA 4.0
|
<p>Dave the Dad is the father of Bob the boy. Dave groomed Bob to murder minorities from a young age.</p>
<p>If Bob went on to murder some minority at age 12, Bob wouldn't just be given consequences like some random adult who'd committed such a heinous act. More likely, Bob would be given counseling, while Dave would be held responsible.</p>
<p>But what if Bob was groomed by his dad Dave all the way to age 18, and went on the same murder spree? Or up until the age 21? Or whatever reasonable age have you.</p>
<p>My main question is: can Bob be exonerated in any way because he was groomed by an adult (even into his own adulthood)?</p>
<p>To clarify: please do not use "threatening" in your answer. Dave grooming Bob is different than someone "threatening" Bob to do something. Also, "murdering minorities" is a random example that may not be perfect. Feel free to substitute in something more appropriate so as not to distract from the heart of the question (e.g. committing shop-lifting, murdering women, selling meth, etc.)</p>
| 89,836 |
[
{
"answer_id": 89837,
"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>No: mitigating factors short of duress or other defences like necessity or self defence do not excuse or justify a crime that is otherwise proven.</p>\n<p>Mitigating factors must be taken into account during sentencing. History of abuse is a personal circumstance that can be taken into account: e.g. <em>R. v. Farrell</em>, 2013 BCSC 1537 at <a href=\"https://canlii.ca/t/g06d5#par9\" rel=\"nofollow noreferrer\">para 9</a>. Same for "parental introduction into the criminal lifestyle": <em>R. v. L.T.N.</em>, 2021 SKCA 73, at <a href=\"https://canlii.ca/t/jfs52#par61\" rel=\"nofollow noreferrer\">para 61</a>.</p>\n",
"score": 5
},
{
"answer_id": 89838,
"body": "<p>In ordinary English, "grooming" is when a social superior (in some sense) does normal, legal things to encourage a person to follow a certain path, e.g. "groomed him to take over the company". It has recently gained a secondary meaning of befriending a minor for illicit sexual purposes, but that sense is clearly not applicable here. Instead, Dave has encouraged Bob to commit illegal acts.</p>\n<p>Although serious childhood abuse could constitute a mitigating factor in the case of Bob committing a crime as an adult, there are typically statutory statements as to what factors are relevant. <a href=\"https://apps.leg.wa.gov/rcw/default.aspx?cite=9.94A.535\" rel=\"nofollow noreferrer\">Here</a> is the Washington state list, which is suggestive, not exhaustive:</p>\n<blockquote>\n<p>(a) To a significant degree, the victim was an initiator, willing\nparticipant, aggressor, or provoker of the incident. (b) Before\ndetection, the defendant compensated, or made a good faith effort to\ncompensate, the victim of the criminal conduct for any damage or\ninjury sustained. (c) The defendant committed the crime under duress,\ncoercion, threat, or compulsion insufficient to constitute a complete\ndefense but which significantly affected his or her conduct. (d) The\ndefendant, with no apparent predisposition to do so, was induced by\nothers to participate in the crime. (e) The defendant's capacity to\nappreciate the wrongfulness of his or her conduct, or to conform his\nor her conduct to the requirements of the law, was significantly\nimpaired. Voluntary use of drugs or alcohol is excluded. (f) The\noffense was principally accomplished by another person and the\ndefendant manifested extreme caution or sincere concern for the safety\nor well-being of the victim. (g) The operation of the multiple offense\npolicy of RCW 9.94A.589 results in a presumptive sentence that is\nclearly excessive in light of the purpose of this chapter, as\nexpressed in RCW 9.94A.010. (h) The defendant or the defendant's\nchildren suffered a continuing pattern of physical or sexual abuse by\nthe victim of the offense and the offense is a response to that abuse.\n(i) The defendant was making a good faith effort to obtain or provide\nmedical assistance for someone who is experiencing a drug-related\noverdose. (j) The current offense involved domestic violence, as\ndefined in RCW 10.99.020, and the defendant suffered a continuing\npattern of coercion, control, or abuse by the victim of the offense\nand the offense is a response to that coercion, control, or abuse. (k)\nThe defendant was convicted of vehicular homicide, by the operation of\na vehicle in a reckless manner and has committed no other previous\nserious traffic offenses as defined in RCW 9.94A.030, and the sentence\nis clearly excessive in light of the purpose of this chapter, as\nexpressed in RCW 9.94A.010.</p>\n</blockquote>\n<p>The only clause that comes close, and it is not close enough, is</p>\n<blockquote>\n<p>(h) The defendant or the defendant's children suffered a continuing\npattern of physical or sexual abuse by the victim of the offense and\nthe offense is a response to that abuse</p>\n</blockquote>\n<p>Being badly brought up is not a mitigating factor for sentencing, and certainly not a defense.</p>\n",
"score": 0
},
{
"answer_id": 89853,
"body": "<h2>No 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>Instead of just holding Bob accountable for murder, both Bob and Dave are very likely accountable for it: Bob for doing it for low reasons (in this case: hatred), and Dave for "Anstiftung" under <a href=\"https://www.gesetze-im-internet.de/stgb/__26.html\" rel=\"nofollow noreferrer\">§26 StGB</a>. Both are to be punished with prison for life.</p>\n",
"score": 0
}
] |
[
"united-states",
"criminal-law",
"california",
"juvenile-law",
"adult"
] |
When the yellow lights (on a sign?) are flashing, the driver must reduce speed to a maximum of 30 km/h and yield or stop for pedestrians
| 1 |
https://law.stackexchange.com/questions/89839/when-the-yellow-lights-on-a-sign-are-flashing-the-driver-must-reduce-speed-t
|
CC BY-SA 4.0
|
<p>Is the following statement saying that when the yellow lights on the sign (see below) start flashing, caution is required? I asked the question because they don't look "electronic" to me. Maybe it's referring to some other yellow lights?</p>
<p>"<a href="https://www.alberta.ca/pedestrian-signals-and-signs.aspx#:%7E:text=When%20the%20yellow%20lights%20are,yield%20or%20stop%20for%20pedestrians." rel="nofollow noreferrer">Yellow lights on a sign with a symbol indicate that caution is required because of school zones or areas, playground zones or areas, school crossings, and pedestrian crossings. When the yellow lights are flashing, the driver must reduce speed to a maximum of 30 km/h and yield or stop for pedestrians.</a>"</p>
<p><a href="https://i.stack.imgur.com/99x0K.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/99x0K.png" alt="enter image description here" /></a></p>
| 89,839 |
[
{
"answer_id": 89848,
"body": "<p>It refers to the two yellow symbols either side of the walking man image, which are representations of "electronic" lights.</p>\n<p>Follow your link to see the text immediately below the sign:</p>\n<blockquote>\n<p>Pedestrian crossing sign with yellow lights</p>\n</blockquote>\n<p>See this similar example (from Nova Scotia):</p>\n<p><a href=\"https://i.stack.imgur.com/H0fKX.jpg\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/H0fKX.jpg\" alt=\"enter image description here\" /></a></p>\n<p><a href=\"https://www.saltwire.com/nova-scotia/opinion/your-letters-preventing-crosswalk-casualties-564036/\" rel=\"nofollow noreferrer\">Source</a></p>\n",
"score": 1
}
] |
[
"traffic",
"interpretation",
"alberta"
] |
In Germany, why are fines for fare evasion more likely to lead to jail time than other traffic-related fines?
| 4 |
https://law.stackexchange.com/questions/89767/in-germany-why-are-fines-for-fare-evasion-more-likely-to-lead-to-jail-time-than
|
CC BY-SA 4.0
|
<p>For most traffic related offences in Germany, eg: illegal parking, driving intoxicated and speeding, the punishment is a fine. But, if you enter the public transprot without ticket, then you are liable to jail time.</p>
<p>Can someone explain what the rationale is to increase the punishment of getting on public transport without a ticket than the driving fines?</p>
| 89,767 |
[
{
"answer_id": 89768,
"body": "<h2>Because that's the law since 1935!</h2>\n<p><a href=\"https://www.gesetze-im-internet.de/stgb/__265a.html\" rel=\"nofollow noreferrer\">StGG§ 265a</a> <a href=\"https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p2523\" rel=\"nofollow noreferrer\">(eng)</a> declares, that it is a criminal offense to take transportation without a ticket and not wanting to pay.</p>\n<blockquote>\n<p>(1) Wer die [...] <strong>die Beförderung durch ein Verkehrsmittel</strong> [...] in der Absicht erschleicht, das Entgelt nicht zu entrichten, wird mit Freiheitsstrafe bis zu einem Jahr oder mit Geldstrafe bestraft, wenn die Tat nicht in anderen Vorschriften mit schwererer Strafe bedroht ist.</p>\n</blockquote>\n<blockquote>\n<p>(1) Whoever [...] uses a means of transportation [...] with the intention of not paying the fee therefor incurs a penalty of imprisonment for a term not exceeding one year or a fine, unless the offence is subject to a more severe penalty under other provisions.</p>\n</blockquote>\n<p>But how come transportation fares are in the same paragraph as tricking a vending machine into selling you an item or phones to call without paying the full or any fee? In this case, it's history:</p>\n<p><a href=\"https://de.wikipedia.org/wiki/Erschleichen_von_Leistungen\" rel=\"nofollow noreferrer\">§265a was first enacted in 1935</a>, targeting mainly public telephones and vending machines, because those could be tricked by modifying 2 pfennig coins to have the diameter of 10 pfennig coins. The wording was quickly broadened to encompass any machinery controlling entry, but not all sorts of transportation (e.g. a taxi). But where did this come from? Well, the need for the law came from a problem the lawmakers and justice system faced: Because no <strong>human</strong> was tricked into letting people use the machine for less than the price or nothing at all, it wasn't fraud, because fraud was defined to interacting with a human in such a way. So there had to be a separate offence that targeted tricking machinery. When enacted, Tickets and ticket vending machines were in the scope of the paragraph from day one, as ticket sales or access to the train in many places was handled by automatic machines already or you could buy pre-paid ticket booklets/strips which would then be stamped and devalued in the transportation or at the station.</p>\n<p>In 1953, the scope was broadened to any use of the telecommunication infrastructure without pay, as the upcoming lack of telephone company employees creating a physical connection would mean it wouldn't be fraud anymore, so they used the same reasoning.</p>\n<p>Finally, in 1997 the telephone network was renamed communication network, also encompassing the internet and cellphones.</p>\n<h2>One year or fines</h2>\n<p>The punishment is one year <strong>or</strong> fine. In Germany, that is a fine of up to 365 day-values, which then are determined by the wealth and income of the convicted person. If you can't pay or want to pay, you can instead go to prison, each day serving also reducing your fine. That is called <em>Ersatzfreiheitsstrafe</em>. Only in exceptional cases like a massive repeat offender, the sentence would be only jailtime and no fine instead.</p>\n<p>Also note that all transport is companies and not conducted by the state (even if the DB is state-owned), and as such it is an <em>Antragsdelikt</em> - the damaged private party has to convince the state attorney that going to court is worth their time. However, it is much better for the transportation company to instead leverage the Terms of Transportation and gain the increased fare - usually at minimum 60 € or multiple transport price, whichever is higher.</p>\n",
"score": 7
},
{
"answer_id": 89769,
"body": "<h2><em>Ersatzfreiheitsstrafe</em>, not <em>Freiheitsstrafe.</em></h2>\n<p>The assumption behind the question is not quite correct, and I edited the subject line because of this. There is a problem with prison time for fare evasion, but it is not quite the problem the question describes. The defendants are not sentenced to a <em>Freiheitsstrafe</em>, a prison term. They are sentenced to a fine which gets converted into an <em>Ersatzfreiheitsstrafe</em>, a prison term in lieu of a fine, when they "refuse" to pay. Someone who gets a parking ticket, and who simply ignores every letter and payment request, will also go to jail in the end (<a href=\"https://www.gesetze-im-internet.de/owig_1968/__96.html\" rel=\"nofollow noreferrer\">§96 OWiG</a>).</p>\n<p>As the answer by <a href=\"https://law.stackexchange.com/questions/89767/why-is-it-that-in-germany-that-being-on-public-transport-without-ticket-is-punis/89768#89768\">Trish</a> pointed out, the punishment for fare evasion is normally <em>a fine or up to a year in prison</em>. When a range of punishments like that is given, the courts are supposed to use the maximum only in exceptionally grave circumstances. So if the case goes to court, and if the court finds the defendant guilty, the options are a fine or a prison sentence.</p>\n<p>For a first offender, a prison sentence is very <em>unlikely</em>. Even if the defendant was sentenced to prison, it would be very <em>likely</em> that for a first offender, the sentence would be suspended and the offender be put on probation. On top of that, the transport operator has the option of collecting a penalty fare and <em>not</em> filing criminal charges, which is routinely done if the defendant had no prior cases <em>in their transport system</em>. If a defendant gets a prison sentence for fare evasion, it is almost certain that there is a lengthy criminal history. More likely, the sentence is a fine.</p>\n<p><strong>But there is a problem with criminal fines in these cases.</strong></p>\n<p>The German legal system sees <strong>a fine as the lesser punishment</strong>, compared to a prison sentence or even a suspended prison sentence. That's somewhat counter-intuitive. A defendant who can leave the courtroom with a suspended sentence faces the risk of having the suspension revoked if he or she offends again, a defendant who gets sentenced to a fine has to pay up. But the theory values freedom over money.</p>\n<p>When the court passes a criminal fine, there are two elements to the judgment. The fine consists of a <strong>number of day-equivalents</strong> (<em>Anzahl der Tagessätze</em>) and the <strong>amount per day-equivalent</strong> (<em>Höhe des Tagessatzes</em>). The number depends on the severity of criminal responsibility, the amount depends on the wealth of the criminal, and they are multiplied to get a total.</p>\n<p>The court can set an amount per day-equivalent between €1 and €30,000. Normally, it is set at 1/30th of the monthly net income, or at €5 for people on welfare. <strong>In theory,</strong> that means both rich and poor people are equally "chastised" by the fine. The more money they have, the more money it takes to make them "feel the slap" from the justice system. And when the criminal does not pay, the fine is <strong>converted into prison time</strong> at a rate of one day per day-equivalent. It may be possible to pay in installments, or to do social work instead of paying, but prison is the default. Anything else needs to be arranged, which requires at least a passing familiarity with the legal system.</p>\n<p><strong>In practice,</strong> often it does not work out that way. A typical sentence for fare evasion is around 30 day-equivalents.</p>\n<ul>\n<li>Someone with a monthly income of €10,000 gets sentenced to 30 times €330 or so (the court would not use fiddly decimal points in the sentence). A good lawyer and a good tax advisor might even bring it down a little, but let's ignore that for this example. He or she can pay €9,900 or spend 30 days in prison. A defendant with such an income is <strong>extremely likely</strong> to be able to pay, either from savings or by taking a loan.</li>\n<li>Someone on welfare might get sentenced to 30 times €5. He or she can pay €150 or spend 30 days in prison. But a defendant on welfare is not likely to have €150 in the cookie jar. A good lawyer might be able to argue for a lower amount per day-equivalent, but the defendant probably won't have a good lawyer who spends an hour to make the case that the fine should be lower by a couple dozen Euros. Either the defendant borrows from friends or family, or the defendant goes to prison, or the defendant arranges to pay in installments, or the defendant arranges the option to do social work in lieu of the fine. Such a defendant is <strong>less likely</strong> to be able to pay than the defendant in the first bullet point.</li>\n<li>A homeless drug addict would probably ignore the summons to court, possibly get a default judgement at the rate of €5 per day equivalent even if there is a very good case for a lower amount, ignore the request to pay, and gets an arrest warrant. When the defendant is picked up for an unrelated drunk-and-disorderly offense, the arrest warrant shows up in the computer.<br />\n(I realize that this sounds disrespectful of homeless people, but it would take a homeless with a <em>very</em> good support network to navigate the legal proceedings successfully. Having no postal address is a massive problem, on top of the other effects.)</li>\n</ul>\n<p>So while it is true that fare evasion is more likely to result in prison terms than parking offenses, <strong>the correlation is not causation</strong>.</p>\n<p><strong>Only very poor people are likely to go to prison over either offense, and very poor people are less likely to own and operate a motor vehicle.</strong></p>\n<p>That being said, it is recognized by many activists, legal professionals, and by politicians specializing in justice <em>or</em> welfare, that there is a massive problem. The number of inmates on <em>Ersatzfreiheitsstrafe</em> is <a href=\"https://netzpolitik.org/2022/datenluecke-wie-viele-menschen-sitzen-wegen-fahren-ohne-ticket-im-gefaengnis/\" rel=\"nofollow noreferrer\">unclear, but significant</a>, and keeping them there is rather expensive. During the Corona pandemic, the state of Berlin simply stopped administering <em>Ersatzfreiheitsstrafen</em> to reduce crowding in prisons. <a href=\"https://taz.de/Ersatzfreiheitsstrafen-in-Berlin/!5857164/\" rel=\"nofollow noreferrer\">Now</a> they apply the normal laws again, arguing that "sorry, no cells available" is not a way to approach the structural problem.</p>\n",
"score": 5
},
{
"answer_id": 89792,
"body": "<p>There are a couple of mix-ups and mis-understandings in the question that I would like to clear up, even though some of them have already been addressed directly or indirectly in other answers.</p>\n<h1>Traffic-related offense</h1>\n<p><em>Fare-dodging</em> is not a traffic offense. It is treated more similar to <em>fraud</em> than to speeding or a parking violation. [See <a href=\"https://law.stackexchange.com/a/89768/4194\">Trish's answer</a> for an explanation why a specific offense is needed and <em>fraud</em> is not enough – the short answer is because you can only defraud a human, not a vending machine.]</p>\n<p>The actual offense is <em>Erschleichen von Leistungen</em> (literally "sneaking a service", a more precise translation might be "subreption of services").</p>\n<h1>Traffic offenses lead to fines</h1>\n<blockquote>\n<p>For most traffic related offences in Germany, […] the punishment is a fine.</p>\n</blockquote>\n<p>That is technically true. Not just for traffic-related offenses but for all offenses. Most offenses don't carry jail sentences. In fact, that is probably true not just for Germany but most jurisdictions.</p>\n<p>However, there are traffic-related offenses that <em>do</em> carry potential jail sentences. For example, <em>willful or reckless endangerment of traffic</em> carries a sentence of up to 5(!!!) years.</p>\n<p>Also, not all offenses in traffic are traffic offenses. <em>Nötigung</em> (coercion) is an example of an offense that drivers are convicted of on a regular basis that is not specific to traffic: aggressive tailgating for example is considered to "coerce" the driver in front to do something they wouldn't normally want to do and can be punished as coercion without needing any traffic-specific offense. And obviously, you can be convicted of <em>property damage</em>, <em>assault</em>, <em>assault resulting in death</em>, <em>manslaughter</em>, and <em>murder</em> for your behavior in traffic.</p>\n<p>In fact, you can get in serious trouble <em>just for parking tickets</em>. There was a story of a guy who figured out that parking tickets were cheaper than renting a parking space, so every day he illegally parked his car in the same spot, every day he got a ticket, and every day he paid the fine … until his driver's license got taken away on the grounds that he showed blatant disregard for traffic rules and thus was <em>morally incapable</em> of participating in traffic after having received over 150 parking tickets and 20 speeding tickets in less than a year.</p>\n<h1>Conviction for jail time</h1>\n<p>While technically fare dodging carries a maximum sentence of one year in prison, most people who go to jail for fare dodging are not actually sentenced to jail time. They are sentenced to a fine but are unable to pay it. [See <a href=\"https://law.stackexchange.com/a/89769/4194\">o.m.'s answer for details</a>.]</p>\n<p>And the same thing would happen if you are fined for speeding but can't pay the fine. It just so happens that the social groups who tend to commit fare dodging tend to be more likely to be unable to pay a fine than the social groups who tend to commit speeding. (Getting a driver's license is expensive, and a car even more so, so if you are caught speeding, chances are you have the money to pay a fine.)</p>\n<h1>Specific to Germany</h1>\n<p>It is actually not that unusual. For example, the equivalent offense in New York (Theft of Services) carries the exact same 1 year maximum sentence.</p>\n",
"score": 5
}
] |
[
"germany",
"fines",
"public-transport"
] |
Best approach for a debt collectors call?
| 1 |
https://law.stackexchange.com/questions/89833/best-approach-for-a-debt-collectors-call
|
CC BY-SA 4.0
|
<p>We are getting debt collection calls from a cabinet contractor who didn't finish the job(<em>we have emails of all punchlist items they have ignored</em>). We have paid 95% of the bill and haven't been contacted to finish up the remaining items, honestly I just figured they'd drop it because it's probably at this point more money for them to come back and fix the issues that are remaining - and we don't have time to deal with it. <strong>Should I just ignore the debt collector? Is it best to answer and explain the unresolved work? Or what would the best approach be in that situation?</strong></p>
| 89,833 |
[
{
"answer_id": 89834,
"body": "<h2>Don’t ignore the debt collects</h2>\n<p>In most jurisdictions, your failure to pay can and will be recorded on your credit history. This may affect your ability to obtain finance or the rate you pay for it. For credit reporting, there is no need for the creditor to <em>prove</em> the debt before doing this. For <a href=\"https://moneysmart.gov.au/managing-debt/credit-scores-and-credit-reports\" rel=\"nofollow noreferrer\">example</a>.</p>\n<p>In general, you are not legally allowed to default on a contractual obligation (i.e. not pay the bill) even if the other party has defaulted on theirs (i.e. failed to complete the work).</p>\n<p>It is not clear that you have explained to the contractor that you are withholding the remaining payment until they have fixed the alleged defects or if you have just not paid the money. When you have a contract dispute you need to be clear and take active steps to resolve it.</p>\n<p>Perhaps head office thinks all these items have been resolved. Perhaps you think they are defects or omissions but they are actually within normal tolerances or are exactly what you contracted for. Unless you talk to them, you can’t resolve it.</p>\n<p>When you have set out the disputed items, given them a time to fix them, told them you will pay when they are fixed, and possibly set out an alternative method of resolution (like you accepting the defects for a 5% discount) then you have a bona fide dispute. At that point you can tell the debt collector this and they must stop pressing you and remove your name from the credit reports.</p>\n",
"score": 3
},
{
"answer_id": 89835,
"body": "<p>There is a contract between you and the contractor: you must pay an amount of money, he is supposed to do some work. You admit that you have breached your obligation, and allege that he has breached his obligation. One remedy that either party has is to take the matter to court, however the courts are unlikely to order a contractor to actually perform on the contract, instead they may award you monetary damages, essentially wiping the slate clean.</p>\n<p>However, if they have turned the matter over to a collection agency, then the agency isn't interested in talking, they are only interested in getting the money that you owe. If you are in the US, the debt collector is subject to the <a href=\"https://en.wikipedia.org/wiki/Fair_Debt_Collection_Practices_Act\" rel=\"nofollow noreferrer\">Fair Debt Collection Practices Act</a>. Be very careful about demanding that they leave you alone, in that case, because their only recourse will be to take you to court and force you to pay what you owe (once you demand that they leave you alone, they cannot continue to negotiate).</p>\n<p>In the US, in all states, the contractor can file a mechanics lien against your property, which means that the property cannot be sold without first paying the debt.</p>\n<p>Since the contractor apparently wants his money, this is not a matter that can safely be ignored.</p>\n",
"score": 1
}
] |
[
"collections",
"contractor"
] |
What laws prohibit winning prizes in international contests?
| 4 |
https://law.stackexchange.com/questions/38040/what-laws-prohibit-winning-prizes-in-international-contests
|
CC BY-SA 4.0
|
<p>In the <a href="https://flutter.dev/create" rel="nofollow noreferrer">https://flutter.dev/create</a> contest, the rules say this:</p>
<blockquote>
<p>Persons from the following countries or regions can submit but will
not be considered eligible for the contest due to local rules,
including exclusion from judging and prizes: Italy, Brazil, Quebec,
and Mexico.</p>
</blockquote>
<p>What laws in these countries or regions prevent winning prizes in an international contest?</p>
<p>Edit: there are no chance elements in the contest, but part of the judging criteria is subjective.</p>
| 38,040 |
[
{
"answer_id": 38054,
"body": "<p><a href=\"https://www.thebalanceeveryday.com/why-are-so-many-competitions-void-in-quebec-896835\" rel=\"nofollow noreferrer\">Quebec has more stringent sweepstakes laws than the rest of Canada:</a></p>\n\n<blockquote>\n <p>Companies don't exclude residents of Quebec from sweepstakes because they don't want to advertise in Quebec, or because they have anything against the residents of that province. The reason why so many sweepstakes are void in Quebec is that the sponsors must follow a stringent set of laws set out by Quebec's Regie des alcools, des courses et des jeux (RACJ), which governs alcohol, lotteries, contests, gambling, and more. ...</p>\n \n <p>For example, in order for sweepstakes with prizes worth more than a certain value to be open to residents of Quebec, the companies sponsoring the sweepstakes must take some or all of the following steps:</p>\n \n <ul>\n <li>Register the sweepstakes rules and all advertisements used to promote the contest with the Quebec government at least 30 days ahead of the sweepstakes' launch.</li>\n <li>Publish the full text of the sweepstakes' rules at least 10 days before the giveaway begins.</li>\n <li>Pay a fee of up to 10% of the sweepstakes' value, depending on who is allowed to enter.</li>\n <li>Agree to allow the government of Quebec to mediate any lawsuits arising from the contest.</li>\n <li>Follow strict guidelines about the contents of the sweepstakes rules.</li>\n <li>Allow the government of Quebec the right to approve any changes to the giveaway that need to be made once it has started, and to approve canceling the giveaway if it becomes necessary to do so.</li>\n <li>File a written report after the contest has concluded, attesting that the prizes have been delivered or attempted to be delivered.</li>\n <li>Agree to let the RACJ mediate any disagreements with the public.</li>\n <li>File security in the amount of the prize value, to ensure that the prizes are actually awarded.</li>\n </ul>\n</blockquote>\n\n<p>The full set of laws can be found in <a href=\"http://legisquebec.gouv.qc.ca/en/ShowDoc/cr/L-6,%20r.%206\" rel=\"nofollow noreferrer\">chapter L-6, r. 6 of Quebec Consolidated Statutes.</a> Note that under Quebec law, a \"publicity contest\" (<em>concours publicitaire</em>) is</p>\n\n<blockquote>\n <p>a contest, a lottery scheme, a game, a plan or an operation which results in the awarding of a prize, carried on for the object of promoting the commercial interests of the person for whom it is carried on.</p>\n</blockquote>\n\n<p>So even though chance plays a minimal role in the contest you've described, it's still regulated by the stringent requirements of Quebec law.</p>\n\n<p>In contrast, in the rest of Canada, promotional contests are governed by Section 74.06 of the (federal) Competition Act. <a href=\"https://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03126.html\" rel=\"nofollow noreferrer\">A set of enforcement guidelines</a> can be found on the Competition Bureau's website; they basically require anyone running a contest to:</p>\n\n<ul>\n<li><p>give \"adequate and fair disclosure... of the number and approximate value of the prizes, of the area or areas to which they relate and of any fact within the knowledge of the person that affects materially the chances of winning;\"</p></li>\n<li><p>not \"unduly delay\" the distribution of the prizes, and</p></li>\n<li><p>select winners on the basis of skill or on the basis of random chance. [I think this basically bars giving the prize to the boss's nephew.]</p></li>\n</ul>\n\n<p>However, there is nothing about fees, securities, publishing the rules in advance, submitting one's advertising materials to the government, etc. Given the relative ease of running a contest in the rest of Canada compared to Quebec, one can easily see how a company might not find it worthwhile to allow Quebecers to enter and win.</p>\n",
"score": 3
},
{
"answer_id": 89817,
"body": "<p>In Brazil's case, the Federal Revenue bureau (Receita Federal) imposes that the payer of the prize takes 30% of the total amount and give it to the tax bureau of the payer's country, like USA's IRS. This does not prevent Brazil's Receita Federal from taking between 7,5% to 27,5% of the prize, so the winner would receive less than half of what has been promised, because Brazil and USA don't have an agreement to prevent double tributation, like Brazil and Portugal have. This, or the payer would need to spend more money to cover the taxes, which, in turn, would increase the taxes and the money needed to cover them.</p>\n<p>Flutter probably decided to boycott this because it sucks: giving less than promised would damage it's image, giving the amount promised would make it spend much more than planned just to cover taxes, and would bankrupt it.</p>\n<p>Source: <a href=\"https://www.oscorp.com.br/single-post/2020/09/03/a-tributa%C3%A7%C3%A3o-das-premia%C3%A7%C3%B5es-em-torneios-de-esports\" rel=\"nofollow noreferrer\">OsCorp Intellectual Property blog</a>.</p>\n<blockquote>\n<p>Ocorre que, em boa parte dos países, inclusive no Brasil, por medida de simplificação e eficiência arrecadatória, as entidades fiscais determinam que o pagamento de prêmios de competições a não-residentes seja precedido da retenção pela fonte pagadora dos impostos devidos. Em um exemplo mais concreto: se o competidor brasileiro vai receber um prêmio pago por uma publisher estado-unidense, tal publisher é obrigada a reter 30% do valor a título de imposto de renda daquele país (e remeter tal valor para a IRS — Internal Revenue Service, a receita federal dos EUA).</p>\n<p>[...]</p>\n<p>Independente do fundamento, essa sistemática de retenção do imposto no país da fonte pagadora, analisada dentro de um ambiente internacional em que os países aplicam a teoria da universalidade (toda renda auferida pelo residente é tributada no seu país), faz surgir o indesejado fenômeno da bitributação.</p>\n</blockquote>\n",
"score": 2
},
{
"answer_id": 89831,
"body": "<p>Ultimately, it is the terms of the contest that prohibit people from those countries from participating.</p>\n<p>The sponsors of the context could decide that they will exclude people from certain countries or jurisdictions from participating, even if they could allow it, because the law in those jurisdictions makes it took inconvenient for the sponsor to allow it.</p>\n",
"score": 1
}
] |
[
"italy",
"brazil",
"mexico",
"quebec"
] |
What rule governs when county court decisions result or don’t result in written statements of reasons?
| 2 |
https://law.stackexchange.com/questions/89822/what-rule-governs-when-county-court-decisions-result-or-don-t-result-in-written
|
CC BY-SA 4.0
|
<p>I recall reading that at the circuit judge appellate level, the answer is yes. But I’m more wondering specifically about the district judge or deputy district judge level of first instance.</p>
| 89,822 |
[
{
"answer_id": 89830,
"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>In U.S. practice in almost all jurisdictions, court orders must be memorialized in a signed or electronically signed writing transmitted to the parties and/or counsel. But, this can be a bare recitation of the result.</p>\n<p>The extent to which it must be reasoned is discretionary, and the reasoning can be supplied by an oral statement of the judge in lieu of a writing. Oral statements of reasoning in lieu of written judgments are common in courts of limited jurisdiction comparable to English County Courts, but written opinions are issued now and then in more complex cases or where legal issues were argued in closing arguments.</p>\n<p>A ruling of a judge sitting without a jury may be vacated and remanded by an appellate court for further proceedings, if the factual and legal basis for the ruling is not articulated with sufficient clarity to allow an appellate court to determine if the trial court's decision was legally correct and supported by the trial court record.</p>\n<p>Juries, of course, are not requires to articulate their reasoning and enter a bare verdict of liability and damages, or guilty and not guilty as to each charge (and in rare instances also answer one or more "special verdict" questions) in the manner set forth on the jury verdict form provided to the jury.</p>\n<p>In limited jurisdiction courts where the sole appeal is a trial <em>de novo</em> in a higher court, called "courts not of record", a written statement of reasons is unnecessary as any appeal will not be based upon the trial court record.</p>\n",
"score": 3
}
] |
[
"england-and-wales",
"civil-procedure",
"court"
] |
Reproducing content from catalogues
| 0 |
https://law.stackexchange.com/questions/89789/reproducing-content-from-catalogues
|
CC BY-SA 4.0
|
<p>Would it be legal in the U.S. to reproduce the content of catalogues of certain stores, with my own design and formatting, while directing people to those stores?</p>
<p>Would there be a difference between publishing online or not?</p>
<p>Would there be a difference whether sourcing from the web or not?</p>
<p>Part 2: If it is legal, would it also be legal to charge for the reproduced content?</p>
| 89,789 |
[
{
"answer_id": 89794,
"body": "<p>The content of these catalogs is almost certainly copyrighted by the companies who produced them. Using that content without permission is going to be a violation of the copyright laws in the USA and many other places.</p>\n<p>I don't see how any interpretation of fair-use applies to your stated scenario.</p>\n",
"score": 1
},
{
"answer_id": 89829,
"body": "<blockquote>\n<p>Would it be legal in the U.S. to reproduce the content of catalogues\nof certain stores, with my own design and formatting, while directing\npeople to those stores?</p>\n</blockquote>\n<p>Maybe.</p>\n<p>"<a href=\"https://en.wikipedia.org/wiki/Sweat_of_the_brow\" rel=\"nofollow noreferrer\">Sweat of the brow</a>" collections of data from legally obtained copyrighted sources (as opposed, e.g., to theft of a trade secret) is not <em>per se</em> a copyright violation under U.S. law (although it is a question with considerable international variation in copyright law requirements). Copyright protects the manner in which ideas and information are expressed, not the ideas and information themselves. But, whether a particular incarnation of this was an infringement would be quite fact specific.</p>\n<p>Per the link above:</p>\n<blockquote>\n<p>The United States rejected this doctrine in the 1991 United States\nSupreme Court case <em><a href=\"https://supreme.justia.com/cases/federal/us/499/340/\" rel=\"nofollow noreferrer\">Feist Publications v. Rural Telephone Service</a></em>;\nuntil then it had been upheld in a number of US copyright cases.</p>\n<p>Under the <em>Feist</em> ruling in the US, mere collections of facts are\nconsidered unoriginal and thus not protected by copyright, no matter\nhow much work went into collating them. The arrangement and\npresentation of a collection may be original, but not if it is "simple\nand obvious" such as a list in alphabetical or chronological order.</p>\n</blockquote>\n<p>For example, a cost comparison app relying on data from catalogs from various firms might be legal.</p>\n<p>There have also been efforts, mostly unsuccessful, to establish <a href=\"https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1703&context=faculty_scholarship\" rel=\"nofollow noreferrer\">a common law claim for "hot news"</a> (the link is to a law review article from 2011 discussing those efforts).</p>\n<blockquote>\n<p>Would there be a difference between publishing online or not?</p>\n</blockquote>\n<p>No. This said, if one wants to confine oneself to cases subject only to U.S. law and not the countries that recognize sweat of the brow copyrights, offline publication could be safer. There are other ways, however, to geolocate the availability of work to avoid being subjected to laws in particular countries.</p>\n<blockquote>\n<p>Would there be a difference whether sourcing from the web or not?</p>\n</blockquote>\n<p>No (with the possible caveat that online sourcing may raise a non-copyright terms of service issue).</p>\n<blockquote>\n<p>Part 2: If it is legal, would it also be legal to charge for the\nreproduced content?</p>\n</blockquote>\n<p>If it is not infringing in the first place, then charging for it is fine. The contemplated activity doesn't rely on a fair use exception where charging for it is one of many factors (non-conclusive either way) in determining fair use.</p>\n",
"score": 1
}
] |
[
"copyright"
] |
Can shop staff search your bag when you are selected for a random rescan?
| 2 |
https://law.stackexchange.com/questions/77220/can-shop-staff-search-your-bag-when-you-are-selected-for-a-random-rescan
|
CC BY-SA 4.0
|
<p>(UK based). My question refers to the situation where you are using the "scan as you go" system in which you scan items and pack them into your bag as you go around the shop, and pay at the till before you leave. When using this system you agree in the terms to random rescans, in which your items are occasionally completely rescanned by store staff to see if there is anything you didn't scan.</p>
<p>However, this seems to imply that the shop staff have the ability to go through your personal bag, which may have your own belongings as well as your shopping. As far as I am aware here the store has no recourse to use citizens arrest powers, as there has been nothing to suggest you have broken the law, so they have no power to search your bag or detain you for a police member to search your bag. But if they have no power to search you, surely the rescan system will never catch potential shoplifters, as any unscanned items can be kept concealed in your bag.</p>
| 77,220 |
[
{
"answer_id": 77222,
"body": "<p>You have <a href=\"https://www.asda.com/about/instore/scan-and-go/terms-and-conditions\" rel=\"nofollow noreferrer\">an agreement</a> with the store that allows you to use scan and go technology. Part of that agreement a bit that says</p>\n<blockquote>\n<p>we may ask you to help us confirm that the service is working\neffectively by allowing us to check your goods against the scanner or\nto re-scan your shopping</p>\n</blockquote>\n<p>They also say that they are</p>\n<blockquote>\n<p>entitled to withdraw your right to use the Scan and Go service\nat any time if you do not comply with these Terms and Conditions. If\nwe do that, the legal agreement created between ASDA and you under\nthese Terms and Conditions will come to an end immediately, although\nany relevant statutory rights that you may have will not be affected.\nMore generally, ASDA reserves the right to withdraw the Scan and Go\nService at any time, at its sole discretion</p>\n</blockquote>\n<p>You have implicitly consented to a brief stop for a rescan. I don't see any implication that they assert a right to search your person. You can refuse a re-scan and they can process you like an ordinary customer.</p>\n<p>As for shoplifting, as <a href=\"https://www.inbrief.co.uk/offences/security-guards-shoplifting/\" rel=\"nofollow noreferrer\">this article</a> summarizes, security can make a citizen's arrest if they suspect that you have committed a crime (theft). They have to have reasonable grounds for thinking that an arrest is necessary to prevent the loss. Hence they can detain you until the constable arrives.</p>\n",
"score": 3
}
] |
[
"theft",
"search-and-seizure"
] |
Is it legally required to present ID when entering a hostel?
