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Is TfL bound By their pledged fare freezes?
| 0 |
https://law.stackexchange.com/questions/89606/is-tfl-bound-by-their-pledged-fare-freezes
|
CC BY-SA 4.0
|
<p>Is TfL bound in any way to honour their pledged fare freezes to the public on advertising billboards even though there is no contractual loss or consideration? What are the pledges legal status and have there ever been any challenges to their reneger?</p>
| 89,606 |
[
{
"answer_id": 89622,
"body": "<p>Transport for London (TfL) is the responsibility of the Mayor of London, and it is he <a href=\"https://www.itv.com/news/london/2023-01-10/figure-revealed-for-expected-rise-in-london-tube-and-bus-fares\" rel=\"nofollow noreferrer\">who ultimately decides</a> on fare increases or freezes.</p>\n<p>TfL then publish the actual numbers <a href=\"https://tfl.gov.uk/campaign/new-fares\" rel=\"nofollow noreferrer\">on their website</a>, and may also advertise elsewhere. (As of Feb 2023, it looks like fares will be going up next month, so no freeze.)</p>\n<p>Because this is a political decision, there's an argument that any pledge made before a policy is actually implemented is no different to any other political pledge - i.e. it is subject to change.</p>\n<p>To take the 2023 increases as an example, there is (unsurprisingly) opposition to them. However, as far as I can tell, there is no suggestion that the Mayor is acting outside his powers or breaking any rules. Instead, opposition is taking the form of <a href=\"https://www.standard.co.uk/news/transport/tube-bus-train-fare-increases-tfl-london-underground-cost-b1044079.html\" rel=\"nofollow noreferrer\">possible ballots for strikes</a> or <a href=\"https://www.rosindell.com/news/andrew-rosindells-opposition-tfl-fare-increases\" rel=\"nofollow noreferrer\">criticism from MPs</a>.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"civil-law",
"consideration",
"tfl"
] |
Under the US Constitution, can Congress require the President to use military force?
| 0 |
https://law.stackexchange.com/questions/89611/under-the-us-constitution-can-congress-require-the-president-to-use-military-fo
|
CC BY-SA 4.0
|
<p>Suppose that a new Congress gets elected, and they unanimously really, <em>really</em> <em><strong>really</strong></em> hate the government of country X, so much so that they want the US military to basically destroy it. So the government passes a law that not only declares, but also bestows upon the President a legal obligation to see that country X's government is completely upended. It leaves no room for the President to cease hostilities for more than, say, 30 days every 3 years, except as provided for by treaty.</p>
<p>Would this be legal?</p>
| 89,611 |
[
{
"answer_id": 89613,
"body": "<p>The Constitution says "The President shall be Commander in Chief of the\nArmy and Navy of the United States, and of the Militia of the several States, when\ncalled into the actual Service of the United States".\nAs supreme military commander, the president alone gets to say whether or not to commit troops for such an expedition. Congress does have the power to control the purse. It is a fundamental principle of constitutional law that Congress cannot command the president.</p>\n",
"score": 5
},
{
"answer_id": 89620,
"body": "<p>If the President does not properly conduct his duties as President, he is subject to impeachment.</p>\n<p>In such an exceptional circumstance, the two houses may consider that the Presidents failure to act constitutes treason, and that he/she should be impeached.</p>\n<p>There is certainly international precedent for that: King Charles 1 of England was convicted and executed for treason. He asserted that Parliament had no jurisdiction: Parliament disagreed.</p>\n<p>Of course, if he/she won't co-operate, perhaps congress and the senate won't co-operate with him/her. Maybe re-enact the salary and pension and expenses and security. Maybe the President will resign?</p>\n",
"score": 0
}
] |
[
"united-states",
"constitutional-law"
] |
What is the effect of FTT judges also “being” county court judges by virtue of s5(2)(t) CCA1984?
| 0 |
https://law.stackexchange.com/questions/89610/what-is-the-effect-of-ftt-judges-also-being-county-court-judges-by-virtue-of-s
|
CC BY-SA 4.0
|
<p>Under <a href="https://www.legislation.gov.uk/ukpga/1984/28/section/5?timeline=false" rel="nofollow noreferrer">section 5(2)(t)</a>, County Courts Act 1984, judges of the tribunals are stated to be also judges of the county court. What does this mean in terms of effects? What consequential implications does this provision have, and how/when may it be invoked?</p>
| 89,610 |
[
{
"answer_id": 89617,
"body": "<p>Flexibility.</p>\n<p>When the Crime and Courts Act 2013 ammended the 1984 Act to replace the various district County Courts with the singular County Court, section 5 was also ammended to establish who can sit in this new court structure.</p>\n<p>The Home Office and Ministry of Justice <a href=\"https://www.legislation.gov.uk/ukpga/2013/22/notes/division/5/2/2/1\" rel=\"nofollow noreferrer\">Explanatory Notes</a> for which say:</p>\n<blockquote>\n<p>Paragraph 4 [<em>Schedule 9, Crime and Courts Act 2013</em>] substitutes for section 5 of the 1984 Act, which makes provision in respect of those judges (other than district judges) who may sit in the county courts, a new section 5. While, in practice, Circuit judges and district judges will remain the principal judges of the county court, the effect of this amendment and, in particular, <strong>subsection (2) of the new section 5, will be to enable a wider range of other judges to sit, on a flexible basis, in the single county court as “judges of the county court”.</strong></p>\n</blockquote>\n",
"score": 2
}
] |
[
"england-and-wales",
"court",
"judge",
"interpretation",
"tribunal-procedure"
] |
"Procurement" in The Immoral Traffic (Prevention) Act, 1956 and its relation to extortion
| 1 |
https://law.stackexchange.com/questions/89522/procurement-in-the-immoral-traffic-prevention-act-1956-and-its-relation-to
|
CC BY-SA 4.0
|
<p>the immoral traffic prevention act which deals with prostitution laws has some provisons specifically</p>
<p><a href="https://www.indiacode.nic.in/show-data?actid=AC_CEN_13_0_00015_1956104_1673601098535&sectionId=72581&sectionno=5&orderno=6" rel="nofollow noreferrer">Section 5</a> of the above Act states:</p>
<blockquote>
<p>Procuring, inducing or taking person for the sake of prostitution.--</p>
<p>(1) any person who--</p>
<ul>
<li><p>(a) procures or attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or</p>
</li>
<li><p>(b) induces a person to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel; or</p>
</li>
<li><p>(c) takes or attempts to take a person, or causes a person to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or</p>
</li>
<li><p>(d) causes or induces a person to carry on prostitution;</p>
</li>
</ul>
</blockquote>
<p>By this definition if someone compels another into extortion and the person who is being extorted doesn't have money so they resort to prostitutuon. would the extorter be held liable under this act as well especially when they are negligent to this or find it amusing intending it and still continue harassing a woman into doing it or know it to be likely that they are doing prostitution but don't care and still put more pressure on the victim while openly joking about it ? what if the victim is underprivileged and means like threat or act of eviction from their home(if the extorter is a landlord) and the means used are things like threat of eviction and would this fall under rape as well ?</p>
<p>case going something like this</p>
<p>X uses extortion on Y by threatening to evict Y , Y becomes a prostitute , X either doesn't care or finds it amusing and continues doing it for entertainment</p>
<p>would they be guilty of this ? what charges could such person face ?</p>
| 89,522 |
[
{
"answer_id": 89595,
"body": "<p>Traditionally "procure" in this sense means to compel another to act as a prostitute, to induce another to act as a prostitute by whatever means, or to provide to a person who wants to patronize a prostitute an opportunity to do so, whether the prostitute is willing or not. Whether a procurer uses extortion or some other means to compel or induce someone to act as a prostitute, whether the procurer is amused or spiteful or has some other attitude, none of those would be relevant to the above-quotes law. The essential thing is that the procurer has in fact caused another to enter into prostitution, or has caused or induced such a person to go from one place to another for the purpose of prostitution. That is enough that the procurer can be found guilty of this crime.</p>\n<p>However, if A simply puts financial pressure on B (whether lawful or unlawful) and B responds by taking up prostitution, when A had no such intent, this law would, I think, not apply, although other laws might.</p>\n",
"score": 1
},
{
"answer_id": 89618,
"body": "<p>Merely causing a women or her family to be in a state of economic distress knowing that one foreseeable outcome of that economic distress is that the woman, or a woman in the family placed in a state of economic distress may resort to prostitution as a result of the generalized economic hardship is almost certainly insufficient to constitute a crime under this section of the law.</p>\n<p>Section 5(1)(d) does say that one may be guilty of the crime if one "causes . . . a person to carry on prostitution" and it wouldn't be ungrammatical to read to mean that causing economic distress that causes someone to resort to prostitution on their own is sufficient.</p>\n<p>But, in the context of the statute as a whole, the meaning is not just "but for" causation of someone carrying on prostitution. Instead, the meaning is to cause someone to carry on prostitution rather than doing someone else that they would otherwise have done to meet their economic needs.</p>\n<p>As the very title of the offense of "procuring, inducing or taking person for the sake of prostitution" implies, the offender must either be a pimp, or must be conspiring (or planning to conspire) personally with a pimp (or someone working for a pimp) or John (i.e. prostitution customer) to be guilty of the offense.</p>\n<p>A procurer doesn't have to engage in extortion, but does have to have a genuine connection to the victim being directed to becoming a prostitute in particular, by implication, with some particular pimp or John (i.e. prostitution customer), rather than doing something else, to deal with their economic distress.</p>\n<p>If someone threatens to evict someone for a reason that they are legally allowed to evict someone, it isn't extortion at all. It is merely the legal exercise of a property right of the landlord which is not limited by the fact that it creates economic hardship on the part of someone whose lease ended or who failed to pay their rent or otherwise violated their lease terms.</p>\n<p>If someone threatens to evict someone for an improper reason, then the usual remedy would be to dispute the grounds for eviction in court in an eviction lawsuit, and if someone engages in impropriety in the court process to seek relief by proving that improper manipulation of the court process through perjury, bribery, or whatever other means are used to distort the court process. But, this still isn't procurement.</p>\n",
"score": 0
}
] |
[
"criminal-law",
"india",
"definition",
"interpretation",
"extortion"
] |
What kind of legal trouble would have a law firm that called its defeated opponents assholes?
| 3 |
https://law.stackexchange.com/questions/44030/what-kind-of-legal-trouble-would-have-a-law-firm-that-called-its-defeated-oppone
|
CC BY-SA 4.0
|
<p>Say a new law firm wants to come up with a fresh and juicy marketing strategy to win a share of local law market.</p>
<p>They adopt a moral code which, although could be seen arguable, is nevertheless coherent and is consistently adhered to. In a nut shell, they only take clients that they think are good people and refuse to represent cheats, crooks and similar people that they call "assholes".</p>
<p>When they win yet another case, they put the defeated party (proved in court to be in breach or even convicted) on a page on their website called "The Assholes" where they summarise cases for each of them. They avoid labelling opponents not yet defeated in order to minimise claims of slander.</p>
<p>What kind of legal trouble would such a law firm face? Would it still be slander/defamation? Would they rather quickly lose their bar accreditation, or would they only become controversial but otherwise stand well?</p>
<p>(Any English-centric common law jurisdiction)</p>
| 44,030 |
[
{
"answer_id": 44034,
"body": "<p>Calling someone an "asshole" is, at least in the US, an expression of opinion and so is not defamation. Saying that someone has committed a crime may be defamation, but not if that person has in fact already been convicted of that crime. In general if a statement is provably true, it is not defamation.</p>\n<p>If all that this hypothetical firm does is to post facts as found in court decisions, along with their unfavorable opinions of losing parties who they did not represent, it is hard to see any defamation case being valid. And I don't see any other obvious legal problem with doing this.</p>\n<p>It would probably anger other lawyers, and might make it harder to negotiate settlements or do other deals.</p>\n<p>If this firm announce that they refuse to accept as clients "cheats, crooks and similar people" and then make it public that they refused to represent some specific person, A, then A might claim that this portrayed him or her as a "cheat or crook" and was defamatory. The exact wording of their publicly announced policy, and of any announcements that they decline to represent A, would matter a good deal, as would the jurisdiction's exact law of defamation.</p>\n<p>In some places, codes of ethics promulgated by a Bar Association might be violated by such a policy, but such codes are usually not enforceable in the general case.</p>\n<p>I don't see any obvious grounds for disbarment proceedings.</p>\n",
"score": 4
}
] |
[
"defamation",
"lawyer",
"slander"
] |
Do you have to pay for a dissatisfactory medical service?
| -1 |
https://law.stackexchange.com/questions/61820/do-you-have-to-pay-for-a-dissatisfactory-medical-service
|
CC BY-SA 4.0
|
<p>I went to a hospital and they charged me $5,000. The doctor was absolutely incompetent and due to his fault, the result of the procedure were bad. I am on my way to healing, but it was NOT good. I will not go into details, but the doctor “F...ED UP”, and he knows it. Of course he will never officially admit it, and try to fight back covering his a....</p>
<p>Any way, even though the results were not the best, I don’t want to fight. I just switched to another doctor. But at the same time, I feel like it’s unfair if I pay the $5,000. There is principle involved. I don’t want to pay for incompetent service. Do I have to? What are my options?</p>
| 61,820 |
[
{
"answer_id": 61821,
"body": "<blockquote>\n<p>I don’t want to pay for an incompetent service. Do I have to? What are my options?</p>\n</blockquote>\n<p>Regardless of the legislative specifics of your jurisdiction regarding <em>medical malpractice</em>, your description sounds in a possible claim of <em>breach of contract</em>.</p>\n<p>This is a fact-intensive matter. The amount (if any) you would have to pay depends on the medical details at issue. However, the lack of details in your description prevents us from assessing whether the main purpose of the procedure was attained even if it led to unforeseen side effects. Likewise, the statement "<em>the results were not the best</em>" is a milder phrasing of "<em>the result[s] of the procedure were bad</em>". That ambiguity requires us to speculate about the extent of physician's incompetence/wrongdoing as well as his viable defenses.</p>\n<p>If you take him to court, be prepared to elaborate and submit evidence on the matter rather than relying on the generic phrase "<em>there is a principle involved</em>".</p>\n",
"score": 2
},
{
"answer_id": 61824,
"body": "<h2>You have to pay the bill</h2>\n<p>Unless there was a “complete and utter failure of consideration” from the doctor (i.e. they didn’t do anything) then you must fulfill your side of the contract and pay the bill.</p>\n<p>If the doctor has performed their obligations negligently then you can sue for damages (which might include the fees if your new doctor) but you still have to pay them for what they did do.</p>\n<p>The leading case law on this (exact case escapes my memory) in <a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" rel=\"tag\">australia</a> relates to a cruise ship that sunk off New Zealand halfway through the cruise. While the passengers were entitled to damages for their losses, they were not entitled to refunds because the service had been (partially) provided.</p>\n",
"score": 2
}
] |
[
"medical"
] |
Is there a law against destroying works of art of historic importance when you are the owner?
| 29 |
https://law.stackexchange.com/questions/89438/is-there-a-law-against-destroying-works-of-art-of-historic-importance-when-you-a
|
CC BY-SA 4.0
|
<p>At work we recently had a bit of a debate about whether or not it would be legal to destroy a work of art if you are the owner of said work.</p>
<p>A few years ago, Banksy destroyed his own painting by shredding it, and recently there have been several instances where people have vandalized paintings by throwing paint, or by gluing themselves to a work of art.</p>
<p>Suppose I was the legal owner of (for example) a Van Gogh, or Michelangelo's David, would it be legal for me (for whatever reason) to destroy it, even though it is a work of art which is of both great financial and historical value?</p>
<p>For the sake of simplicity, let's assume that the work of art is not insured, so there's no insurance fraud to deal with.</p>
<p>Basically I'm just curious to learn if it would be legal or not. Obviously laws differ from country to country, but I'd still like to know if there's some sort of worldwide consensus, and if there are countries who have very different laws on this subject.</p>
| 89,438 |
[
{
"answer_id": 89441,
"body": "<p>In general, ownership of a thing includes the property right to dispose of or destroy the thing. However, there may be statutory prohibitions for special categories of property.</p>\n<p>Many countries have entered into treaties that obligate them to identify, protect, and conserve for future generations the cultural heritage in its territory. This includes "architectural works, works of monumental sculpture and painting." See e.g. <em><a href=\"https://whc.unesco.org/en/conventiontext/\" rel=\"noreferrer\">Convention Concerning the Protection of the World Cultural and Natural Heritage</a></em>. How this protection is realized is dependent on the nation's domestic implementation.</p>\n<p>For one example of a protection regime, see <a href=\"/questions/tagged/british-columbia\" class=\"post-tag\" title=\"show questions tagged 'british-columbia'\" aria-label=\"show questions tagged 'british-columbia'\" rel=\"tag\" aria-labelledby=\"british-columbia-container\">british-columbia</a>. When a work has been designated as a "Provincial heritage object" on the Provincial heritage register (<em>Heritage Conservation Act</em>, <a href=\"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96187_01#section3\" rel=\"noreferrer\">s. 3(1)</a>), the owner is prohibited from damaging, desecrating, or altering that work without a permit (s. 12.1(2)(a)).</p>\n<p>There is also a complex web of import and export restrictions relating to objects that a country has identified as cultural heritage. Many countries make it an offence to import an item from another country that has identified the object as cultural heritage without an export permit from that other country. That export permit will often not be provided to an entity without demonstrated capacity to preserve the cultural property. The permit can also subject to conditions (presumably, at least to not destroy the thing). See generally "<a href=\"https://www.canada.ca/en/canadian-heritage/services/export-permits-cultural-property/guide-exporting.html\" rel=\"noreferrer\">Guide to Exporting Cultural Property from Canada</a>," "<a href=\"https://www.canada.ca/en/canadian-heritage/services/export-permits-cultural-property.html\" rel=\"noreferrer\">Cultural property export permits</a>."</p>\n<p>I am not familiar with the United States' implementation, but it is a party to the World Heritage Convention and has <a href=\"https://whc.unesco.org/en/statesparties/us/Laws\" rel=\"noreferrer\">passed various statutes dealing relating to the protection of cultural moveable property.</a></p>\n",
"score": 46
},
{
"answer_id": 89448,
"body": "<h2>In <a href=\"/questions/tagged/japan\" class=\"post-tag\" title=\"show questions tagged 'japan'\" aria-label=\"show questions tagged 'japan'\" rel=\"tag\" aria-labelledby=\"japan-container\">japan</a> a (nonliving) national treasure must be preserved</h2>\n<p>The moment an item is declared a (physical) <a href=\"https://en.wikipedia.org/wiki/National_Treasure_(Japan)\" rel=\"noreferrer\">national treasure</a>, exporting it becomes illegal, and you also must preserve it in good condition. In return, you can apply for governmental help in preserving the item. If you don't repair the item after it incurred damage, the state can order you to repair it, or repair it on government mandate and then bill you - or confiscate the item in lieu of payment. If you want to sell it to anyone inside Japan, the government can veto the sale and buy it instead. You can't sell a national treasure to anyone not in Japan or take it with you outside of the country.</p>\n<p>This does not apply to the <a href=\"https://en.wikipedia.org/wiki/Living_National_Treasure_(Japan)\" rel=\"noreferrer\"><em>living</em> national treasures</a>, which are (at most 116) artisans and performers of rare specialization and skill. They are <strong>not</strong> forced to live, though they are encouraged to train another generation of their art and gain a stipend for their excellence.</p>\n",
"score": 21
},
{
"answer_id": 89461,
"body": "<p>In <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"germany-container\">germany</a>, there is the concept of <strong><em>nationales Kulturgut</em></strong> ("national heritage asset") - these are objects considered to have a special artistic, historical or archeological value. However, it only covers objects that are explicitly listed as such, or are owned by the state. Interestingly, works may only be listed with the approval of the author (if they are still alive).</p>\n<p>These objects are protected by the <a href=\"https://de.wikipedia.org/wiki/Kulturgutschutzgesetz_(Deutschland)\" rel=\"noreferrer\">Kulturgutschutzgesetz</a>, which among other things outlaws destroying or damaging them (<a href=\"https://www.gesetze-im-internet.de/kgsg/__18.html\" rel=\"noreferrer\">§18</a>). The punishment is up to 3 years in prison (<a href=\"https://www.gesetze-im-internet.de/kgsg/__83.html\" rel=\"noreferrer\">§83</a>).</p>\n<p>So destroying a painting would be illegal, provided the painting is listed as a <em>Kulturgut</em>. The list of protected works is available online - <a href=\"https://www.kulturgutschutz-deutschland.de/DE/3_Datenbank/Druckverss_Laenderverzeichnisse/druckvers_verzeichnis_node.html\" rel=\"noreferrer\">Datenbank geschützter Kulturgüter</a>.</p>\n<hr />\n<p>In addition to that, there is <a href=\"https://www.gesetze-im-internet.de/stgb/__304.html\" rel=\"noreferrer\">StGB § 304 Gemeinschädliche Sachbeschädigung</a>, which punishes the destruction of cultural objects which are on public display - however that would not apply to a privately owned work which is not on public display.</p>\n<p>Finally, the <em>Kulturgutschutzgesetz</em> only applies to movable objects. For immovable objects, such as buildings and archeological sites, there is the concept of <strong><a href=\"https://de.wikipedia.org/wiki/Denkmalschutz\" rel=\"noreferrer\">Denkmalschutz</a></strong> ("monument protection"), which regulates the modification and destruction of these objects. Like the protection of <em>Kulturgut</em>, it only applies to buildings or sites listed explicitly.</p>\n",
"score": 14
},
{
"answer_id": 89465,
"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=\"france-container\">france</a></p>\n<p>Most other answers have dealt with heritage / culture preservation criminal laws. However, there is another aspect from the artist’s rights in a civil trial.</p>\n<h2>It (probably) goes against <a href=\"https://en.wikipedia.org/wiki/Moral_rights\" rel=\"noreferrer\">moral rights</a></h2>\n<p>"Moral rights" allows an author or their heirs to ensure that her or his work of art is not denaturated. Moral rights are eternal (no fixed duration as for copyright or other intellectual property). For instance:</p>\n<ul>\n<li>At a charity auction, some well-known artist paints something on a fridge. You buy the fridge and decide to cut it to sell separate parts of the work of art. The artist can sue you and successfully prevent you from making that sale, because the work of art had been "mutilated" (<a href=\"https://jastrow.wordpress.com/2010/06/11/frigo-buffet/\" rel=\"noreferrer\">here</a> for the procedural history)</li>\n<li>You are the mayor of a mid-size town. The town square has a sculpture of an egg, in stone grey. You paint it blue to give more color to the town square (blue is also the color of your political party, which makes it a juicy newspaper item, but that’s legally irrelevant). The artist can sue you <a href=\"https://www.legavox.fr/blog/lafievredudroit/respect-droit-moral-auteur-droits-30370.htm\" rel=\"noreferrer\">and win</a>.</li>\n<li>You are the director of an hospital. In the courtyard, there is a statue. Medicine students have taken up a tradition of disguising and applying makeup to the statue twice a year. You clean the statue each time afterwards and ask the students to stop. If it keeps going on, the sculptor’s son <a href=\"https://affairesjuridiques.aphp.fr/textes/tribunal-de-grande-instance-de-paris-13-mars-2015-n-1307193-propriete-intellectuelle-depot-tiers-au-contrat-protection-faute-responsabilite/\" rel=\"noreferrer\">can still sue and force you to take effective measures to put an end to this</a> (and get some small amount of damages, too). Some of the evidence in that case were social media screenshots, offered as proof that the disguising of the statue was well-publicized and hence there was a significant prejudice against the artist’s original intent.</li>\n</ul>\n<p>I could not find a court case specifically on ''destruction'' of a work of art. If that destruction was in any way publicized/spectacular/a piece of performance art itself (as in Banksy’s <a href=\"https://www.bbc.co.uk/news/uk-england-bristol-45770028\" rel=\"noreferrer\">"going, going, gone" stunt</a>), that would definitely count as denaturating the artist’s intentions (of course, the shredding was done here by the artist or on his bidding). One could certainly argue that just putting it in the bin (without fanfare) would already be a serious attack on the artist’s moral rights.</p>\n",
"score": 10
},
{
"answer_id": 89444,
"body": "<p>Not in the US.</p>\n<p>The closest I can think of is the preservation of historic buildings. Many cities have rules about changing the external appearance of a building you own without a permit.</p>\n",
"score": 4
},
{
"answer_id": 89495,
"body": "<p>In <a href=\"/questions/tagged/germany\" class=\"post-tag\" title=\"show questions tagged 'germany'\" aria-label=\"show questions tagged 'germany'\" rel=\"tag\" aria-labelledby=\"germany-container\">germany</a> (like in <a href=\"https://law.stackexchange.com/a/89465/9286\">France</a>),</p>\n<blockquote>\n<p>The author has the right to prohibit the distortion or any other derogatory treatment of his or her work which is capable of prejudicing the author’s legitimate intellectual or personal interests in the work.</p>\n</blockquote>\n<p>(<a href=\"https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html#p0064\" rel=\"nofollow noreferrer\">UrhG §14</a>)</p>\n<p>Since this is copyright, it applies only to rather recent historical art (author died at most 70 years ago).</p>\n<p>In 2019, there was a <a href=\"https://openjur.de/u/2170418.html\" rel=\"nofollow noreferrer\">BGH ruling</a> saying that the interests of the owner to do as they like - including destruction - has to be weighted against the artists rights according to §14 UrhG. (Before that, there was a ruling from 1912 that held that the owner can do as they like)</p>\n<p>specifically:</p>\n<blockquote>\n<p>a) Die Vernichtung eines urheberrechtlich geschützten Werks stellt eine "andere Beeinträchtigung" im Sinne des § 14 UrhG dar. Bei der Prüfung, ob die Vernichtung geeignet ist, die berechtigten persönlichen und geistigen Interessen des Urhebers am Werk zu gefährden, ist eine umfassende Abwägung der Interessen des Urhebers und des Eigentümers des Werks vorzunehmen.</p>\n<p>b) Bei der Interessenabwägung ist auf Seiten des Urhebers zu berücksichtigen, ob es sich bei dem vernichteten Werk um das einzige Vervielfältigungsstück des Werks handelte, oder ob von dem Werk weitere Vervielfältigungsstücke existieren. Ferner ist zu berücksichtigen, welche Gestaltungshöhe das Werk aufweist und ob es ein Gegenstand der zweckfreien Kunst ist oder als angewandte Kunst einem Gebrauchszweck dient.</p>\n<p>c) Auf Seiten des Eigentümers können, wenn ein Bauwerk oder Kunst in oder an einem solchen betroffen ist, bautechnische Gründe oder das Interesse an einer Nutzungsänderung von Bedeutung sein. Bei Werken der Baukunst oder mit Bauwerken unlösbar verbundenen Kunstwerken werden die Interessen des Eigentümers an einer anderweitigen Nutzung oder Bebauung des Grundstücks oder Gebäudes den Interessen des Urhebers am Erhalt des Werks in der Regel vorgehen, sofern sich aus den Umständen des Einzelfalls nichts anderes ergibt.</p>\n<p>d) Im Rahmen der Interessenabwägung kann sich auswirken, ob der Eigentümer dem Urheber Gelegenheit gegeben hat, das Werk zurückzunehmen oder - wenn dies aufgrund der Beschaffenheit des Werks nicht möglich ist - Vervielfältigungsstücke hiervon anzufertigen.</p>\n</blockquote>\n<p>deepl translation with my help:</p>\n<blockquote>\n<p>a) The destruction of a copyrighted work constitutes an "other derogatory treatment" within the meaning of Section 14 UrhG. When examining whether the destruction is sufficient to endanger the author's legitimate personal and intellectual interests in the work, a comprehensive weighing of the interests of the author and the owner of the work must be carried out.</p>\n<p>b) When weighing the interests of the author, it must be taken into account whether the destroyed work was the original/only copy of the work or whether other copies of the work exist. Furthermore, it must be taken into account what level of originality the work has and whether it is an object of non-purposeful art or, as applied art, serves a utilitarian purpose.</p>\n<p>c) On the part of the owner, if a building or art in or on a building is involved, constructional reasons or the interest in a change of use may be of importance. In the case of works of architecture or works of art inextricably linked to buildings, the interests of the owner in a different use or development of the land or building will generally take precedence over the interests of the author in the preservation of the work, unless the circumstances of the individual case indicate otherwise.</p>\n<p>d) Within the framework of the weighing of interests, it may have an effect whether the owner has given the author the opportunity to take back the work or - if this is not possible due to the nature of the work - to make copies thereof.</p>\n</blockquote>\n",
"score": 3
},
{
"answer_id": 89460,
"body": "<p>While this is, technically, not an answer to your question it may be interesting in the context because it expands the scope of the legal discussion.</p>\n<p>In some jurisdictions, especially those in nations with religious governments, the (religious) law may not only not protect but actually <em>demand or suggest the destruction</em> of some art, even invaluable art. Examples are the <a href=\"https://en.wikipedia.org/wiki/Buddhas_of_Bamiyan\" rel=\"nofollow noreferrer\">Buddhas of Bamiyan</a>, and in some Muslim places probably depictions of the prophet Muhammad or of God.</p>\n<p>Some secular governments legally targeted certain art, for example the Nazis with the <em><a href=\"https://de.wikipedia.org/wiki/Gesetz_%C3%BCber_Einziehung_von_Erzeugnissen_entarteter_Kunst\" rel=\"nofollow noreferrer\">Gesetz über Einziehung von Erzeugnissen entarteter Kunst</a></em> in 1938. Most of the "degenerated art" was probably sold and not destroyed though. This law is remarkable because it was nominally in force until 1968.</p>\n<p>It is likely that most ideologically driven governments targeted art in one way or the other. Another prominent example is <a href=\"https://en.wikipedia.org/wiki/Four_Olds\" rel=\"nofollow noreferrer\">communist China</a>. While there may not have been an explicit law concerning undesirably art, the law, as far as it was codified at all in times of turmoil, certainly didn't <em>protect</em> it.</p>\n<p>The "socialist" regime in East Germany destroyed what was left of the Berlin Castle after the war, at least partly for ideological reasons, an act that was lamented by many in the West.</p>\n",
"score": 2
}
] |
[
"is-x-legal",
"ownership",
"vandalism"
] |
"We only collect anonymized data". Roughly what are the limits of this?
| 1 |
https://law.stackexchange.com/questions/89602/we-only-collect-anonymized-data-roughly-what-are-the-limits-of-this
|
CC BY-SA 4.0
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<p>Say a program that Bob is using asks to collect "anonymized data". Bob agrees. But roughly at what point is "anonymized" a false statement?</p>
<p>If I have Bob's shopping habits, gendre, device make, ip address/general location area, etc.; at some point, it's more than enough to uniquely identify Bob. In fact, I remember coming across plenty of academic literature about the subject back in 2015 (<a href="https://en.wikipedia.org/wiki/Data_re-identification" rel="nofollow noreferrer">relevant wiki link</a>)</p>
<p>My question is: are there definitive rulings/laws on the matter? It's definitely a gray area, but I'd like to know any concrete law/legislation surrounding it. Especially in the jurisdiction of the USA, and California in particular.</p>
| 89,602 |
[
{
"answer_id": 89615,
"body": "<p>Assuming that you are referring to online data collection, "personal information" is defined in California in <a href=\"https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=3.&part=4.&lawCode=CIV&title=1.81.5\" rel=\"nofollow noreferrer\">Cal. Civ 1798.140</a> as</p>\n<blockquote>\n<p>information that identifies, relates to,\ndescribes, is reasonably capable of being associated with, or could\nreasonably be linked, directly or indirectly, with a particular\nconsumer or household. Personal information includes, but is not\nlimited to, the following if it identifies, relates to, describes, is\nreasonably capable of being associated with, or could be reasonably\nlinked, directly or indirectly, with a particular consumer or\nhousehold:</p>\n<p>(A) Identifiers such as a real name, alias, postal address, unique\npersonal identifier, online identifier, Internet Protocol address,\nemail address, account name, social security number, driver’s license\nnumber, passport number, or other similar identifiers.</p>\n<p>(B) Any personal information described in subdivision (e) of Section\n1798.80.</p>\n<p>(C) Characteristics of protected classifications under California or\nfederal law.</p>\n<p>(D) Commercial information, including records of personal property,\nproducts or services purchased, obtained, or considered, or other\npurchasing or consuming histories or tendencies.</p>\n<p>(E) Biometric information.</p>\n<p>(F) Internet or other electronic network activity information,\nincluding, but not limited to, browsing history, search history, and\ninformation regarding a consumer’s interaction with an internet\nwebsite application, or advertisement.</p>\n<p>(G) Geolocation data.</p>\n<p>(H) Audio, electronic, visual, thermal, olfactory, or similar\ninformation.</p>\n<p>(I) Professional or employment-related information.</p>\n<p>(J) Education information, defined as information that is not publicly\navailable personally identifiable information as defined in the Family\nEducational Rights and Privacy Act (20 U.S.C. Sec. 1232g; 34 C.F.R.\nPart 99).</p>\n<p>(K) Inferences drawn from any of the information identified in this\nsubdivision to create a profile about a consumer reflecting the\nconsumer’s preferences, characteristics, psychological trends,\npredispositions, behavior, attitudes, intelligence, abilities, and\naptitudes.</p>\n<p>(L) Sensitive personal information.</p>\n</blockquote>\n<p>But also, it "does not include consumer information that is deidentified or aggregate consumer information". To answer the next question,</p>\n<blockquote>\n<p>“Deidentified” means information that cannot reasonably be used to\ninfer information about, or otherwise be linked to, a particular\nconsumer provided that the business that possesses the information:</p>\n<p>(1) Takes reasonable measures to ensure that the information cannot be\nassociated with a consumer or household.</p>\n<p>(2) Publicly commits to maintain and use the information in\ndeidentified form and not to attempt to reidentify the information,\nexcept that the business may attempt to reidentify the information\nsolely for the purpose of determining whether its deidentification\nprocesses satisfy the requirements of this subdivision.</p>\n<p>(3) Contractually obligates any recipients of the information to\ncomply with all provisions of this subdivision.</p>\n</blockquote>\n<p>The conspicuous lack of "and" or "or" in these clauses raises a red flag, in case the AG deems that all three conditions must be met to qualify as "deidentified"</p>\n",
"score": 1
}
] |
[
"united-states",
"privacy",
"california",
"data",
"anonymization"
] |
If you taunt someone, then are you disqualified from "self-defense" when they become violent with you?
| 1 |
https://law.stackexchange.com/questions/89583/if-you-taunt-someone-then-are-you-disqualified-from-self-defense-when-they-be
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CC BY-SA 4.0
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<p>Dave is angry and intoxicated. Terry the Troll goes up to Dave and starts insulting him and his mother (etc.), and Dave lashes out and starts trying to beat up Terry.</p>
<p>My question is if Terry "cleaned Bob's clock" in return, could it be considered self-defense? Or does Terry's initial taunting disqualify self-defense as an excuse?</p>
<p>Edit: Editted to focus only on the self-defense question.</p>
| 89,583 |
[
{
"answer_id": 89587,
"body": "<p>That depends on whether the legislature has made this a disqualifier. In North Carolina, <a href=\"https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_14/GS_14-51.4.pdf\" rel=\"nofollow noreferrer\">G.S. 14-51</a> disqualifies a person from using the self-defense defense when the person "Initially provokes the use of force against himself or herself", with an exception to the disqualification if the attack puts him in imminent danger of death or serious bodily harm and he cannot withdraw, or if the person has "retreated". The initial aggressor doctrine is also part of <a href=\"https://lawofselfdefense.com/jury-instruction/la-%C2%A7-623-aggressor-doctrine/\" rel=\"nofollow noreferrer\">Louisiana law</a>. There is a <a href=\"https://govt.westlaw.com/wcrji/Document/Ief9fc262e10d11daade1ae871d9b2cbe?transitionType=Default&contextData=%28sc.Default%29\" rel=\"nofollow noreferrer\">jury instruction</a> on this matter in Washington state which further clarifies that</p>\n<blockquote>\n<p>No person may, by any intentional act reasonably likely to provoke a\nbelligerent response, create a necessity for acting in self-defense\n[or] [defense of another] and thereupon [kill] [use, offer, or attempt\nto use force upon or toward] another person. Therefore, if you find\nbeyond a reasonable doubt that the defendant was the aggressor, and\nthat defendant's acts and conduct provoked or commenced the fight,\nthen self-defense [or] [defense of another] is not available as a\ndefense. [<strong>Words alone are not adequate provocation for the defendant\nto be the aggressor</strong>.]</p>\n</blockquote>\n<p>Under those circumstances, self-defense is not definitively off the table. One would then look at the <a href=\"https://govt.westlaw.com/wcrji/Document/Iefa01084e10d11daade1ae871d9b2cbe?transitionType=Default&contextData=%28sc.Default%29\" rel=\"nofollow noreferrer\">general instruction for self defense</a>, paying attention to whether Terry has an alternative to using force. On the one hand, in Washington there is no "duty to retreat". But force is legal only when necessary. That term is defined in <a href=\"https://apps.leg.wa.gov/rcw/default.aspx?cite=9A.16.010\" rel=\"nofollow noreferrer\">RCW 9A.16.010</a></p>\n<blockquote>\n<p>"Necessary" means that no reasonably effective alternative to the use\nof force appeared to exist and that the amount of force used was\nreasonable to effect the lawful purpose intended.</p>\n</blockquote>\n<p>The solution, stated in the comments but not the instruction, is that "the court may need to make clearer to the jury that the defendant was not obliged to retreat rather than defend". But also, "At the same time, the prosecutor should not be deprived of the argument that other alternatives to the use of force may have existed". So the judge will have to also read the <a href=\"https://govt.westlaw.com/wcrji/Document/Iefa01090e10d11daade1ae871d9b2cbe?transitionType=Default&contextData=%28sc.Default%29\" rel=\"nofollow noreferrer\">no duty to retreat instruction</a>:</p>\n<blockquote>\n<p>It is lawful for a person who is in a place where that person has a\nright to be and who has reasonable grounds for believing that [he]\n[she] is being attacked to stand [his] [her] ground and defend against\nsuch attack by the use of lawful force. [The law does not impose a\nduty to retreat.] [Notwithstanding the requirement that lawful force\nbe “not more than is necessary,” the law does not impose a duty to\nretreat. <strong>Retreat should not be considered by you as a “reasonably\neffective alternative.”</strong>]</p>\n</blockquote>\n<p>In that case, the jury must decide whether it was really necessary for Terry to clean Bob's clock in order to stop Bob's assault.</p>\n",
"score": 2
},
{
"answer_id": 89585,
"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 elements of self-defence are set out in the <em>Criminal Code</em> at <a href=\"https://lois-laws.justice.gc.ca/eng/acts/C-46/section-34.html\" rel=\"nofollow noreferrer\">s. 34</a>.</p>\n<p>Among other things, the defensive act must be "reasonable in the circumstances" (s. 34(1)(c)). In determining whether the defensive act is "reasonable in the circumstances," the court must consider all the circumstances, including, but not limited to "<strong>the person's role in the incident</strong>" and "the nature and proportionality of the person's response to the use or threat of force" (s. 34(2)(c), (g)).</p>\n<p><em>R. v. Khill</em>, <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/19020/index.do\" rel=\"nofollow noreferrer\">2021 SCC 37</a>:</p>\n<blockquote>\n<p>accused persons should not be able to instigate an assault so that they can claim self‑defence. . . . [T]hose who provoke an assault are causally responsible in a real sense for the violence that ensues even if they did not intend to provoke an attack and . . . this should diminish their right of response.</p>\n</blockquote>\n<p>But that is just one of the factors. The fact that an accused was the initiator or instigator does not rule out that self-defence may still be available as a defence for them. None of the factors alone can "disqualify" someone from self-defence:</p>\n<blockquote>\n<p>This is a global, holistic exercise. No single factor is necessarily determinative of the outcome.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"united-states",
"freedom-of-speech",
"self-defense",
"assault",
"alcohol"
] |
What determines the legality of whether a non-controlled substance can be included in food?
| 2 |
https://law.stackexchange.com/questions/89604/what-determines-the-legality-of-whether-a-non-controlled-substance-can-be-includ
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CC BY-SA 4.0
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<p>If there was a food or chemical substance that was not listed as a controlled substance either federally or at the state level, and it is never explicitly mentioned in any FDA food guidelines, does that mean that it can be included in food and sold to consumers without any special labeling? What laws regulate whether a chemical substance or plant product can be included in food when it is not explicitly banned or regulated by the FDA, assuming it isn't harmful at amounts present in a normal serving?</p>
<p>What if that substance has potentially harmful effects when taken in much larger amounts than included in a standard serving of the food product? (For instance, caffeine is legal to sell without warning labels, but in excessive doses can result in hospitalization or death). If a product is safe in the suggested serving size, are food processors liable for harm caused when people abuse their products and consume excessive amounts of them?</p>
| 89,604 |
[
{
"answer_id": 89607,
"body": "<p>The FDA maintains a list of substances "generally recognized as safe" and provides that list on their web site at:</p>\n<p><a href=\"https://www.fda.gov/food/food-ingredients-packaging/generally-recognized-safe-gras\" rel=\"nofollow noreferrer\">GRAS</a></p>\n<p>To quote their site:</p>\n<blockquote>\n<p>Under sections 201(s) and 409 of the Act, and FDA's implementing\nregulations in 21 CFR 170.3 and 21 CFR 170.30, the use of a food\nsubstance may be GRAS either through scientific procedures or, for a\nsubstance used in food before 1958, through experience based on common\nuse in food Under 21 CFR 170.30(b), general recognition of safety\nthrough scientific procedures requires the same quantity and quality\nof scientific evidence as is required to obtain approval of the\nsubstance as a food additive. General recognition of safety through\nscientific procedures is based upon the application of generally\navailable and accepted scientific data, information, or methods, which\nordinarily are published, as well as the application of scientific\nprinciples, and may be corroborated by the application of unpublished\nscientific data, information, or methods.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"food",
"drugs",
"fda",
"food-processing"
] |
Are there any contract/law-based incentives for someone on their death-bed to obey the law?
| 0 |
https://law.stackexchange.com/questions/89599/are-there-any-contract-law-based-incentives-for-someone-on-their-death-bed-to-ob
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CC BY-SA 4.0
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<p>Walter is told that he has 1 week to live. So he goes on his twitter profile, and posts the KFC secret formula, airs all the dirty laundry of his boss, etc.. Basically, he breaks every last NDA he was a part of. In the most extreme case, perhaps he even goes on a violent crime spree.</p>
<p>What is discouraging Walter from doing this? I know that, in Japan, penalties can be forced onto family/loved ones. But I don't think that's the case in America. So, in terms of the law and its enforcement, what is there to discourage Walter from causing millions of dollars in damages, etc.?</p>
| 89,599 |
[
{
"answer_id": 89603,
"body": "<h2>Bob’s estate can be sued</h2>\n<p>Bob the human is dead but Bob the legal person continues, at least for a while. People who were damaged by Bob the human can sue Bob’s estate for restitution. Assuming that Bob would like his assets Togo to his heirs instead of these people, that acts as a disincentive.</p>\n<p>This does not apply to criminal sanctions.</p>\n",
"score": 4
}
] |
[
"united-states",
"criminal-law",
"contract-law",
"death",
"penalty"
] |
I found a stick pin in my mouth after a bite of peanut butter. Can I sue the company and win?