| 1 |
https://law.stackexchange.com/questions/88626/is-it-legally-required-to-present-id-when-entering-a-hostel
|
CC BY-SA 4.0
|
<p>Is there any specific law that it is necessary to present identification when checking into a hostel, because since you are living amongst others, there might be a variety of interpersonal issues, and in some ways, the private/residential sphere and the public sphere are in the same place?</p>
<p>(Any country, but curious about the North America or Europe.)</p>
| 88,626 |
[
{
"answer_id": 88646,
"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=\"germany-container\">germany</a><br />\nVisitors in hotels must be registered and the hotel must keep the paperwork for a certain duration. According to <a href=\"https://www.gesetze-im-internet.de/bmg/__29.html\" rel=\"nofollow noreferrer\">§29 Bundesmeldegesetz</a>, foreigners who are required to be named in their registry need to show an identity document (groups might have summary listings for some).</p>\n<p>There are some optional simplifications. Paying by credit card may count as identity verification.</p>\n<p>From context where this law is placed, it is not about interpersonal issues in the hotel. Germany requires all <em>residents</em> to register with their municipality of residence, and registering hotel visitors closes loopholes. §28 immediately before this is about sailors on river barges, §32 is about hospitals.</p>\n",
"score": 3
},
{
"answer_id": 89812,
"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>As a foreigner, yes. As a French national, no</p>\n<p>According to the <a href=\"https://www.cnil.fr/fr/cnil-direct/question/un-hotelier-peut-il-faire-une-copie-de-ma-piece-didentite\" rel=\"nofollow noreferrer\">CNIL</a> (translation mine) :</p>\n<blockquote>\n<blockquote>\n<p>Un hôtelier peut-il faire une copie de ma pièce d'identité ?</p>\n</blockquote>\n<p><strong>Non.</strong><br />\n<strong>Attention !</strong></p>\n<p>Il peut cependant vous demander de <strong>présenter</strong> une pièce d'identité afin de justifier votre nationalité. En effet, en France, les hôteliers sont tenus de faire remplir et signer par toute personne étrangère, dès son arrivée, une fiche individuelle de police à des fins de prévention des troubles à l'ordre public, d'enquêtes judiciaires et de recherche dans l'intérêt des personnes.\nIl peut également vous demander de justifier de votre identité si vous lui remettez un chèque en paiement (code monétaire et financier).</p>\n</blockquote>\n<blockquote>\n<blockquote>\n<p>Can a hotel make a copy of my ID?</p>\n</blockquote>\n<p><strong>No</strong><br />\n<strong>Warning !</strong>\nThey can as you to <strong>show</strong> your ID to justify your citizenship as they are required, if you are a foreigner, to make you fill and sign a individual police file.<br />\nThey can also make you <strong>show</strong> it if you are paying by check (financial and monetary code)\n[...]</p>\n</blockquote>\n<hr />\n<p>If you are a French national, it is perfectly legal for you to refuse to present your ID at all since there are no laws that require you to present one</p>\n<blockquote>\n<p>Indépendamment du cas particulier du paiement par chèque, aucun texte n'impose que les consommateurs produisent un justificatif d'identité lors de l'achat d'une prestation hôtelière.</p>\n</blockquote>\n<blockquote>\n<p>Outside of the specific case of payment by check, no laws require consumers to procude an ID when buying a hotel prestation</p>\n</blockquote>\n<p><a href=\"http://www.senat.fr/questions/base/2006/qSEQ060723827.html\" rel=\"nofollow noreferrer\"><em>Economy minister response to the Senate, n°23827</em></a></p>\n<p>And since refusing service/sale, outside specific circumstances (like suspicion of you being a minor or being a foreigner) is illegal</p>\n<blockquote>\n<p>Est interdit le fait de refuser à un consommateur la vente d'un produit ou la prestation d'un service, sauf motif légitime ;</p>\n</blockquote>\n<blockquote>\n<p>Is forbidden the fact of refusing to a consummer the sale of a product or the provision of a service, except for legitimate reasons ;</p>\n</blockquote>\n<p><a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000036923526\" rel=\"nofollow noreferrer\"><em>Consummer code, L-121-11</em></a></p>\n<p>This makes refusal legal, as this wouldn't stand as a legitimate reason</p>\n<blockquote>\n<p>A la connaissance du ministère de l'économie, des finances et de l'industrie, il n'existe pas de jurisprudence ayant admis comme motif légitime d'un refus de vente l'absence de production d'un justificatif d'identité.</p>\n</blockquote>\n<blockquote>\n<p>To the knowledge of the Ministry of the Economy, Finance and Industry, there is no case law that has accepted the absence of proof of identity as a legitimate reason for refusing a sale.</p>\n</blockquote>\n<p><a href=\"http://www.senat.fr/questions/base/2006/qSEQ060723827.html\" rel=\"nofollow noreferrer\"><em>Economy minister response to the Senate, n°23827</em></a></p>\n",
"score": 3
},
{
"answer_id": 89814,
"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<ul>\n<li><p>An alien(<em>sic</em>)<sup>1</sup> must provide their name, nationality and passport etc details on arrival, and their destination on departure.</p>\n</li>\n<li><p>Non-aliens must provide their name and nationality on arrival.</p>\n</li>\n</ul>\n<p>See <a href=\"https://www.legislation.gov.uk/uksi/1972/1689/article/4/made\" rel=\"nofollow noreferrer\">Article 4</a> Immigration (Hotel Records) Order 1972 that details what information is required, and when:</p>\n<blockquote>\n<p>(1) Every person of or over the age of 16 years who stays at any premises to which this Order applies shall, on arriving at the premises, inform the keeper of the premises of <strong>his full name and nationality.</strong></p>\n<p>(2) Every such person who is an alien shall also—</p>\n<ul>\n<li><p>(a) on arriving at the premises, inform the keeper of the premises of the <strong>number and place of issue of his passport, certificate of registration or other document establishing his identity and nationality</strong>; and</p>\n</li>\n<li><p>(b) on or before his departure from the premises, inform the keeper of the premises of <strong>his next destination and, if it is known to him, his full address there.</strong></p>\n</li>\n</ul>\n</blockquote>\n<hr />\n<p><sup>1</sup> <a href=\"https://www.legislation.gov.uk/uksi/1972/1689/article/2/made\" rel=\"nofollow noreferrer\">Article 2(1)</a> of the 1972 Order was <a href=\"https://www.legislation.gov.uk/uksi/1982/1025/article/2/made\" rel=\"nofollow noreferrer\">amended</a> to include the <a href=\"https://www.legislation.gov.uk/ukpga/1981/61/section/50?timeline=false\" rel=\"nofollow noreferrer\">British Nationality Act 1981</a> definition of <strong>alien</strong>:</p>\n<blockquote>\n<p>a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland</p>\n</blockquote>\n",
"score": 2
},
{
"answer_id": 89824,
"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>There is no federal law mandating producing identification for such purpose. There could be state laws to that effect, however the only law in Washington state is <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=19.48&full=true\" rel=\"nofollow noreferrer\">RCW 19.48.020</a>, which requires that "Every hotel and trailer camp shall keep a record of the arrival and departure of its guests in such a manner that the record will be a permanent one for at least one year from the date of departure" ("hotel" is defined in subsection 010 as any place held out as a public sleeping accomodation, lumping together hotel, motel, hostel, lodge, inn and whatever other terms are applied). There is no law or administrative rule regulating the information to be collected or the proof of the veracity of the information that has to be given.</p>\n",
"score": 2
}
] |
[
"identification"
] |
Liability for uninsured driver
| 4 |
https://law.stackexchange.com/questions/89413/liability-for-uninsured-driver
|
CC BY-SA 4.0
|
<p>I recently sold my car to a dealer, and when he collected it he wanted to take it for a test drive. I asked for proof of insurance but he didn't have any on him. I let him go ahead anyway, and it was OK. But it set me wondering.</p>
<p>Suppose we had an accident, and it turned out the dealer had no insurance. I know that as owner I am liable if I knowingly allow an uninsured driver to use my car, but what if I've accepted their statements about having insurance in good faith? Is this a defence?</p>
| 89,413 |
[
{
"answer_id": 89697,
"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>Is this a defence?</strong></p>\n<p><strong>Short Answer</strong>: Possibly, if "special reasons" apply. If not, it's a mandatory minimum of 6 penalty points (subject to below). A driving disqualification (i.e. ban) and/or a fine are also possible, but not mandatory.</p>\n<p><strong>Long Answer</strong>: The offence of allowing someone else to drive one's car without insurance falls under <a href=\"https://www.legislation.gov.uk/ukpga/1988/52/section/143?timeline=false\" rel=\"nofollow noreferrer\">section 143(1)(b)</a> Road Trafic Act 1988:</p>\n<blockquote>\n<p>(b) a person must not <strong>cause or permit</strong> any other person to use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that other person such a policy of insurance as complies with the requirements of this Part of this Act.</p>\n</blockquote>\n<p>This attracts discretionary driving ban and/or fine, with a mandatory endorsement (i.e. penalty points) - see the <a href=\"https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/no-insurance-revised-2017/\" rel=\"nofollow noreferrer\">Sentencing Council Guidelines</a></p>\n<blockquote>\n<ul>\n<li>Must endorse and may disqualify. If no disqualification impose 6- 8 points</li>\n</ul>\n</blockquote>\n<p>Note there is a distinction between <em>cause or permit</em> and <em>use</em>. The latter has a statutory defence for certain drivers who believed incorrectly they had valid insurance<sup>1</sup> unlike "causing or permitting" someone else to drive which does not.</p>\n<p>There is, however, the potential for avoiding a ban and some/all of the penalty points if the court finds there are "special reasons" to do so. For example: if one can show that they carried out all reasonable steps and due diligence, or made it a pre-condition that the driver was properly insured.</p>\n<ul>\n<li>Re: Disqualification - The court may consider <a href=\"https://www.legislation.gov.uk/ukpga/1988/53/section/34?timeline=false\" rel=\"nofollow noreferrer\">section 34(2)</a> Road Traffic Offenders Act 1988:</li>\n</ul>\n<blockquote>\n<p>(2) Where a person is convicted of an offence involving discretionary disqualification, and either—</p>\n<ul>\n<li>(a) the penalty points to be taken into account on that occasion number fewer than twelve...</li>\n</ul>\n<p>...</p>\n<p>the court may order him to be disqualified for such period as the court thinks fit.</p>\n</blockquote>\n<ul>\n<li>Re: Endorsement - The court may consider <a href=\"https://www.legislation.gov.uk/ukpga/1988/53/section/44?timeline=false\" rel=\"nofollow noreferrer\">section 44</a> Road Traffic Offenders Act 1988:</li>\n</ul>\n<blockquote>\n<p>(1) Where a person is convicted of an offence involving obligatory endorsement...</p>\n<p>[...]</p>\n<p>(2) Where the court does not order the person convicted to be disqualified, it need not make an order under subsection (1) above if for special reasons it thinks fit not to do so.</p>\n</blockquote>\n<p>Whether a claim for"special reasons" is available will be fact-dependant.</p>\n<hr />\n<p><sup>1</sup> For completeness, driving without valid insurance is at s.143(1)(a) RTA1988:</p>\n<blockquote>\n<p>(a) a person must not <em><strong>use</strong></em> a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that person such a policy of insurance as complies with the requirements of this Part of this Act...</p>\n</blockquote>\n<p>With the statutory defence for certain employees who do not have the required insurance is at s.143(3) RTA1988:</p>\n<blockquote>\n<p>(3) A person charged with using a motor vehicle in contravention of this section shall not be convicted if he proves—</p>\n<ul>\n<li><p>(a) that the vehicle did not belong to him and was not in his possession under a contract of hiring or of loan,</p>\n</li>\n<li><p>(b) that he was using the vehicle in the course of his employment, and</p>\n</li>\n<li><p>(c) that he neither knew nor had reason to believe that there was not in force in relation to the vehicle such a policy of insurance as is mentioned in subsection (1) above.</p>\n</li>\n</ul>\n</blockquote>\n",
"score": 2
}
] |
[
"united-kingdom",
"car-insurance"
] |
Can a private person deceive a defendant to obtain evidence?
| 25 |
https://law.stackexchange.com/questions/89766/can-a-private-person-deceive-a-defendant-to-obtain-evidence
|
CC BY-SA 4.0
|
<p>In the <a href="https://en.wikipedia.org/wiki/Badla_(2019_film)" rel="noreferrer">2019 movie "Badla"</a> (spoilers ahead), Naina was accused of committing a murder in the UK, and her trial is in London. She denies the accusation. Her clever lawyer Badal arrives and they have a three hour conversation going over all the details of the past events, coming up with different theories about the real culprit - and throughout it, Badal slowly gains her trust. He eventually manages to get Naina to confess that yes, she did in fact commit the murder. Including how she did it and where she hid the body.</p>
<p>Badal leaves the scene and five minutes later the <em>real</em> Badal arrives! The fake Badal was actually Nirmal, the father of the murder victim, who of course recorded the whole conversation including the confession. He calls the police, and the credits roll.</p>
<p>It's a compelling movie but this struck me. Nirmal was deceiving Naina by impersonating a lawyer, which is a crime. But he had nothing to lose, he wanted to get justice for his dead son. And because he is not a police officer or official part of the prosecution in any way, this evidence wouldn't be inadmissible for being bad police practise, I would think (<a href="https://law.stackexchange.com/questions/8542/can-police-trick-you-into-a-confession-by-pretending-to-be-a-lawyer">this question</a> says that the police cannot impersonate a lawyer to gain evidence, but Nirmal is not police). But if such a confession would be admissible in court, then why don't more people pretend to be lawyers, or generally do illegal stuff like deception to obtain evidence?</p>
| 89,766 |
[
{
"answer_id": 89787,
"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<h2>Admission of the confession is at the discretion of the court</h2>\n<p><a href=\"https://www.hse.gov.uk/enforce/enforcementguide/investigation/witness-admissibility.htm\" rel=\"noreferrer\">PACE</a> s78 gives the court the discretion to decide on the admissibility of confessions obtained if it appears to the court that "having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."</p>\n<p>There is deliberately no case law guidance on this. Superior courts in the UK have been scrupulous in saying that each case turns on its merits.</p>\n<p>The “circumstances in which the evidence was obtained” are certainly suss and would not be permitted by a police officer who is required to warn the suspect and advise them of their right to silence. However, that is not sufficient to exclude the evidence.</p>\n<p>The court also needs to consider whether it would have “such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” If the confession is the only evidence then admitting it would clearly be unfair. However, if the Crown has mountains of other evidence, then the confession may only have a small probative value.</p>\n<h2>There is no “fruit of the poisonous tree” doctrine in the UK</h2>\n<p>Far more likely is that the Crown would not even seek to introduce the confession. It would just slow the trial and give the defence grounds for an appeal.</p>\n<p>Instead, they would use the confession to inform their investigation and get other evidence to convict.</p>\n<h2>Legal privilege</h2>\n<p>In England and Wales, legal advice privilege only applies where there is a lawyer present. If Badal is a lawyer, then the privilege attaches; if he isn’t then it doesn’t, irrespective of what he led Naina to believe. The same would be true even if Badal believed he was a lawyer but, for some reason, was not licenced in E&W.</p>\n<p>Litigation privilege is a broader concept and covers all advice, including from non-lawyers, where litigation (including criminal prosecution) has commenced or is reasonably likely. Based on the description, Naina has been committed to stand trial so everything she said is covered by privilege and is inadmissible.</p>\n<h2>Why bother doing this?</h2>\n<p>Most criminals are not sophisticated and will often implicate themselves if you give them enough space without the police or others violating any rules.</p>\n<p>Anecdotally, I have a relative who was a psychologist for a remand prison - prisoners charged but not yet tried. At the start of every meeting with a prisoner they would say “I work for the state, nothing you say is confidential and it can be used against you” - they still had prisoners confess to crimes they weren’t charged with, name accomplices, and tell where the loot was hidden.</p>\n",
"score": 27
},
{
"answer_id": 89791,
"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 confession is inadmissible, as it is protected by attorney-client privilege. Although Nirmal was in fact not an attorney at all, the conversation <em>would</em> have been privileged if the man Naina was talking to had actually been Badal, as she reasonably believed him to be. As a result, it <em>is</em> privileged.</p>\n<p>For such an analysis, it does not matter who Nirmal actually was, who he was or wasn't affiliated with, why he deceived Naina, or whether or not he committed a crime by doing so.</p>\n<p>There is a discussion of such situations in the following article:</p>\n<blockquote>\n<p>Grace M. Giesel, <em>Upjohn Warnings, The Attorney-client Privilege, And Principles Of Lawyer Ethics: Achieving Harmony</em>, 65 U. Miami L.\nRev. 109 (2015). Available at <a href=\"http://repository.law.miami.edu/umlr/vol65/iss1/5\" rel=\"noreferrer\">this link</a></p>\n</blockquote>\n<p>See Section IV.D.2 on page 140:</p>\n<blockquote>\n<p>In addition to applying the honest-and-reasonable-belief analysis in\nthe attorney-client privilege setting to the question of representational\nrelationship, courts have also applied the analysis when the person consulted is not, in fact, a lawyer. The courts addressing this issue have\nstated that the privilege applies to a communication even if the person\nconsulted is not admitted to any bar and has enjoyed no legal training. <strong>If\nthe putative client honestly and reasonably believes that the person consulted is a lawyer, and if the other requirements of the privilege are\nsatisfied, the privilege applies even though the person consulted is, in\nfact, not a lawyer.</strong></p>\n</blockquote>\n<p>See the article for citations of cases.</p>\n<p>Somewhat on point is <a href=\"https://casetext.com/case/us-v-tyler-12\" rel=\"noreferrer\">US v. Tyler, 745 F. Supp. 423 (W.D. Mich. 1990)</a>. The defendant, James Tyler, shared a cell with Melvin Deutsch, who said that he was a lawyer, had a law school diploma on the wall of his cell, and was addressed as "counselor" by other inmates; but in fact was not a lawyer. Correspondence between Tyler and Deutsch regarding Tyler's legal issues was held to be privileged and inadmissible.</p>\n<p>Tyler was held to have had a reasonable belief that Deutsch was a lawyer, in spite of the facts that Deutsch had never been licensed to practice law in any jurisdiction, and that the law school listed on his "diploma" did not exist as of the date shown on it. Tyler evidently didn't check on either of those things, and the court did not seem to think that he reasonably should have.</p>\n<p>Also, Tyler apparently did not know the seemingly obvious fact that a convicted felon cannot practice law, let alone while actually in prison. However, this was not felt by the court to be "ingenuous": "To expect a layperson to be familiar with the internal discipline procedures of the Bar is unreasonable."</p>\n<p>In the case from the question, it sounds like Naina was much less gullible than Tyler, and that Nirmal put on a much more elaborate and effective deception than Deutsch did. So if Tyler's belief was reasonable, surely Naina's was as well.</p>\n<p>The article also mentions that certain states make this principle explicit by statute. For instance, the <em>Kentucky Rules of Evidence</em>, Rule 503(a)(3):</p>\n<blockquote>\n<p>"Lawyer" means a person authorized, <strong>or reasonably believed by the client to be authorized</strong> to engage in the practice of law in any state or nation.</p>\n</blockquote>\n<hr />\n<p>Interestingly, evidence <em>derived</em> from the confession is probably still admissible; for instance, if the confession revealed the location of physical evidence which the police then went and retrieved. It appears that the "fruit of the poisonous tree" doctrine generally does <em>not</em> apply to evidence disclosed in violation of privilege, except in some cases where the government was actively involved in the violation and thus infringed constitutional rights. See:</p>\n<blockquote>\n<p>Robert P. Mosteller, <em>Admissibility of fruits of breached evidentiary privileges: The importance of adversarial fairness, party culpability, and fear of immunity.</em> 81 Washington U. Law Quarterly 961-1016 (2003). Available at <a href=\"https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1855&context=faculty_scholarship\" rel=\"noreferrer\">this link</a></p>\n</blockquote>\n",
"score": 26
}
] |
[
"criminal-law",
"england-and-wales",
"law-in-fiction",
"admissibility",
"deception"
] |
Difference between "constitutional" carry VS having a concealed weapons permit?
| 1 |
https://law.stackexchange.com/questions/89782/difference-between-constitutional-carry-vs-having-a-concealed-weapons-permit
|
CC BY-SA 4.0
|
<p>Florida is close to passing <a href="https://www.flsenate.gov/Session/Bill/2023/543" rel="nofollow noreferrer">HB.543</a> dubbed “constitutional carry”. This would allow people to carry concealed loaded guns without permits under legislation.</p>
<ul>
<li>For people with concealed weapons permits, does this change anything?</li>
<li>Are the benefits of concealed weapons permits passed along to unlicensed people?</li>
</ul>
| 89,782 |
[
{
"answer_id": 89820,
"body": "<ol>\n<li><p>Effectively they would stop being required to pay fees for renewal and/or obtaining permits, plus no longer required to attend any required safety courses or self-report on any other information that such permits would typically require. There may be an issue with other states honoring a state's constitutional carry if they require a permit, however, states rarely respect out of state permits for conceal carry either way (If you plan to travel interstate, it's best to have your firearms secured in locked containers. People have been arrested for accidentally illegal conceal carry when traveling to a state they are not permitted to conceal carry in.).</p>\n</li>\n<li><p>Yes, in that there is no longer a license to permit carrying a concealed firearm.</p>\n</li>\n</ol>\n<p>There are some benefits to having a licensing program over Constitutional Carry, specifically that, statistically speaking, Conceal Carry are some of the people least likely to break the law. Police are statistically more likely to break the law than conceal carry permit holders, where as Constitutional Carry would not guarantee that degree of safety (Criminals who have gone uncaught typically do by avoiding any investigational scrutiny, so they would avoid the background check of the conceal carry permit process.).</p>\n<p>That said, as of 2022, all states that require a Conceal Carry Permit are "Shall Issue" states, following the SCOTUS decision in <em>New York State Rifle & Pistol Association, Inc. v. Bruen</em>. This means that states must give a license if all requirements for a license are met. Some former "May Issue" states, have tried to get around this by-passing additional burdens on Permit requirements with many challenges in court over the constitutionality of such restrictions and requirements (I'm aware of multiple cases making their way through New York, New Jersey, and California and are in various states of appeals.). Critics of Permit carry hold that any state that requires such a stipulation are at best highly prone to corrupting influence in permit processes and at worst, creating laws specifically intended to design constitutional rights.</p>\n",
"score": 2
},
{
"answer_id": 89784,
"body": "<p>Two questions here:</p>\n<ol>\n<li><p>For people who already have a FL issued permit, there is likely no change. Their permit is still valid and some may opt to continue to obtain one as there are other states that don't have "constitutional carry" and may recognized the FL permit.</p>\n</li>\n<li><p>This depends on the law but in most cases where states have passed similar laws, there is no longer a need for an otherwise lawful person to obtain a government-issued permit to carry a firearm or other weapon covered under the statute.</p>\n</li>\n</ol>\n",
"score": 1
}
] |
[
"united-states",
"florida",
"firearms"
] |
Why do we have a written and reasoned judgment of Bower v Brewdog?
| 1 |
https://law.stackexchange.com/questions/89805/why-do-we-have-a-written-and-reasoned-judgment-of-bower-v-brewdog
|
CC BY-SA 4.0
|
<p>I thought that in general, cases at the county court level are decided summarily, unless and until they get appealed to, e.g., the circuit judge.</p>
<p>Yet, <a href="https://www.bailii.org/ew/cases/Misc/2019/16.html" rel="nofollow noreferrer">Bower v Brewdog</a> appears to have been judged by a district judge, in the county court, and I'm left wondering why.</p>
| 89,805 |
[
{
"answer_id": 89819,
"body": "<p>There's nothing special, per se, about County Court cases being published. It's the content that matters, not the venue.</p>\n<p>Bower v Brewdog has attracted some heightened media attention and public interest so, as a "notable" judgment, it was published presumably in line with <a href=\"https://www.iclr.co.uk/history/\" rel=\"nofollow noreferrer\">Incorporated Council of Law Reporting</a>'s selection criteria:</p>\n<blockquote>\n<ul>\n<li><p>All cases which introduce, or appear to introduce, a new principle or a new rule.</p>\n</li>\n<li><p>All cases which materially modify an existing principle or rule.</p>\n</li>\n<li><p>All cases which settle, or materially tend to settle, a question upon which the law is doubtful.</p>\n</li>\n<li><p>All cases which for any reason are peculiarly instructive.</p>\n</li>\n</ul>\n</blockquote>\n",
"score": 2
}
] |
[
"england-and-wales",
"civil-procedure",
"court",
"rules-of-court",
"court-records"
] |
Can county court judges have separate jobs in private firms as solicitors?
| 1 |
https://law.stackexchange.com/questions/89795/can-county-court-judges-have-separate-jobs-in-private-firms-as-solicitors
|
CC BY-SA 4.0
|
<p>Suppose a solicitor in a private firm is appointed as a judge. Are they allowed to continue working as a solicitor in a parallel private capacity? What provisions exist in the way of mitigations to potential conflicts of interest surrounding such a scenario? Tagged england-and-wales and any-jurisdiction, while the question is framed in England-and-Wales-centric terminology. Feel free to answer any adjusted version of the question as may suit your jurisdiction of speciality.</p>
| 89,795 |
[
{
"answer_id": 89801,
"body": "<h2>Working as a solicitor is incompatible with a judicial appointment</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>Judges are not prohibited from having outside employment but they must get permission from the CEO of the Justice Department. However, judges wouldn't ask permission to work as a solicitor and the CEO would wonder why this person was a judge if they did.</p>\n<p>Part of being a judge is being judicial - having the appearance of detachment, disinterest, impartiality, and, to some extent, remoteness is all part of this. You can't act for just some people and keep up that appearance.</p>\n<p>In fact, most judges find the experience to be socially <a href=\"https://www.ohiolap.org/post/5-things-judges-can-do-to-cope-with-isolation-and-loneliness\" rel=\"nofollow noreferrer\">isolating</a> - they have to build a distance between themselves and their former work colleagues and even build a distance into their friendships. Judges are usually quite successful members of society but they can't be seen socialising with politicians, businesspeople, church leaders, or other lawyers because it risks accusations of partisanship. You can't make comments on social media, you can't answer questions like these, you can't express your political or religious opinions, arguably, you can't even barrack for a football team.</p>\n<h2>Being a judge is more than a full time job</h2>\n<p>Judges work 60-90 hours per week - when are they going to work another job?</p>\n",
"score": 2
},
{
"answer_id": 89818,
"body": "<p>In <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>, serving full-time judges cannot do other kinds of legal work at the same time. The <a href=\"https://www.legislation.gov.uk/ukpga/1990/41/section/75\" rel=\"nofollow noreferrer\">Courts and Legal Services Act 1990, s.75</a>, says:</p>\n<blockquote>\n<p>No person holding as a full-time appointment any of the offices listed in Schedule 11 shall—\n<br>(a) provide any advocacy or litigation services (in any jurisdiction);\n<br>(b) provide any conveyancing or probate services;\n<br>(ba) carry on any notarial activities (within the meaning of the Legal Services Act 2007);\n<br>(c) practise as a barrister, solicitor, public notary, licensed conveyancer or licensed CLC practitioner, or be indirectly concerned in any such practice;\n<br>(d) practise as an advocate or solicitor in Scotland, or be indirectly concerned in any such practice; or\n<br>(e) act for any remuneration to himself as an arbitrator or umpire.</p>\n</blockquote>\n<p>The offices listed in <a href=\"https://www.legislation.gov.uk/ukpga/1990/41/schedule/11\" rel=\"nofollow noreferrer\">Schedule 11</a> include circuit and district judges, who are those who would sit in a County Court.</p>\n<p>This prohibition does not cover retired judges, or part-time ones who receive fees rather than a salary. Fee-paid judges (who hold titles like "deputy district judge" or "recorder") are allowed to continue in private practice, but are subject to conflict-of-interest rules to make sure that they keep those aspects of their lives separate. For example, they are not allowed to promote their private services using their judicial title. These are additional specific safeguards around the general law, where all judges must avoid bias and the appearance of bias. The role also exists in the High Court, and by extension even the Court of Appeal, and can be a stepping-stone to full-time salaried appointment. Such judges only sit for a small number of days each year, and are meant to fill out the full-time bench in order to make specialist expertise available, or just be extra people generally.</p>\n<p>While it is commonly understood that salaried judicial office is meant to last until retirement, there is no explicit prohibition on a judge returning to practice, or retiring early in order to do so. It would just be unusual and frowned upon. It is common for retired judges to continue to act in a judicial capacity - as arbitrators, in certain foreign courts, or in their original UK courts if needed - which is different from advocating for or advising a specific client. The terms and conditions of their appointment include the stock language</p>\n<blockquote>\n<p>The Lord Chancellor also regards a judgeship as a lifetime appointment. Any offer of appointment is therefore made on the understanding that appointees will not return to practice.</p>\n</blockquote>\n<p>(quoted in "The shadow of the court: the growing imperative to reform ethical regulation of former judges", Gabrielle Appleby and Alysia Blackham, International & Comparative Law Quarterly 67(3):505-546, July 2018) but this is more in the nature of "we hope you won't" than "we can actually stop you". A former judge who was practicing as a solicitor or barrister would no longer be within the ambit of the judicial misconduct process, but they would be subject to the discipline of the appropriate other regulatory body, so there is still a mechanism in place to govern their professional actions.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"judge",
"professional-ethics",
"any-jurisdiction",
"solicitor"
] |
What is a judicial review vs administrative review?
| 3 |
https://law.stackexchange.com/questions/89813/what-is-a-judicial-review-vs-administrative-review
|
CC BY-SA 4.0
|
<p>I hired lawyers to investigate something that happened to me. One of their findings was "judicial review was unavailable". In simple terms does someone request a judicial review when they believe their rights have been violated and want a court to make an order that would help them?</p>
<p>What exactly is an administrative review or administrative tribunal? I get the impression it can happen in the work place, school or some sort of organization with a certain level of formality and structure. I also understand that it need not be fair, or at least what counts as fair is not defined. I understand it usually doesn't happen, especially if it's a non-government organization, but when can a judicial review override an administrative review's decision?</p>
| 89,813 |
[
{
"answer_id": 89815,
"body": "<blockquote>\n<p>In simple terms does someone request a judicial review when they believe their rights have been violated and want a court to make an order that would help them?</p>\n</blockquote>\n<p>No. A judicial review in Canada is when the court reviews an administrative decision, that is, a decision (including by omission) made by the executive branch of the government or another entity exercising public functions under legislative or administrative delegation, as a last resort to preserve the rule of law, as an exercise of the inherent judicial authority.</p>\n<p>If your rights were not violated by a decision of the executive branch of the government, a judicial recourse may still be available, but usually not called judicial review. For example, if your contratual rights were violated by a private party (e.g. you are owed money), you can still sue the person in court as an ordinary civil lawsuit. In certain cases however, an administrative tribunal can make a decision regarding private disputes; the decision of the administrative tribunal, a public body, is subject to judicial review.</p>\n<p>If your constitutional rights are violated by a primary legislation passed by the Parliament (or provincial legislature), you may apply to a competent court for declarative relief, but usually this is also not referred to as judicial review, despite some similarities and some intersections in practice.</p>\n<p>The scope of judicial review is limited. The courts show considerable deferrence to the elected legislature and government and only exercise the power when all other legal resorts are exhausted. The legislature often provides administrative recourses with quasi-judicial characteristics (e.g. administrative tribunals, see later), which must be exhausted before the court steps in. The legislature sometimes deliberately limits or even attempts to bar judicial review through privative clauses. Although completely barring judicial review is not possible, it can influence the court's deferrence. Usually, one must obtain a leave (permission) from the court before commencing a judicial review proceedings.</p>\n<p>Then, if the leave is granted, the judicial review proceeding is not a proceeding for the judge to substitute their own decision in place of what the original decision maker made. New evidences are generally not admissible in judicial review; the judge only considers what is involved in the attacked decision. In most cases, the judge assesses whether the decision-maker was <em>reasonable</em> in their interpretation of law and their exercise of legal authority; it does not matter whether the judge would have made a different decision. In most cases, if judicial review is granted, the original decision is quashed (cancelled) but it is remitted to the original administrative body for re-determination (usually with another officer or panel). Seeking judicial review does not automatically prevent the administrative decision from coming into force, unless the applicant specifically demands the stay of decision and the judge agrees.</p>\n<p>There are exceptional cases where the judicial review is conducted on a standard of correctness, notably when procedural fairness is involved or when another important constitutional or general legal question should be determined conclusively. The applicable standard of review is based on the Supreme Court judgement in <em><a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do\" rel=\"noreferrer\">Canada (Minister of Citizenship and Immigration) v Vavilov</a></em>. In such cases, the judge would make what they think should be the correct decision with respect to the part of decision that should be follow such standard. Even then, the judge usually would direct the original decision maker to make a new one consistent with their judgement, instead of making a new one.</p>\n<blockquote>\n<p>What exactly is an administrative review</p>\n</blockquote>\n<p>An administrative review, or reconsideration, is when the administrative body itself provides a way for an interested party to request a review of the original decision by the administrative body itself (although often by another officer within the same service). It is generally not a legal right, and only granted when there is a clear error (e.g. the decision maker had the wrong file) to ensure administrative certainty.</p>\n<p>The term is usually not applied if there is a formal statutory structure of reexamination by another decision maker for an administrative decision, even if the new reexamination occurs within the same body.</p>\n<blockquote>\n<p>or administrative tribunal?</p>\n</blockquote>\n<p>Administrative tribunals are quasi-judicial bodies established by law (passed by legislatures) that makes independent decisions on behalf of the executive government. They are established to avoid costly and slow-moving lawsuits in courts and to specialize in specific areas of law to better serve the interests of justice.</p>\n<p>There are several types of administrative tribunals:</p>\n<ul>\n<li>dedicated conflict resolution tribunals between private persons, for example:\n<ul>\n<li>Landlord and Tenants Boards that resolve disputes arising from real estate leases</li>\n<li>human rights tribunals where many discrimination claims in services and employment are resolved</li>\n<li>labour relations boards that deal with the recognition of labour unions and conflicts (grievance) between unionized workers and employers</li>\n</ul>\n</li>\n<li>tribunals that review particular types of government decisions, e.g. the Immigration and Refugee Board of Canada, who has jurisdiction to hear appeals on certain types immigration decisions (e.g. deportation of a permanent resident)</li>\n<li>tribunals that make independent decisions for the government, despite the tribunal itself being part of the executive branch, e.g.\n<ul>\n<li>the Competition Tribunal</li>\n<li>the Copyright Board</li>\n</ul>\n</li>\n<li>other bodies exercising public statutory functions, e.g.\n<ul>\n<li>the professional regulatory bodies (e.g. law societies, colleges of physicians and surgeons) are administrative tribunals for the purpose of exercising functions delegated to them by law, even if often they are private societies, for example, the decision to or not to admit a lawyer by a law society is subject to judicial review as the law society is exercising its delegated public authority (to regulate who can practice law).</li>\n</ul>\n</li>\n</ul>\n<p>Some tribunals may have multiple functions described above; for example, the IRB is the first decision maker on the grant of refugee status, while also having statutory jurisdictions over appeals of certain immigration decisions (including the decision itself made over refugee status).</p>\n<p>As all powers of an administrative tribunal must be based in law, only those decisions that the legislature said could be dealt by these tribunals can be to an administrative tribunals; for example, temporary visa decisions (e.g. for visit or studies) are not appealable before IRB, but judicial review of the officer's visa decision can be directly requested.</p>\n<blockquote>\n<p>I get the impression it can happen in the work place, school or some sort of organization with a certain level of formality and structure.</p>\n</blockquote>\n<p>If it concerns the government, it may involve an administrative action that may be subject to judicial review. For example, a federal government employee may have recourses with the Federal Public Sector Labour Relations and Employment Board, whose decisions are subject to judicial review. A public university's decision (including a student's grade) may also be an administrative decision subject to review. The internal university appeal procedures could be seen as similar to the functions of administrative tribunals, but these internal boards are usually not established by law and are appointed by internal university procedures.</p>\n<p>Otherwise, it is a private dispute where a formal structure may be desirable for legal and moral reasons.</p>\n<blockquote>\n<p>I also understand that it need not be fair, or at least what counts as fair is not defined.</p>\n</blockquote>\n<p>A public body exercising a quasi-judicial function, particular an administrative tribunal, <em>must</em> be fair. It is a matter of natural justice where the court is not reluctant to correct an administrative decision maker. The duty of fairness generally does not apply to political or legislative decisions.</p>\n<p>While there is no simple definition of what is fair and the application of the principles of natural justice necessarily depends on the case in question, there is a significant body of case law on what consists fairness (or rather, unfairness). For example, arbitrary or dishonest decisions are almost always unfair. Decisions made without possibility of being heard are often unfair. Undisclosed conflicts of interest can also bring fairness into question.</p>\n<p>A private body in its private capacity (i.e. not exercising a public function) has no general constitutional or natural justice requirement to be fair, but the law may impose upon private persons a positive duty (e.g. provision of goods and services without racial or sex discrimination; dismissal without notice only possible for cause).</p>\n<blockquote>\n<p>if it's a non-government organization, but when can a judicial review override an administrative review's decision?</p>\n</blockquote>\n<p>If it concerns a non-government organization that is not exercising a public function, a judicial review is not possible; other recourses may be possible, e.g. an ordinary lawsuit, or recourses to a public body (e.g. if you have problems with a landlord, you can go to the LTB).</p>\n<p>If it concerns an actual administrative decision, judicial review is granted, among other possible reasons:</p>\n<ul>\n<li>when the decision maker lacks the jurisdiction to make the decision, e.g., when they make a decision outside their statutory powers</li>\n<li>when the attacked decision is unreasonable; for example, when the decision is not supported by logic or evidences (that were submitted during the administrative decision making)</li>\n<li>when it is incorrect on an important constitutional question or other question of law, or the principles of natural justice had been breached during the decision making process.</li>\n</ul>\n",
"score": 5
}
] |
[
"canada",
"judicial-review"
] |
Legality of spending public money on private enterprise
| 0 |
https://law.stackexchange.com/questions/89799/legality-of-spending-public-money-on-private-enterprise
|
CC BY-SA 4.0
|
<p>I am wondering about spending public money on private enterprise. In particular, for the city of Santa Fe, NM, USA. The enterprise is an <a href="https://%20https://www.santafenewmexican.com/sports/team-owner-says-new-arena-soccer-team-will-be-good-for-santa-fe/article_a125ee28-a4e8-11ed-8363-f30a7b6a37a5.html" rel="nofollow noreferrer">indoor soccer franchise</a>.</p>
<p>The city is being asked to cover the $250k to $500k renovations and rent back time to the soccer clubs. The ROI would be 40+ years (based on the numbers in the article).</p>
<p>For reasons not entirely evident, the mayor is pushing hard for this. There are lots of outdoor, full size soccer facilities in Santa Fe.</p>
<p>Can you describe legal ways in which this might be challenged?</p>
| 89,799 |
[
{
"answer_id": 89811,
"body": "<p>The government is allowed to spend public money on private enterprise. For example, the Small Business Administration gives grants to qualified businesses. Stadium subsidies have been a feature of government operations for decades, running in the billions of dollars. <a href=\"https://projects.propublica.org/bailout/list\" rel=\"nofollow noreferrer\">Here is a list</a> of various larger businesses that received government bailouts.</p>\n<p>There is a procedure for approving such expenditures, such as the legislature of a state or city council. The mayor cannot usually unilaterally declare that the city will spend money on such a project, unless the city council has created a discretionary fund for the mayor, to support projects that the mayor deems will "benefit the city". Unless there is some flagrantly illegal about the funding, there is probably no legal means to challenge the decision in court, it is a purely political matter. In rare circumstances (<a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=43.99N&full=true\" rel=\"nofollow noreferrer\">like this</a>) a law can be passed that limits making stadium construction a taxpayer duty.</p>\n",
"score": 4
}
] |
[
"united-states",
"business",
"sport",
"new-mexico"
] |
What does the citation YEAR Misc NN mean?
| 3 |
https://law.stackexchange.com/questions/89804/what-does-the-citation-year-misc-nn-mean
|
CC BY-SA 4.0
|
<p>The case Bower v Brewdog bears at the top of its bailii page a citation, [2019] EW Misc. 16 (CC), which I would like to break down to. understand.</p>
<p>I assume that CC is an abbreviation for County Court (ie denoting the levlel of the court as would be done by EWHC or EWCA or UKHL or UKSC etc).</p>
<p>2019 is clearly the year.</p>
<p>Is 16 a serial number? What series does it refer to, if so?</p>
<p>And what does Misc. indicate?</p>
| 89,804 |
[
{
"answer_id": 89809,
"body": "<p>County Courts do not have official neutral citations and are placed in the Miscellaneous category by the British and Irish Legal Information Institute, who nowadays acts as the unofficial case reporter in the UK. See <a href=\"https://www.bailii.org/bailii/citation.html\" rel=\"noreferrer\">https://www.bailii.org/bailii/citation.html</a> for a list of courts whose proceedings have official neutral citations.</p>\n<p>The series number appears to be decided by BAILII, probably based on the time it publishes a case.</p>\n",
"score": 7
}
] |
[
"england-and-wales",
"legal-citation"
] |
What is "the Court"?
| -3 |
https://law.stackexchange.com/questions/89806/what-is-the-court
|
CC BY-SA 4.0
|
<p>In legal proceedings there seems to be a nebulous entity often referred to as "the Court". What does this device/construct denote and what is its purpose? Is it basicallyy like an avatar that the various judges of the court can hop into the controller cockpit of, to accommodate for the fact that it is not always the same judge dealing with any given case each day?</p>
| 89,806 |
[
{
"answer_id": 89808,
"body": "<p>It is <em>the</em> court of law processing the particular legal proceeding in which the reference is made.</p>\n<p>Typically it is unequivocal which particular court (both the level and the geo location) is talked about because the title sheets of the documents filed in proceedings say it explicitly.</p>\n<p>Depending on the context, "the court" may refer to either the official organisation (as a node in the justice system), or — quite often — directly to the judge(s) presiding in the proceeding.</p>\n<p>The latter is why, for example, formal documents filed in proceedings typically start with "MAY IT PLEASE THE COURT:" or "MAY IT PLEASE YOUR HONOUR:". The latter means exactly the same as the former where there is only one judge presiding.</p>\n<p>When there is a need to refer to some other court than the one handling the proceeding, it will be referred to more specifically. For example, when going through a first appeal, the court which made the decision being appealed against is referred to "the trial court" or, say, "the District Court at place XXX". When going through a second appeal, the reference will be "the 1st appeal court" and so on.</p>\n",
"score": 2
}
] |
[
"legal-terms",
"court"
] |
If one homeowner gives consent to search a house but the other homeowner does not, do the police have consent?
| 1 |
https://law.stackexchange.com/questions/89803/if-one-homeowner-gives-consent-to-search-a-house-but-the-other-homeowner-does-no
|
CC BY-SA 4.0
|
<p>Suppose Alice and Bob are co-owners of a home. Police come to the door and ask to search the home. Bob says, "yes, you may search our home," but Alice says, "no, you may not search our home without a warrant." Do the police have valid consent to search the home without a warrant? In practice, I expect the police might wait for Alice and Bob to come to an agreement, but let's suppose that both Alice and Bob maintain their positions. Can the police search the home based on Bob's consent even though Alice denied consent?</p>
<p>The jurisdiction I'm primarily interested in is the U.S. (Utah if it is state-dependent), but I'm also interested in other jurisdictions.</p>
<p>(I found <a href="https://law.stackexchange.com/questions/26498/who-can-give-the-police-consent-to-search-my-property">this related question</a> which indicates that if the police reasonably believe that someone with authority gave consent, then the search is valid even if the person giving consent didn't actually have authority. I believe my question is different because the linked question doesn't address if the police have mixed messages regarding consent)</p>
| 89,803 |
[
{
"answer_id": 89807,
"body": "<p>Although the question is different, the answer to the other question actually contains the answer to your question.</p>\n<p>As ruled by the Supreme Court in <a href=\"https://supreme.justia.com/cases/federal/us/547/103/\" rel=\"nofollow noreferrer\">Georgia v. Randolph, 547 U.S. 103</a>, "a physically present co-occupant’s stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him".</p>\n<p>One occupier's clear objection based on Fourth Amendment interests cannot be overridden by the consent of another in this case. A disputed consent should not be resolved by the police, but by a judge.</p>\n",
"score": 4
}
] |
[
"police",
"search-and-seizure",
"consent"
] |
At what point does refusal to report a crime make one an accomplice to a crime?
| 19 |
https://law.stackexchange.com/questions/3671/at-what-point-does-refusal-to-report-a-crime-make-one-an-accomplice-to-a-crime
|
CC BY-SA 3.0
|
<p>This is a question out of curiosity only, indirectly inspired by my <a href="https://law.stackexchange.com/questions/3670/can-you-plead-the-fifth-to-avoid-revealing-the-identity-of-someone-you-were-accu">last question</a> post. I'm wondering at what point not reporting a crime is itself a crime.</p>
<p>I know that if someone happens to witness a bar fight and doesn't immediately call the cops they are not guilty of a crime (or I assume they aren't, unless they're technically guilty and simply never prosecuted for it). This implies that the refusal to report a crime is not, by itself, a crime.</p>
<p>However, I'm also pretty sure if, for example, a women knows her boyfriend is sexually assaulting their child and turns a blind eye to it she can be convicted as an accomplice to the crime. Likewise, I think if you're riding in the car with someone who does a hit and run you are required to report it or be an accomplice.</p>
<p>So I'm wondering where this line is drawn. At what point does one's involvement become such that they are guilty simply for failing to report another individual, assuming they have not actively done anything to directly support the crime otherwise?</p>
<p>Furthermore, if someone is indirectly benefiting from a crime they do not encourage or facilitate – for instance a wife getting a new fur coat after her husband robs a bank despite her not approving of the husband's actions – does this make her an accomplice? Is there a line here to draw, presumably a bar serving a drink to someone they know is a bookie doesn't make them guilty, even if the bookie presumably earned the money he is using to buy the drink via an illegal job?</p>
| 3,671 |
[
{
"answer_id": 3682,
"body": "<h2>TL;DR</h2>\n<p><strong>Never</strong>; unless there is a specific law in the jurisdiction that requires it, however, that is a separate crime, it doesn't make you an accomplice to the first crime.</p>\n<p>There is no general obligation to report a crime; some jurisdictions may have legislated to make reporting mandatory, either generally or for specific professions.</p>\n<h2><a href=\"http://legal-dictionary.thefreedictionary.com/Accomplice\" rel=\"nofollow noreferrer\">Accomplice</a></h2>\n<p>From the link, an accomplice is:</p>\n<blockquote>\n<p>One who knowingly, voluntarily, and with common intent unites with the principal offender in the commission of a crime. One who is in some way concerned or associated in commission of crime; partaker of guilt; one who aids or assists, or is an Accessory. One who is guilty of complicity in crime charged, either by being present and aiding or abetting in it, or having advised and encouraged it, though absent from place when it was committed, though mere presence, <strong>Acquiescence, or silence, in the absence of a duty to act, is not enough, no matter how reprehensible it may be, to constitute one an accomplice.</strong> One is liable as an accomplice to the crime of another if he or she gave assistance or encouragement or failed to perform a legal duty to prevent it with the intent thereby to promote or facilitate commission of the crime.</p>\n</blockquote>\n<h2>Mandatory Reporting</h2>\n<p>Many jurisdictions impose an obligation on certain professions to report suspected crimes. The most common and obvious being a police officer who generally has an obligation to report all suspected crimes. Other professions include doctors, teachers, nurses etc. in the case of suspected child abuse; sometimes this extends to elder abuse but usually doesn't include an obligation to report spousal abuse.</p>\n<p>If a person with such an obligation fails to report, they have not become an accomplice to the original crime or any future crime; they have broken a different law on their own.</p>\n<h2>General consequences</h2>\n<p>In general, a witness to a crime is not required to report it. They could be asked to give a statement but are not obliged to and would not be subject to arrest. If they were subpoenaed to appear in court as a witness then they would be obliged to do so and give evidence; failure to do either would be contempt of court.</p>\n<p>To be clear, a perpetrator of a crime is also not obliged to report it and is protected from contempt by rules about self-incrimination like the US Fifth Amendment. As an aside, NSW, Australia has recently passed a law that while maintaining the accused's right not to testify has allowed juries and judges to draw inference from the silence in their deliberations.</p>\n<h2>Specific Laws</h2>\n<p>Some jurisdictions have specific laws that make it a crime not to report. For example, in New South Wales, Australia Section <a href=\"http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s316.html\" rel=\"nofollow noreferrer\">316</a> of the Crimes Act makes it an offence to conceal a serious indictable offence (i.e. one with a maximum penalty or 5 or more years gaol) that a person "knows or believes" has occurred without "reasonable excuse". The punishment is up to 2 years; if you solicit or accept any benefit for concealing it, the punishment is 5 years. Prosecution for people who came by the information as a result of practicing certain <a href=\"http://www5.austlii.edu.au/au/legis/nsw/consol_reg/cr2015173/s4.html\" rel=\"nofollow noreferrer\">professions</a> requires permission of the Attorney General.</p>\n<h2>Privilege</h2>\n<p>A person may become aware of a crime through disclosure as part of a professional-client relationship. Such disclosures may be subject to privilege.</p>\n<p>At common law, only the lawyer-client relationship is legally privileged meaning that a lawyer cannot disclose what their client has said to them. This does not cover advice on committing or covering up a crime - if a lawyer does this there is no privilege and the lawyer may become an accomplice.</p>\n<p>Closely related is the litigation privilege where communications prepared as part of litigation (including criminal prosecutions) are protected even if they are not between the lawyer and the client.</p>\n<p>Some jurisdictions have statutorily extended this privilege to other relationships: doctor-patient, priest-confessor, pastor-parishioner, accountant-client, psychologist-patient etc. Check your local guides.</p>\n<h2>Your examples</h2>\n<ol>\n<li>The bar fight witness has no obligation to report and is not an accomplice. In NSW, this is the crime of <a href=\"http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s93c.html\" rel=\"nofollow noreferrer\">affray</a>, a serious indictable offence, and must be reported.</li>\n<li>The mother of the child has no obligation to report and, unless she is assisting or encouraging the commission of the sexual assault, is not an accomplice. Further, spousal testimonial privilege does not apply; i.e. the mother could be compelled to give evidence against the boyfriend or face contempt. In NSW, this is the crime of <a href=\"http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s66a.html\" rel=\"nofollow noreferrer\">Sexual intercourse-child under 10</a>, a serious indictable offence, and must be reported.</li>\n<li>The passenger has no obligation to report and is not an accomplice. In NSW, this is the crime of <a href=\"http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s52ab.html\" rel=\"nofollow noreferrer\">failing to stop and assist after vehicle impact causing death or grievous bodily harm</a>, a serious indictable offence, and must be reported.</li>\n</ol>\n<h2>Sub-questions</h2>\n<blockquote>\n<p>At what point does one's involvement become such that they are guilty simply for failing to report another individual, assuming they have not actively done anything to directly support the crime otherwise?</p>\n</blockquote>\n<p>At the point where the person moves from being a witness to a participant by assisting or encouraging the perpetrator.</p>\n<blockquote>\n<p>... if someone is indirectly benefiting from a crime they do not encourage or facilitate, ..., does this make them an accomplice?</p>\n</blockquote>\n<p>No, however, if the person knows that the benefit are the proceeds of crime then they could be charged with receiving stolen property and would not have good title in the property even if they didn't know.</p>\n<blockquote>\n<p>presumably a bar serving a drink to someone they know is a bookie doesn't make them guilty, even if the bookie presumably earned the money he is using to buy the drink via an illegal job?</p>\n</blockquote>\n<p>It depends if they know the money is the proceeds of crime; if they do then receiving it is a crime in its own right but it doesn't make them an accomplice.</p>\n",
"score": 18
},
{
"answer_id": 4632,
"body": "<p>In most states in the Unites States there is no affirmative duty, the failure to report crimes, unless you're a certain class of persons. However, there are a minority of states that do have affirmative failure to report laws that can impose criminal penalty on ANYONE who fails to report certain types of crimes. </p>\n\n<p>I know that in Ohio it is a crime to not report a felony, a murder/dead body...<a href=\"http://codes.ohio.gov/orc/2921.22\" rel=\"noreferrer\">here is a link</a> to that statute. </p>\n\n<p>In Texas, it is a class A misdemeanor to fail to report a crime giving rise to bodily injury if you see it happen, have reason to believe it's not been reported and can do so without risking injury to yourself. <a href=\"http://codes.lp.findlaw.com/txstatutes/PE/8/38/38.171\" rel=\"noreferrer\">Here is a link to that statute</a>.</p>\n\n<p>There has been recent increase in discussion in state legislatures about this very issue, with more states debating the wisdom of enacting such laws. So, you may have an affirmative duty, if not now, sometime in the future!</p>\n\n<p>While I won't go into mandatory reporting since @daleM covered that in his answer, I wanted to comment on a parent's duty to protect their child from abuse. Many states have begun enacting \"failure to protect\" laws, whereby a parent who knows another parent (or sibling/domestic partner - anyone who lives in the home) is abusing their child has an affirmative duty to protect the abuse from occurring, and failure to do so often carries the same penalties as the actual abuser faces. In states that don't have actual failure to protect laws it has long been held that a parent who allows their child to be systematically abused without leaving or reporting can be found guilty of criminal negligence. While at first blush this seems like an obviously good thing, in fact it often serves to victimize other victims of abuse. Furthermore, most domestic related murders occur after an arrest of the abuser or after a restraining order is issued.</p>\n",
"score": 7
},
{
"answer_id": 4326,
"body": "<p>A problem arises when one has a \"duty of care\". That would be the case of a mother not reporting the abuse of her child by her boyfriend, because a mother has a \"duty of care\" to her child.</p>\n\n<p>In other instances, there is no \"duty of care\", hence, no obligation to report.</p>\n",
"score": 6
},
{
"answer_id": 5195,
"body": "<p>Common Intent, or helping in the commission of the crime, is required for finding that one is an accomplice. Therefore refusal to report a crime has nothing to do with being an accomplice to a crime whereas common intent is key.</p>\n\n<p>Remember that Police lie, they are allowed to, and encourage each other to. I don't mean this in a pejorative sense, I mean in in fact.</p>\n",
"score": 0
}
] |
[
"united-states",
"criminal-law"
] |
Is the character of a “request” legally defined?
| 0 |
https://law.stackexchange.com/questions/89777/is-the-character-of-a-request-legally-defined
|
CC BY-SA 4.0
|
<p>In general English usage the notion of a request seems to connote that compliance with it is discretionary and not required. But in legal usage and correspondence it seems to perhaps assume a different character. For example, consider the idea of a subject access <em>request</em>. In fact compliance with such requests is generally compulsory.</p>
<p>What is the basis for the divergence of usage?</p>
| 89,777 |
[
{
"answer_id": 89788,
"body": "<h2>To request means simply to ask politely or formally - there is no implication that an answer is optional <em>or</em> required</h2>\n<p>Some requests will be backed by law or custom such that they require a response, others do not. The former is more likely to be the case in a legal setting than in a casual setting which might be why you are finding an implication that doesn’t exist.</p>\n",
"score": 3
}
] |
[
"legal-terms"
] |
Can Congress secretly pass a bill
| 2 |
https://law.stackexchange.com/questions/89752/can-congress-secretly-pass-a-bill
|
CC BY-SA 4.0
|
<p>Supposed some Congress members thought it would be necessary to pass a bill without telling the public about national security. For example, if a war broke out and Congress wanted to allocate money to a secret cause, could they enter a closed session and pass a bill, send it to the President, and become law without telling the public?</p>
<p>First, is this even possible/legal? Are there any instances of this happening (and later being revealed to the public)?</p>
| 89,752 |
[
{
"answer_id": 89783,
"body": "<p>Congress did exactly this in the war of 1812.</p>\n<p>Normally, laws passed by Congress must be published after being made. In 1789, the First Congress instructed the Secretary of State with the duty of printing new statutes at least three newspapers, and the current law puts it in the hands of the Archivist of the United States; in between, there have been variations.</p>\n<p>On March 3, 1811, Congress passed <a href=\"https://en.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_2/11th_Congress/3rd_Session/Chapter_47\" rel=\"nofollow noreferrer\">a law</a> saying simply:</p>\n<blockquote>\n<p>Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this act, and the act passed during the present session of Congress, entitled “An act to enable the President of the United States, under certain contingencies, to take possession of the country lying east of the river Perdido, and south of the state of Georgia and the Mississippi territory, and for other purposes,” and the declaration accompanying the same, be not printed or published, until the end of the next session of Congress, unless directed by the President of the United States, any law or usage to the contrary notwithstanding.</p>\n</blockquote>\n<p>This overrode the normal publication rules in order to hide the existence of the cited earlier law, and of its own existence. The proceedings in Congress also took place in secret session, including the signing of the bills by the President, James Madison. As the title suggests, the earlier statute authorized Madison to use military force to take possession of the disputed territory (which was also claimed by Spain), establish a provisional government there, and use $100k of newly appropriated funds to do so. A further law of 1813, with the same secrecy provision, extended the territory and gave $20k more.</p>\n<p>These statutes were not published until 1818, after the war had ended and a further law reformed the publication of statute law in general. The supposed secrecy was also compromised in practice by the fact that the annexation of West Florida was widely known once it started happening.</p>\n<p>As far as we know, Congress has not experimented any further with suspending publication of its legislative activity. It is allowed to meet in secret session, and the Constitution allows secret material to be omitted from the official journal. Nowadays, we know pretty well when secret sessions have taken place, even if we don't know what happened during them. It would be practically very hard for Congress to hide the fact that it had met and passed a law.</p>\n<p>The closest modern counterpart is not a secret <em>act</em>, but the use of a "classified schedule of authorizations" or "classified annex" to direct spending on things that Congress does not wish to reveal. For example, in the <a href=\"https://www.congress.gov/117/plaws/publ103/PLAW-117publ103.pdf\" rel=\"nofollow noreferrer\">Consolidated Appropriations Act, 2022</a> (1068 page PDF), there are references like:</p>\n<ul>\n<li>"there is appropriated $125,000,000, for an additional amount for 'National Defense Stockpile Transaction Fund', to remain available until September 30, 2024, which shall only be used for the acquisition and retention of certain materials, as specified in the classified annex accompanying this Act"</li>\n<li>"The amounts authorized to be appropriated under section 101 for the conduct of the intelligence activities of the elements listed in paragraphs (1) through (17) of section 101, are those specified in the classified Schedule of Authorizations prepared to accompany this division."</li>\n</ul>\n<p>The second bullet point covers billions of dollars of total spending, but it is not revealed that we are spending $7.18bn on a project to explode the moon, or whatever. So in this appropriations case, your hypothetical is pretty real: Congress could pass emergency legislation authorizing spending on something, without revealing what the something was.</p>\n<p>Other kinds of laws would raise their own issues. For example, a secret criminal statute would very likely fall foul of the Constitutional prohibition on <em>ex post facto</em> laws. The concept of a secret law is in many ways objectionable - natural justice, interference with democratic accountability, etc. - which makes it politically difficult as well as legally questionable.</p>\n",
"score": 3
},
{
"answer_id": 89786,
"body": "<p>Secret laws were sort of possible under the Constitution's <a href=\"https://constitution.congress.gov/browse/article-1/section-5/clause-3/\" rel=\"nofollow noreferrer\">Journal Clause</a>, that</p>\n<blockquote>\n<p>Each House shall keep a Journal of its Proceedings, and from time to\ntime publish the same, excepting such Parts as may in their Judgment\nrequire Secrecy; and the Yeas and Nays of the Members of either House\non any question shall, at the Desire of one fifth of those Present, be\nentered on the Journal</p>\n</blockquote>\n<p>The 4 secret statutes were published "from time to time", a few years later. Now, however, that would be forbidden by law: <a href=\"https://www.law.cornell.edu/uscode/text/1/106a\" rel=\"nofollow noreferrer\">1 USC 106a</a>.</p>\n<blockquote>\n<p>Whenever a bill, order, resolution, or vote of the Senate and House of\nRepresentatives, having been approved by the President, or not having\nbeen returned by him with his objections, becomes a law or takes\neffect, it shall forthwith be received by the Archivist of the United\nStates from the President; and whenever a bill, order, resolution, or\nvote is returned by the President with his objections, and, on being\nreconsidered, is agreed to be passed, and is approved by two-thirds of\nboth Houses of Congress, and thereby becomes a law or takes effect, it\nshall be received by the Archivist of the United States from the\nPresident of the Senate, or Speaker of the House of Representatives in\nwhichsoever House it shall last have been so approved, and he shall\ncarefully preserve the originals.</p>\n</blockquote>\n<p>This law was passed after the secret laws of the Madison administration.</p>\n<p><a href=\"https://www.law.cornell.edu/uscode/text/1/106b\" rel=\"nofollow noreferrer\">Constitutional amendments must also be published</a>, though to get them passed in the first place, Congress would have to tell someone.</p>\n",
"score": 1
}
] |
[
"united-states",
"congress"
] |
Is it illegal to play copyrighted music on the piano on the street and receive passers-by's donation?
| 0 |
https://law.stackexchange.com/questions/89760/is-it-illegal-to-play-copyrighted-music-on-the-piano-on-the-street-and-receive-p
|
CC BY-SA 4.0
|
<p>In America, if I play a piano arrangement, that is, not the original work, of copyrighted music on a street on the piano and receive the donation from passers-by, is this illegal?<br />
And if I do not receive the donation? That is, I do not earn money from it.</p>
<p>Seems that many people did this.</p>
| 89,760 |
[
{
"answer_id": 89785,
"body": "<h2>Yes, it’s illegal</h2>\n<p>Public performance is one of the rights covered by copyright.</p>\n<p>A piano arrangement is a derivative work and receives its own copyright protection independent of the original work. So, if I were to write an arrangement of Beethoven’s Fur Elise (which is public domain), my arrangement would be protected by copyright - specifically the choices I made that are not in the original work - you would need my permission to play it in public. If I were to write (with permission) an arrangement of Billy Joel’s Piano Man (which is under copyright) you would need the permission of both of us to play that arrangement.</p>\n<p>Most jurisdictions have a mechanical copyright system for paying royalties to composers. That is, you can get a licence (permission) to play any music by contacting the administrator of that scheme and paying the appropriate royalties.</p>\n",
"score": 1
}
] |
[
"copyright",
"music"
] |
Is the Public Records Act of 1993 in force?
| 2 |
https://law.stackexchange.com/questions/89774/is-the-public-records-act-of-1993-in-force
|
CC BY-SA 4.0
|
<p>Jurisdiction: India</p>
<p>Legislation/Statute/... The Public Records Act, 1993</p>
<p>Merely what the title states. I don't see anything mentioning explicitly whether it is the case. Is The Public Records Act, 1993 still in force? Has it been superseded/repealed?</p>
| 89,774 |
[
{
"answer_id": 89778,
"body": "<p>I cannot find any record of it being superceded or repealed, so it appears to in force from the date shown at <a href=\"https://www.indiacode.nic.in/show-data?actid=AC_CEN_27_37_00007_199369_1517807323041&sectionId=3084&sectionno=1&orderno=1\" rel=\"nofollow noreferrer\">section 1</a>:</p>\n<blockquote>\n<p>(1) This Act may be called the Public Records Act, 1993.</p>\n<p>(2) It shall come into force on such date<sup>1</sup> as the Central Government may, by notification in the Official Gazette, appoint</p>\n<hr />\n<p><sub> <sup>1</sup>1st March, 1995, vide notification No. S.O. 128(E), dated 1st March, 1995, see Gazette of India, Extraordinary, Part II, sec. 3(ii)</sub></p>\n<hr />\n</blockquote>\n<p>For completeness, the <a href=\"https://egazette.nic.in/(S(n2stz5iht1eabrsgaujniyko))/SearchNotificationDate.aspx?id=77124\" rel=\"nofollow noreferrer\">Gazette of India</a> is searchable, but my reading of Hindi is not good enough to assist further.</p>\n",
"score": 1
}
] |
[
"india",
"legal-research",
"public-records"
] |
Does the software we use to write code affect the licenses we must use?
| -1 |
https://law.stackexchange.com/questions/89744/does-the-software-we-use-to-write-code-affect-the-licenses-we-must-use
|
CC BY-SA 4.0
|
<p>I am a junior software developer and found the licensing confusing, partly because senior devs around me have no idea either.</p>
<p>Below I explore scenarios where a software developer uses other software. For example, I make up here three cases:</p>
<ul>
<li>Dev uses a <strong>Linux Distro</strong>, and inside Linux the code editor <strong>VSCode</strong>, and also runs other programs without ever glancing at the source code - to learn from the output.</li>
<li>Dev distributes a program that imports other people's programs</li>
<li>Dev only runs software and uses the result of those programs in the code.</li>
</ul>
<p>For the first case, I would assume that my duties are only with the source code, so the first item is fine.</p>
<p>For the second one, if you distribute code that uses other people's code, then you should make sure the license is correct, and will depend on which imports you have.</p>
<p>For the third one, I am not sure what is the solution, so any clarifications are welcome.</p>
| 89,744 |
[
{
"answer_id": 89746,
"body": "<p>In general, the output of a program is not copyrighted by the author of the program. When you write a novel in Word, Microsoft doesn't own any copyright in your novel. When you prepare financial statements with Excel, Microsoft doesn't own any copyright in those either.</p>\n<p>There can be exceptions. Some programs (like GNU Bison, a parser generator) actually do output parts of their own source code, and their source code is copyright to the author. To clarify things, GNU made a statement in the license for Bison that officially says they don't have copyright to what it outputs. You should expect programs of this type to have such an exception, and if they don't, maybe ask the author or don't use them.</p>\n",
"score": 4
}
] |
[
"software",
"licensing",
"open-source-software"
] |
Is it legal to store Singapore user data outside Singapore?
| 0 |
https://law.stackexchange.com/questions/89638/is-it-legal-to-store-singapore-user-data-outside-singapore
|
CC BY-SA 4.0
|
<p>I am based out of india and has intent to launch the website in Singapore for singapore usesr where datastores and webservers will be hosted on data center in india. Is there any data protect act in singapore which does not allow to store the data outside singapore?</p>
<p>Yes definitely I will take the legal advise but before going them want to get some expert answers on this form which I will validate down the line.</p>
<p>Based on below answer from chatGPT looks like its allowed , may be with term and condition mentioned on site</p>
<blockquote>
<p>Under the Personal Data Protection Act (PDPA) of Singapore, an
organization may transfer personal data outside of Singapore only if
it ensures that the recipient country provides a comparable level of
data protection to Singapore's PDPA. This is known as the "adequacy"
requirement.</p>
<p>The adequacy requirement can be satisfied in several ways, such as
obtaining the individual's consent to transfer the data, entering into
a legally binding agreement with the recipient to ensure compliance
with the PDPA, or ensuring that the recipient country has a data
protection regime that provides a level of protection that is
comparable to the PDPA.</p>
<p>Therefore, it is possible to store Singapore user data outside of
Singapore if the recipient country provides a comparable level of data
protection to Singapore's PDPA, or if the organization has obtained
the individual's consent or entered into a legally binding agreement
that ensures compliance with the PDPA</p>
</blockquote>
| 89,638 |
[
{
"answer_id": 89640,
"body": "<p>Yes, transferring data to other countries is allowed, if you nevertheless maintain an equivalent level of data protection. This is codified in <a href=\"https://sso.agc.gov.sg/Act/PDPA2012#pr26-\" rel=\"nofollow noreferrer\">section 26 of the PDPA 2021</a>:</p>\n<blockquote>\n<p>An organisation must not transfer any personal data to a country or territory outside Singapore except in accordance with requirements prescribed under this Act to ensure that organisations provide a standard of protection to personal data so transferred that is comparable to the protection under this Act.</p>\n</blockquote>\n<p>The Personal Data Protection Commission has issued <a href=\"https://www.pdpc.gov.sg/guidelines-and-consultation/2020/03/advisory-guidelines-on-key-concepts-in-the-personal-data-protection-act\" rel=\"nofollow noreferrer\">advisory guidelines on PDPA concepts</a>. In chapter 19, it covers issues around transfers. It mentions a number of possibilities how to do that, for example:</p>\n<ul>\n<li>transfers within a group of companies could rely on binding corporate rules</li>\n<li>the foreign data importer could be bound via a contract, essentially translating the PDPA statutory law into a contract</li>\n<li>the foreign data importer could have a certification that demonstrates compliance, such as certifications under the acific Economic\nCooperation Cross Border Privacy Rules (“APEC CBPR”) system</li>\n</ul>\n<p>If that is not possible, then a fallback to “consent” or “deemed consent” could be appropriate.</p>\n<p>These data transfer concerns apply to you in two ways:</p>\n<ul>\n<li>first, this may affect which additional services you engage to provide your product, e.g. server hosting providers</li>\n<li>second, your clients from Singapore likely cannot use your services unless they can legally transfer data to you. For example, you may prepare a suitable contract that you sign, or attain a suitable certification.</li>\n</ul>\n<p>Note that ChatGPT cannot give reasonable advice on these matters. While it may not be outright <em>wrong</em>, it is not-entirely-correct in subtle ways. For example, the PDPA does not require an adequate level of data protection by the recipient <em>country</em>, but that the importing <em>organizations</em> provide such guarantees. It is likely that ChatGPT is confusing the Singapore PDPA with similar provisions from the EU GDPR, where “adequacy” is the primary mechanism to protect international transfers.</p>\n",
"score": 2
}
] |
[
"data-protection",
"data-protection-act"
] |
How to verify an arrest in Russia?
| -1 |
https://law.stackexchange.com/questions/89737/how-to-verify-an-arrest-in-russia
|
CC BY-SA 4.0
|
<p>Assume the media reports that a particular individual has been arrested by Russian police. Others reports deny this. Is there any authoritative legal mechanism for ascertaining the true situation?</p>
| 89,737 |
[
{
"answer_id": 89763,
"body": "<p>Many Western sources claim that Russia is a dictatorship and that the Russian government routinely breaks Russian domestic laws as well as international ones. Many Russian sources disagree, and call this Western propaganda. If you are in the West, you are free to <em>believe</em> either the Western or the Russian side, but you cannot <em>know</em> the truth.</p>\n<p>If you do <em>believe</em> that Russian agencies <a href=\"https://en.wikipedia.org/wiki/Poisoning_of_Alexei_Navalny\" rel=\"nofollow noreferrer\">poisoned</a> <a href=\"https://en.wikipedia.org/wiki/Poisoning_of_Sergei_and_Yulia_Skripal\" rel=\"nofollow noreferrer\">opponents</a>, would you <em>believe</em> any claim that they do not hold an individual in detention? The denial might even remain questionable after the person <a href=\"https://en.wikipedia.org/wiki/Disappearance_of_Peng_Shuai\" rel=\"nofollow noreferrer\">reappears</a> in public.</p>\n<p>So it comes down to the usual questions:</p>\n<ul>\n<li>Who is reporting what? Do they have a track record of correct investigative reporting?</li>\n<li>What sources are given? Do the sources sound credible? (Of course news media often refuses to name sources to protect them. Back to the bullet point above.)</li>\n<li>Does the report claim to have multiple sources?</li>\n</ul>\n",
"score": 1
}
] |
[
"arrest",
"cryptocurrency",
"sanctions",
"russia",
"interpol"
] |
New York convention contract necessary elements
| 0 |
https://law.stackexchange.com/questions/89739/new-york-convention-contract-necessary-elements
|
CC BY-SA 4.0
|
<p>What are necessary elements of a contract that is supposed to follow the New York Convention?</p>
<p>In a hypothetical scenario, it would be signed in a country that is a member state of the convention.</p>
<p>Thank you.</p>
| 89,739 |
[
{
"answer_id": 89753,
"body": "<h2>There needs to be a valid arbitration agreement</h2>\n<p>Remember that an arbitration agreement is a seperate stand-alone contract from any contracts it is part of or associated with, if indeed there are any such contracts.</p>\n<p>Most of the limitations in the NYC apply to the arbitration itself rather than the agreement. So, a state can refuse to enforce a foreign arbitral award if:</p>\n<ul>\n<li>The agreement was void including if one of the parties was legally incapable of entering the arbitration contract</li>\n<li>a party was not given notice or otherwise prevented from presenting their case</li>\n<li>the award deals with things beyond the scope of the arbitration agreement (although these can be severed if that’s possible)</li>\n<li>the tribunal composition was not in accordance with the agreement or local law</li>\n<li>the award is not locally binding: either because it has not yet come into force or has been legally set aside</li>\n<li>the subject matter is not of a type permitted to be arbitrated</li>\n<li>enforcement is against public policy</li>\n</ul>\n<p>In addition, party states are permitted to limit the treaty for:</p>\n<ul>\n<li>Convention reservation - they will only enforce awards from other member states</li>\n<li>Commercial reservation - they will only enforce commercial arbitrations</li>\n<li>Reciprocity reservation - they will only enforce awards that the other state will also enforce (member or no)</li>\n</ul>\n",
"score": 1
}
] |
[
"contract-law"
] |
What are some law related to recording video during one at work? (let's assume the manger agrees)
| 0 |
https://law.stackexchange.com/questions/89720/what-are-some-law-related-to-recording-video-during-one-at-work-lets-assume-t
|
CC BY-SA 4.0
|
<p>Let's say someone is doing vlog for tiktok and youtube. we can see some people taking video during the job. People who work as cashier at a gas station take videos, people work in big company take video.</p>
<p>What are some laws we need to know if one decides to take videos during theirs work.
Sure, they should get permission from their manager, and coworkers who are in the video.</p>
<p>What about the cashier situation? We can see some videos where the people get their faces covered up with emoji or some other pictures. At the same time, we often see people facial expression. (not sure if the cashier asked for permission already)</p>
<p>What if the cashier working in a not so nice neighborhood and decided to take video with own equipment for safety issue additional the webcam in the store. (not intent to pose online)</p>
<p>Q. what are some rules/laws we need to consider when taking videos of others?</p>
| 89,720 |
[
{
"answer_id": 89723,
"body": "<p>That depends <strong>very</strong> much on the jurisdiction. Before you do anything like it, talk to lawyers specializing in employment law and privacy law where you live.</p>\n<ul>\n<li>People on the web are breaking the law all the time. Some do not know what they are doing, others are gambling that nobody will bother to prosecute them. When the police knocks on their door or a summons arrives in the mail, they are surprised ...</li>\n<li>Privacy and possibly other rights of the people in the picture may be affected. You might need something like a <a href=\"https://en.wikipedia.org/wiki/Model_release\" rel=\"nofollow noreferrer\">model release</a> from each and every one of them, or only from those who are significantly visible.</li>\n<li>Even if there is no <em>intent</em> to post these pictures, you are still processing personal data. Regulations like the <a href=\"https://en.wikipedia.org/wiki/General_Data_Protection_Regulation\" rel=\"nofollow noreferrer\">GDPR</a> might affect how they can be taken. There might be a requirement to post notice about the cameras, how to contact the company privacy officer, etc.</li>\n<li>The employer would probably have to permit/order this if it is done on company premises.</li>\n</ul>\n",
"score": 1
}
] |
[
"privacy",
"california"
] |
When a game's EULA specifies that all user generated content is the property of the game's publisher, which party is responsible for IP infringement?
| -1 |
https://law.stackexchange.com/questions/89733/when-a-games-eula-specifies-that-all-user-generated-content-is-the-property-of
|
CC BY-SA 4.0
|
<p>In recent years there's been an increasing trend of games companies claiming exclusive rights to all user generated content for the game and that the user/modder forfiets all rights of authorship over that content in the EULA. (A high profile example was the EULA for Activision-Blizzard's Warcraft 3 Reforged).</p>
<p>If an end user/modder was to create a mod for a game which infringes on the intellectual property of a 3rd party, and has agreed to the terms of a EULA stating that they forfiet ownership to the game's publisher, and the IP holder were to want to seek action against this infringement, who would be held legally and/or financially responsible for the infringement on the plaintiff's IP?</p>
<p>EDIT: In this case I am referring to mods, as the EULAs often do, as "User Generated Content". I know there are other forms of user generated content (and am also curious about that) but I specifically in this question want answers regarding game mods.</p>
| 89,733 |
[
{
"answer_id": 89749,
"body": "<h2>Both the modder and the games company</h2>\n<p>The modder for making the infringing content and the games company for distributing it. The game company will own the copyright in the derivative elements but won’t be able to use them without the permission of the original copyright holder.</p>\n<p>As between the modder and the games company, the licence will typically include an indemnity clause which means the modder is responsible for all costs and damages the games company incurred as a result of the copyright violation.</p>\n<p>The original copyright owner would be well advised to sue the games company because they likely have more money and insurance. The games company would then join the modder as a co-defendant seeking to rely on the indemnity. Or not, because as previously mentioned, the modder likely has no money and is effectively judgement proof.</p>\n",
"score": 1
}
] |
[
"copyright",
"intellectual-property",
"trademark",
"eula"
] |
What is "emergency relief" in the context of a Non Disclosure Agreement
| 0 |
https://law.stackexchange.com/questions/89731/what-is-emergency-relief-in-the-context-of-a-non-disclosure-agreement
|
CC BY-SA 4.0
|
<p>I am a contractor (the "Advisor" in the contract) and one of my potential clients (the "Client") put a Non-Disclosure Agreement under my nosethat has the following clause (section 7):</p>
<blockquote>
<ol start="7">
<li>Unfair Competition and Protection of Confidential Information.</li>
</ol>
</blockquote>
<blockquote>
<p>(a) The Advisor shall not at any time divulge, furnish or make accessible to anyone any Confidential Information, or use in any way any Confidential Information other than as reasonably required to perform the Services for the Client.</p>
</blockquote>
<blockquote>
<p>(b) The Advisor agrees that the Client’s Confidential Information constitutes a unique and valuable asset of the Client that the Client acquired at great time and expense, and which is secret and confidential and will only be available to or communicated to the Advisor in confidence in the course of the Advisor’s performance of the Services. The Advisor also agrees that any disclosure or other use of the Client’s Confidential Information other than for Client’s sole benefit would be wrongful, would constitute unfair competition and will cause irreparable and incalculable harm to the Client. In addition to all other remedies the Client may have, it shall have the right to seek and obtain appropriate injunctive and other equitable relief, including <strong>emergency relief</strong>, to prevent any violations of this Section 7.</p>
</blockquote>
<p>I guess I do not understand what the significance of calling out "emergency relief" as part of "equitable relief". What is "emergency relief" mean in this context? It's not something that I have encountered before (I'm just doing some mathematical modeling). But it does make me wonder if someone needs to be handing them the doll and asking them "to point to where the bad client hurt you".</p>
| 89,731 |
[
{
"answer_id": 89747,
"body": "<h2>Some courts have emergency processes that short-circuit the normal procedures</h2>\n<p>However, in general, these tend to be courts that deal with life-or-death situations like family law courts, rather than straight commercial courts.</p>\n<p>Notwithstanding, such procedures might allow interim orders to be made without noice to the other party.</p>\n",
"score": 1
}
] |
[
"definition",
"non-disclosure",
"interpretation"
] |
How does the Uniform Plumbing Code apply to me, for the purposes of home renovation?