| -5 |
https://law.stackexchange.com/questions/89506/i-found-a-stick-pin-in-my-mouth-after-a-bite-of-peanut-butter-can-i-sue-the-com
|
CC BY-SA 4.0
|
<p>I took a bite of peanut butter and found a stickpin in my mouth and I almost swallowed it. It was a brand new jar and still had the seal on it. I don't know why a stickpin would be in peanut butter, but do i have valid grounds to sue?</p>
| 89,506 |
[
{
"answer_id": 89508,
"body": "<p>As a lawsuit, it doesn't make sense in U.S. law unless you have suffered significant injuries. Your damages are likely to be, at most, nominal ($1) if you discovered it before you were hurt, so you'd only lose the money spent replacing the jar of peanut butter with a non-defective one and the nominal $1 damages.</p>\n<p>You would not generally have a right to any of your attorneys' fees and personal time spent on a lawsuit like that which would likely cost tens or hundreds of thousands of dollars on an hourly basis (no attorney would take a case like that on a contingency basis), and would take hundreds of hours of your own personal time.</p>\n",
"score": 3
},
{
"answer_id": 89515,
"body": "<p>It's a bit disturbing that you consider a lawsuit your first, rather than final, recourse. The purpose of the legal system is to have the government force someone to do something they refuse to do otherwise. It isn't supposed to be a system for submitting invoices. You should contact the company, and only if (and probably not even then) they refuse to provide compensation should you consider a lawsuit. If you do file a lawsuit, the question would arise as to what damages you can claim. The simple existence of tortious conduct does not justify a lawsuit without damages as well.</p>\n",
"score": 2
},
{
"answer_id": 89507,
"body": "<p>It's up to you to decide whether you should, though you ought to consult an attorney to see if the costs outweigh the benefits. The main question is, in what way were you harmed by this object? Don't tell us, tell your attorney. Obviously, the cost of fixing the broken tooth or whatever other physical damage ensued would be part of the damages; also loss of income or even potential income if the damage affected your career as a trumpet player. There is always the potential for emotional damage arising from the trauma. Under the circumstances, the manufacturer might be willing to settle. OTOH stickpin in two different brands of peanut butter (unless this is the same manufacturer, different outlets) is stunningly unlikely, so you would have an uphill battle to convince the jury that it was the manufacturer's fault.</p>\n",
"score": 1
}
] |
[
"united-states"
] |
What should a lawyer do if they are confident their client is committing perjury?
| 6 |
https://law.stackexchange.com/questions/89589/what-should-a-lawyer-do-if-they-are-confident-their-client-is-committing-perjury
|
CC BY-SA 4.0
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<p>Let's say a client confesses one thing to their lawyer, but at trial makes a radically different claim when asked while under oath. The difference is substantial and likely to affect the result of the trial and the lawyer reasonable believes the defendant has committed perjury.</p>
<p>He can't come out and accuse his client of lying based off of confidential information covered by attorney client privilege. However, he also can't support perjury, putting him in an awkward position.</p>
<p>Does the lawyer just move on and say nothing? Can they continue their planned defense as it was because the perjury doesn't change the argument, even if it could affect the odds of the client being found guilty? Then again what if the perjury does change the argument the defense was planning to make and he has to either alter his plan for defense or likely reveal the perjury? If the lawyer adjusts his defense in deference to the lie is he not supporting perjury?</p>
<p>Does the lawyer simply say he can't continue to defend his client and ask for a mistrial without saying why?</p>
| 89,589 |
[
{
"answer_id": 89591,
"body": "<p>If somehow the lawyer knows that evidence provided by their client to the court is false, the lawyer has an obligation to direct the client to cease the perjury and to persuade the client to disclose to the court that the evidence was false. If the client does not stop, the lawyer must withdraw.</p>\n<p>There are tactful ways to express the reason for withdrawal to the court without prejudicing the client.</p>\n<p>Ethics opinions and guidance are available online from various bar associations explaining how to handle this situation, as well as academic scholarship on the topic:</p>\n<ul>\n<li><a href=\"https://www.alabar.org/office-of-general-counsel/formal-opinions/2009-01/\" rel=\"nofollow noreferrer\">https://www.alabar.org/office-of-general-counsel/formal-opinions/2009-01/</a></li>\n<li><a href=\"https://www.lawsociety.ab.ca/resource-centre/key-resources/client-relationship-management/untying-the-knot/\" rel=\"nofollow noreferrer\">https://www.lawsociety.ab.ca/resource-centre/key-resources/client-relationship-management/untying-the-knot/</a></li>\n<li><a href=\"https://firearmslaw.ca/2013/10/25/right-to-know-the-ethical-dilemma-of-a-lying-client/\" rel=\"nofollow noreferrer\">https://firearmslaw.ca/2013/10/25/right-to-know-the-ethical-dilemma-of-a-lying-client/</a></li>\n<li><a href=\"https://www.ncbar.gov/for-lawyers/ethics/ethics-articles/dealing-with-client-perjury/\" rel=\"nofollow noreferrer\">https://www.ncbar.gov/for-lawyers/ethics/ethics-articles/dealing-with-client-perjury/</a></li>\n<li><a href=\"https://scholarcommons.sc.edu/sclr/vol42/iss4/10/\" rel=\"nofollow noreferrer\">https://scholarcommons.sc.edu/sclr/vol42/iss4/10/</a></li>\n</ul>\n<p>Every bar association should be able to provide advice to a lawyer faced with this situation that is tailored to the specific circumstances and the local rules.</p>\n",
"score": 4
}
] |
[
"criminal-law",
"professional-ethics",
"attorney-client-privilege",
"perjury"
] |
Is character assassination of witnesses allowed?
| 2 |
https://law.stackexchange.com/questions/89559/is-character-assassination-of-witnesses-allowed
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CC BY-SA 4.0
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<p>Say that one side of a trial brings a witness Walter onto the stand. If the other side doesn't like Walter's testimony (and wants the jury to not take it seriously), are they allowed to engage in character assassination of Walter? For example, airing his past crimes, his controversial social media posts, etc.. To be clear, there is nothing material against the content of Walter's testimony. All they're doing is "factually" berating his character.</p>
<p>As a follow-up, when cross-examining the witness Walter, is the attorney allowed to proceed down a line of questioning designed solely to twist the knife on the character assassination angle (as opposed to questioning about the actual testimony that was made)? For example, directly asking Walter about controversial tweets they made supporting Nazism, as opposed to anything relevant to the case.</p>
<p>I'm not sure what the correct answer might be. On one hand, knowing that the witness has been untrustworthy in the past is pertinent information to be considered by the jury. On the other hand, focusing on a witness's unsavory beliefs is a massive and immaterial distraction that puts personal bias over actual facts.</p>
| 89,559 |
[
{
"answer_id": 89563,
"body": "<p>It is allowed to introduce evidence that impeaches the credibility or reliability of a witness, which could include his previous 5 convictions for perjury. This does not constitute "character assassination", so I'm not sure what you mean by that. A felony conviction can be admissible (assuming he was not exonerated). There are limits; for example, evidence of religious belief would be inadmissible, likewise holding an unpopular political belief. The evidence has to be connected to the witness's honesty.</p>\n",
"score": 7
},
{
"answer_id": 89580,
"body": "<p>Essentially, this is allowed if the line of questioning is relevant to the case at hand. For example, if the suspect of a crime is Jewish, then the identifying witness's support of a neo-Nazi organization might be relevant on cross as it would impeach the witness's reliability as they would be more likely to be biased in their identification of the suspect.</p>\n<p>However, if there is no racial/religious component to the case, then being a neo-Nazi has no more bearing than being a Democrat or a Communist. The opposing council would likely object on the grounds of "relevance" to which the cross-examining council will have to explain to the judge why the line of questioning is relevant or the judge will sustain the objection and instruct the cross-examiners to cease lines of questioning.</p>\n<p>This will likely be brought up in pre-trial hearings as the side that is introducing the witness will likely want to bury the witness's political beliefs. If a judge makes a court order limiting the scope of questioning from discussing the witness's beliefs, then asking questions of this nature could get the attorney in question a charge of contempt of court.</p>\n",
"score": 4
}
] |
[
"united-states",
"trial",
"witnesses",
"testimony",
"cross-examination"
] |
LGPL open source project - condition on invoking license (no right to use the software) on certain modifications. Is it possible?
| 0 |
https://law.stackexchange.com/questions/89578/lgpl-open-source-project-condition-on-invoking-license-no-right-to-use-the-so
|
CC BY-SA 4.0
|
<p>Released a software under LGPL license.</p>
<p>Now added also a paid license check to it, so users can also upgrade to commercial license.</p>
<p>However, I think some users can remove the check and re-release it under LGPL</p>
<p>Can I somehow prohibit it? If license check code parts are modified, users rights, license (LGPL) are completely removed and there is not right to use this modified software.</p>
<p>How can I protect against this modification of code?</p>
<p>With close source it can be cracked, but with Open Source it would be very easy to remove it and release in the Internet as a new project.</p>
<p>What are your suggestions?</p>
<p>Was thinking to add a extra clause in "commons clause" in LGPL that would say:</p>
<p>"modification to license check code, removes and rights to use this software"</p>
<p>"Unauthorized further distribution may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law."</p>
| 89,578 |
[
{
"answer_id": 89579,
"body": "<p>If you have released software under the LGPL license, you have given all recipients the right to modify this software for any purpose, including removing or adding features in a manner that you don't like.</p>\n<p>If you don't want that, you should not release your commercial features under the LGPL. Things you could consider doing:</p>\n<ul>\n<li><p>Publish the software under a different license. This is what you're thinking about. But note that you can't just add such license terms.</p>\n<ul>\n<li>Either, the license is still the LGPL with some extra terms. But then, the terms of the LGPLv3 allow recipients to remove the additional restrictions.</li>\n<li>Or, this is an entirely separate license. But then it would no longer be the LGPL, and no longer be an Open Source license.</li>\n</ul>\n<p>Whether such additional terms create a separate license or can be removed from the license is currently being litigated in the US in the context of the Neo4J database, which added the "Commons Clause" restrictions to the AGPLv3. See a discussion of the case from the Software Freedom Conservancy here: <a href=\"https://sfconservancy.org/blog/2022/mar/30/neo4j-v-purethink-open-source-affero-gpl/\" rel=\"nofollow noreferrer\">https://sfconservancy.org/blog/2022/mar/30/neo4j-v-purethink-open-source-affero-gpl/</a></p>\n</li>\n<li><p>Remove the restricted features from the LGPL version and maintain a separate commercial version, or implement the commercial features as a plugin. This is sometimes known as an “open core” business model.</p>\n<p>Due to the limited copyleft effect of the LGPL, you can still combine the proprietary parts and the LGPL-covered parts into a single program, but doing so may be confusing for users. It should be absolutely clear which parts are LGPL-covered, and which are your proprietary parts that cannot be modified. However, you would not be able to prevent recipients from using the LGPL-covered parts without your proprietary components, i.e. they would always be able to remove any licensing checks etc.</p>\n</li>\n</ul>\n<p>More generally, it could make sense to think about why you want to publish any part of the software as Open Source. Sometimes, Open Source licensing is a good business decision, sometimes it isn't. If you want to control what users can do with the software, Open Source licensing is not a good fit for your goals.</p>\n",
"score": 4
}
] |
[
"licensing"
] |
Why do some decisions reference case law that references other case law? Why not just reference the original case law?
| 1 |
https://law.stackexchange.com/questions/89573/why-do-some-decisions-reference-case-law-that-references-other-case-law-why-not
|
CC BY-SA 4.0
|
<p>I have seen this loads of times as I read through court decisions and case law.</p>
<p>I am reading a Decision issued by an appeals court, and the judges cite a case that in turn cites a case. Here is the passage:</p>
<blockquote>
<p>Our first task “is to determine whether the language at issue has a
plain and unambiguous meaning with regard to the particular dispute in
the case.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002)
(citing Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)).</p>
</blockquote>
<p>My question is, why bother citing <code>Barnhart v. Sigmon Coal Co</code> at all, if ultimately, the thing we are interested in is really <code>Robinson v. Shell Oil Co.</code>?</p>
| 89,573 |
[
{
"answer_id": 89576,
"body": "<h2>Lots of reasons</h2>\n<ol>\n<li>The citing case may be in a higher court than the cited case but might not actually add anything. You always go for the highest authority on record.</li>\n<li>From time to time, a case makes a big review and consolidation of all the case law on a particular point. It is then easier to cite that case rather than half a dozen cases that it summarised.</li>\n<li>More recent cases are worth more, all else being equal. A case from 2002 shows the law hasn’t changed since the decision in 1997.</li>\n<li>Repeated precedents are worth more, all else being equal. By using the citing case you get the weight of two judges (or more for multi-judge appeals) for the price of one.</li>\n<li>Some judges write better than others. Citing their cases may better clarify the point.</li>\n</ol>\n",
"score": 3
}
] |
[
"legal-research",
"case-law",
"legal-citation",
"lines-of-case-law"
] |
Does filling U.S. postal service business reply envelopes with junk incur any legal peril?
| 9 |
https://law.stackexchange.com/questions/9665/does-filling-u-s-postal-service-business-reply-envelopes-with-junk-incur-any-le
|
CC BY-SA 3.0
|
<p>Some companies that send junk mail include a "business reply" envelope. This allows the junk mail recipient to send a "reply" through U.S. mail at the originator's expense.</p>
<p>In fact these business reply envelopes can be filled with heavy junk and given to the U.S. Postal Service in order to impose additional postage costs on the junk mailer (perhaps discouraging them from further junk mailing). If a person did that could he be found liable for damages in a civil action? Or does it run afoul of any criminal statute? Are there any examples of either?</p>
| 9,665 |
[
{
"answer_id": 31497,
"body": "<p>Two questions. Since the answer to the second answers the first I will go out of order</p>\n\n<blockquote>\n <p>If a person did that could he be found liable for damages in a civil action? <strong>Or does it run afoul of any criminal statute?</strong></p>\n</blockquote>\n\n<p>As far as the post office is concerned, per <a href=\"https://pe.usps.com/text/dmm300/505.htm\" rel=\"nofollow noreferrer\">Domestic Mail Manual 505 1.3.1</a> your heavy boxes shipped Business Reply Mail (BRM) are considered waste. Mailing the box with BRM as a label would not be a crime as long as you did not improperly ship prohibited items, like ammunition, or were trying to commit another crime such as sending a bomb or drugs through the mail, but it would be thrown out or returned to you. See: <a href=\"https://pe.usps.com/text/csr/ps-086.htm\" rel=\"nofollow noreferrer\">customer support ruling</a></p>\n\n<blockquote>\n <p><strong>If a person did that could he be found liable for damages in a civil action?</strong> Or does it run afoul of any criminal statute?</p>\n</blockquote>\n\n<p>Unless you wasted the post offices time with excessive bulk mailings of junk or any of the reasons given before, not likely.</p>\n",
"score": 4
}
] |
[
"united-states",
"criminal-law",
"damages",
"mail"
] |
Has it been Legally Confirmed that A Website is not Liable if passwords stolen from it are used on other sites?
| 14 |
https://law.stackexchange.com/questions/71117/has-it-been-legally-confirmed-that-a-website-is-not-liable-if-passwords-stolen-f
|
CC BY-SA 4.0
|
<p>Security Experts the world around all agree that you should not reuse passwords across sites. This is simply a matter of best practice, and it protects you such that if your StackExchange password is stolen, they can't use that to access your bank account.</p>
<p>The general feeling I get from my security friends is that this "advice" is legally bulletproof, and that if their website is hacked, and plaintext passwords are stolen, they don't have to worry about someone suing them because the password that was stolen from their website was also used on that person's banking page. After all, "It's the user's fault for reusing a password!"</p>
<p>Has this belief actually been upheld in court yet? Or is this a firestorm waiting to happen when Amazon turns out to be the victim and they sue some smaller organization for every penny it has?</p>
| 71,117 |
[
{
"answer_id": 71119,
"body": "<p><a href=\"/questions/tagged/united-states\" class=\"post-tag\" title=\"show questions tagged 'united-states'\" rel=\"tag\">united-states</a></p>\n<p>The argument you are making, restated in legal terms, is roughly as follows:</p>\n<ol>\n<li>Users have a duty to not reuse passwords.</li>\n<li>When a user reuses a password, and their password is subsequently stolen and used to fraudulently access the plaintiff's system, that password reuse becomes the proximate cause of the plaintiff's business injury.</li>\n<li>Therefore, our storage of plaintext passwords cannot be the proximate cause, and so we cannot be liable.</li>\n</ol>\n<p><strong>This argument is mostly wrong.</strong> Leaving aside the fact that you're going to have a tough time convincing a jury of #1, a tort may have more than one proximate cause. Both the password reuse and the plaintext storage were but-for causes of the injury (i.e. if either had not happened, then the injury would not have happened). The injury was foreseeable, because it is well known in the security industry that many users in fact do reuse their passwords, professional advice notwithstanding. In most US states, that's enough to establish proximate cause. In the minority of states using the "direct causation" test, you <em>might</em> be able to characterize the user's password reuse as an intervening cause, and thereby avoid liability.</p>\n<p>However, there are other elements of tort law which must be established aside from proximate cause, and so by itself this does not resolve the question of liability. Other defenses might be applicable; for example, the terms of service might contain an indemnification agreement, which (if upheld) would make the user(s) responsible. The defendant might also argue that there is no duty of care, that it was not breached, or that the injury was or <a href=\"https://en.wikipedia.org/wiki/Comparative_negligence\" rel=\"noreferrer\">should have been</a> <em>de minimis</em> (i.e. that the plaintiff should have taken greater care to prevent damages arising from account hijacking).</p>\n",
"score": 31
},
{
"answer_id": 71124,
"body": "<p>If the customer is in the EU (or UK or EEA) and services were offered, targeted or marketed to that area, the GDPR applies. If the organization running the site has an establishment in the EU, the GDPR also applies. If the customer is in California, the CCPA applies. Other US states, including Colorado and Virginia, have recently passed data protection laws somewhat similar to the CCPA. Other jurisdictions may well pass such laws in future.</p>\n<p>All these laws require that "appropriate" technical safeguards be used when storing personal data. And yes, passwords are almost surely personal data under these laws. Exactly what is an appropriate level of security is not defined in detail. It depends on the nature of the information involved, and the risks of a possible breach. It also changes with the current state of technology.</p>\n<p>Given that security best practice is <strong>never</strong> to store plaintext passwords, but only salted one-way hashes of passwords, there might be an argument that any system that stores plaintext passwords is not taking appropriate security measures.</p>\n<p>The CCPA gives consumers a private right of action if a data breach compromises their information through a failure to take appropriate precautions. This means that individual consumers can sue companies that have breaches due to poor practices for up to $7,500 per consumer. The GDPR allows consumers to complain to a supervisory agency, which can impose significant fines.</p>\n<p><a href=\"https://www.omm.com/resources/alerts-and-publications/alerts/ccpa-case-tracker/\" rel=\"noreferrer\">This CCPA Case Tracker</a> lists several large data breach cases now in process. It does not say whether passwords were an element of the breach in all cases.</p>\n<p>In <a href=\"https://www.hklaw.com/en/insights/publications/2020/07/litigating-the-ccpa-in-court\" rel=\"noreferrer\">"Litigating the CCPA in Court"</a> from the law firm of Holland & Knight (July 2020) it is said that:</p>\n<blockquote>\n<p>In the new wave of CCPA data breach cases, plaintiffs have generally pleaded a right to statutory damages, and also often seek restitution and an injunction against defendants' continued (allegedly) improper handling of personal information. Only a small percentage of cases allege actual damages as a result of the purported incident.</p>\n</blockquote>\n",
"score": 14
},
{
"answer_id": 71180,
"body": "<p>Bluntly, the argument is obviously nonsensical. It's so absurd that it can't even be made with a straight face.</p>\n<p>Here is how you've described it:</p>\n<p>"Security Experts the world around all agree that you should not reuse passwords across sites. This is simply a matter of best practice, and it protects you such that if your StackExchange password is stolen, they can't use that to access your bank account."</p>\n<p>Let's try the equal and opposite version of the very same argument:</p>\n<p>"Security Experts the world around all agree that you should not store passwords in plaintext. This is simply a matter of best practice, and it protects you such that if your StackExchange password is stolen from storage, they can't use that to access your bank account."</p>\n<p>See the problem?</p>\n<p>There are <em>two</em> things, both best practices, that everyone is supposed to do to protect from this scenario. You are saying that you can deliberately choose not to do one of them because you can rely on others to do the other. But if that were correct, that argument would apply equally well to users being able to rely on site operators not to store passwords in plaintext.</p>\n<p>So anyone who thinks that argument is correct needs to explain why the user can't make the same argument. Because, obviously, they can't both be right.</p>\n<p>No such explanation is possible.</p>\n<p>And, of course, it would be the site who would have additionally somehow allowed its password database to get stolen. So arguing for a 50/50 split in responsibility won't even work here.</p>\n",
"score": 2
}
] |
[
"liability",
"security"
] |
Why is Julian Assange in jail?
| 3 |
https://law.stackexchange.com/questions/70538/why-is-julian-assange-in-jail
|
CC BY-SA 4.0
|
<p>Further to <a href="https://law.stackexchange.com/questions/39108/what-would-be-julian-assanges-expected-punishment-on-the-current-english-crimi/39109">another question</a> asked on these boards:</p>
<p>Julian Assange was <a href="https://www.independent.co.uk/news/uk/home-news/julian-assange-prison-jail-time-weeks-bail-embassy-a8894326.html" rel="nofollow noreferrer">sentenced to 50 weeks</a> for jumping bail on 1 May 2019<br />
Presumably, his jail term began immediately upon sentencing, in which case he finished serving his sentence 68+ weeks ago.</p>
<p>He was <a href="https://www.theguardian.com/media/2019/sep/14/julian-assange-to-remain-in-jail-pending-extradition-to-us" rel="nofollow noreferrer">held for several months pending</a> extradition hearings, which itself does not make complete sense: presumably, the extradition hearings should have been conducted while he was serving the actual sentence.</p>
<p>Why is he still being held in Belmarsh?</p>
<p>I understand that after a very pro-extradition<sup>1</sup> judge, overseen by one with serious conflicts<sup>2</sup>, <a href="https://www.nytimes.com/2021/01/04/world/europe/assange-extradition-denied.html" rel="nofollow noreferrer">struck down</a> the American request for extradition, the <a href="https://www.theguardian.com/media/2021/feb/12/us-government-appeals-uk-ruling-against-julian-assanges-extradition-joe-biden-wikileaks" rel="nofollow noreferrer">Americans are appealing</a>.</p>
<p><strong>Larger question</strong>
However, my understanding is that if a judge finds someone guilty then they go to jail right away. And they have to file appeals while serving their sentence. Is the converse not true, i.e. if the judge finds someone not guilty and the government appeals, then doesn't the person contest the appeal as a free person?</p>
<p>1 Of her 24 previous extradition hearings, Vanessa Baraitser <a href="https://theintercept.com/2020/10/06/julian-assange-trial-extradition/" rel="nofollow noreferrer">ordered extradition</a> in 23.<br />
2 Vanessa Baraitser is overseen by Emma Arbuthnot who has refused to formally recuse herself despite family <a href="https://theintercept.com/2020/10/06/julian-assange-trial-extradition/" rel="nofollow noreferrer">connections to people cited for criminal activities</a> in documents published by WikiLeaks.</p>
| 70,538 |
[
{
"answer_id": 70539,
"body": "<p>There are two reasons for jail:</p>\n<ul>\n<li><p>Applying the sentence</p>\n</li>\n<li><p>Denying the accused the opportunity of fleeing, destroying evidence or doing the same felonies again.</p>\n</li>\n</ul>\n<p>The last part is always a difficult one, as the accused has still not received a veredict but has his rights severely curtailed. In general it is intended as a last ditch measure, and the circumstances of the case must be considered.</p>\n<p>In this case, after Assange spent several years holed in at Ecuador's embassy in the UK, and given that he did not surrender himself voluntarily, it is not that unreasonable to believe that he would try again to flee, as the matter is not still settled and he is still at risk of being extradited.</p>\n<p>I do not know about England, but in some countries (e.g. Spain) if you are kept in preventive custody but later found to be innocent you are automatically entitled to an indemnity.</p>\n<p>Also, for the larger question, that is not true either at least in some countries. After a guilty veredict a judge may postpone incarceration while appeals are reviewed (again considering things like flight risks). Of course, if you have condemned someone who has not been given bail due to being considered too risky, they remain in jail during the process.</p>\n<p>Also <code>Presumably, his jail term began immediately upon sentencing</code>. In many jurisdictions, the time served before the sentence is counted towards the sentence. If you spent 4 weeks in jail before the sentence, you have already passed 4 weeks of your sentence.</p>\n<p>If the time already spent is close to the time you would have been sentenced, the sentence specifies that you are condemned "to time served" and released immediately.</p>\n",
"score": 5
},
{
"answer_id": 70540,
"body": "<p><strong>Why is Julian Assange in jail?</strong></p>\n<p><strike>The judge has remanded him in custody under one of the provisions in the <a href=\"https://www.legislation.gov.uk/ukpga/2003/41?timeline=false\" rel=\"nofollow noreferrer\">Extradition Act 2003</a>, possibly under <a href=\"https://www.legislation.gov.uk/ukpga/2003/41/section/6?timeline=false\" rel=\"nofollow noreferrer\">section 6(5B)</a> or <a href=\"https://www.legislation.gov.uk/ukpga/2003/41/section/8?timeline=false\" rel=\"nofollow noreferrer\">section 8</a>.</strike></p>\n<p>The US government's <a href=\"https://www.judiciary.uk/judgments/usa-v-julian-assange/\" rel=\"nofollow noreferrer\">request for Mr Assange's extradition was denied on 4 January 2021</a> who (as a category 2 country) then appealed that decision to the High Court under <a href=\"https://www.legislation.gov.uk/ukpga/2003/41/section/28?timeline=false\" rel=\"nofollow noreferrer\">section 105</a> of the <a href=\"https://www.legislation.gov.uk/ukpga/2003/41/contents\" rel=\"nofollow noreferrer\">Extradition Act 2003</a>.</p>\n<p>The lower courts rarely, if ever, publish a verbatim report on bail application hearings but according to <a href=\"https://edition.cnn.com/2021/01/06/uk/julian-assange-bail-denied-gbr-intl/index.html\" rel=\"nofollow noreferrer\">this news report</a> Judge Vanessa Baraitser said at the time:</p>\n<blockquote>\n<p>[T]here are substantial grounds for believing that if Mr. Assange is released today he would fail to surrender to court and face the appeal proceedings.</p>\n</blockquote>\n<p>Therefore, it seems that the Judge exercised her powers under <a href=\"https://www.legislation.gov.uk/ukpga/2003/41/section/107?timeline=false\" rel=\"nofollow noreferrer\">section 107(2)</a>:</p>\n<blockquote>\n<p>The judge <strong>must</strong> remand the person in custody or on bail while the appeal is pending.</p>\n</blockquote>\n<p>According to <a href=\"https://www.politico.eu/article/us-uk-appeal-decision-julian-assange-wikileaks-extradition/amp/\" rel=\"nofollow noreferrer\">news reports</a> the High Court has granted permission to appeal, with the full hearing scheduled for 27 and 28 October 2021 when the provisions under <a href=\"https://www.legislation.gov.uk/ukpga/2003/41/section/106?timeline=false\" rel=\"nofollow noreferrer\">section 106</a> will be triggered:</p>\n<blockquote>\n<p>(1) On an appeal under section 105 the High Court may—</p>\n<ul>\n<li><p>(a) allow the appeal;</p>\n</li>\n<li><p>(b) direct the judge to decide the relevant question again;</p>\n</li>\n<li><p>(c) dismiss the appeal.</p>\n</li>\n</ul>\n<p>[...]</p>\n<p>(9) If the court—</p>\n<ul>\n<li><p>(a) allows the appeal, or</p>\n</li>\n<li><p>(b) makes a direction under subsection (1)(b),</p>\n</li>\n</ul>\n<p>it <strong>must</strong> remand the person in custody or on bail.</p>\n</blockquote>\n",
"score": 3
}
] |
[
"international",
"extradition",
"sentencing",
"politics",
"bail"
] |
Is there an alternative to a purchase order that sellers can use?
| -1 |
https://law.stackexchange.com/questions/18689/is-there-an-alternative-to-a-purchase-order-that-sellers-can-use
|
CC BY-SA 3.0
|
<p>The only thing I can find is a sales order, but the problem with that is it isn't legally binding. To be more specific on what I mean:</p>
<p>Say that we want to sell someone business cards that includes a specific amount of time for graphic design. And we want to get paid after the graphic design, but before printing. Is there a way before graphic design starts to have a client binded to an agreement that they'll pay us for work done, and if/when design is approved, printing?</p>
<p>I know a contract would work, but for something as common as business cards - it seems like overkill and would put people off. Purchase orders from customers would be great, but most of them are too small to use them. Are there any options that are simple like a PO, can state a list of terms, and be very easy for customers to get through?</p>
<p>Every contract we've had written has been so long that customers don't fully understand the terms. Simple is better for a quick job like this so they DO get the terms clearly.</p>
| 18,689 |
[
{
"answer_id": 18704,
"body": "<blockquote>\n <p>The only thing I can find is a sales order, but the problem with that is it isn't legally binding.</p>\n</blockquote>\n\n<p>Why on Earth would you say that? An agreement for one party to sell something to another party is a legally binding contract no matter what paperwork, if any, is involved. If you ordered a cappuccino at a coffee shop this morning, you and they entered into a legally binding contract. See <a href=\"https://law.stackexchange.com/questions/6263/what-is-a-contract-and-what-is-required-for-them-to-be-valid\">What is a contract and what is required for them to be valid?</a></p>\n\n<p>If you publish a price list for your services: say 500 business cards for $25 including a $10 charge for graphic design payable before printing, and a customer orders that then you have a legally binding contract.</p>\n\n<p>The real question is what do you do if the customer send you an order for $25 payable on completion? Well, if you decide to accept that offer then that is your contract. This situation is commonly known as the <a href=\"http://www.duhaime.org/LegalDictionary/B/BattleoftheForms.aspx\" rel=\"nofollow noreferrer\">Battle of the Forms</a>.</p>\n",
"score": 2
},
{
"answer_id": 18692,
"body": "<p>There's a tradeoff in written contracts: The more precise and comprehensive, the longer they have to be.</p>\n\n<p>The <a href=\"https://law.stackexchange.com/q/6263/10\">basics of a contract are described here</a>, and it's possible to have a legally valid contract without writing anything at all.</p>\n\n<p>But the more you care about avoiding ambiguity and covering \"corner cases,\" the more you need an experienced attorney to write your contract.</p>\n\n<p>You can ask an attorney to <a href=\"https://law.stackexchange.com/q/5509/10\">avoid \"legalese\"</a> to the extent possible, and to try to make a contract as \"easy to read and understand\" as possible. Some are better at that than others.</p>\n",
"score": 1
},
{
"answer_id": 89568,
"body": "<p>I work in the Logistics and SCM industry and come across various small scale vendors and retail customers. My best bet is to drop them an email stating all the Terms and Conditions and ask for an email confirmation. If you are more into physical documents, just print the same email via a word file and have them signed the same.</p>\n<p>Basically what you are looking for is a written confirmation which is valid in the court of law in case the buyer defaults in payment or skips the pre-agreed T&Cs.</p>\n<p>This is what we guys in India do as many people are put-off by long agreements. We call it "Jugaad" which is a makeshift approach which is also legal as long as it has a written confirmation of the buyer.</p>\n",
"score": 0
}
] |
[
"contract-law"
] |
What was the original idea behind the practice of courtroom wigs?
| 28 |
https://law.stackexchange.com/questions/89455/what-was-the-original-idea-behind-the-practice-of-courtroom-wigs
|
CC BY-SA 4.0
|
<p>English judges and barristers have for a long time had to wear wigs. What was the intended implied message by the object aesthetic? What was the look of a judge or advocate wearing that type of courtroom wig intended to evoke about the character, authority, or other aspects of the court and legal process at the time when the practice was introduced?</p>
<p>And what are its origins? Was it a French thing, imported by the Normans?</p>
<p><a href="https://i.stack.imgur.com/H2osC.png" rel="noreferrer"><img src="https://i.stack.imgur.com/H2osC.png" alt="Man wearing a courtroom wig with legal books in background." /></a></p>
| 89,455 |
[
{
"answer_id": 89456,
"body": "<p>The courtroom wig actually dates from an era centuries ago when it was common for the upper classes to shave their heads and wear wigs - a practice that arose for hygiene reasons.</p>\n<p>That is, at the time when this practice first arose in courtrooms, such wig-wearing simply reflected an ordinary style of dress.</p>\n<p>The <a href=\"https://en.wikipedia.org/wiki/Wig#16th_and_17th_centuries\" rel=\"noreferrer\">practice</a> dates from the 16th and 17th centuries.</p>\n<p>What happened since is that styles of appearance in wider society have moved on, but not amongst lawyers in the courtroom, and in the modern day such wigs have become characteristic of courtroom dress.</p>\n<p>Until the mid-Victorian era, such sartorial traditions were the least of the anachronisms carried forward from earlier centuries.</p>\n<p>There have been some reforms in recent decades that limit the archaic appearance of judges, but one of the argument for courtroom dress has always been <strong>to make the proceedings seem solemn and formal, <strong>and</strong> to depersonalise the appearance of those who participate as officers of the court.</strong></p>\n",
"score": 43
}
] |
[
"united-kingdom",
"england-and-wales",
"rules-of-court",
"legal-history"
] |
Board of 9 judges in Japan?
| 4 |
https://law.stackexchange.com/questions/89560/board-of-9-judges-in-japan
|
CC BY-SA 4.0
|
<p>This is from a fictional trial from Yakuza Judgement, set in Tokyo Japan. The context is a trial where someone is accused of murder.
<a href="https://i.stack.imgur.com/rhmtK.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/rhmtK.jpg" alt="fictional court house japan" /></a>
On the left is the defendant (in white) and his attorney team. On the right is the prosecution team. In the middle, seated, is a witness. Standing next to the witness is the head prosecutor cross-examining. In front of them is what seems to be the clerk, recording everything.</p>
<p>But who are the 9 people at the back? At least in America, I think there's only ever 1 judge presiding over the court. So I'm not sure who these 9 people are supposed to correspond to. Or is it customary to have a board of 9 "judges" deliberate over a case in Japan?</p>
| 89,560 |
[
{
"answer_id": 89564,
"body": "<p><strong>The Professional And Lay Judges In The Scene</strong></p>\n<p>Murder trials in Japan take place in a regional court called the "high court" which is one level below the Japanese Supreme Court.</p>\n<p>Trials of very serious crimes in Japan (crimes punishable by death, life imprisonment, or very long sentences in prison, not just ordinary felonies) are tried by a mixed panel of three professional high court court judges and six lay people who are sometimes described as jurors but are probably better described as "<a href=\"https://en.wikipedia.org/wiki/Lay_judges_in_Japan\" rel=\"noreferrer\">lay judges</a>". The law providing for this kind of trial was passed in the year 2004 and first implemented in the year 2009. Many European countries in the civil law tradition have a similar process.</p>\n<p>While proceedings would mostly be in the court room, a court view when all of the professional and lay judges go to the scene of the crime or some other key venue where important facts happened would be far more common in Japan than in the U.S.</p>\n<p>After hearing the evidence presented at the trial, which is managed by the presiding judge of the three professional judges, all three judges and the six lay judges deliberate together as a single panel regarding the guilt or innocence verdict which would be rendered in the case.</p>\n<p>This is in contrast to juries in common law countries where the jury is independent of the judge, makes the ultimate verdict decision without deliberating with the judge, and interacts with the judge only via jury instructions and reception of their verdict.</p>\n<p><strong>Judges In Other Kinds Of Cases</strong></p>\n<p>If this had been a serious civil case or a felony case not serious enough to give rise to a lay judge trial or an appeal of a lower court ruling, instead of a very serious criminal case, it would have been heard only by the three professional judges without the six lay judges. More serious cases are heard by more senior professional judges from the high court, and less serious cases are heard by more junior professional judges from a district court which is below the high court but above the summary courts (and marginally superior to the almost equal in status family courts which are staffed by more junior professional judges as well).</p>\n<p>If it had been a serious misdemeanor or intermediate stakes civil case, it would have been heard by a single professional district court judge acting alone.</p>\n<p>Trials of very minor criminal cases and civil lawsuits are heard by a single judge acting alone without any lay judges, who is not admitted as members of the judicial profession and might not even be legally trained, who is really closer to what we would call "justices of the peace" in the United States. This position is often translated as "summary court judge."</p>\n<p><strong>The Judicial Occupation And The Selection Of Lay Judges In Japan</strong></p>\n<p>Japanese judges belong to a separate occupation than lawyers and prosecutors that staffs <a href=\"https://en.wikipedia.org/wiki/Judicial_system_of_Japan\" rel=\"noreferrer\">the judicial system of Japan</a>.</p>\n<p>Basically, they start in family court or in the intermediate level court of general jurisdiction court called district court, right out of college, hearing smaller cases alone, and more serious cases in panels with justices of the peace or family court judges in a three judge panel. These panels also hear appeals from civil judgments of summary court judges.</p>\n<p>Then, they work their way up the judicial hierarchy based upon seniority and merit. Mid-career judges are in courts called "high courts" that handle most serious matters in the first instance as trial courts, appeals from cases heard by junior judges from the level of courts below them, and appeals in criminal cases from the rulings of summary court judges.</p>\n<p>The most senior and meritorious and respected judges, of course, are the fifteen judges on the Japanese Supreme Court. For the most part, appointments and promotions are similar to those of other civil servants, rather than being political.</p>\n<p>Lay judges are selected in a manner somewhat similar to the way common law country jurors are selected, although, as far as I know, the prosecution and defense have less of a say over who serves as a lay judge on a panel and most people called to serve as lay judges will actually end up doing so (in contrast to the very high rates of disqualification and preemptory challenges in common law juries for a serious case like a murder trial).</p>\n<p><strong>The Professional Status Of The Lawyers In This Scene</strong></p>\n<p>Incidentally, the legal profession of the prosecutors and the legal professional of the defense attorneys would be different as well.</p>\n<p>Like judges, prosecutors are civil servants with their own separate professional qualification (although judges, lawyers, and prosecutors have essentially the same academic curriculum in college).</p>\n<p>Private sector lawyers like the defense counsel in the picture belong to the main licensed occupation for lawyers which is in some respects more similar to that of barristers in the U.K. than to U.S. lawyers, both because there are so few of them and because of their typically more trial oriented practices.</p>\n<p><strong>Other Kinds Of Legally Trained People In Japan</strong></p>\n<p>Japan, like many civil law countries, has legally trained notaries who handle a lot of transactional work including drafting the legal instruments involved as a third-party neutral who also has tasks that overlap with government officials who keep official records.</p>\n<p>Finally, like many civil law countries, and to a lesser extent like solicitors in the U.K. before that profession was formally regulated there, many people major in law as undergraduates in college but never take the professional examinations to become a lawyer, a prosecutor, or a judge. Instead, these people typically end up working in managerial jobs in a business with a status akin to an investment banker or finance professional or realtor in the U.S., but with no formal occupational credential other than their college diploma.</p>\n<p><strong>The Clerk And The Nature Of The Trial Court Record</strong></p>\n<blockquote>\n<p>In front of them is what seems to be the clerk, recording everything.</p>\n</blockquote>\n<p>The clerk is probably taking detailed notes as an aid to the judges and lay judges in their deliberations, but unlike a common law criminal trial, verbatim transcripts and records of the proceeding are not maintained (or at least, have no special evidentiary status). The clerk is not a direct analog to a U.S. style court reporter who takes dictation of everything that is said word for word.</p>\n<p>If there is a dispute regarding the facts found at trial on appeal, at the first tier direct appeal of a conviction, a five judge Japanese appellate court panel of the <a href=\"https://en.wikipedia.org/wiki/Supreme_Court_of_Japan\" rel=\"noreferrer\">fifteen judge Japanese Supreme Court</a> would hear new evidence on the matters about which there were allegedly mistaken findings of fact by the trial court of first instance with new witness testimony and the same or new exhibits, rather than simply reviewing the evidence presented to the trial court as final and complete. Sometimes an appeal initially referred to a five judge panel of the Japanese Supreme Court would be reheard by the "Grand Panel" of all fifteen Japanese Supreme Court judges, in which case, the findings of fact of the appellate panel judges are conclusive and binding on the grand panel Japanese Supreme Court which is limited to resolving legal issues.</p>\n",
"score": 6
}
] |
[
"criminal-law",
"court",
"trial",
"judge",
"japan"
] |
Legality of legacy Delta advertisement
| -5 |
https://law.stackexchange.com/questions/89487/legality-of-legacy-delta-advertisement
|
CC BY-SA 4.0
|
<p>Would the following advert be illegal currently?</p>
<p>What specific laws would it disobey and why?</p>
<p>Or would it be totally legal?</p>
<p>It's hardly controversial compared to i.e. Tinder adverts, or Sex in the City shows,or Hooters so my intuition would be that this advert is totally fine by law.</p>
<p><a href="https://i.stack.imgur.com/WVa1L.jpg" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/WVa1L.jpg" alt="Advert of Delta airlines" /></a></p>
| 89,487 |
[
{
"answer_id": 89552,
"body": "<blockquote>\n<p>Would the following advert be illegal currently?</p>\n</blockquote>\n<p>The advertisement is lawful everywhere except maybe in jurisdictions with a heavy theological/religious component. In all likelihood, an advertisement that only lists flights within the US and is directed "<em>[t]o the guy who's got a girl in every city</em>" is meant for the US market rather than the Haredim (in Israel) or their Islamic counterparts, let alone the Taliban.</p>\n<blockquote>\n<p>What specific laws would it disobey and why?</p>\n</blockquote>\n<p>In some trends of Judaism women have an obligation to cover their natural hair when in public. Likewise, women in Iran must wear a hijab. This implies that, already from the "hair" standpoint, all women in the advertisement except maybe "Your Dallas darling" would be in violation of the law. This might soon stop being the case in Iran, given the recent or ongoing protests after the morality police's killing of a woman who defied the hijab law.</p>\n<p>Hair matter aside, models' outfit in most or all photos in the advertisement would be in violation related laws in those jurisdictions. The violations are in the sense of "indecent exposure".</p>\n<p>Someone knowledgeable in the laws of Iran, of other orthodox Islamic countries, or of Israel's legal framework would be able to identify the specific statutes or religious-legal principles at issue. Ultimately, those prohibitions are premised on the Talmud (in the case of Judaism) and the Sharia (Islam).</p>\n",
"score": 4
},
{
"answer_id": 89556,
"body": "<p>The advertisement in question would be totally legal today, anywhere in the United States (apart from the fact that Delta no longer offers the prices or terms quoted which would make the ad, if printed without modification, deceptive).</p>\n",
"score": 0
}
] |
[
"freedom-of-speech",
"advertisements",
"morality",
"freedom-of-assembly"
] |
Why does Japanese entertainment make such backhanded references to brands (e.g. WcDonalds instead of McDonalds)?