| 3 |
https://law.stackexchange.com/questions/89700/how-does-the-uniform-plumbing-code-apply-to-me-for-the-purposes-of-home-renovat
|
CC BY-SA 4.0
|
<p>According to my state, Texas, Occupations code, Chapter 1301. PLUMBERS, it says in
SEC. 1301.255. Adoption of Plumbing codes,</p>
<blockquote>
<p><strong>Section 1301.255 adopts the Uniform Plumbing Code</strong> and the International Code Council's International Plumbing Code as they existed on May 31, 2001. The statute notes that the Texas State Board of Plumbing Examiners may adopt later versions of this code.</p>
<p><strong>As of June 2021, the 2018 edition of the Uniform Plumbing Code</strong> and the 2018 edition of the International Code Council's International Plumbing Code <strong>have been adopted by the State Board's Rule 367.2 in Title 22 of the Texas Administrative Code.</strong></p>
<p>Rule 367.2 also adopts codes incorporated by reference within the 2018 International Plumbing Code, which include the International Code Council's 2018 International Fuel Gas Code and the 2018 International Residential Code.</p>
<p>See the text of Rule 367.2 for details.</p>
</blockquote>
<p>Does this bind me as a homeowner doing personal home renovations, or just plumbers for hire?</p>
| 89,700 |
[
{
"answer_id": 89701,
"body": "<ol>\n<li><p>You can purchase your own copy of the UPC at just about any outlet that sells books including Amazon: <a href=\"https://rads.stackoverflow.com/amzn/click/com/1944366075\" rel=\"noreferrer\" rel=\"nofollow noreferrer\">https://www.amazon.com/2018-Uniform-Plumbing-Code-Tabs/dp/1944366075</a></p>\n</li>\n<li><p>Yes, your local AHJ (agency having jurisdiction) almost certainly has adopted this code or something very similar to it and you need to pull a permit, have the required inspections, and follow the code with any modifications or changes.</p>\n</li>\n</ol>\n",
"score": 5
},
{
"answer_id": 89709,
"body": "<p>The Texas Occupation code is irrelevant to you since you are not in the occupation of being a plumber. Instead, as a homeowner, you are subject to your local building codes. <a href=\"https://www.houstonpermittingcenter.org/media/6126/download?inline\" rel=\"noreferrer\">This</a> is the Houston Plumbing Code. You particularly need to pay attention to the obligations and exemptions of homeowners. §102.10 says</p>\n<blockquote>\n<p>In accordance with the Plumbing License Law, this code shall not\nprevent any homeowner from installing and maintaining plumbing in a\nbuilding owned and occupied by him as his homestead if done in\ncompliance with the requirements of all applicable state-adopted codes\nand ordinances of this jurisdiction. Such privilege does not grant the\nright to violate any of the provisions of this code or state-adopted\ncodes, nor shall it be construed as exempting any such property owner\nfrom obtaining a permit and paying the required fees therefor, except\nfor work that is exempt from permitting under this code.</p>\n</blockquote>\n<p>In other words, if a permit is required, you must get the permit and pay the fee, except not all work requires a permit.</p>\n<p>§104.2 specifies what constitutes exempt work:</p>\n<blockquote>\n<p>A permit shall not be required for the following: (1) The stopping of\nleaks in drains, or soil, waste, or vent pipe, provided, however, that\nif a trap, drain pipe, or soil, waste, or vent pipe becomes defective\nand it becomes necessary to remove and replace the same it with new\nmaterial, the same it shall be considered as new work and for which a\npermit shall be procured and inspection made as provided in this code.\n(2) The clearing of stoppages, including the removal and\nreinstallation of bathroom or kitchen faucets or water closets, or the\nrepairing of leaks in pipes, valves, or fixtures, provided such\nrepairs do not involve or require the replacement or rearrangement of\nvalves, pipes, or fixtures. Exemption from the permit requirements of\nthis code shall not be deemed to grant authorization for work to be\ndone in violation of the provisions of the this code or other laws or\nordinances of this jurisdiction. This section shall be construed in a\nmanner that is consistent with the Plumbing License Law, and no\nprovision herein shall be construed to exempt work for which a permit\nis required to be obtained from this jurisdiction.</p>\n</blockquote>\n<p>The main reason to care about this document is that municipalities are entitled to and often do modify the "Uniform" codes, and it is pointless to argue "The Code says..." when their reply is "We require that...".</p>\n",
"score": 5
},
{
"answer_id": 89707,
"body": "<p>I've only done very minor plumbing work in Texas (like replacing a faucet). Rather than trying to interpret all the exceptions that may exist, such as for homeowners or for minor projects, the easiest thing to do is locate the office that issues plumbing permits in your area and ask them. For example, <a href=\"https://www.houstonpermittingcenter.org/hpwcode1099\" rel=\"nofollow noreferrer\">Houston Public Works has a web page for homeowners who want to pull a permit</a>.</p>\n<p>Also, the codes can be very difficult to understand. I'd suggest looking on the internet to get a sense of what commercially published handbooks are considered reliable. Then visit a plumbing supply house and see if they have any on sale. Make sure whatever you get is recent and says it follows the appropriate version of the UPC.</p>\n",
"score": 3
}
] |
[
"texas",
"construction-law"
] |
Property law: title vs possession
| 4 |
https://law.stackexchange.com/questions/34393/property-law-title-vs-possession
|
CC BY-SA 4.0
|
<p>In property law what is the difference between Title and Possession? They basically sound like the same thing to me.</p>
| 34,393 |
[
{
"answer_id": 34394,
"body": "<p>Title is legal ownership. Possession is immediate control, often but not always physical control. For example, if I buy a book and lend it to my friend A, I have title to it, but A has possession. Or if I rent a house, the landlord has title (or possibly the landlord's bank does) but I have possession. If a thief steals something, the thief has possession, but not title.</p>\n<p>Some kinds of property have a registered or written title. For example, land and houses usually do, and in many jurisdictions automobiles also do. Those will show the legal owner, and may well also show outstanding loans for which the property is collateral. The law may require that the written title be signed over, and/or that the transaction be recorded with a governmental authority and a new written title issued, when ownership of such property is transferred.</p>\n<p>"Lawful possession" includes a lent or rented item of property, but not a stolen one — a thief does not have lawful possession.</p>\n",
"score": 7
},
{
"answer_id": 34395,
"body": "<p><a href=\"https://www.bing.com/news/search?q=white%20house%20legal%20counsel&FORM=NWRFSH\" rel=\"nofollow noreferrer\">Property rights</a> are pretty complex, but not out-of-reach if you are interested. In the simplest of cases, title and possession held by the same person, which is why its easy to not understand the difference. But the details <em>may</em> depend on the wording of a trust and what US state the property is in. A common example is if there is a <a href=\"https://www.bing.com/news/search?q=white%20house%20legal%20counsel&FORM=NWRFSH\" rel=\"nofollow noreferrer\">Deed of Trust</a> (or Mortgage) but that's only on form of complexity. Explicit trusts are also fairly common.</p>\n\n<p>The word <strong>title</strong> potentially ambiguous. Under <a href=\"https://en.wikipedia.org/wiki/Trust_law\" rel=\"nofollow noreferrer\">Trust Law</a> (in jurisdictions like the US), legal title and equitable title can be held by different people and consist of different rights. As an example on Explicit Trusts, base on my understanding, without trying to be exhaustive:</p>\n\n<p>A <em>Trustee</em> may hold <strong>legal title</strong> to a house, but that doesn't mean he has rights to use it as he wishes. A trust <em>Beneficiary</em> may be granted the right to use that house as long as they live, or to receive the income generated by renting it. The Beneficiary has <strong>equitable title</strong>. </p>\n\n<p>If the beneficiary is living in the house, they have <strong>possession</strong> of it, but that doesn't mean they may sell it. If a renter is living there, they could be said to have possession of it, but obviously can't sell it either. If no one is living there, you would probably say the Trustee had possession, and he might be able to sell it, but not to himself, and the proceeds from the sale aren't his either. </p>\n\n<p>If a trust is <strong>revocable</strong>, the situation gets even more complex, because the person who created the trust may have rights. </p>\n",
"score": 2
},
{
"answer_id": 83872,
"body": "<p>Ownership or title must be distinguished from possession:\ni) Buyer has title – Seller has possession:\nProperty in goods is not the same as possession. Although property in goods sold may\nhave passed to the buyer, but the seller may continue to be in possession of the goods\nii) Buyer has possession – owner has title:\nOn the other hand, person may be in possession of goods but title or ownership still\nremains with the owner e.g. in hire-purchase of cars where the hirer has physical\npossession of the goods but the title or ownership still remains with the finance company\nuntil the final installment is discharged.</p>\n",
"score": 1
}
] |
[
"united-states",
"property"
] |
Can someone be prosecuted for perjury after being given immunity on the grounds that they falsely pleaded the fifth?
| -1 |
https://law.stackexchange.com/questions/89724/can-someone-be-prosecuted-for-perjury-after-being-given-immunity-on-the-grounds
|
CC BY-SA 4.0
|
<p>Let's say that person A is being questioned in court and is asked where they were on the night of April 1st. Person A pleads the fifth, is given immunity, and is compelled to testify. Upon person A testifying it becomes clear that person A wasn't doing anything illegal on the the night in question and her answer doesn't incriminate her. Could she then be convicted of perjury since she falsely plead the fifth?</p>
| 89,724 |
[
{
"answer_id": 89735,
"body": "<p>Pleading the fifth is not a true / false proposition, it is a personal conclusion about legal risk. A person cannot be prosecuted for drawing incorrect legal inferences. A statement like "I refused to answer on the grounds that the answer may tend to incriminate me" is a self-proving statement (technically known as a "performative") – in saying this, the witness has by definition refused, and it cannot be false that the witness refused.</p>\n<p>The prosecutor is free to infer whatever he want about why the witness has refused to testify, and may or may not offer immunity. But prosecution for perjury for the refusal is off the table, because one cannot be prosecuted for incorrect inferences on the part of the prosecutor. One can only be prosecuted for literally knowingly-false statements taken under oath.</p>\n",
"score": 1
}
] |
[
"united-states",
"fifth-amendment",
"perjury"
] |
Admitting to a different crime as one's alibi?
| 6 |
https://law.stackexchange.com/questions/89648/admitting-to-a-different-crime-as-ones-alibi
|
CC BY-SA 4.0
|
<p>Mark is accused of a Murder committed between 1pm-2pm on March 10th. However, at that time, Mark 100% has an alibi for something else he was doing (which isn't exactly legal).
For example</p>
<ol>
<li>Mark was doing meth in front of his buddy Bob</li>
<li>Mark was beating his wife Wendy</li>
</ol>
<p>What is Mark supposed to do? Admit to his other crime as an alibi to get him off the hook for what he's accused of? If one admits to other crimes during a trial, will that get added on to the crimes he's being tried for? Or will Mark get acquitted for murder, but immediately be put on trial for the other crime he admitted to? Or what?</p>
<p>My gut tells me that Mark's best course of action is to weigh the consequences for what he's convicted of against what he would be admitting to. Is that right?</p>
| 89,648 |
[
{
"answer_id": 89650,
"body": "<h2>“Anything you say can be used against you in court.”</h2>\n<p>Is what the police say in the USA.</p>\n<p>“You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?” is what they say in New South Wales.</p>\n<p>“You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.” is what they say in England and Wales.</p>\n<p>And so on.</p>\n<p>Whether Mark wants to mention that he was robbing a bank on the far side of town at the time is entirely up to him. If he does, and that can be verified it’s likely the murder charges will be dropped and armed robbery charges will be brought instead.</p>\n<p>Note that in many jurisdictions, if the defence intends to use an alibi defence, the prosecution must be told about it at a very early stage or it can’t be used at all.</p>\n",
"score": 17
},
{
"answer_id": 89667,
"body": "<p>It's less about what you are doing, than who you are doing it with. Because the character of that person, and/or material evidence, is what the court will evaluate.</p>\n<p>You can also establish the alibi and then plead the 5th on exactly what you were doing.</p>\n<p>"What were you doing with Nick, there on the security camera of the truck dock area?"<br />\n"Smoking."<br />\n"That doesn't look like cigarettes. What were you smoking?"<br />\n"I refuse to answer on the grounds that the answer might tend to incriminate me."<br />\n(Jury chuckles)<br />\nAnd that's the end of that.</p>\n<p>Let's have some fun, though...\n"Come now, surely you realize marijuana is legal in this state."<br />\n"Not Federally!"<br />\n(Judge and attorneys laugh)</p>\n",
"score": 15
},
{
"answer_id": 89726,
"body": "<p>Depending on the jurisdiction, the defendant can <em><a href=\"https://pappalardolaw.com/2021/09/proffer-criminal-negotiation-tactic/\" rel=\"nofollow noreferrer\">proffer</a></em> information to the Prosecution on an unattributable basis via their solicitor. In this instance, the Prosecution would be told in no uncertain terms that the defendant has a cast-iron alibi but that they don't want to share the information because it could incriminate them in a different crime.</p>\n<p>Normally this would be posed as a hypothetical, given in an <a href=\"https://www.robertbonsib.com/articles/proffer-letter-agreements-watch-your-step-a-discussion-of-practical-issues-regarding-proffer-letter-agreements-by-robert-c-bonsib-esq/\" rel=\"nofollow noreferrer\">off-the-record conversation</a> to avoid it being considered a direct confession, or the prosecution could offer <a href=\"https://en.wikipedia.org/wiki/Legal_immunity\" rel=\"nofollow noreferrer\">limited immunity from prosecution</a> based on the evidence provided.</p>\n<p><em>"Hypothetically speaking, my client could have an alibi that could cause them to be charged with a different crime, but which the confession of would absolutely prove that they weren't at the scene of the murder, and hence blow a hole in the very expensive homicide case you're planning to present to the court. Would that knowledge, hypothetically speaking, be of interest to you?"</em></p>\n",
"score": 2
},
{
"answer_id": 89729,
"body": "<h2>Merely being somewhere isn't usually a crime</h2>\n<p>All Mark has to prove is that he <em>was</em> somewhere else than the murder scene when it was committed. Proving the presence in a certain place at a certain time often can be done without revealing what exactly was being done in there.</p>\n<p>If/when pressed what he was doing there, invoking the 5th will be sufficient and, provided that the proof of being there is itself strong enough, it won't create any negative consequences.</p>\n",
"score": 2
}
] |
[
"united-states",
"criminal-law"
] |
What does it mean for a trial, or other hearing, that has been listed to be “vacated”?
| 6 |
https://law.stackexchange.com/questions/6535/what-does-it-mean-for-a-trial-or-other-hearing-that-has-been-listed-to-be-vac
|
CC BY-SA 4.0
|
<p>What does it mean, and what are the implications of having a trial (or other hearing) vacated?</p>
<p>Does it more strongly suggest that it will have been dispensed with finally, or that it will be rescheduled/relisted for another date?</p>
<p>Importantly, I would like to know whether this means that the current case is ditched and the prosecution has to lay down charges to the court again from scratch?</p>
| 6,535 |
[
{
"answer_id": 6542,
"body": "<p><strong>What does it mean to have a case vacated?</strong></p>\n\n<h2><a href=\"https://answers.justia.com/question/2013/01/09/what-does-vacated-and-remanded-mean-50299\" rel=\"noreferrer\">Two US Lawyers Say:</a></h2>\n\n<ul>\n<li><blockquote>\n <p>The term \"vacated\" means that the Court on appeal reviewed the lower\n court's decision, found error, and overturned it.</p>\n</blockquote></li>\n<li><blockquote>\n <p>It means a reviewing court, usually a court of appeal, has determined\n that a trial court judgement should be vacated, or in other words,\n eliminated.</p>\n</blockquote></li>\n</ul>\n\n<h2><a href=\"http://legal-dictionary.thefreedictionary.com/vacate\" rel=\"noreferrer\">Legal Dictionary Says:</a></h2>\n\n<ul>\n<li><blockquote>\n <p>The term vacate has two common usages in the law. With respect to real property, to vacate the premises means to give up possession of the property and leave the area totally devoid of contents. \n To vacate a court order or judgment means to cancel it or render it null and<br>\n void.</p>\n</blockquote></li>\n</ul>\n\n<h2><a href=\"https://en.wikipedia.org/wiki/Vacated_judgment\" rel=\"noreferrer\">Wikipedia Says:</a></h2>\n\n<ul>\n<li><blockquote>\n <p>A vacated judgment makes a previous legal judgment legally void. A\n vacated judgment is usually the result of the judgment of an appellate\n court, which overturns, reverses, or sets aside the judgment of a\n lower court. An appellate court may also vacate its own decisions.</p>\n \n <p>A trial court may have the power under certain circumstances, usually\n involving fraud or lack of jurisdiction over the parties to a case, to\n vacate its own judgments.</p>\n \n <p>A vacated judgment may free the parties to civil litigation to\n re-litigate the issues subject to the vacated judgment.</p>\n</blockquote></li>\n</ul>\n\n<h2>Here's What Dale M. Says:</h2>\n\n<p><a href=\"https://i.stack.imgur.com/Sq1U6.png\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/Sq1U6.png\" alt=\"enter image description here\"></a></p>\n\n<p>Therefore, pick your poison, do more research to determine the common definition in the context which it's applicable in your particular case, or ask your lawyer.</p>\n",
"score": 7
}
] |
[
"criminal-law",
"united-kingdom",
"trial"
] |
Can I be convicted of conspiring without an overt action?
| 0 |
https://law.stackexchange.com/questions/89690/can-i-be-convicted-of-conspiring-without-an-overt-action
|
CC BY-SA 4.0
|
<p>Under US law, as far as I understand, a conviction of conspiracy requires at least one overt action. If I was in on the conspiracy but didn't do anything - will I be convicted?</p>
<p>Here's an example: me and two buddies meet in a dark room and discuss the best way to murder the president, and how that's what needs to be done (i.e. we <em>agreed</em> to cooperate and coordinate). Then we each go our separate way. One of my buddies goes to a gun shop and buys a rifle, than gets arrested by the FBI that were recording our conversation. But I went home and then to work and didn't do anything. Can the FBI convict me of conspiracy?</p>
| 89,690 |
[
{
"answer_id": 89692,
"body": "<p>It is hard to tell if this constitute criminal conspiracy. The insight and input you contribute to the planning of the crime (and acts you may have taken to acquire the knowledge used in those plans such as a Google search and research to assist in the planning) could itself arguably be an overt act. But facts in the question regarding your participation in the planning meeting isn't specific enough to know.</p>\n<p>You've also, probably accidentally, backed into another issue because of the way that this question is framed. If you and anyone else in the group are U.S. citizens, planning to assassinate the President, at least while the President is in office for reasons in any way related to his official duties while in office as President, very likely also constitutes the crime of treason.</p>\n<p>This matters because there are quite serious criminal penalties under federal law for a failure of anyone to report an attempt to engage in sedition, when you are aware of it, even though there isn't general duty to report most crimes of which you are aware under federal law.</p>\n<p>The crime of failing to report a treasonous plot is called "misprison of treason". <em>See</em> <a href=\"https://www.law.cornell.edu/uscode/text/18/2382\" rel=\"nofollow noreferrer\">18 U.S..C. § 2382</a>. This statute states:</p>\n<blockquote>\n<p>Whoever, owing allegiance to the United States and having knowledge of\nthe commission of any treason against them, conceals and does not, as\nsoon as may be, disclose and make known the same to the President or\nto some judge of the United States, or to the governor or to some\njudge or justice of a particular State, is guilty of misprision of\ntreason and shall be fined under this title or imprisoned not more\nthan seven years, or both.</p>\n</blockquote>\n<p>So, even if you haven't engaged in conspiracy to assassinate the President, you are probably still guilty of a serious federal felony.</p>\n",
"score": 4
},
{
"answer_id": 89695,
"body": "<p>Since you are asking about conspiracies in general and not specifically conspiracies to assassinate POTUS – that's just an example – I will draw on Washington state law. The relevant law is <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=9A.28.040\" rel=\"nofollow noreferrer\">RCW 9A.28.040</a>. The core of the law is that</p>\n<blockquote>\n<p>(1) A person is guilty of criminal conspiracy when, with intent that\nconduct constituting a crime be performed, he or she agrees with one\nor more persons to engage in or cause the performance of such conduct,\nand any one of them takes a substantial step in pursuance of such\nagreement.</p>\n</blockquote>\n<p>The primary issue that must be proven at trial is that you <em>agreed</em> to something, not just that you discussed it. It is not a crime to talk about committing a crime, it is a crime to agree to commit a crime. The fact that the other guy took an overt step to do the deed is sufficient for a conviction, if there is an agreement.</p>\n<p>There is a problem with your description that you "discuss the best way to murder the president, and how are are that's it's what needs to be done". As an intellectual exercise in spy-theory, one might discuss the best way to commit a crime without agreeing to do so. If, however, you are admitting that you and the others agreed that "it is what needs to be done", you would not need to utter some magic contract-language formula like "We do hereby mutually agree to undertake this task".</p>\n<p>The <a href=\"https://govt.westlaw.com/wcrji/Document/Iefb1eae1e10d11daade1ae871d9b2cbe?viewType=FullText&originationContext=documenttoc&transitionType=StatuteNavigator&contextData=%28sc.Default\" rel=\"nofollow noreferrer\">notes on jury instructions</a> for this crime elaborates on "agreement", that</p>\n<blockquote>\n<p>all a prosecutor needs to prove is that the conspirators agreed to\nundertake a criminal scheme and that they took a substantial step in\nfurtherance of the conspiracy.” State v. Bobic, 140 Wn.2d 250</p>\n</blockquote>\n<p>There is ample case law showing that</p>\n<blockquote>\n<p>An agreement to commit a crime is an essential part of a conspiracy,\nState v. Miller, 131 Wn.2d 78, 929 P.2d 372 (1997), although <em>the\nagreement need not be formal</em>. State v. Israel, 113 Wn.App. 243, 284,\n54 P.3d 1218 (2002); State v. Barnes, 85 Wn.App. 638, 664, 932 P.2d\n669 (1997).</p>\n</blockquote>\n<p>also,</p>\n<blockquote>\n<p>“conspiracy to commit murder by extreme indifference requires that the\nconduct be intended [and] there must be an agreement (express or\nimplied) to engage in conduct creating a grave risk [of death], but\nthe result of the conduct-death-need not be intended.” In re Sandoval,\n189 Wn.2d 811, 828, 408 P.3d 675</p>\n</blockquote>\n<p>There is no finer-grained definition of "agreement" applicable in criminal cases, therefore the jury must apply their ordinary language understanding of what an "agreement" is. On the face of it, there is no reasonable interpretation whereby the defendant did <em>not</em> agree to carrying out the act, but perhaps there are details that are relevant that you didn't reveal.</p>\n",
"score": 3
}
] |
[
"united-states",
"conspiracy"
] |
What are the differences between petitions, complaints, and indictments?
| 1 |
https://law.stackexchange.com/questions/89718/what-are-the-differences-between-petitions-complaints-and-indictments
|
CC BY-SA 4.0
|
<p>These seem to be ways of bringing actions to a court. How do they differ and compare?</p>
| 89,718 |
[
{
"answer_id": 89721,
"body": "<p>These are different terms for initiating documents. What one court or jurisdiction calls a petition, another might call an application. "Complaint" may not have a technical meaning in some contexts or jurisdictions, but often it is used to refer to the initiating document at a specialist tribunal. There are other names for initiating documents: notice of civil claim, notice of action, etc.</p>\n<p>There is no way to know which terms have a technical meaning and what those meanings are without looking to the rules and practice in a particular jurisdiction.</p>\n<p>"Indictment" is an initiating document in a criminal prosecution. But there are also "informations" (generally implying lesser charges).</p>\n",
"score": 3
}
] |
[
"legal-terms"
] |
What is the definition of a trial?
| -1 |
https://law.stackexchange.com/questions/89705/what-is-the-definition-of-a-trial
|
CC BY-SA 4.0
|
<p>Does it refer to a series of final hearings in a case that will have followed any other preliminary hearings on subsidiary issues?</p>
| 89,705 |
[
{
"answer_id": 89714,
"body": "<h3>General Considerations</h3>\n<p>A "<strong>trial</strong>" (when used in the sense of the word as a court proceeding in a common law legal system) is a subset of a category of live court proceedings at which a judge is present, in a court of first instance (i.e., in a trial court) called "<strong>hearings</strong>". Some legal proceedings outside of the court system are also called "hearings" as discussed below.</p>\n<p>More particularly, trials are a subset of hearings called "<strong>evidentiary hearings</strong>", which are live court proceedings in a court of first instance at which a judge is present, during which testimony and documentary evidence and other physical evidence may be presented to the court.</p>\n<h3>Proceedings at which evidence is not received</h3>\n<p>Not all decisions in a court case are made in hearings and trials. Some decisions are made by court clerks and judges in "<strong>motion practice</strong>" based upon documents submitted to the court by the parties in a case. Motion practice occurs in both civil and criminal cases. Often matters raised in motion practice are resolved by a judge without oral argument or a hearing. A hearing only has to be held after motion practice when the resolution of the motion requires resolving disputed issues of material facts presented in motion practice.</p>\n<p>An in person (or live remote) proceeding before a judge at either the trial court level or in another court, in which evidence is not received and the judge instead hears only argument from counsel, is never a "trial". It is usually called a "<strong>hearing</strong>", an "<strong>oral argument</strong>", or a "<strong>conference</strong>".</p>\n<p>An "oral argument" is limited to argument from counsel (and questions from a judge or judges to counsel) regarding "motion practice" or an appeal (which apart from oral arguments is resolved through the filing of appellate briefs that are basically motions, and through motion practice). Oral arguments on motion practices and in appeals are usually held only in the discretion of the court, if the court feels that these oral arguments would be helpful to the court in resolving the case.</p>\n<p>A "conference" at which the parties and/or counsel are present normally resolves procedural mattes only (especially scheduling and discovery and pre-trial preparation), and usually does not involve resolution of non-procedural disputes in the case.</p>\n<p>A live proceeding involving more than one judge at which the parties to the action are not present and their representatives are not present is called a "<strong>conference</strong>".</p>\n<h3>Evidentiary proceedings without a judge or arbitrator present</h3>\n<p>A proceeding in a court case or alternative dispute resolution proceeding, in which sworn testimony and/or documents are received outside the presence of a judge which is not before a grand jury, is usually called a "<strong>deposition</strong>."</p>\n<p>A proceeding in a court case in which sworn testimony and/or documents are received outside the presence of a judge before a grand jury is sometimes called a "<strong>grand jury proceeding</strong>", a "<strong>session of a grand jury</strong>", or is less often sometimes called a "<strong>hearing</strong>."</p>\n<h3>Trials v. evidentiary hearings in trial court cases</h3>\n<p><strong>Distinguishing "trials" from "evidentiary hearings"</strong> in a court of first instance (i.e. a trial court) is partially a logical distinction based upon what happens at the hearing, but <strong>is mostly a matter of custom and tradition.</strong></p>\n<p>The main principles for distinguishing a trial from a hearing or other similar court proceeding are as follows:</p>\n<p><em>General classification rules for evidentiary hearings</em></p>\n<ul>\n<li><p>All evidentiary hearings in court in which a judge and a jury are part of the process are called "<strong>jury trials</strong>."</p>\n</li>\n<li><p>All evidentiary hearings in court before a judge or judges without a jury, that could have been jury trials if the parties had properly demanded a jury, are "<strong>bench trials</strong>" a.k.a. "<strong>trials to the court</strong>."</p>\n</li>\n<li><p>Some evidentiary hearings in court before a judge or judges in a court without a jury in a civil matter that could not have been jury trials, are nonetheless called "<strong>bench trials</strong>" or "<strong>trials to the court</strong>", if they resolve the core disputes claims in a case on the merits in a type of case that historically did not usually arise only in courts of equity.</p>\n</li>\n</ul>\n<p><em>Classifying evidentiary hearings in criminal cases</em></p>\n<ul>\n<li><p>In criminal cases, the term "trial" normally refers to an evidentiary hearing for the purpose of resolving the issue of guilt or innocence with respect pending criminal charges on the merits.</p>\n</li>\n<li><p>Evidentiary hearings in criminal cases regarding sentencing or any other matters besides resolution on the merits of the question of guilt or innocence are called "hearings" (even if the hearing could result in the dismissal of the charges on procedural grounds or for lack of probable cause).</p>\n</li>\n</ul>\n<p><em>Classifying evidentiary hearings in non-criminal court cases</em></p>\n<ul>\n<li><p>In court cases other than criminal cases, the term "trial" normally refers to an evidentiary hearing held for the purpose of resolving the issue of liability and damages with respect to the pending civil claims in a civil lawsuit on the merits.</p>\n</li>\n<li><p>In an eviction case, the prompt evidentiary hearings held before a judge solely to determine the issue of whether the person seeking possession of real property is entitled to it, are usually called "<strong>eviction hearings</strong>" rather than "trials". This is because this preliminary and prompt hearing does not resolve the question of the amount of money damages, if any, that will be awarded to the parties in the case.</p>\n</li>\n<li><p>Evidentiary hearings in civil cases held before a resolution of the case finally on the merits, such as evidentiary hearings regarding temporary restraining orders and preliminary injunctions are usually called "hearings".</p>\n</li>\n<li><p>Evidentiary hearings in a civil cases to decide procedural matters other than the final resolution of the claims in the case, such as whether an expert witness should be allowed to testify at trial, or whether a case should be referred to arbitration, are called "hearings".</p>\n</li>\n<li><p>Evidentiary hearings in a civil case held after the trial in a case is concluded, such as evidentiary hearings concerning the amount of attorney fees or costs that should be awarded to a prevailing party, or requests to set aside a court judgment due to events that happened outside of the trial, are called "hearings."</p>\n</li>\n<li><p>Evidentiary hearings that are heard by a judge in areas of law that are historically in the equity jurisdiction of a court are often called "hearings" rather than "trials" (unless they are considered in an evidentiary hearing that is also resolving on the merits the issues of liability and damages that if considered by themselves would be called a "trial"). For example, the concluding evidentiary hearing on the merits in a divorce case that becomes the basis for resolving questions of property division, alimony, child support, and child custody, are usually called "<strong>permanent orders hearings</strong>" rather than "trials." Similarly, most evidentiary hearings held in cases involving guardianship, conservatorship, probate, or pretty much any other kind of case that is initiated by a "petition" (rather than by a "complaint" or an "indictment") is usually called a "hearing" if if this evidentiary basis is the forum in which the evidence used to finally resolved the disputed claims in the case on the merits occurs.</p>\n</li>\n</ul>\n<h3>Classifying evidentiary hearings not held in court cases</h3>\n<ul>\n<li><p>Proceedings at which evidence is taken before an administrative agency, as opposed to a court, at which one or more administrative decisions makers or administrative judges is present, are usually called "<strong>hearings</strong>" rather than "trials."</p>\n</li>\n<li><p>Proceedings at which evidence is taken in an arbitration proceeding, as opposed to a court, at which one or more arbitrators is present, are usually called "<strong>hearings</strong>" rather than "trials."</p>\n</li>\n<li><p>A proceedings held pursuant to the Uniform Code of Military Justice at which evidence is taken for the purpose of making decisions on the merits regarding the validity of charges of violations of the Uniform Code of Military Justice and the appropriate punishment for the charges if they are found to be valid, is called a "<strong>court martial</strong>" (of which there are several subtypes). The term "court martial" is somewhat slippery, however, because it is used to refer to both an entire military justice case in one sense of the term, and to the trial-like event that occurs in the course of a military justice case in another sense of the term.</p>\n</li>\n<li><p>Alternative dispute resolution proceedings for the purposes of reaching a mutually agreed resolution at which no binding decision on the merits can be made without the agreement of the parties are usually called "<strong>mediations</strong>."</p>\n</li>\n</ul>\n",
"score": 1
}
] |
[
"legal-terms"
] |
If one is threatened, are they allowed to stay silent with no legal consequences?
| 0 |
https://law.stackexchange.com/questions/89712/if-one-is-threatened-are-they-allowed-to-stay-silent-with-no-legal-consequences
|
CC BY-SA 4.0
|
<p>Andy the abuser is doing unspeakable things to his child. His wife Wendy witnesses and is aware of this. Normally, Wendy would also be held liable for not reporting this horrible crime (at least I assume so @.@). But what if Andy threatens Wendy? Is Wendy's silence allowed with no repercussions in that case? As a simple example, Andy could say that he'll beat Wendy badly if she ever goes to the police. As a more elaborate example, Andy could be a mafioso, and say that he has "his boys" tailing Wendy at all times, so she "better not try anything funny".</p>
| 89,712 |
[
{
"answer_id": 89716,
"body": "<p>Following <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=26.44&full=true#26.44.080\" rel=\"nofollow noreferrer\">RCW 26.44.080</a>,</p>\n<blockquote>\n<p>Every person who is required to make, or to cause to be made, a report\npursuant to <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=26.44.030\" rel=\"nofollow noreferrer\">RCW 26.44.030</a> and 26.44.040, and who knowingly fails to\nmake, or fails to cause to be made, such report, shall be guilty of a\ngross misdemeanor.</p>\n</blockquote>\n<p>Mandatory reporting applies to many people such as doctors, teachers, coaches, also</p>\n<blockquote>\n<p>(d) The reporting requirement shall also apply to any adult who has\nreasonable cause to believe that a child who resides with them, has\nsuffered severe abuse, and is able or capable of making a report.</p>\n</blockquote>\n<p>There is a defense to criminal charges in <a href=\"https://apps.leg.wa.gov/rcw/default.aspx?cite=9a.16&full=true#9A.16.060\" rel=\"nofollow noreferrer\">RCW 9a.16.060</a> which says</p>\n<blockquote>\n<p>(1) In any prosecution for a crime, it is a defense that: (a) The\nactor participated in the crime under compulsion by another who by\nthreat or use of force created an apprehension in the mind of the\nactor that in case of refusal he or she or another would be liable to\nimmediate death or immediate grievous bodily injury; and (b) That such\napprehension was reasonable upon the part of the actor; and (c) That\nthe actor would not have participated in the crime except for the\nduress involved.</p>\n</blockquote>\n<p>There are limits to the duress defense:</p>\n<blockquote>\n<p>(2) The defense of duress is not available if the crime charged is\nmurder, manslaughter, or homicide by abuse. (3) The defense of duress\nis not available if the actor intentionally or recklessly places\nhimself or herself in a situation in which it is probable that he or\nshe will be subject to duress. (4) The defense of duress is not\nestablished solely by a showing that a married person acted on the\ncommand of his or her spouse.</p>\n</blockquote>\n<p>What you describe sounds like duress. Technically, Wendy could report the abuse to all sorts of other government entities besides the police and not run afoul of the threat, but it is quite reasonable to assume that Andy intended the beating regardless of who receives the report.</p>\n",
"score": 3
}
] |
[
"united-states",
"criminal-law",
"children"
] |
How would one comply with a court order to unpublish unlimitable information?
| 17 |
https://law.stackexchange.com/questions/89639/how-would-one-comply-with-a-court-order-to-unpublish-unlimitable-information
|
CC BY-SA 4.0
|
<p>(If this has been asked, please deduplicate; I searched but couldn't find anything similar. Thanks!)</p>
<p>This is wholly hypothetical, I hope. Let's have two people, <a href="https://en.wikipedia.org/wiki/Alice_and_Bob" rel="noreferrer">"Alice" and "Bob"</a>. Alice publishes some data that, for whatever legal reason, they ought not to publish. Bob gets some sort of court order which directly instructs Alice to stop publishing the content. From what I've heard, the court may deputize Alice somewhat, instructing them to not just cease publication, but also to actively inform other publishers that they must cease & desist. If those other publishers continue, then Bob may complain to the court again, and the court may order those other publishers to cease as well.</p>
<p>We are now in the 21st century, though, and the content may be available via e.g. Bittorrent, a <a href="https://en.wikipedia.org/wiki/Key%E2%80%93value_database" rel="noreferrer">key-value data store</a> which can make data internationally available as long as <em>one</em> person, somewhere in the world, is reachable and has a copy of the data. This can create a problem for Alice; let's imagine a third person, "Mallory", who sits beyond the court's jurisdiction. Mallory openly flouts the court order by publishing a Bittorrent key (a <a href="https://en.wikipedia.org/wiki/Torrent_file" rel="noreferrer">torrent file</a> or <a href="https://en.wikipedia.org/wiki/Magnet_URI_scheme" rel="noreferrer">magnet link</a>) which allows anybody to obtain a copy of the data. (Also note that tools like <a href="https://boramalper.org/labs/magnetico/" rel="noreferrer">Magnetico</a> can be used to let anybody become an eavesdropper, passively learning Bittorrent keys as they transit the network. Mallory may "openly flout" the court without the equivalent of a conspicuous notice in a public place.)</p>
<p>Given that Alice has been instructed by the court to stop publishing the data, and given that Mallory refuses to stop publishing the data, <strong>what might Alice be obliged to do to comply with the court?</strong></p>
<p>Since this is an international question, answers can pertain to any jurisdiction!</p>
| 89,639 |
[
{
"answer_id": 89641,
"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=\"united-states-container\">united-states</a></p>\n<p>This answer analyzes the question under U.S. law, although it is really generally applicable in all countries with a common law legal system. I'm not familiar with how non-common law countries address this issue at this level of granularity.</p>\n<blockquote>\n<p>Given that Alice has been instructed by the court to stop publishing\nthe data, and given that Mallory refuses to stop publishing the data,\nwhat might Alice be obliged to do to comply with the court?</p>\n</blockquote>\n<p>Very little.</p>\n<p>This is why courts very rarely issue orders like this one.</p>\n<p>Disobedience to a court order is enforced with a contempt of court proceeding against a party that allegedly knowingly and willfully failed to comply with the court order. But an inability to comply with the court order (at least if this is not due to sabotage by the party subject to the order after that party learns of the order's existence) is a complete defense to contempt of court sanctions.</p>\n<p>Contractually, this is why most non-disclosure agreements have liquidated damages and actual money damages remedies as well as the remedy of injunctive relief.</p>\n<p>If harm that can't be unwound results from conduct taken before an injunction is in place, or as a result of a breach of an injunction that the person who was ordered to do something can't remedy, then a court imposes money damages and/or punitively imposes a criminal fine or incarceration on a party who defied a court order.</p>\n",
"score": 27
},
{
"answer_id": 89647,
"body": "<p>Courts generally recognize that it is futile to attempt to have something 'unpublished", and a proceeding seeking to prevent one party from publishing something is likely to be closed as moot if an independent party has already published.</p>\n<p>This happens in the case of <a href=\"https://en.wikipedia.org/wiki/United_States_v._Progressive,_Inc.\" rel=\"noreferrer\"><em>United States v. Progressive, Inc.</em> 467 F. Supp. 990 (W.D. Wis. 1979)</a> As the Wikipedia article says:</p>\n<blockquote>\n<p>The article was eventually published after the government lawyers dropped their case during the appeals process, calling it moot after other information was independently published.</p>\n</blockquote>\n",
"score": 14
},
{
"answer_id": 89644,
"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=\"canada-container\">canada</a></p>\n<p>One is only obligated to comply with a court order to the extent that it states "clearly and unequivocally what should and should not be done." In order to be found in contempt, the person alleged to be in breach must have "intentionally failed to do the act that the order compels." In all cases, the court retains the discretion to deny a finding of contempt where the alleged breaching party took reasonable steps to comply with the order. See generally <em>Carey v. Laiken</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15289/index.do\" rel=\"noreferrer\">2015 SCC 17</a> at paras. 30-37. This also implies that where a party <em>could not</em> have complied, they should not be held in contempt.</p>\n<p>Orders are thus generally phrased in terms of <em>actions</em>, not <em>outcomes</em>. They state specifically what actions a party must do or not do. They don't typically bind a party to achieving an ulterior goal beyond what the actions ordered entail.</p>\n",
"score": 9
},
{
"answer_id": 89665,
"body": "<p>Alice is only responsible for Alice's actions, not the whole world.</p>\n<p>So Alice can be ordered to stop publishing / take the content down, but the court would not order Alice to do something out of Alice's control.</p>\n<p>This is separate from Alice's liability for what happened in the past. For instance Alice could have published from a website under Alice's control, to allow quick takedown if ordered to do so. However Alice chose to stuff it on BitTorrent. If It looks like Alice did so <em>to pre-emptively thwart a takedown order that Alice figured was likely to come</em>, that would be reflected in higher money judgments awarded to Bob.</p>\n<p>And if Alice put it on BitTorrent after being ordered to take it down, well, that's straight- up contempt of court and Alice could be cooling heels in county jail for a stretch. Again since there isn't anything Alice could do to wipe it off BitTorrent, its disappearance would not be made a condition of release. However if the other seeders were few in number and willingly stopped seeding it and caused it to disappear, that is likely to impress the judge.</p>\n",
"score": 7
}
] |
[
"internet",
"non-disclosure",
"injunctions"
] |
do Judges have the power to interpret a law contrary to the drafters intent?
| 0 |
https://law.stackexchange.com/questions/89683/do-judges-have-the-power-to-interpret-a-law-contrary-to-the-drafters-intent
|
CC BY-SA 4.0
|
<p>From what I see, a judiciary has the power to interpret laws and they don't need to interpret it with regard to the intent of the legislature neccesarily and they can apply standards of fairness in interpretation decided by themselves rather than a drafters interpretation. but I am assuming that this requires a constitution to create underlying principles?</p>
| 89,683 |
[
{
"answer_id": 89688,
"body": "<p>The power definitely exists, and it is also said by some (respectable persons) that they have a duty to do so.</p>\n<p>There are many schools of legal interpretation. One trend is to attempt to discern legislative intent, based on whatever facts there might be such as newspaper articles or legislative committee reports. A contrary trend is to look exclusively at the text enacted by the legislature – this school is known as the Textualist school, and is currently dominant in the US Supreme Court.</p>\n<p>There are also non-textualist "progressive" trends that seek justice according to some social principle, rather than the text of the law or the definitive intent of the original legislators, which may address the situation that you have in mind. In civil cases, statutory law tends to be rather unclear, allowing a judge to decide on the basis of their beliefs of what is fair, equitable or just. That is because in the common law, close to a millenium old, judgments were supposed to be "just". In the US, much of the common law has been re-coded as statutory law, and in that case, the intent of the legislature is really to "encode the sense of justice implicit in the common law".</p>\n<p>This does not mean that trial judges have unlimited power to set aside the words of existing laws. Their primary obligation is to apply the law literally, as interpreted by their superiors (appellate courts). When the higher courts are silent and when the legislature is not clear, the trial judge has some leeway to follow whichever jurisprudential philosophy they adhere to.</p>\n",
"score": 3
},
{
"answer_id": 89687,
"body": "<p>Since you are asking on law.SE, I will assume you are asking about the legal principles that drive interpretation.</p>\n<p>In <a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a>, the current approach to statutory interpretation is that:</p>\n<blockquote>\n<p>Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.</p>\n<p><em>Rizzo & Rizzo Shoes Ltd. (Re)</em>, [1998] 1 S.C.R. 27 at <a href=\"https://canlii.ca/t/1fqwt#par21\" rel=\"nofollow noreferrer\">para. 21</a></p>\n</blockquote>\n<p>"[E]ven with penal statutes, the real intention of the legislature must be sought" (<em>R. v. Hasselwander</em>, [1993] 2 S.C.R. 398).</p>\n<p>Interpretation statutes also direct courts to give enactments "fair, large and liberal construction and interpretation as best ensures the attainment of its objects" (e.g. <a href=\"https://laws-lois.justice.gc.ca/eng/acts/i-21/FullText.html\" rel=\"nofollow noreferrer\"><em>Interpretation Act</em></a>, s. 12).</p>\n<p>This has been described as a "duty" (<em>Sovereign Life Insurance Co. (Re)</em>, 2001 ABQB 60).</p>\n<p>It would be an error in law for a judge to not focus on attempting to ascertain the intention of the legislature. This flows from the constitutional principle of Parliamentary supremacy.</p>\n",
"score": 2
},
{
"answer_id": 89703,
"body": "<h2>No, but …</h2>\n<p>It’s up to the court to determine the drafter’s intent. The common law is firmly in the <a href=\"https://tvtropes.org/pmwiki/pmwiki.php/Main/DeathOfTheAuthor\" rel=\"nofollow noreferrer\">death of the author</a> camp of textual analysis.</p>\n<p>However, many jurisdictions have an Act that tells people (including judges) how other Acts should be interpreted. These are usually called the the Acts Interpretation Act or some similar tautological name.</p>\n<p>The Commonwealth’s <a href=\"https://www.legislation.gov.au/Details/C2014C00077\" rel=\"nofollow noreferrer\">Acts Interpretation Act</a> was the 2nd Act passed by the first Australian Parliament. The first act, was the one that implemented our extremely racist <a href=\"https://en.wikipedia.org/wiki/White_Australia_policy\" rel=\"nofollow noreferrer\">White Australia Policy</a> because you have to have your priorities right.</p>\n<p>It contains basic definitions of things like days and months, the Queen, the Governor General, the Minister etc. it also contains general interpretation rules in Part 5 including that:</p>\n<ul>\n<li>Acts are to be “read down” to ensure they comply with the Constitution.</li>\n<li>an interpretation that confirms with an ACT’s stated objects is preferred over one that doesn’t.</li>\n<li>that extrinsic material may be used to assist in interpretation.</li>\n<li>where examples are used in the Act they can extend the plain meaning of the provisions.</li>\n<li>that references to the Queen, the King, the Crown, or the Sovereign refer to the current incumbent of that office.</li>\n</ul>\n",
"score": 0
}
] |
[
"interpretation",
"judging"
] |
What does "necessary" mean with regards GDPR and cookie consent
| 1 |
https://law.stackexchange.com/questions/89673/what-does-necessary-mean-with-regards-gdpr-and-cookie-consent
|
CC BY-SA 4.0
|
<p>The GDPR makes use of the word "necessary". For example <a href="https://gdpr-info.eu/art-6-gdpr/" rel="nofollow noreferrer">article 6. Lawfulness of processing 1. (f)</a> says "processing is necessary for the purposes of the legitimate interests pursued by the controller". This is frequently used for cookie consent (including by stack exchange) to have a minimum set of cookies that one cannot refuse.</p>
<p><a href="https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/" rel="nofollow noreferrer">The ICO defines necessary as</a>:</p>
<blockquote>
<p>When is processing 'necessary'?</p>
<p>Many of the lawful bases for processing depend on the processing being “necessary”. This does not mean that processing has to be absolutely essential. However, it must be more than just useful, and more than just standard practice. It must be a targeted and proportionate way of achieving a specific purpose. The lawful basis will not apply if you can reasonably achieve the purpose by some other less intrusive means, or by processing less data.</p>
<p>It is not enough to argue that processing is necessary because you have chosen to operate your business in a particular way. The question is whether the processing is objectively necessary for the stated purpose, not whether it is a necessary part of your chosen methods.</p>
</blockquote>
<p>In logic discussions, and I think common english, necessary is synonymous with essential in that A is a necessary/essential condition for B if B cannot occur without A. While the paragraph above indicates that there is a legal difference between these two terms, it does say what this difference is.</p>
<p>In the case of cookies it is quite easy to objectively define a minimum for how much influence they have the functionality of a site. I could for example, crawl this site twice, once while respecting cookies and once while not returning any cookies provided (I could even repeat this for individual cookies). It would be correct to say that cookies are not <strong>essential</strong> for any functionality that is returned by both crawls. From a logic point of view <strong>necessary</strong> would be synonymous with <strong>essential</strong> in that statement. What does necessary mean in this context from a legal point of view?</p>
| 89,673 |
[
{
"answer_id": 89676,
"body": "<p>Reality is complex and nuanced, so it doesn't make sense to interpret words in the same strict sense as they would be used in formal logic.</p>\n<p>GDPR legal bases relate to processing purposes, i.e. goals that shall be achieved via the processing of personal data. The GDPR has principles such as <em>data protection by design and by default</em> and <em>data minimization</em>. These principles tell us that we should only process the minimum data necessary to achieve the purpose, and should use the most privacy-friendly means to do so. The use of the word “necessary” in Art 6(1) GDPR is an expression of these principles, and restricts which means we can use towards these purposes.</p>\n<p>The word “necessary” was at the heart of the Munich “Google Fonts” case. A website operator claimed that they had a legitimate interest for embedding fonts from a third party server (Google) on their website. The court did not even consider whether that legitimate interest was valid. Because even if it was valid, there would be the question whether embedding fonts from a third party server was necessary to achieve those interests. The court found that this was not necessary, as there would be more privacy-friendly means to achieve the same interest, namely self-hosting the fonts.</p>\n<p>The word “necessary” also appears in the context of the ePrivacy Directive, which regulates the use of client-side storage such as cookies. The default is that accessing or storing information on a client-side device requires GDPR-consent. However, there is an exception, in case that access or storage is strictly necessary to provide a service that was explicitly requested by the user. Here, the words such as “strictly”, “necessary”, and “explicitly” all help to show that this exception must be interpreted fairly narrowly. The main point of debate in this context is then which services were “requested”, i.e. which services of an app or website are core parts of the offering, and which are optional. This becomes tricky in particular when such client-side storage is strictly necessary for providing the service in a safe and scaleable manner (e.g. cookies for load balancing, bot detection, rate limiting), even though the service could technically work without them. It is thus not always possible to draw a bright line, though regulatory guidance has made some aspects perfectly clear. For example, ads are never strictly necessary for providing a service in the sense of the ePrivacy Directive, even though they might be necessary for a website's business model. Whether cookies are necessary must always be considered from the perspective of the user.</p>\n<p>A note on word choice in EU law:\nDrafting EU laws is a linguistically challenging process because the law must be translated into all member state's languages, and all of these versions are the authoritative document. Thus, they must express the <em>exact</em> same meaning. It is more preferable that the different versions are aligned in word choice and sentence structure, than making sure that the English version has elegant prose. Also, laws tend to use a formal and neutral linguistic register.</p>\n<p>Words like “necessary” or “required” are useful here, given their plain meaning with few distracting connotations. Also, “necessary” has exactly equivalent words in Romance languages.</p>\n<p>The word “essential” is more complicated. It is more difficult to find exact equivalents in other languages. It has potentially distracting metaphysical and biochemical connotations. While it is also used in formal writing, it has a more argumentative tone there, similar to “imperative”. For example, a business memo might use emotive language like “It is essential that we achieve our KPIs for this quarter”, where the word carries more emphasis than the more neutral “necessary”. That linguistic register would be inappropriate for laws.</p>\n<p>The GDPR and ePrivacy directive do use the word “essential”, but the GDPR only uses it in the recitals (which <em>argue</em> why the law is necessary), and the ePrivacy Directive uses it in the sense of “relating to core aspects”. The GDPR also uses the word “essence” in three articles, where it is used in the “central aspects” sense. For example Art 23 GDPR contains both relevant words which perhaps highlights their not-quite-interchangeability:</p>\n<blockquote>\n<p>Union or Member State law […] may restrict [data subject rights], when such a restriction respects the <strong>essence</strong> of the fundamental rights and freedoms and is a <strong>necessary</strong> and proportionate measure in a democratic society […]</p>\n</blockquote>\n<p>Of course, the phrase “necessary in a democratic society” is borrowed from the ECHR and has <em>substantial</em> amounts of case law around it.</p>\n",
"score": 2
},
{
"answer_id": 89680,
"body": "<p><sup>Since the meaning given to the word "necessary" seems apparent in the material you quoted, I first thought you might be looking for examples, but you have criticized amon's answer for merely providing examples. So, I now understand you to be asking a question that appears to be actually answered in the material you quoted.</sup></p>\n<p>You quote:</p>\n<blockquote>\n<p>Many of the lawful bases for processing depend on the processing being “necessary”. This does not mean that processing has to be absolutely essential. However, it must be more than just useful, and more than just standard practice. It must be a targeted and proportionate way of achieving a specific purpose. The lawful basis will not apply if you can reasonably achieve the purpose by some other less intrusive means, or by processing less data.</p>\n</blockquote>\n<ul>\n<li>This makes it clear that "necessary" <em>does not</em> mean "essential" in this context.</li>\n<li>Necessary falls somewhere between "just useful"/"standard practice" and "essential".</li>\n<li>For a use to be "necessary" it must have a specific purpose and be a "targetted and proportionate way" of achieving that purpose.</li>\n<li>If that purpose was "reasonably" achievable by "less intrusive means" then the use of the cookie would not be considered necessary.</li>\n</ul>\n<p>I agree with amon that the latter concepts (of proportionality, targetting, consideration of less intrusive means) are borrowed from international human rights norms and there is a large body of jurisprudence applying this kind of balancing.</p>\n",
"score": 1
},
{
"answer_id": 89699,
"body": "<h2><a href=\"https://www.gdprsummary.com/necessary-under-the-gdpr/\" rel=\"nofollow noreferrer\">Necessary</a> is legally broader than essential</h2>\n<p>Something is essential if the process will simply not work without it; something is necessary if, without it, the process becomes inefficient, uncommercial or overly complex.</p>\n<p>So, for example, it is necessary for an online sales of physical products to collect your address (personal information) in order to deliver the goods to you. It is not essential because they could instead have a huge network of collection centres where customers could collect the goods - just like a bricks and mortar retailer. Both that is inefficient, uncommercial and overly complex.</p>\n<p>While it’s necessary to have the address for the delivery it’s not necessary to keep it indefinitely. Once the delivery has been made and for a reasonable period after that to allow to correct delivery errors, the address should be deleted unless consent has been given to keep it for the next delivery.</p>\n",
"score": 1
}
] |
[
"gdpr",
"legal-terms"
] |
In US courts has a strong alibi ever been excluded based only on untimely notice?
| 3 |
https://law.stackexchange.com/questions/89696/in-us-courts-has-a-strong-alibi-ever-been-excluded-based-only-on-untimely-notice
|
CC BY-SA 4.0
|
<p>There is a question <a href="https://law.stackexchange.com/questions/58778/can-i-surprise-the-prosecution-with-an-alibi-defense-at-trial">Can I surprise the prosecution with an alibi defense at trial?</a> which asks a similar thing and the answer there seems to be yes, but the evidence presented seems to me to be inconclusive at best. Since it only implies that the notice of alibi requirement is constitutional, but the notice only says the court MAY exclude the alibi if it has not been disclosed.</p>
<p>The goal of the statue as read seems to be more expediency and efficiency of proceedings though and the argument being that alibis can be easily falsified, here assuming that witnesses can be coerced/bought/or just sympathetic (mom in one case where this was raised) but there is evidence that is quiet hard to falsify such as public video recordings or witness testimony from large amounts of unrelated people.</p>
<p>Is it realistic that a court would exclude such testimony due to it not being disclosed timely?</p>
| 89,696 |
[
{
"answer_id": 89698,
"body": "<p>Yes, this happens with some regularity.</p>\n<p>In the absence of timely notice, courts should generally permit the alibi testimony, assuming that prosecution will not be surprised or prejudiced by the late notice and that the lack of notice was not the result of bad faith.</p>\n<p>But when that's not the case, courts can and definitely do exclude alibi testimony:</p>\n<ul>\n<li><p><a href=\"https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2003/2003-Ohio-6536.pdf\" rel=\"nofollow noreferrer\"><em>State v. Reed</em>, 155 Ohio App.3d 435 (2003)</a> ("The record demonstrates that the prosecution was unaware of Reed’s alibi, and it had no opportunity to investigate the claim. Thus, the state would have been prejudiced by Reed’s unanticipated alibi testimony, and Reed has made no showing of excusable neglect or good cause for his delay in providing notice. In light of Manns’s failure to appear at trial and Reed’s last-minute change in trial strategy, we cannot say that the trial court abused its discretion by excluding the alibi evidence."</p>\n</li>\n<li><p><a href=\"https://casetext.com/case/us-v-davis-608\" rel=\"nofollow noreferrer\"><em>United States v. Davis</em>, 40 F.3d 1069, 1076 (10th Cir. 1994)</a> ("The better practice is generally to hear an alibi witness. However, the district court maintains discretion in such matters, and it was not an abuse of discretion to exclude the testimony in this case.")</p>\n</li>\n<li><p><em>People v. Grant</em>, C050172, 2006 Cal. App. Unpub. LEXIS 3356 (Apr. 25, 2006)</p>\n</li>\n</ul>\n<p>Assuming the government is subject to reciprocal discovery obligations, a defendant's due-process rights do not preclude the exclusion of alibi witnesses as a sanction for failing to give timely notice. <a href=\"https://casetext.com/case/wardius-v-oregon\" rel=\"nofollow noreferrer\"><em>Wardius v. Oregon</em>, 412 U.S. 470 (1973)</a> ("The Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants.").</p>\n",
"score": 4
}
] |
[
"united-states",
"criminal-law"
] |
Can I surprise the prosecution with an alibi defense at trial?
| 11 |
https://law.stackexchange.com/questions/58778/can-i-surprise-the-prosecution-with-an-alibi-defense-at-trial
|
CC BY-SA 4.0
|
<p>Let's say I've been accused of a murder. Throughout the investigation I've plead the Fifth as to where I was when the crime happened. Eventually I'm put on trial, still pleading the fifth as to my whereabouts during the crime.</p>
<p>Then, when put on the stand during the trial, I finally tell the court, and jurors, that I had an airtight alibi the entire time and have just refused to share it until now. Let's say the alibi could result in some trivial criminal charges being filed, like loitering, so I do have the right to claim I had reason to fear bearing witness to myself.</p>
<p>I'm wondering what would happen at this point. The prosecution wouldn't have had a chance to prepare for this revelation, but they can't say that I or my lawyer acted wrongly if I only now decided to testify. Would this be cause for a mistrial?</p>
<p>Would it matter if this was a legal strategy? For instance what if I tell my lawyer "I don't want to reveal my alibi unless you think there is a greater then 50% chance the jury will find me guilty." Can my lawyer continue as normal, knowing I may surprise the defense if I deem the odds of going to jail too high, or is he in a position where he has to say something once he knows I'm intentionally withholding information to surprise the prosecution?</p>
<p>As to why anyone would do this, I can think of two reasons. 1) I know who did it and was willing to take the chances at court to protect the real person until it became clear I'll likely lose, 2) I did the crime, but the prosecution has the theory of the crime all wrong, and so I'm intentionally looking to undermine the prosecution by surprising them with an alibi in hopes of convincing the jury that the prosecution didn't do their 'homework' and thus I'm innocent.</p>
| 58,778 |
[
{
"answer_id": 58829,
"body": "<h2>No</h2>\n<p>Federal law and most states have an <a href=\"https://definitions.uslegal.com/n/notice-of-alibi-rule/\" rel=\"noreferrer\">notice of alibi</a> rule that requires a defendant to identify witnesses who will testify as to their alibi and where the defendant claims to have been.</p>\n<p>The validity of these rules was upheld by the Supreme Court in <a href=\"https://en.wikipedia.org/wiki/Williams_v._Florida\" rel=\"noreferrer\">Williams v Florida</a>:</p>\n<blockquote>\n<p>The Fifth Amendment would not be violated if, after the alibi witness had given evidence, the court granted a continuance to allow the prosecution to seek rebuttal evidence (this point was conceded by Williams's lawyers). Consequently, all the notice-of-alibi law did was allow the prosecution to do so before the trial, instead of having to interrupt the trial. It did not provide the prosecution with more information to use against a defendant than they would eventually get in any event.</p>\n</blockquote>\n",
"score": 12
},
{
"answer_id": 89678,
"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=\"canada-container\">canada</a></p>\n<p>An accused should give <strong>timely and adequate disclosure</strong> of their intended alibi defence to the Crown. This means it should be given "in sufficient time to permit the authorities to investigate" and that it should be given "with sufficient particularity to enable the authorities to meaningfully investigate." <em>R. v. Cleghorn</em>, [1995] 3 S.C.R. 175 <a href=\"https://canlii.ca/t/1frgw#par3\" rel=\"nofollow noreferrer\">at para 3</a>.</p>\n<p>"[T]he consequence of failure to disclose properly an alibi is that the trier of fact may draw an <strong>adverse inference</strong> when weighing the alibi evidence heard at trial. However, <strong>improper disclosure can only weaken alibi evidence; it cannot exclude the alibi</strong>." <em>Cleghorn</em> at para 4. The jury should be instructed that "failure to make timely and sufficient disclosure of the alibi is a factor the jury may consider in assessing the weight to be assigned to the alibi." <em>R. v. Tomlinson</em>, 2014 ONCA 158 at <a href=\"https://canlii.ca/t/g51wx#par122\" rel=\"nofollow noreferrer\">para 122</a>.</p>\n<p>The rationale is based on expediency and "the relative ease with which an alibi defence can be fabricated." <em>R. v. Noble</em>, [1997] 1 S.C.R. 874 at <a href=\"https://canlii.ca/t/1fr3b#par111\" rel=\"nofollow noreferrer\">para. 111</a>.</p>\n",
"score": 2
}
] |
[
"united-states",
"criminal-law",
"trial",
"fifth-amendment"
] |
cross border contract
| 1 |
https://law.stackexchange.com/questions/89689/cross-border-contract
|
CC BY-SA 4.0
|
<p>If two entities from different countries A, B sign a contract, does the contract follow:</p>
<ol>
<li>law of the country, where the contract is signed</li>
<li>law of a country of choice from A and B</li>
<li>international contract law</li>
</ol>
<p>?</p>
<p>Thank you.</p>
| 89,689 |
[
{
"answer_id": 89694,
"body": "<p>The question you have posed is called a "<a href=\"https://en.wikipedia.org/wiki/Choice_of_law\" rel=\"nofollow noreferrer\">choice of law</a>" question. All three of the possibilities that you suggest (and more) are the right answer in some circumstances.</p>\n<p><strong>Choice of law by agreement</strong></p>\n<p>Unless the choice of law for some reason violates public policy (e.g. because the law of country A does not make something illegal, but the law of country B where the contract is to be performed does make something illegal) a <a href=\"https://en.wikipedia.org/wiki/Choice_of_law_clause\" rel=\"nofollow noreferrer\">choice of law made within a clause an international contract</a> that has any connection to the parties or the contract will be honored (which is your possibility number 2).</p>\n<p><strong>General choice of law rules when there isn't a contractual choice of law</strong></p>\n<p>Before you have a contract, the issues of contract formation, and other contract law issues to the extent that there is no choice of law clause in the contract that does not violate public policy, could be governed by the law of the place where the contract is signed, by the law of A or B since they are parties to the contract, or, for example, by the law of the place where the contract is to be performed.</p>\n<p>The leading choice of law rule in the United States in these circumstances is to apply the law of the one of those options with the most significant relationship to the contract, which is a test that is just as fuzzy and indeterminate and open to case by case interpretation as it seems.</p>\n<p>Also, there isn't necessarily only one set of laws that will apply to the contract. The legal term for applying different laws to different issues that arise in the same legal case is called <a href=\"https://en.wikipedia.org/wiki/D%C3%A9pe%C3%A7age\" rel=\"nofollow noreferrer\">dépeçage</a>.</p>\n<p>For example, the law of the place where the contract is signed might govern the issue of contract formation, while the law of the place where the contract is to be performed might govern performance of the contract.</p>\n<p>Consumer protection laws are often applied to contracts with consumers based upon the place where the consumer is domiciled or is located when the contract is entered into by the parties.</p>\n<p>It isn't unusual for a contract to be subject to the law of more than one place on issues other than issues of contract formation, and other than on issues of contract interpretation. But, any given legal issue related to a contract is ordinarily subject to only a single jurisdictions laws (unless it is a public policy regulation).</p>\n<p>Unless anyone argues in court that the law from another place should apply to an issue and that law is different from the legal rule in the place where the court is located, in a court case, a court will apply the law of the place where the court is located (called the "law of the forum."</p>\n<p><strong>Exceptions to the general rule</strong></p>\n<p>There are some international treaties which create exceptions to the general rule and instead provide that a contract will be governed by law established in an international treaty (which is your possibility three). There are at least two such treaties to which the United States is a party which are notable and come up with some frequency.</p>\n<p>One of them is the CISG, which is the <a href=\"https://uncitral.un.org/en/texts/salegoods\" rel=\"nofollow noreferrer\">Convention on the International Sale of Goods</a> that governs international contracts for the sale of goods that are not expressly excepted from the treaty (mostly business to business sales of goods), when both the seller and the buyer are associated with a country that is a party to the treaty.</p>\n<p>Another is the <a href=\"https://player.siriusxm.com/#/main\" rel=\"nofollow noreferrer\">New York Convention</a> a.k.a. the "Convention on the Recognition and Enforcement of Foreign Arbitral Awards" a.k.a. the "New York Arbitration Convention" which governs governs contracts with arbitration clauses in them that involve parties from different countries that are both parties to the Convention.</p>\n<p>In addition to these treaty provisions, some international contracts are governed in the United States by <a href=\"https://en.wikipedia.org/wiki/Admiralty_law\" rel=\"nofollow noreferrer\">admiralty law</a>, rather than by the federal and state laws that would otherwise apply to these contracts. Obviously, the affected contracts are contracts with a maritime dimension, either in international waters or in the "navigable waters of the United States."</p>\n<p>I am certain that this list of exceptions governed by special laws is not complete (e.g. certain international treaties apply to contracts involving international airline travel), but the question doesn't identify anything about the contracts that make them stand out.</p>\n",
"score": 1
},
{
"answer_id": 89693,
"body": "<p>Very often in internation contracts there will be a choice of law clause, which will specifically address this issue.</p>\n<p>If no choice of law clause is part of the contract (very unlikely) then it seems according to at least some sources in this case <a href=\"https://www.trans-lex.org/971000/_/law-applicable-to-international-contracts/\" rel=\"nofollow noreferrer\">https://www.trans-lex.org/971000/_/law-applicable-to-international-contracts/</a></p>\n<blockquote>\n<p>(a) A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to only part of the contract. The parties may at any time agree to subject the contract to a law other than that which previously governed it.</p>\n</blockquote>\n<blockquote>\n<p>(b) Absent a choice of law by the parties, a contract is governed by the law with which the contract is most closely connected ("centre of gravity test"; "engster Zusammenhang"; "liens les plus étroits").</p>\n</blockquote>\n<blockquote>\n<p>(c) Contracts are most closely connected with the law of the country where the party required to effect the characteristic performance has its habitual residence, seat or place of business.</p>\n</blockquote>\n<blockquote>\n<p>(d) Where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with a country other than that indicated in paragraphs (b) or (c), the law of that other country shall apply.</p>\n</blockquote>\n<blockquote>\n<p>(e) The law applicable to a contract by virtue of this Principle shall govern in particular:</p>\n</blockquote>\n<blockquote>\n<p>i) interpretation;</p>\n</blockquote>\n<blockquote>\n<p>ii) performance;</p>\n</blockquote>\n<blockquote>\n<p>iii) the consequences of a total or partial breach of obligations, including the assessment of damages in so far as it is governed by rules of law;</p>\n</blockquote>\n<blockquote>\n<p>iv) the various ways of extinguishing obligations, and prescription and limitation of actions;</p>\n</blockquote>\n<blockquote>\n<p>v) the consequences of nullity of the contract.</p>\n</blockquote>\n",
"score": 0
}
] |
[
"contract-law",
"international",
"choice-of-law"
] |
Can previous crimes that one was found "not guilty" of be used against them?
| 3 |
https://law.stackexchange.com/questions/89652/can-previous-crimes-that-one-was-found-not-guilty-of-be-used-against-them
|
CC BY-SA 4.0
|
<p>Carl the criminal robs a store as his first crime. Somehow, he is found <strong>not guilty</strong> of this (the 12 jurors do not unanimously agree on his guilt). After walking free, he immediately goes back to the same store, and is caught again as a suspect from committing the same exact crime.</p>
<p>Double Jeopardy says you can't simply be tried over the same exact instance of a crime. Still, my 2 main questions are</p>
<ol>
<li>Even though Carl was found "not guilty" the first time, can that first case be used as evidence against him for the current second case?</li>
<li>If Carl is found guilty for this second case, can the sentence be extended to include consequences from the first case (which it is probably obvious now he should've been found guilty for).</li>
</ol>
<p>Or does Double Jeopardy protect Carl from having that first case used against him in any way?</p>
<p>This is just one simple example. In a more extreme case, consider a murder. Carl was found "not guilty" of murdering Mary, but was found trying to murder the rest of Mary's family the next day.</p>
<p>P.S.: the impetus for this question is inspired by Yakuza Judgement. In it, a character refuses to defend themselves from a crime they're accused of, because they don't want to admit to another crime they committed.</p>
| 89,652 |
[
{
"answer_id": 89653,
"body": "<p>What you are describing is closely related to "acquitted conduct sentencing".</p>\n<p>On the first point, "Carl's" previous acquittal cannot be considered <em>evidence</em> that he committed a later crime; the subsequent crime must be tried on its own merits, in isolation.</p>\n<p>However, for your second question, once convicted of that crime, his previous acquittal (rather surprisingly) <em><strong>can</strong></em> be taken into account during his sentencing.<br></p>\n<p>Many legal minds have found the practice of "acquitted conduct sentencing" extremely troubling, and there are hopes the US Supreme Court could prohibit the practice in the near future. But for the moment, it is still an allowed practice.</p>\n<p><a href=\"https://news.bloomberglaw.com/us-law-week/us-supreme-court-should-tackle-acquitted-conduct-sentencing\" rel=\"nofollow noreferrer\">Summary article here</a></p>\n<blockquote>\n<p>"This practice allows judges to use conduct a defendant was acquitted\nof by a jury to increase a defendant’s sentence or punishment for a\nseparate crime. This tool essentially allows judges to veto a jury’s\ndecision when they merely disagreed with their conclusion."</p>\n</blockquote>\n<p><a href=\"https://americansforprosperity.org/acquitted-conduct-sentencing-cases/\" rel=\"nofollow noreferrer\">Another good article on the topic</a></p>\n<blockquote>\n<p>Of the seven charges, [he] was convicted on two. Under federal advisory sentencing guidelines, the two convictions generally warranted a sentence of 24 to 30 months in prison.<p> The district court, however, calculated a range of 87 to 108 months, based on the charges on which [he] had been acquitted. [he] was then sentenced to 84 months (seven years) in prison.<p> [He] was indicted on seven charges, convicted of two, and acquitted of five. But his sentence was exactly the same as it would have been had he been convicted by the jury of all seven charges — and three times as high as it would have been had the judge considered only the two charges of which the jury convicted [him].”</p>\n</blockquote>\n",
"score": 8
}
] |
[
"united-states",
"criminal-law",
"sentencing",
"double-jeopardy",
"acquittal"
] |
Can one commit a crime to prevent a crime based on past history, without a proof of intention for future events?
| -7 |
https://law.stackexchange.com/questions/89682/can-one-commit-a-crime-to-prevent-a-crime-based-on-past-history-without-a-proof
|
CC BY-SA 4.0
|
<p>In a hypothetical scenario, everytime in the past, when Mr. Peter went from city A to a city B on a road C, his car got stolen about in the middle of the road C. It happened say 100 times. There are only options roads C and D and to use a road D one has to steal a car. There are no indications of anyone having an intention to steal his car on the road C, there is only the 100 cases in which such a robbery took place everytime he went on the road C. Can Mr. Peter steal a car to use a different road D to get from A to B, in order to prevent another car theft on the road C from happening? Thank you.</p>
| 89,682 |
[
{
"answer_id": 89684,
"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=\"canada-container\">canada</a></p>\n<p>The closest possible defence in Canadian law would be the defence of necessity. But for this defence to be available, "the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable." There must also be "no reasonable legal alternative" to avoid the imminent peril. See generally, <em>Perka v. The Queen</em>, <a href=\"https://canlii.ca/t/1lpfj\" rel=\"nofollow noreferrer\">[1984] 2 S.C.R. 232</a>.</p>\n<p>The scenario you describe lacks imminent peril. There are also reasonable legal alternatives.</p>\n",
"score": 2
},
{
"answer_id": 89691,
"body": "<p>No.</p>\n<p>If you steal a car you are not preventing a crime, you are committing a crime.</p>\n<p>You are merely switching roles: You are now the perpetrator, and someone else is the victim.</p>\n",
"score": 1
}
] |
[
"criminal-law"
] |
The Prevention of Corruption Act in India
| 0 |
https://law.stackexchange.com/questions/89421/the-prevention-of-corruption-act-in-india
|
CC BY-SA 4.0
|
<p>The section 7A of the <a href="https://www.indiacode.nic.in/handle/123456789/1558?sam_handle=123456789/1362" rel="nofollow noreferrer">Prevention of Corruption Act</a> in India states:</p>
<blockquote>
<p>Taking undue advantage to influence public servant by corrupt or
illegal means or by exercise of personal influence.</p>
<p>Whoever accepts or obtains or attempts to obtain from another person
for himself or for any other person any undue advantage as a motive or
reward to induce a public servant, by corrupt or illegal means or by
exercise of his personal influence to perform or to cause performance
of a public duty improperly or dishonestly or to forbear or to cause
to forbear such public duty by such public servant or by another
public servant, shall be punishable with imprisonment for a term which
shall not be less than three years but which may extend to seven years
and shall also be liable to fine.</p>
</blockquote>
<p>Undue advantage means illegal compensation in this Act. This law is related to non-public servant middlemen who take money from people as a reward for causing corruption.</p>
<p>Hypothetically, under this definition, could a person extracting or extorting money after the act has been done be liable under this code?</p>
<p>For example, someone promises to give that person undue advantage if they cause corruption. If X causes a public servant to perform a duty in corrupt ways for Y but Y doesn't compensate X for causing the public servant to do that, so X extorts money from Y, would X be liable under Section 7A?</p>
<p>Keep in mind that this is a special law, and in general, courts interpret a law to give it the full intent of the drafters.</p>
| 89,421 |
[
{
"answer_id": 89429,
"body": "<p>Based on the language of Section 7A of the Prevention of Corruption Act of India, it appears that the focus is on the act of inducing a public servant to perform a public duty improperly or dishonestly through corrupt or illegal means, with the motive of obtaining an undue advantage. The section does not explicitly mention the extraction or extortion of money after the act has been done.</p>\n<p>However, it is possible that the act of extorting money from Y by X after causing the public servant to perform a duty improperly or dishonestly could be considered as an attempt to obtain an undue advantage by X through illegal means. The court's interpretation of the section will depend on the facts and circumstances of the case, and the intent of the drafters of the law.</p>\n<p>It is important to note that the Prevention of Corruption Act is a special law that is intended to combat corruption and ensure the integrity of public servants. Therefore, the court is likely to interpret the law in a manner that upholds its objectives and prevents abuse of power. If the court finds that X's actions fall under the scope of Section 7A, then X could be held liable for the offense and face imprisonment and fine.</p>\n",
"score": 1
},
{
"answer_id": 89672,
"body": "<p>It sounds like X is guilty of violating the Prevention of Corruption Act, whether or not there is extortion for the personal benefit of X. Nothing in the act suggests that you have to benefit yourself from the corruption, you can do it for the benefit of another with or without their cooperation. This is because the act apples to:</p>\n<blockquote>\n<p>Whoever accepts or obtains or attempts to obtain from another person\nfor himself <em>or for any other person</em> . . .</p>\n</blockquote>\n<p>X is also guilty of extortion of Y under other law. But, the extortion has nothing to do with X being or not being guilty under the Prevention of Corruption Act.</p>\n<p>It doesn't appear that Y has done anything wrong.</p>\n",
"score": 1
}
] |
[
"criminal-law",
"india",
"indian-penal-code",
"bribery",
"statutory-construction"
] |
Is it illegal to not disclose pay for a freelancer?
| -4 |
https://law.stackexchange.com/questions/89681/is-it-illegal-to-not-disclose-pay-for-a-freelancer
|
CC BY-SA 4.0
|
<p>Let's say I am running a platform for freelancers to find work - a bit like Upwork or Freelancer.</p>
<p>Each worker is assigned a job and only the client and website admins know the price - but not the actual person doing the job - the freelancer.</p>
<p>I think it is illegal to not disclose the pay for each job they do but I'm not exactly sure.</p>
<p>Can you provide references?</p>
| 89,681 |
[
{
"answer_id": 89686,
"body": "<p>Every contract requires there to be "consideration", which means each party is obliged to offer something valuable in exchange for whatever valuable thing the other party is to provide. In the simplest case, that would be money in exchange for labor. Often, providers do not disclose in advance what the cost to the customer will be. They may give some clues such as "we charge $100 per hour, depending on the complexity of the job", but often and especially with medical services contracts you have a relatively open-ended obligation to pay for their services. When the contract isn't explicit about the required payment, the courts will limit the charges to whatever is reasonable. That varies, depending on whether the service is lawn-mowing vs. contract-drafting.</p>\n<p>A contract is not invalidated if a party is imprecise about the compensation that they are offering. Instead, the court would reason that Mr. Fogarty, being a sensible person, would not agree to pay the kid down the block $1,000 for mowing his lawn. There might be a consumer-protection law in the particular state that requires service contracts to disclose minute details about contracts, but in this case this is not a consumer contract (unless in that state the legislature has deemed Task Rabbit type workers to be "consumers"). So it could easily be legal.</p>\n<p>However, your question seems to be about what is legal for the website, not the parties to the contract. This website simply connects potential parties to a separate contract. Actually, in ever job that I have held, the compensation was not specified in the advertisement, it was a matter settled between me <em>qua</em> service-provider and the employer. Sometimes advertisements hint at pay range, usually that info comes later, and it is completely legal to offer to treat with no hint what the compensation is.</p>\n",
"score": 0
}
] |
[
"united-states",
"payment",
"freelance"
] |
What is the scope of Indian Penal Code section 354?
| 2 |
https://law.stackexchange.com/questions/89677/what-is-the-scope-of-indian-penal-code-section-354
|
CC BY-SA 4.0
|
<p>The Indian Penal Code (IPC) section 354 criminalises criminal force or assault with the intent to outrage a woman's modesty. What does this cover? Is this broad? And does it apply equally in all contexts?</p>
| 89,677 |
[
{
"answer_id": 89685,
"body": "<p>"Modesty" is not defined within the <a href=\"https://www.indiacode.nic.in/handle/123456789/2263view_type=search&sam_handle=123456789/1362\" rel=\"nofollow noreferrer\">Indian Penal Code</a> (IPC), but the Supreme Court of India's judgement in <a href=\"https://indiankanoon.org/doc/1308370/\" rel=\"nofollow noreferrer\">Ramkripal S/O Shyamlal Charmakar vs State Of Madhya Pradesh on 19 March, 2007</a> concluded that:</p>\n<blockquote>\n<p>...The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows:</p>\n<blockquote>\n<p>"Decorous in manner and conduct;</p>\n<p>not forward or lower; Shame-fast;</p>\n<p>Scrupulously chast."</p>\n</blockquote>\n<p>Modesty is defined as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.</p>\n</blockquote>\n<p>As an aid to show what activities may be covered by the IPC offence, the Singapore Penal Code 1871, at <a href=\"https://sso.agc.gov.sg/Act/PC1871?ProvIds=pr354-\" rel=\"nofollow noreferrer\">section 354</a>, mirrors the IPC word-for-word (apart from the prison sentence), and the Singaporean courts have held the following acts to be an outrage of modesty in the past:</p>\n<blockquote>\n<ul>\n<li><p>A male offender repeatedly touched the thigh of a sleeping woman on an MRT train.</p>\n</li>\n<li><p>A man rubbed his thigh against a young tutor several times on a bus.</p>\n</li>\n<li><p>Groping a domestic maid in a lift.</p>\n</li>\n<li><p>Touching the buttocks of a 60-year-old woman on a bus.</p>\n</li>\n<li><p>A male exposed himself to a domestic helper.</p>\n</li>\n<li><p>A tutor touching the breasts of a student.</p>\n</li>\n<li><p>Slapping a secretary lightly on the buttocks.</p>\n</li>\n<li><p>Massaging a man’s groin area without his consent.</p>\n</li>\n</ul>\n<p><a href=\"https://pkwalaw.com/outrage-of-modesty/#:%7E:text=Examples%20of%20outrage%20of%20modesty&text=The%20courts%20have%20held%20the,domestic%20maid%20in%20a%20lift.\" rel=\"nofollow noreferrer\">Source</a></p>\n</blockquote>\n",
"score": 2
}
] |
[
"legal-terms",
"india",
"definition",
"interpretation",
"indian-penal-code"
] |
Why did Christopher Tran warn Judge Kelly about the Minister for Immigration's power to cancel Djokovic's visa?