| 5 |
https://law.stackexchange.com/questions/89533/why-does-japanese-entertainment-make-such-backhanded-references-to-brands-e-g
|
CC BY-SA 4.0
|
<p>There's tons of examples. To name a few:</p>
<ol>
<li>MgRonald's and Sentucky Fried Chicken (instead of McDonald's and KFC) in Hataraku Maou-sama</li>
<li>Attack Family (instead of Smash Brothers) in Jaku Kyara Tomozaki-kun</li>
<li>Bepsi (instead of Pepsi) in Yowamushi Pedal</li>
<li>Chatter a.k.a Yuttaa (instead of Twitter) in Yakuza</li>
</ol>
<p>What law in Japan forces entertainment to make such thinly veiled attempts to pretend to not be directly referencing IRL brands? It's not like someone sees "WcDonald" and doesn't 100% immediately associate it with McDonald. Is it just supposed to be a joke, or is there a legal basis for why it's done this way?</p>
<p>I have a feeling this is a Japan-only thing, as American media seems to happily portray brands. E.g. playing Mario Kart in the Sopranos, or playing the Wii in Big Bang theory, or a Nintendo Switch in She-Hulk, etc..</p>
| 89,533 |
[
{
"answer_id": 89537,
"body": "<p>This practice isn't just restricted to Japanese entertainment, although it is indeed particularly common there.</p>\n<p>Still, the practice, which I call using "fakemarks" (the term is not in wide usage and if there is a widely accepted word for it I don't know what it is) is widespread in popular culture fiction both in and outside Japan. It is especially common among smaller scale producers of fiction worldwide.</p>\n<p>I actually keep a portfolio of screen shots of them for use in teaching materials about trademarks and about popular culture. Here are a few examples of typical "fakemarks" from "the wild":</p>\n<p><a href=\"https://i.stack.imgur.com/VSxjU.png\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/VSxjU.png\" alt=\"enter image description here\" /></a></p>\n<p><a href=\"https://i.stack.imgur.com/D3Hd2.jpg\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/D3Hd2.jpg\" alt=\"\" /></a></p>\n<p><a href=\"https://i.stack.imgur.com/nJwFA.png\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/nJwFA.png\" alt=\"enter image description here\" /></a></p>\n<p>It is intended to and does successfully serve the purpose of discouraging trademark infringement lawsuits by showing non-affiliation with the trademark owner which makes it non-infringing. You also see it more in a lot of non-U.S. and non-Japanese popular culture (e.g. in works made in Indonesia and Turkey), and in U.S. works made by small independent creative producers (like webcomic artists and people writing graphic novels or online fiction who aren't affiliated with D.C. or Marvel or a major publishing firm).</p>\n<p>People use fakemarks to the extent that they do, mostly because they believe that the scope of trademark infringement is broader than it really is (a concern that <a href=\"https://law.stackexchange.com/questions/tagged/trademark\">regularly comes up in Law.SE questions</a>), combined with an aversion to the risk associated with being in a gray area and incurring legal fees even if you win. This aversion has sparked industry norms and tropes such as the ones you describe.</p>\n<p><strong>The greater aversion to risk of trademark infringement in Japan than in the U.S., that gave rise to these industry conventions and norms, has a lot to do with the way the respective popular culture industries are organized economically.</strong></p>\n<p><strong>The Economic Organization Of Anime and Manga In Japan</strong></p>\n<p>Japanese anime films (where you see fakemarks used a lot) are a very intimately related direct outgrowth of the Japanese manga industry (i.e. Japanese graphic novels), with the core creative decisions like those that give rise to fakemark use made at the stage of the production of the source manga. A very large share of TV series anime are adaptations of manga that have been adapted for animated format, although there are a few exceptions producing original work, like <a href=\"https://en.wikipedia.org/wiki/Studio_Ghibli\" rel=\"noreferrer\">Studio Ghibli</a> that notably are less prone to use fakemarks. In the early days of anime, often lengthy shots of the animation were created by just a camera creating the illusion of movement by panning around a still manga illustration to save time and money.</p>\n<p>The manga industry in Japan is very highly decentralized, despite being highly profitable for the top manga writers (who are called "<a href=\"https://en.wiktionary.org/wiki/mangaka\" rel=\"noreferrer\">mangaka</a>"). <a href=\"https://www.animenewsnetwork.com/news/2005-06-02/japanese-top-tax-payers\" rel=\"noreferrer\">Many of the people with the highest annual personal incomes in Japan</a> according to public tax collection agency statistics, are mangaka, in part, because mangaka are self-employed and often paid a percentage royalty, and in part, because <a href=\"https://asia.nikkei.com/Business/Japanese-CEO-pay-roughly-10-that-of-US-counterparts\" rel=\"noreferrer\">corporate executives in Japan are paid much lower salaries directly</a> than comparable executives in the U.S. and accumulate a lot of their wealth in the form of highly indirectly held ownership interests in business conglomerates, often acquired as founders or inheritors, that they hold for long periods of time without generating taxable income.</p>\n<p>But, while the top mangaka make huge bank when their works are selling well, the names at the top shift frequently and there is a <a href=\"https://en.wikipedia.org/wiki/Long_tail\" rel=\"noreferrer\">long tail</a> of mangaka who currently squeeze buy <a href=\"https://www.okuha.com/how-much-does-a-mangaka-earn/\" rel=\"noreferrer\">with just barely enough money</a> from one or two serializations or commissioned works (like illustrated safety manuals and handbooks) to pay their bills hoping to get lucky and make it big someday.</p>\n<p>A typical manga is produced by one or two main authors (sometimes the drawing and the story/dialog are split between two people and sometimes one person does both), supplemented by one to a few assistants artists who often work either in the home of the artist or remotely from their own homes, who do finishing work like reinforcing line work, backgrounds, shading, and coloring. Sometimes there would be a copy editor and/or an assistant who writes in the dialog and text.</p>\n<p>Mangaka are generally independent contractors, often operating as sole proprietors. They typically submit their works to magazines as freelancers with only a light editorial role. The magazine editor working with a freelance mangaka's work usually consists mostly of working with prospective freelance mangaka to approve a new series, hounding their contracted mangaka to get work in by the magazine's rigid publication process driven deadlines, and deciding when a series has lost popularity and needs to be shut down. Often, the mangaka will retain the right to republish the originally serialized manga in multi-volume book form with another publisher (although, of course, contract terms vary).</p>\n<p>So, mangaka typically don't have access to lawyers, and the main kind of lawyer that they would refer to for intellectual property advice in Japan are scarce, more similar to English barristers than to U.S. attorneys, and very expensive to hire for a consult. There are only <a href=\"https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1614&context=jil\" rel=\"noreferrer\">about 14,000 lawyers in private practice in all of Japan</a> (which on a per capita basis would be comparable to the U.S. having about 36,000 lawyers), only a minority of whom would handle matters like advising someone on the impact of trademark law on their creative manga writing decisions. The U.S., in contrast, has <a href=\"https://www.clio.com/blog/lawyer-statistics/\" rel=\"noreferrer\">about 1,300,000 lawyers</a>, which is about 36 times as many per capita.</p>\n<p>As noted before, once a manga is green lit to become an anime, the key creative decisions that might benefit from legal consults have already been made, so the anime production company that can afford to hire them doesn't provide input on those issues.</p>\n<p>Also, while manga artists often do go to art school, the typical art school curricula in Japan includes much less instruction on the business and legal side of working as a creative professional than comparable courses of instruction in the U.S. would.</p>\n<p><strong>The Economic Organization Of Popular Culture In The U.S.</strong></p>\n<p>In contrast, in the U.S., lots of popular culture for the mass market, like television shows are much larger operations and even when they are adapted from books, are much less direct and faithful adaptation (often only "inspired by" the source material).</p>\n<p>U.S. productions, in part, because they are more likely to be live action and filmed on location, are often initiated by corporate executive type people called producers rather than by screenwriters or book authors, and a typical production as you know if you have ever watched the credits of a TV show, may have hundreds of employees and contracting companies, separate companies formed for the purpose of the show. The credits of a U.S. TV series or movie invariably has a general counsel lawyer and frequently an associate attorney or two on the payroll, as part of the group of people producing the work.</p>\n<p>Even comics and books in the U.S. are published by firms that are much more "corporate" at the creative design phase of the work, than a mangaka's home office and band of assistants and apprentices. And, as expensive as they are, it is much more economically feasible for the producers of a U.S. popular culture production or the publishers of a comic or book in the U.S. to make legal counsel available to the people doing the creative work to advise on issues like trademark infringement.</p>\n<p>Trademark lawyers in the U.S. aren't cheap, but they are less expensive than comparable Japanese lawyers and the economics of U.S. popular culture production make these lawyers more available to people who need to utilize their services while engaged in the creative production process for popular culture works in the U.S.</p>\n<p>As a result, U.S. popular culture producers at the high end of that the industry in terms of economic scale (which is where much more of it is located at the creative design stage), being better informed about trademark law. As a result the U.S. industry has not had to be as cautious and is in a better position to get closer to the line of what constitutes permissible <a href=\"https://en.wikipedia.org/wiki/Nominative_use\" rel=\"noreferrer\">nominative use of trademarks</a> than the people who make Japanese manga and anime.</p>\n<p>Another issue is that business minded producers of U.S. popular culture works often use product placement as a separate revenue stream or as a way to finance set, costume and prop elements for their works, by agreement with the trademark holder, something that is typically not a viable option for a lonely mangaka who has not yet made it big.</p>\n<p><strong>Counterexamples To Intellectual Property Conservatism In Japan</strong></p>\n<p>This said, industry norms do not always work in the direction of caution in Japan, and those norms do influence what is considered to be fair use in copyright in Japan.</p>\n<p>For example, Japanese mangaka are more comfortable with using <a href=\"https://doncorgi.com/blog/reference-drawing/\" rel=\"noreferrer\">highly referenced illustrations</a> that sometimes even depict copyrighted works when they are not trademarks or trade names, than U.S. popular culture producers.</p>\n<p><a href=\"https://i.stack.imgur.com/0DhZ8.jpg\" rel=\"noreferrer\"><img src=\"https://i.stack.imgur.com/0DhZ8.jpg\" alt=\"enter image description here\" /></a></p>\n<p>This is, in part, because when you are drawing everything, rather than filming, in the original story source material, at least historically, the time savings for a small shop operation using highly referenced illustrations are immense, and because it helps mangaka meet the externally imposed and strict deadlines imposed by the magazines that serialize them.</p>\n<p><strong>Footnote On Sourcing</strong></p>\n<p>I read quite a bit of manga, watch quite a bit of anime, and in general consume quite a bit of non-U.S. popular culture. As a lawyer, I'm naturally also interested in learning about the economics and law behind these forms of entertainment. And, it is customary in manga to periodically break the fourth wall and have the author discuss their personal lives and work process after every few chapters of their fictional works. Between this, and a few mini-features on the subject, and a reading a few law review articles on copyright enforcement for fan fiction, I've developed some familiarity with the organization of the entertainment industry in Japan, in the U.S., and in some other countries. But, I'd be hard pressed to reference those sources with hyperlinks or citations, because this is knowledge that I've accumulated on a fragmentary basis over decades and didn't anticipate at the time I was encountering most of it that I'd ever need to be able to refer back to and cite to it.</p>\n",
"score": 8
}
] |
[
"trademark",
"fair-use",
"branding",
"japan",
"entertainment-law"
] |
If I have concurrent user consents then can I combine these consents?
| 0 |
https://law.stackexchange.com/questions/89548/if-i-have-concurrent-user-consents-then-can-i-combine-these-consents
|
CC BY-SA 4.0
|
<p>I have an app that supports concurrent user consents.</p>
<p>Assume that I have:</p>
<ol>
<li><code>Consent A</code> that gives access to <code>https://example.com/resources/a</code></li>
<li><code>Consent B</code> that gives access to <code>https://example.com/resources/b</code>.</li>
</ol>
<p>But at some point my app needs access to these both: <code>https://example.com/resources/a</code> and <code>https://example.com/resources/b</code>. In a such situation, is it legal to combine these two consents and get access to these 2 resources or I need to get consent which immediately says that user has consented these 2?</p>
<p>I know it seems trivial: user gave consent so you have legal access.</p>
<p>But remember: these consents could be given independently of each other, they can refer to different resources (e.g. health and payment service), and could be given at completely different time.</p>
| 89,548 |
[
{
"answer_id": 89551,
"body": "<p>GDPR consent does not apply to resources or activities, but to <em>processing purposes</em> – to the reason why you are using some data. Also, while consent must be specific, it is not necessary to tire the user with technical details – as long as they are able to consent to one purpose while being able to decline consent for unrelated purposes. And in many cases, no consent is needed at all. In particular, you won't need GDPR consent for processing activities that are strictly necessary to fulfil a contract. (But you do likely need explicit consent for dealing with health data.)</p>\n<p>Here, I would think about what those separate and combined processing purposes are, whether they even need consent, and if so when and how you should seek that consent. In particular, an authorization grant for a health data endpoint does not equate GDPR-consent for using this health data for another purpose, and consent for a specific processing purpose could imply authorization for multiple endpoints.</p>\n<p>In this sense, yes, it <em>can</em> be legal to “combine consent”, but it massively depends on the specific context of this app – and taking that context into account would be lega advice that can't be given here.</p>\n",
"score": 2
}
] |
[
"gdpr",
"consent"
] |
What are the Defense / Prosecution required to share with each other?
| 1 |
https://law.stackexchange.com/questions/89536/what-are-the-defense-prosecution-required-to-share-with-each-other
|
CC BY-SA 4.0
|
<p>If the prosecution has their hands on some choice evidence that can be used as a "gotcha" against the defense and catch them off guard, are they allowed to do that? Or are the prosecution expected to share such evidence with the defense (perhaps upon request) beforehand, allowing the defense to prepare for it? Basically, are the prosecution/defense supposed to know/anticipate the main evidence/witnesses of each party? Or are they allowed to keep some things secret and "surprise" the other side during the trial as an attempt to gain an advantage? And what things are they allowed to (or not allowed to keep) hidden away like that?</p>
<p>As an example, perhaps the defendant has some video evidence of him away from the crime scene. Is the defence allowed to bring up that evidence out of nowhere during the trial and blindside the prosecution? Or does the prosecution have right to know of such evidence beforehand so they can prepare a rebuttle with regards to it?</p>
| 89,536 |
[
{
"answer_id": 89538,
"body": "<p>Unsurprisingly, there is a rule of criminal procedure at the federal level, <a href=\"https://www.law.cornell.edu/rules/frcrmp/rule_16\" rel=\"nofollow noreferrer\">rule 16</a>. It is complicated, but here are the broad strokes of that requirement.\nThere are a number of requirements of government disclosure (a), and then there are defendant's disclosure rules (b). If defendant requests, the government must disclose defendants statements, also the defendant's prior record, documents and objects, test results. There is also a duty to disclose w.r.t. expert witnesses. Specifically excluded are government-internal documents regarding the investigation or prosecution (things that won't be introduced at trial), and grand jury transcripts. There are conditions and exceptions within the exceptions: all of these obligations are "if the defendant requests".</p>\n<p>The defendant must disclose certain documents if the defendant requests and the government complies under Rule 16(a)(1)(E) which is the government's obligation to disclose objects. Then</p>\n<blockquote>\n<p>the defendant must permit the government, upon request, to inspect and\nto copy or photograph books, papers, documents, data, photographs,\ntangible objects, buildings or places, or copies or portions of any of\nthese items</p>\n</blockquote>\n<p>if the defendant has it and intends to use it. There is a similar requirement to report test results in his possession that he intends to use, if he has so requested of the government, and also expert witnesses have to be disclosed. Not subject to disclosure by the defense are\nanything statement-like made by or to the defendant or his attorney by defendant, a witness or a prospective witness (on either side). This is pre-trial discovery. <a href=\"https://www.law.cornell.edu/rules/frcrmp/rule_26.2\" rel=\"nofollow noreferrer\">Rule 26.2</a> applies during trial:</p>\n<blockquote>\n<p>After a witness other than the defendant has testified on direct\nexamination, the court, on motion of a party who did not call the\nwitness, must order an attorney for the government or the defendant\nand the defendant's attorney to produce, for the examination and use\nof the moving party, any statement of the witness that is in their\npossession and that relates to the subject matter of the witness's\ntestimony.</p>\n</blockquote>\n<p>So the government or defense must comply with that order as well.</p>\n<p>"Surprise witnesses" are allowed. The party discovering such a witness must be genuinely "surprised", so a party can't deliberately suppress information that they have a eyewitness and a photograph, but if they discover such evidence late in the game, it can be admissible.</p>\n",
"score": 2
},
{
"answer_id": 89539,
"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 Crown (prosecution) must disclose all material relating to the accused's case. This obligation is near absolute. The Crown must disclose all information unless it is "clearly irrelevant, privileged, or its disclosure is otherwise governed by law." See <em>R. v. McNeil</em>, 2009 SCC 3.</p>\n<p>The accused/defendant has generally has no reciprocal obligation. See <em>R. v. Brown</em>, 2002 SCC 32, citing <em>R. v. Stinchcombe</em>, [1991] 3 S.C.R. 326.</p>\n<p>But there are some narrow exceptions or practical realities: notice of a <em>Charter</em> challenge, notice of an alibi defence, notice of an expert witness in order to avoid unnecessary adjournment, providing fair opportunity during cross-examination of Crown witnesses for them to respond to what will later be contradictory evidence in the defence's case, etc.</p>\n",
"score": 0
}
] |
[
"united-states",
"criminal-law",
"evidence",
"court",
"discovery"
] |
Is it a valid attorney strategy to make statements, even if they will be striken from the record?
| 2 |
https://law.stackexchange.com/questions/89530/is-it-a-valid-attorney-strategy-to-make-statements-even-if-they-will-be-striken
|
CC BY-SA 4.0
|
<p>Similar to how, in football/soccer, players strategically go for fouls because they're effective. Is it common practice for an attorney to bring up inadmissable evidence/points that, even though they might be stricken from the record, will inevitably have an effect on the jury?</p>
<p>As a simple example, if there was illegally obtained evidence on the defendant, then it couldn't be officially admitted and discussed in the court. But if the prosecution brought it up, it would "poison" the minds of the jury, even if it was ordered to be stricken from the records.</p>
| 89,530 |
[
{
"answer_id": 89531,
"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>When faced with improper statements made in front of a jury, the judge has three options: provide a correcting instruction to the jury, to strike the jury and continue alone (in civil matters), or to declare a mistrial.</p>\n<p>Mistrial would be the appropriate remedy if the effect of the statements is so improper and prejudicial that it cannot be corrected by the judge's instructions to the jury to ignore them. See e.g. <em>R. v. Armstrong</em> (1969), [1970] 1 C.C.C. 136 (N.S.C.A.). A witness made an improper reference to an accused's confession. The only effective remedy was a mistrial.</p>\n<p>Whether this is the case is a matter of discretion left to the trial judge.</p>\n",
"score": 3
},
{
"answer_id": 89535,
"body": "<p>Some foreseeable consequences for an attorney trying this tactic are:</p>\n<ul>\n<li>annoying the judge,</li>\n<li>being found in contempt of court, and</li>\n<li>facing disciplinary action from the bar association,</li>\n</ul>\n<p>none of which are very attractive. The more egregious and repeated the conduct, the more likely the consequences would escalate.</p>\n<p>For example, the New York State Bar Association Rules of Professional Conduct <a href=\"https://nysba.org/app/uploads/2023/02/20221020-Rules-of-Professional-Conduct-as-amended-6.10.2022.pdf\" rel=\"nofollow noreferrer\">say</a> (Rule 3.3(f)(3) as of June 10, 2022, also enacted into Title 22, §1200, of the NY Code):</p>\n<blockquote>\n<p>In appearing as a lawyer before a tribunal, a lawyer shall not [...] intentionally or habitually violate any established rule of procedure or of evidence</p>\n</blockquote>\n",
"score": 2
}
] |
[
"united-states",
"court",
"lawyer",
"jury",
"trial"
] |
What constitutes elder abuse in the state of Missouri?
| 1 |
https://law.stackexchange.com/questions/32846/what-constitutes-elder-abuse-in-the-state-of-missouri
|
CC BY-SA 4.0
|
<p>My wife has a friend who lives in Missouri, and has power of attorney over her mother, who cannot take care of herself. The mother is in some kind of assisted living home in Missouri, and just got approval for Medi(caide? Care?) to pay for the housing.</p>
<p>The friend has a tenuous relationship with her mother, who turned a blind eye to a lot of (unreported) abuse that the woman suffered from her childhood on. The mother is pretty toxic when it comes to how she interacts with the daughter. My wife witnessed firsthand a couple of instances where the daughter brought deodorant or shirts for the mom, and then the mother would complain about her not visiting, or getting her things.</p>
<p>The friend has her own medical issues and has a limited amount of what she can own, so she set up a trust with my wife as trustee.</p>
<p>The assisted living has threatened the daughter with legal action, saying they're going to file elder abuse charges if she doesn't give them all the money that's in this trust, check fraud, and that the daughter should never have had power of attorney.</p>
<p>Do they have a leg to stand on? What actually constitutes elder abuse in the state of Missouri?</p>
| 32,846 |
[
{
"answer_id": 32847,
"body": "<p>According to the <a href=\"https://health.mo.gov/safety/abuse/\" rel=\"nofollow noreferrer\">Missouri DHSS</a> Elder Abuse may include:</p>\n\n<blockquote>\n <ul>\n <li>Abuse – the infliction of physical, sexual, or emotional injury or harm including financial exploitation by any person, firm, or corporation (192.2400, RSMo).</li>\n <li>Neglect – the failure to provide services to an eligible adult by any person, firm or corporation with a legal or contractual duty to do so, when such failure presents either an imminent danger to the health, safety, or welfare of the client or a substantial probability that death or serious physical harm would result (192.2400, RSMo).</li>\n <li>Financial Exploitation – A person commits the crime of financial exploitation of an elderly or disabled person if such person knowingly and by deception, intimidation, or force obtains control over the elderly or disabled person's property with the intent to permanently deprive the elderly or disabled person of the use, benefit or possession of his or her property thereby benefiting such person or detrimentally affecting the elderly or disabled person (570.145, RSMo).</li>\n <li>Bullying – intimidation or harassment that causes a reasonable person to fear for his or her physical safety or property and may consist of physical actions including gestures; cyberbullying; oral, electronic, or written communication; and any threat of retaliation for reporting of such acts. (192.2400,RSMo)</li>\n </ul>\n</blockquote>\n\n<p>(See <a href=\"http://revisor.mo.gov/main/Home.aspx\" rel=\"nofollow noreferrer\">Missouri Statutes</a>.)</p>\n\n<p>This sounds like an accusation of \"Financial Exploitation\", but as you describe it, does not seem to fit the description. I rather suspect that there is more to the situation, and I can't say if there is some valid basis for the claim, although the suggestion that \"the daughter should never have had power of attorney\" seems implausible unless it were asserted that the daughter were not acting in her mother's interests, but was trying to appropriate the money.</p>\n\n<p>The daughter would be wise to consult a lawyer with knowledge of trusts and medicare/medicaid rules -- There are special rules for trusts to be recognized by medicare/medicaid. This is its own specific field of law. I have seen relatives go through this, but I am not a lawyer. In any event, specifics will matter in such a case.</p>\n",
"score": 2
}
] |
[
"united-states",
"trusts-and-estates",
"missouri"
] |
Can I use the Microsoft ODBC driver 18 for SQL Server in a commercial application?
| 0 |
https://law.stackexchange.com/questions/79861/can-i-use-the-microsoft-odbc-driver-18-for-sql-server-in-a-commercial-applicatio
|
CC BY-SA 4.0
|
<p>I am developing a web application that involves connecting PHP with SQL Server, in order to do so it was necessary to <a href="https://docs.microsoft.com/en-us/sql/connect/odbc/download-odbc-driver-for-sql-server?view=sql-server-ver15" rel="nofollow noreferrer">download and install the Microsoft ODBC Driver 18 for SQL Server for Windows</a>; reading the license it mentions in the part of "Installation and use rights" that "You may install and use any number of copies of the software to develop and test your applications", I wonder if I wanted to market (not develop or test) my web application so that other users connect to my server, where I have Microsoft Driver 18 for SQL Server installed, through a web browser to make use of my application that needs the Microsoft Driver 18 for SQL Server to be able to work (not to download the driver but to use my web application), is it possible to do it with that driver that I have downloaded or should I buy some other driver or application that allows me to market my application? If so I would like to know why.</p>
| 79,861 |
[
{
"answer_id": 81452,
"body": "<p>This seems a generic license. You couldn't include the full package in your application, but for parts marked as distributable:</p>\n<blockquote>\n<p>DISTRIBUTABLE CODE. The software may contain code you are permitted to distribute (i.e. make available for third parties) in applications you develop, as described in this Section.</p>\n</blockquote>\n<p>I expect that the library itself is distributable (there should be a REDIST.TXT file).</p>\n<p>If you cold sell to someone else your packaged web application with the msodbc driver, there should be no issue in using it yourself either.</p>\n<p>As always, for a "formal" answer, you should ask your lawyer.</p>\n",
"score": 1
},
{
"answer_id": 89523,
"body": "<p>If you read the ODBC licence it says</p>\n<blockquote>\n<p>2 DISTRIBUTABLE CODE.</p>\n<p>The software may contain code you are permitted to distribute (i.e. make available for third parties) <strong>in applications you develop</strong>, as described in this Section.</p>\n<p>a) Distribution Rights. The code and test files described below are distributable if included with the software.</p>\n<p>i. REDIST.TXT Files. You may copy and distribute the object code form of\ncode listed on the REDIST list in the software, if any, or listed at\nREDIST (<a href=\"https://aka.ms/odbc18eularedist\" rel=\"nofollow noreferrer\">https://aka.ms/odbc18eularedist</a>);</p>\n</blockquote>\n<p>There is no REDIST.TXT file even if you install the full SDK with the client tools, but on visiting that link, I get a page which says...</p>\n<blockquote>\n<p>Distributable Code for the Microsoft ODBC Driver for SQL Server</p>\n<p><strong>The entire package may be redistributed.</strong></p>\n<p>For the latest version of this REDIST file, please visit\n<a href=\"https://aka.ms/odbc18eularedist\" rel=\"nofollow noreferrer\">https://aka.ms/odbc18eularedist</a></p>\n</blockquote>\n<p>To me (not a lawyer) this tells me I can redist the entire installer if I want to, as long as I agree by the other terms. And that would include integrating into your own installer, possibly forcing the user to accept the terms too, or a version of them that affords the same rights and references the EULA.</p>\n<p>These drivers are intended to be used in production environments, so it's odd they have made it more confusing than they needed to be.</p>\n<p>What do you think?</p>\n",
"score": 0
}
] |
[
"software",
"licensing"
] |
Under which license does the GitHub co-pilot distribute code to it's subscribers?
| 2 |
https://law.stackexchange.com/questions/89464/under-which-license-does-the-github-co-pilot-distribute-code-to-its-subscribers
|
CC BY-SA 4.0
|
<p>The GitHub Co-pilot provide code as a service. As far as I know they use code from public repos of GitHub as suggestions to the developers. How they deal with different licenses on public repos and how consumers of these services are not bound by those licenses. I used co-pilot as a free trial once and it don’t give license info along with the code. If they don’t need license to distribute the code why did individual developers are bound to do so under the license terms.
These words are on GitHub Copilot webpage:</p>
<blockquote>
<p>Trained on billions of lines of code, GitHub Copilot turns natural
language prompts into coding suggestions across dozens of languages.</p>
</blockquote>
<p>I am curious to know from the experts about the legal as well as moral implications of this services.</p>
| 89,464 |
[
{
"answer_id": 89521,
"body": "<p>I am answering my own question based on the above comment from <code>Nicolas Formichella</code>. This Question will be answered by the court in this <a href=\"https://githubcopilotlitigation.com/\" rel=\"nofollow noreferrer\">class action</a>. An excerpt from the aforementioned webpage:</p>\n<blockquote>\n<p>By training their AI systems on public GitHub repositories (though based on their public statements, possibly much more) we contend that the defendants have violated the legal rights of a vast number of creators who posted code or other work under certain open-source licenses on GitHub. Which licenses? A set of 11 popular open-source licenses that all require attribution of the author’s name and copyright, including the MIT license, the GPL, and the Apache license. (These are enumerated in the appendix to the complaint.)</p>\n</blockquote>\n<p>My personal opinion is GitHub has robbed the code of millions of it's users by using the public code from GitHub in their commercial service.</p>\n",
"score": 0
}
] |
[
"licensing"
] |
How does a prosecutor determine intent?
| 4 |
https://law.stackexchange.com/questions/11715/how-does-a-prosecutor-determine-intent
|
CC BY-SA 3.0
|
<p>When prosecutors look at a statute, how do they determine the requirements to prove intent?</p>
<p>For example, look at this statute:</p>
<blockquote>
<p>“Whoever knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in any 1-year period;” (U.S. Code Sec. 1030, par. 4)</p>
</blockquote>
<p>How does one determine what is necessary to prove a defendant acted “knowingly and with intent to defraud”? For example, do they need to prove the defendant knew he didn’t have authorization? What about intent to defraud — do they need to prove he knew it was against the law, too?</p>
<p>(tl;dr) My specific question: <strong>How do prosecutors determine the elements necessary to satisfy the <em>mens rea</em> requirements attached to certain laws?</strong></p>
| 11,715 |
[
{
"answer_id": 11721,
"body": "<p>This is actually a very complicated question, about (1) the scope of \"knowingly\", (2) what kind of \"intent\" is required for conviction, (3) how does the jury understand and evaluate concepts of intent and (4) how does an attorney persuade the jury that the situation does or does not satisfy the particular intent requirement. One thing we can dispose of quickly is the possibility that the law says that the accused has to actually <em>know</em> that the act is against the law. It is a standard legal fiction (2,400 years old) that the accused knows the law, or should have known.</p>\n\n<p>As for the 4th element, persuasion, on the strong side we have statements of intent by the accused – \"And I pulled out my rifle and blew his head off, and I laughed the whole time\". What the jury has to decide is whether the accused had in mind a conscious purpose of doing some act (that is, it wasn't just an accident like butt-dialing, or an instant stimulus-response reaction to some event). \"Intent\" generally falls in the realm of acting \"purposely\", which the Model Penal Code §2.02 defines as:</p>\n\n<blockquote>\n <p>A person acts purposely with respect to a material element of an\n offense when:</p>\n \n <p>(i) if the element involves the nature of his conduct or a result\n thereof, it is his conscious object to engage in conduct of that\n nature or to cause such a result; and </p>\n \n <p>(ii) if the element involves the attendant circumstances, he is aware\n of the existence of such circumstances or he believes or hopes that\n they exist.</p>\n</blockquote>\n\n<p>which more or less means what you think \"with intent\" means. That doesn't say what they intended to do, it just distinguishes intent from negligence and accident. The prosecutor would then present factual evidence that the accused had a bad intent, like showing that he actually made an attempt to access credit card account data (that such data had been accessed when he broke into the system), etc.</p>\n\n<p>We can sort of dispose of the other scope question about \"knowingly\", namely, what things would he have to know? The chunk <em>accessing a protected computer without authorization</em> can be interpreted in a number of ways, having to do with which elements of the clause are known to the accused. You might know that you were accessing but not know that you were unauthorized; you might know that you were accessing and unauthorized, but not know that the computer is protected. The only reliable way to know which is which is to study the case law on a statute and see if there is a controlling decision that say e.g. that you have to know that you are accessing and are unauthorized, but you don't have to know that the computer is protected. I haven't determined (yet) is there is decisive case law on this, but I'm betting that the outcome would be that not knowing of the protected status of a computer carries no weight.</p>\n\n<p>As for what kind of intent, there is a distinction between \"specific intent\" and \"general intent\". The distinction comes down to having some evil purpose like \"make him suffer\" (general intent) versus a specific evil purpose like \"kill him\".</p>\n\n<p>Finally, the people who actually decide, the jury, will be given instructions that say what they have to look for. Here is the tip of the tip of the iceberg, from California's criminal jury instructions. The judge will say...</p>\n\n<blockquote>\n <p>The People must prove not only that the defendant did the acts\n charged, but also that (he/she) acted with a particular (intent/\n [and/or] mental state). The instruction for (the/each) crime [and\n allegation] explains the (intent/ [and/or] mental state) required.\n A[n] (intent/ [and/or] mental state) may be proved by circumstantial\n evidence.</p>\n \n <p>Before you may rely on circumstantial evidence to conclude that a fact\n necessary to find the defendant guilty has been proved, you must be\n convinced that the People have proved each fact essential to that\n conclusion beyond a reasonable doubt.</p>\n \n <p>Also, before you may rely on circumstantial evidence to conclude that\n the defendant had the required (intent/ [and/or] mental state), you\n must be convinced that the only reasonable conclusion supported by the\n circumstantial evidence is that the defendant had the required\n (intent/ [and/or] mental state). If you can draw two or more\n reasonable conclusions from the circumstantial evidence, and one of\n those reasonable conclusions supports a finding that the defendant did\n have the required (intent/ [and/or] mental state) and another\n reasonable conclusion supports a finding that the defendant did not,\n you must conclude that the required (intent/ [and/or] mental state)\n was not proved by the circumstantial evidence. However, when\n considering circumstantial evidence, you must accept only reasonable\n conclusions and reject any that are unreasonable.</p>\n</blockquote>\n\n<p>and then there will be some specific elaboration of whether they have to find that the accused just generally intended to do bad, versus intended to specifically defraud.</p>\n",
"score": 3
}
] |
[
"trial",
"definition",
"legal-concepts",
"statutes",
"mens-rea"
] |
Are there any exceptions to ipc article 7 ? (Indian law)
| 3 |
https://law.stackexchange.com/questions/88176/are-there-any-exceptions-to-ipc-article-7-indian-law
|
CC BY-SA 4.0
|
<p>Do words that have been explained in one part of the act have to neccesary be assigned the same meaning in another act ?</p>
| 88,176 |
[
{
"answer_id": 89517,
"body": "<p>The principle of special laws overriding general laws is applicable to the Indian Penal Code.</p>\n<p>For references where this has been applied, see paragraph 14;</p>\n<p><em>Ajoy Kumar Banerjee & Ors. Etc vs Union Of India & Ors. Etc</em></p>\n<p><a href=\"https://indiankanoon.org/doc/1995929/\" rel=\"nofollow noreferrer\">https://indiankanoon.org/doc/1995929/</a></p>\n<blockquote>\n<p>(i) The Legislature has the undoubted right to alter a law already promulgated through subsequent legislation, (ii) A special law may be altered, abrogated or repealed by a later general law by an express provision,</p>\n</blockquote>\n<blockquote>\n<p>(iii) A later general law will override a prior special law if the two are so repugnant to each other that they cannot co-exist even though no express provision in that behalf is found in the general law, and (iv) It is only in the absence of a provision to the contrary and of a clear inconsistency that a special law will remain wholly unaffected by a later general law. Maxwell-"Interpretation of Statutes Twelfth Edition pp. 196-198, referred to.</p>\n</blockquote>\n",
"score": 1
}
] |
[
"indian-constitutional-law",
"indian-penal-code"
] |
What's the difference between a body corporate and a corporation sole?
| 3 |
https://law.stackexchange.com/questions/89513/whats-the-difference-between-a-body-corporate-and-a-corporation-sole
|
CC BY-SA 4.0
|
<p>One of those instances where unfortunately there's not much to expand in this question apart from what's in the title.</p>
| 89,513 |
[
{
"answer_id": 89514,
"body": "<h2>A <a href=\"https://en.wikipedia.org/wiki/Legal_person\" rel=\"nofollow noreferrer\">body corporate</a> is another name for a company</h2>\n<p>Companies incorporated under the Companies Act or a foreign company.</p>\n<p>This definition is particular to the UK - in other jurisdictions it is more widely defined to be synonymous with <a href=\"https://en.wikipedia.org/wiki/Legal_person\" rel=\"nofollow noreferrer\">legal person</a> and in others it can be even narrower than in the UK</p>\n<h2>A <a href=\"https://en.wikipedia.org/wiki/Corporation_sole\" rel=\"nofollow noreferrer\">corporation sole</a> is a <a href=\"https://en.wikipedia.org/wiki/Legal_person\" rel=\"nofollow noreferrer\">legal person</a> that is embodied in a particular individual</h2>\n<p>They are most commonly found in ecclesiastical and government officers to enable continuity and a smooth transition of assets, liabilities, and power when the holders of the office change.</p>\n<p>So, for example, the <a href=\"https://en.wikipedia.org/wiki/Chancellor_of_the_Exchequer\" rel=\"nofollow noreferrer\">Chancellor of the Exchequer</a> is a corporation sole. When you want to sue the treasury, you file suit against the Chancellor. At present, the current Chancellor is Jeremy Hunt (although, UK politics being what they are this may have changed by the time I post this). Jeremy is the Chancellor but only for so long as he holds the position, the Chancellor as corporation sole continues to exist no matter who has the role or even if it is temporarily empty.</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"legal-terms",
"corporate-law",
"common-law"
] |
How far does legal gymnastics go to remove liability?
| 4 |
https://law.stackexchange.com/questions/82887/how-far-does-legal-gymnastics-go-to-remove-liability
|
CC BY-SA 4.0
|
<p>Suppose a self storage company has a terms of service contract that goes to great lengths with its legalese to nullify any possibility of being held liable for anything, in other words reserve all rights but disclaim all liabilities toward the customer. This includes a convoluted digital security system on the lift requiring a code that is supposed to stop working at certain hours to restrict access but often malfunctions at other hours and the contract explicitly disclaims liability for the lifts malfunctioning.</p>
<p>But when one books a space online it is promoted when selecting a space that either it is on a ground floor or the customer is assured that there is lift access. Some of these spaces are big enough to only make sense for storing large furniture and thus couldn't be useful without functioning lift access.</p>
<p>When the lifts break down as they frequently do, it invariably wastes hours upon hours of numerous customers' time.</p>
<p><strong>is it possible/valid for a company to disclaim liability for not providing a service properly which they've contracted for consideration to do?</strong></p>
<p>Corollary: sometimes things happen that are beyond the customer's control and they are slightly late vacating the premises at the agreed time. On these occasions they may be locked inside possibly creating a fire hazard, but that's another issue, but in any case, the duty manager or contracted overnight security company is supposed to come and resolve the situation.</p>
<p>Recently after calling the out of hours assistance number someone had to wait 2 hours for the security to arrive as their keyring was on the first floor, with their storage, bike, and house key so they could'nt get home. When finally the security arrived he tried 5-6 different security pass codes but due to mismanagement by the storage company none of them had worked and the customer was left homeless that night unable to retrieve their house keys to get into their home. The security man tried to consult the duty manager liaising from the storage company itself but they also could'nt produce a code that actually functioned to give access to the premises. The customer's sleep and life were massively disrupted by this incompetent out of hours response.</p>
<p>No doubt the company's lawyers have painstakingly crafted their corporate service contract to eliminate any conceivable liabilities and give the corporation all the power possible in every conceivable circumstance.</p>
<p>But are there immutable limits to the ability of corporate legal gymnastics' ability to dissolve liability while taking people's money for a service?</p>
| 82,887 |
[
{
"answer_id": 82891,
"body": "<p><a href=\"/questions/tagged/england-and-wales\" class=\"post-tag\" title=\"show questions tagged 'england-and-wales'\" rel=\"tag\">england-and-wales</a></p>\n<p>"A term in a consumer contract is unfair if, contrary to the requirement of good\nfaith, it causes a significant imbalance in the parties' rights and obligations\nunder the contract, to the detriment of the consumer." <a href=\"https://www.legislation.gov.uk/ukpga/2015/15/section/62\" rel=\"noreferrer\">s62 Consumer Rights Act 2015</a></p>\n<p>Some suppliers put terms in contracts that seek to limit or exclude liability. Some of these are fair and others are unfair, depending. Unfair terms are automatically 'void' and therefore of no legal effect.</p>\n<p>The Competition & Markets Authority produced some guidance titled <a href=\"https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450410/Unfair_Terms_Explained.pdf\" rel=\"noreferrer\">Unfair contract terms explained</a>, which may be of interest.</p>\n<p>A term that undermines the value of the supplier's obligations by hindering or preventing the consumer from seeking a legal remedy "falls under suspicion of unfairness".</p>\n<p>A term that has the effect of giving impunity to the supplier to act unreasonably or negligently to the consumer is very likely to be considered unfair.</p>\n<p>A term may simply not be allowed under legislation and therefore it won't be legally valid (see for example s62(8)). But the consumer may not be aware of this legal fact so the term could be misleading - in which case it is actionable as an unfair commercial practice.</p>\n<p><a href=\"https://www.legislation.gov.uk/ukpga/2015/15/schedule/2\" rel=\"noreferrer\">Schedule 2 Consumer Rights Act 2015</a> lists consumer contract terms which may be regarded as unfair.</p>\n",
"score": 12
},
{
"answer_id": 82906,
"body": "<p>In the US, contracts are definitely limited. One of the primary ways is that illegal contracts/terms cannot be enforced. The details of what elements of a contract are not considered valid will depend both on federal statutes as well as state and even possibly local statutes. An example of this is how the terms of credit card contracts are subject to federal regulation. A common thing in contracts now is an agreement to use arbitration. Typically that will be upheld.</p>\n<p>The key question in the scenario you describe is what remedy is being sought. Since access has been restored, I think you would need to show some other harm such as loss of income or cost of alternate accommodations and then make a case that these were caused by the defendant.</p>\n",
"score": 5
},
{
"answer_id": 82913,
"body": "<p><a href=\"/questions/tagged/australia\" class=\"post-tag\" title=\"show questions tagged 'australia'\" rel=\"tag\">australia</a></p>\n<h2>Consumer Guarantees</h2>\n<p>Consumer Guarantees cannot be <a href=\"https://legalvision.com.au/australian-consumer-law-affect-exclusions-limitations-liability-clauses/\" rel=\"nofollow noreferrer\">excluded</a> under the Australian Consumer Law in Consumer Contracts.</p>\n<p>A Consumer Contract is anything sold or leased for less than $100,000, of any value if normally used in a household setting, or a motor vehicle or trailer.</p>\n<p>The <a href=\"https://www.accc.gov.au/consumers/consumer-rights-guarantees/consumer-guarantees\" rel=\"nofollow noreferrer\">Consumer Guarantees</a> for services are that it must be:</p>\n<blockquote>\n<ul>\n<li><p>provided with acceptable care and skill or technical knowledge and taking all necessary steps to avoid loss and damage</p>\n</li>\n<li><p>be fit for the purpose or give the results that you and the business had agreed to</p>\n</li>\n<li><p>be delivered within a reasonable time when there is no agreed end date.</p>\n</li>\n</ul>\n</blockquote>\n<blockquote>\n<p>You can claim a remedy from the supplier if the services do not meet any of the consumer guarantees in relation to services. Remedies include cancelling a service and in some cases <a href=\"https://www.accc.gov.au/consumers/consumer-rights-guarantees/compensation-for-damages-loss\" rel=\"nofollow noreferrer\">compensation for damages and loss</a>.</p>\n</blockquote>\n",
"score": 1
},
{
"answer_id": 89510,
"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>One of the main limitations on contractual limitations of liability, present in almost every U.S. states, is a prohibition on limiting liability arising from intentional acts, reckless conduct, or gross negligence.</p>\n<p>Another limitation is that parties to a contract generally cannot limit their liability to people who are not parties to the contact, except to the extent that statutory legislation permits them to do so. This is why, for example, laws relating to the limited liability of entities, or to the right to mortgage property to the detriment to third-party unsecured creditors, needs to be supported by legislation.</p>\n<p>A limitation on liability is something that can be and sometimes is restricted by statute or regulations. For example, attorneys are limited by their Rules of Professional Conduct 1.8 (all U.S. jurisdictions have a common numbering system for their rules of professional conduct for lawyers) from limiting their liability for malpractice in most circumstances. Select statutes restrict limitations of liability in other particular, usually narrow, circumstances. Often this is found in limitations on limitations of liability in state or federal consumer protection statutes.</p>\n<p>For example, in a sale of goods, under the Uniform Commercial Code, certain warranties regarding title and the condition of the goods are implied in law unless the appropriate prominent waivers of these warranties are contained.</p>\n<p>More broadly, a court can invalidate any contractual provision if it is, the context of the negotiations between the parties, unconscionable as a matter of common law contract law.</p>\n",
"score": 1
}
] |
[
"united-states",
"england-and-wales",
"liability",
"tort",
"civil"
] |
As a US citizen, what law requires me to pay income tax?