| 7 |
https://law.stackexchange.com/questions/77060/why-did-christopher-tran-warn-judge-kelly-about-the-minister-for-immigrations-p
|
CC BY-SA 4.0
|
<p>I find this detail in the recent Novak Djokovic's Australian visa saga quite interesting.</p>
<p>On Monday, 10 January 2022, when <a href="https://www.independent.co.uk/sport/tennis/novak-djokovic-banned-australia-visa-b1989779.html" rel="nofollow noreferrer">Judge Kelly delivered his decision to reinstate Djokovic's visa</a>, Christopher Tran (the lawyer acting for the government) told the judge that the Minister for Immigration is now contemplating using his "personal power of cancellation" (which is exactly what happened days later and was sustained by the Federal Court on 16 January 2022).</p>
<p>So, when Mr Tran said that to Judge Kelly, the judge <strong>thanked him for the warning</strong>, adding: "I could have been something approaching incandescent if I had discovered that for the first time... this evening or the early hours of tomorrow."</p>
<p>Why did Mr Tran warn the judge? Was that an attempt to make the judge change his mind and think again, like "look man, why bother reinstating the visa if it will [possibly/probably/likely/definitely] be cancelled anyway"?</p>
<p>Is that what should be read between the lines?</p>
<p>If so, how does it sit with lawyer/courtroom ethics and the expectation of judicial independence? Mr Tran would have known that Judge Kelly was supposed to make decisions independently on the merits of the case — not taking into account what the exec branch of the government might then do. Does what Mr Tran said to the judge demonstrate that he in fact did not necessarily expect the judge to be entirely independent, but expected him to possibly be prone to make decisions taking into account the politics and what the government might do?</p>
<p>Was that the exec branch attempt to bully the judicial branch?</p>
| 77,060 |
[
{
"answer_id": 77062,
"body": "<p>Video of that portion of the hearing can be found <a href=\"https://www.youtube.com/watch?v=FfYEp1PUSt4\" rel=\"nofollow noreferrer\">on the court's YouTube channel</a>.</p>\n<p>It doesn't seem like anything nefarious. My interpretation is that Mr. Tran is just giving Judge Kelly this information because, if the Minister for Immigration does cancel the visa, Djokovic will probably challenge that decision as well, meaning more court proceedings and more work for Judge Kelly. So Judge Kelly appreciates knowing about this in advance, so that he and the court staff can immediately start getting ready to handle that case, and plan their schedules accordingly.</p>\n<p>This is based on some further context in the video, around 12:00. Judge Kelly says (with some editing on my part):</p>\n<blockquote>\n<p>It would be extraordinarily difficult for anyone else to get up to speed if there is to be another <a href=\"https://staging.hcourt.gov.au/assets/publications/judgments/1962/055--TAIT_v._THE_QUEEN--(1962)_108_CLR_620.html\" rel=\"nofollow noreferrer\"><em>Tait v. Queen</em></a> [[1962] HCA 57] type application. So I expect to be fully informed in advance if I am required to continue to be available for any further [unclear] proceeding that is to be sought. [...] Now if I am to be called on short notice to deal with another interim injunction [...] this court is fully entitled to be informed, in the way that you have quite properly done this afternoon and for which I am grateful. Is that clear, Mr. Tran?</p>\n</blockquote>\n<p>Also note that Mr. Tran prefaced his remark (around 6:15) with "to avoid any unintended discourtesy to Your Honor and court staff -- I wouldn't want Your Honor and court staff to hear this through any other means." This fits more with the idea that he's informing the judge just so that he knows what's coming. Mr. Tran knows that this will be an inconvenience for Judge Kelly and he wants to minimize it by making sure he has as much advance notice as possible.</p>\n<p>Finally, note that Mr. Tran's statement about the probable visa cancellation comes immediately <strong>after</strong> Judge Kelly had just pronounced his order (2:10-6:10), ordering that the visa revocation be quashed and that Djokovic be released, and ending the proceedings in the case currently at hand. I'm not even sure whether the judge could unilaterally change his mind at that point. But if Mr. Tran had wanted to influence Judge Kelly's decision, you'd think he would have said something much earlier. Waiting until after the decision was announced seems much more like he is trying to <em>avoid</em> even any appearance of trying to influence the decision.</p>\n",
"score": 23
}
] |
[
"australia",
"rules-of-court",
"lawyer",
"court",
"professional-ethics"
] |
If Defendant agrees to settle, can the Plaintiff still be awarded legal fees?
| 0 |
https://law.stackexchange.com/questions/74801/if-defendant-agrees-to-settle-can-the-plaintiff-still-be-awarded-legal-fees
|
CC BY-SA 4.0
|
<p>Say Defendant owes Plaintiff money. It's a relatively simple case, such as Plaintiff did work but Defendant isn't paying Plaintiff. Plaintiff files an action in small claims, and Defendant finally caves in and pays up. Can Plaintiff still sue, be awarded reimbursement for (some) legal fees, such as the cost of filing the claim?</p>
<p>For example, in the hearing, if Plaintiff and Defendant agree that the initial dispute has been settled, can Plaintiff still demand Defendant pays legal fees?</p>
| 74,801 |
[
{
"answer_id": 74826,
"body": "<h2>Yes</h2>\n<p>Party A broke the contract and therefore Party B is entitled to damages that would put them in the same position as though the breach never happened (as far as possible).</p>\n<p>So if Party B has incurred legal fees, court costs, interest charges (which are usually set by statute), Party A’s payment of the original sum has not remedied this.</p>\n<p>That said, for a small claims matter such amounts are usually too insignificant to worry about and/or may be beyond the jurisdiction of a small claims court to enforce. However, I have been in that exact situation in <a href=\"/questions/tagged/new-south-wales\" class=\"post-tag\" title=\"show questions tagged 'new-south-wales'\" rel=\"tag\">new-south-wales</a> and have refused to withdraw my statement of claim until the entire amount sued for was paid - I got paid.</p>\n",
"score": 0
},
{
"answer_id": 74827,
"body": "<p>I think that the questions confounds two things.</p>\n<blockquote>\n<p>Party B files an action in small claims and party A finally caves in\nand pays up. Can party B still sue/be award reimbursement for (some)\nlegal fees, such as the cost of filing the claim?</p>\n</blockquote>\n<p>In this case, it might be possible to get litigation costs and fees because the suit was necessary to compel compliance. This isn't a settlement, this is a partial satisfaction of a legal obligation.</p>\n<blockquote>\n<p>For example in the hearing if party A and B agree that the initial\ndispute has been settled, can party B still demand party A pays legal\nfees?</p>\n</blockquote>\n<p>Normally, a true settlement would include terms resolving legal fees and no further demand by either party would be allowed.</p>\n<p>For example, A and B disagreed over both the amount owed $3000 v. $5000 and the correct amount of legal fees and costs $500 v. $1500.</p>\n<p>A typical settlement might state that A agrees to pay B $4500 in full satisfaction of the obligations between them without delineating the breakdown between damages and fees and costs, quite possibly, with the two sides interpreting that sum differently for their own peace of mind. The settlement would release any obligation of any kind arising out of the dispute and the case would be dismissed with prejudice.</p>\n",
"score": 0
}
] |
[
"canada",
"small-claims-court",
"rules-of-court",
"british-columbia"
] |
How is the practice of non-publication of appeal-court opinions of states and the U.S. not in violation of the Fifth and Fourteenth Amendment?
| 2 |
https://law.stackexchange.com/questions/87563/how-is-the-practice-of-non-publication-of-appeal-court-opinions-of-states-and-th
|
CC BY-SA 4.0
|
<p>Defendant A is deemed not liable in a suit in light of the facts of the case, fact A, B and C for damages at appeals, but the opinion of the U.S. Court of Appeals for the N<sup>th</sup> Circuit is officially published not for publication. SCOTUS denies certification for certiorari.</p>
<p>Defendant B is sued after the opinion of N<sup>th</sup> Circuit published not for publication on the exclusive facts of the case: Face A, B and C, and Defendant, in due course of the disposition of justice, is deemed liable at the U.S. District Court Subordinate to the N<sup>th</sup> Circuit.</p>
<p>Defendant B, post-verdict, moves for setting aside the judgement, and attorney for Defendant B takes it on himself to disregard the rules of the court, and cites precedent of other defendants under the same circuit having been found not liable on same facts (along with citations to the Fifth and Fourteenth Amendments), attorney's motion denied, case is appealed to the N<sup>th</sup> Circuit.</p>
<p>Since the lawyer paid his non-punishment, lawyer presents the argument to the N<sup>th</sup> Circuit that the case should have been decided without regards to the person or persons of either or both parties in dispute, and justice be distributed on the facts of the case as it was in <em>Plaintiff A. v. Defendant A</em> , and his defendant the ruling be overturned, his defendant be declared not liable along with appealing the district courts non-punitive punishments. The N<sup>th</sup> Circuit affirms the judgements of the district court, certification for certiorari on questions about Fifth and Fourteenth Amendment violations denied.</p>
<p><strong>How was Defendant B's rights to the due process and the equal protection of law not violated under the Fifth and Fourteenth Amendments of the U.S. Constitution?</strong></p>
<hr />
<p><strong>Background</strong></p>
<p>The 9th Circuit accumulated 1000 opinions it published not for publication since September 3, 2022, and published just as much for publication 1 day short since 7 years ago, December 23, 2015, and the circuit courts are not an exception to the rule, courts of appeals of the several states publish its opinions in similar fashion.</p>
| 87,563 |
[
{
"answer_id": 87584,
"body": "<p>Based on the hypothetical scenario provided, it is possible that the practice of non-publication of appeal-court opinions by the U.S. Court of Appeals for the Nth Circuit or courts of appeals of any states could be seen as a violation of the Equal Protection and the Due Process Clauses of the Fourteenth and the Fifth Amendments to the U.S. Constitution.</p>\n<p>The Equal Protection Clause prohibits discrimination on the basis of race, ethnicity, and other protected characteristics by both levels of government. It has been established by a number of Supreme Court decisions, including <em>Bolling v. Sharpe</em>, 347 U.S. 497 (1954), that the Equal Protection Clause applies to the federal government equally as much as to the states.</p>\n<p>For example, in <em>Bolling v. Sharpe</em>, 347 U.S. 497 (1954), the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment applied to the federal government through the Due Process Clause of the Fifth Amendment. In reaching this conclusion, the Court stated the following in its opinion:</p>\n<blockquote>\n<p>In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We conclude that the Due Process Clause of the Fifth Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment, forbids the Federal Government to segregate public schools in the District of Columbia along racial lines.</p>\n</blockquote>\n<p>In the context of the hypothetical scenario, the non-publication of appeal-court opinions may be seen as creating the appearance of bias or inconsistency in the legal system, which, in turn, may be seen as a violation of the Equal Protection Clause. For example, if the facts of the case involving Defendant A and Defendant B are substantially identical, and Defendant A is found not liable while Defendant B is found liable, this could be seen as discrimination against Defendant B on the basis of some impermissible factor which, in such narrow cases where facts are substantially identical, may include not more than the mere identity of Defendant B not being the same of Defendant A.</p>\n<p>Similarly, the Due Process Clause of the Fifth Amendment guarantees that all individuals are entitled to due process of law, which includes the right to a fair and impartial hearing. In the context of the hypothetical scenario, the non-publication of appeal-court opinions may be seen as a violation of the Due Process Clause if it undermines the fairness and impartiality of the legal system.</p>\n<h2>The final arbiter of fact and law</h2>\n<p>It is important to note that although the U.S. Supreme Court is the ultimate arbiter of facts and law of a case, and generally there are no rehearings of matters already decided at its bar, that does not mean that a Supreme Court decision deeming or not deeming a matter constitutional is objectively so. It means that it is treated as such for <em>domestic purposes</em> of the judiciary. This means at least two things: A case of a Defendant C substantially identical to Defendant A's and B's cases may, potentially without avenue for legal recourse for Defendant B, be decided within or outside of the statute of limitations of Defendant B and be decided as Defendant A's case becoming binding law which may be viewed as moral relief. In such decision of the U.S. Supreme Court, there is an implicit acknowledgment that the decision against Defendant B would not have been constitutional and implicating the denial of the certification for certiorari and the Supreme Court on grounds of violations of the above constitutional rights of Defendant B.</p>\n",
"score": 1
}
] |
[
"united-states",
"appeal",
"case-law",
"legal-citation",
"9th-circuit"
] |
Why do courts reserve the verdicts for later?
| 2 |
https://law.stackexchange.com/questions/85290/why-do-courts-reserve-the-verdicts-for-later
|
CC BY-SA 4.0
|
<p>The courts of law (including the Supreme Court) in India often "reserve" the verdicts after hearing is completed.</p>
<p>What's the purpose behind this practice?</p>
| 85,290 |
[
{
"answer_id": 85292,
"body": "<p>Good decision-making may take some time.</p>\n<p>During the hearing the judges will hear/see what the parties say, and may:</p>\n<ol>\n<li>Come up with a decision and voice it right away; or</li>\n<li>Tentatively come up with a decision, but wish to deliberate/research it further to be sure; or</li>\n<li>Find it difficult to figure a decision. Extensive deliberations/research will be required.</li>\n</ol>\n<p>Those are the official reasons.</p>\n<p>In practice, <em>if</em> the court is not so independent or is corrupt, the judges may secretly consult whoever they see fit before reaching a decision (politicians, parties to the case who bribe them, and so on).</p>\n",
"score": 5
},
{
"answer_id": 85326,
"body": "<p>Appellate courts in particular often need to research the law and consider which precedents apply to the current case. The judges may need to discuss the proper decision among themselves. Then a decision needs to be written in many cases, and the wording again discussed among the judges of the court. All this can take considerable time.</p>\n<p>Courts of original jurisdiction, where trials and some hearings take place, may still need to research prior cases, and consider what the proper decision is in the current case.</p>\n",
"score": 2
}
] |
[
"india",
"court",
"judiciary"
] |
Received defective Rx. Pharmacy and manufacturer refuses to refund me
| 3 |
https://law.stackexchange.com/questions/36053/received-defective-rx-pharmacy-and-manufacturer-refuses-to-refund-me
|
CC BY-SA 4.0
|
<p>I need advice on how I can get a refund on a defective ~$186 Sam's Club prescription. They were not only ineffective, but I experienced withdrawal symptoms taking those.</p>
<p><strong>What legal recourse do I have?</strong> Obviously, the attorney's fee will cost more than the Rx. Here are the details...</p>
<p>Cutting the tablets in half, it was obvious that the previous tablets --that <em>were</em> effective-- looked different from the last Rx that was <em>not</em>. The tablets that were effective had a layer of dark gray on one side; the "dud" batch did not, but instead had an all-white interior. </p>
<p>As soon as I took the replacement non-time-release alternative Rx prescribed by my physician, I experienced relief from the withdrawal symptoms as well as my medical condition. The M.D. told me that I needed to contact the pharmacy. </p>
<p>Well, both the manager of the Sam's Club pharmacy in Springfield, MO and the lady I spoke with at the drug manufacturer have flatly stated (over the phone) that they will neither accept a return (or even samples for testing) nor refund the price we paid for these dud, ineffective tablets.
The lady at the manufacturer told me that they would file a manufacturing defect report to the FDA. That was all. </p>
<p>The pharmacy manager claimed that the tablets for the previous, effective Rx was from the same batch as the last, "dud" Rx refill.</p>
<p>What to do? I've already contacted a local TV news station that has excellent consumer-advocacy spots (<em>On Your Side</em> Contact KY3). However, it now seems clear to me that she is not going to televise this.</p>
| 36,053 |
[
{
"answer_id": 36365,
"body": "<p>I have little doubt that you are in the right. The Article 2 of the Uniform Commercial Code as adopted in MO would give you a legal right to a refund for breach of warranty from the pharmacy in this case.</p>\n<p>The hard part is proving it cost-effectively. This is not a type of dispute in which the prevailing party is entitled to attorneys' fees, although they would be entitled to "court costs" such as filing fees and process server fees if they prevailed. So, small claims court is the only cost effective forum that would be plausible (and it is possible that Sam's Club requires you to agree to an arbitration clause, I don't know as I don't shop there).</p>\n<p>The burden of proof is preponderance of the evidence, so a judge might simply believe your testimony and look at the respective pills. But, to really prove it definitively, you'd need an chemical test of the defective pills which would cost hundreds of dollars.</p>\n<p>While $189 is enough to be irritating, I'm not sure that it would be worth the half a dozen to dozen hours or so it would take to bring a small claims lawsuit. I'd probably write a letter to someone higher up in the company, stop doing business with them, and give them a bad online review and leave it at that in your shoes.</p>\n",
"score": 1
},
{
"answer_id": 51167,
"body": "<p>If you only want your money back since you did not suffer damages, you could sue them in small claims court. Before doing that make sure you sue the ones who made the error, our you would have to sue again and eat the court costs.</p>\n\n<ul>\n<li>Did your doctor prescribe the right drug?</li>\n<li>Did the pharmacy provide the what the doctor prescribed, but the drug was faulty?</li>\n<li>Did the pharmacy make a mistake and gave you the wrong drug?</li>\n</ul>\n\n<p>If you sue a large company it is likely that they will try to settle since it is cheaper than paying someone to appear in small claims court.</p>\n",
"score": 1
}
] |
[
"united-states",
"consumer-protection",
"medical",
"product-liability"
] |
Are attorneys discouraged/disallowed from having therapists?
| 3 |
https://law.stackexchange.com/questions/89594/are-attorneys-discouraged-disallowed-from-having-therapists
|
CC BY-SA 4.0
|
<p>Lawyers defend many genuine criminals who, after being freed, would go on to continue to commit terrible criminal acts. I would imagine that it is a profession that is extremely taxing on one's mental health.</p>
<p>That being said, I assume that Larry the lawyer, after successfully defending someone, can't just go to his therapist Theodore and blab "I feel like I just let a murderer go", no matter how important it is for Larry's mental health.</p>
<p>Mental health is important for all people in any profession. But are lawyers, who deal with some of the darkest parts of society, discouraged/dis-allowed from interacting with therapists? Even if Larry the lawyer tries to obfuscate the details (e.g. "I have a friend who just defended a murderer"), it's pretty clearly something that's bound to break attorney-client privilege. So I'm not sure what the answer might be.</p>
<p>Edit: upon further reflection, this question may be generalized to "borderline breaking NDA by opening up to your therapist". The therapist is obliged to keep things confidential, and their therapy can be considered a medical necessity just like a neurosurgeon's (depending on whom you ask). So I suppose the crux of the problem is whether opening up to a therapist (which can be a medical need) constitutes a breach of secrecy.</p>
| 89,594 |
[
{
"answer_id": 89608,
"body": "<blockquote>\n<p>I would imagine that it is a profession that is extremely taxing on\nones mental health.</p>\n</blockquote>\n<p>True.</p>\n<blockquote>\n<p>Lawyers defend many genuine criminals who, after being freed, would go\non to continue to commit terrible criminal acts.</p>\n</blockquote>\n<p>This is not a significant reason that the profession is taxing on mental health. Indeed, the pretty much complete consensus of the criminal defense bar is that providing a defense to people who are factually innocent of any crime is much more taxing on mental health than providing a defense to people who are factually guilty of some crime.</p>\n<p>You deeply misunderstand the nature of criminal defense work (which isn't uncommon), and in particular, the things about being a lawyer that make it stressful and that can cause mental distress.</p>\n<p>Day to day work as a criminal defense lawyer is psychologically, for the most part, more like being a car salesman who is constantly haggling over prices and making deals, day in and day out, than it is a major moral dilemma.</p>\n<blockquote>\n<p>That being said, I assume that Larry the lawyer, after successfully\ndefending someone, can't just go to his therapist Theodore and blab "I\nfeel like I just let a murderer go", no matter how important it is for\nLarry's mental health.</p>\n</blockquote>\n<p>Without addressing the issue of whether privileges material can be revealed to someone who is subject to another privilege (which is a tricky legal issue to analyze),it is entirely possible to engage in fruitful psychotherapy without revealing attorney-client privileged material. In part, this is because the things that you think that lawyers find to be the source of their mental health worries aren't what actually is the source of those worries.</p>\n<p>One thing that is desirable, however, about practicing in a law firm rather than as a sole practitioner without associate attorneys or staff, is that it does provide someone with whom you can readily and on a daily basis discuss attorney-client privileged matters related to your work. This isn't mostly a mental health thing <em>per se</em>. It isn't that you provide psychotherapy to your colleagues. But, some people process the details of their work life better when they can talk through it with a fellow professional and the process of reaffirming and challenging your own professional judgments. This can bring you a general mental clarity about your work that helps to overcome a "lack of bandwidth" feeling that can lead to mental stress.</p>\n<p>More generally, practicing law outside of a law firm without professional colleagues is simply lonely, which is a mental health stressor in its own way.</p>\n",
"score": 4
},
{
"answer_id": 89596,
"body": "<p>Larry probably cannot reveal specific details that he learned through confidential client communications. But he can surely reveal anything that was stated in court, or in court filings, or that he knows from other sources. None of those are subject to attorney-client privilege or confidentiality.</p>\n<p>If Larry does reveal confidential information, relying on the rule of doctor-patient confidentiality, and the information gets out. Larry might be held liable for harm tom his client. But as long as the therapist keeps it confidential, the issue will not arise.</p>\n<p>I know of no law or ethical principal or regulation which discourages lawyers in general from visiting therapists, and I know that some do visit therapists.</p>\n",
"score": 3
},
{
"answer_id": 89605,
"body": "<blockquote>\n<p>I assume that Larry the lawyer, after successfully defending someone, can't just go to his therapist Theodore and blab "I feel like I just let a murderer go", no matter how important it is for Larry's mental health.</p>\n</blockquote>\n<p>You assume incorrectly. You also assume that this would matter to an attorney's mental health (it might, but it might not). My experience here is that the murder itself is the traumatic thing to be part of, not the act of defending the client.</p>\n<p>But there is nothing keeping an attorney from saying exactly those words, certainly in private. There is no attorney-client privilege that has been violated. Certainly, those words are protected within the therapy arena, and it's not quite clear to me how they would harm the client anyway. Admitting to a therapist that you committed a crime in getting an acquittal might be problematic, but an acquittal is an acquittal. I could imagine things that a therapist must report by law ("I got my client off and he will soon be committing another offense"). But this is a feeling, not a statement of fact.</p>\n",
"score": 1
},
{
"answer_id": 89630,
"body": "<p>How would an attorney know if someone is truly guilty or not? Even if he could why would it matter? The attorneys job is to give a defense to the best of his/her ability. Not to make any moral judgments on how other people live there lives.</p>\n<p>I think the problem is that the popular conscience considers justice to be fundamentally different to what the justice system does.</p>\n<p>Justice is concerned with much more than convictions. If police, for instance, enter a house without the needed warrant then evidence gathered this way should be excluded from any trial.</p>\n<p>There is a good chance then if the evidence gathered is crucial to the prosecution's case that the accused may walk. It is also perfectly possible that the accused did do what he is on trial for.</p>\n<p>This would in fact be justice. Police cannot be allowed to break the laws they are supposed to enforce (although they often do).</p>\n<p>My counter-question to the premise of this question would be. What is truth? What can any person say with absolute certainty is true?</p>\n<p>If you can say that you know very little concepts that are true with any real amount of certainty. How can a judicial system then make truth decisions that often have far reaching implications in peoples lives?</p>\n<p>They cannot. At best they can assert guilt standards that hinge on whether all procedurally legally gathered evidence has proven a case beyond a reasonable doubt.</p>\n",
"score": 1
}
] |
[
"united-states",
"lawyer",
"attorney-client-privilege"
] |
Can someone use good deeds to "bribe" their way to innocence?
| -1 |
https://law.stackexchange.com/questions/89659/can-someone-use-good-deeds-to-bribe-their-way-to-innocence
|
CC BY-SA 4.0
|
<p>Question inspired by Yakuza Judgement.</p>
<p>Carl, the huge rich criminal, is on trial for a murder he obviously committed. But during the trial, he looks at the 12 jurors and says</p>
<p>"if you let me go, I will donate 100 million dollars to the Red Cross. What's more important: me being in jail, or 100 million dollars to charity?"</p>
<p>Clearly, at least one of the jurors might resonate with this point, and refuse to say Carl is guilty. So what is supposed to happen in this case?</p>
<p>Btw, please don't focus on the "letter" of my question, but instead, focus on the "intent" of my question. Maybe Carl's money gets impounded, I don't know. The point is, Carl's arrest does more harm to the world than actually letting him be free.</p>
<p>P.S.: For those curious, in the actual game: Carl is on the brink of curing Alzheimer's, but commits a crime. But what if Carl brings up the fact that putting him in jail means millions of people suffer/die from Alzheimer's?</p>
<p>Edit: to be clear, no actual bribery is going on. Carl isn't saying "I'll give you $100 if you let me free". What's happening is Carl has so much good he can do for humanity (e.g. donate millions to charity, take care of children, cure important diseases, etc.), which he can't do if he were in jail. At which point, many jurors might consider that the world would be better off with Carl out of jail (so he could do good for the world) than in jail (solely so that Carl could suffer).</p>
| 89,659 |
[
{
"answer_id": 89664,
"body": "<p>Carl may not do this, as he would be prohibited from making this argument at trial.</p>\n<p>At trial, evidence must be <a href=\"https://www.law.cornell.edu/rules/fre/rule_401\" rel=\"noreferrer\">relevant</a>, meaning that it makes a fact of consequence more or less likely to be true. Because the trial is meant to determine whether Carl is or is not guilty, his promises of future philanthropy have no bearing on the matter. And even if they somehow did, Carl still would not be able to tell the jury about them because they would be blocked under <a href=\"https://www.law.cornell.edu/rules/fre/rule_403\" rel=\"noreferrer\">Rule 403</a>, which excludes evidence because its probative value is substantially outweighed by its risk of biasing or confusing the jury.</p>\n<p>If Carl attempts to make these statements anyway, he risks a mistrial, which means he has to start over with with a new jury.</p>\n<p>In some jurisdictions, Carl <em>may</em>, however, be permitted to make this argument during the sentencing phase, where the court can properly consider the societal effects of whatever punishment it imposes. At this point, though, it's obviously a little late for Carl, as it presumes he has been convicted.</p>\n",
"score": 6
},
{
"answer_id": 89663,
"body": "<blockquote>\n<p>But during the trial, he looks at the 12 jurors and says</p>\n</blockquote>\n<p>This is where the main flaw lies in your plan. Carl cannot legally make that proposition / claim to the jury. It is true that he could suddenly blurt out the proposal, but the judge would gavel him down and instruct the jury to ignore the outburst. A defendant is only allowed to make certain kinds of claims in a specific fashion – he can offer evidence bearing on the question of guilt.</p>\n<p>There is an industry of jury research that asks "what effect does X have on jury outcomes", based on mock trials. I am fairly certain that nobody has experimentally tested the effect of such an outburst that is so egregiously outside of the law, so I think the strongest claim we can make is that there is a slight chance that one juror might be swayed to the point of voting to acquit, and a greater chance that jurors would be annoyed at his misbehavior so that the convict him quicker. This is not because of the law, it's because of the foibles of individual ethics.</p>\n<p>The judge would attempt to unring the bell by instructing the jurors to completely ignore the outburst.</p>\n",
"score": 0
},
{
"answer_id": 89668,
"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=\"canada-container\">canada</a></p>\n<p>This seriously risks a mistrial.</p>\n<blockquote>\n<p>Where inadmissible evidence is placed before the jury and the trial judge is of the view that no corrective instruction can cure the introduction of inadmissible evidence, the trial judge has the discretion to declare a mistrial.</p>\n<p><em>R. v. Hood</em>, <a href=\"https://canlii.ca/t/fkglp#par7\" rel=\"nofollow noreferrer\">2011 ONSC 1390 at para. 7</a></p>\n</blockquote>\n",
"score": 0
}
] |
[
"united-states",
"criminal-law",
"jury",
"trial",
"jury-nullification"
] |
Is an attorney allowed to turn on their client?
| 23 |
https://law.stackexchange.com/questions/89525/is-an-attorney-allowed-to-turn-on-their-client
|
CC BY-SA 4.0
|
<p>Inspired by Yakuza Judgement.</p>
<p>Say that Andy the Attorney is potentially representing Dave the defendant. But while they talk, Andy finds Dave to be a repulsive human being who's obviously guilty of the crime. As a good human being, Andy quits being Dave's attorney, and instead airs out all the dirty laundry to the prosecution, to get Dave locked behind bars for good.</p>
<p>Are there any consequences for this? Can Andy be charged with anything? Can Dave declare a mistrial? Etc.</p>
<p>Edit: I didn't want to give explicit examples, but what if Dave was openly admitting to having committed the crime, and was boasting about committing more crimes as soon as Andy gets him off the hook. At some point, isn't Andy allowed to, as a good Samaritan, turn on Dave? What if Dave was openly boasting about acts of terrorism he was about to commit, etc.. Is Andy forced to be a tool/bystander to Dave's villainy? Is Andy ever allowed to take action against Dave without consequence? Similar to how even therapists are allowed to speak up if their client is dangerous.</p>
| 89,525 |
[
{
"answer_id": 89526,
"body": "<p>Andy would be almost immediately disbarred and might also be held in contempt of court.</p>\n<p>Andy would be disbarred for reasons including his violations of the duty of confidentiality owed by Andy to his client Dave under Rule of Professional Conduct 1.6 in a context like this one. This would be considered an open and shut blatant violation of one of the highest and most serious ethical obligations that an attorney has, and is neck and neck with the rule against stealing money from your clients as a ground for near automatic disbarment. The clarity and severity of the breach of professional ethics by Andy in this regard (and other aspects such as his fiduciary duties to his clients and duty of zealous and diligent advocacy for his client) leaves no ambiguity regarding the appropriate level of discipline.</p>\n<p>Andy might be held in contempt of court for reasons including knowingly disrupting a court proceeding in which he was or is an attorney of record. He can't quit representing Dave until the court grants his permission to do so.</p>\n<p>Dave's trial would probably not go forward or his conviction would be set aside. In all likelihood, a trial with a new prosecutor not exposed to the information would be arranged to avoid the taint of the breach of privilege.</p>\n<p>This would be because providing the prosecutor with inadmissible evidence taints the ability of the prosecutor to proceed untainted by inadmissible evidence and would constitute ineffective assistance of counsel which is one of the grounds for setting aside a conviction for a violation of the 6th Amendment to the US Constitution, which grants the right to effective counsel.</p>\n<blockquote>\n<p>what if Dave was openly admitting to having committed the crime,</p>\n</blockquote>\n<p>This is utterly irrelevant. Criminal defense lawyers aren't only or mostly for innocent people, and their main job isn't really to get people acquitted of crimes they committed. Instead, a criminal defense lawyer's job is to hold the prosecution to their duties to prove their case, to force the criminal justice system to comply with civil liberties protections, to prevent convictions of excessive charges for the conduct committed, and finally to secure appropriate sentences for their clients (which usually means negotiating a plea bargain). Criminal defense lawyers prevent defendants from being convicted and sentenced in circumstances where they wouldn't have been convicted or sentenced if they weren't ignorant of the legal system (which most criminal defendants are).</p>\n<blockquote>\n<p>what if Dave was . . . was boasting about committing more crimes as\nsoon as Andy gets him off the hook.</p>\n</blockquote>\n<p>A vague statement like this does not trigger any right of Dave to take any action differently. It's basically bravado or a statement about his own character in general.</p>\n<blockquote>\n<p>What if Dave was openly boasting about acts of terrorism he was about\nto commit, etc.</p>\n</blockquote>\n<p>If he was about to commit an act of terrorism but was thwarted, Andy needs to keep his mouth shut.</p>\n<p>If Andy knows that Dave is about to imminently commit a specific terrorist act then this very distinct fact pattern raised different issues and belongs in a separate question. The crime-fraud exception to the duty of confidentiality, and the way that an ethical lawyer can take appropriate action in a way that minimizes harm to the client, all involve considerations very different from those in the main question.</p>\n<blockquote>\n<p>Is Andy forced to be a tool/bystander to Dave's\nvillainy? Is Andy ever allowed to take action against Dave without\nconsequence?</p>\n</blockquote>\n<p>The duty of a lawyer not to use his services to further a crime is also a very distinct fact pattern. But, failing to report imminent unilateral acts by a client in furtherance of a crime or fraud is very different from not using information about a client's past actions or vague future intentions against the client, and is also different from using a lawyer as a tool to commit a crime or fraud.</p>\n<p>These are three distinct situations. A different analysis applies to each one.</p>\n",
"score": 61
},
{
"answer_id": 89527,
"body": "<p>That evidence would not generally be admissible due to solicitor-client privilege that is up to the defendant to waive.</p>\n<p>The attorney would be subject to disciplinary action by their oversight body (e.g. bar association).</p>\n<p>I also question the premise that acting "as a good human being" implies violating one's duties to the client and the legal system.</p>\n<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" aria-label=\"show questions tagged 'canada'\" rel=\"tag\" aria-labelledby=\"canada-container\">canada</a></p>\n<p>There is a <em>very</em> narrow exception for public safety (<em>Smith v. Jones</em>, <a href=\"https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1689/index.do\" rel=\"noreferrer\">[1999] 1 S.C.R. 455</a>): when there is an clear and imminent risk of serious bodily harm or death to an identifiable person or group.</p>\n",
"score": 25
},
{
"answer_id": 89562,
"body": "<h2>Andy can't "quit"</h2>\n<p>Andy is Dave's lawyer and this is a position that one cannot just "quit".</p>\n<p>In general, defence lawyers would prefer to have upstanding human beings who are innocent of the crime but, bye-and-large, those people don't get charged with a crime. It is an established fact that most crimes are committed by criminals. Defending guilty people is most of what defence lawyers do.</p>\n<p>If Andy is not yet Dave's lawyer then, if Andy is in private practice, he doesn't have to take the job. If Andy is a public defendant or a court-appointed representative then Andy doesn't even have that choice.</p>\n<p>Either way, once Andy is Dave's lawyer then, beyond a certain point in the trial, he is Dave's lawyer for the duration of the case barring extraordinary circumstances (like Andy dying or becoming gravely ill). If Andy wants to "Quit" or Dave wants to "fire" Andy, they must get the permission of the court and it will only be given for a very good reason. Dave being "a repulsive human being who's obviously guilty of the crime" is not such a reason - Dave is entitled to representation and Andy is it.</p>\n<h2>Andy can't throw the trial</h2>\n<p>Andy must represent Dave to the best of Andy's ability, personal feelings notwithstanding. Failing to do so can lead to Andy being disciplined and ultimately no longer being a lawyer.</p>\n<p>At the same time, Andy can't deceive the court or allow the court to be deceived. This will restrict the strategies that Andy can use in Dave's defence but that's just how it is.</p>\n<p>Please note that there is a huge difference between, say, killing someone and murdering them. It is not enough for the prosecution to prove that Dave killed the victim - that may even be uncontested; they have to prove that the killing was unlawful and intentional as well.</p>\n<h2>Andy can't reveal what he knows</h2>\n<p>Everything that Andy learns while he is Dave's lawyer is subject to attorney-client privilege. That is, it's a secret that only Dave is allowed to break - if Andy does so then he's on the road to no longer being a lawyer.</p>\n<p>In any event, anything that is subject to privilege can't be used in court unless Dave agrees to it being used.</p>\n",
"score": 15
},
{
"answer_id": 89532,
"body": "<p>Depending on a number of factors, Andy may not actually be allowed even to quit as Dave's attorney, especially if proceedings have already started. Under the 6th Amendment, Dave, having been accused of a crime, "enjoy[s] the right[...] to have the Assistance of Counsel for his defence [sic]."</p>\n<p>If Andy is Dave's private attorney, he may submit to the court a motion to end his representation of Dave, and this may be granted if Dave has another lawyer to represent him or agrees to represent himself. Depending on jurisdiction, the same option may or may not be available to a court-appointed attorney, but in either case, if Dave has no other legal counsel, the judge will likely deny the motion and require Andy to continue his representation.</p>\n",
"score": 13
},
{
"answer_id": 89558,
"body": "<p>It is the duty of a defense attorney to defend even horrible clients. Furthermore, it's very likely that the talk you discuss is privileged, leading to the conviction being voided and Andy disbarred.</p>\n<p>The <em>only</em> case where Andy would have any hope is if "boasting about committing more crimes as soon as Andy gets him off the hook" could reasonably be construed as falling under the "crime-fraud exception." This would depend on the details of the boasting, however, as it's not just generally expecting freedom as soon as he's off, but, per <em>U.S. v. Zolin</em></p>\n<blockquote>\n<p>The attorney-client privilege must necessarily protect the confidences of wrongdoers, but the reason for that protection–the centrality of open client and attorney communication to the proper functioning of our adversary system of justice–ceases to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing. It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the “seal of secrecy” between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.</p>\n</blockquote>\n<p>Merely getting him off the hook would not be such a communication.</p>\n",
"score": 8
},
{
"answer_id": 89660,
"body": "<p>As a practical matter, Andy's only "out" is to get excused from the case, by the judge. And "I hate and disbelieve my client" is not an acceptable reason. Andy would need to come up with a pretty good reason.</p>\n<p>Fortunately it would turn sharply on whether Andy did the leg-work to line up a replacement attorney Joan to represent Dave, and Joan has a good reputation and stands up and says "Yeah, I'm ready to go" - at that point the judge would likely agree even if the reason was thin.</p>\n<p>That would especially be true if Joan was a better lawyer than Andy :)</p>\n<p>Dave blabbing about credible future acts to the attorney, would oblige the attorney to report, or evaluate whether reporting is required. However, that would never happen. At the first whiff of such a disclosure, Andy would flat-out tell Dave, <em>clearly and in the boldest possible terms</em>, about that "duty to report". In essence "I can't hear about that, and if I do hear about that, this will happen".</p>\n",
"score": 1
}
] |
[
"united-states",
"criminal-law",
"lawyer",
"attorney-client-privilege",
"attorney-client-relationship"
] |
Implications of lots of non-permitted work in a house purchase/sale
| 1 |
https://law.stackexchange.com/questions/89654/implications-of-lots-of-non-permitted-work-in-a-house-purchase-sale
|
CC BY-SA 4.0
|
<p>Looking at houses, we have found one that has been completely redone (footings to rafters in many places) but without permits for the most part. The original house was from 1908, it was redone and added onto in the 1970s, and the current owner redid nearly everything in the 2000s-2010s. I know the owner so I'm not personally worried about the work (he also had plumbers/electricians out for work outside his expertise).</p>
<p>We like the house, but I'm worried about the future implications of trying to sell a house of entirely un-permitted work. Has anyone had experience with this type of situation? Here are some sub-questions related to things I'm most concerned about, but any related experience is welcome.</p>
<ol>
<li>Are there any legal implications with a lot of un-permitted work on a home?