| 15 |
https://law.stackexchange.com/questions/4561/as-a-us-citizen-what-law-requires-me-to-pay-income-tax
|
CC BY-SA 3.0
|
<p>I've found content (especially from Irwin Schiff) that says there's no law requiring US citizens to pay income tax. Other sources claim that income tax is mandatory.</p>
<p>If there really is no law requiring me to pay, I'd like to know (for obvious reasons).</p>
<p>What law or laws do require me to pay? Or are there currently no such laws?</p>
| 4,561 |
[
{
"answer_id": 4563,
"body": "<p>The Internal Revenue Code found at Title 26 of the United States Code. Title 26 is the full compilation of all the <strong>laws</strong> passed by Congress relating to tax liability and every other legal obligation, definition, exemption, exception, etc. The Internal Revenue Code is the law that requires people to pay taxes and if you believe the folks who say it's only a legal requirement as assessed, they're wrong.</p>\n",
"score": 18
},
{
"answer_id": 4566,
"body": "<p>There are even <a href=\"http://www.law.cornell.edu/uscode/text/26/6702\" rel=\"noreferrer\">laws against acting on the various claims that are advocated by tax protesters</a>. Typically these are referred to as \"<a href=\"http://www.google.com/search?btnG=1&pws=0&q=irs+list+of+frivolous+positions\" rel=\"noreferrer\">frivolous tax arguments</a>,\" and make for entertaining reading.</p>\n",
"score": 10
},
{
"answer_id": 25282,
"body": "<p>Some important specific references were buried in comments, so I thought I would promote them to an answer.</p>\n\n<ul>\n<li><p>The general statement that income tax exists is in <a href=\"https://www.law.cornell.edu/uscode/text/26/1\" rel=\"nofollow noreferrer\">26 USC 1</a>:</p>\n\n<blockquote>\n <p>(a) There is hereby imposed on the taxable income of [...] every married individual [...] a tax in accordance with the following table...</p>\n</blockquote>\n\n<p>followed by similar statements for single taxpayers, heads of households, and the other filing statuses.</p>\n\n<p>(This reference comes from the <a href=\"http://www.jsiegel.net/taxes/NoLaw.htm\" rel=\"nofollow noreferrer\">link</a> provided in <a href=\"https://law.stackexchange.com/questions/4561/as-a-us-citizen-what-law-requires-me-to-pay-income-tax/19288#19288\">LPRO's answer</a> and helpfully highlighted by <a href=\"https://law.stackexchange.com/questions/4561/as-a-us-citizen-what-law-requires-me-to-pay-income-tax#comment44009_19288\">ohwillike</a>.)</p>\n\n<p>One could argue that the mandatory nature of income tax is inherent in the word \"tax\". The Oxford Dictionary <a href=\"https://en.oxforddictionaries.com/definition/tax\" rel=\"nofollow noreferrer\">defines</a> \"tax\" as \"a <em>compulsory</em> contribution to state revenue...\". Generally speaking, if a word used in a law isn't given an explicit definition, then it carries its common meaning, and courts will interpret and enforce it accordingly. If Congress hadn't meant the tax to be required, they would have used a different word than \"tax\".</p></li>\n<li><p><a href=\"https://www.law.cornell.edu/uscode/text/26/7203\" rel=\"nofollow noreferrer\">26 US 7203</a> makes it a crime to fail to pay taxes, punishable by fine and/or imprisonment. This is about the strongest way that a government can make something \"required\": by punishing people who don't do it.</p>\n\n<blockquote>\n <p>Any person required under this title to pay any estimated tax or tax [...] who willfully fails to pay such estimated tax or tax [...] shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution.</p>\n</blockquote>\n\n<p>(Thanks to <a href=\"https://law.stackexchange.com/questions/4561/as-a-us-citizen-what-law-requires-me-to-pay-income-tax#comment8232_4563\">cpast</a> for providing this reference.)</p></li>\n</ul>\n",
"score": 3
},
{
"answer_id": 89472,
"body": "<p>Unsurprisingly, it is completely incorrect that there is no law requiring citizens to pay income tax.</p>\n<p>You can of course get more granular in your analysis, but the law on this question essentially moves in three pretty straightforward steps.</p>\n<ol>\n<li><p>The <a href=\"https://constitution.congress.gov/constitution/amendment-16/\" rel=\"nofollow noreferrer\">Sixteenth Amendment</a> authorizes Congress to establish an individual income tax.</p>\n</li>\n<li><p><a href=\"https://www.law.cornell.edu/uscode/text/26/1\" rel=\"nofollow noreferrer\">26 U.S.C.§ 1</a> imposes and sets rates for a tax on the income of every married individual, head of household, unmarried individual, estate, and trust.</p>\n</li>\n<li><p><a href=\"https://www.law.cornell.edu/uscode/text/26/6012\" rel=\"nofollow noreferrer\">26 U.S.C. § 6012</a> requires the filing of income tax returns, and <a href=\"https://www.law.cornell.edu/uscode/text/26/6151\" rel=\"nofollow noreferrer\">26 U.S.C. § 6151</a> requires payment of income taxes.</p>\n</li>\n</ol>\n<p>The argument that the law does not require citizens to pay income tax is so preposterous that it is treated as <a href=\"https://www.irs.gov/privacy-disclosure/the-truth-about-frivolous-arguments-section-i-a-to-c\" rel=\"nofollow noreferrer\">frivolous</a>, meaning that if you try to invoke it, you will not only lose but will also face <a href=\"https://www.irs.gov/privacy-disclosure/the-truth-about-frivolous-tax-arguments-section-iii\" rel=\"nofollow noreferrer\">additional penalties</a> for wasting everyone's time with an argument that has been raised and rejected a million times before.</p>\n",
"score": 2
},
{
"answer_id": 19288,
"body": "<p>There is a law requiring payment of income taxes in the U.S. You can see the law here: <a href=\"http://www.jsiegel.net/taxes/NoLaw.htm\" rel=\"nofollow noreferrer\">http://www.jsiegel.net/taxes/NoLaw.htm</a>.</p>\n\n<p>For a rundown of numerous wrong arguments that U.S. citizens don't have to pay income taxes, and refutations of those arguments, see here:\n<a href=\"http://www.jsiegel.net/taxes/IncomeTax.htm\" rel=\"nofollow noreferrer\">http://www.jsiegel.net/taxes/IncomeTax.htm</a></p>\n",
"score": 1
},
{
"answer_id": 89511,
"body": "<p>The IRS has <a href=\"https://www.irs.gov/privacy-disclosure/the-truth-about-frivolous-tax-arguments-introduction\" rel=\"nofollow noreferrer\">an FAQ on the subject</a> (and other frivolous tax arguments). The first section of this is particularly pertinent:</p>\n<blockquote>\n<p>A. The Voluntary Nature of the Federal Income Tax System</p>\n<ol>\n<li>Contention: The filing of a tax return is voluntary. Some taxpayers assert that they are not required to file federal tax returns because\nthe filing of a tax return is voluntary. Proponents of this contention\npoint to the fact that the IRS tells taxpayers in the Form 1040\ninstruction book that the tax system is voluntary. Additionally, these\ntaxpayers frequently quote Flora v. United States, 362 U.S. 145, 176\n(1960), for the proposition that "[o]ur system of taxation is based\nupon voluntary assessment and payment, not upon distraint."</li>\n</ol>\n<p>The Law: The word "voluntary," as used in Flora and in IRS\npublications, refers to our system of allowing taxpayers initially to\ndetermine the correct amount of tax and complete the appropriate\nreturns, rather than have the government determine tax for them from\nthe outset. The requirement to file an income tax return is not\nvoluntary and is clearly set forth in sections 6011(a), 6012(a), et\nseq., and 6072(a) of the Internal Revenue Code. See also Treas. Reg. §\n1.6011-1(a).</p>\n<p>Any taxpayer who has received more than a statutorily determined\namount of gross income in a given tax year is obligated to file a\nreturn for that tax year. Failure to file a tax return could subject\nthe non-compliant individual to civil and/or criminal penalties,\nincluding fines and imprisonment. In United States v. Tedder, 787 F.2d\n540, 542 (10th Cir. 1986), the court stated that, "although Treasury\nregulations establish voluntary compliance as the general method of\nincome tax collection, Congress gave the Secretary of the Treasury the\npower to enforce the income tax laws through involuntary collection. .\n. . The IRS' efforts to obtain compliance with the tax laws are\nentirely proper." The IRS warned taxpayers of the consequences of\nmaking this frivolous argument in Rev. Rul. 2007-20, 2007-1 C.B. 863\nand in Notice 2010-33, 2010-17 I.R.B. 609.</p>\n<p>Relevant Case Law:</p>\n<p>Helvering v. Mitchell, 303 U.S. 391, 399 (1938) – the Supreme Court\nstated that "[i]n assessing income taxes, the Government relies\nprimarily upon the disclosure by the taxpayer of the relevant facts. .\n. . in his annual return. To ensure full and honest disclosure, to\ndiscourage fraudulent attempts to evade the tax, Congress imposes\n[either criminal or civil] sanctions."</p>\n<p>United States v. Tedder, 787 F.2d 540, 542 (10th Cir. 1986) – the\nTenth Circuit upheld a conviction for willfully failing to file a\nreturn, stating that the premise "that the tax system is somehow\n'voluntary' . . . is incorrect."</p>\n<p>United States v. Richards, 723 F.2d 646, 648 (8th Cir. 1983) – the\nEighth Circuit upheld a conviction and fines imposed for willfully\nfailing to file tax returns, stating that the claim that filing a tax\nreturn is voluntary is "an imaginative argument, but totally without\narguable merit."</p>\n<p>United States v. Hartman, 915 F. Supp. 1227, 1230 (M.D. Fla. 1996) –\nthe court held that "[t]he assertion that the filing of an income tax\nreturn is voluntary is . . . frivolous." The court noted that I.R.C. §\n6012(a)(1)(A), "requires that every individual who earns a threshold\nlevel of income must file a tax return" and that "failure to file an\nincome tax return subjects an individual to criminal penalty."</p>\n<p>Other Cases:</p>\n<p>United States v. Drefke, 707 F.2d 978 (8th Cir. 1983); United States\nv. SchulzPDF, 529 F. Supp. 2d 341 (N.D.N.Y. 2007); Foryan v.\nCommissioner, T.C. Memo. 2015-114, 109 T.C.M. (CCH) 1591 (2015); Jones\nv. Commissioner, T.C. Memo. 2014-101, 107 T.C.M. (CCH) 1495 (2014).</p>\n<ol start=\"2\">\n<li>Contention: Payment of federal income tax is voluntary. In a similar vein, some argue that they are not required to pay federal\ntaxes because the payment of federal taxes is voluntary. Proponents of\nthis position argue that our system of taxation is based upon\nvoluntary assessment and payment. They frequently claim that there is\nno provision in the Internal Revenue Code or any other federal statute\nthat requires them to pay or makes them liable for income taxes, and\nthey demand that the IRS show them the law that imposes tax on their\nincome. They argue that, until the IRS can prove to these taxpayers'\nsatisfaction the existence and applicability of the income tax laws,\nthey will not report or pay income taxes. These individuals or groups\nreflexively dismiss any attempt by the IRS to identify the laws,\nthereby continuing the cycle. The IRS discussed this frivolous\nposition at length and warned taxpayers of the consequences of\nasserting it in Rev. Rul. 2007-20, 2007-1 C.B. 863 and in Notice\n2010-33, 2010-17 I.R.B. 609.</li>\n</ol>\n<p>The Law: The requirement to pay taxes is not voluntary. Section 1 of\nthe Internal Revenue Code clearly imposes a tax on the taxable income\nof individuals, estates, and trusts, as determined by the tables set\nforth in that section. (Section 11 imposes a tax on corporations'\ntaxable income.)</p>\n<p>Furthermore, the obligation to pay tax is described in section 6151,\nwhich requires taxpayers to submit payment with their tax returns.\nFailure to pay taxes could subject the non-complying individual to\ncriminal penalties, including fines and imprisonment, as well as civil\npenalties.</p>\n<p>In United States v. Drefke, 707 F.2d 978, 981 (8th Cir. 1983), the\nEighth Circuit Court of Appeals stated, in discussing section 6151,\nthat "when a tax return is required to be filed, the person so\nrequired 'shall' pay such taxes to the internal revenue officer with\nwhom the return is filed at the fixed time and place. The sections of\nthe Internal Revenue Code imposed a duty on Drefke to file tax returns\nand pay the appropriate rate of income tax, a duty which he chose to\nignore." Id. (emphasis omitted).</p>\n<p>Although courts, in rare instances, have waived civil penalties\nbecause they have found that a taxpayer relied on an IRS misstatement\nor wrongful misleading silence with respect to a factual matter, there\nhave been no cases in which the IRS's lack of response to a taxpayer's\ninquiry has relieved the taxpayer of the duty to pay tax due under the\nlaw.</p>\n<p>Relevant Case Law:</p>\n<p>United States v. Schiff, 379 F.3d 621, 631 (9th Cir. 2004) – the Ninth\nCircuit affirmed a federal district court's preliminary injunction\nbarring Irwin Schiff, Cynthia Neun, and Lawrence N. Cohen from selling\na tax scheme that fraudulently claimed that payment of federal income\ntax is voluntary. In subsequent criminal trials, Schiff, Neun, and\nCohen were convicted of violating several criminal laws relating to\ntheir scheme. See 2005 TNT 206-18. Schiff received a sentence of more\nthan 12 years in prison for tax evasion and was ordered to pay more\nthan $4.2 million in restitution to the IRS; Neun received a sentence\nof nearly 6 years and was ordered to pay $1.1 million in restitution\nto the IRS; and Cohen received a sentence of nearly 3 years and was\nordered to pay $480,000 in restitution to the IRS. See Professional\nTax Resister Sentenced to More Than 12 Years in Prison for Tax Fraud.</p>\n<p>Keenan v. Commissioner, 233 F. App'x 719, 720 (9th Cir. 2007) – the\nNinth Circuit stated that "assertions that the tax system is\nvoluntary" are frivolous.</p>\n<p>Banat v. Commissioner, 80 F. App'x 705, 706–07 (2d Cir. 2003) – the\nSecond Circuit upheld $2,000 in sanctions against a taxpayer because\nhis argument that "the payment of income taxes was voluntary" was\n"contrary to well-established law and thus was frivolous."</p>\n<p>United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993) – the\nEighth Circuit stated that the "[taxpayers'] claim that payment of\nfederal income tax is voluntary clearly lacks substance" and imposed\nsanctions in the amount of $1,500 "for bringing this frivolous appeal\nbased on discredited, tax-protester arguments."</p>\n<p>Wilcox v. Commissioner, 848 F.2d 1007, 1009 (9th Cir. 1988) – the\nNinth Circuit rejected Wilcox's argument that payment of taxes is\nvoluntary for American citizens and imposed a $1,500 penalty against\nWilcox for raising frivolous claims.</p>\n<p>United States v. SchulzPDF, 529 F. Supp. 2d 341, 357–58 (N.D.N.Y.\n2007) – the court permanently barred Robert Schulz and his\norganizations, We the People Congress and We the People Foundation,\nfrom promoting a tax scheme that helped employers and employees\nimproperly stop tax withholding from wages on the false premise that\nfederal income taxation is voluntary.</p>\n<p>Jones v. Commissioner, T.C. Memo. 2014-101, 107 T.C.M. (CCH) 1495\n(2014) – the court imposed several sanctions of $25,000 against a\ntaxpayer who argued, amongst other frivolous arguments, that "the\nInternal Revenue Code does not establish any liability for the payment\nof Federal income tax."</p>\n<p>Other Cases:</p>\n<p>Schiff v. United States, 919 F.2d 830 (2d Cir. 1990); United States v.\nBerryman, 112 A.F.T.R.2d (RIA) 2013-6282 (D. Colo. 2013); United\nStates v. Sieloff, 104 A.F.T.R.2d (RIA) 2009-5067 (M.D. Fla. 2009);\nUnited States v. Melone, 111 A.F.T.R.2d (RIA) 2013-1369 (D. Mass.\n2013); Foryan v. Commissioner, T.C. Memo. 2015-114, 109 T.C.M. (CCH)\n1591 (2015); Horowitz v. Commissioner, T.C. Memo. 2006-91, 91 T.C.M.\n(CCH) 1120 (2006).</p>\n<ol start=\"3\">\n<li>Contention: Taxpayers can reduce their federal income tax liability by filing a "zero return." Some taxpayers attempt to reduce their\nfederal income tax liability by filing a tax return that reports no\nincome and no tax liability (a "zero return") even though they have\ntaxable income. Many of these taxpayers also request a refund of any\ntaxes withheld by an employer. These individuals typically attach to\nthe zero return a "corrected" Form W-2 or another information return\nthat reports income and income tax withholding, relying on one or more\nof the frivolous arguments discussed throughout this outline to\nsupport their position.</li>\n</ol>\n<p>The Law: A taxpayer that has taxable income cannot legally avoid\nincome tax by filing a zero return. Section 61 provides that gross\nincome includes all income from whatever source derived, including\ncompensation for services. Courts have repeatedly penalized taxpayers\nfor making the frivolous argument that the filing of a zero return can\nallow a taxpayer to avoid income tax liability or permit a refund of\ntax withheld by an employer. Courts have also imposed the frivolous\nreturn and failure to file penalties because these forms do not\nevidence an honest and reasonable attempt to satisfy the tax laws or\ncontain sufficient data to calculate the tax liability, which are\nnecessary elements of a valid tax return. See Beard v. Commissioner,\n82 T.C. 766, 777–79 (1984). The IRS warned taxpayers of the\nconsequences of making this frivolous argument in Rev. Rul. 2004-34,\n2004-1 C.B. 619. Furthermore, the inclusion of the phase "nunc pro\ntunc" or other legal phrases on a return, has no legal effect and does\nnot serve to validate a zero return. See Rev. Rul. 2006-17, 2006-1\nC.B. 748; Notice 2010-33, 2010-17 I.R.B. 609.</p>\n<p>Relevant Case Law:</p>\n<p>Kelly v. United States, 789 F.2d 94, 97 (1st Cir. 1986) – the First\nCircuit held that the taxpayer's failure to report any income from\nwages, the "unexplained designation of his Form W-2 as 'Incorrect',\nand his attempt to deduct as a cost of labor expense on Schedule C an\namount almost identical to the amount of wages on Form W-2"\nestablished that his position (that compensation for his labor was not\n"wages" or taxable income) was both incorrect and frivolous.</p>\n<p>Sisemore v. United States, 797 F.2d 268, 270 (6th Cir. 1986) – the\nSixth Circuit upheld the assessment of a frivolous-return penalty on\ntaxpayers because "their amended return [showing no income] on its\nface clearly showed that their assessment of their taxes was\nsubstantially incorrect and that their position on the matter [that\ntheir wages were zero because received in equal exchange for their\nlabor] was frivolous."</p>\n<p>Olson v. United States, 760 F.2d 1003, 1005 (9th Cir. 1985) – the\nNinth Circuit held that the district court properly found the taxpayer\nliable for a penalty for filing a frivolous tax return because he\nlisted his wages as zero and attempted "to escape tax by deducting his\nwages as 'cost of labor' and by claiming that he had obtained no\nprivilege from a governmental agency[.]"</p>\n<p>Davis v. United States Government, 742 F.2d 171, 172 (5th Cir. 1984) –\nthe Fifth Circuit held as clearly frivolous the taxpayers' reasons\n("rejected . . . time and time again") for reporting no wages and no\ngross income, when they had received over $60,000 in earnings or other\ncompensation as evidenced by the Forms W-2 attached to their Form\n1040.</p>\n<p>United States v. Lovely, 420 F. Supp. 3d 398, 408 (M.D.N.C. 2019) –\nholding a taxpayer liable for civil penalties because his "primary\nclaim—that as a matter of law he made zero taxable income despite\nbeing employed—is incorrect as it is established beyond doubt that\nemployees must generally pay federal income tax on their salaries."</p>\n<p>United States v. Melone, 111 A.F.T.R.2d (RIA) 2013-1369 (D. Mass.\n2013) – the court held that the taxpayer, who filed "zero returns,"\nfalsely asserting he made no income, was liable for civil penalties.</p>\n<p>United States v. Ballard, 101 A.F.T.R.2d (RIA) 1241, (N.D. Tex. 2008)\n– the court permanently enjoined a tax return preparer from engaging\nin further tax return preparation or tax advice because he prepared\nfederal income tax returns for customers that falsely showed nothing\nbut zeroes.</p>\n<p>Bonaccorso v. Commissioner, T.C. Memo. 2005-278, 90 T.C.M. (CCH) 554\n(2005) – the taxpayer filed zero returns based on the argument that he\nfound no Code section that made him liable for any income tax. The\ncourt held that the petitioner's argument was frivolous, citing to\nsection 1 (imposes an income tax), section 63 (defines taxable income\nas gross income minus deductions), and section 61 (defines gross\nincome). The court also imposed a $10,000 sanction under section 6673\nfor making frivolous arguments.</p>\n<p>Other Cases:</p>\n<p>United States v. Schiff, 544 F. App'x 729 (9th Cir. 2013); Leyva v.\nCommissioner, 483 F. App'x 371 (9th Cir. 2012); United States v.\nCohen, 262 F. App'x 14 (9th Cir. 2007); United States v. Conces, 507\nF.3d 1028 (6th Cir. 2007); United States v. Schiff, 379 F.3d 621 (9th\nCir. 2004); United States v. Rickman, 638 F.2d 182, 184 (10th Cir.\n1980); United States v. Nichols, 115 A.F.T.R.2d (RIA) 2015-1971 (D.\nWash. 2015); United States v. Hill, 97 A.F.T.R.2d (RIA) 2006-548 (D.\nAriz. 2005); Little v. United States, 96 A.F.T.R.2d (RIA) 2005-7086\n(M.D.N.C. 2005); Schultz v. United States, 95 A.F.T.R.2d (RIA)\n2005-1977 (W.D. Mich. 2005); Smith v. Commissioner, 121 T.C.M. (CCH)\n1195 (T.C. 2021), appeal dismissed, No. 21-71138, 2021 WL 6200759 (9th\nCir. Oct. 12, 2021); Waltner v. Commissioner, T.C. Memo. 2015-146,\nT.C.M. (RIA) 2015-146 (2015); Hill v. Commissioner, T.C. Memo.\n2014-101, 108 T.C.M. (CCH) 12 (2014); Shirley v. Commissioner, T.C.\nMemo. 2014-10, 107 T.C.M. (CCH) 1057 (2014); Waltner v. United States,\n98 Fed. Cl. 737 (2011); Oman v. Commissioner, T.C. Memo. 2010-276, 100\nT.C.M. (CCH) 548 (2010); Blaga v. Commissioner, T.C. Memo. 2010-170,\n100 T.C.M. (CCH) 91 (2010).</p>\n<ol start=\"4\">\n<li>Contention: The IRS must prepare federal tax returns for a person who fails to file. Proponents of this argument contend that section\n6020(b) obligates the IRS to prepare and sign under penalties of\nperjury a federal tax return for a person who does not file a return.\nThose who subscribe to this contention claim that they are not\nrequired to file a return for themselves.</li>\n</ol>\n<p>The Law: Section 6020(b) merely provides the IRS with a mechanism for\ndetermining the tax liability of a taxpayer who has failed to file a\nreturn. Section 6020(b) does not require the IRS to prepare or sign\nunder penalties of perjury tax returns for persons who do not file,\nand it does not excuse the taxpayer from civil penalties or criminal\nliability for failure to file.</p>\n<p>Relevant Case Law:</p>\n<p>Jahn v. Commissioner, 431 F. App'x 210, 212 (3d Cir. 2011) – the Third\nCircuit held that even if the IRS prepares a return under section\n6020(b), this "does not relieve the nonfiling taxpayer of his duty to\nfile . . . and does not equate to a filed return unless signed by the\ntaxpayer." The court found arguments to the contrary frivolous.</p>\n<p>United States v. Cheek, 3 F.3d 1057, 1063 (7th Cir. 1993) – the\nSeventh Circuit upheld the district court's instruction to the jury\nthat the defendant's belief that section 6020 permitted the Secretary\nof the Treasury to prepare a tax return for a person did not negate\n"in any way" the defendant's obligation to file a tax return.</p>\n<p>In re Bergstrom, 949 F.2d 341, 343 (10th Cir. 1991) – the Tenth\nCircuit recognized that "[c]ourts have held that 26 U.S.C. § 6020(b)\nprovides the IRS with some recourse if a taxpayer fails to file a\nreturn as required under 26 U.S.C. § 6012, but that it does not excuse\na taxpayer from the filing requirement."</p>\n<p>Schiff v. United States, 919 F.2d 830, 832 (2d Cir. 1990) – the Second\nCircuit rejected the taxpayer's argument that the IRS must prepare a\nsubstitute return pursuant to section 6020(b) before assessing\ndeficient taxes, stating that "[t]here is no requirement that the IRS\ncomplete a substitute return."</p>\n<p>Moore v. Commissioner, 722 F.2d 193, 196 (5th Cir. 1984) – the Fifth\nCircuit stated that "section [6020(b)] provides the Secretary with\nsome recourse should a taxpayer fail to fulfill his statutory\nobligation to file a return, and does not supplant the taxpayer's\noriginal obligation to file established by 26 U.S.C. § 6012."</p>\n<p>Stewart v. Commissioner, T.C. Memo. 2005-212, 90 T.C.M. (CCH) 269\n(2005) – the court found that the IRS need not prepare a substitute\nreturn in order to determine a deficiency for a taxpayer who has not\nfiled a return for the year at issue.</p>\n<p>Other Cases:</p>\n<p>United States v. Barnett, 945 F.2d 1296 (5th Cir. 1991); Smith v.\nCommissioner, 118 T.C.M. (CCH) 208 (T.C. 2019), aff'd sub nom. Smith,\nv. Commissioner, No. 20-70698, 2022 WL 576011 (9th Cir. Feb. 25,\n2022).</p>\n<ol start=\"5\">\n<li>Contention: Compliance with an administrative summons issued by the IRS is voluntary. Some summoned parties may assert that they are not\nrequired to respond to or comply with an administrative summons issued\nby the IRS. Proponents of this position argue that a summons thus can\nbe ignored. The Second Circuit's opinion in Schulz v. IRS, 413 F.3d\n297 (2d Cir. 2005) ("Schulz II"), discussed below, is often\ninappropriately cited to support this proposition.</li>\n</ol>\n<p>The Law: A summons is an administrative device with which the IRS can\nsummon persons to appear, testify, and produce documents. The IRS is\nstatutorily authorized to inquire about any person who may be liable\nto pay any internal revenue tax, and to summon a witness to testify or\nto produce books, papers, records, or other data that may be relevant\nor material to an investigation. I.R.C. § 7602; United States v.\nArthur Young & Co., 465 U.S. 805, 816 (1984); United States v. Powell,\n379 U.S. 48 (1964). Sections 7402(b) and 7604(a) of the Internal\nRevenue Code grant jurisdiction to district courts to enforce a\nsummons, and section 7604(b) governs the general enforcement of\nsummonses by the IRS.</p>\n<p>Section 7604(b) allows courts to issue attachments, consistent with\nthe law of contempt, to ensure attendance at an enforcement hearing\n"[i]f the taxpayer has contumaciously refused to comply with the\nadministrative summons and the [IRS] fears he may flee the\njurisdiction[.]" Powell, 379 U.S. at 58 n.18; see also Reisman v.\nCaplin, 375 U.S. 440, 448–49 (1964) (noting that section 7604(b)\nactions are in the nature of contempt proceedings against persons who\n"wholly made default or contumaciously refused to comply" with an\nadministrative summons issued by the IRS). Under section 7604(b), the\ncourts may also impose contempt sanctions for disobedience of an IRS\nsummons.</p>\n<p>Failure to comply with an IRS administrative summons also could\nsubject the non-complying individual to criminal penalties, including\nfines and imprisonment. I.R.C. § 7210. While the Second Circuit held\nin Schulz II that, for due process reasons, the government must seek\njudicial review and enforcement of the underlying summons and to\nprovide an intervening opportunity to comply with a court order of\nenforcement before seeking sanctions for noncompliance, the court's\nopinion did not foreclose the availability of prosecution under\nsection 7210.</p>\n<p>Relevant Case Law:</p>\n<p>Schulz v. IRS, 413 F.3d 297, 304 (2d Cir. 2005) ("Schulz II") – the\nSecond Circuit upheld its prior per curiam opinion, reported at Schulz\nv. IRS, 395 F.3d 463 (2d Cir. 2005) ("Schulz I"), and held that, based\nupon constitutional due process concerns, an indictment under section\n7210 shall not lie and contempt sanctions under section 7604(b) shall\nnot be levied based on disobedience of an IRS summons until that\nsummons has been enforced by a federal court order and the summoned\nparty, after having been given a reasonable opportunity to comply with\nthe court's order, has refused. The court noted that "[n]either this\nopinion nor Schulz I prohibits the issuance of pre-hearing attachments\nconsistent with due process and the law of contempts."</p>\n<p>United States v. Becker, 58-1 U.S.T.C. ¶ 9403 (S.D.N.Y. 1958) – when\nBecker failed to produce certain books and records specified in an IRS\nsummons, claiming that they had been destroyed by fire, the court\nfound, based upon the evidence (including the fact that some of the\nspecified books were subsequently produced in compliance with a grand\njury subpoena), that Becker willfully and knowingly neglected to\nproduce information called for by a summons in violation of section\n7210.</p>\n<p>Other Cases:</p>\n<p>United States v. Sanders, 110 A.F.T.R.2d (RIA) 2012-5910 (S.D. Ill.\n2011).</p>\n</blockquote>\n",
"score": 0
}
] |
[
"united-states",
"tax-law",
"frivolous-arguments"
] |
Law governing federal use of the National Guard
| 0 |
https://law.stackexchange.com/questions/89498/law-governing-federal-use-of-the-national-guard
|
CC BY-SA 4.0
|
<p>Consider the following hypothetical:</p>
<p>The President learns that China is going to arm Russia with weapons in its war in Ukraine. The United States, unlike Russia, is not on a war footing. Its economy is not mobilized and its citizens are not being mobilized to work production in the defense sector. Ukraine's munitions requirements and usage already outpace US munitions production capacity.</p>
<p>So to respond, the President considers proposing the following the Congress: (only presenting the relevant portions of this 'plan' or thought experiment related to the question)</p>
<blockquote>
<p>I want to use the US National Guard & possibly US Army Corps of Engineers to build 10-15 new munitions productions facilities across the US quickly (utilizing tens of thousands of National Guard personnel or more), and then staff said production facilities with National Guardsmen until the contractor obtains new hire replacements (with government incentives).</p>
</blockquote>
<p>Would this be legal, to use National Guard personnel (and possibly Army) for construction and even manufacturing personnel on a temporary basis, particularly when it can be linked to US national security or "supporting the functions" of the United States military?</p>
| 89,498 |
[
{
"answer_id": 89509,
"body": "<p>Congress could certainly bless this activity. The U.S. Constitution does not forbid it.</p>\n<p>As a practical matter, because the process of bidding defense contracts to procure goods for the military is enshrined in law and legislation, and because the National Guard does not have funding to carry out all aspects of this mission, it would probably require Congressional approval of some kind.</p>\n",
"score": 2
}
] |
[
"united-states",
"constitutional-law",
"military"
] |
Can a witness lodge an objection in response to a question?
| 12 |
https://law.stackexchange.com/questions/89494/can-a-witness-lodge-an-objection-in-response-to-a-question
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CC BY-SA 4.0
|
<p>Suppose that a lawyer asks a question that may breach some court protocol. Is it acceptable for a witness to turn to the judge and say "Objection!" and possibly go on to explain the nature of the objection, whereupon the judge makes a ruling?</p>
| 89,494 |
[
{
"answer_id": 89501,
"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>Generally, a witness cannot object to a question on the grounds that it fails to conform to a rule of evidence (e.g. hearsay).</p>\n<p>A witness can refuse to testify on a matter either due to the 5th Amendment privilege against self-incrimination, or on the grounds that some other privilege (e.g. attorney-client, clergy confession, spousal) applies.</p>\n<p>A witness can also say that they don't understand the question as phrased (either because it is complicated or because it contains terminology or concepts that the witness doesn't understand), or that the witness didn't hear the question, or that the witness forgot what the question was while the lawyers and judges were discussing whether it could be asked. This often results in the question being restated or rephrased.</p>\n<p>A witness may also answer a question by stating that there is no answer to the question as it is based upon a false premise (e.g. "on which day of the week did you beat your wife?"). And, if true, a witness can properly answer that they don't know the answer, either because they never knew or because they don't currently recall the answer.</p>\n",
"score": 20
}
] |
[
"court"
] |
What laws prove tax protesters are wrong?
| -3 |
https://law.stackexchange.com/questions/89450/what-laws-prove-tax-protesters-are-wrong
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CC BY-SA 4.0
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<p>Tax protesters are frequently penalized for raising the "frivolous" argument that the individual income tax is not mandatory but voluntary.</p>
<p>Can anyone provide the specific provision of the tax codethat states that the income tax on individuals (not businesses) is mandatory and not voluntary?</p>
<p>I have not found it myself, but I would like to have it to reference when I am approached with this topic in conversation.</p>
| 89,450 |
[
{
"answer_id": 89451,
"body": "<p>The 16th Amendment to the Constitution says:</p>\n<p>"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."</p>\n<p>Congress has exercised that power and the main controlling law is in the United States Code, Title 26, Subtitle A, Chapter 1, Subchapter A, Part I - Tax on Individuals.</p>\n<p>You can read it yourself at:\n<a href=\"http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title26-section1&num=0&edition=prelim\" rel=\"nofollow noreferrer\">US Tax Code</a></p>\n<p>There are multiple possibilities based on your situation, which you did not specify, but, for example there is this:</p>\n<p><a href=\"https://i.stack.imgur.com/mpVyY.png\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/mpVyY.png\" alt=\"Tax on married individuals\" /></a></p>\n<p>As far as mandatory, vs. voluntary, the code also gives the Internal Revenue Service the power and authority to enforce the Internal Revenue Code:</p>\n<p>26 U.S. Code § 7608 - Authority of internal revenue enforcement officers</p>\n<p>It also has numerous sections on the penalties for failing to obey the code, which I will not quote here, but which you can easily find for yourself.</p>\n<p>So in answer to your question:</p>\n<ol>\n<li>The US Constitution gives Congress the power to levy income taxes on individuals.</li>\n<li>The USC lists specific taxes and amounts levied.</li>\n<li>The USC gives the IRS the power to enforce the Internal Revenue Code.</li>\n<li>The USC provides for specific fines and other remedies for violaters.</li>\n</ol>\n",
"score": 3
}
] |
[
"united-states",
"income-tax",
"frivolous-arguments"
] |
What does the term "falls under two or more seperate definitions of an offence" mean in IPC section 71?
| 1 |
https://law.stackexchange.com/questions/89457/what-does-the-term-falls-under-two-or-more-seperate-definitions-of-an-offence
|
CC BY-SA 4.0
|
<p>Indian Penal Code section 71 states</p>
<blockquote>
<p>Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or
where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,
the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.</p>
</blockquote>
<p>what does it mean for an offence to fall under two or more seperate definitions of a law?</p>
<p>Also, if something is an offence falling under two seperate definitions of a law, is it neccesary for the courts to convict the accused under both?</p>
| 89,457 |
[
{
"answer_id": 89505,
"body": "<p>It means that the same fact patterns can create offences under different legislation, but due to <a href=\"https://en.wikipedia.org/wiki/Double_jeopardy\" rel=\"nofollow noreferrer\">double jeopardy</a> a defendant can only be punished once.</p>\n<p>See for example <em>The State Of Maharashtra vs Sayyed Hassan Sayyed Subhan</em> (<a href=\"https://indiankanoon.org/doc/162989021/\" rel=\"nofollow noreferrer\">Supreme Court, appeal No.1195 of 2018</a>) which relates to the offence of...</p>\n<blockquote>\n<p>1...transportation and sale of Gutka/Pan Masala for offences punishable under Sections 26 and 30 of the Food and Safety Standards Act, 2006 (hereinafter referred to as the ‘FSS Act’)</p>\n<p><strong>and</strong></p>\n<p>Sections 188, 272, 273 and 328 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’).</p>\n<p>[<em>my emboldenment and separation for emphasis</em>]</p>\n</blockquote>\n<p>The Court ruled that:</p>\n<blockquote>\n<ol start=\"7\">\n<li>There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. </li>\n</ol>\n</blockquote>\n",
"score": 1
}
] |
[
"rules-of-court",
"indian-penal-code",
"double-jeopardy"
] |
Can AI-generated text be considered defamation?
| 9 |
https://law.stackexchange.com/questions/89492/can-ai-generated-text-be-considered-defamation
|
CC BY-SA 4.0
|
<p>This question is inspired by recent news about some of the <a href="https://futurism.com/bing-ai-names-enemies" rel="noreferrer">strange, out-of-control behavior</a> from Microsoft's new Bing chat AI, but I am asking hypothetically here.</p>
<p>If an AI chatbot such as Bing Chat or ChatGPT said factually untrue things that did measurable harm to a real person's reputation, would that person have a case against the company that owns the chatbot for defamation? If not defamation, maybe something else? My understanding is that a key part of defamation is malicious intent, which does not really apply to a non-sentient piece of software. However, if the AI says something that does real harm to a persons reputation, couldn't the company be held responsible for this? What if the company was aware of the harm being done but chose not to take action? This seems similar to the situation where a company is held responsible for the words or actions of an employee.</p>
| 89,492 |
[
{
"answer_id": 89503,
"body": "<blockquote>\n<p>If an AI chatbot such as Bing Chat or ChatGPT said factually untrue things that did measurable harm to a real person's reputation, would that person have a case against the company that owns the chatbot for defamation?</p>\n</blockquote>\n<p>There can be liability for defamation, although the circumstances would determine who the liable party is.</p>\n<p>For instance, an owner's warning to the user about a risk of inaccuracies may have the effect of shifting to the user the issue of <em>requisite degree of fault</em>. See <a href=\"https://www.leagle.com/decision/intxco20150424940\" rel=\"noreferrer\"><em>In re Lipsky</em>, 460 S.W.3d 579, 593 (2015)</a>. The user ought to be judicious as to whether to publish the chatbot's output. Ordinarily, <em>negligence</em> suffices for liability in a scenario that involves <em>special damages</em>, i.e., concrete, ascertainable harm.</p>\n<blockquote>\n<p>My understanding is that a key part of defamation is malicious intent, which does not really apply to a non-sentient piece of software.</p>\n</blockquote>\n<p>Under defamation law, <em>malice</em> is not about feelings or emotional state. The term refers to <em>reckless disregard for the truth or falsity or the statement</em> or to <em>publication despite publisher's awareness of the falsity of the satement</em>. <em>Id</em> at 593.</p>\n<p>Regardless, <em>malice</em> needs to be proved only if the plaintiff is a public figure or in claims of defamaton <em>per se</em>, where damage to a person's reputation is presumed (and hence the damage does not need to be proved).</p>\n<blockquote>\n<p>What if the company was aware of the harm being done but chose not to take action?</p>\n</blockquote>\n<p>The terms of use might protect the company against liability. Absent any such protections, the company might be liable because its awareness and inaction are tantamount to the aforementioned reckless disregard for the truth of its product's publications.</p>\n",
"score": 8
},
{
"answer_id": 89502,
"body": "<p>AI-generated text can easily be defamatory: that is simply a matter of content. Let's say the text is "John Q Smith murdered my parents", and that the statement is untrue. The scenario, as I understand it, is that Jones is chatting with a bot maintained by Omnicorp, and the bot utters the defamatory statement. A possible defense is that the literally false statement also cannot be taken to be believable – to be defamation the statement also has to be at least somewhat believable and not just random hyperbolic insulting. Since these bots are supposed to be fact-based (not ungrounded random text generators like Alex), I thing this defense would fail.</p>\n<p>It may be necessary in that state to prove some degree of fault, viz that there was negligence. For example, a person who writes a defamatory statement in their personal locked-away diary is not automatically liable if a thief breaks in and distributes the diary to others. It is very likely that the court would find the bot-provider to be negligent in unleashing this defamation-machine on the public. It is utterly foreseeable that these programs will do all sorts of bad things, seemingly at random. Perhaps the foreseeability argument would be very slightly lessened a couple of months ago, at this point it is an obvious problem.</p>\n<p>There is some chance that the bot-provider is not liable, in light of "Section 230" which says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". If the bot is an information content provider, the platform operator is not liable. The bot is one if that entity "is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service". Needless to say, claims of "responsibility" are legally ill-defined in this context. It is not decided law what "responsibility" programs have for their actions. If the court finds that the program is not responsible, then the platform is relieved of liability as publisher.</p>\n<p>The software creators are not liable for creating a machine with the capacity to create defamatory text, but the software creators could be the same as the platform-operators in a particular case.</p>\n<p>Malicious intent is relevant for a subclass of defamation cases: defamation of public figures. You can defame famous people all you want, as long as you don't do so with malice. This is a special rule about public figures.</p>\n",
"score": 2
}
] |
[
"united-states",
"defamation",
"artificial-intelligence"
] |
Can courts consider hansard transcripts in interpreting statutes?
| 1 |
https://law.stackexchange.com/questions/89442/can-courts-consider-hansard-transcripts-in-interpreting-statutes
|
CC BY-SA 4.0
|
<p>When a court is trying to decide the meaning of a law, can it consider the discussions which begot it?</p>
| 89,442 |
[
{
"answer_id": 89499,
"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=\"united-kingdom-container\">united-kingdom</a></p>\n<p>Yes. The landmark case in the UK is <a href=\"https://en.wikipedia.org/wiki/Pepper_(Inspector_of_Taxes)_v_Hart\" rel=\"noreferrer\">Pepper (Inspector of Taxes) v Hart</a>, where the House of Lords*:</p>\n<blockquote>\n<p>established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege</p>\n</blockquote>\n<p><sub>*Strictly speaking, the <a href=\"https://en.wikipedia.org/wiki/Judicial_functions_of_the_House_of_Lords\" rel=\"noreferrer\">Appellate Committee of the House of Lords</a>, which functioned as the UK's highest court before the creation of the Supreme Court.</sub></p>\n",
"score": 6
},
{
"answer_id": 89443,
"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>See <em>Rizzo & Rizzo Shoes Ltd. (Re)</em>, <a href=\"https://canlii.ca/t/1fqwt#par35\" rel=\"nofollow noreferrer\">[1998] 1 S.C.R. 27, para. 35</a>:</p>\n<blockquote>\n<p>Although the frailties of Hansard evidence are many, this Court has recognized that <strong>it can play a limited role in the interpretation of legislation</strong>. Writing for the Court in <em>R. v. Morgentaler</em>, <a href=\"https://www.canlii.org/en/ca/scc/doc/1993/1993canlii74/1993canlii74.html\" rel=\"nofollow noreferrer\">[1993] 3 S.C.R. 463</a>, at p. 484, Sopinka J. stated:</p>\n<blockquote>\n<p>. . . until recently the courts have balked at admitting evidence of legislative debates and speeches. . . . The main criticism of such evidence has been that it cannot represent the “intent” of the legislature, an incorporeal body, but that is equally true of other forms of legislative history. <strong>Provided that the court remains mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and the purpose of legislation</strong>.</p>\n</blockquote>\n</blockquote>\n",
"score": 3
}
] |
[
"united-kingdom",
"england-and-wales",
"common-law",
"interpretation",
"any-jurisdiction"
] |
UK - Can a company ask employees to attend meetings on their own personal time, during normal work hours?
| 1 |
https://law.stackexchange.com/questions/89468/uk-can-a-company-ask-employees-to-attend-meetings-on-their-own-personal-time
|
CC BY-SA 4.0
|
<p>The meetings are training sessions for software that we use in our day to day, discussions about best practices, talking about learnings from a project etc. So not directly chargeable to a customer.</p>
<p>Previously, the meetings were charged to an "overhead" - but due to the company not meeting its financial targets, we can no longer do so.</p>
<p>Because the time can't be charged to a customer, we are being asked to attend the meetings in our own time. However, the meetings are during normal work hours.
Is this legal in the UK?</p>
| 89,468 |
[
{
"answer_id": 89496,
"body": "<h2>Yes, they can ask</h2>\n<p>Provided you attendance is voluntary and there are no negative repercussions (other than missing the learning opportunity) for not attending. If you <em>have</em> to go, they <em>have</em> to pay you.</p>\n",
"score": 3
}
] |
[
"united-kingdom",
"employment"
] |
Why must claims against the police for human rights act breaches be brought within 1 year?
| 0 |
https://law.stackexchange.com/questions/89459/why-must-claims-against-the-police-for-human-rights-act-breaches-be-brought-with
|
CC BY-SA 4.0
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<p>The standard limiation period is 6 years. So why are human rights act breaches - supposedly more serious than other matters - confined to one year?</p>
| 89,459 |
[
{
"answer_id": 89485,
"body": "<h2>Because HRA1998 says so, but it's not an absolute limit and is subject to discretion by the court:</h2>\n<blockquote>\n<p>(1)A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—</p>\n<p>(a)bring proceedings against the authority under this Act in the appropriate court or tribunal, or\n(b)rely on the Convention right or rights concerned in any legal proceedings,but only if he is (or would be) a victim of the unlawful act.</p>\n</blockquote>\n<blockquote>\n<p>(5)Proceedings under subsection (1)(a) must be brought before the end of—</p>\n<p>(a)<strong>the period of one year</strong> beginning with the date on which the act complained of took place; <strong>or</strong></p>\n<p>(b)<strong>such longer period as the court or tribunal considers equitable having regard to all the circumstances</strong>,but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.</p>\n</blockquote>\n",
"score": 3
}
] |
[
"england-and-wales",
"civil-law",
"police"
] |
Is there a fee payable when applying to a First Tier Tribunal for recovery of a prohibited payment?
| -1 |
https://law.stackexchange.com/questions/89452/is-there-a-fee-payable-when-applying-to-a-first-tier-tribunal-for-recovery-of-a
|
CC BY-SA 4.0
|
<p>If so, how much is the fee? Tenant Fees Act 2019 provides a special procedure and form TFA1 to recover banned fees, but must one pay a fee to file such an application?</p>
| 89,452 |
[
{
"answer_id": 89483,
"body": "<h2>Yes, it's £100.</h2>\n<p>See the schedule to the <a href=\"https://www.legislation.gov.uk/uksi/2016/807/schedule/made\" rel=\"nofollow noreferrer\">Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016</a> which substitutes Schedule 1 of the <a href=\"https://www.legislation.gov.uk/uksi/2013/11\" rel=\"nofollow noreferrer\">First-tier Tribunal (Property Chamber) Fees Order 2013</a> to include:</p>\n<blockquote>\n<p><em>Column 1 Number and description of fee</em></p>\n<p>1.1 Where no other fee is specified, on filing an application to commence proceedings in any leasehold case or on filing an appeal or <strong>an application to commence proceedings in a residential property case.</strong></p>\n<p><em>Column 2 Amount of fee</em></p>\n<p><strong>£100</strong></p>\n</blockquote>\n",
"score": 2
}
] |
[
"england-and-wales",
"fees",
"tribunal"
] |
Is your child's name subject to copyright/trademark law?
| 0 |
https://law.stackexchange.com/questions/89476/is-your-childs-name-subject-to-copyright-trademark-law
|
CC BY-SA 4.0
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<p>If I name my son "Nintendo", and my son goes on to make headlines doing bad things, I can imagine the company named "Nintendo" wouldn't be too happy. Similarly if I named my kid "Google" or "Microsoft" or "Sony", etc..</p>
<p>As such, would the name you give your child be subject to copyright/trademark law?</p>
<p>As a follow-up, what about if I wanted to legally change my name to "Nintendo"? Lastly, what about the names of fictional characters? E.g. writing a story and having the main villain named "Nintendo"?</p>
| 89,476 |
[
{
"answer_id": 89478,
"body": "<h2>NO</h2>\n<p>The Names of actual people can neither be trademarked nor <a href=\"https://www.copyright.gov/help/faq/faq-protect.html#:%7E:text=No.,Titles%2C%20or%20Short%20Phrases%22.\" rel=\"nofollow noreferrer\">can a name have a valid copyrighted</a>. There is no valid market class for names of people, making it impossible to register a trademark in that category. As a result, neither copyright nor trademark will prevent someone from attempting to name a kid "Nintendo" or "Sony Music".</p>\n<p>While you could <em>try</em> to name your kid Nintendo, unless you are in the US, most countries like <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> or <a href=\"/questions/tagged/japan\" class=\"post-tag\" title=\"show questions tagged 'japan'\" aria-label=\"show questions tagged 'japan'\" rel=\"tag\" aria-labelledby=\"japan-container\">japan</a> do safeguard what you can name a child. Those countries <strong>will</strong> deny your name as endangering the (mental) health of the child or in other way making the child a target for mockery. Compare to names in <a href=\"https://law.stackexchange.com/a/88505/10334\">all lowercase</a>, <a href=\"https://law.stackexchange.com/a/85328/10334\">line breaks</a>, and <a href=\"https://law.stackexchange.com/a/88512/10334\">infinitely long</a> names.</p>\n",
"score": 3
}
] |
[
"united-states",
"copyright",
"intellectual-property",
"trademark",
"name"
] |
Can a researcher use YouTube videos to train a ML model?
| 0 |
https://law.stackexchange.com/questions/89479/can-a-researcher-use-youtube-videos-to-train-a-ml-model
|
CC BY-SA 4.0
|
<p>Manually migrating this from here because the answers were unsatisfactory: <a href="https://datascience.stackexchange.com/questions/26079/is-it-legal-to-scrape-youtube-videos-for-training-data">https://datascience.stackexchange.com/questions/26079/is-it-legal-to-scrape-youtube-videos-for-training-data</a></p>
<p>Can a machine learning researcher scrape youtube or use youtube videos/snippets of youtube videos to train a model? Would this violate 1) the creator's copyrights, 2) google's distribution/use rights?</p>
<p>This question does not concern datasets Google has freely released, but rather any other publicly available videos.</p>
| 89,479 |
[
{
"answer_id": 89481,
"body": "<p>The download/scrape would be a prima facie copyright infringement if the content is protected by copyright (most is) and not licenced for such use.</p>\n<p>This would be excused only if a fair use defence were established, which is a case-by-case assessment as described here: <a href=\"https://law.stackexchange.com/a/7684/46948\">In the US, when is fair use a defense to copyright infringement?</a></p>\n<p>The fact that the intended use would be to train a machine-learning model would be just <em>one</em> of the factors in the fair use analysis (the purpose and character of use), but it is not determinative, other factors can pull the analysis in the opposite direction, and we are not better placed than you to make a prediction about the outcome of such a defence.</p>\n",
"score": 2
}
] |
[
"copyright",
"fair-use",
"distribution-terms"
] |
What is "distress," as in "distress for rent"?
| 5 |
https://law.stackexchange.com/questions/89446/what-is-distress-as-in-distress-for-rent
|
CC BY-SA 4.0
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<p>There have been several distress for rent acts in the 17th and 18th centuries, which provide a right for distress. What is the nature of this right and the origin of its name?</p>
| 89,446 |
[
{
"answer_id": 89447,
"body": "<p>Distress or distraint refers to a right to seize the personal property of a wrong-doer to satisfy a demand. The landlord might seize your horse for non-payment of rent, under this right. For example (1414) "Full power and autorite..the same tenantz and tenantdris til distreyn and hald, till all rerages and dettes..be assethid". This is an example of Law French, deriving from Old French destreindre "to strain, press, wring, vex extremely, straighten" and Old French destresser, destrecier, both ultimately derives from Latin distringere (distringo)..</p>\n",
"score": 10
}
] |
[
"england-and-wales",
"legal-terms",
"legal-history",
"any-jurisdiction"
] |
FOIA to Office of Parliamentary Counsel to gain insight to the intentions of statutory minutiae
| 0 |
https://law.stackexchange.com/questions/89470/foia-to-office-of-parliamentary-counsel-to-gain-insight-to-the-intentions-of-sta
|
CC BY-SA 4.0
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<p>Has it ever been done to FOIR the office of parliamentary counsel to find out whether certain minute idiosyncrasies judged by courts to be nonetheless unequivocal so as to reflect intentional distinctions were in fact reflective of intention to nuanced distinctions or simply coincidental oversights?</p>
<p>I'm thinking of things that actual MPs may be far too busy to have awareness of in the scope and level of details of their parliamentary debates, but the lawyers actually drafting the legislations' language would have considered in detail.</p>
<p>As an aside would their drafting notes kind of like "code comments" in source code be recorded anywhere and would they even be subject to FOIA if so?</p>
<p>And if one were to do this, what impact would it have on the judicial interpretation subsequently?</p>
| 89,470 |
[
{
"answer_id": 89471,
"body": "<p>Any such documents would be protected by parliamentary privilege. See <a href=\"https://ico.org.uk/media/for-organisations/documents/1161/section_34_parliamentary_privilege.pdf\" rel=\"nofollow noreferrer\">this primer</a> on the interaction between freedom-of-information requests and parliamentary privilege.</p>\n<blockquote>\n<p>[Parliamentary privilege] is a set of\nconstitutional law principles, originating in the Middle Ages and\npartially codified in the 17th century onwards, which provide\ncertain rights (or privileges) to allow Parliament to work\neffectively and independently, without interference from the\nmonarchy, courts or other authorities.</p>\n</blockquote>\n<p>It includes:</p>\n<ul>\n<li>"Internal papers prepared by the officials of either House\ndirectly relating to House or committee proceedings, eg\nbriefing papers or notes of committee meetings.</li>\n<li>"Correspondence between members, House officials,\nministers and government officials, where the\ncorrespondence directly and specifically relates to House\nor committee proceedings."</li>\n</ul>\n",
"score": 2
}
] |
[
"united-kingdom",
"interpretation",
"foia"
] |
Is there a Legal Requirement for Computer Companies to Include an Operating System when Selling a PC?
| 3 |
https://law.stackexchange.com/questions/51508/is-there-a-legal-requirement-for-computer-companies-to-include-an-operating-syst
|
CC BY-SA 4.0
|
<p>I asked a company if they could sell me a PC without an installed Operating System, as I plan to install my own. Their response was that <em>"We have to legally include a OS with all of our systems. So we include Windows 10."</em> It surprised me that this would be a legal issue rather than a company policy.</p>
<p>The company is based in Utah. Is this an actual legal requirement by law? Why? Could it be to protect consumers? Would it protect the company from liability? Is it likely part of a contract they are in? Or is this a misunderstanding by customer service?</p>
<p>I didn't find anything with a cursory web search. (I am a new poster, so any critiques of my question are welcome.)</p>
| 51,508 |
[
{
"answer_id": 51509,
"body": "<h2>No</h2>\n<p>AFAIK there is no such legal requirement.</p>\n<p>Why this company told you there was I can’t speculate. But I will.</p>\n<p>There may be under contract with MicroSoft to put their OS on every box they sell - that would be a legal requirement. Or the just don’t sell boxes without this and they employee told you it was a legal obligation to get out of the conversation.</p>\n",
"score": 8
},
{
"answer_id": 89305,
"body": "<p>I am not aware of any legal requirement to include software with hardware. If they insist on providing an operating system, tell them to include Linux, as this costs $0 so you do not need to pay for the Windows license.</p>\n<p>As Dale M says, if they have a contract with a provider to force certain software onto their customers, that does mean that they specifically have a contractual obligation to give you that bloatware. Then again, you have no legal obligation to purchase from them.</p>\n",
"score": 0
}
] |
[
"software",
"business",
"commerce",
"hardware"
] |
Who owns copyright of a photo taken by a camera after the timer is set to 10 seconds?
| 16 |
https://law.stackexchange.com/questions/89160/who-owns-copyright-of-a-photo-taken-by-a-camera-after-the-timer-is-set-to-10-sec
|
CC BY-SA 4.0
|
<p>Who owns copyright of a photo taken by a camera after the timer is set to 10 seconds? Is it the person who set the timer? But he/she didn't take any picture. A machine did.</p>
| 89,160 |
[
{
"answer_id": 89162,
"body": "<p>To the extent that the photograph is an expression of the operator's originality (e.g. framing, subject, angles, camera settings, etc.) <em>it is the operator who has the best claim to copyright</em>. Whether it was "made by a machine" misses the issue: what matters is the degree to which the purported author contributed originality.</p>\n<p>In your hypothetical, the operator is the person responsible for fixation of the work and the person who contributed original expression to the work. <a href=\"https://law.stackexchange.com/questions/87627/in-the-united-states-what-is-the-threshold-for-originality-in-order-to-have-c\">It is the "the product of [that person's] exercise of skill and judgment" (the Canadian standard) and an expression of a "modicum of creativity" (the U.S. standard)</a>. See generally, <em>CCH Canadian Ltd. v. Law Society of Upper Canada</em>, <a href=\"https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2125/index.do\" rel=\"noreferrer\">2004 SCC 13</a>; <em>Feist Publications, Inc. v. Rural Telephone Service Co. Inc.</em>, <a href=\"https://tile.loc.gov/storage-services/service/ll/usrep/usrep499/usrep499340/usrep499340.pdf\" rel=\"noreferrer\">499 U.S. 340</a> (1990).</p>\n<p>But the Copyright Office has stated that:</p>\n<blockquote>\n<p>[it] will not register works produced by a machine or mere mechanical process <em>that operates randomly or automatically without any creative input or intervention from a human author</em>. The crucial question is “whether the ‘work’ is\nbasically one of human authorship, with the computer [or other device] merely being an\nassisting instrument, or whether the traditional elements of authorship in the work\n(literary, artistic, or musical expression or elements of selection, arrangement, etc.)\nwere actually conceived and executed not by man but by a machine.”</p>\n<p><em>Copyright Compendium</em>, <a href=\"https://www.copyright.gov/comp3/docs/compendium.pdf#page=68\" rel=\"noreferrer\">s. 313.2</a></p>\n</blockquote>\n<p>I am comfortable predicting that a mere 10-second delay will almost always fall on the side of the line where the operator would be considered to be an author.<sup>1</sup></p>\n<hr />\n<p><sup>1. At the other end of the spectrum are pre-positioned cameras that record continuously or when triggered by motion. <a href=\"https://en.wikipedia.org/wiki/Threshold_of_originality#Pre-positioned_recording_devices\" rel=\"noreferrer\">Who (if anyone) holds the copyright in that circumstance has not been answered</a>, with opinions differing across jurisdictions and academics: some arguing that the device owner would hold copyright, some arguing that no one would, others arguing that it would be fact-based inquiry about who might have contributed sufficient originality.</sup></p>\n",
"score": 40
},
{
"answer_id": 89178,
"body": "<p>The camera itself is a machine, the timer is a functional mode of the machine. The camera also has other functional modes that often factor into the process of taking a photograph, including autofocus, automatic exposure control, flash, tripods for stabilization, etc.</p>\n<p>If the photographer chose to NOT use a timer, the photograph would still have been taken by a machine. However, the decision to use a timer or not is as much a part of the creative process as using any other mode.</p>\n<p>Copyright laws do not go into detailed requirements of specific camera settings needing to be controlled manually or directly by the photographer in order to have ownership of copyrights. Therefore, if a timer was used the copyright would belong to the photographer just as it would if a timer was not used.</p>\n<p>If there were a controversy over participation by a third party in any aspect of the process it would have to be settled in court.</p>\n",
"score": 29
},
{
"answer_id": 89210,
"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></p>\n<p>Assuming the photo is eligible for <a href=\"https://wikipedia.org/wiki/Authors%27_rights\" rel=\"nofollow noreferrer\">Authors' Rights</a> at all, the photographer owns the Author's Rights.</p>\n<p>An important part of Author's Rights is <em>creative choice</em>. The photographer chose to set the timer to 10 seconds. They could have chosen 5 seconds or 15 or not to use a timer at all. Same as the subject, composition, framing, depth-of-field, focus, shutter speed, focal length, lens, body, whether to use digital (and which sensor size) or film (and which film), etc.</p>\n<p>The camera didn't make those choices. The photographer did.</p>\n<p>By the OP's argument, any author who uses a computer to write their novels does not own the copyright, because the novel was written by the computer. Any painter who uses a brush does not own the copyright, because the painting was painted by the brush. Any composer who uses a guitar does not own the copyright, because the song was played by the guitar.</p>\n<p>Note that in <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>, even photographs that are <em>not</em> eligible for Author's Rights may still be protected under the <a href=\"https://wikipedia.org/wiki/Related_rights\" rel=\"nofollow noreferrer\"><em>Neighbouring / Related Right</em></a> of the <a href=\"https://wikipedia.org/wiki/Related_rights#Photographers\" rel=\"nofollow noreferrer\"><em>Photographer</em></a>.</p>\n",
"score": 3
}
] |
[
"copyright"
] |
Can the owner of a limited liability company be penalized?
| 1 |
https://law.stackexchange.com/questions/18069/can-the-owner-of-a-limited-liability-company-be-penalized
|
CC BY-SA 3.0
|
<p>I'm wondering about the legal practice in different countries.</p>
<p>If a person forms a limited liability company (LLC), and then completely abandons it, e.g. doesn't file taxes for the company etc., what will happen? (for example, due to sudden illness)</p>
<p>In my experience, the company would be penalized, then declared bankrupt, and closed. But the owner would not be liable for any penalties, because he is technically considered a shareholder. At the same time though, he is also the director of the company. In some countries, it seems that the director is liable and personally penalizeable for failing to submit documents. And that the owner is automatically declared the director of the company, thus becoming personally liable for what should otherwise be a limited liability.</p>
<p>Is this difference based in the fundamental legal philosophy of a country?</p>
<p>I'm located in Bulgaria, and as is well known, there are many problems, but mainly with enforcement and malpractice. I care about the development of the country, and it seems that pressures from the EU has made it a lot easier to start a limited liability company. The capital requirement has been reduced to 1 euro, and all the official measures have been reduced, e.g. how much time it takes to create a company, online registration, bureaucratic burdens and so on. But what they haven't reduced, is the reporting requirements. The accounting costs are incredibly high. To submit documents, you have to pay stamp taxes and similar 'publication' taxes. In short, I can easily imagine a situation where a low-income individual seeks to start a business of their own, but, as most low-income small-business-owners who have never had a business before, would easily be at risk of failing to keep it operational. But closing a company takes a minimum of 10 months and requires numerous bureaucratic steps.</p>
<p>This leaves me wondering whether there is a fundamental legal-philosophical difference, as opposed to northern-European countries (or USA, Australia, Canada etc.).</p>
<p>And fundamentally whether, as @davidgo points out, that there is a significant risk that a 'limited liability company' can in fact, even without any activity, quickly become an enormous inescapable financial burden. Penalties for failing to comply with reporting requirements (which are very strict and numerous) can equal 2-3 months (~1200 EUR) of an average salary (400 EUR/month), per year.</p>
<p>I'm, quite frankly, outraged, but the locals are saying "well, that's Bulgaria" or "of course", without any hint of critical reflection.</p>
| 18,069 |
[
{
"answer_id": 18070,
"body": "<p>Details vary by jurisdiction but, in general, a shareholder has no liability (more precisely their liability is limited to the value of their shares or guarantee) but a director can be civilly or criminally liable if they fail to discharge their duties as a director. These duties are related to but distinct from the duties the company itself has. In general, director's duties are owed only to the government and the shareholders - not to the public at large.</p>\n",
"score": 2
},
{
"answer_id": 18158,
"body": "<p>Frequently, the general rule has multiple exceptions that can be quite idiosyncratic from jurisdiction to jurisdiction, making a detailed answer difficult.</p>\n<p>I've seen variously - exceptions for withholding taxes, for passthrough tax liability, for any liabilities of an undercapitalized company, for any liabilities have a company that has made distributions or excessive compensation payments to owners to the extent of those distributions or of that compensation, for unpaid wages of employees (sometimes up to a dollar cap), for licensing obligations that require the personal signature of the owners (e.g liquor licenses), to account for construction trust funds, for certain kinds misrepresentations, for entities used to carry on criminal enterprises, for companies that fail to give notice of their limited liability status, etc. Many would be industry specific.</p>\n<p>Some countries distinguish between lack of liquidity reorganizations, good faith business failure bankruptcies and bankruptcies arising due to fraud in their bankruptcy laws with residual ownership liability in fraud causes (e.g. unwinding Ponzi schemes).</p>\n<p>Some jurisdictions restrict the capacity of owners of limited liability businesses that fail to start new limited liability businesses.</p>\n<p>Few jurisdictions have all of these exceptions, some probably have others that didn't occur to me. Many law digests would say that owners of limited liability companies have no liability and omit specialized exceptions that apply only to specific kinds of liabilities in specific circumstances or industries.</p>\n<p>Many of the exceptions are limited to closely held company owners or owners who have some managerial role or authority, and don't apply to passive owners of publicly held shares of a publicly held corporation.</p>\n",
"score": 2
}
] |
[
"tax-law",
"corporate-law"
] |
Can loss sharing ratio of all the partners in the LLP be kept 0%?
| -1 |
https://law.stackexchange.com/questions/89402/can-loss-sharing-ratio-of-all-the-partners-in-the-llp-be-kept-0
|
CC BY-SA 4.0
|
<p>L.L.P. stands for Limited Liability Partnership.
Profit and Loss sharing ratio & relevant details.</p>
| 89,402 |
[
{
"answer_id": 89404,
"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<blockquote>\n<p>Can loss sharing ratio of all the partners in the LLP be kept 0%?</p>\n</blockquote>\n<p>No.</p>\n<p>The profit and loss sharing ratio of all of the partners combined (for tax purposes) needs to add up to 100% of the profits and losses in every tax year.</p>\n",
"score": 1
}
] |
[
"tax-law",
"corporate-law",
"partnership"
] |
Does common law encompass criminal law?
| 2 |
https://law.stackexchange.com/questions/89430/does-common-law-encompass-criminal-law
|
CC BY-SA 4.0
|
<p>A recent answer distinguishes the two but I had always thought that common law includes both civil and criminal components. Does it not?</p>
| 89,430 |
[
{
"answer_id": 89432,
"body": "<h2>Yes. And also no.</h2>\n<p>See <a href=\"https://law.stackexchange.com/questions/22149/what-is-the-difference-between-common-law-and-civil-law-in-the-u-s/22151#22151\">What is the difference between Common Law and Civil Law in the U.S.?</a></p>\n<p>A common law system is a common law system and that obviously encompasses criminal law. But that’s not the only definition of common law.</p>\n<p>In most common law jurisdictions, most crimes are now statutory crimes. That is, what they are and the punishment for them is detailed in an Act of Parliament (or local equivalent).</p>\n<p>However, the codification of what were once common law crimes is not (and arguably cannot) be complete. There still exist common law crimes which can be pulled out when needed. For example, in <a href=\"https://www.countycourt.vic.gov.au/files/documents/2021-04/sentencing-remarks-dpp-v-pusey.pdf\" rel=\"nofollow noreferrer\">DPP v Pusey</a>, the defendant was pulled over by several police officers and, while this was happening, a large truck collided with the stopped cars and the police officers were killed. While they were dying Pusey took out his phone and recorded their deaths while mocking and taunting them. This was not against any statutory criminal code in Victoria. So, the Director of Public Prosecutions pulled out the archaic common law offence of <a href=\"https://en.wikipedia.org/wiki/Outraging_public_decency\" rel=\"nofollow noreferrer\">outraging public decency</a>.</p>\n<p>In addition, statutory crimes are necessarily interpreted by judges and aggregate a collection of common law rulings around them.</p>\n",
"score": 5
},
{
"answer_id": 89431,
"body": "<p><a href=\"/questions/tagged/common-law\" class=\"post-tag\" title=\"show questions tagged 'common-law'\" aria-label=\"show questions tagged 'common-law'\" rel=\"tag\" aria-labelledby=\"common-law-container\">common-law</a> covers both <a href=\"/questions/tagged/civil-law\" class=\"post-tag\" title=\"show questions tagged 'civil-law'\" aria-label=\"show questions tagged 'civil-law'\" rel=\"tag\" aria-labelledby=\"civil-law-container\">civil-law</a> and <a href=\"/questions/tagged/criminal-law\" class=\"post-tag\" title=\"show questions tagged 'criminal-law'\" aria-label=\"show questions tagged 'criminal-law'\" rel=\"tag\" aria-labelledby=\"criminal-law-container\">criminal-law</a></p>\n<p>The <a href=\"/questions/tagged/civil-law\" class=\"post-tag\" title=\"show questions tagged 'civil-law'\" aria-label=\"show questions tagged 'civil-law'\" rel=\"tag\" aria-labelledby=\"civil-law-container\">civil-law</a> tag description reads:</p>\n<blockquote>\n<p>For questions relating to non-criminal legal branch of <a href=\"/questions/tagged/common-law\" class=\"post-tag\" title=\"show questions tagged 'common-law'\" aria-label=\"show questions tagged 'common-law'\" rel=\"tag\" aria-labelledby=\"common-law-container\">common-law</a> legal systems. Not to be confused with <a href=\"/questions/tagged/civil-legal-system\" class=\"post-tag\" title=\"show questions tagged 'civil-legal-system'\" aria-label=\"show questions tagged 'civil-legal-system'\" rel=\"tag\" aria-labelledby=\"civil-legal-system-container\">civil-legal-system</a>, relating to civilian or Roman law.</p>\n</blockquote>\n<p>... and there is your problem. The answer almost certainly meant to refer to <a href=\"/questions/tagged/civil-legal-system\" class=\"post-tag\" title=\"show questions tagged 'civil-legal-system'\" aria-label=\"show questions tagged 'civil-legal-system'\" rel=\"tag\" aria-labelledby=\"civil-legal-system-container\">civil-legal-system</a></p>\n",
"score": 2
},
{
"answer_id": 89433,
"body": "<p>Criminal law is part of common-law legal systems and is usually based largely on a codified set of rules as interpreted and applied by the judiciary. 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> this is primarily the <em>Criminal Code</em>, although there are also other statutory sources.</p>\n<p>Even in jurisdictions with codified criminal law, non-statutory sources live on and continue to be developed:</p>\n<ul>\n<li>"Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament" (s. 8(3));</li>\n<li>other than contempt of court, common-law <em>offences</em> are abrogated (s. 9);</li>\n<li>rules of evidence, including privilege, are largely driven by common law (this is also supplemented with the <em>Canada Evidence Act</em>);</li>\n<li>interpretation of the provisions of the <em>Criminal Code</em> follow common-law practices: judges apply statutory interpretation, and later judges are bound according to the ordinary application of <em>stare decisis</em>.</li>\n</ul>\n",
"score": 2
}
] |
[
"criminal-law",
"civil-law",
"common-law"
] |
What was the most direct predecessor to Human Rights Act 1998?
| 0 |
https://law.stackexchange.com/questions/89363/what-was-the-most-direct-predecessor-to-human-rights-act-1998
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CC BY-SA 4.0
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<p>HRA is said to be "constitutional." Which is slightly peculiar, as "constitutional" acts often precede the majority of a republic's other active statutes, and come reasonably early in the republic's foundation.</p>
<p>The UK is in the peculiar position of not in fact being a republic, yet still featuring many of the elements of modern democracies, and certain acts are held up to be "constitutional" (ie supreme).</p>
<p>1998 is reasonably late in the history of the UK, so what was the framework before that? What happened in 1998 that prompted it to be dispensed with and subplanted by HRA?</p>
| 89,363 |
[
{
"answer_id": 89372,
"body": "<h2>The <a href=\"https://en.wikipedia.org/wiki/1997_United_Kingdom_general_election\" rel=\"nofollow noreferrer\">1997 General Election</a></h2>\n<p>Incorporating the <a href=\"https://en.wikipedia.org/wiki/European_Convention_on_Human_Rights\" rel=\"nofollow noreferrer\">European Convention on Human Rights</a> into domestic law was Labor party policy. They won the election after 2 decades of Conservative rule and implemented their policy. Some parts of the electorate believed that the the Thatcher-Major’s Governments had not respected the Convention.</p>\n<p>Prior to the <a href=\"https://en.wikipedia.org/wiki/Human_Rights_Act_1998\" rel=\"nofollow noreferrer\">Human Rights Act</a>, UK courts could not strike down UK laws that conflicted with the convention or give orders implementing it if these conflicted with domestic law. A petitioner would have to exhaust all domestic remedies and then go to the European Court of Human Rights to force government compliance - a long (in both time and distance) and expensive journey.</p>\n",
"score": 2
},
{
"answer_id": 89445,
"body": "<p>This isn't a direct answer to the question, but being Canadian, I feel an intrinsic need to address the presumptions in this question which I view as overly US-centric.</p>\n<blockquote>\n<p>Which slightly peculiar, as "constitutional" acts often precede the majority of a republic's other active statutes, and come reasonably early in the republic's foundation.</p>\n</blockquote>\n<p>This isn't that peculiar. Countries with "late" and "major" constitutional documents include Canada (1982), Egypt (2014), France (arguably the 2008 amendments), New Zealand (1990), Norway (2014), Sweden (2011). Yes a lot of these aren't republics, but neither is the comparison country of the UK.</p>\n<blockquote>\n<p>The UK is in the peculiar position of not in fact being a republic, yet still featuring many of the elements of modern democracies</p>\n</blockquote>\n<p>Again, this is not too peculiar. Reasonably democratic non-republics include: Australia, Belgium, Canada, Japan, the Netherlands, New Zealand, Norway, Spain, Sweden.</p>\n<blockquote>\n<p>certain acts are held up to be "constitutional" (ie supreme).</p>\n</blockquote>\n<p>The "ie supreme" parenthetical can be misleading. Constitutional documents are not necessarily supreme in the sense of automatically overriding other laws or requiring some sort of super-majority to amend or repeal (both true in the US, neither true in the UK). Admittedly, of my issues with the presumptions in this question, this one is more often correct than the others I pointed out, but other examples I'm aware of are: the Netherlands, New Zealand, and to an extent Switzerland (in terms of not automatically overriding other laws).</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"human-rights",
"legal-history"
] |
What is the state's obligation to provide a means to comply?
| 20 |
https://law.stackexchange.com/questions/89406/what-is-the-states-obligation-to-provide-a-means-to-comply
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CC BY-SA 4.0
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<p>The jurisdiction is Washington State, the specific situation is the purchase of a vintage automobile that had been abandoned. The vehicle was not running at the time, and had no title or registration.</p>
<p>I had the Department of Licensing run a search which came back with no results, but they only claim to go back 7 years. The next step is to trailer it to the State Patrol for a VIN inspection, and this is the part that is causing trouble...</p>
<p>I have made a good faith effort on multiple occasions to schedule an inspection through their website, but due to shut downs of this service during Covid and chronic staffing shortages that they mention on the site, there has NEVER been an appointment available whenever I have checked. This has gone on for several years now. Their website doesn't support getting your request into a queue, and I don't have the computer skills to automate the process of checking for openings so I have almost resigned myself to not trying anymore.</p>
<p><strong>Question:</strong> Given that the state has mandated that vehicles be registered, and that to be registered one must have a title, and that to obtain a title in the event of loss/abandonment a vehicle must be inspected, <strong>what is the state's obligation to provide a means to comply</strong> when every reasonable attempt has been exhausted? In other words, at what point does the government's inability to effectively administer a program become an unreasonable restriction on personal liberty?</p>
<p>Supplementary:</p>
<ul>
<li>Is there a legal concept or term for this, or for a valid defense strategy that could be made if reasonable and good faith attempts to comply could be demonstrated? <em>(i.e. a Latin phrase comparable to "mens rea", etc.)</em></li>
</ul>
<p>What other remedies might be available?</p>
<ul>
<li>I have considered proceeding with the restoration, and drafting an "Affidavit in lieu of registration" document detailing my numerous attempts to follow the process, and indicating a sincere desire to comply, but my concern would be having the vehicle impounded if/when I get pulled over.</li>
<li>I have even considered asking local law enforcement to just issue me a citation so that I might appear in court and plead for an opportunity to be given the means to comply. <em>(i.e. move to the head of the line...)</em></li>
<li>I have also considered writing to my state representative. Are there any other preemptive actions that might help get this situation "unstuck"?</li>
<li>Is there a statute of limitations for asserting ownership that might alleviate my concerns about proceeding with the project?</li>
</ul>
| 89,406 |
[
{
"answer_id": 89410,
"body": "<p>The state of Washington does not have an <em>absolute</em> requirement that vehicles must be registered. What it has is <a href=\"https://app.leg.wa.gov/RCW/default.aspx?cite=46.16A.030\" rel=\"noreferrer\">RCW 46.16A.030 (2)</a>:</p>\n<blockquote>\n<p>(2) It is unlawful for a person to <strong>operate any vehicle on a public highway of this state</strong> without having in full force and effect a current and proper vehicle registration and displaying license plates on the vehicle.</p>\n</blockquote>\n<p>Therefore you <em>already</em> have a means to comply with the law: simply refrain from operating this vehicle on any public highway of the state of Washington. In other words, don't drive or park it on public roads; keep it on private property. (In many states, "operating" includes parking; I could not immediately find out whether this is the case in Washington.)</p>\n<p>So now your question instead becomes: "What is the state's obligation <em>to make it possible for me to lawfully drive this particular vehicle on the public roads</em>?" And the answer to that is much more clearly, "none". Driving in general is considered a privilege and not a right, so your "personal liberty" is not at issue. The state is not doing a good job of providing a service which they generally do provide, which is certainly annoying, but is not a legal issue, and does not give you the right to break the law.</p>\n<hr />\n<blockquote>\n<p>I have considered proceeding with the restoration, and drafting an "Affidavit in lieu of registration" document detailing my numerous attempts to follow the process, and indicating a sincere desire to comply, but my concern would be having the vehicle impounded if/when I get pulled over.</p>\n</blockquote>\n<p>Yes, it probably would be.</p>\n<blockquote>\n<p>I have even considered asking local law enforcement to just issue me a citation so that I might appear in court and plead for an opportunity to be given the means to comply. (i.e. move to the head of the line...)</p>\n</blockquote>\n<p>You would still lose, unless the judge is particularly sympathetic.</p>\n<blockquote>\n<p>I have also considered writing to my state representative.</p>\n</blockquote>\n<p>That's a better idea - at least it doesn't involve violating the law. And legislators usually do make some effort to help constituents when they have problems with government offices. However, if the issue is simply that the State Patrol is overloaded with work, there may not be much they can do.</p>\n<blockquote>\n<p>Is there a statute of limitations for asserting ownership that might alleviate my concerns about proceeding with the project?</p>\n</blockquote>\n<p>The requirement to have an inspection before getting a title seems to be from RCW 46.12.530 (2): "The department may require additional information and a physical examination of the vehicle or of any class of vehicles, or either." So there is no exception written into statute.</p>\n<p>The implementing regulation looks to be <a href=\"https://app.leg.wa.gov/WAC/default.aspx?cite=308-56A-150\" rel=\"noreferrer\">WAC 308-56A-150</a>. There are several criteria listed for when inspection is required, and I'm not sure which would apply to your vehicle. It may perhaps be "<a href=\"https://app.leg.wa.gov/WAC/default.aspx?cite=308-56A-210\" rel=\"noreferrer\">(g) ownership in doubt (WAC 308-56A-210)</a>" which applies when you do not have the documentation described in <a href=\"https://app.leg.wa.gov/WAC/default.aspx?cite=308-56A-265\" rel=\"noreferrer\">WAC 308-56A-265</a>. Or it may be the catchall "(c) One on which the identification number needs verification as requested by the department, county auditor, or authorized agent". You'll have to research this further.</p>\n<p>There doesn't seem to be any exception based specifically on the long time period that the car has been unregistered, or the fact that no theft is known to have been reported in the past 20 years, or anything like that.</p>\n",
"score": 22
},
{
"answer_id": 89423,
"body": "<p>A Hail Mary play I'd try is to file a lawsuit to quiet title.</p>\n<p>"To quiet a title" is to remove stains on a title and produce a clear and unambiguous title as a matter of court judgment.</p>\n<p>To do that, your goal is to convince the judge that you have done every reasonable thing to notify any potential owner or stakeholder. You usually run some classified ads in designated legal newspapers also. Or might get city hall to tell you everyone who has owned the house since the car's model year, and then hire a detective to do a search for those people. Any specific parties who can be identified, serve them notice.</p>\n<p>But a bunch of real properties got foreclosed and put into the hands of courts around 2009-13 and put to auction under court oversight. If the donor property was one of them, it's certainly the case that the foreclosure assigned ALL personal property on the property to the new buyer with no recourse of any past owners. If that happened, that's as far back as you need to go. Dig up those cases and look at the court paperwork.</p>\n<p>The point is, suing does a couple things for you: First it gives you the right of <em>discovery</em>, meaning you can seek information from parties and compel answers via subpoena. I would certainly hit the state patrol with an interrogatory asking questions about whether and how VIN inspections are available in the state. Second, the drop of the gavel is an "I win" button at the DMV.</p>\n<p>To win a "Quiet Title" action, you must satisfy the judge that any stakeholder has had their chance to be notified. Once the gavel drops, that's it.</p>\n<p>Like I say, foreclosure + court supervised auctions have the same effect, generally.</p>\n",
"score": 10
},
{
"answer_id": 89408,
"body": "<p>Of course you must do whatever you have to to deal with the situation, so hire an attorney to advise you of the consequences. You might try <a href=\"http://www.supersaas.com/schedule/wspvs/Spokane_VIN_Calendar_1\" rel=\"nofollow noreferrer\">this</a> (8 slots available at this moment), and enjoy the drive. The law simply says what procedure you have to follow, and there is no law mandating that the agency must devote sufficient resources to making it actually possible to get an appointment. This is not unrelated to the fact that the state constitution mandates that the education system be financially supported by the state, but it took years and Supreme Court argumentation to force that to happen. If you want to sue WSP to force them to schedule you, you ought to hire an attorney. Alternatively, if you know someone, they may be able to cut through the bureaucracy. A somewhat more aggressive move would be to hire an attorney to write a formal letter demanding an appointment.</p>\n<p>The courts will probably recognize that they <em>should</em> perform the required service. At the same time, they will also recognize that there exist limitations on what is possible, such as the dearth of inspection sites and dearth of staff to perform inspections. Part of the problem that you encounter is due to specific decisions, namely what the online scheduling software can do. Apparently, you have to catch them at the moment that the next week's slots become available. This is basically an arbitrary number in the software, so why not let reservations be open-ended? But it's not clearly illegal for the government to make a definite decision like "we only schedule one week in advance, reset on Tuesday". The courts will defer to these administrative decisions unless they are clearly unreasonable or contrary to law.</p>\n<p>In light of the further details of history in OP, <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=46.55.230\" rel=\"nofollow noreferrer\">RCW 46.55.230</a> was apparently not followed.</p>\n<blockquote>\n<p>any law enforcement officer having jurisdiction, or any employee or\nofficer of a jurisdictional health department acting pursuant to RCW\n70A.205.195, or any person authorized by the director shall inspect\nand may authorize the disposal of an abandoned junk vehicle...(2) The\nlaw enforcement officer or department representative shall provide\ninformation on the vehicle's registered and legal owner to the\nlandowner. (3) Upon receiving information on the vehicle's registered\nand legal owner, the landowner shall mail a notice to the registered\nand legal owners shown on the records of the department. The\nnotification shall describe the redemption procedure and the right to\narrange for the removal of the vehicle. (4) If the vehicle remains\nunclaimed more than fifteen days after the landowner has mailed\nnotification to the registered and legal owner, the landowner may\ndispose of the vehicle or sign an affidavit of sale to be used as a\ntitle document.</p>\n</blockquote>\n<p>The procedure is: call the police to start the process, then they <em>shall</em> provide the relevant information, whereby the rest of the procedure can be followed.</p>\n<p>If we start from the position that the landowner owns the vehicle (a starting-point stipulation, not a legal fact), then <a href=\"https://apps.leg.wa.gov/rcw/default.aspx?cite=46.12&full=true\" rel=\"nofollow noreferrer\">RCW 46.12.650</a> may be relevant. The "owner" is supposed to (in this case) sign a release of interest document approved by the department, give the most recent evidence of ownership to the person gaining the interest in the vehicle (hire an attorney), do the odometer form and report the sale. The tricky part is that the landowner is probably not the legal owner, on the assumption that he didn't do what was necessary to lay claim to the vehicle.</p>\n<p>The practical solution is probably to call a lawyer. There is a <a href=\"https://app.leg.wa.gov/rcw/default.aspx?cite=63.29&full=true\" rel=\"nofollow noreferrer\">chapter on abandoned property</a>, and you're at the mercy of the court / bureaucracy if you don't follow those rules.</p>\n",
"score": 9
}
] |
[
"automotive"
] |
On what basis is every Englishman presumed to know the laws of his country?
| 5 |
https://law.stackexchange.com/questions/89366/on-what-basis-is-every-englishman-presumed-to-know-the-laws-of-his-country
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CC BY-SA 4.0
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<p>In a previous question's answer, @motosubatsu quoted a passage from James Bigg, Esq. stating this as a "legal axiom."</p>
<p>Where does this perception arise from?</p>
| 89,366 |
[
{
"answer_id": 89367,
"body": "<p>I <em>think</em> it's ultimately a natural extension of the basic concept from Roman Law: <a href=\"https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat\" rel=\"noreferrer\"><em>ignorantia legis non excusat</em></a>, i.e "ignorance of the law excuses not" and that in order for that to be workable laws can only truly obtain proper binding force when they are promulgated. In simple terms someone can't claim innocence through ignorance because the knowledge of what the law is has been made easily available to them.</p>\n<p>Thus the law can operate on the <em>presumption</em> that the people it applies to are aware of them. Indeed there have been occasional instances in history where someone could <em>not</em> have been reasonably expected to know that what they did was against the law and this has been taken into account.</p>\n",
"score": 14
},
{
"answer_id": 89368,
"body": "<h2>Because it's a necessity for the system to function</h2>\n<p>Let's assume for one moment that no person is assumed to know what the law is, because that is the inverse of the premise. This also means that the old <a href=\"https://en.wikipedia.org/wiki/Brocard_(law)\" rel=\"nofollow noreferrer\">brocard</a> of <a href=\"https://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat\" rel=\"nofollow noreferrer\"><em>Ignoratia legis non excusat</em> & <em>ignorantia legis neminem excusat</em></a> (ignorance of the law isn't an excuse/is an excuse for nobody) is to be inverted: Ignorance of the law becomes an excuse for having broken the law.</p>\n<p>If ignorance of the law is an excuse to have broken it, every person gets a "free shot" at whatever they want to do, because you can only presume someone knows it because they are put under verifiable notice of the law. Under this setup, there is no way to have an effective legal system.</p>\n<p>Only if perfect knowledge of the law is presumed on everybody can the legal system be both effective and fair: no matter if you actually do know or not know, the same verdict for the same act will be reached, if <em><a href=\"https://en.wikipedia.org/wiki/Mens_rea\" rel=\"nofollow noreferrer\">mens rea</a></em> is not a factor.</p>\n",
"score": 8
},
{
"answer_id": 89424,
"body": "<p>First, the laws are generally modeled on a core sense of "right and wrong", and it is expected that every parent, school and foster system will make great effor to teach this to every child. Separately to this, is it modeled on "Do unto others as you would wish them do unto you". So if you reasonably wouldn't want people stealing your car, don't steal cars. If you don't want to see streets covered in litter, don't litter. See also the "reasonable man" metric.</p>\n<p>This allows most people to generally navigate life without inadvertently committing criminal offense. It seems to work pretty well.</p>\n<p>Of course, life branches into 10,000 different specialties. Say you buy a narrowboat. <strong>The onus is on you to learn the laws of operating inside your specialty</strong>. If your specialty is commonly accessed by consumers, like owning a narrowboat, there is plenty of stuff to help you, from government education and certifications to private lessons and of course, the Internet. Enforcement is also wise to the <strong>earnest but oblivious</strong> novice, and will be non-cruel and give you advice. You better listen.</p>\n<p>Of course once you start operating at a commercial specialty, like operating an oil tanker or cruise ship, or building a windmill farm or job-matching website, <strong>you are expected to retain the counsel of experts</strong> - as in hire them, starting with lawyers. Your experts' professional job is to understand the craft-specific laws which no layman would have any reason to know. No excuse is accepted. That gets small business owners in trouble when their business grows dramatically and gains scope their diligence wasn't prepared for - when Port Wynn "match-a-ride" becomes Cornwall Match-a-Ride becomes UK Match-a-Ride and you're still running it with the same in-town accountant and lawyer you started with.</p>\n",
"score": 2
},
{
"answer_id": 89417,
"body": "<p>I just spent a year in jail because I didn't know it was a serious crime to change the tires on your car on a Wednesday evening between 8pm and 9pm. Ignorance of the law does not excuse, right? Well, that doesn't happen.</p>\n<p>Laws make it illegal for you to do illegal things to others, but it also makes it illegal for others to do illegal things to you. If there is an action that you wouldn't want to suffer from others, and that you think they shouldn't be allowed to do, then you shouldn't yourself do this to others. Even if you don't know for sure that a specific law exists, that cannot be an excuse if it is something that you think should be illegal for others to do. And that's from a normal healthy person's point of view, a sociopath might think otherwise.</p>\n<p>Now, ignorance of facts will often be an excuse. Not knowing that it is illegal to exceed the speed limit is not an excuse. Not knowing the speed limit at some bit of public road can be an excuse, depending on the situation. You are supposed to watch out for speed limit signs, so not knowing the speed limit is often not an excuse. But if the sign was invisible because it was behind a tree, that is likely an excuse.</p>\n<p>In the end, you don't have to know the laws. You just need to not violate them. If you do out of ignorance, that's just tough for you.</p>\n",
"score": 1
},
{
"answer_id": 89434,
"body": "<h3>It is <em>not</em> presumed that everyone knows the law.</h3>\n<p>In <em>Kiriri Cotton Co. v. Dewani</em>, <a href=\"https://www.bailii.org/uk/cases/UKPC/1959/1959_27.pdf\" rel=\"nofollow noreferrer\">[1959] UKPC 27</a>, p. 3-4 Lord Denning said:</p>\n<blockquote>\n<p>It is not correct to say that everyone is presumed to know the law. The true proposition is that no man can excuse himself from doing his duty by saying that he did not know the law on the matter. <em>Ignorantia juris neminem excusat</em>.</p>\n</blockquote>\n<p>It is simply the case that application of the law to you does not require your prior awareness of it.</p>\n<p>In a jury trial, it is critical that the judge explain the applicable law correctly to the jury. Failure to instruct the jury on a critical point of law can leave a conviction open to appeal—jurors, like everyone, are not presumed to know the law.</p>\n",
"score": 1
},
{
"answer_id": 89426,
"body": "<p>James Bigg, Esq. published his <em><a href=\"https://www.google.com/books/edition/Criminal_Law_Consolidation/TqYDAAAAQAAJ\" rel=\"nofollow noreferrer\">Criminal Law Consolidation</a></em> (from which the “legal axiom” of the question is quoted) in 1865. At that time, the general view of England’s common law system was that it was grounded in the customs of society as a whole. We might therefore turn Bigg’s axiom on its head: <strong>It’s not that every Englishman is presumed to know the law; it’s that the law is presumed to be what every Englishman knows.</strong></p>\n<p>On this theory, the ordinary Englishman may not in fact know (or even know <em>of</em>) every precedent and statute that exists, but he <em>will</em> know the customs of his country, and know right from wrong. The root of the law is to behave in a way that any decent, right-thinking Englishman would think fair and proper.</p>\n<p>Sir William Blackstone’s <em><a href=\"https://en.wikipedia.org/wiki/Commentaries_on_the_Laws_of_England\" rel=\"nofollow noreferrer\">Commentaries on the Laws of England</a></em> exemplifies this view. In section III, “<a href=\"https://en.wikisource.org/wiki/Commentaries_on_the_Laws_of_England/Of_the_Laws_of_England\" rel=\"nofollow noreferrer\">Of the Laws of England</a>”, he describes the common law thus (emphasis mine):</p>\n<blockquote>\n<p>I therefore stile these parts of our law <em>leges non scriptae</em> [unwritten laws], because their original institution and authority are not set down in writing, as acts of parliament are, but they receive their binding power, and the force of laws by long and immemorial usage, and <strong>by their universal reception</strong> throughout the kingdom.</p>\n</blockquote>\n<p>The English were quite proud of their common law, and resisted attempts to codify it. In his “Proposition Touching Amendment of Laws” (1657), Francis Bacon wrote:</p>\n<blockquote>\n<p><em>Obj[ection]</em> IV. Labour were better bestowed in bringing the common laws of England to a text law, as the statutes are, and setting both of them down in method and by titles.</p>\n<p><em>Resp[onse]</em> …there are more doubts that rise upon our statutes, which are a text law, than upon the common law, which is no text law. But howsoever that question be determined, I dare not advise to cast the law into a new mould. The work which I propound tendeth to proyning and grafting the law, and not to ploughing up and planting it again; for such a remove I should hold indeed for a perilous innovation.</p>\n</blockquote>\n<p>The thinking appears to be that, unlike under the civil law of continental Europe, an English judge was free to innovate if doing so delivered a ruling that reflected a “common” notion of fairness and justice better than the code of laws could. Of course Blackstone did not consider judges as <em>making</em> law; later on in Section III, on the subject of precedent, he says that a judge is:</p>\n<blockquote>\n<p>…sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; <strong>not delegated to pronounce a new law, but to maintain and expound the old one</strong>. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. But even in such cases the subsequent <strong>judges do not pretend to make a new law, but to vindicate the old one</strong> from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was <em>bad law</em>, but that it was <strong><em>not law</em>; that is, that it is not the established custom of the realm</strong>, as has been erroneously determined.</p>\n</blockquote>\n<p>(Amusingly, there is an uncited claim on Wikipedia that Blackstone’s <em>Commentaries</em> was criticised as a covert attempt to codify the common law. I would love to see evidence for this, but a brief search has not turned up any.)</p>\n<p>This thinking persisted into the 20th century. Consider <em><a href=\"https://en.wikipedia.org/wiki/Donoghue_v_Stevenson\" rel=\"nofollow noreferrer\">Donoghue v Stevenson</a></em>, where Lord Atkin used the Bible as his basis for saying that manufacturers owe a duty of care to consumers. In this there is an echo of Blackstone’s declaration of the primacy of divine law, but it was also feasible simply because the UK remained, by and large, a Christian country: the precepts of the Bible were the “established custom of the realm”.</p>\n<hr />\n<p>This answer is unlikely to be wholly satisfactory, as I don’t have <em>explicit</em> evidence linking the historic view of the common law to the presumption that everyone knows the law. The evidence I have laid out is also focused on common law, but this presumption extends to statute law as well.</p>\n<p>Moreover, in the course of writing this answer, I read that this view is no longer popular among legal scholars or practitioners: neither as an account of how the law developed, nor as a rubric to how it should be applied today.</p>\n<p>But it was certainly a mainstay of English legal theory at the time when Bigg wrote of this “legal axiom”, and I therefore offer it as an answer to the question. It complements, but does not replace, the pragmatic argument others have put forth, that it is untenable to let ignorance be a ready defence.</p>\n",
"score": 0
}
] |
[
"england-and-wales",
"legal-history"
] |
what is the meaning and implication of this phrase?