<ul>
<li>i.e. would I be responsible for permits/fines if any?</li>
</ul>
</li>
<li>Will not having permits be a "non-starter" for any processes? I.e. mortgage, insurance, valuation, etc.?</li>
<li>Will not having permits reduce the value of my home?</li>
<li>Will having lots of unpermitted work make it harder for me to sell the home at a later date?</li>
<li>If I want to ger a permit for work <em>I</em> want to do on the home, will there be complications?</li>
</ol>
| 89,654 |
[
{
"answer_id": 89661,
"body": "<h2>Consult a lawyer</h2>\n<p>These issues are quite common and their impact depends on your jurisdiction (usually local governments handle this) and the attitude of your potential lenders/buyers.</p>\n<p>In most cases, local governments have the power, in extremis, of ordering the demolition of unpermitted work. However, this is normally done only when the work is irredeemably unsafe or adversely affects the amenity of neighbours. More common might be an order to make good any defective work, possibly to current rather than historical codes after which they will retroactively grant the permissions.</p>\n<p>Some lenders will refuse to lend if there are unpermitted works. Others will only lend against the unimproved land value less the cost of demolition. The same is true of insurers.</p>\n<p>As for buyers, well, its making you stop and think, isn't it?</p>\n<p>Common solutions are to make your offer contingent on the current owner cleaning all this up before you close or offering less to cover the risks you are assuming. This may cause you to miss the property but that's the risk you run.</p>\n",
"score": 3
}
] |
[
"real-estate",
"property",
"regulations",
"washington",
"contractor"
] |
Can the prosecution fight for the defendent's innocence?
| -4 |
https://law.stackexchange.com/questions/89656/can-the-prosecution-fight-for-the-defendents-innocence
|
CC BY-SA 4.0
|
<p>Bob is accused of a crime (let's say murder). Bob is a self-hating man who wants to be punished. He admits to the crime, and hires a lawyer to push forth his guilty plea. The prosecution, however, doesn't want to convict him of the crime, because they believe that the true culprit is still out there, and that Bob is just being ridiculous.</p>
<p>In this case, is it possible to have a trial where the prosecution is trying to prove Bob's innocence, while the defense is trying to prove Bob's guilt?</p>
<p>Edit: if it's so hard to believe that "the state" would prosecute for a case like this, then assume that the case is between two private parties. E.g. Bob admits to murdering Penny's pet cat. Penny trusts Bob, and wants to prove that he didn't murder her cat.</p>
| 89,656 |
[
{
"answer_id": 89658,
"body": "<p>He cannot enter a Guilty Plea until he has been charged with a crime.</p>\n<p>He would only be charged with a crime if the Prosecution believes they have enough evidence for a conviction.</p>\n<p>If they believe "the true culprit is still out there", they would not arrest or charge or attempt to prosecute "Bob".</p>\n<p>He can hire an attorney, and go on TV and say he is guilty, and beg to be prosecuted. The District Attorney (or similar Office) can simply respond, <em>"We are aware of the claims by Bob. At this time, we do not have enough evidence to support charging Bob with a crime. The investigation continues."</em></p>\n<p>Somewhat ironically, if they have substantial evidence that Bob is <em>not</em> the murderer, he can then be charged with Making a False Report.</p>\n",
"score": 6
},
{
"answer_id": 89657,
"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=\"canada-container\">canada</a></p>\n<p>There would be no need. The prosecution has complete discretion to stay (abandon) a prosecution or even decline to embark on one in the first place.</p>\n<p>And in the case of a private prosecution, the Attorney General has the right to intervene and take control of or stay the prosecution. Private prosecutions are so rare that there would be a careful eye on any of them from the Attorney General.</p>\n",
"score": 4
}
] |
[
"united-states",
"criminal-law",
"court",
"lawyer",
"trial"
] |
Distributing machine learning models (e.g., word embeddings) based on non-sharable datasets
| 7 |
https://law.stackexchange.com/questions/11183/distributing-machine-learning-models-e-g-word-embeddings-based-on-non-sharab
|
CC BY-SA 4.0
|
<p>Many <a href="https://en.wikipedia.org/wiki/Text_corpus" rel="nofollow noreferrer">corpora</a> (= datasets containing texts) are not freely available and/or their license do not allow redistribution and/or commercial use and/or require share-alike. For example, the <a href="https://catalog.ldc.upenn.edu/byyear" rel="nofollow noreferrer">Linguistic Data Consortium</a> is notorious for selling corpora at hefty prices (<a href="https://linguistics.stackexchange.com/q/14358/2680">despite being publicly funded</a>). </p>
<p>Can I legally distribute <a href="https://en.wikipedia.org/wiki/Word_embedding" rel="nofollow noreferrer">word embeddings</a> that I computed based on such corpora? And more generally, can I legally distribute any sort of machine learning model trained on such corpora?</p>
<p>In the case of a share-alike-licensed dataset, must all models trained on it be redistributed under the same or similar license?</p>
<hr>
<p>I am mostly interested in the following locations:</p>
<ul>
<li>California, United States</li>
<li>Massachusetts, United States</li>
<li>Paris, France</li>
<li>Seoul, South Korea</li>
</ul>
| 11,183 |
[
{
"answer_id": 11186,
"body": "<p>From what I can tell, the <a href=\"https://catalog.ldc.upenn.edu/license/ldc-non-members-agreement.pdf\" rel=\"nofollow\">non-member agreement</a> contains the core and common language regarding what one can do with the data (excluding databases with their own license). Reproducing the data is prohibited, but an analysis of the data should be consistent with the license. The core wording is</p>\n\n<blockquote>\n <p>User shall not publish, retransmit, display, redistribute, reproduce\n or commercially exploit the Data in any form</p>\n</blockquote>\n\n<p>with exceptions for short excerpts. </p>\n\n<p>If the analysis produces \"546869732069732074657874\", that would be a violation of the license since that is just an encoding difference of the original text, whereby the text can be reproduced. At least <a href=\"https://www.ldc.upenn.edu/sites/www.ldc.upenn.edu/files/korean-propbank.pdf\" rel=\"nofollow\">one of the special licenses</a> explicitly permits analysis which doesn't allow reconstruction of the text:</p>\n\n<blockquote>\n <p>summaries, analyses and interpretations of the linguistic properties\n of the Data may be derived and published provided it is not possible\n to reconstruct the Data from such summaries</p>\n</blockquote>\n\n<p><a href=\"https://www.ldc.upenn.edu/sites/www.ldc.upenn.edu/files/usc-marketplace.pdf\" rel=\"nofollow\">Another of the special licenses</a> says something similar:</p>\n\n<blockquote>\n <p>Summaries, analyses and interpretations of the linguistic properties\n of the information may be derived and published, provided it is not\n possible to reconstruct the information from these summaries.</p>\n</blockquote>\n\n<p>but it uses the troubling term \"information\" rather that data – nobody knows what \"information\" is.</p>\n\n<p>The MS Indian Language databases is more restricted and prohibits distributing derivative works without permission, which they might deem a mapping of the original data to be. The <a href=\"https://www.ldc.upenn.edu/sites/www.ldc.upenn.edu/files/comlex-english-nonprofit.pdf\" rel=\"nofollow\">COMLEX databases</a> requires permission to \"redistribute any product or derivative work <strong>based on</strong> the Database\" (emphasis added). </p>\n",
"score": 2
},
{
"answer_id": 40455,
"body": "<p>From <a href=\"https://www.reddit.com/r/MachineLearning/comments/7eor11/d_do_the_weights_trained_from_a_dataset_also_come/dq6m2su/\" rel=\"nofollow noreferrer\">https://www.reddit.com/r/MachineLearning/comments/7eor11/d_do_the_weights_trained_from_a_dataset_also_come/dq6m2su/</a>:</p>\n<blockquote>\n<p>We operate based on an (reviewed by lawyers but without precedent in local courts) <strong>interpretation that our copyright law (Latvia, EU) does not consider such weights as derived works (since they don't include parts of the original work) but rather as equivalent of databases/fact compilations</strong> (e.g. the ngram frequency model from a literary work is a good illustrative example, it's a factual statement about a work). In this interpretation means that the models are independent works whose distribution doesn't require permission from the copyright owners of the source data, the models aren't copyrightable as creative work, but the models are protected with the (lesser) set of rights granted to databases/fact compilations.</p>\n<p>Contractual agreements supersede this - if we've agreed not to distribute models based on a particular dataset, then of course we're bound by that agreement; and such agreements are in place for some of our datasets. This doesn't include shrink-wrap/click-wrap/EULA licenses, which the user can refuse; especially since local law allows me to use (but not redistribute) copyrighted material for research purposes without permission/license; this means all the actual contracts/NDA's signed with e.g. industrial partners for access/use of their data.</p>\n<p>Your mileage may wary, this is not legal advice, it will likely be different in your country, the more litigious the society the more careful you've got to be.</p>\n</blockquote>\n<p>However, following recent AI breakthroughs, many companies are currently suing AI firms because they trained their model on their content without permission. E.g.,\n<a href=\"https://www.bloomberg.com/news/articles/2023-02-17/openai-is-faulted-by-media-for-using-articles-to-train-chatgpt?srnd=technology-vp&leadSource=uverify%20wall\" rel=\"nofollow noreferrer\">https://www.bloomberg.com/news/articles/2023-02-17/openai-is-faulted-by-media-for-using-articles-to-train-chatgpt?srnd=technology-vp&leadSource=uverify%20wall</a>:</p>\n<blockquote>\n<p>News organizations aren’t the first companies to raise questions about whether their content is being used without authorization by artificial intelligence systems. In November, GitHub, Microsoft Corp. and OpenAI were sued in a case that alleged a tool called GitHub Copilot was essentially plagiarizing human developers in violation of their licenses.</p>\n<p>In January, a group of artists sued AI generators Stability AI Ltd., Midjourney Inc. and DeviantArt Inc., claiming those companies downloaded and used billions of copyrighted images without compensating or obtaining the consent of the artists.</p>\n<p>Like the Journal, CNN believes that using its articles to train ChatGPT violates the network’s terms of service, according to a person with knowledge of the matter. The network, owned by Warner Bros. Discovery Inc., plans to reach out to OpenAI about being paid to license the content, said the person, who asked not to be identified discussing a legal matter.</p>\n</blockquote>\n",
"score": 0
}
] |
[
"data-ownership"
] |
Where do bailiffs store seized goods prior to auction?
| -2 |
https://law.stackexchange.com/questions/89609/where-do-bailiffs-store-seized-goods-prior-to-auction
|
CC BY-SA 4.0
|
<p>Is the answer to this legally regulated? I would expect yes quite closely so, but do not Know.</p>
| 89,609 |
[
{
"answer_id": 89655,
"body": "<p>The current regime for "taking control of goods" is set out in Part 3 of the <a href=\"https://www.legislation.gov.uk/ukpga/2007/15/contents\" rel=\"nofollow noreferrer\">Tribunals, Courts and Enforcement Act 2007</a> and enforcement agents (bailiffs) follow the procedure set out in its <a href=\"https://www.legislation.gov.uk/ukpga/2007/15/schedule/12\" rel=\"nofollow noreferrer\">Schedule 12</a>. Further detail on process is given in the <a href=\"https://www.legislation.gov.uk/uksi/2013/1894\" rel=\"nofollow noreferrer\">Taking Control of Goods Regulations 2013</a>.</p>\n<p>The procedure allows goods to be taken away, among other possibilities. In the 2013 regulations, the relevant rules for storage include:</p>\n<ul>\n<li>It must be at "a place which is within a reasonable distance from the place where control was taken of the goods" except in exceptional circumstances (Regulation 19).</li>\n<li>"The storage must be secure and the conditions of that storage such as to prevent damage to or deterioration of the goods for so long as they remain in the enforcement agent's control." (Regulation 34(1)(c))</li>\n</ul>\n<p>The purpose of the first requirement is probably to make it easier for the owner to recover the goods, if they pay their debt before the goods are sold. Agents have to tell debtors the procedure for collection, and there can also be a fee charged for the storage. The security requirement is in everyone's interest because it makes it more likely the value of the goods will be preserved.</p>\n<p>Many agents are private-sector actors, and some are court employees. In any case, it's up to them to find some appropriate storage facility. There isn't a single official place which is the designated one for all agents in the locality.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"civil-law",
"bailiff"
] |
Can a U.S. President's doctor refuse to answer medical-related questions asked by a Congressional committee?
| 10 |
https://law.stackexchange.com/questions/89590/can-a-u-s-presidents-doctor-refuse-to-answer-medical-related-questions-asked-b
|
CC BY-SA 4.0
|
<p>Say that in the event that the 25th Amendment was to be invoked due to the suspicion that the U.S. President was no longer physically and/or mentally capable of performing his/her Presidential duties, can the doctor(s) of the U.S. President be ordered to appear before a Congressional committee to answer questions about the mental and/or physical state of the U.S. President, and if so, can he/she refuse to answer any or all questions perhaps due to HIPAA laws?</p>
<p>Or, would the doctor(s) be allowed to plead the 5th Amendment in order not to answer any medical-related questions about the U.S. President?</p>
| 89,590 |
[
{
"answer_id": 89593,
"body": "<p>The Fifth Amendment would not apply, because nothing in the testimony would incriminate <strong>the doctor</strong>. Indeed nothing would be at all likely to incriminate the President either, it is not a crime to be unable to carry out Presidential duties.</p>\n<p>It is likely in such a case that the President would waive confidentiality. In that case the doctor could testify freely.</p>\n<p>If the President insisted on confidentiality, and attempted to prevent the doctor from testifying to Congress, there would be a conflict between the power of Congress to compel testimony, in this case on what is clearly a vital national issue within the scope of the needs of Congress, and traditional doctor-patient confidentiality, let alone the requirements of HIPAA.</p>\n<p>I am not sure how this conflict would be resolved. There might be an emergency application to the Supreme Court, but the SC does not usually do very well with truly urgent issues. The <em>Pentagon Papers</em> case and <em>Bush V. Gore</em> indicate some of the problems that can arise.</p>\n<p>If the doctor was prevented from testifying, that might incline members of congress to think the testimony would not be favorable to the President, and thus tend to suggest that they should <strong>not</strong> approve the President resuming or continuing his or her powers and duties. But that is rather speculative.</p>\n<p>The 25th has never been invoked, and the detailed procedure that would be followed if it were is not very clear. I am not aware of any similar situation in which medical testimony has been demanded to deal with an urgent issue, but the patient has attempted to block it. I think this case must be considered to be undecided until it actually arises and a court rules.</p>\n",
"score": 14
},
{
"answer_id": 89612,
"body": "<p>HIPAA, in particular <a href=\"https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-C/part-164#p-164.512(a)\" rel=\"nofollow noreferrer\">45 CFR 164.512</a> describes circumstances where patient consent is not required for disclosure:</p>\n<blockquote>\n<p>A covered entity may use or disclose protected health information\nwithout the written authorization of the individual, as described in §\n164.508, or the opportunity for the individual to agree or object as described in § 164.510, in the situations covered by this section,\nsubject to the applicable requirements of this section. When the\ncovered entity is required by this section to inform the individual\nof, or when the individual may agree to, a use or disclosure permitted\nby this section, the covered entity's information and the individual's\nagreement may be given orally.</p>\n<p>Standard: Uses and disclosures required by law.</p>\n<p>(1) A covered entity may use or disclose protected health information\nto the extent that such use or disclosure is required by law and the\nuse or disclosure complies with and is limited to the relevant\nrequirements of such law.</p>\n<p>(2) A covered entity must meet the requirements described in paragraph\n(c), (e), or (f) of this section for uses or disclosures required by\nlaw.</p>\n</blockquote>\n<p>"Required by law" is defined in 164.103 as</p>\n<blockquote>\n<p>a mandate contained in law that compels an entity to make a use or\ndisclosure of protected health information and that is enforceable in\na court of law. Required by law includes, but is not limited to, court\norders and court-ordered warrants; subpoenas or summons issued by a\ncourt, grand jury, a governmental or tribal inspector general, or an\nadministrative body authorized to require the production of\ninformation; a civil or an authorized investigative demand; Medicare\nconditions of participation with respect to health care providers\nparticipating in the program; and statutes or regulations that require\nthe production of information, including statutes or regulations that\nrequire such information if payment is sought under a government\nprogram providing public benefits</p>\n</blockquote>\n<p>It would be "required by law" in the case of "subpoenas or summons issued by a court, grand jury, a governmental or tribal inspector general, or an administrative body authorized to require the production of information". But Congress is not a court, grand jury, inspector general or administrative body authorized to require (Congress cannot require, it can only legislate: the Executive Branch requires).</p>\n<p>45 CFR 164.512(e) allows disclosure\nin the course of any judicial or administrative proceeding, but a Congressional hearing is neither.</p>\n<p>Since such disclosure would be in violation of the law and knowing disclosure can result in a a criminal penalty of up to $50,000 and up to one-year imprisonment, the physician cannot be compelled to testify since the doctor has a 5th amendment right to not incriminate himself. Congress cannot grant prosecutorial immunity.</p>\n",
"score": 3
},
{
"answer_id": 89601,
"body": "<h2>No</h2>\n<p>The House <a href=\"https://www.co-equal.org/guide-to-oversight#2j\" rel=\"nofollow noreferrer\">procedures</a> say:</p>\n<blockquote>\n<p>Objections to Questions: Witnesses may not refuse to answer a question except to preserve a privilege.</p>\n</blockquote>\n<p>The Senate is more complex as they <a href=\"https://www.govinfo.gov/content/pkg/CDOC-117sdoc6/pdf/CDOC-117sdoc6.pdf\" rel=\"nofollow noreferrer\">appear</a> to create different rules for each committee.</p>\n<p>Doctor-patient privilege is not recognised by the Federal Rules of Evidence so what a patient says to their doctor is not subject to the rule. Doctor-patient confidentially is subject to the law which means that where a doctor is under a subpoena, there is no confidentiality.</p>\n",
"score": 2
}
] |
[
"united-states",
"privacy",
"constitutional-law",
"health",
"president"
] |
Can deeded hunting rights be revoked in WV
| 2 |
https://law.stackexchange.com/questions/89649/can-deeded-hunting-rights-be-revoked-in-wv
|
CC BY-SA 4.0
|
<p>I own a farm in WV. My grandfather sold the hunting rights to a group of men in 1957. All of those men are now deceased. Do I have to allow the sons and grandsons of those men to continue to hunt? The deed of hunting rights recorded in Hampshire county states it is for 99 years and runs with the land.</p>
| 89,649 |
[
{
"answer_id": 89651,
"body": "<h2>In general, rights and obligations under a contract are transferable</h2>\n<p>That means, that when I die, my estate and ultimately my heirs are bound by the contract. When you think about it, this is obvious - for example, no bank would loan money if the debtor could avoid repayment just by dying.</p>\n<p>Exceptions are where the contract is for personal services or where the contract makes specific provisions about transfers. A personal services contract is one where only a specific individual can perform it, employment contracts being the most common.</p>\n<p>You would need to look at the specific wording of the deed but if it is silent on transfers, then the heirs of the original hunters have all the same rights and obligations. That is, if they accepted the bequest - gifts can be refused but that would be up to them, not you.</p>\n",
"score": 1
}
] |
[
"united-states",
"west-virginia",
"hunting"
] |
Is it legal to publish a cease and desist letter that I have received?
| 32 |
https://law.stackexchange.com/questions/89547/is-it-legal-to-publish-a-cease-and-desist-letter-that-i-have-received
|
CC BY-SA 4.0
|
<p>I've received a cease and desist letter for defamation from a local businessperson that I believe to be without legal basis - the actionable statements listed are clearly statements of my opinion. Would it be legal to publish this letter publicly, or send it to a newspaper, to let people know that this businessperson is throwing their legal weight around and bullying community members to try to protect their reputation?</p>
<p>To clarify this is a completely separate question from "is it legal to perform the actions listed in the letter" - I'm asking if sharing the letter itself is legal or illegal.</p>
| 89,547 |
[
{
"answer_id": 89550,
"body": "<blockquote>\n<p>Is it legal to publish a cease and desist letter that I have received?</p>\n</blockquote>\n<p>Generally speaking, yes.</p>\n<p>My interpretation of your post is that you published your opinion about a business or businessperson, and the businessperson now is trying to intimidate you or deter you from sharing with others your opinion. The phrase "<em>the actionable statements listed are clearly statements of my opinion</em>" is otherwise unclear. Under defamation law, only <em>false statements of fact</em> are actionable whereas <em>statements of opinion</em> are not. The businessperson is not entitled to your silence.</p>\n<p>If your criticism is about the business, the cease and desist letter sounds in <em>unfair and misleading practices</em> to the extent that the business is trying to conceal from the public some inconvenient information that you as actual or potential customer possess. Even if you published as a competitor, your statements would have to be <em>untrue and misleading</em> for these to constitute disparagement. See the <a href=\"http://heimatundrecht.de/sites/default/files/dokumente/Black%27sLaw4th.pdf\" rel=\"noreferrer\">Black's Law Dictionary</a> definition of <em>disparagement</em> [of Goods].</p>\n<p>For the reasons stated in the other answer, copyright issues are not a matter of concern. It is preferable to publish the letter <em>as is</em>. Transparency preempts confusion as to "<em>I said, he said</em>". By contrast, paraphrasing the letter for the purpose of avoiding an imaginary violation of copyright creates a risk of you inadvertently giving him grounds for a claim of defamation.</p>\n",
"score": 30
},
{
"answer_id": 89549,
"body": "<p>You have no statutory or contractual duty to restrict your responses to the attorney. The prospects that the letter contains material of sufficient originality that it is protected by copyright are low, insofar as such letters tend to be formulaic and the original text may have been written a hundred years ago. Your purpose in disseminating the work is commentary, one of the classical motivating factors behind the copyright concept of "fair use".</p>\n",
"score": 21
}
] |
[
"defamation",
"is-x-legal",
"cease-and-desist"
] |
Can bills (the documents of laws/legislation) have pictures? Or text only? Can images become part of the legal code?
| 32 |
https://law.stackexchange.com/questions/76525/can-bills-the-documents-of-laws-legislation-have-pictures-or-text-only-can-i
|
CC BY-SA 4.0
|
<p>Asking out of plain curiosity. I tried googling, but just couldn't find a combination of keywords that didn't bring up irrelevant results.</p>
<p>Laws become law when the congress approves of a "bill" - a document that dictates and explains the terms of the law. I've only heard of laws being represented as text only. But that seems limiting in the modern era and all the things we have to make laws about now. I'm curious if any of these documents used pictures or images in their explanation of the law, and thus if there are any images now part of the legal code.</p>
<p>I'm not interested in seals or letterhead or other decoration. Only an image that is part of the content of the law. Such that when a judge interprets the law they'd need to consider the image.</p>
<p>For example if they passed legislation protecting an endangered species and the bill contained a picture of the animal that would count.</p>
<p>I'm hoping someone can answer this about the US because that's where I'm from. But I'd also be happy to hear of examples from around the world if they exist.</p>
<p>I know it might seem like a silly question, but it's interesting to me. Thanks in advance if you can answer.</p>
| 76,525 |
[
{
"answer_id": 76526,
"body": "<h2>Regulations - Yes, Acts of Parliament - very rarely</h2>\n<p>In in the <a href=\"/questions/tagged/united-kingdom\" class=\"post-tag\" title=\"show questions tagged 'united-kingdom'\" rel=\"tag\">united-kingdom</a> diagrams are found in regulations, for example <a href=\"https://www.legislation.gov.uk/uksi/2002/3113/contents/made\" rel=\"nofollow noreferrer\">legislation dealing with roadside symbols</a>.</p>\n<p>There are two kinds of legislation in the UK: Acts of Parliament and Statutory Instruments (normally called Regulations).</p>\n<p>The procedure by which an <strong>Act of Parliament</strong> is passed is that it has to be approved by both Houses of the legislature and then receive Royal Assent (Royal Assent is a formality). The procedure in each House is that the main debates occur at the Committee Stage when amendments are proposed and voted on. At the next stage (Third Reading) the House votes again on whether to approve the Bill in its amended form.</p>\n<p><strong>Statutory Instruments (Regulations)</strong> are issued by the government (executive) and are known as <em>delegated legislation</em> because the government only has power to issue a regulation if an Act (called the parent Act) gives it power to do so. As you would expect there are safeguards. First of all the courts can declare invalid (ultra vires) any regulation whose terms go outside the limits of the power delegated by the Parent Act.</p>\n<p>Sometime the parent Act will provide that Regulations issued by the government under delegated powers become law without further involvement of Parliament but sometimes an Act will provide for some limited further Parliamentary scrutiny. This can be either by the Positive Resolution (the regulation will not become law until Parliament approve it) or by the Negative Resolution procedure (the regulation will become law unless Parliament passes a resolution annulling it).</p>\n<p>A key point, in the context of the question, is that neither the Positive nor the Negative Resolution procedure allows Parliament to <em>amend</em> the regulation - Parliament only has a binary choice to approve or disapprove. Of course if they disapprove then the government can issue a new amended regulation which then goes through the same process but the Positive/Negative resolution procedure does not allow Parliament itself to amend any regulation.</p>\n<p>I think this explains why diagrams which are sometimes found in regulations are rarely found in Acts. Constitutional proprieties require any Bill to be amendable and any member of the legislature can propose a amendment. If the Bill included diagrams then there would be huge practical problems because any member who wanted to amend a diagram would have to produce his own amended diagram which he might not be able to do/might not have time to do before parliamentary deadlines. So constitutional proprieties would normally mean that in practice Bills must be solely words.</p>\n<p>Regulations however cannot be amended by Parliament (see above) so such considerations do not prevent regulations from containing diagrams.</p>\n<p>Having said that normally Bills will only contain words, there is <a href=\"https://www.legislation.gov.uk/ukpga/2017/6/section/8\" rel=\"nofollow noreferrer\">this example</a> of an Act which includes a diagram of a symbol. That symbol, however, is defined in an international convention so in practice no parliamentarian would want to amend it.</p>\n<p>I know of no examples in the UK where a Bill (as distinct from regulations) contains an image which a member of the legislature might want to propose an amendment to.</p>\n",
"score": 27
},
{
"answer_id": 76530,
"body": "<p>There is no legal reason why pictures couldn't be in the text of a bill.</p>\n<p>I don't know of any examples in the main text of the US Code. However, it has been pointed out to me that <a href=\"https://www.govinfo.gov/content/pkg/USCODE-2011-title4/pdf/USCODE-2011-title4-chap1.pdf\" rel=\"nofollow noreferrer\">Title 4</a> of the US Code does contain, in the official notes, an executive order which contains an illustration.</p>\n<p>Also, <a href=\"https://www.law.cornell.edu/cfr/text/16/1207.5\" rel=\"nofollow noreferrer\">16 CFR § 1207.5</a>, which is part of the Code of Federal Regulations, contains several diagrams, and it isn't the only official regulation to do so. A judge would certainly need to consider those diagrams when considering whether someone broke the law which says you need to follow those regulations.</p>\n<p><a href=\"https://www.law.cornell.edu/uscode/text/44/904\" rel=\"nofollow noreferrer\">44 USC §904</a> says that maps, diagrams, and illustrations cannot be entered into the Congressional Record without approval from the Joint Committee on Printing. This, of course, implies that such things <em>could</em> go into the Congressional Record if that committee gives its approval.</p>\n",
"score": 19
},
{
"answer_id": 76533,
"body": "<p>While it isn't expressly forbidden, it is very rare to see this in legislature adopted statutes, which usually incorporate some other source by reference when there is an intent to do so.</p>\n<p>In contrast, diagrams and images are rare but far more common in municipal ordinances (especially building codes and zoning codes), regulations and case law. Many real property cases, for example, include images.</p>\n",
"score": 8
},
{
"answer_id": 76528,
"body": "<p>Bills and laws do not usually contain pictures or other images. However I know of no rule against including relevant images. Most often, a description in words is used instead of any image.</p>\n<p>For example, a law protecting a species as endangered would normally specify its common and Latin names, and perhaps quote or reference a formal scientific description of the species. For one thing, if a picture was included in the law, it might raise the question of whether members of the species that did not closely resemble the pictured individual were included in the protection.</p>\n<p>Diagrams could be included, probably by reference, when defining official seals or flags or the like, but US Federal laws do not seem to do so in practice, relying on written descriptions instead.</p>\n<p>Similarly, technical diagrams could be included, but this seems to be quite rare if it ever occurs -- I have not been able to find an actual case. If it does occur, it might well be done by reference, that is with the law naming a document that includes a diagram.</p>\n<p><strong>Update</strong>\nI have seen local ordinances with extensive diagrams: road plans and maps for development district ordinances. Local building codes may well include extensive diagrams. These may be included by reference but need not be. Subdivisions are also done by ordinance in the US and typically include maps.</p>\n",
"score": 6
},
{
"answer_id": 76529,
"body": "<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" rel=\"tag\">australia</a></p>\n<p>I cannot think of any primary legislation (acts of Parliament) that has illustrations but there is no reason they couldn’t.</p>\n<p>It’s not common but some subordinate legislation (regulations, codes etc) is heavily illustrated including:</p>\n<ul>\n<li>the <a href=\"http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_reg/rr2014104/\" rel=\"noreferrer\">Road Rules</a></li>\n<li>items adopted by reference in the <a href=\"http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_reg/epaar2000480/\" rel=\"noreferrer\">Environmental Planning & Assessment Regulation</a> such as the Building Code of Australia. Worth noting that state and local governments plans prepared under this regulation are themselves regulations and often (always) include maps.</li>\n</ul>\n",
"score": 5
},
{
"answer_id": 76547,
"body": "<p><a href=\"/questions/tagged/canada\" class=\"post-tag\" title=\"show questions tagged 'canada'\" rel=\"tag\">canada</a></p>\n<p>There is no general rules against including images or other non-textual symbols in legislations, including statutes (Acts), regulations and other orders under royal or other authorities.</p>\n<p>The Parliament can decide to include whatever it wants in its Acts. Of course, constitutional principles require laws to be sufficiently clear and precise and they can be declared invalid and unenforceable if vague laws deprive a person their "<a href=\"https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art7.html\" rel=\"nofollow noreferrer\">right to life, liberty and security of the person</a>". But non-textual things are not automatically not clear.</p>\n<p>For example, the <a href=\"https://laws-lois.justice.gc.ca/eng/acts/o-9.1/20190617/p1tt3xt3.html#h-387332\" rel=\"nofollow noreferrer\"><em>Olympic (1976) Act</em></a> declares as protected trademarks the beaver representations and the symbol used by the 1976 Olympics organizing committee and include their pictorial representations in the schedules. The <a href=\"https://lois-laws.justice.gc.ca/eng/acts/N-2/page-2.html\" rel=\"nofollow noreferrer\"><em>National Anthem Act</em></a> includes the music score of O Canada. The <em><a href=\"https://laws-lois.justice.gc.ca/eng/acts/E-2.01/page-70.html#h-1134471\" rel=\"nofollow noreferrer\">Canada Elections Act</a></em> specifies the forms of the ballot and other elections-related documents.</p>\n<p>Regulations utilizing non-textual representations (<a href=\"https://laws.justice.gc.ca/fra/reglements/DORS-2016-311/page-36.html#h-826122\" rel=\"nofollow noreferrer\">labels</a>, <a href=\"https://laws-lois.justice.gc.ca/eng/regulations/SOR-2018-156/page-2.html#h-851782\" rel=\"nofollow noreferrer\">maps</a>, <a href=\"https://laws.justice.gc.ca/fra/reglements/C.R.C.,_ch._1111/page-6.html\" rel=\"nofollow noreferrer\">zoning charts</a>, <a href=\"https://laws.justice.gc.ca/eng/regulations/C.R.C.%2C_c._353/20060322/P1TT3xt3.html\" rel=\"nofollow noreferrer\">other diagrams</a>) are even more numerous.</p>\n",
"score": 3
},
{
"answer_id": 76557,
"body": "<p><a href=\"/questions/tagged/new-zealand\" class=\"post-tag\" title=\"show questions tagged 'new-zealand'\" rel=\"tag\">new-zealand</a></p>\n<p>Diagrams and maps have appeared within many pieces of primary legislation, generally included as a schedule to the Act (which is part of the legislation as passed) and referenced from one or more clauses, rather than inline. For example, see:</p>\n<ul>\n<li>The <a href=\"https://legislation.govt.nz/act/public/2000/0001/latest/DLM53404.html#DLM53404\" rel=\"nofollow noreferrer\">Hauraki Gulf Marine Park Act 2000</a></li>\n<li>The <a href=\"https://legislation.govt.nz/act/public/2005/0036/latest/whole.html#DLM341277\" rel=\"nofollow noreferrer\">Fiordland (Te Moana o Atawhenua) Marine Management Act 2005</a></li>\n<li>All three schedules of the <a href=\"https://legislation.govt.nz/act/public/2014/0002/latest/whole.html#DLM5256501\" rel=\"nofollow noreferrer\">Subantarctic Islands Marine Reserves Act 2014</a></li>\n<li>The same in the <a href=\"https://legislation.govt.nz/act/public/2014/0059/latest/whole.html#DLM6171710\" rel=\"nofollow noreferrer\">Kaikōura (Te Tai o Marokura) Marine Management Act 2014</a></li>\n<li><a href=\"https://legislation.govt.nz/act/public/2019/0019/latest/whole.html#LMS17026\" rel=\"nofollow noreferrer\">Schedule 3 of Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019</a> (this one in colour)</li>\n<li>The <a href=\"https://legislation.govt.nz/act/local/2019/0001/latest/LMS64707.html#LMS64724\" rel=\"nofollow noreferrer\">Gore District Council (Otama Rural Water Supply) Act 2019</a>, wherein its area of application is defined as "the area coloured blue on the map set out in <a href=\"https://legislation.govt.nz/act/local/2019/0001/latest/LMS64743.html#LMS64743\" rel=\"nofollow noreferrer\">Schedule 2</a>".</li>\n</ul>\n<p>They have become more common recently, and as seen above usually when the law identifies areas of ocean. In general, text of the laws explicitly takes precedence if the diagram is inconsistent with a corresponding description. It is still more common for them to appear in regulations or secondary legislation created under an Act, such as in <a href=\"https://www.legislation.govt.nz/regulation/public/2021/0037/latest/LMS460087.html\" rel=\"nofollow noreferrer\">this schedule of the COVID-19 Public Health Response (Alert Level Requirements) Order (No 5) 2021</a>, to depict parks or reserves, or incorporated by reference from other agreements of the Crown (such as treaty settlements or international agreements).</p>\n",
"score": 3
},
{
"answer_id": 76541,
"body": "<p><a href=\"https://www.lex.bg/laws/ldoc/2134401024\" rel=\"nofollow noreferrer\">The law about the state stamp and the state flag of Republic of Bulgaria</a> pretty much contains depictions of the state stamp and the state flag, as well as mechanical drawings (with dimensions) of the flagpole finial.</p>\n<p>(the images in the linked webpage are actual scans of the relevant images in the State Gazette)</p>\n<p>Of course, the Road Traffic Law contains the images of the road signs.</p>\n<p>Different specific legislation (e.g. food safety, technical oversight, etc...) contain images as well.</p>\n",
"score": 2
}
] |
[
"united-states",
"congress",
"bills",
"legislative-intent"
] |
What is the appropriate court for an action relating to a breach of the Human Rights Act 1998 (HRA)?
| 1 |
https://law.stackexchange.com/questions/89635/what-is-the-appropriate-court-for-an-action-relating-to-a-breach-of-the-human-ri
|
CC BY-SA 4.0
|
<p>See <a href="https://law.stackexchange.com/questions/89459/why-must-claims-against-the-police-for-human-rights-act-breaches-be-brought-with">Why must claims against the police for human rights act breaches be brought within 1 year?</a></p>
<p>If a public body acts contrary to one’s convention rights, what is the appropriate court in which to take action against them, and what form should be used?</p>
| 89,635 |
[
{
"answer_id": 89645,
"body": "<p>The procedures on starting a claim are covered within <a href=\"https://www.legislation.gov.uk/uksi/1998/3132/part/7?timeline=false\" rel=\"nofollow noreferrer\">Part 7</a> and <a href=\"https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07a\" rel=\"nofollow noreferrer\">Practice Direction 7A</a> (PD7A) of the Civil Procedure Rules.</p>\n<p>PD7A, at paragraph 3.1, states:</p>\n<blockquote>\n<p>A claimant must use form N1 to start a claim under Part 7.</p>\n</blockquote>\n<p>And at paragraph 2.11(1):</p>\n<blockquote>\n<p>The normal rules apply in deciding in which court and specialist list a claim that includes issues under the Human Rights Act 1998 should be started. They also apply in deciding which procedure to use to start the claim;</p>\n</blockquote>\n<p>There are a number of provisions and variations at PD7A (from para 2.1 to 2.11), but if the value of the claim is less than £10,000 one can submit it using Money Claim On Line <a href=\"https://www.gov.uk/make-court-claim-for-money/make-claim\" rel=\"nofollow noreferrer\">MCOL</a>.</p>\n<p>Or, one can post <a href=\"https://www.gov.uk/government/publications/form-n1-claim-form-cpr-part-7\" rel=\"nofollow noreferrer\">Claim Form N1</a> to the County Court, remembering to answer the question on page 2:</p>\n<blockquote>\n<p>Does, or will, your claim include any issues under the Human Rights Act 1998?</p>\n</blockquote>\n",
"score": 1
}
] |
[
"england-and-wales",
"human-rights",
"civil"
] |
Does a judge have to give an opportunity for cross examination in California Family Law?
| 1 |
https://law.stackexchange.com/questions/83364/does-a-judge-have-to-give-an-opportunity-for-cross-examination-in-california-fam
|
CC BY-SA 4.0
|
<p>We have a new judge in our local Family court. The former judge would always ask the parties whether they would like to ask the witnesses questions and make sure they were done before moving on.
At a recent hearing with the new judge, I was surprised that we were not given an opportunity to engage in cross examination and the judge gave their ruling immediately after the other party finished their testimony.