| 0 |
https://law.stackexchange.com/questions/89428/what-is-the-meaning-and-implication-of-this-phrase
|
CC BY-SA 4.0
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<blockquote>
<p>No penalty imposed or confiscation made under this Act shall prevent the imposition of any other punishment to which the person affected thereby is liable under any other law for the time being in force</p>
</blockquote>
<p>does this neccesarily mean that if there is a later law that has the same definition but a larger punishment. the courts can't impose the act with the smaller punishment ?</p>
<p>edit: Indian law IT act 2000 has this clause</p>
| 89,428 |
[
{
"answer_id": 89435,
"body": "<blockquote>\n<p>what is the meaning and implication of this phrase?</p>\n</blockquote>\n<p>It means that multiple penalties may be applied if the defendant's same act was in violation of multiple laws that were in force when the act took place.</p>\n<blockquote>\n<p>does this neccesarily mean that if there is a later law that has the same definition but a larger punishment. the courts can't impose the act with the smaller punishment ?</p>\n</blockquote>\n<p>A situation where two statutes adopt the same definition does not imply that one statute precludes the other. Both sanctions may be applied unless the subsequent law is intended to amend or replace the prior law.</p>\n",
"score": 1
}
] |
[
"interpretation"
] |
How is sexual intent proven or disproven in Indian criminal law?
| 2 |
https://law.stackexchange.com/questions/89292/how-is-sexual-intent-proven-or-disproven-in-indian-criminal-law
|
CC BY-SA 4.0
|
<p>The Indian Penal Code states that</p>
<blockquote>
<p>physical contact and advances involving unwelcome and explicit sexual overtures</p>
</blockquote>
<p>is guilty of sexual harassment. Pikewise, POCSO act sections 7 and 11 state</p>
<blockquote>
<p>Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.</p>
</blockquote>
<blockquote>
<p>A person is said to commit sexual harassment upon a child when such person with sexual intent,--
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child;</p>
</blockquote>
<p>How is sexual intent proven or disproven in the 2 cases? In the latter case the burden of proving a <em>lack of intent</em> is on the accused, while in the former case I think it's not. Nevertheless, the two provisions are similar due to "sexual intent" being used. How is this proven and disproven?</p>
| 89,292 |
[
{
"answer_id": 89294,
"body": "<p>Sexual intent is proven (or disproven) like any other form of intent. A confession is not necessary, although that is one available method. It may be inferred with proof from circumstantial evidence.</p>\n<p>Any combination of direct and circumstantial evidence is allowed. There isn't a formula for it. The prosecution or defendant, as the case may be, simply has to convince the trier of fact that there was or was not sexual intent. Any otherwise admissible evidence that could rationally show that sexual intent is more or less likely can be presented.</p>\n<p>If it happens in a gynecological appointment, or because the defendant slipped on a banana peel after the defendant's glasses were splattered with mud so he couldn't see what he was doing, this is going to be exceedingly hard to prove in the absence of a pattern and practice in multiple cases that couldn't be a coincidence, or with something like bragging to a friend in private.</p>\n<p>If this happens at a festival celebration, or after a dinner date, or intent is corroborated by perverted photographs on the defendant's phone, or is accompanied by sexual language, any other intent is going to be highly implausible and circumstantial evidence will strongly point to a sexual intent.</p>\n<p>One way to disprove sexual intent is for the defendant to testify that there was some other intent. There is risk in that approach. You can't simultaneously testify that sexual contact never happened and that sexual contact did happen but without sexual intent, for example. Testifying that there was sexual contact without intent basically admits some other element of the crime. But it also forces the prosecution to prove that the defendant is lying, which depending upon the evidence, may be easy, or may be hard.</p>\n<p>In real life, most of the cases that get prosecuted are easy cases. But, there will always be cases that are closer and circumstances that one wouldn't easily foresee in advance, and that is why we have courts and trials.</p>\n<p>Ultimately, the prosecution presents evidence and the finder of fact has to decide if it proved that element of its case.</p>\n",
"score": 3
}
] |
[
"legal-terms",
"definition",
"indian-penal-code",
"sexual-offences"
] |
A case of discrimination?
| 1 |
https://law.stackexchange.com/questions/65351/a-case-of-discrimination
|
CC BY-SA 4.0
|
<p>Adam has a "philosophical belief" that the fairness of most forms of discrimination is debatable, as a special case of his belief that most anything should be debatable in a democratic society. He expresses this belief to Bob, who condemns the belief and cuts off communication. Did Bob discriminate against Adam?</p>
<p>In particular,</p>
<ol>
<li>does the belief (assuming its sincerity) qualify as a protected "philosophical belief"?</li>
<li>would Bob's action be considered discriminatory if it were in response to some other protected characteristic such as race?</li>
</ol>
<p>From the <a href="https://www.equalityhumanrights.com/sites/default/files/religion-or-belief-guide-to-the-law.pdf" rel="nofollow noreferrer">EHRC guide</a>:</p>
<p><a href="https://i.stack.imgur.com/8flou.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/8flou.png" alt="enter image description here" /></a></p>
| 65,351 |
[
{
"answer_id": 65353,
"body": "<p>Under <a href=\"https://www.legislation.gov.uk/ukpga/2010/15\" rel=\"nofollow noreferrer\">The Equality Act 2010</a> §13(1),</p>\n<blockquote>\n<p>A person (A) discriminates against another (B) if, because of a\nprotected characteristic, A treats B less favourably than A treats or\nwould treat others.</p>\n</blockquote>\n<p>Religion or belief is listed as a protected characteristic under §4. However it is not established that the described characteristic is a "belief" in the relevant legal sense. See <a href=\"http://www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html\" rel=\"nofollow noreferrer\">Grainger plc and others v Nicholson</a>, which established criteria for deeming an ordinary belief to be a protected belief:</p>\n<blockquote>\n<p>The belief must be genuinely held.</p>\n<p>It must be a belief and not an opinion or viewpoint based on the\npresent state of information available.</p>\n<p>It must be a belief as to a weighty and substantial aspect of human\nlife and behaviour.</p>\n<p>It must attain a certain level of cogency, seriousness, cohesion and\nimportance.</p>\n<p>It must be worthy of respect in a democratic society, not be\nincompatible with human dignity and not conflict with the fundamental\nrights of others.</p>\n</blockquote>\n<p>It is established, then, that belief (ergo disbelief) in man-made climate change is a protected belief. Similarly, ethical veganism (and its denial) is a protected belief (<a href=\"https://assets.publishing.service.gov.uk/media/5e3419ece5274a08dc828fdd/Mr_J_Casamitjana_Costa_v_The_League_Against_Cruel_Sports_-_3331129-18_-_Open_Preliminary_Hearing_Judgment___Reasons.pdf\" rel=\"nofollow noreferrer\">Casamitjana Costa v The League Against Cruel Sports</a>). <a href=\"https://www.natlawreview.com/article/ethical-veganism-and-broadening-range-philosophical-beliefs-protected-uk\" rel=\"nofollow noreferrer\">This article</a> lists as additional established protected beliefs:</p>\n<blockquote>\n<p>Left wing democratic socialism</p>\n<p>The sanctity of life, extending to a fervent anti-foxhunting and\nanti-hare coursing belief</p>\n<p>A genuine and deeply held belief in Scottish independence</p>\n<p>A belief in spirituality and the ability of mediums to communicate\nwith the dead</p>\n<p>The “higher purpose” of public service broadcasting in promoting\ncultural interchange and social cohesion</p>\n<p>Public service and the need to engender in others a desire and\ncommitment to serve the community for the common good</p>\n<p>That it is wrong to lie under any circumstance</p>\n<p>The United Kingdom should not be ruled by a hereditary monarch but\nshould be a democratic and secular republic</p>\n</blockquote>\n<p>Your cited belief is not on the list, but you could try to make law with a test case.</p>\n<p>Beyond the determination that something is discrimination, consequences for any part would also have to prove that the discrimination is prohibited. Under the Equality Act §39, for work, that means "An employer (A) must not discriminate against a person (B)", which is to say if Adam and Bob are customers in the lobby, neither party will be sanctioned, nor will they if they are employees of Timmy. So I assume that Bob is Adam's employer.</p>\n",
"score": 2
}
] |
[
"united-kingdom",
"discrimination"
] |
If you get hired but notify the other party you are cancelling the contract before starting, can you get sued, if there are no clauses covering this?
| 2 |
https://law.stackexchange.com/questions/89336/if-you-get-hired-but-notify-the-other-party-you-are-cancelling-the-contract-befo
|
CC BY-SA 4.0
|
<p>In the UK, if you are offered a contract role (inside or outside IR35), accept it and you cancel the contract before the start date and if the contract doesn't mention any clauses for this, could you be sued for anything at all? (Say you get a better offer somewhere else while you were waiting for the start date of the role you've already accepted).</p>
| 89,336 |
[
{
"answer_id": 89340,
"body": "<h2>Yes, you could be sued</h2>\n<p>Assuming that you have a valid contract, then failing to perform your obligations is a breach and the other party can sue for damages. The damages for breach of contract are for them to be restored to the position they would have been if the contract had been completed.</p>\n<p><strong>If you have a contract <em>for</em> service</strong></p>\n<p>Here you are contracted to perform a particular service: build a building, write a program, cut some hair etc. you are being paid for what you produce, not for your labour.</p>\n<p>The damages for this breach would be the expected value that they would have received. For example, if you were contracted to repair a classic car for $10,000 that they had a buyer willing to pay $100,000 for and that buyer pulled out as a result of your breach. The damages would be $100,000 they expected - $10,000 they would have paid you = $90,000 less whatever the market value of the unrepaired car is.</p>\n<p><strong>If you have a contract <em>of</em> service</strong></p>\n<p>This is a traditional employment contract or any contract where you are paid by the hour/day/week/year rather than for producing a specified outcome.</p>\n<p>For an employee, there will be required notice periods that you must observe or you are liable for paying in lieu of giving notice. In the circumstances, an employer is unlikely to sue for this.</p>\n<p>For a contractor, the damages could be the cost of finding a replacement through an agency (say $2,500) and the difference in rates - so if you were being paid $50/hour for 12 weeks of 40 hours ($24,000) and the cheapest suitable replacement is $65/hour ($31,200) then you could be held liable for the difference. Again, it is unlikely an employer will bother to sue.</p>\n",
"score": 2
},
{
"answer_id": 89397,
"body": "<p>You can certainly be sued if you breach a contract.</p>\n<p><strong>Contract terms</strong></p>\n<p>However, whether you have breached your contract depends on the terms and the circumstances of the cancellation. Damages would also depend.</p>\n<p>It might also not be clear whether this was an employment or a commercial contract - the detailed rules for tax purposes do not necessarily apply more broadly.</p>\n<p>The general principle with employment is that you can give notice to terminate the contract. If there was no reference to termination in the contract, then it would generally be treated as an "at-will" contract until statutory requirements kick in (it would not be treated as entry into permanent servitude).</p>\n<p>Even in a contract that is not one of employment, but requires personal service, there may still be an implied right to terminate on notice, unless the whole contract is itself for a very brief and imminent period.</p>\n<p><strong>Damages</strong></p>\n<p>Contrary also to the warnings given by @DaleM, I think the courts (at least in the UK) would be reluctant to award big-money damages if you are trading as a private individual who is only really earning a wage (rather than as an established firm which are making real profits above any individuals' wage, or have real accumulated capital). This is the difference between real businessmen and temporary workers.</p>\n<p>The courts might award damages for the administrative cost of finding another contractor (probably a few grand tops), but in terms of the cost of that other contractor, or the consequential losses for work not done, I think they'd tend to think that there risks being wider mischief from employers engaging with wholly unsuitable "contractor" workers, and then trying to clean them out using the judicial process when something goes wrong, rather than just contracting at market rates with a suitable supplier in the first place (who offers all the guarantees and insurances of a commercial contractor taking on high-liability work).</p>\n<p>The general principle with employment is that the employer bears commercial risk, including the costs of project failure or the drop-out of key staff (which may happen for a variety of reasons in practice).</p>\n<p>Employers can take their own chance on employing an unreliable worker (or small trader) who is key to success, but they cannot come to court later expecting to use the legal process to shift all the cost of failure to that worker and grind him to dust - instead, the employer either has to accept the risk, or has to organise the activity to be more resilient to staff changes in the first place, or take an advance deposit from key staff (for example, by making them business partners with sunk capital).</p>\n<p>It's for this reason, as well as the difficulty of enforcing blood out of a stone, that such cases are rarely pursued to court.</p>\n<p><strong>Seek consent</strong></p>\n<p>If you haven't already announced the cancellation, then the best way out would probably to induce their agreement to a cancellation, rather than simply declaring a cancellation.</p>\n<p>The other side will surely understand that enforcing specific performance on you is impossible, so their alternatives at this stage are either to accept cancellation and look elsewhere, or to allow the contract to come into force where they are liable for a price but you might either render a perfunctory and poor-quality performance, or you might just crash out of the contract anyway (but later rather than sooner).</p>\n",
"score": 2
}
] |
[
"united-kingdom"
] |
How often can you appeal a rejection of the appeal(s) made?
| 1 |
https://law.stackexchange.com/questions/89405/how-often-can-you-appeal-a-rejection-of-the-appeals-made
|
CC BY-SA 4.0
|
<p>How often can you appeal a rejection of the appeal(s) made regarding a penalty fare notice?</p>
<p>The appeal is appealing to the good nature and sense of humanity and justice, as the initial appeal was rejected. There was no specific reason how and why they came to conclude with a rejection. It simply claimed that the experience and explanation of the passenger was not "justified". My appeal had no intention to justify anything, I was merely explaining what I had experienced. Or are these the public transportation companies using the term "justification' interchangeably with "satisfaction"?</p>
| 89,405 |
[
{
"answer_id": 89416,
"body": "<p>You didn't bother to state who this appeal is with or even where you are but I'm almost certain I know the answer.</p>\n<p>Just once.</p>\n<p>If the appeal is denied, you may be able to appeal to a higher body such as a higher court or an ombudsman. However, any group or court allowing the same appeal ad infinitum until you get what you want would be farcical.</p>\n",
"score": 6
}
] |
[
"corporate-law",
"appeal",
"penalty",
"public-transport"
] |
The flag must be at least 30 centimetres long on each of the four sides of "the square"
| -1 |
https://law.stackexchange.com/questions/89412/the-flag-must-be-at-least-30-centimetres-long-on-each-of-the-four-sides-of-the
|
CC BY-SA 4.0
|
<p>Hello ~ Does "square" in "<a href="https://www.alberta.ca/traffic-laws.aspx" rel="nofollow noreferrer">during daylight hours, a red flag should be attached to the end of the extension or load. The flag must be at least 30 centimetres (one foot) long on each of the four sides of the square</a>" refer to the flag itself? Or does it refer to the extension or load? Thank you!</p>
| 89,412 |
[
{
"answer_id": 89415,
"body": "<p>The sentence clearly, from its structure and plain grammatical construction, refers to the flag and does not refer to the extension of the load. This is also the only construction of the language that makes sense. The load would not necessarily be square and could have larger or smaller dimensions.</p>\n",
"score": 1
}
] |
[
"traffic"
] |
What is/was a court of "judicature," and how is it named?
| 0 |
https://law.stackexchange.com/questions/89389/what-is-was-a-court-of-judicature-and-how-is-it-named
|
CC BY-SA 4.0
|
<p>Supreme court of judicature etc. I feel like it may even still be a thing in Scotland, but you see it in older EWCA decisions. What does the word mean and what does it note to qualify a court's name with it?</p>
| 89,389 |
[
{
"answer_id": 89390,
"body": "<p>My understanding is that is simply another term for a "court of law" or for a "court of justice". All of those terms simply mean a court, a place where judgements under law are made. Which term is used is a matter of history and tradition, or perhaps of style.</p>\n<p>The term does not of itself imply any difference of rules or authority or procedure. Different courts do have different procedures to some extent, and if one court normally uses one term for itself, then that term may go with that court's procedure to some extent.</p>\n<ul>\n<li><a href=\"https://www.merriam-webster.com/dictionary/judicature\" rel=\"noreferrer\">Merriam-webster</a> gives as sense 2:</li>\n</ul>\n<blockquote>\n<p>a court of justice</p>\n</blockquote>\n<ul>\n<li><a href=\"https://www.collinsdictionary.com/us/dictionary/english/judicature\" rel=\"noreferrer\">Collins </a> gives as sense 4:</li>\n</ul>\n<blockquote>\n<p>a court of law</p>\n</blockquote>\n<ul>\n<li><a href=\"https://dictionary.cambridge.org/us/dictionary/english/judicature\" rel=\"noreferrer\">Cambridge</a> gives:</li>\n</ul>\n<blockquote>\n<p>the legal system and the work it does</p>\n</blockquote>\n<ul>\n<li>The <a href=\"https://legal-dictionary.thefreedictionary.com/judicature\" rel=\"noreferrer\">legal section</a> of the <em>Free Dictionary</em> gives:</li>\n</ul>\n<blockquote>\n<p>A term used to describe the judicial branch of government; the judiciary; or those connected with the court system. ... Judicature refers to those officers who administer justice and keep the peace. It signifies a tribunal or court of justice. ... [sense 5] a court of justice or such courts collectively.</p>\n</blockquote>\n",
"score": 4
}
] |
[
"england-and-wales",
"legal-terms",
"court"
] |
Can investors protect their business idea?
| 0 |
https://law.stackexchange.com/questions/89409/can-investors-protect-their-business-idea
|
CC BY-SA 4.0
|
<p>Suppose that Alice is the developer/founder of the Uber app and finds an investor for the startup company resulting in the existing Uber company. Suppose also that there is no Lyft or UberEats app out there yet. Which one of the following is possible for Alice to do and not be successfully sued by the investor:</p>
<ol>
<li><p>Alice thinks Uber is very good but needs some minor modifications. For example she likes to work with drivers only between 40-50! Or she likes to get a cup of coffee to riders. So she decided to write a new application and name it Lyft with my her money.</p>
</li>
<li><p>Alice thinks it would be a good idea if the company also delivers foods instead of transfering people. But it should be a new brand name and application, so she writse the UberEats application and names it "EasyFood". (So the UberEats will never have existed).</p>
</li>
</ol>
<p>For which of these two scenarios could the Uber investor sue Alice with reasonable hope of success?</p>
<p><em><strong>Also I would like to know, can an investor force a company founder or employee to sign an agreement like "You have no rights to use our co-business idea or any similar ideas to establish a new business like "Lyft" or "UberEats" with your own or any other investors"? Is such a thing possible at all?</strong></em></p>
| 89,409 |
[
{
"answer_id": 89411,
"body": "<p>An investor can require, as a condition of making an investment, that key management and creative employees of the company agree to a non-compete agreement. If such employes choose not to sign such an agreement, the investor will not invest. This is quite common.</p>\n<p>If Alice has signed such an agreement, she may not be able to start a new company with such new applications without permission from the existing company. She can surely write such applications for the existing company and get it to modify its business to use them. If Alice (still) owns a controlling share, she can simply order the company to modify or expand its business model. If she has sold enough of the company that she no longer controls it, she must persuade those who do control it to adopt her ideas.</p>\n<p>Any non-compete agreement must be limited, both in the range of activities it covers, and in the tiem for which it is valid. Some US states impose specific limit on these factors. An agreement tht exceeds such limits will not be enforceable.</p>\n<p>If Alice was employed by the company at the time she wrote any of these apps, the code may well be owned by the company, either under the work-made-for-hire copyright rule (see 17 USC 101) or under a specific contract of employment. Investors are likely to demand that such a contract be signed before they invest in a tech startup.</p>\n<p>Alice will also have a duty not to act contrary to the company's interests while employed by it.</p>\n<p>In the absence of non-compete agreements, Alice might not be prevented from founding or joining a competing company, but may not be able to use work done while employed by the first company for the benefit of a new one.</p>\n",
"score": 4
}
] |
[
"copyright",
"contract-law",
"licensing",
"business",
"investment"
] |
Do investors have any copyrights on the application they invest on?
| -3 |
https://law.stackexchange.com/questions/89299/do-investors-have-any-copyrights-on-the-application-they-invest-on
|
CC BY-SA 4.0
|
<p>Considering I am the founder of Instagram, it means I have written 100% of the application code by myself, then found an investor and they put some money into the startup and got 30% of the new established company's shares.</p>
<p>Then I decided to make some modifications and change some of the ideas and create another app/company by only myself and name it TikTok! In this new application I may have used some of the codes from my previous app as they have lot of similarities and also the previous app is written by me and I don't know how to write a similar code in a different way! And obviously there are similar ideas between this new TikTok app and my previous Instagram application.</p>
<p><em><strong>Is it possible for the investor of the first app suing me for using some similar codes or ideas to create my new app?</strong></em></p>
| 89,299 |
[
{
"answer_id": 89301,
"body": "<p>First of all being the "founder" of a startup in no way implies that one wrote all the code of the startup's primary or signature app. The founder could have hires coders, or had partners, or used open source code.</p>\n<p>But let's make some assumptions. Suppose Alice has created a startup, and wrote the code for an application. Suppose Bob invested in the startup, and got 30% of the stock, What rights does Bob have to the copyright on the code?</p>\n<p>It depends entirely on what agreements Alice has made.</p>\n<ul>\n<li><p>Alice <strong>might</strong> have sold or assigned the copyright to her startup firm, call that F1, If so, F1 owns the copyright, and Alice can't reuse it without F1's permission. If Alice has retained the other 70% of F1, she controls it and can have it grant her whatever permissions she likes. But if she has sold or assigned a majority shore to investors, she will need to persuade the management of F1, or a majority of the shareholders, to grant her permission.</p>\n</li>\n<li><p>Alice <strong>might</strong> have merely licensed the code to F1. In this case she retains the copyright. If the license was not exclusive, she can use the code as she pleases, but so can F1, in accord with the license.</p>\n</li>\n</ul>\n<p>In neither case does Bob directly own the copyright, or a share in it, unless a separate agreement granted or sold that to him. But he has a right to a share of the profits, if any that F1 makes, and a right to vote on decisions that 1 makes, long with other owners of F1</p>\n<p>If Alice never formally transferred or licensed the software to F1, she still owns the copyright and can do as she pleases, even if shew sold most or al of F1</p>\n<p>Note that to transfer a copyright there must (under US law) be a written and signed document, one signed by the owner or the owner's agent. It must specifically indicate what copyright(S) it transfers. A purchase of an interest in a business does not suffice without such a document.</p>\n",
"score": 3
}
] |
[
"copyright",
"contract-law",
"intellectual-property",
"data-protection",
"investment"
] |
What are the consequences (if any) of admitting to a crime one did not commit?
| 6 |
https://law.stackexchange.com/questions/89351/what-are-the-consequences-if-any-of-admitting-to-a-crime-one-did-not-commit
|
CC BY-SA 4.0
|
<p>Say that Vicky the Victim is murdered by Mark the murderer. However, Mark's best friend Fred doesn't want Mark to go to jail. So Fred admits to the murder, trying to take the fall in Mark's stead.</p>
<p>In the worst case, obviously, Fred is convicted for the murder and serves the relevant murder sentence. But if, somehow, it comes out that Fred was innocent of the crime, and he was actually trying to take the fall for Mark, then what consequences could Fred face?</p>
| 89,351 |
[
{
"answer_id": 89355,
"body": "<p>A confession is (usually) taken after the court finishes its pre-trialing stage. There is a weightage and importance of such confession determined before the calculation of the gravity score of such crime.</p>\n<p>If the attorney somehow (fakely) proves Fred as the killer, Mark is declared innocent, and later on its discovered that Fred is innocent; the court can take some action against Fred.</p>\n<p>It would be first checked whether was Fred in a logical state of mind or not. If being manipulated by Mark, it would not be their fault of Fred. The court will also most likely see the age of the confessor to determine the importance of this. Here is a source from the National Registry of Exonerations which states the age of crime, and the percentage of groups with false crime declarations:</p>\n<p><a href=\"https://i.stack.imgur.com/x1rrf.jpg\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/x1rrf.jpg\" alt=\"enter image description here\" /></a></p>\n<p>One reason is that minors can be easily psychologically manipulated, and so by chance Fred if under 18 would not be considered to give any worth of confession unless proven to go against him.</p>\n<p>In some cases, the individual who made the false confession may be charged with perjury or obstruction of justice, particularly if their false confession led to an innocent person being convicted or if their false testimony impeded an ongoing investigation when the individual is not a minor. This is covered by perjury, a crime of expressing fake statements. In United States Code, Chapter 79 of Section 1632, it states:</p>\n<blockquote>\n<p>(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or</p>\n</blockquote>\n<blockquote>\n<p>in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;\nis guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.</p>\n</blockquote>\n<p>The following law only applies to a sensible adult, who has intentionally, without a psychological circumstance, made a false statement to defend someone. It is hard later, for the prosecutor to prove the claimant innocent if the confession has solid ground and worth.</p>\n<hr />\n<p>Note that though false confession can come under perjury crime, an exemption exists for minors or those psychologically unwell or influenced. It reminds us of <em>Miranda v Arizona</em>, where Miranda, an inmate in prison cased over by Phoenix Police (Credits:<a href=\"https://law.stackexchange.com/users/18320/tanner-swett\">@TannerSwett</a>) who would torture an innocent inmate to confess a crime. In collective terms, it was called Miranda Warnings, where the inmate was warned, using torture to confess fakely.</p>\n<p>It would be clear from torture. In the 1936 case <em>Brown v. Mississippi</em>, which was the first time the Supreme Court excluded a confession from a state court prosecution, this was the issue. For days, three suspects had been tortured. The deputy in charge testified when asked how hard one of the defendants had been whipped: Not too much for a Black person; not nearly as much as I would have done if I had been in charge.</p>\n<p>An image of courtesy, The Crisis Magazine 1935:</p>\n<p><a href=\"https://i.stack.imgur.com/AVT2q.jpg\" rel=\"nofollow noreferrer\"><img src=\"https://i.stack.imgur.com/AVT2q.jpg\" alt=\"enter image description here\" /></a></p>\n<p>The Supreme Court passed American reforms where Miranda was passed, and torturing was banned with evidence for both interrogation and confession. At the time Miranda was written, more "modern" methods of questioning were being used: rather than beating, isolation, deception, and exhaustion. It seems unlikely that an innocent suspect would confess to a serious crime if they were not subjected to torture or other forms of violence or death threats. Confessions are extremely potent forms of proof of guilt for precisely this reason.</p>\n<p>To sum up, we conclude:</p>\n<ol>\n<li>If Fred was a stable adult, he is punished under the perjury crime</li>\n<li>If Fred is a minor or not stable psychologically, he is dismissed with no legal action taken against him</li>\n</ol>\n",
"score": 4
},
{
"answer_id": 89403,
"body": "<p>Worst case, you are believed, go to court, get convicted, suffer the punishment.</p>\n<p>If you are not believed, in the UK the lying itself wouldn't be a crime, but there would be the offences of "wasting police time" and "perverting the course of justice", which can give you years in jail if bad enough. If Mark knew about it and agreed then it would "conspiracy to pervert the course of justice" which is worse again.</p>\n<p>Chris Huhne, UK "Secretary of State for Energy and Climate Change" got eight months in jail for letting his wife take the blame for speeding in their car and not him, she got the same. That was just for a traffic violation. Lying about murder with the intent of keeping the guilty person out of jail would be worse.</p>\n",
"score": 0
}
] |
[
"united-states",
"criminal-law",
"california",
"perjury",
"false-arrest"
] |
Why is the term forfeiture used to describe the landlord's act of "taking back" a property?
| 2 |
https://law.stackexchange.com/questions/89379/why-is-the-term-forfeiture-used-to-describe-the-landlords-act-of-taking-back
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CC BY-SA 4.0
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<p>Forfeit generally denies relinquishment or loss, and yet it is the term used to describe the landlord's role in the dance as they resume possession of a place. What is behind this?</p>
| 89,379 |
[
{
"answer_id": 89400,
"body": "<p>Forfeit can be used as a verb. When the landlord "takes steps to forfeit a lease" it means that the landlord is causing the lease to be canceled, to be placed in forfeiture. It is the tenant who forfeits right in such a case, but the landlord who takes action. to say "the landlord forfeits the lease" is short for "the landlord places the lease into forfeiture". Yes this usage can be confusing, but it is quite common.</p>\n<p><a href=\"https://www.merriam-webster.com/dictionary/forfeit\" rel=\"nofollow noreferrer\">Merriam-webster</a> gives as sense 2 of entry 2 for "<em>Forfeit</em>":</p>\n<blockquote>\n<p>to subject to confiscation as a forfeit</p>\n</blockquote>\n<p>That is the sense being used here.</p>\n",
"score": 1
},
{
"answer_id": 89394,
"body": "<h2>Because the tenant has forfeited their rights</h2>\n<p>It’s not a complicated term.</p>\n",
"score": 0
}
] |
[
"legal-terms",
"common-law",
"tenancy"
] |
What is the status of polygamy for Hindus in Goa?
| 5 |
https://law.stackexchange.com/questions/88330/what-is-the-status-of-polygamy-for-hindus-in-goa
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CC BY-SA 4.0
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<p>As per the Constitution of India, Marriage is in the concurrent list. Thus, both the <a href="https://en.m.wikipedia.org/wiki/Union_Government" rel="nofollow noreferrer">Union</a> and the State can make laws on Marriage. The Union Government Law supersedes the state in case of ambiguity.</p>
<p>The <a href="https://en.wikipedia.org/wiki/Hindu_Marriage_Act,_1955" rel="nofollow noreferrer">Hindu Marriage Act</a> (a Union government law) does not allow polygamy.</p>
<p>However, this <a href="https://skeptics.stackexchange.com/a/35548">skeptics.SE answer</a> concludes that polygamy is indeed legal for Hindus in Goa under certain conditions (based on State government law).</p>
<p>That seems contradictory. The Union law should be the prevailing one.
What exactly is the status of polygamy for hindus in Goa?</p>
| 88,330 |
[
{
"answer_id": 88344,
"body": "<blockquote>\n<p>The Union Government Law supersedes the state in case of ambiguity ... What exactly is the status of polygamy for hindus in Goa?</p>\n</blockquote>\n<p>The Union law need not necessarily supersede the state law. <em>Article 254(2)</em> of the indian constitution allows state laws to exist, even when it conflicts with central laws, if the centre gives its official consent for it by Presidential assent and the law is promulgated. The Supreme Court of India has also affirmed this in its judgement in <em><a href=\"https://indiankanoon.org/doc/1716282/\" rel=\"nofollow noreferrer\">M. Karunanidhi vs Union Of India, 1979</a></em>:</p>\n<blockquote>\n<p>(iv) Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with or repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Art 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and over-rule the\nprovisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Art. 254.</p>\n</blockquote>\n<p>As India is yet to adopt a Common or Uniform Civil Code as envisioned in <em>Article 44</em> of the Indian constitution, and the Goan civil laws are largely a common civil law (with exceptions like the one you noted) the Union government has allowed these laws to exist, without contesting it, in the hope the state legislature will eventually reform it (and this has indeed been happening but at a slow pace) or Parliament will adopt a UCC that will make these laws redundant. Moreover, since no constitution bench has examined these specific provisions of Goan civil laws and struck it down, they do indeed continue to be legal and applicable <em>only</em> in the state of Goa and Daman and Diu.</p>\n<h2>Background</h2>\n<p>Though the makers of the indian constitution favoured creating a single law, applicable to all citizens on civil issues, like marriage, divorce, inheritance, adoption etc., they couldn't get a political consensus for it. And thus India decided to continue, with some changes, the old British colonial practice of community specific personal laws.</p>\n<blockquote>\n<p>Ambedkar in his speech in the Constituent Assembly had said, "No one need be apprehensive that if the State has the power, the State will immediately proceed to execute…that power in a manner may be found to be objectionable by the Muslims or by the Christians or by any other community. I think it would be a mad government if it did so." (<em>Source</em>: <a href=\"https://www.business-standard.com/about/what-is-uniform-civil-code\" rel=\"nofollow noreferrer\">What is Uniform Civil Code</a>).</p>\n</blockquote>\n<p>This has resulted in multiple personal laws like <em>Hindu Marriage Act, 1955</em> and <em>Hindu Succession Act, 1956</em>, <em>Hindu Minority and Guardianship Act, 1956</em>, <em>Hindu Adoption and Maintenance Act, 1956</em>, <em>Indian Succession Act, 1925</em>, <em>Shariat (Application) Act, 1937</em> and <em>Dissolution of the Muslim Marriage Act, 1939</em>, and neutral ones like the <em>Special Marriages Act</em> etc being in vogue today.</p>\n<p>Despite this compromise, the constitution makers were all in consensus that reforms in cultural and traditional practice of the various communities were necessary. And India should ultimately have a common civil code applicable to all Indians in the future. This was emphasised by including <em>Article 44</em> in the <a href=\"https://legislative.gov.in/sites/default/files/COI_English.pdf\" rel=\"nofollow noreferrer\">Indian constitution</a> (pdf) that says:</p>\n<blockquote>\n<p><strong>Uniform civil code for the citizens.</strong> — The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.</p>\n</blockquote>\n<p>India has a federal system of governance and on some subjects both the state legislature and the central legislature can make laws. The civil issues:</p>\n<blockquote>\n<p>Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition ...</p>\n</blockquote>\n<p>where UCC is desired, is in the <em><a href=\"https://en.wikipedia.org/wiki/Concurrent_List\" rel=\"nofollow noreferrer\">concurrent list</a></em> meaning that states too are allowed to make laws on these subjects.</p>\n<p>The modern state of Goa and UT Daman and Diu were once Portuguese territories. So unlike the rest of India where British laws applied, the <a href=\"http://goaprintingpress.gov.in/downloads/1819/1819-29-SI-OG-0.pdf\" rel=\"nofollow noreferrer\">Portuguese Civil Code, 1867</a> (pdf) was in practice here for decades. And, as was the practice of Portuguese colonial rule, the code had been extended to protect the "practice and customs of the locals":</p>\n<blockquote>\n<p>Article 9 – The Government is empowered to extend the Civil Code to the overseas provinces, after hearing competent agencies and after making modifications, which are required by special circumstances of the provinces.</p>\n<ul>\n<li>In the exercise of this permission, the Government published the Decree of 18-11-1869 extending the Code to the overseas provinces safeguarding the usages and customs of the natives of the New Conquests. The Code came into force therein on 01st July, 1870. Subsequently <strong>by Decree of 16th December, 1880, it ordered safeguarding in favour of the gentile Hindus of Goa</strong> without distinction of Old and New Conquests, their special and peculiar usages and customs reviewed and codified by this decree.</li>\n</ul>\n</blockquote>\n<p>Thus, as pointed out in this <a href=\"https://skeptics.stackexchange.com/a/35548\">answer</a>, the specific section of the <em>Code of Gentile Hindu Usages and Customs of Goa</em> that allows polygamy for Hindus are:</p>\n<blockquote>\n<p>The marriage contracted by a male Hindu by simultaneous polygamy shall not produce civil effects, except in the following cases only:</p>\n<p>(1) Absolute absence of issues by the wife of the previous marriage until she attains the age of 25 years.</p>\n<p>(2) Absolute absence of male issue, the previous wife having completed 30 years of age, and being of lower age, ten years having elapsed from the last pregnancy.</p>\n<p>(3) Separation on any legal grounds when proceedings from the wife, and there being no male issue.</p>\n<p>(4) Dissolution of previous marriage ...</p>\n</blockquote>\n<p>(Basically, the law unfairly permits a Hindu man to marry again in case his current wife can't produce a male heir for him).</p>\n<p>When India freed Goa and Daman and Diu from Portuguese rule, and integrated it with India, they incorporated and retained many of the old Portuguese laws including the Portuguese civil code. Despite ongoing reviews of the old laws, these aspects of family laws have not been recalled or re-codified and thus are still legally applicable.</p>\n<p>As the questioner pointed out, this state law permitting polygamy under specific circumstances is in contradiction with the the <a href=\"http://bareactslive.com/ACA/ACT037.HTM\" rel=\"nofollow noreferrer\">Hindu Marriage Act, 1955</a> that legally bars Hindus from a bigamous or polygamous relationship:</p>\n<blockquote>\n<ol start=\"5\">\n<li><p><strong>Conditions for a Hindu marriage.</strong> - a marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: (i) neither party has a spouse living at the time of the marriage; ...\n...</p>\n</li>\n<li><p><strong>Void marriages.</strong> - Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.</p>\n</li>\n<li><p><strong>Punishment of bigamy.</strong> - Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly.</p>\n</li>\n</ol>\n</blockquote>\n<p>Moreover, <a href=\"https://indiankanoon.org/doc/508426/\" rel=\"nofollow noreferrer\"><em>Section 494 in The Indian Penal Code</em></a> also makes it a punishable offence:</p>\n<blockquote>\n<ol start=\"494\">\n<li><strong>Marrying again during lifetime of husband or wife.</strong> — Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.</li>\n</ol>\n</blockquote>\n<p><strong>Article 254</strong> of the constitution of India is meant to address what should happen in case of such conflicts when both the state and the central legislature make different laws on the same subject in the concurrent list,</p>\n<blockquote>\n<p><strong>Inconsistency between laws made by Parliament and laws made by the Legislatures of States.</strong></p>\n<p>(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.</p>\n<p>(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:</p>\n<p>Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.</p>\n</blockquote>\n<p>Since the Goan laws have not been challenged and over-ruled in any constitutional court and has been promulgated as law with the assent of the President of India and have been in practice since then, <em>Article 254 (2)</em> applies for this particular case and thus the Goan law prevails in Goa and Daman and Diu.</p>\n<p>Moreover, it can be argued that the legal standing of the Goan Civil Code is strengthened by <em>Article 44</em> of the Indian constitution, as Goa is the only Indian state currently honouring it (even if by a faulty quasi-"Uniform Civil Code") and Parliament is yet to make any Common / Uniform Civil Law.</p>\n<p>(All said, in my personal opinion the courts can indeed strike down that particular provision related to allowing polygamy if it is challenged in the Supreme Court today because it no longer meets the <a href=\"https://blog.ipleaders.in/concept-repugnancy-article-254-insight/\" rel=\"nofollow noreferrer\">expanded principles it defined for evaluating laws under the concept of repugnancy</a>.)</p>\n",
"score": 2
}
] |
[
"india",
"federalism",
"marriage"
] |
Why do tenancies seem to be treated as such a sacred and weighty construct under English law?
| 2 |
https://law.stackexchange.com/questions/89376/why-do-tenancies-seem-to-be-treated-as-such-a-sacred-and-weighty-construct-under
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CC BY-SA 4.0
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<p>It's easy to imagine all kinds of simple answers appealing to the profundity of what it means to own or control land, but honestly in the post-Thatcher era of S21 no fault possessions, one's connection to a tenancy is quite fleeting at best.</p>
<p>Yet the common law mechanisms governing tenacies, their assumption, termination, varying, etc, is so very strict and particular... There is excruciating care taken to ensure that the sanctity of consent, notice, mutuality, etc are maintained in all of the common law rulings on what is and isn't a tenancy.</p>
<p>But when one considers the origins of tenancies, it was really a relationship of subordination to the lord where the tenant I would have imagined had few rights. So from where does it arise, all of this painstaking emphasis on mutuality etc?</p>
| 89,376 |
[
{
"answer_id": 89398,
"body": "<p><strong>Brief history of landlord and tenant</strong></p>\n<p>Historically most "tenancies" have been defined by long-term obligations.</p>\n<p>Indeed one of the defining features of serfdom is that the serf <em>cannot be alienated from the land</em>. The overlord can be slain and replaced in wars and conquests, but the peasantry who actually operate the land to produce crops cannot be lawfully dispossessed from it so long as they are performing their customary obligations.</p>\n<p>The nature of those customary obligations are such that a peasant family have wide latitude to fulfil them (in other words, it is not dependent on the competence or capability of only a single individual), and they are not so onerous to meet in ordinary times. In times of catastrophe, the lord would be expected to provide forbearance or relief.</p>\n<p>In the event of a persistent and wilful failure to meet customary obligations, there could ultimately be dispossession for the serf, but there was large latitude to manage the situation before it reached the point of actual dispossession of the entire serf family.</p>\n<p>The serf who is considered appurtenant to a agricultural landholding, is to be contrasted with the slave who is considered personal property of a master.</p>\n<p>The laws in England and Wales governing landlord and tenant predate the industrial revolution. Slavery has been repugnant to the common law since time immemorial.</p>\n<p>Under these historical circumstances, a landlord almost never has any right to possess the land itself - only to extract customary rents.</p>\n<p><strong>Market reforms</strong></p>\n<p>There has been a tendency since the industrial revolution for land to change hands more frequently and for tenancies to be auctioned to the market more frequently.</p>\n<p>The time since the industrial revolution has also essentially been characterised by increased violence towards people, sanctified by movements in market prices and the rights to enforce market demands against those who have little or no capability of meeting those demands. Such enforcement occurs by starving people or throwing people out of shelter onto the streets.</p>\n<p>It's primarily under these circumstances of market violence that questions arise like "what do you do to someone who won't or can't pay the market rent?".</p>\n<p>There have also been ups and downs, legally, in the balance of rights and obligations between landlords and tenants over the years and centuries. There has also been a shift from people holding primarily agricultural tenures in rural areas, to holding primarily residential tenures in urban areas.</p>\n<p><strong>Circumstances today</strong></p>\n<p>The post-war period that preceded the current era, was characterised both by increasing security and stability of tenure, and by various measured to increase the supply of housing to control the scarcity which the market creates when left to itself.</p>\n<p>Today however, we are at a similar nadir of protection for residential tenants as in the Victorian period, and a similar merry-go-round of short tenancies and evictions of the poor which exists as a kind of violence sanctioned by market verdicts.</p>\n<p>It's under these circumstances of violence that landlords are constantly considering how to enforce rack-rents, or enforce evictions on those who can't or won't pay those rents.</p>\n<p>By historical standards, it is already quicker and easier to terminate a tenancy than at most times in history. So they are not particularly "weighty" or "sacred" today.</p>\n<p><strong>Illegal dispossession</strong></p>\n<p>There is still a basic modicum of protection for the occupier of land, and this dates back to legal time immemorial, which is that those in current established possession are assumed by the law to have the <em>right of possession</em>.</p>\n<p>The main evil with which the law has always been concerned, as far as possession is concerned, is over property disputes erupting into violence, and of gangster groups forming to enforce changes in possession against the will of the occupier (whether with legal rights or not, and whether at the behest of the landlord or merely another would-be tenant).</p>\n<p>The solution to this has been to protect the right of <em>established</em> possession, and to redirect all other disputes into the courts.</p>\n<p>The emphasis here is less about mutuality or consent, but of allowing enough time for a justice process to take place, and limiting the immediacy of any violent eviction (which can as easily provoke strong emotions in the tenant, and harm the landlord wanting possession as much as the tenant who has possession).</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"common-law",
"tenancy"
] |
What is the legal definition of a day of pay for someone on an annual salary?
| -1 |
https://law.stackexchange.com/questions/89356/what-is-the-legal-definition-of-a-day-of-pay-for-someone-on-an-annual-salary
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CC BY-SA 4.0
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<p><strong>Background:</strong></p>
<p>A friend of mine was recently let go from a job. They negotiated for their notice period plus 8 day's pay (the 8 day's pay was called a 'termination award' in the payslip). The job was 5 days a week (Monday to Friday), with an annual salary.</p>
<p>In the final payslip, the accrued holiday pay was calculated as each owed day being 1/260th of the annual salary (as is standard), and as it was part way through a month the final month's pay was calculated in the same way (working days in month * 1/260th of annual salary).</p>
<p>However, the 8 days 'termination award' was calculated as only 1/365th of annual salary * 8.</p>
<p><strong>Question:</strong></p>
<p>What is the legal definition of 8 day's worth of annual salary for someone who works 5 days a week in the UK?</p>
<p>Does it make a difference if the term is "8 working days" as opposed to "8 days"?</p>
<p>Does it make a difference if it can be shown that the normal way for that company of working out a daily amount of salary uses the 1/260th method?</p>
| 89,356 |
[
{
"answer_id": 89396,
"body": "<p><strong>The legal approach</strong></p>\n<p>Unless there is something unusual about the situation, the courts tend to analyse "salaries" as the quid pro quo for "time work", and when a salary expressed as an annual amount falls to be pro-rated, it is divided by the number of <em>working</em> days in that annual period, not the number of calendar days.</p>\n<p>"8 days' worth of pay" would typically be interpreted as meaning the salary attributable to performing 8 full days' worth of time work, not the salary attributable to whatever time work would be done over 8 calendar days (where some of those days would be non-working days).</p>\n<p>If the agreement had been expressed as "working days" rather than just "days", that certainly would have been less ambiguous on this question.</p>\n<p>But in the presence of ambiguity, the courts are likely to default to analysing it as meaning "the pay attributable to a day's work", not "the pay attributable to the continuation of the employment contract for an additional calendar day".</p>\n<p>The courts are also unlikely to believe that an employer would be confused about such ordinary payroll concepts for salaried workers.</p>\n<p><strong>Different interpretations of "salary"</strong></p>\n<p>Although employers are unlikely to be confused about the law, a philosophical confusion arises in this area because there is a competing conception of a "salary" which is not as "fixed time for fixed pay", but as a regular maintenance payment to the worker which is independent of time worked or any work assessed to have been done.</p>\n<p>Whilst there may be normal hours of attendance under this conception, there may also be a latent expectation to attend outside these hours (without expecting additional pay), and also a latent expectation that brief absences or sickness absence will not be reckoned against the salary (as it would be for an hourly-paid worker).</p>\n<p>There may also be an acknowledgement that the salaried worker is not always working in any practical sense during their hours of attendance (such as if their role involves overseeing or reacting to unpredictable events), or that at other times they may be working when not in attendance at work (such as study or preparation in free time, or thinking over the weekend).</p>\n<p>In other words, the salaried worker's duty might be to keep "office hours", but that is not the measure of their work output or even a measure of the times when they are actually engaged in work. This is not unusual with professional or managerial workers.</p>\n<p>However, even where both employer and employee might acknowledge this as the reality in a particular case, the courts tend to reject this analysis as too complicated and uncertain to adjudicate upon.</p>\n<p>Instead, the courts impose law upon the parties, holding that the primary obligation for which a salaried worker is remunerated are the hours of attendance, and a "day's pay" is reckoned accordingly.</p>\n<p>Employers are free to use salaries as an alternative to hourly pay or per-diems, but when pro-rating disputes come to be adjudicated by the law, the employers have a clear understanding for how the calculation will be performed.</p>\n",
"score": 1
}
] |
[
"england-and-wales",
"employment"
] |
What happens if police force you do something based on a supposed violation of a statute or ordinance they cannot name?
| 9 |
https://law.stackexchange.com/questions/89099/what-happens-if-police-force-you-do-something-based-on-a-supposed-violation-of-a
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CC BY-SA 4.0
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<p>I park on the street in front of my house, because it is very convenient - I can for instance, get to and from my car without rousing my dogs or waking up family.</p>
<p>I had the police come one evening and tell me I had to move my car. When I asked what ordinance I violated (this was info I wanted to pass on to my attorney if the need arose), the policeman had to think a minute and then said I was impeding traffic. (This was strange in and of itself - in my experience with this department, the officers always name the ordinance violation that they're investigating. He did not, I had to ask near the end of our conversation.) I told him that there were a number of cars parked the same way on the same street, in the direction he was heading once he left. I made it clear I was NOT complaining about those people, I just wanted to know why I was being singled out. He assured me they'd do a sweep of the street. (I have footage from the next 5 days of the street, and it was never cleared by the police of vehicles - I have it for day and night times.)</p>
<p>When I went down the road to turn around and park the way he ordered me to, I saw the same officer going down the road, swerve around a much larger vehicle and keep going.</p>
<p>I called the police department, and reported all this. His sergeant called me back and asked me three questions: if I was within 20 feet of a stop sign (nope), if I was in front of hydrant (none on that corner) and if I was as far off the road as possible (i.e., on the curb and yes, I was). He said he'd review the body cam footage and get back to me (he hasn't). I am willing to drop the issue, as long as I don't feel I'm being singled out. But the weird lack of sync between the policeman, who never raised any of the points his sergeant did, and his sergeant, along with the fact that the officer seemed to have trouble naming the ordinance of which I was supposedly in violation got me thinking: what happens when an officer can't name an ordinance or law that is supposedly broken, but either orders you to do something based on the supposed violation or tries to arrest you for the same? (This is in Louisiana.)</p>
| 89,099 |
[
{
"answer_id": 89101,
"body": "<p>It seems you found out what happened. The police are wrong all the time and usually absolutely nothing happens from it.</p>\n<p>The police are not required to tell you why you are being arrested. See supreme court case Devenpeck v. Alford. The court merely considers that to be good police practice. They do have to justify probable cause for the arrest to the court.</p>\n",
"score": 20
},
{
"answer_id": 89116,
"body": "<h2>You follow the direction</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=\"new-south-wales-container\">new-south-wales</a></p>\n<p><a href=\"https://legislation.nsw.gov.au/view/html/inforce/current/act-2002-103#sec.197\" rel=\"noreferrer\">s197</a> of the Law Enforcement (Powers and Responsibilities) Act 2002 No 103 gives police the power to give a direction to a person in a public place if they believe, on reasonable grounds, that the person is, among other things, obstructing traffic. There is no need for the person to be committing an offence. Failure to comply can land you a modest fine of 2 penalty units (currently $110).</p>\n<p>The use of this power is subject to the <a href=\"https://www.police.nsw.gov.au/about_us/policies_procedures_and_legislation/code_of_conduct_and_ethics\" rel=\"noreferrer\">Code of Practice</a> and failure to do so may lead to the disciplining of the officer concerned.</p>\n",
"score": 16
},
{
"answer_id": 89156,
"body": "<p>Police officers are not required or expected to understand the laws as a whole, they only need to believe a crime has been committed to issue a ticket or arrest someone. From there they are expected to faithfully report the incident and detain the allegedly guilty party for review in front of a judge, who is very much expected to understand the laws and how they are applied. This is why its a good idea to fight tickets in many cases, because the police officer is not the end all be all center of the application of law, that's the courts.</p>\n<p>There are places that do not allow parking 'against traffic' regardless of the type of road or area its in, there is also ordinances that state how close one can be to a curb (typically for drainage reasons – e.g., don't block the gutter fully but stay within 18" or so of the curb), and of course there is the possibility you, or a car that looks like yours, inadvertently or otherwise, cut someone off at some point and they griped to their cop brother-in-law who's now throwing you some shade. Without knowing specifics from all sides its hard to say.</p>\n<p>The good news is the sergeant should have records of you calling, which means if this continues you can suggest that it is harassment, and then go so far to go down to the station and file what's called an internal complaint. The internal complaint should get their attention, and get them to knock any singling out off.</p>\n<p>But for the question of can they ask you to do something, especially once, even if seemingly contradictory? Yes, a police officer absolutely could. Of course there are caveats to that but generally speaking yes they can. Does this instance constitute harassment? It depends, but it would be an uphill battle to prove it. Do you have to put up with harassment from police officers? No, absolutely you do not. There are many avenues available to you as a citizen to curtail any harassment from law enforcement branches. That being said, I don't know your area, it's entirely possible that doesn't end well. Strictly legally speaking you do have avenues of recourse if this turns into something that definitely looks like harassment, realistically speaking you're the person that has to live there so it's up to you how much you're willing to put up with until you make a stink, and if it's worth making a stink at all.</p>\n",
"score": 7
},
{
"answer_id": 89167,
"body": "<p>Based on comments that OP's car was parked opposite the direction of traffic, my hunch is that was the problem. See <a href=\"https://codes.findlaw.com/la/revised-statutes/la-rev-stat-tit-32-sect-144/\" rel=\"nofollow noreferrer\">this reference to Louisiana law</a>:</p>\n<blockquote>\n<p>A. Except as otherwise provided in this section, every vehicle standing or parked on a highway where there are adjacent curbs shall be so standing or parked with the right-hand wheels of such vehicle parallel to and within eighteen inches of the right-hand curb.</p>\n</blockquote>\n<p>If you are parked (in the US) opposite traffic then unless you are on a motorcycle (all wheels within 18" of the curb) you won't have your right-hand wheels (of your vehicle) within 18" of the right-hand curb (defined by traffic pattern - because they would be next to the left-hand curb, or defined by your vehicle because then you would either be in the direction of traffic or blocking the entire street!)</p>\n<p>I see it as quite possible that the police officer knew "you can't do that" but couldn't think of the specific statute. As to why the police officer picked on you, I can see a few different possibilities, excluding anything "personal":</p>\n<ul>\n<li>Someone called in a complaint and specifically listed your address. (That person may have a personal grudge against you, even if the police officer did not.)</li>\n<li>The police officer really intended to ask others to move and/or ticket them but got a more important call and left (that <em>definitely</em> happens).</li>\n<li>The police officer decided <em>not</em> to go after others after getting pushback from you.</li>\n<li>The police officer checked after getting pushback from you and determined that parking opposite traffic was not actually prohibited in your area. In a quick search I found that the rules either changed or were under consideration for change in some areas in recent years.</li>\n</ul>\n",
"score": 3
}
] |
[
"united-states",
"police",
"louisiana"
] |
Can I turn cryptocurrency into giftcards without being taxed?
| -6 |
https://law.stackexchange.com/questions/89377/can-i-turn-cryptocurrency-into-giftcards-without-being-taxed
|
CC BY-SA 4.0
|
<p>Alright, so my idea is to trade crypto then turn it into giftcards since I don't have a bank account. I want to make sure taxes don't apple. Thanks for any help!</p>
| 89,377 |
[
{
"answer_id": 89393,
"body": "<p>No.</p>\n<p>This does not work. When the transfer your crypto in exchange for something else that is a taxable disposition of the crypto and any appreciation in value it has experienced is subject to capital gains taxation.</p>\n<p>If you don't self-report it, you are committing tax fraud, for which there are significant civil penalties and potentially even criminal penalties.</p>\n",
"score": 1
}
] |
[
"cryptocurrency"
] |
What is the point of Devotion of All Working Time clauses?
| 3 |
https://law.stackexchange.com/questions/55239/what-is-the-point-of-devotion-of-all-working-time-clauses
|
CC BY-SA 4.0
|
<p>In an employment contract I red:</p>
<p>Devotion of All Working Time: During your employment, you shall devote the whole of your work time, attention and abilities to your duties and shall give the Company the full benefit of your knowledge, expertise, ingenuity and technical skills.</p>
<p>I was told this is not to be construed as a non-compete clause.</p>
<p>I've seen similar clauses called Employee’s Devotion of Time, which I guess are the same thing. What's the point of such clauses? Can anyone give a simple example? I think what it's trying to say is an employee can't make money by performing another job at the same time they are on the clock for this job. I think it's rather assumed that an employee takes small intermittent breaks, so would this prohibit things like trading stocks? Or taking a (5 minute) phone call that relates to another job? What if it's passive, for example they bring their personal laptop to work to run a bitcoin miner?</p>
| 55,239 |
[
{
"answer_id": 55253,
"body": "<p>Usually, a clause like this is used in contracts of full time managerial or professional employees of a business who are employed on a salaried or commissioned, as opposed to an hourly basis, in positions that are exempt from overtime requirements.</p>\n<p>It basically prohibits moonlighting with a second job while employed at your current job. A non-competition clause, in contrast, would typically prohibit working for a competitor for some period of time after ceasing to work at your current employer.</p>\n<p>This is concerned about spreading your time and efforts too thin, rather than competition. You could violate it even if your moonlighting job has no direct impact (other than loss of some of your full time services) on the firm that employs you in your primary job.</p>\n<p>It does not prohibit you from having a personal life (e.g. going to the dentist, visiting family, watching a movie, etc.).</p>\n<p>Normally, this is used as a backstop against gross abuses, with performance based evaluation as the primary means by which the employee is evaluated. The line between personal investment activity and moonlighting or an intensive hobby can be vague and it is usually only enforced in extreme cases.</p>\n",
"score": 4
},
{
"answer_id": 55241,
"body": "<p>It basically means you're going to be expected to focus on your work while you're at work / on the clock and doing your work to the best of your ability. An occasional check of the phone might be ok once you've sussed out the culture but bringing in a personal laptop rings all sort of alarm bells (distraction, taking company information, misuse of company network etc etc) - it might be ok, again depending on the culture but be very cautious.</p>\n",
"score": 0
}
] |
[
"contract-law",
"definition",
"employment"
] |
Are Rule of law and qualified immunity doctrines compatible?
| 1 |
https://law.stackexchange.com/questions/89361/are-rule-of-law-and-qualified-immunity-doctrines-compatible
|
CC BY-SA 4.0
|
<p>Are qualified immunity doctrines compatible with "rule of law" -- the notion of the law giving equal rights and obligations to citizens? Can things like death penalty or immunity from prosecution be justified under rule of law?</p>
| 89,361 |
[
{
"answer_id": 89362,
"body": "<p>"Rule of law" is one thing, "giving equal rights and obligations to citizens" is another. Qualified immunity, both in doctrinal and statutory form, are statements of law, e.g. saying that a police officer has the power to use force in a manner that others may not. "Equal rights and obligations" are actually "equal, as defined in the law", for example a 6 year old has no obligation to comply with contract that that may have formed – there is an exception to the otherwise general rule, which is recognized by the law.</p>\n",
"score": 3
}
] |
[
"constitutional-law"
] |
At what stage in history did intervention of courts become required for tenant evictions?
| 5 |
https://law.stackexchange.com/questions/89330/at-what-stage-in-history-did-intervention-of-courts-become-required-for-tenant-e
|
CC BY-SA 4.0
|
<p>In England and other common law jurisdictions (I assume throughout most of the world in fact) a tenant doesn't automatically lose entitlement to their home once they stop paying rent for whatever reason, or otherwise peeve the landlord. Or, perhaps they do, but a court order is almost always a prerequisite of enforcing this loss of entitlement to occupation of the premises.</p>
<p>When did this come to be the case? I imagine at some point during medieval times or before them, that if a tenant stopped paying rent to their landlord, it might have typically started to get somewhat ugly fairly quickly, and without any intervention of the court. Am I correct that (at least 'justified') self-help evictions would have once been legal, and if so, then at what point did this stop being the case?</p>
| 89,330 |
[
{
"answer_id": 89371,
"body": "<p>This is only a partial answer and admittedly doesn't establish when residential and commercial leases for money rent came to be enforced by court evictions rather than by landlord self-help.</p>\n<p>But it does establish an earliest time period in which this could have happened by describing when residential and commercial leases for money rent came into widespread use, which is much later than the question supposes.</p>\n<blockquote>\n<p>At some point during medieval times or before them, that if a tenant\nstopped paying rent to their landlord</p>\n</blockquote>\n<p>Court evictions for non-payment of rent or a termination of a tenancy under a lease didn't arise until some significant period of time after leases of that type came into use in the post-feudal era.</p>\n<p><strong>In Europe</strong></p>\n<p>While something bearing a fair similarity to modern real property law concepts and economics existed in the Roman Empire, this conception of real property law largely disappeared after the Roman Empire collapsed, during the Middle Ages in Europe, for the better part of a thousand years.</p>\n<p>Residential and commercial leases of real property with buildings on it for money rent by ordinary people that don't amount to <a href=\"https://en.wikipedia.org/wiki/Serfdom\" rel=\"nofollow noreferrer\">serfdom</a>, i.e. quasi-slavery, from which eviction is not the usual remedy for non-payment of rent, mostly post-date the Medieval era.</p>\n<p>During the era of serfdom, the goods and services provided by serfs to their lords was indeterminate in character between rent and taxation as almost all land was owned by feudal lords who were also the sole source of governmental authority. As noted at the Wikipedia link to serfdom above:</p>\n<blockquote>\n<p>Serfdom was the status of many peasants under feudalism, specifically\nrelating to manorialism, and similar systems. It was a condition of\ndebt bondage and indentured servitude with similarities to and\ndifferences from slavery, which developed during the Late Antiquity\nand Early Middle Ages in Europe and lasted in some countries until the\nmid-19th century.</p>\n<p>Unlike slaves, serfs could not be bought, sold, or traded individually\nthough they could, depending on the area, be sold together with land.\nThe <em>kholops</em> in Russia, by contrast, could be traded like regular\nslaves, could be abused with no rights over their own bodies, could\nnot leave the land they were bound to, and could marry only with their\nlord's permission. Serfs who occupied a plot of land\nwere required to work for the lord of the manor who owned that land.\nIn return, they were entitled to protection, justice, and the right to\ncultivate certain fields within the manor to maintain their own\nsubsistence. Serfs were often required not only to work on the lord's\nfields, but also in his mines and forests and to labour to maintain\nroads. The manor formed the basic unit of feudal society, and the lord\nof the manor and the villeins, and to a certain extent the serfs, were\nbound legally: by taxation in the case of the former, and economically\nand socially in the latter.</p>\n<p>The decline of serfdom in Western Europe has sometimes been attributed\nto the widespread plague epidemic of the Black Death, which reached\nEurope in 1347 and caused massive fatalities, disrupting society.\nConversely, serfdom grew stronger in Central and Eastern Europe, where\nit had previously been less common (this phenomenon was known as\n"later serfdom").</p>\n<p>In Eastern Europe, the institution persisted until the mid-19th\ncentury. In the Austrian Empire, serfdom was abolished by the 1781\nSerfdom Patent; corvées continued to exist until 1848. Serfdom was\nabolished in Russia in 1861. Prussia declared serfdom unacceptable in\nits General State Laws for the Prussian States in 1792 and finally\nabolished it in October 1807, in the wake of the Prussian Reform\nMovement. In Finland, Norway, and Sweden, feudalism was never fully\nestablished, and serfdom did not exist; in Denmark, serfdom-like\ninstitutions did exist in both stavns (the stavnsbånd, from 1733 to\n1788) and its vassal Iceland (the more restrictive vistarband, from\n1490 until 1894).</p>\n</blockquote>\n<p>In the Middle Ages in Europe, outside of a few "free cities", renting a house or apartment, that wasn't a farm that you and your descendants were forever bound to serve your lord working, were mostly not a thing.</p>\n<p>Also, for most or all of the Middle Ages in England and the rest of Europe, your landlord was also your lord (i.e. the government) and <em>he was the court</em> before which all civil and criminal disputes involving his subjects and activities taking place on his land were resolved, so he had no need to resort to his own justice.</p>\n<p>In the early Middle Ages in England, real property disputes between aristocrats, who were mostly the only people who had interests in land other than as serfs, for example, over disputed boundaries or title, were mostly resolved in trials by combat.</p>\n<p>While some more modern real estate concepts were starting to emerge in England in the 13th century, culminating in what would be the status quo for the next several hundred years with legislation adopted in 1290 CE, this didn't have much impact on the common man and residential and commercial money leases of improved real estate remained rare. Serfdom was almost completely abolished only by 1485 CE in the Elizabethan era. <em>See generally</em> <a href=\"https://en.wikipedia.org/wiki/History_of_English_land_law\" rel=\"nofollow noreferrer\">here</a>.</p>\n<p>In continental Europe, the period after the end of serfdom and feudalism and before industrialization occurred, was called the "early modern period." This is also the period in which a legal regime based upon Roman law was restored to widespread use in continental Europe on a piecemeal basis in a process called the "reception" of Roman law.</p>\n<p>Even when true serfdom ended, most leases were initially long term or indefinite term sharecropping leases of farms by tenant peasants from the lords who had previously held them in slave-like hereditary servitude, not money leases of a residence or commercial workplace (often combined in one building) in the modern sense, where eviction for nonpayment of monthly rent or a termination of a short term lease was the norm.</p>\n<p>In sharecropping situations, shortfalls of rent basically amounted to theft of the landlord's property and were punished in that model, and evictions mostly arose as aristocratic lords and merchant landholders converted peasant farmland to other purposes.</p>\n<p>A near modern market based understanding of real property as a commodity that can be bought, leased, sold, or inherited on a widespread basis by ordinary people was later than that.</p>\n<p>Widespread modern commercial rentals of a house or apartment or non-farming business, that was not a sharecropped farm, in exchange for money rent, came into use largely in connection with urbanization and industrialization, although merchants and skilled craftsman started the early stage of this process in the early modern period in the late 1400s and early 1500s.</p>\n<p>As an aside, Ireland, like the rest of Europe, eventually transitioned to urban money lease arrangements for many of its people as its economy evolved, but when it attained independence that was recognized by the U.K. effective in 1922, only 1% of the land in Ireland was owned by Irish people, with the rest owned predominantly by absentee British landlords. Farmlands in those regions would have been mostly sharecropped at that time.</p>\n<p><strong>In the Americas</strong></p>\n<p>There were substantial swaths of the Americans in the colonial era, and in the early United States, where a large share of all workers were literal chattel slaves, and another very large share were sharecroppers with leases of indefinite duration and no fixed money rent. Widespread slavery, of course, persisted until 1865 in much of the United States, and sharecropping was widespread in parts of the United States into the early 20th century.</p>\n<p>The percentage of the workforce engaged in farming has increased significantly in the United States (and in the colonies that preceded it) in almost every decade since the 1700s. For example, in 1820, <a href=\"https://www.nytimes.com/1988/07/20/us/farm-population-lowest-since-1850-s.html\" rel=\"nofollow noreferrer\">72 percent of the American work force of 2.9 million was engaged in farming</a>, almost all as freehold owners of their farms, as sharecroppers, or as slaves.</p>\n<p>Likewise, in urban areas, a very significant share of residential and commercial real estate was either owned by the occupants or was inhabited by indentured servants. So, residential and commercial leases for money rent were just starting to come into widespread use in the 1700s in the colonies that would ultimately come to be the United States.</p>\n<p><strong>In Asia</strong></p>\n<p>In most parts of the Southeast Asia and East Asia, serfdom (or a close equivalent of it) persisted longer than it did in England.</p>\n<p>For example, in Japan, most free peasant farmers were downgraded to serfdom starting ca. 1185 CE when the Kamakura Shogunate established feudalism in Japan. Cracks in this system were starting to develop during the Tokugawa Shogunate (1603 CE–1868 CE) which is also called the Edo Period (after the historic name of the capital in Tokyo), but the institution of serfdom wasn't completely dissolved until the Meiji Restoration in 1868, about four centuries after serfdom had reached a comparable level of near complete abolition in England. In Japan, as in England, widespread rentals of houses and apartments for money rent separate from a sharecropped farm, largely coincided with urbanization, which took place in Japan mostly in the Edo and Meiji periods.</p>\n<p>According to the Wikipedia link on serfdom above:</p>\n<blockquote>\n<p>According to medievalist historian Joseph R. Strayer, the concept of\nfeudalism can also be applied to the societies of ancient Persia,\nancient Mesopotamia, Egypt (Sixth to Twelfth dynasty), Islamic-ruled\nNorthern and Central India, China (Zhou dynasty and end of Han\ndynasty) and Japan during the Shogunate. Wu Ta-k'un argued that the\nShang-Zhou fengjian were kinship estates, quite distinct from\nfeudalism. James Lee and Cameron Campbell describe the Chinese Qing\ndynasty (1644–1912) as also maintaining a form of serfdom.</p>\n<p>Melvyn Goldstein described Tibet as having had serfdom until 1959,but\nwhether or not the Tibetan form of peasant tenancy that qualified as\nserfdom was widespread is contested by other scholars. Bhutan is\ndescribed by Tashi Wangchuk, a Bhutanese civil servant, as having\nofficially abolished serfdom by 1959, but he believes that less than\nor about 10% of poor peasants were in copyhold situations.</p>\n</blockquote>\n<p>The Maoist revolutionary movements in India are seeking to address the residual inequalities in land ownership that arose from feudal serfdom-like practices there that persisted in some Indian states in substance although not in form, into the 20th century.</p>\n<p>One of the reasons that there are few surnames that are widely used in countries like China, Korea, and Vietnam is that in those countries serfs were assigned the surname of the dynasty of their feudal lords, and their surnames were changed if their lord was conquered by another lord during a period of consolidation of aristocratic power.</p>\n",
"score": 3
},
{
"answer_id": 89370,
"body": "<p>In England and Wales, it is still not absolutely required. There are some situations where a landlord can evict a tenant at common law, without going to court. The most common is probably where landlord and tenant share the same home.</p>\n<p>The common-law principle is more or less that if the tenacy is over for whatever reason, then the former tenant is now a trespasser. The default position is that landowners can remove trespassers from their land without having to obtain a court order, and can use reasonable force to do so. Statute law has gradually eroded this, so that the majority of residential tenants are now protected by the need for an aggrieved landlord to go through a court, even if they are being evicted for nonpayment of rent.</p>\n<p>Currently, most tenants are covered by the <a href=\"https://www.legislation.gov.uk/ukpga/1977/43\" rel=\"nofollow noreferrer\">Protection from Eviction Act 1977, s.3</a>, which in its amended state says among other things:</p>\n<blockquote>\n<p>(1) Where any premises have been let as a dwelling under a tenancy which is neither a statutorily protected tenancy nor an excluded tenancy and —\n<br>(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but\n<br>(b) the occupier continues to reside in the premises or part of them,it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.</p>\n<p>(2) In this section “the occupier”, in relation to any premises, means any person lawfully residing in the premises or part of them at the termination of the former tenancy.\n</blockquote>\n<p>Note that in (1), we see that this doesn't apply to a "statutorily protected tenancy" (a particular class of tenancy which carries separate protecions), nor to an "excluded tenancy". The meaning of the latter covers the situation described in the first paragraph, as well as others mentioned in s.3A of the Act.</p>\n<p>The language here derives from the Rent Act 1964, since repealed and replaced. The 1964 Act was brought in by the Wilson government after widespread public anger at various abuses by landlords. It was not the first act dealing with security of tenure, but was a notable point in extending protection even to <em>former</em> tenants still living in the property. Since it was made permanent in 1965, various governments have introduced different forms of tenancy, and continued to fiddle with the balance of power between landlord and tenant, but the general thrust is that the 1977 Act is by now applicable to most renters.</p>\n<p>Some kinds of protection did exist for former kinds of tenancy that are now obsolete. In particular, in the feudal period there were all sorts of legal rules about security of tenure, duties of tenants, and powers of landowners, which are probably impossible to summarize in any satisfactory way. Since the common-law eviction idea was (and is!) in use even in the modern era, it's not necessary to dive in.</p>\n<p>(This answer draws from the account of the 1960s-1970s reforms in <em>The limits of the legal process: A study of landlords, law and crime</em> by David Nelken (2013).)</p>\n",
"score": 2
}
] |
[
"england-and-wales",
"common-law",
"legal-history",
"eviction",
"any-jurisdiction"
] |
Legality of promising to refrain from tipping another off?
| 0 |
https://law.stackexchange.com/questions/89388/legality-of-promising-to-refrain-from-tipping-another-off
|
CC BY-SA 4.0
|
<p>X discovers that he has a valuable cause of action against Z, and decides to use it as leverage against Z, but it isn't quite enough leverage to counter Z in the way X would like. However, he realises that his discovery would also be relevant to Y, who would be equally eligible to pursue the cause of action against Z.</p>
<p>In negotiation with Z, X tries to get leverage by offering to waive his own right to pursue that action against Z, in consideration of Z dropping their own claim against X. But Z's claim against X is worth double X's claim against Z, so it isn't rational for Z to trade them.</p>
<p>X realises that Z really wouldn't want X to alert Y to the possibility of their claim against Z, though, and if Z could be just have some assurance that X will not share their finding with X, that is worth just as much to Z as X waiving their right to pursue the action (ie, settling the matter with Z).</p>
<p>Z accepts this deal, and they settle on the basis that X has waived his right to pursue his claim against Z, and he will further refrain from informing Z about Z's own eligibility to pursue the claim.</p>
<p>To what extent, legally, and then realistically/consequentially, is this actually meaningful? Realistically, Z might have a 10% chance of discovering the claim on their own, and if they do pursue it, it would be pretty overwhelmingly likely that it was the work of X's advice. But of course X could never have a right to settle a cause of action on Y's behalf. So what implications would X's agreement with Z have on Y's deciding to issue their claim (which the fact remains is perfectly valid). It seems like everyone would be pretty confident that X had broken their agreement with Z, although nobody could strictly prove this. So is it basically just completely inconsequential, both in theory and in practice?</p>
| 89,388 |
[
{
"answer_id": 89391,
"body": "<p>If X says to Z "Do what I want, or I will tell Y soemthign that will be to your disadvantage" that is blackmail or extortion in many, probably most common-law jurisdictions (quite probably in civil-law ones also, but I am less sure of that). So doing that would be quite illegal in any such jurisdiction.</p>\n<p>If X tells Y because X wants to harm Z, or because X thinks Z will be distracted and less able to peruse a claim against X, but neither makes any threats or demands, then that is quite legal.</p>\n",
"score": 2
}
] |
[
"contract-law",
"common-law",
"settlement",
"consideration"
] |
In a contract what is the clearest way to state which country's currency is being used? Why is there so much variation to these terms?
| 0 |
https://law.stackexchange.com/questions/89384/in-a-contract-what-is-the-clearest-way-to-state-which-countrys-currency-is-bein
|
CC BY-SA 4.0
|
<p>I noticed in written contracts there are various ways to state which currency is to be used for money. What is the difference between 'legal tender' and 'lawful money'? Is it more clear just to say 'US Dollars' or 'Canadian Dollars'. I guess some countries don't use the word dollar for example Swiss franc or British sterling. Is there a particularly clear way to say 'all references to money are references to the official money of country X'?</p>
| 89,384 |
[
{
"answer_id": 89386,
"body": "<p>You just say "all payments are in Swiss France" or "all payments are in Thai Baht" or "all payments are in Euro" (they are all interchangeable) or "all payments are in Australian Dollars". You wouldn't say "Dollars" because that doesn't make clear which currency you mean if different countries are involved.</p>\n<p>"Legal tender" means the particular banknotes that one needs to accept for payment of a debt. For example, a 50 US dollar note is not legal tender in the UK. A German 100,000 Mark note from 1923 is not legal tender anywhere today (but some guy managed to convince people at a US bank to exchange one for dollars). More than one pound in pennies is not legal tender in the UK.</p>\n<p>I would have no idea what is meant by "lawful money".</p>\n<p>Summary: Specify exactly the currency that you are talking about.</p>\n",
"score": 2
}
] |
[
"contract-law",
"legal-terms",
"currency"
] |
Are judgments composed of paragraphs or sections?
| 0 |
https://law.stackexchange.com/questions/89375/are-judgments-composed-of-paragraphs-or-sections
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CC BY-SA 4.0
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<p>They seem to comprise numbered segments, but how are these referred to? Is there any conventional notation?</p>
| 89,375 |
[
{
"answer_id": 89380,
"body": "<p>This will vary from judge to judge, and perhaps from case to case even for the same judge. The most common practicve might vary from court to court.</p>\n<p>In the case of the US Supreme court, different decisions are organized in different ways. Some have sections labeled by numbers, some by letters, some by roman numbers, some by an outline hierarchy. Different opinions written by the same justice will be organized differently.</p>\n<p>Similarly there is no consistent terminology for the divisions. When one p[art is referred to in another "section" seems most common, with "paragraph" being reserved for grammatical paragraphs, which are not usually numbered.</p>\n",
"score": 2
}
] |
[
"legal-citation",
"notation"
] |
Is forcibly smearing someone with feces a crime, and which one?
| 2 |
https://law.stackexchange.com/questions/89258/is-forcibly-smearing-someone-with-feces-a-crime-and-which-one
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CC BY-SA 4.0
|
<p>In February 2023, <a href="https://www.theguardian.com/world/2023/feb/13/german-ballet-director-smeared-poo-face-of-critic-who-wrote-negative-review-hanover-state-opera" rel="nofollow noreferrer">a German ballet director forcibly smeared dog feces into the face of a journalist</a>. The director said the journalist had written scathingly critical reviews of his work for years, and had "thrown shit at me for years". When the journalist visited a performance of a piece he directed, he confronted her in the opera lobby, started a discussion and finally smeared her with dog feces from a bag he had with him.</p>
<p>While this is certainly despicable behavior, would it count as a crime? The attack, while disgusting, did not cause bodily harm, since feces can be washed off. It is really an attack exploiting the person's sense of disgust and a form of humiliation - but I think humiliating someone is in itself not criminal. So, what crime would that be? Some form of assault?</p>
<p>I am most interested in answers about German laws, but other answers are welcome, too.</p>
| 89,258 |
[
{
"answer_id": 89264,
"body": "<p><strong>tl;dr</strong>: As far as I can see, in <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> this would be covered under <strong>Körperverletzung</strong> (literally: "bodily harm", <a href=\"https://www.gesetze-im-internet.de/stgb/__223.html\" rel=\"nofollow noreferrer\">Strafgesetzbuch (StGB)\n§ 223</a>), and possibly under <strong>Beleidigung</strong> (insult, <a href=\"https://www.gesetze-im-internet.de/stgb/__185.html\" rel=\"nofollow noreferrer\">§185 StGB</a>).</p>\n<p>Public broadcaster NDR reports that Goecke is in fact being investigated for committing these offences - <a href=\"https://www.ndr.de/kultur/buehne/Nach-Hundekot-Attacke-Staatsoper-trennt-sich-von-Marco-Goecke,goecke166.html\" rel=\"nofollow noreferrer\">Nach Hundekot-Attacke: Staatsoper Hannover trennt sich von Goecke</a>.</p>\n<hr />\n<p>While the title of the law "Körperverletzung" refers to "Verletzung" (injury), the actual text is more complex:</p>\n<blockquote>\n<p>(1) Wer eine andere Person körperlich mißhandelt oder an der\nGesundheit schädigt, wird mit Freiheitsstrafe bis zu fünf Jahren oder\nmit Geldstrafe bestraft.</p>\n</blockquote>\n<p>English (from <a href=\"https://www.gesetze-im-internet.de/englisch_stgb/\" rel=\"nofollow noreferrer\">official translation</a>):</p>\n<blockquote>\n<p>(1) Whoever physically assaults or damages the health of another\nperson incurs a penalty of imprisonment for a term not exceeding five\nyears or a fine.</p>\n</blockquote>\n<p>So, <em>Körperverletzung</em> is one of two things:</p>\n<ul>\n<li>actual bodily harm, <em>or</em></li>\n<li>physical mistreatment (or assault)</li>\n</ul>\n<p>This means that mistreatment is covered, even if it does not result in medical harm or injury. For example, in 2016, <a href=\"https://www.lto.de/recht/kurioses/k/ag-frankfurt-8940-js-2515-45-14-main-toter-vogel-justizbriefkasten-koerperverletzung-ekel/\" rel=\"nofollow noreferrer\">a court found an accused guilty of <em>Körperverletzung</em> for putting a dead bird into the letterbox of a court</a>. The repulsion which a court employee felt when finding the dead, decaying bird was considered to be a form of mistreatment.</p>\n<p>While a court would need to decide, smearing someone with feces seems reasonably similar to making them touch a rotting bird corpse, so it would likely be covered by the same law.</p>\n<p>In addition to that, dog feces may cause real health problems, such as allergic reactions or infections. This would obviously qualify as <em>Körperverletzung</em>, but may be harder to prove.</p>\n<hr />\n<p>In addition to that, the humiliation caused by the act might also count as a form of insult (<em>Beleidigung</em>, <a href=\"https://www.gesetze-im-internet.de/stgb/__185.html\" rel=\"nofollow noreferrer\">§185 StGB</a>). Note that §185 StGB explicitly mentions an insult committed via a physical act ("mittels einer Tätlichkeit") as an aggravating circumstance.</p>\n",
"score": 9
},
{
"answer_id": 89260,
"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>Taking the description of events at face value, and absent any affirmative defences, this would be assault: intentionally applying force, directly or indirectly, to another person without their consent. See <em>Criminal Code</em>, <a href=\"https://laws-lois.justice.gc.ca/eng/acts/c-46/section-265.html\" rel=\"nofollow noreferrer\">s. 265</a>.</p>\n",
"score": 3
},
{
"answer_id": 89319,
"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><a href=\"/questions/tagged/northern-ireland\" class=\"post-tag\" title=\"show questions tagged 'northern-ireland'\" aria-label=\"show questions tagged 'northern-ireland'\" rel=\"tag\" aria-labelledby=\"northern-ireland-container\">northern-ireland</a></p>\n<p>After reading <a href=\"https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standard\" rel=\"nofollow noreferrer\">this guidance from The Crown Prosecution Service</a>, I'd say this constitutes 'unlawfully and maliciously administer[ing] to or caus[ing] to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve, or annoy such person' under <a href=\"https://www.legislation.gov.uk/ukpga/Vict/24-25/100/section/24?view=extent\" rel=\"nofollow noreferrer\">section 24 of the Offences Against the Person Act 1861</a>.</p>\n<p>ETA: the action also constitutes common assault, but the <a href=\"https://www.bailii.org/ew/cases/EWCA/Crim/2019/1332.html\" rel=\"nofollow noreferrer\">Court of Appeal ruling in Veysey v. R (2019)</a> makes clear that the appropriate charge is administering etc., rather than common assault.</p>\n",
"score": 3
},
{
"answer_id": 89320,
"body": "<p>It is certainly not necessary for an act to "cause bodily harm" for it to be criminal 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=\"england-and-wales-container\">england-and-wales</a>.</p>\n<p>From the <a href=\"https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standard\" rel=\"nofollow noreferrer\">CPS guidance on charging standards</a>, "common assault" is "any act (and not mere omission to act) by which a person intentionally or recklessly causes another to suffer <strong>or apprehend</strong> immediate unlawful violence." (my emphasis).</p>\n<p>In this context "apprehend" roughly means "expect".</p>\n<p>Reading further in the page, it is not clear whether it would be prosecutable as "Assault occasioning Actual Bodily Harm (ABH)".</p>\n",
"score": 3
}
] |
[
"criminal-law",
"germany"
] |
How illegal is it to give your prescription medicine to another person (in any amount)?