Would this be considered an irregularity in the proceedings?</p>
| 83,364 |
[
{
"answer_id": 89646,
"body": "<blockquote>\n<p>Would this be considered an irregularity in the proceedings?</p>\n</blockquote>\n<p>Probably. The right to cross-examine is a basic legal right of parties in evidentiary hearings.</p>\n<p>If you made a timely objection to the denial of a right to cross-examination and you made an offer of proof about what the cross-examination might reveal (i.e. a statement to the court in which you explain what you think the cross-examination would show), and the cross-examination question and its answer did not beyond a reasonable doubt have no impact on the outcome, then you have preserved a valid appealable objection. If your appeal prevailed, the final order in the case based upon the evidence from that hearing might be vacated and the appellate court might remand the case for a new trial before the same judge.</p>\n<p>A ruling in the middle of an evidentiary hearing, however, is an "interlocutory order" that unlike a "final order" usually can't be immediately appealed. Only when the court enters an appealable order based upon the evidence secured in the evidentiary hearing can the court's denial of your right to cross-examine the witness be appealed to a higher court, and then, only if the outcome on the order depended upon the evidence that you were not allowed to develop with cross-examination in some way.</p>\n<p>A consistent denial of litigants' rights to cross-examination in the face of objections by litigants to that practice could, in rare cases, also be the basis for an "interlocutory appeal" before an order is entered, or a grievance against the judge (although the latter route is successful only extremely rarely and doesn't benefit you as a litigant at all).</p>\n<p>For example, if a judge's standing orders provided that cross-examination is not allowed for litigants in family law proceedings, this would probably be something that could be raised with an appellate court in an interlocutory appeal.</p>\n",
"score": 1
},
{
"answer_id": 89619,
"body": "<p>Standing Orders for specific judges departments (courtrooms) are generally, e.g. in SF in 2009, available in a binder at one of the clerks (SF was in the documents review room, beyond the main clerks windows on the 1st floor, with different hours from the clerk of the 4th floor Unified Family Court area, where it also could be found, albeit only 2 of the 8 times I needed to check. To be safe, I'd ask any unknown-before-hearing judicial officers who may be there for only a few days (and will often be unelected private attorney substitutes; who may or may not have joined the public sector after a term or more as a "real" judge) when you see them:</p>\n<blockquote>\n<p>I haven't seen you here before. Are there any personal standing orders filed that I may have missed?</p>\n</blockquote>\n<p>...probably never make a difference, but minimal noticeably-nonzero peace of mind is all we get.</p>\n",
"score": 0
}
] |
[
"california",
"family-law"
] |
Legal defense against paying taxes for supporting terrorist?
| -3 |
https://law.stackexchange.com/questions/89637/legal-defense-against-paying-taxes-for-supporting-terrorist
|
CC BY-SA 4.0
|
<p>The United States has undoubtedly supported many questionable groups over the years including groups now designated as terrorist organizations. If someone decided they did not want their tax dollars to fund terrorist, nazis, mercenary groups, etc., would this be a viable defense in court regarding the non-payment of taxes?</p>
| 89,637 |
[
{
"answer_id": 89643,
"body": "<p>The first point that is already well-established in law is that there really is a legal requirement to pay taxes, not just federal income taxes, but taxes in general. On rare occasion, there is a legal dispute as to whether something is a tax (Obamacare) or whether a particular authority is allowed to levy such a tax. Let us assume that the tax in question is legally levied.</p>\n<p>Some taxes are independent of any specific intended purpose (e.g. federal income tax, state sales tax). Some are for a specific purpose (Medicare tax, the taxes that are local school levies). Even when a taxing authority corruptly but legally misdirects the funds designated for a specific purpose, you are still required to pay the tax. It's not that a tax law could not be written which allows a person to refuse to pay a tax if they judge that the revenues are being misdirected, it's that the law-makers did no cripple the tax law with such a provision.</p>\n<p>As far as I know, no taxing authority anywhere allows a person to refuse to pay a tax is they disagree with the use of the taxes, which is to say, taxation is mandatory, not voluntary. If it is voluntary, it is known as a "contribution". You are allowed to contribute to some governmental purpose, you are <em>required</em> to pay taxes. You can't overcome the requirement to pay taxes on First Amendment grounds (being forced to support something that you don't like). The IRS has a FAQ that addresses <a href=\"https://www.irs.gov/privacy-disclosure/the-truth-about-frivolous-tax-arguments-section-i-d-to-e#contentiond1\" rel=\"noreferrer\">the First Amendment argument</a>, with a mass of supporting court cases (US v. Lee, 455 U.S. 252; Jenkins v. Commissioner, 483 F.3d 90; US v. Indianapolis Baptist Temple, 224 F.3d 627; Adams v. Commissioner, 170 F.3d 173; US v. Ramsey, 992 F.2d 831; and so on).</p>\n",
"score": 5
}
] |
[
"united-states",
"tax-law"
] |
Can a private business require a doctor's note from a customer?
| 1 |
https://law.stackexchange.com/questions/22052/can-a-private-business-require-a-doctors-note-from-a-customer
|
CC BY-SA 4.0
|
<p>A holiday has been booked and paid for, but due to medical reasons, must now be cancelled. The company booked with offers a cancellation fee so that if a booking with them is cancelled, then a full refund will be issued less the initial deposit.</p>
<p>However, the business has demanded that a doctor's note be provided to prove there are medical grounds for the cancellation before they will issue the refund.</p>
<p>Is it legal in the UK for a private business to request a doctor's note? All research I have tried to conduct on the subject deals with employers and employees, which is not relevant to this situation.</p>
| 22,052 |
[
{
"answer_id": 22088,
"body": "<p>Yes, this could be required. </p>\n\n<p>This is (1) because while disclosure of private medical information is generally prohibited, you would be voluntarily waiving that privacy to receive a benefit, and (2) because the disclosure by the doctor wouldn't have to say anything more than that there was a medically valid reason for the cancellation without going into detail about its nature. You already told the company you were medically indisposed, so that bare fact wasn't confidential anyway.</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"medical"
] |
Does the Sale of Goods Act 1979 (or equivalent) cover UK NHS prescriptions?
| 1 |
https://law.stackexchange.com/questions/22585/does-the-sale-of-goods-act-1979-or-equivalent-cover-uk-nhs-prescriptions
|
CC BY-SA 4.0
|
<p>In the UK the NHS provides free-of-charge health care, with a few exceptions e.g. a patient has to pay about £8 per drug on prescription.</p>
<p>An NHS doctor prescribes a drug that is unsuitable for a particular patient (tablet form, for a patient that cannot swallow tablets), and the doctor knows this in advance. The patent discovers this when at home, but cannot return drug (for safety reasons).</p>
<p>The issue is rectified by a new drug being prescribed. However the patient is expected to pay a 2nd time.</p>
<p>If the Sale of Goods Act 1979 applied, then the patient could return the drug as not suitable for the particular purpose.</p>
<p>Does the Sale of Goods Act 1979 or some other statute, apply? Or is the NHS exempt?</p>
| 22,585 |
[
{
"answer_id": 22593,
"body": "<p>There is, as far as I can see, no Crown exemption from the sale of goods acts (including the International Sale of Goods Conventions), but unfortunately for this patient the NHS has no liability either in logic or in law.</p>\n\n<p>The doctor provided a written prescription, for which there is no charge, and which <em>allows</em> patients to buy certain drugs. The patient took the prescription to a chemist's, which (for money) provided the drug specified in it. Even if the patient had noticed that the prescription was for the wrong form of medicine, the pharmacist has no discretion to alter it; if the prescription specifies tablets, the patient can either buy the tablets or not buy them and take the prescription back to the doctor. In neither case has either the doctor or the chemist committed any conceivable offence regarding sale of goods.</p>\n\n<p>(There might theoretically be a case for negligence, but it would never be worth either suing a doctor for an £8 prescription fee or reporting him to the authorities for writing a prescription for the right drug in the wrong form). </p>\n",
"score": 3
},
{
"answer_id": 22623,
"body": "<blockquote>\n <p>If the Sale of Goods Act applied, then the patient could return the\n drug as not suitable for the particular purpose.</p>\n</blockquote>\n\n<p>Not obvious that this is true. The doctor who made the faulty prescription is probably different from the pharmacy that fills the prescription. The pharmacy did what it was told by the prescription and would have been at fault if it did something different. It isn't clear to me that the pharmacy selling the drug should be liable for the doctor's mistake.</p>\n",
"score": 2
},
{
"answer_id": 80514,
"body": "<p>Yes. The Consumer Rights Act (CRA) 2015 and Sale of Goods Act (SGA) 1979 both cover UK NHS prescriptions. The transaction between you and the pharmacy is a "consumer contract" covered by CRA 2015 s 61(1).</p>\n<p>I quote from Janet O'Sullivan, <a href=\"https://global.oup.com/academic/product/osullivan-and-hilliards-the-law-of-contract-9780198853176?\" rel=\"nofollow noreferrer\"><em>O'Sullivan & Hilliard's Law of Contract</em></a> (2020 9 ed), p 207. The <a href=\"https://global.oup.com/academic/product/osullivan-and-hilliards-the-law-of-contract-9780192856555?\" rel=\"nofollow noreferrer\">2022 10 ed</a> shall be published in July 2022.</p>\n<blockquote>\n<p>8.27 According to s 61 of the CRA, a ‘consumer contract’ is defined in s 61(1) as a ‘contract between a trader and a consumer’. In turn, ‘trader’ and ‘consumer’ are defined in s 2 of the CRA as follows:</p>\n<p>(2) ‘Trader’ means a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.</p>\n<p>(3) ‘Consumer’ means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.</p>\n<p>(4) A trader claiming that an individual was not acting for purposes wholly or mainly outside the individual’s trade, business, craft or profession must prove it.</p>\n</blockquote>\n<p>A prescription though, ISN'T a contract. A prescription is merely an authorisation — it authorizes a person, the pharmacy, to supply the medicine without committing an offence. See Part 12 of The Human Medicines Regulations 2012.</p>\n<p>So the question will be what the terms of the sales contract are. Obviously, you tender a prescription to a pharmacy, for the purpose of being dispensed medications as\n(pre)scribed in your prescription — rightly or wrongly by your doctor. Thus one contractual term is the dispensation of the medications as specified in that prescription.</p>\n<p>If the medications are dispensed correctly, then this dispensation would not breach the terms including those in the CRA 2015. Obviously if the medications are dispensed wrongly (eg providing the wrong dosage or the wrong format), then obviously you are entitled to the replacement prescription.</p>\n<p>The issues here are suitability of the medication format, and medical negligence. The issue is whether the doctor who prescribed this medicine was negligent (e.g. prescribing a tablet form, when a patient can’t ingest tablets). If so, then you would claim damages from the prescribing doctor that would be the cost of acquiring the correct medicine, including the cost of the replacement prescription and compensation for an injury from the wrong medicine.</p>\n",
"score": 1
},
{
"answer_id": 89642,
"body": "<p>It's important to note that "fitness for purpose" would be judged by reference either to the purposes for which the goods are ordinarily used (by consumers in general), or for the purposes of which the pharmacist was specifically advised by the buyer.</p>\n<p>For example, if the chemist supplies a horse pill too big for near anyone to swallow, then that is unfit. And if he is told that he needs to supply somebody who cannot swallow, and then supplies pills to swallow, then that is unfit.</p>\n<p>But if the chemist is simply presented with a prescription, and fulfils it with good medicine accordingly, then he has not breached the law - he could not have guessed he was in this instance supplying somebody who could not swallow, unless he was told so.</p>\n<p>As for the NHS doctor, the relationship is not contractual, so they would have to be judged by a standard of medical negligence.</p>\n<p>Whether a single instance of a minor prescribing error, leading to £8 wasted pharmacy costs, would be regarded as "negligent" is doubtful in my mind.</p>\n<p>If the loss of the £8 would cause real credible hardship, then perhaps explaining the situation, and asking for an ex-gratia payment from the surgery would be an approach.</p>\n<p>But otherwise, I would say give the doctor a break, since they are doing an enormously difficult job, and their resources are often under assault from "efficiency savings" and "market reforms".</p>\n",
"score": 1
},
{
"answer_id": 29410,
"body": "<p>The £8 prescription charge is paid to the NHS. The NHS pays the pharmacy for the drugs, so the patient is not a party to the contract.</p>\n\n<p>On this basis, I would guess that the Sale of Goods Act does not apply, but the Consumer Protection Act may well apply (which would be a claim against the manufacturer not the pharmacist).</p>\n",
"score": 0
}
] |
[
"united-kingdom",
"medical",
"sale-of-goods"
] |
Is one allowed to ask for compensation for their witness testimony?
| 6 |
https://law.stackexchange.com/questions/89542/is-one-allowed-to-ask-for-compensation-for-their-witness-testimony
|
CC BY-SA 4.0
|
<p>Bob witnesses a murder, so reports the crime to the police. Later, lawyers representing the state/jurisdiction come to Bob, asking him to provide witness testimony. But Bob values his time, and doesn't want to spend hours at the court out of the goodness of his heart. Is Bob allowed to ask for monetary compensation to serve as a witness for the crime? Or does that create a conflict of interest ("I paid this witness $1000, now listen to them support my argument")?</p>
| 89,542 |
[
{
"answer_id": 89546,
"body": "<p>A witness who is under a subpoena cannot condition their appearance or testimony upon being compensated.</p>\n<p>Usually, a "lay witness" who is not offering expert testimony and instead just testifying about their personal knowledge of the facts of the case, is entitled to a statutory witness fee when appearing pursuant to a subpoena to be paid by the lawyer or law firm or government agency issuing the subpoena. But, this minimal amount is basically only enough to pay for mileage to get to the court house, parking, and perhaps lunch. It is even more minimal than the tiny compensation paid to jurors.</p>\n<p>It is not unethical for an attorney to pay reasonable actual expenses of testifying to a lay witness to encourage them to cooperate with the process and as a courtesy to avoid inconveniencing them beyond the statutory witness fee.</p>\n<p>For example, paying the cost of a hotel and dinner the night before if it is a long trip to court so that the witness doesn't have to leave home to go to court at 3 a.m. would not be unethical, even if it exceeds the statutory witness fee. But, it generally isn't proper to pay a lay witness simply to testify.</p>\n<p>As an example, the <a href=\"http://www.cod.uscourts.gov/CourtOperations/FeeSchedule.aspx\" rel=\"nofollow noreferrer\">statutory witness fees for federal court witnesses in Denver, Colorado</a>, which is one of the most generous sets of witness fees, in part, due to the high cost of living there (state courts are usually less) is as follows:</p>\n<blockquote>\n<p>Witness fee per day $40.00</p>\n<p>Witness mileage, round-trip (per mile) $0.655</p>\n<p>Witness subsistence reimbursement (Denver) (seasonal, Nov. 1 - Dec.\n31, 2022 = $232; Jan. 1, 2023 - March 31, 2023 = $241.00;) for an\novernight stay $278.00</p>\n<p>Witness subsistence reimbursement (Denver) for last day of travel<br />\n(See General Services Administration per diem website page for\nseasonal changes [also lists of per diem rates for other Colorado\nlocations], and GSA mileage website page.) $79.00</p>\n</blockquote>\n<p>An "expert witness" testifying on matters of opinion arising from their expertise unrelated to the facts of a particular court case, is entitled to reasonable compensation and normally would testify voluntarily when not under subpoena, pursuant to a retention agreement upon which the expert may be cross-examined at trial to show a potential source of bias.</p>\n<p>Sometimes a "non-retained" expert witness will testify under subpoena rather than voluntarily (e.g. someone who performed an autopsy on a body in a murder case) because they have knowledge of facts from their personal knowledge that are relevant in addition to having that knowledge enhanced by their professional expertise. Such witnesses generally are compensated at a reasonable rate for their services, but the analysis is different and is governed by the applicable civil procedure statutes and rules in the place where the trial is conducted.</p>\n",
"score": 9
},
{
"answer_id": 89544,
"body": "<p>Expert witnesses routinely receive compensation for their professional analysis, report-writing, and testimony at trial. The courts do not compel an expert to perform an analysis of some pertinent facts. The courts <em>do</em> compel eye witnesses to testify. This provides incentive to the witness to do as they were told by the court.</p>\n<p>An attorney cannot pay a witness to provide their eyewitness testimony. However, it is never illegal to ask. Therefore, the simple answer is "asking questions" is legal. There is a federal law against bribing witnesses, <a href=\"https://www.law.cornell.edu/uscode/text/18/201\" rel=\"nofollow noreferrer\">18 USC 201</a> which punishes one who</p>\n<blockquote>\n<p>directly or indirectly, corruptly gives, offers, or promises anything\nof value to any person, or offers or promises such person to give\nanything of value to any other person or entity, with intent to\ninfluence the testimony under oath or affirmation of such\nfirst-mentioned person as a witness upon a trial, hearing, or other\nproceeding, before any court, any committee of either House or both\nHouses of Congress, or any agency, commission, or officer authorized\nby the laws of the United States to hear evidence or take testimony,\nor with intent to influence such person to absent himself therefrom</p>\n</blockquote>\n<p>and state analogs. This is about paying a witness for their testimony, and not a blanket prohibition against paying a witness: <a href=\"https://www.gibsondunn.com/wp-content/uploads/documents/publications/BlumeStaversPayWitnesses.pdf\" rel=\"nofollow noreferrer\">here's a brief note</a> on navigating the unclear waters about paying. For instance, the witness can be compensated for travel expenses, because the compensation is not for the testimony, it is for the travel that makes the testimony possible.</p>\n",
"score": 2
},
{
"answer_id": 89555,
"body": "<p>Bob is certainly <em>allowed</em> to ask for money in exchange for his testimony, but that doesn't mean he is entitled to receive that money or to skip the trial if he doesn't get it.</p>\n<p>A witness like Bob will likely be subpoenaed to appear at trial. This means that it doesn't matter how much he thinks his time is worth; he will almost certainly have to show up to testify.</p>\n<p>However, Bob will also likely be paid for appearing as a matter of course. Most witnesses are entitled to some payment for each day they spend in court, and they may also be entitled to compensation for traveling to the court. This fee will likely be much less than Bob thinks his time is worth, but it is generally not negotiable. In federal court, for instance, <a href=\"https://www.law.cornell.edu/uscode/text/28/1821\" rel=\"nofollow noreferrer\">28 U.S. Code § 1821</a> establishes the fees to which a subpoenaed witness is entitled, which will generally be $40 per day plus travel expenses. The fee schedule for appearance in state courts will vary from state to state.</p>\n<p>I don't know that the prosecuting attorney is <em>prohibited</em> from paying Bob still more money to appear, but doing so would certainly be unusual and set off alarm bells. Further, the prosecutor would likely be required to disclose those payments so the defense could use them to suggest to the jury that Bob's testimony is less credible</p>\n",
"score": 2
},
{
"answer_id": 89543,
"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=\"england-and-wales-container\">england-and-wales</a></p>\n<p>Bob would be classed as an <a href=\"https://www.cps.gov.uk/legal-guidance/witness-expenses-and-allowances\" rel=\"nofollow noreferrer\">Ordinary Witness</a>\nand can claim expenses etc (below) payable the Crown Prosecution Service (CPS) which is:</p>\n<blockquote>\n<p>responsible for paying allowances and expenses to witnesses who are called to give evidence in prosecutions conducted by the Service.</p>\n</blockquote>\n<p>An ‘ordinary witness’ is:</p>\n<blockquote>\n<p>a witness to fact - a witness who is neither a professional nor expert and who gives evidence based on their first-hand knowledge of events relevant to the case.</p>\n<p>Ordinary witnesses may receive compensation towards:</p>\n<ul>\n<li><p>Travelling expenses</p>\n</li>\n<li><p>Money spent on refreshments and meals</p>\n</li>\n<li><p>Overnight subsistence</p>\n</li>\n<li><p>Financial loss (e.g. loss of earnings)</p>\n</li>\n</ul>\n<p>*Other expense incurred (e.g. childcare)</p>\n<p>There are limits on the amounts payable:</p>\n<ul>\n<li><p>Bus and train fares (standard fare) should normally repaid in full</p>\n</li>\n<li><p>Travel by motor vehicle is paid at a rate per mile</p>\n</li>\n<li><p>Childcare will normally be reimbursed within a maximum daily amount. However, discretion should be applied where childcare cost exceeds the rate. An official receipt from a registered child carer must be provided.</p>\n</li>\n</ul>\n<p>Taxi fares are allowed in exceptional circumstances. Discretion should be applied for incidents such as:</p>\n<blockquote>\n<p>Where this was the only form of transport available</p>\n<p>If a witness is registered disabled or infirm.</p>\n<p>If the witness is vulnerable</p>\n</blockquote>\n<p>This should normally be agreed in advance and receipts must be provided.</p>\n<ul>\n<li><p>Set limits apply to refreshments and meals</p>\n</li>\n<li><p>Maximum daily amounts apply to loss of earnings and other financial losses</p>\n</li>\n</ul>\n<p><strong>Overnight subsistence</strong></p>\n<p>The CPS will normally arrange the hotel accommodation for ordinary witnesses and pay for it. The overnight allowance covers an absence of 24 hours. Where the witness has had to arrange their own overnight accommodation the CPS will reimburse actual rates up to the maximum overnight rate, where receipts are provided.</p>\n<p>Where a meal is also included, ordinary witnesses will be entitled to a fixed Personal Incidental Allowance. If no evening meal is included ordinary witnesses are additionally entitled to a Night Subsistence Allowance. This is a fixed amount towards the cost of meals, refreshments and other expenses where a witness has had to stay away from home.</p>\n<p>Witnesses who stay with family or friends in place of the above will receive a single fixed payment. See ‘Current rates’ for Ordinary and Professional witnesses.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"united-states",
"criminal-law",
"court",
"witnesses",
"testimony"
] |
Is there a difference between seizing and impounding items?
| -1 |
https://law.stackexchange.com/questions/89567/is-there-a-difference-between-seizing-and-impounding-items
|
CC BY-SA 4.0
|
<p>You hear both terms used to refer to broadly the same action.</p>
| 89,567 |
[
{
"answer_id": 89626,
"body": "<p>Seizing is the taking. Impounding is a possible action after the seizure. Goods may be impounded, or forfeited, or destroyed, or turned over to the legal owner, or something else.</p>\n<p>If you're hearing both terms referring to broadly the same action, it's because the cases you're hearing about are broadly the same: something is seized and impounded.</p>\n",
"score": 3
},
{
"answer_id": 89628,
"body": "<h2>Seizing</h2>\n<p>Seizing describes <strong>the act of taking an item</strong> from its (supposed) owner or controller. It has no length of time ascribed to it. For example, the following things are seizing:</p>\n<ul>\n<li>The policeman takes the keys of a motorcyclist to prevent them from fleeing during a traffic stop.</li>\n<li>The police investigating the murder take a knife used to stab a victim to do tests on it.</li>\n<li>The police take the firearm of the felon away to be destroyed.</li>\n</ul>\n<h2>Impounding</h2>\n<p>Impounding describes <strong>the act of storing a seized item</strong> until it is released or sold off for non-retrieval.</p>\n<ul>\n<li>The phone seized from the student using it in class is <em>impounded</em> on the teacher's desk/the secretary office/...</li>\n<li>The car seized from the drunken driver is stored at the <em>impound lot</em>.</li>\n</ul>\n<p>Every act of impounding requires a seizure, but not all seizures are impounding the item.</p>\n",
"score": 0
}
] |
[
"legal-terms",
"police"
] |
Do Swiss banks allow investigation of foreign embezzlement claims?
| 0 |
https://law.stackexchange.com/questions/89621/do-swiss-banks-allow-investigation-of-foreign-embezzlement-claims
|
CC BY-SA 4.0
|
<p>There is reason to suspect someone who took a 91 year old French lady twice to Switzerland of embezzlement. The year after, she spent 50,000 on a veranda.</p>
<p>The old lady is thought to have had shares from her late husband, had a 15 minute short term memory. She didn't understand how the zeros work with currency denominations, 50 cents and 50 dollars were the same to her.</p>
<p>The trips to Geneva occurred on the in 2007, the veranda was bought in 2008, and Switzerland adopted transparency laws in 2017. I just became aware of the law change recently and am curious if it's simple to lodge a complaint.</p>
<p>Are the laws retroactive and do they address the given scenario?</p>
| 89,621 |
[
{
"answer_id": 89627,
"body": "<h2>All claims in Switzerland are statute barred after 10 years</h2>\n<p>So, whether the transparency laws are retroactive or not is irrelevant.</p>\n",
"score": 1
}
] |
[
"france",
"switzerland"
] |
Are there no limits to damage waivers or would this go too far?
| 15 |
https://law.stackexchange.com/questions/84301/are-there-no-limits-to-damage-waivers-or-would-this-go-too-far
|
CC BY-SA 4.0
|
<p>I am going to make vacation on Hawaii next week. For one day we booked a Ziplining tour.
Just after the free cancelation date passed, I was sent a waiver which is required to be signed to participate.</p>
<p>And this waiver is something, even without knowing much about the legal system of the USA, I can't imagine to be justified.</p>
<p>It asks me to hold the event host and their employees free from any damage or claim due to risks of i.e. servere injury, disabilitys or even death. OK, that's fair.</p>
<p>Then it says that I also waive any such action for cases where anything like this happens negligent. This made me already feel somewhat uncomfortable. But not knowing the laws in the USA, this might be a thing one can ask me to waive.</p>
<p>But then it also mentioned any of the risks or harm caused by them <strong>deliberately</strong>.
And causing the risk of murder (what deliberately causing an accident that leads to death) makes me not want to sign that waiver. It feels just not right.</p>
<p>Now leaving aside if you can waive and agree to indemnify in the USA for a deliberately caused death...</p>
<p>Given that I got the waiver handed over just after the free cancellation period had ended and being unwilling to sign that waiver, are they entitled to keep my payment, because I missed the free cancellation period? (It was said before that there will be such a waiver, but it was not linked or anything and I was just told that the waiver will be sent out a few days prior to the event.)</p>
| 84,301 |
[
{
"answer_id": 84305,
"body": "<h2>This waiver is <a href=\"https://www.waiversociety.org/hawaii\" rel=\"noreferrer\">unenforceable</a> in Hawaii</h2>\n<p>Persons who “owns or operates a business providing recreational activities to the public” cannot disclaim liability for negligence. However, they are not liable for inherent risks providing those risks are disclosed. (Haw. Rev. Stat. § 663-1.54)</p>\n<p>While a business might be tempted to include an unenforceable waiver to discourage someone suing, it’s a bad idea. Hawaii, like most other jurisdictions, have consumer protection laws against misleading and deceptive conduct - saying you cant sue when you can has been held to be such conduct.</p>\n",
"score": 35
},
{
"answer_id": 84303,
"body": "<p>That disclaimer for deliberate damages is obviously and indisputably in circumvention of public policy and therefore is null and void. If they deny service on the basis of you not signing that disclaimer after you already paid for whatever service it disclaims damages of, you probably will have a claim.</p>\n",
"score": 11
},
{
"answer_id": 84336,
"body": "<blockquote>\n<p>But then it also mentioned any of the risks or harm caused by them\ndeliberately. And causing the risk of murder (what deliberately\ncausing an accident that leads to death) makes me not want to sign\nthat waiver. It feels just not right.</p>\n</blockquote>\n<p>You can use a legal contract like a disclaimer to forfeit your rights to take <em>civil</em> action against the other party (i.e., suing them for damages). What it cannot do is protect them from anything considered a <em>criminal</em> offense (assault, murder, fraud, identity theft, etc). Criminal offenses are a matter between the <a href=\"https://www.rasmussen.edu/degrees/justice-studies/blog/civil-law-versus-criminal-law/\" rel=\"nofollow noreferrer\">perpetrator and the state</a>. The victim doesn't have the ability to forfeit the state's right to prosecute.</p>\n<p>Deliberate harm of any meaningful magnitude would most likely be a criminal offense. Many types of harm due to negligence are also criminal offenses (e.g., negligent homicide). No disclaimer would enable the tour operator to commit criminal offenses against you with impunity.</p>\n<p>Regarding whether you can get a refund, I'd imagine you could (at least technically). Without signing the disclaimer, the company will refuse to offer you their services. It would be hard to justify them simultaneously refusing to serve you and keeping your money. However, a particularly stubborn company could drag the process out if they know you're a traveler. The amount you'd recover would be far less than the cost of extending your trip long enough to go through the court system. Unless this was a particularly expensive excursion, it's probably not worth the hassle of forcing a refund if the company doesn't cooperate. I'd still file a formal complaint, though.</p>\n",
"score": 3
}
] |
[
"united-states",
"contract-law",
"waivers",
"extortion",
"hawaii"
] |
What is the motivation for legally forcing sellers to determine the minimum price of food by multiplying it by 1.1?
| 20 |
https://law.stackexchange.com/questions/89519/what-is-the-motivation-for-legally-forcing-sellers-to-determine-the-minimum-pric
|
CC BY-SA 4.0
|
<p>A radio advertisement for a food distributor said that they sell their food to fight the current crisis at "prix coutant" (cost price). However, it was followed by a very speedy text saying that, according to the law, the actual cost price was actually 1.1 times the real cost price.</p>
<p>This seems confirmed by this <a href="https://www.economie.gouv.fr/dgccrf/Publications/Vie-pratique/Fiches-pratiques/revente-a-perte" rel="noreferrer">governmental source</a>, saying:</p>
<blockquote>
<p>À compter du 1er février 2019 et jusqu’au 15 avril 2023, le prix
d’achat effectif est affecté d’un coefficient de 1,10 pour les denrées
alimentaires et les produits destinés à l’alimentation des animaux.</p>
</blockquote>
<blockquote>
<p>From February 1 2019 until April 15 2023, the effective purchase price is multiplied by a coefficient of 1.10 for foodstuffs and animal feed.</p>
</blockquote>
<p>I think I am misunderstanding something here, but what I understand is:</p>
<ul>
<li>I am a food seller, I buy some food at 1€</li>
<li>I want to make an advertisement and want to sell the food at cost price</li>
<li>I cannot do so; I am actually forced by law to sell it at 1.1€ (so I am still making a profit)</li>
</ul>
<p>Is that correct? What is the motivation behind this?</p>
| 89,519 |
[
{
"answer_id": 89520,
"body": "<p>The law against <em>revente à perte</em> (resale at a loss) is an anti-<a href=\"https://en.wikipedia.org/wiki/Dumping_(pricing_policy)\" rel=\"noreferrer\">dumping</a> law intended to prevent <a href=\"https://en.wikipedia.org/wiki/Predatory_pricing\" rel=\"noreferrer\">predatory pricing</a>.</p>\n<p>As explained in the Wikipedia article for the case of <em><a href=\"https://en.wikipedia.org/wiki/Keck_and_Mithouard\" rel=\"noreferrer\">Keck and Mithouard</a></em>:</p>\n<blockquote>\n<p>The aim of this law was to prevent retailers engaging in 'cut-throat competition' by dumping excess produce onto the market, and forcing competitors out of business.</p>\n</blockquote>\n",
"score": 54
},
{
"answer_id": 89557,
"body": "<p>This is actually not that unusual. In many places, a retailer will sell some products as a "loss leader" to get people in the store to then, hopefully, buy other products where they can make a profit. But that can be controversial at times, and some places have laws to prevent this. A big concern is that a large company might sell at a loss to pull customers away from the competition. Once the competition is out of business due to low sales (or due to losing money because they match the price), the large company has a monopoly and raises prices to make excess profit. An example of this is with gasoline pricing. The <a href=\"https://foxbaltimore.com/news/local/sheetz-199-thanksgiving-sale-unleaded88-maryland-law-prevents-sale-west-virginia-gas-station-fuel-petroleum-drivers-gasoline\" rel=\"noreferrer\">Sheetz company had a special gas promotion but couldn't run it in certain states</a> due to legal restrictions.</p>\n",
"score": 25
},
{
"answer_id": 89575,
"body": "<p>Note that as the food seller in your example you do have additional costs on top of the 1€ for the food item. You need to pay your employees (or yourself) and presumably also need some space where the food item is stored and the sale to end customers takes place. These costs are the motivation for the extra 10%.</p>\n<p>I have no idea whether 10% is a reasonable amount for a food seller but if you were to sell the items at the 1€ you paid yourself you certainly would lose money which the law is trying to prevent as an anti-dumping measure as explained in sjy's answer.</p>\n",
"score": 16
},
{
"answer_id": 89624,
"body": "<p>On one hand, the law does defines "prix d'achat effectif" (effective purchase price), which is the cost on the invoice, minus any sort discount obtained outside, plus various taxes and costs. In spirit, it's the price at which the seller would break even all things considered, though obviously the reality might vary on a case by case basis.</p>\n<p><a href=\"https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000038414250\" rel=\"noreferrer\">Code de commerce, Article L442-5</a>:</p>\n<blockquote>\n<p>Le prix d'achat effectif est le prix unitaire net figurant sur la facture d'achat, minoré du montant de l'ensemble des autres avantages financiers consentis par le vendeur exprimé en pourcentage du prix unitaire net du produit et majoré des taxes sur le chiffre d'affaires, des taxes spécifiques afférentes à cette revente et du prix du transport.</p>\n</blockquote>\n<p>It should be noted that it forbids not only the sale below that price, but also explicitly forbids the advertisement of such sale:</p>\n<blockquote>\n<p>Le fait, pour tout commerçant, de revendre ou d'annoncer la revente d'un produit en l'état à un prix inférieur à son prix d'achat effectif</p>\n</blockquote>\n<p>The motivation behind this is that it's an anti-dumping and consumer protection measure. Larger companies could afford to sell stuff at a loss and drive smaller companies out of business, creating a monopoly where they could then raise prices at will, at the consumer's expense. More generally, French and European law aims to forbid unfair competition, monopolies, and other cartels.</p>\n<p>The law 2020-1525 "Accélération et simplification de l'action publique" adds to the effective purchase price definition, which is where the extra 10% comes in, minus some costs and taxes still.</p>\n<p><a href=\"https://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI000042624464/\" rel=\"noreferrer\">Loi n° 2020-1525, Article 125</a>:</p>\n<blockquote>\n<p>le prix d'achat effectif défini au deuxième alinéa du I de l'article L. 442-5 du code de commerce est majoré d'un montant égal au produit d'un coefficient 0,1 par une valeur P, égale au prix d'achat effectif défini au même deuxième alinéa minoré du montant des droits de consommation mentionnés au I de l'article 403 du code général des impôts et du montant des cotisations prévues à l'article L. 245-7 du code de la sécurité sociale.</p>\n</blockquote>\n<p>This is defined under title IV of the law, called "Diverses dispositions de simplification", but I can't really tell if this was the simplification of an existing rule (as the name of the title would suggest) or not.</p>\n<p>Regarding your question, the general idea is that your minimum resale price is buying price +10%-ish, but the 1€ and 1.1€ figures would be modified by a variety of costs, discounts, and other taxes.</p>\n<hr />\n<p>On the other hand, "prix coutant" doesn't have a legal definition, or none that I could find at least. It clears the requirement that it wouldn't reasonably be understood as selling at a loss (doing or advertising so would be illegal anyways).</p>\n<p>However it maintains an ambiguity on whether it means "the lowest price we can legally sell at", or "the lowest price we can afford to sell at", which may or may not be the same price. So it can be argued to be technically correct advertisement either way.</p>\n",
"score": 5
}
] |
[
"france",
"food"
] |
Are there any legal systems where "guilty until proven innocent" is actually a thing?
| 8 |
https://law.stackexchange.com/questions/73670/are-there-any-legal-systems-where-guilty-until-proven-innocent-is-actually-a-t
|
CC BY-SA 4.0
|
<p>Related: <a href="https://law.stackexchange.com/q/11591/10458">What different legal-systems are there?</a></p>
<p>The idea of "innocent until proven guilty" is sometimes thrown around as an example of American exceptionalism, but it turns out that this is in fact the standard used in most of the world. There seem to be quite a few countries where there are few<em>er</em> protections for criminal defendants, but I can't find any where "guilty until proven innocent" is literally the case. What I mean by this is that there are non-US jurisdictions that allow defendants to be convicted on evidence that would be thrown out of a US court as unconstitutionally obtained, but the prosecution still has to present this evidence and use it to convince the court of the defendant's guilt. The court does not simply assume, "The prosecutor said it so it must be true, GUILTY!".</p>
<p>I would define a "guilty until proven innocent" legal regime as incorporating most, if not all, of the following criteria:</p>
<ul>
<li>The contents of an indictment or other formal accusation are presumed true unless specifically rebutted in a court of law.</li>
<li>Defendants in court who plead Not Guilty are required to prove their innocence in order to obtain an acquittal.</li>
<li>Simply disproving the prosecution's evidence is insufficient for an acquittal unless the defendant <em>also</em> affirmatively proves their innocence.</li>
</ul>
<p>Are there any jurisdictions anywhere in the world where "guilty until proven innocent" is the rule for criminal cases?</p>
<p>Just to be clear, I'm <em>not</em> asking for examples of jurisdictions that are not as friendly to defendants (e.g. hearsay is admissible, no doctor-patient privilege, trial by jury not guaranteed, expanded authority of judges to issue search warrants, no right to a "speedy" trial, etc.), but something more approaching, "Oh no, John accused me of breaking into his garage. If I can't affirmatively <em>prove</em> to a jury that I was in America all of last month and couldn't have broken into his garage here in Ruritania, I'm going to prison!"</p>
| 73,670 |
[
{
"answer_id": 80078,
"body": "<p>English defamation law is considered to put the burden of proof on the defendant, and until 2010 English law supported a criminal charge of libel- so called "criminal libel" or "defamatory libel." It should be noted that criminal libel was never affirmatively enshrined in English law, but it came about as an outgrowth of English common law. It was never heavily prosecuted, but was a crime and did carry a potential sentence of one to two years in jail.</p>\n<p>A comprehensive review of criminal libel in English law was published as "Working Paper No. 84 Criminal Libel". <a href=\"https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/08/No.084-Criminal-Libel.pdf\" rel=\"nofollow noreferrer\">You can read it here.</a></p>\n<p>In England, when actions for libel are brought, the <em>defamatory statements are assumed to be false.</em> This assumes the defendant/publisher to be in the wrong, and they must demonstrate their actions to be reasonable. At the time, the defenses available (see paragraph 3.17 in linked reference) to the defendant/publisher were either:</p>\n<ul>\n<li>Assert that the statements are not actually defamatory, or do not constitute libel on other technical grounds (e.g. were not actually published in a fixed medium)</li>\n<li>Make an affirmative defense of "justification"- proving both that the defamatory statements were actually true AND that that there is a public interest in publishing the statements.</li>\n<li>Make an affirmative defense of "fair comment"- similar to justification but for statements that are a matter of opinion rather than a matter of objective fact.</li>\n</ul>\n<p>This satisfies your first condition- the statements named by the plaintiff/prosecutor are assumed to be false and defamatory (note another peculiarity of English common law was that actions of libel could be brought by a prosecutor but could also be brought by private citizens... even if they weren't the ones being libeled). This means the prosecutor was assumed to be in the right, and the defendant was assumed to be in the wrong.</p>\n<p>Paragraph 3.19 in the linked document lays it out for us:</p>\n<pre><code>The onus of proving the truth of the statement lies on the \ndefendant who must also prove the facts by reason of which \nit was for the public benefit for the statement to be \npublished. Accordingly, the person defamed need give no \nevidence to rebut the allegations made in the plea of \njustification, leaving the defendant to prove that the \nlibel was true and that the publication was for the public \nbenefit.\n</code></pre>\n<p>Note that this is a departure from most other western legal systems in two ways. In the US we say that "Truth is an absolute defense against libel claims." If the statement is true, then you can say it under US law, no matter how badly it damages someone's reputation. Note that this is not true for common law criminal libel- merely being true is not sufficient defense, the statements must both be true AND there must be a public interest in publishing the statements. Thus a newspaper or gossip rag that published lovers' intimate details could be prosecuted for criminal libel even if those details are true. Truth is not an absolute defense.</p>\n<p>At this point we have also satisfied your second condition. Once an action of libel has successfully been brought, the defendant must assert some defense or else they automatically lose. Either they must contend that the alleged defamatory statements don't technically rise to the level of libel under the law, or they must prove the truth of their statements and provide a compelling public interest in making those statements.</p>\n<p>Other legal systems handle libel very differently. In the USA, libel laws vary on a state-by-state basis. In general however, a plaintiff wanting to bring suit for libel must provide evidence that the libelous statements are in fact false. If they cannot provide some evidence to that effect, there is no prima facie case of libel and the defense could move for a summary judgement. As has already been said, truth is an absolute defense in the USA.</p>\n<p>While the crime of libel no longer exists in England, all of this carries over into modern-day civil libel actions. The onus is still on the defendant to prove their innocence. Modern observers have coined the terms "libel tourism" and "libel terrorism" to refer to the practice of attacking critics in English courts rather than more appropriate venues specifically because of the fewer protections afforded to defendants there. The US in particular passed the SPEECH Act in 2010, saying that findings of libel from foreign courts are unenforceable in the US, largely due English libel tourism.</p>\n",
"score": 4
}
] |
[
"criminal-law",
"legal-concepts",
"comparative-law"
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.