| 2 |
https://law.stackexchange.com/questions/89042/how-illegal-is-it-to-give-your-prescription-medicine-to-another-person-in-any-a
|
CC BY-SA 4.0
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<p>Is it expressly illegal to give even one pill of a prescription medicine you have to another person? If so, what law says this, and under what terms? If not, what are the minimum terms, for example, amount, before giving someone else your prescription medicine becomes a crime? And even then, how prosecutable / prosecuted is this? At what amount does one begin to see people actually arrested or charged with something? But hypothetically, might law enforcement still pursue and investigate an instance of sharing a very small amount, if they got a report saying it had happened?</p>
<p>This could be in any country, but I can specify the US if it needs a focus, but I prefer a global / international / comparative perspective.</p>
| 89,042 |
[
{
"answer_id": 89046,
"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></p>\n<blockquote>\n<p>How illegal is it to give your prescription medicine to another person (in any amount)?</p>\n</blockquote>\n<p>Under the conditions:</p>\n<ul>\n<li>you are a private person</li>\n<li>you are <strong>giving</strong> (not selling)</li>\n</ul>\n<p>it is not, in itsself, illegal to give your prescription medicine to another person.</p>\n<hr />\n<blockquote>\n<p><a href=\"https://openjur.de/u/357871.html\" rel=\"nofollow noreferrer\">OLG Stuttgart, Beschluss vom 18.01.2012 - 4 Ss 664/11 - openJur</a></p>\n<ol>\n<li><p>Nur die berufs- oder gewerbsmäßige Abgabe von Arzneimitteln, die apothekenpflichtig oder von einem Arzt verschrieben worden sind, an Endverbraucher außerhalb von Apotheken unterliegt der Strafbarkeit nach §§ 95 Abs. Abs. 1 Nr. 4, 43 Abs. 3 Satz 1 AMG.</p>\n</li>\n<li><p>Die Abgabe verschreibungspflichtiger Arzneimittel an Verbraucher ist nach § 96 Nr. 13 AMG nur strafbar, wenn der Handelnde Apotheker oder eine sonst zur Abgabe von Arzneimitteln befugte Person ist.</p>\n</li>\n<li><p>Das Tatbestandsmerkmal der Berufs- oder Gewerbsmäßigkeit bezieht sich auf sämtliche Tathandlungen des § 97 Abs. 2 Nr. 10 AMG.</p>\n</li>\n<li><p>Die unerlaubte Abgabe auf Grund ärztlicher Verschreibung erworbener Betäubungsmittel an einen Dritten ist nicht von <a href=\"https://www.gesetze-im-internet.de/btmg_1981/__4.html\" rel=\"nofollow noreferrer\">§ 4 Abs. 1 Nr. 3 a BtMG</a> gedeckt.</p>\n</li>\n</ol>\n<blockquote>\n<p><strong>3a: auf Grund ärztlicher, zahnärztlicher oder tierärztlicher Verschreibung,</strong></p>\n</blockquote>\n<blockquote>\n<hr />\n<ol>\n<li><p>Only the professional or commercial sale of pharmaceuticals that are sold in pharmacies or have been prescribed by a doctor to end users outside of pharmacies is subject to criminal liability under <a href=\"https://www.gesetze-im-internet.de/englisch_amg/englisch_amg.html#p2081\" rel=\"nofollow noreferrer\">Sections 95 (1) No. 4</a>, <a href=\"https://www.gesetze-im-internet.de/englisch_amg/englisch_amg.html#p1133\" rel=\"nofollow noreferrer\">43 (3) sentence 1 AMG</a>.</p>\n</li>\n<li><p>According to <a href=\"https://www.gesetze-im-internet.de/englisch_amg/englisch_amg.html#p2106\" rel=\"nofollow noreferrer\">§ 96 No. 13 AMG</a>, the supply of prescription drugs to consumers is only punishable if the person acting is a pharmacist or another person authorized to supply drugs.</p>\n</li>\n<li><p>The constituent element of professional or commercial activity refers to all acts of <a href=\"https://www.gesetze-im-internet.de/englisch_amg/englisch_amg.html#p2139\" rel=\"nofollow noreferrer\">§ 97 para. 2 no. 10 AMG</a>.</p>\n</li>\n<li><p>The unauthorized supply of narcotics acquired on the basis of a doctor's prescription to a third party is not covered by § 4 Para. 1 No. 3 a BtMG.</p>\n</li>\n</ol>\n<blockquote>\n<p><strong>3a: on the basis of a medical, dental or veterinary prescription,</strong></p>\n</blockquote>\n</blockquote>\n</blockquote>\n<hr />\n<p><strong>Sources</strong>:</p>\n<ul>\n<li><a href=\"https://openjur.de/u/357871.html\" rel=\"nofollow noreferrer\">OLG Stuttgart, Beschluss vom 18.01.2012 - 4 Ss 664/11 - openJur</a></li>\n<li><a href=\"https://www.gesetze-im-internet.de/englisch_amg/index.html\" rel=\"nofollow noreferrer\">Medicinal Products Act (Arzneimittelgesetz – AMG)</a>\n<ul>\n<li><a href=\"https://www.gesetze-im-internet.de/englisch_amg/englisch_amg.html#p1133\" rel=\"nofollow noreferrer\">§43 - Pharmacy-only requirement, placing on the market by veterinarians</a></li>\n<li><a href=\"https://www.gesetze-im-internet.de/englisch_amg/englisch_amg.html#p2081\" rel=\"nofollow noreferrer\">§95 - Penal Provisions</a></li>\n<li><a href=\"https://www.gesetze-im-internet.de/englisch_amg/englisch_amg.html#p2106\" rel=\"nofollow noreferrer\">§96 - Penal Provisions</a></li>\n<li><a href=\"https://www.gesetze-im-internet.de/englisch_amg/englisch_amg.html#p2139\" rel=\"nofollow noreferrer\">§97 - Provisions on administrative fines</a></li>\n</ul>\n</li>\n</ul>\n",
"score": 3
},
{
"answer_id": 89049,
"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<blockquote>\n<p>Is it expressly illegal to give even one pill of a prescription\nmedicine you have to another person?</p>\n</blockquote>\n<p><strong>If the drug is a controlled substance under state or federal laws, yes.</strong> If not, sometimes under state law and sometimes not.</p>\n<p>For example, it would probably not be a crime to give one pill of a prescription medicine you have to another person if the pill is actually a placebo and doesn't purport to be a controlled substance.</p>\n<blockquote>\n<p>If so, what law says this, and\nunder what terms? If not, what are the minimum terms, for example,\namount, before giving someone else your prescription medicine becomes\na crime? And even then, how prosecutable / prosecuted is this?</p>\n</blockquote>\n<p>Many prescription drugs are controlled substances in the United States. The type of drug, the amount of the drug and the capacity in which it is distributed impact the offense in question and the sentence if convicted, so a simple answer isn't possible.</p>\n<p>I'll provide some examples that would be typical in the U.S. without singling out any specific examples under particular statutes, although my sense of what is normal is derived in part from two criminal defense lawyer friends of mine who often defend people accused of controlled substances offenses, one in Boulder, Colorado, who practices mostly in state courts, and one in metropolitan Denver, Colorado, who practices mostly in federal court. This does not fully reflect new state laws in Colorado that made state drug sentences more lenient (except for fentanyl) in the last several years, since these reductions are not typical of the United States as a whole.</p>\n<p>There are also parallel state and federal crimes for the same offense with different sentences under their respective controlled substances acts, and sentences vary considerably from one U.S. state to another.</p>\n<p>But, for example, <strong>it wouldn't be unusual if providing half a month's supply of amphetamine salts (brand name Adderall) or an opioid painkiller, like Percocet, could expose the person providing it to someone without a prescription to exposure to something on the order of three to ten years in prison.</strong> The required level of intent that must be proven is often very modest.</p>\n<p>Usually, a skilled criminal defense attorney for an affluent middle class criminal defendant, like a college student, can secure a plea bargain with alternative sentencing like incarceration, a heavy fine, and drug treatment, for a first time offender with no other criminal record. But for someone less well heeled and less well represented, draconian sentences for selling prescription drugs would not be exceptional.</p>\n<p>Also, a criminal defense attorney will often have more negotiating power if you can turn someone else in, and will have less ability to negotiate a lower sentence for you if you can't. So, low level offenders acting alone often have less negotiating leverage in plea bargaining than mid-level completely illicit drug dealers.</p>\n<p>Sentences would be enhanced for sales made while armed with a weapon, sales made to children or in areas frequented by children, for a prior criminal record, and worst of all if someone dies of an overdose of the drug.</p>\n<p>For example, if someone with a Percocet prescription provided someone with ten pills and that person overdosed and died, a sentence of many decades in prison on a homicide conviction, in addition to the drug dealing conviction, possibly served consecutively, would be commonplace. In that situation, a combined fifteen years would be a light sentence, twenty-five to thirty years would be typical, and life in prison would be a long sentence but not particularly exceptional.</p>\n<p><strong>Collateral Consequences Of A Conviction</strong></p>\n<p>There would also be "collateral consequences" of a conviction for a controlled substance offense.</p>\n<p><strong>Even a misdemeanor conviction would disqualify you from receiving financial aid for college, which as a practical matter would make it financially impossible for most non-affluent people to earn more than a two year community college degree. It would also make it likely that you would not be able to be licensed as a doctor, nurse, pharmacist, lawyer, law enforcement officer, or in the state legalized marijuana industry.</strong></p>\n<p><strong>A felony conviction would likely lead to your deportation at the end of your sentence if you are not a U.S. citizen. It would disqualify you from ever owning or possessing a firearm. It would bar you from serving as a notary public. It would be you from entering most licensed professions. It would bar you from voting in many states. It would be grounds to refuse to rent an apartment to you or to refuse to hire you for all manner of jobs. The conviction could be used to impeach your testimony if you were called as a witness in any kind of lawsuit including a criminal prosecution against you where you would like to testify on your own behalf to prove your innocence. It would be likely to make any future conviction you had for a felony carry a more severe sentence.</strong></p>\n<blockquote>\n<p>At what\namount does one begin to see people actually arrested or charged with\nsomething? But hypothetically, might law enforcement still pursue and\ninvestigate an instance of sharing a very small amount, if they got a\nreport saying it had happened?</p>\n</blockquote>\n<p><strong>It would not be at all unusual for there to be a prosecution over one to two pills</strong> (especially if you are poor and are not white and Anglo), although in that quantity, the charge would usually be either a misdemeanor, or the lowest level possible drug felony, with typical maximum sentences of six months to a couple of years in prison depending upon the details of the charge.</p>\n<p><strong>Whether the transfer is gratuitous or for money is usually irrelevant</strong> to whether or not you will be convicted of the crime, but it may be a mitigating factor that the judge can consider when deciding what sentence to impose.</p>\n<p>Of course, you can only be prosecuted if you are caught.</p>\n<p>The current focus of drug enforcement, highlighted in the President's State of the Union address is fentanyl, an extremely concentrated opioid that has caused tens of thousands of overdose deaths in the U.S. each year, often when it is cut with another drug and not disclosed. It is sometimes used as anesthesia for large animals like cows, buffalos and elephants. Medicinally, it is often used for severely painful conditions (e.g., passing kidney stones), and to conduct certain procedures (e.g., colonoscopies). Even a gratuitous transfer of a gram or two of fentanyl obtained pursuant to a valid prescription to someone who doesn't have a prescription for it is extremely likely to result in a felony controlled substances offense prosecution, and a sentence of multiple years in prison.</p>\n<p>As of 2022, about 45% of inmates in federal prisons (about 67,000) are serving time for drug offenses, another 21,000 are in jail for federal drug offenses, about 146,000 are in state prisons for drug offenses, about 113,000 are in jail for state drug offenses, and about 2,500 are in juvenile dentition centers for drug offenses, and a small additional number are incarcerated in tribal jails, military detention facilities, or U.S. territories for drug offenses. (<a href=\"https://www.prisonpolicy.org/reports/pie2022.html\" rel=\"nofollow noreferrer\">Source</a>). Thus, at any given time there are about 450,000 people in jail or prison in the U.S. for drug offenses, and that doesn't include something on the order of 900,000 to 1,000,000 additional people who are on probation or parole for drug offenses. It also doesn't include thousands of non-U.S. citizens who have finished drug crime sentences and are in immigration detention awaiting deportation. There are more people serving sentences for drug offenses in the U.S. per capita, than most countries have serving sentences for all types of crimes combined per capita.</p>\n<p>Most of these offenses are for non-prescription illicit drugs, but the proportion of controlled substances convictions involving prescription drugs sold to people without prescriptions is rapidly increasing, mostly as a result of rising levels of opioid addiction and amphetamine use. So, the risk of being prosecuted and convicted for transferring a prescription drug that is a controlled substance is not at all hypothetical.</p>\n<p><strong>Prescriptions That Are Not Controlled Substances</strong></p>\n<p>On the other hand, <strong>possession or the gratuitous transfer of a prescription drug that is not a controlled substance, such as a skin cream for treating acne that is more potent than what can be purchased over the counter, would only occasionally be prosecuted and would usually be a misdemeanor at most unless the volume of illegal transfers was at a commercial scale.</strong></p>\n",
"score": 3
}
] |
[
"criminal-law",
"medical",
"interpretation",
"drugs",
"prosecution"
] |
Can an AI admit to guilt?
| 0 |
https://law.stackexchange.com/questions/89348/can-an-ai-admit-to-guilt
|
CC BY-SA 4.0
|
<p><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" rel="nofollow noreferrer">OpenAI is being sued</a> for using content that it has no right to access.</p>
<p>Someone asked ChatGPT what sources they used and the AI replied with a list that incriminated itself.</p>
<p>How exactly would the law deal with a machine that can "respond" like this? Can the creators simply say "Oh, it is wrong. It doesn't do that." and then just walk away?</p>
| 89,348 |
[
{
"answer_id": 89352,
"body": "<h2>No</h2>\n<p>Can a Dog admit guilt in court? Can a car have and admit guilt? No. AI is nothing but property and a piece of evidence, just like a dog or car. It is not a person and thus can not admit to anything. Everything the AI <em>says</em> is <strong>evidence</strong>, not an admission. Very damming evidence, but not the makers saying "I did it."</p>\n",
"score": 10
},
{
"answer_id": 89369,
"body": "<h2>No</h2>\n<p>The suit is against "<em>Open AI</em>" which is an organization, not a program. Open AI is a legal entity and could be found liable in a tort case, or guilty of a crime. A program, under current law, can be neither.</p>\n<p>Open AI, or individuals connected with it, could be found to have infringed copyright in training an AI engine or neural network using published content without permission. Or the court might find that such use is not an infringement. So far as I know that issue is not yet settled. But if anyone is found to have infringed, it will not be the AI itself, but the people who did the training, or the organization with which they are affiliated, or perhaps both.</p>\n<p>Also, the term "<em>guilt</em>" is not normally used in such cases. A person accused of copyright infringement is found "liable" or not. The rem "guilt" (in a legal sense, as opposed to moral or psychological) is normally used only in connection with crime, and copyright infringement is criminal only in very limited circumstances which do not apply in this case. (Even when it could, by law, be treaetd as a crime, it rarely is.)</p>\n",
"score": 4
}
] |
[
"artificial-intelligence"
] |
What was the impetus for the Offences Against the Persons Act 1861?
| 4 |
https://law.stackexchange.com/questions/89364/what-was-the-impetus-for-the-offences-against-the-persons-act-1861
|
CC BY-SA 4.0
|
<p>Why in the mid nineteenth century of all times was there seen to be an overhaul of the provisions which surely existed in other forms previously barring such age old offences as assault/rape/murder/etc? What brought about OATPA1861?</p>
| 89,364 |
[
{
"answer_id": 89365,
"body": "<p>In simple terms it was part of a wider effort to consolidate and simplify criminal law referred to as the <a href=\"https://en.wikipedia.org/wiki/Criminal_Law_Consolidation_Acts_1861\" rel=\"noreferrer\">Criminal Law Consolidation Acts 1861</a> (which were themselves revisions of the Peel Acts)</p>\n<p>Basically the sheer number of acts was causing administrative headaches - the courts and parliament were losing track of what was and wasn't in force. Since at least nominally ordinary English folk were supposed to know the law it was getting a bit ridiculous that the people whose literal job it was to make and adjudicate these laws weren't able to!</p>\n<p>In <a href=\"https://books.googleusercontent.com/books/content?req=AKW5QacyvDY8Ocu2W4RHnh1yl7a4hthsG8DTp5Xw7f96RGzx61wISq_ZKxb3WyGpI9VcKXhL8gCxSeK7MzrCfLda2AUWuq1VGQC9H7gCR8R1TqEQ7W2M6oQB0NihBH-lqP_xtSloyVFynX8BZ9RigxV5wlernGg_v9dG3szHA_u9PpmA4UK-WDt6HMnkKrxi8M1HYcKVYA14z9i850B3JVMQnUjmbDYfMo5coBjMdg6Xyh2oKlCSgvexQEM15tXt6r5ZQqkiV37bk_u5PPXG5EqjYe6F6wppGQ\" rel=\"noreferrer\">the words of James Bigg Esq</a>:</p>\n<blockquote>\n<p>It would be superfluous to attempt to enumerate the causes which have led to the passing of these statutes : the circumstances which led to their occupying the prominent attention they have received were twofold: ist. The Court of Queen's Bench, a few years since, spent some time in solemnly considering the effect of an act which was afterwards found to have been repealed some years previously, but of which repeal both judges, counsel, solicitors, and all the parties concerned were, at the time, profoundly ignorant, and 2nd, Very nearly at the same period an act was formally passed by Parliament to repeal several acts which had been actually repealed about 20 years previously. As it is a legal axiom that every Englishman is presumed to know the laws of his country, and as the preposterous proceedings just mentioned cast a grave suspicion before the eyes of the public upon the accuracy and extent of the knowledge even of judges and legislators, it was felt that some means ought to be adopted to determine with clearness and precision what laws were really in force and what were abrogated : hence arose the question of “Statute Law Reform,” which for many years has received the intermittent attention of the legislature, and been handled by commissions of inquiry almost innumerable and uniformly expensive.</p>\n</blockquote>\n<p><strong>PS:</strong> If you're interested in the general topic of how these acts came to be and the legal environment at the time it's well worth reading the whole "Preface" section of the book I linked to above.</p>\n",
"score": 10
}
] |
[
"criminal-law",
"england-and-wales",
"legal-history"
] |
Can I use the name Winky Dink in my book titile?
| -1 |
https://law.stackexchange.com/questions/89357/can-i-use-the-name-winky-dink-in-my-book-titile
|
CC BY-SA 4.0
|
<p>I want to write a book about an experience with my siblings that affected my whole life and I wanted to title it "My Winky Dink Syndrome" or "Winky Dink and Me"</p>
<p><a href="https://en.wikipedia.org/wiki/Winky_Dink_and_You" rel="nofollow noreferrer">Winky Dink and You</a> was an American children's television show that aired from 1953 to 1957.</p>
| 89,357 |
[
{
"answer_id": 89358,
"body": "<p>We can't tell you if you can do that or not, because that would be specific legal advise. You should consult an attorney who specializes in trademark law to get an estimation of how risky it would be to use that name. So I am just giving you a couple general pointers.</p>\n<p>Names are not protected by copyright, but by trademarks. The purpose of trademarks is to prevent consumer confusion. They are supposed to prevent someone from selling a product under a name which consumers might mistake for official merchandise of someone else. Media companies in particular tend to be very protective of their trademarks, because merchandising is often one of their main sources of revenue. And they don't want to share that revenue with people creating knockoff products. Also, they <em>must</em> fight for their trademark in court, because when they only enforce it selectively, then they risk that a court will consider the mark so widely used already that it is no longer worth protecting.</p>\n<p>But the show is from the 1950s. Is the trademark still protected after all that time? Maybe. There are registered trademarks and unregistered trademarks. Registered trademarks, which usually but not always are followed by an "®" symbol, need to be renewed in regular intervals. So if someone still pays for the renewal, it might still be a protected trademark. Unregistered trademarks, which usually but not always are followed by a "™" symbol, are protected as long as they are "used in commerce". Which means that if the IP owner of that show still sells products branded as "Winky Dink and you", they can probably still claim unregistered trademark protection. In order to find out, you would need to do your own research or pay your attorney to do a trademark research for you.</p>\n<p>Are your proposed names even a trademark violation? Perhaps, perhaps not. That's for a court to decide. Personally I think that "Winky Dink and Me" is more infringing than "My Winky Dink Syndrome", because the first is a lot closer to the original name and brand image, giving it a higher likeliness of causing consumers to mistake it for an official "Winky Dink and You" product. But that's an argument you got to make in court. Estimating the chance that the judge will side with you and how much in legal costs it will take you to get to the point where you are even going to have the opportunity to make that argument is a job for your attorney.</p>\n",
"score": 4
}
] |
[
"trademark"
] |
What would be the sequence of events necessary in order for social media websites to be considered common carriers?
| 4 |
https://law.stackexchange.com/questions/78352/what-would-be-the-sequence-of-events-necessary-in-order-for-social-media-website
|
CC BY-SA 4.0
|
<p>There has been a lot of cries for social media platforms to be regulated as common carriers.
However, what would be the actual, concrete events that must happen for such a thing to happen?</p>
<p>Does it require an explicit act of congress, for social media platforms to be regulated as common carriers?</p>
<p>Can someone who has been extensively deplatformed, eg. Trump, Alex Jones or Laura Loomer, file a lawsuit arguing that social media platforms are important enough such that they must be regulated as common carriers. And then the Supreme court basically legislates from the bench a la Obergefell?</p>
| 78,352 |
[
{
"answer_id": 78353,
"body": "<blockquote>\n<p>However, what would be the actual, concrete events that must happen for [common carrier classification] to happen?</p>\n</blockquote>\n<p>Congress would have to pass such laws, since social media platforms are currently covered by a different set of rules. In particular, the Telecommunication Act's concept of “information services” is a far better fit for social media websites than the “common carrier” concept. If the FCC were to unilaterally reclassify social media platforms as common carriers, that would be a difficult to defend position. It is also likely that other laws that require some content filtering would need to be updated or removed.</p>\n<blockquote>\n<p>Can someone who has been extensively deplatformed […] file a lawsuit arguing that social media platforms are important enough such that they must be regulated as common carriers. And then the Supreme court basically legislates from the bench a la Obergefell?</p>\n</blockquote>\n<p>Congress has already provided rules for the regulation of social media platforms. A lawsuit would have to show that these laws are unconstitutional. The existing rules on social media regulation will not be unconstitutional merely because of the scale and importance of those platforms. A free speech argument will not automatically work, (a) because the deplatformed person's free speech rights must be weighed against the platform's free speech rights, and (b) because the first amendment is a defensive right against the government, not against private entities such as a social media platform. Quite specifically, the amendment only says that “Congress shall make no law … abridging the freedom of speech”, but it does not prevent private entities from making rules about how their services may be used.</p>\n",
"score": 6
}
] |
[
"united-states",
"first-amendment",
"social-media"
] |
How does Unionization in the USA work?
| 1 |
https://law.stackexchange.com/questions/78145/how-does-unionization-in-the-usa-work
|
CC BY-SA 4.0
|
<p>I can't seem to be able to find and simple explanation as to how unionization in the USA works.</p>
<p>I watched the documentary "American Factory" and the workers basically rejected unionization plans.</p>
<p>My question is, how often can unionization votes be held?</p>
<p>If one vote fails today, can another vote be held tomorrow? And then ad-infinitum until it passes? If not, how often?</p>
<p>Who is in charge of organizing the vote to form the Union in the first place?</p>
<p>If a vote to form a union passes today, can another vote be held tomorrow to disband the union? If not, when can a vote to disband the union be held, and who is allowed to organize such a vote?</p>
<p>Also, the worker population of a company is constantly changing. Basically like the Ship of Theseus. I think, none of the founding members of the UAW union in 1930 are alive today. But the union is still alive and well. So, was there any vote in the interim 90 years to reaffirm the union? Or is it that once a union is formed, it is un-disbandable?</p>
<hr />
<p>I also read about Stabucks workers forming unions. So when a union is formed, a company is no longer allowed to hire any worker outside of the union?</p>
<p>So if there is this really great talented person whom Starbucks wants to hire. But this person wants to negotiate directly with Starbucks and does not want anything to do with the Union. Then this person cannot be hired?</p>
| 78,145 |
[
{
"answer_id": 78151,
"body": "<p>First of all, the question seems to misunderstand what "union elections" are about. They do not involve forming or joining a union. Under <a href=\"https://www.law.cornell.edu/uscode/text/29/157\" rel=\"nofollow noreferrer\">29 USC 157</a> all employees have the right to form or join any union at any time. No election is needed. 29 USC 159 provides that:</p>\n<blockquote>\n<p>Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities</p>\n</blockquote>\n<p>The above section is part of the National Labor Relations Act (NLRA) of 1935, as amended and updated. It is found in [Chapter 7 of 29 USC] (<a href=\"https://www.law.cornell.edu/uscode/text/29/chapter-7\" rel=\"nofollow noreferrer\">https://www.law.cornell.edu/uscode/text/29/chapter-7</a>)</p>\n<p>A union is formed as the voluntary act of its members. A union generally has a constitution that controls its operations. This will specify under what conditions the union will be dissolved. An individual may leave a union at any time.</p>\n<p>Elections, such as those mentioned in the question, are held by the National Labor Relations Board (NLRB) when employees desire that a union become the designated collective bargaining representative for a bargaining unit (which is a group of employees deemed to have a "community of interest"). There is considerable flexibility in just which employees shall be designated as a bargaining unit. In the event of a dispute, this is resolved by the NLRB. (see 29 USC 159(b)). Elections may also be held when there is a desire by some workers to change representatives.</p>\n<p>A petition requesting a representation election can be filed by a union, a worker, or an employer.</p>\n<p>Under <a href=\"https://www.law.cornell.edu/uscode/text/29/159\" rel=\"nofollow noreferrer\">29 USC 159</a>(a) the representatives for a bargaining unit: "shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment". That is what representation elections are about.</p>\n<p>A union, or other organization, is supposed to be recognized or designated as the bargaining representative for a bargaining unit (BU) only if a majority of the workers in that BU who make a choice want that representative.</p>\n<p>In addition to being certified by the NLRB after winning an election, a union can be recognized as the representative voluntarily by the employer on the request of a majority of the employees. Or such a request can trigger a secret ballot election.</p>\n<blockquote>\n<p>My question is, how often can unionization votes be held?</p>\n</blockquote>\n<p>Representation elections are normally held no more often than once a year in any BU. Specifically, 29 USC 159(c)(3) provides that:</p>\n<blockquote>\n<p>No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held.</p>\n</blockquote>\n<p>Cases recently in the news where a second election has been ordered or proposed in a shorter period of time involve cases where it has been held, or alleged, that the previous election was <strong>not valid</strong> because of unfair labor practices.</p>\n<p>An election can also be held to decertify the bargaining representative, or to substitute a new representative. In all these cases a majority of the workers voting must agree for any change to be made. The "no more than once per year" rule applies to all these elections.</p>\n<p>If there are more than two choices on the ballot (for example, if several different unions are proposed, perhaps along with "no union") and no one choice gets a majority, a runoff is held between the two choices with the largest number of votes. This is specified in 29 USC 159(c)(3)</p>\n<p>All representation elections are held under the authority of, and are regulated by, the NLRB.</p>\n<blockquote>\n<p>So when a union is formed, a company is no longer allowed to hire any worker outside of the union?</p>\n</blockquote>\n<p>This is not correct. That is what is known as the "closed shop", and it is illegal under the NLRA. Arrangements that <strong>are</strong> legal (when they are part of a collective bargaining agreement (CBA)) under the NLRA are:</p>\n<ul>\n<li><p>The "union shop". On being hired, an employee must join the union within a specified time (which must be at least 30 days, but may be longer). This is specifically permitted by <a href=\"https://www.law.cornell.edu/uscode/text/29/158\" rel=\"nofollow noreferrer\">29 USC 158</a>(a)(3). However, many states have by state law prohibited union shop agreements.</p>\n</li>\n<li><p>An "agency shop". No employee need join any union, but any employee must pay the designated bargaining representative a fee (normally less than the union membership dues) for its efforts in representing the workers of that BU, and that worker specifically. Some states have by state law prohibited or limited agency shop agreements.</p>\n</li>\n<li><p>An "open shop". No worker need pay any dues or fee to any union or other representative., But if the representative is a union, its policies are set by the union members, and to become and remain a union member, a worker must pay union dues.</p>\n</li>\n</ul>\n<p>Aside from any shop agreement included in a CBA, 29 USC 158(a)(3) provides that it is an unfair labor practice (ULP) for an employer:</p>\n<blockquote>\n<p>by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization ...</p>\n</blockquote>\n<p>It is also a ULP (under 29 USC 158(a)(2)) for an employer to:</p>\n<blockquote>\n<p>dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it ...</p>\n</blockquote>\n<p>The provisions of the NLRA and some proposals that have been made to change it are summarized and explained in <a href=\"https://www.everycrsreport.com/reports/RL32930.html#fn54\" rel=\"nofollow noreferrer\">"The National Labor Relations Act (NLRA): Union Representation Procedures and Dispute Resolution"</a> from the Congressional Research Service (CRS). This report goes into more sub-topics than this answer calls for. As far as I can tell, it correctly describes the current law. See <a href=\"https://www.everycrsreport.com/about.html\" rel=\"nofollow noreferrer\">https://www.everycrsreport.com/about.html</a> for more info.</p>\n",
"score": 6
}
] |
[
"united-states",
"unions"
] |
If the Jury considers evidence that should be discarded in the US, what would the result be?
| 10 |
https://law.stackexchange.com/questions/89272/if-the-jury-considers-evidence-that-should-be-discarded-in-the-us-what-would-th
|
CC BY-SA 4.0
|
<p>This comes from the movie <a href="https://www.imdb.com/title/tt25377462/" rel="noreferrer">A Guilty Conscience</a>, which may be one of the best movies of the past 20 years in Hong Kong and its box office is the highest ever.</p>
<p><strong>Movie Spoiler Warning</strong></p>
<p>What if the defendant's lawyer obtained some evidence that can prove the defendant not guilty, but he obtained it illegally (such as by electronic eavesdropping).</p>
<p>Now the Jury all hear that evidence (the recording and and perhaps even the video). However, since the judge said it is illegally obtained, the judge told the Jury they should discard this evidence.</p>
<p>So, now the Jury is faced with 2 choices:</p>
<ol>
<li>Discard the evidence, and without it, now the defendant will have a death sentence or life prison</li>
<li>Take that evidence into consideration, which is to ignore the judge, and set the defendant free</li>
</ol>
<p>What if the Jury as a whole chooses option 2, which is opposite of what the Judge told them to do. Then what will happen — will the defendant simply be set free?</p>
<p>(and as a side note, do you know if this applies to most other parts of the world? And if the Jury knows the defendant is not guilty but he or she is sentenced to a death sentence or life prison, isn't that outright absurd? But I guess I will ask it as a separate question)</p>
| 89,272 |
[
{
"answer_id": 89285,
"body": "<h2>The jury would never hear the recording</h2>\n<p>The recording and its provenience would be provided to the prosecution who would, rightly, have issues with its admissibility. The defence and prosecution would make submissions on this to the judge, normally well before the trial date and the empaneling of the jury. If the recording had genuinely emerged during the trial, such submissions would be made without the jury seeing them. The submissions would typically be in writing rather than verbal. If the judge decided the evidence was inadmissible <em>the jury would never see it and never know of its existence</em>.</p>\n<p>If the jury somehow found out about it anyway, this would be grounds for an immediate mistrial and we would start again with a new jury.</p>\n<h2>Illegally obtained evidence is not automatically inadmissible</h2>\n<p>Hong Kong is not the United States - admitting or excluding illegally obtained evidence is at the discretion of the judge based on where the interests of overall justice are best served. In any event, the absolute prohibition in the US applies only to <em>prosecution</em> evidence - evidence illegally obtained by the defence is subject to the same rules as in Hong Kong; the judge decides.</p>\n",
"score": 22
},
{
"answer_id": 89274,
"body": "<p>If the jury brings in a verdict of "not guilty", even if they do so based on evidence that they should not have considered or for some other improper reason, the defendant is released and cannot be retried. This is required by the <a href=\"https://en.wikipedia.org/wiki/Double_Jeopardy_Clause\" rel=\"noreferrer\">Double Jeopardy clause</a> of the Fifth Amendment.</p>\n<p>The only known exceptions, when retrial was allowed after a "not guilty" verdict, are a very small number of cases in which the judge or jury was actually bribed by the defendant. See for instance the <a href=\"https://law.justia.com/cases/federal/appellate-courts/F3/138/302/473725/\" rel=\"noreferrer\">Aleman case</a>.</p>\n<p>If the judge finds out about the improper consideration <em>before</em> the verdict is returned, e.g. because some other juror reports it and the judge is able to confirm it, then the judge may grant a <a href=\"https://en.wikipedia.org/wiki/Trial#Mistrials\" rel=\"noreferrer\">mistrial</a>. The trial is effectively cancelled, but the defendant is not released, and a new trial is started from scratch, assuming the prosecution wishes to go to the trouble and expense of continuing.</p>\n<hr />\n<p>A side question is raised as to whether the illegally obtained evidence actually <em>is</em> inadmissible as a matter of law, i.e. whether the judge's ruling was correct. For that, see <a href=\"https://law.stackexchange.com/questions/62348/can-illegally-obtained-evidence-be-used-in-favor-of-the-defendant-in-a-criminal\">Can illegally obtained evidence be used in favor of the defendant in a criminal case?</a></p>\n",
"score": 18
},
{
"answer_id": 89279,
"body": "<p>The prior question is whether the evidence is <em>admissible</em>. An attorney might wish to introduce some evidence but the judge may find that the evidence is not legally admissible for some reason (fruit of the poison tree, for example). An attorney might, nevertheless, blurt out something, in which case the judge will instruct the jury to ignore that blurting. However, it well known that a bell cannot be unrung. Chronologically speaking, the first step is to prevent introduction of the evidence by ruling that it is inadmissible. If statement are made that sneak in illegal claims, then the judge will tell the jury to ignore that claim, and could declare a mistrial in an egregious case.</p>\n",
"score": 5
},
{
"answer_id": 89342,
"body": "<p>Aside from other answers... There is also a duty to stop a prosecution once exonerating facts are known.</p>\n<p>So if the lawyer simply sits in a conference with the D.A. and plays the recording, the D.A. should say "holy smoke! We did not know that!" And that that point they have a duty to withdraw the charges.</p>\n<p>The duty applies to when the facts are known, not when they are admissible.</p>\n<p>None of this requires any business in open court. The prosecution can simply walk in and way "we withdraw all charges, your honor" with no explanation needed and the defendant walks. The victim's family would need to be told "New evidence" etc.</p>\n",
"score": 4
},
{
"answer_id": 89277,
"body": "<p>If the defendant's evidence is obtained illegally by a lawyer on the defense team, the evidence may still be used in the Defendant's own defense. It would be evidence against the defense lawyer in a separate trial against the lawyer for a separate eaves dropping offense. Additionally, if it comes out that the defendant was involved or approved of the illegal act in procuring the evidence, the defendant might be tried for illegal actions taken to procure the evidence, which is a separate crime and incident from the original crime he was on trial from.</p>\n<p>Additionally, most laws about consent for recording in the U.S. do have exceptions for recordings made in an effort to expose a crime, so any electronic recording procured in this manner that exonerates the defendant could be legal if it implicates the person who was otherwise illegally recorded in a crime.</p>\n<p>Finally, if this was illegally obtained, the prosecution must by law disclose it to the defendant. In the United States, the Prosecution must show all evidence it has collected, especially if such evidence would be exculpatory in nature (i.e. Evidence of the Defense's innocence) in order to comply with Constitutional Protections of the Defense's right to examine all evidence against him in a trial. So in the situation where a defense attorney breaks the law in order to record a conversation that exonerates his client, the prosecution must disclose to the defendant that new evidence has come to light in as timely a manner as possible.</p>\n<p>This also ignores the process for introducing evidence. The discussion to allow or disallow new evidence to come forward is held away from the jury to preserve their unbiased status. Thus the jury won't know anything about the new evidence or what it proves or disproves.</p>\n<p>If the judge refuses to allow it, especially if the evidence is exculpatory, the defendant can appeal the decision if he is found guilty. If it's reasonable that the jury would have changed the verdict had this evidence been introduced. If the appeal finds in the Defendant's favor, the original trial is declared a mistrial. The Prosecution may either refile or drop the case at this point, but the original trial is treated as not happening.</p>\n",
"score": 3
},
{
"answer_id": 89328,
"body": "<p>You are asking about "evidence that should be discarded" but then talk about "evidence that was gathered illegally". That's not the same thing at all. Obviously if the evidence should be disregarded, then it must be disregarded. That happens when the police does in illegal search of your home and finds evidence against you, it must be discarded.</p>\n<p>But in your situation, does the evidence have to be discarded? I wouldn't think so. Say the police does an illegal search of your home and finds evidence that you are innocent. That must not be discarded. Or evidence that your lawyer found by illegal actions. That must not be discarded, but the lawyer might go to court later for his illegal actions (same as the police officers). You got evidence by torturing a witness? That <em>must</em> be discarded because it is very unlikely to be true evidence.</p>\n<p>In your circumstances, I would hope the judge would not tell the jury to ignore the evidence. But if he does, which I would consider wrong, then they have to ignore it.</p>\n",
"score": 0
},
{
"answer_id": 89349,
"body": "<p>In the situation you described, if the jury chooses to consider the illegally obtained evidence and finds the defendant not guilty as a result, the judge may still choose to overrule the jury's decision and impose the original sentence. The judge may argue that the evidence was obtained illegally and therefore cannot be considered in the case.</p>\n<p>However, if the judge agrees with the jury's verdict, the defendant could be acquitted and set free.</p>\n<p>The legality of using illegally obtained evidence in court varies by jurisdiction. In some places, evidence obtained illegally may be excluded from trial and cannot be considered by the jury. In other places, such evidence may be admissible in certain circumstances, such as if the defendant's constitutional rights were violated.</p>\n<p>In cases where the defendant is sentenced to a harsh punishment despite evidence of their innocence, it can indeed seem absurd. However, it is unfortunately not uncommon for wrongful convictions to occur due to various factors, such as prosecutorial misconduct, witness misidentification, and false confessions. It is important for the justice system to continue to improve and work towards minimizing such injustices.</p>\n",
"score": 0
}
] |
[
"united-states",
"evidence",
"jury",
"rules-of-evidence"
] |
Time limits in requesting discovery?
| 2 |
https://law.stackexchange.com/questions/89343/time-limits-in-requesting-discovery
|
CC BY-SA 4.0
|
<p>Is there a time limit for an opposing side to ask for discovery in a civil suit in MA?</p>
| 89,343 |
[
{
"answer_id": 89346,
"body": "<p>Yes. The court will at some point establish a case-management schedule, which will tell the parties when they need to complete discovery.</p>\n",
"score": 2
}
] |
[
"discovery",
"time-periods"
] |
When is copyright infringement committed?
| 0 |
https://law.stackexchange.com/questions/24517/when-is-copyright-infringement-committed
|
CC BY-SA 3.0
|
<p>I sometimes get confused about copyright. I've heard two things</p>
<ol>
<li>The abstract idea is never protected, so you can 'copy' the idea behind someone else's work and use it as your own. </li>
<li>Just changing the names/wording of someone else's work doesn't make it your own. </li>
</ol>
<p>I don't get how 1. and 2. are compatible. If you were to actually change the fundamental structure/inner workings, then it would be a different thing all together?
For example a lot of the computer programming code online isn't licensed to actually be used and is only intended to be learned from. How do you 'learn' from another's source code without copying it, as if you were to change it then it would be a different algorithm and thus a different program?</p>
<p>Obviously most things in life we learn, yet we don't always go around citing where we learned it from.</p>
| 24,517 |
[
{
"answer_id": 24523,
"body": "<p>If you <em>change</em> someone else's work, then you create a derived work, which according to copyright law requires permission of the copyright owner. The point is that you start with someone else's work and change it. </p>\n\n<p>If you create your work from scratch, and without referring to someone else's work, then it is not a derived work and not copyright infringement. Taking someone else's idea - not their work - and writing something based on it is fine. </p>\n\n<p>When you see code online, you can copy it, paste it into your project, modify it to fit your needs, and you get a derived work, which is copyright infringement if you don't have permission of the copyright owner. If you see the code online, study it, figure out how it works, and then based on your new knowledge add new code to your project, that is your own work. No copyright infringement. </p>\n\n<p>Do you notice the word \"copy\" in \"copyright\"? It's there because copying is the essential part. It's not the end result that counts, it's how you get there. Like getting from A to B by walking through my garden might be trespassing, while getting from A to B by walking around my home and garden would be no legal problem. As I said, it's how you get there. </p>\n",
"score": 1
},
{
"answer_id": 32519,
"body": "<ul>\n<li><p>If you make an exact (or nearly exact) reproduction of a copyrighted work, that is clearly a copy and you have infringed its copyright unless you have permission (or an exception such as fair use applies). It does not matter if the reproduction is done mechanically or via memory.</p>\n</li>\n<li><p>If you take a copyrighted work, and make small mechanical changes, leaving the structure intact (say you change all the occurrences of 'John' to 'Fred' in a novel, or you translate the novel faithfully into another language) you have created a derivative work, and this still infringes copyright unless you have permission.</p>\n</li>\n<li><p>If you take <strong>ideas</strong> from a copyrighted work, and use them to build a <strong>new</strong> work, that work does not infringe.</p>\n</li>\n</ul>\n<p>Exactly where the line gets drawn between a paraphrase and a new work is a judgement call. In general if there is a close part-by-part structural similarity between the old and new works, it is probably a paraphrase and thus a derived work.</p>\n<p>If the ideas come from multiple different sources, that argues for a new work rather than a derived work. Relying on facts from several different sources, rather than taking everything from a single source, suggests research rather than copying.</p>\n<p>When handling software source code, particularly short segments of code implementing a single algorithm, such as might be written for a text on programming, sometimes the ideas more or less dictate the expression. When an expression is obvious and there are few options on how to create it, it may not be protected by copyright. The literary term used for this principle is <a href=\"https://en.wikipedia.org/wiki/Sc%C3%A8nes_%C3%A0_faire\" rel=\"nofollow noreferrer\"><em>Scènes à faire</em></a> ("required scenes"). This is closely related to the <a href=\"https://en.wikipedia.org/wiki/Idea%E2%80%93expression_divide#Merger\" rel=\"nofollow noreferrer\">"Merger doctrine"</a>. When the expression has merged with the idea so that there is only a single way or only a few reasonable ways to express the idea, the expression is considered part of the idea and is not protected by copyright.</p>\n<p>Facts are not protected by copyright, although the expression of a fact may be. Lists of facts in a natural or obvious order are not protected either. Lists selected and arranged in a creative order will be protected.</p>\n<p>For example, a biography reading something like:</p>\n<blockquote>\n<p>John Jones was born in 1948. He grew up in Anytown. He Graduated from Anytown HS in 1966. John attended BigU university. He graduated with a BS in computer sciennce in 1971. John Moved to New City. He worked as a systems programmer for DynaTech. He invented several new algorithms, including the much used Mastersort algorithm. In 1998 John won the Turing Award. John died in 2012.</p>\n</blockquote>\n<p>This is a very basic biography, in strictly chronological order, listing facts with no creative expression. Copying this paragraph would not infringe copyright. It is not original enough for protection. But if it were expanded to several pages which told the story of John's life in expressive detail, including anecdotes of his time at BigU, what his co-workers at DynaTech thought of him, and how other famous developers regarded him and his work, that would almost surely be an original work that could not be copied without permission.</p>\n",
"score": 1
}
] |
[
"copyright",
"intellectual-property",
"software"
] |
Is panhandling protected under the 1st amendment?
| 1 |
https://law.stackexchange.com/questions/89341/is-panhandling-protected-under-the-1st-amendment
|
CC BY-SA 4.0
|
<p>Jeff Grey is a 1st amendment auditor. He goes to different PUBLIC locations with a sign that reads "god bless the homeless veterans". He does not ask for money but simply states the same thing the sign reads. Many times when the police show up. They claim he is panhandling to which he states that even if he were panhandling, it is protected under the 1st amendment and has been taken to the supreme court.</p>
<p><a href="https://www.youtube.com/watch?v=eur0euqoEgQ" rel="nofollow noreferrer">Video example of one of his interactions.</a></p>
<ul>
<li>Is panhandling protected under the 1st amendment?</li>
<li>Are city/county ordinances that ban panhandling illegal?</li>
</ul>
| 89,341 |
[
{
"answer_id": 89344,
"body": "<p>In Washington, at the state level, there is no law against "panhandling". I found a small town that has an <a href=\"https://www.codepublishing.com/WA/Sultan/html/Sultan08/Sultan0812.html\" rel=\"nofollow noreferrer\">ordinance related to "panhandling"</a>, which is defined:</p>\n<blockquote>\n<p>“Panhandling” and all derivative forms of “solicit” mean to ask, beg,\nor plead, whether orally or in a written or printed manner, for the\npurpose of immediately receiving contributions, alms, charity, or\ngifts of items of value for oneself or another person.</p>\n</blockquote>\n<p>There are various prohibitions. One is based on designated places (8.12.030(1))</p>\n<blockquote>\n<p>It is unlawful for any person to solicit another person within 15 feet\nof:</p>\n<p>a. An automated teller machine; or b. The entrance of a building,\nunless the solicitor has written permission from the owner or\noccupant; or c. An exterior public pay telephone; or d. A self-service\ncar wash, unless the panhandler has written permission from the owner\nor occupant of the business; or e. A self-service fuel pump, unless\nthe panhandler has written permission from the owner or occupant of\nthe business; or f. A public transportation stop; or g. Any parked\nvehicle as occupants of such vehicle enter or exit such vehicle.</p>\n</blockquote>\n<p>Also, (2)</p>\n<blockquote>\n<p>It is unlawful for a person to panhandle from another person:</p>\n<p>a. On private property, unless the panhandler has written permission\nfrom the owner or occupant;\nb. After sunset or before sunrise;\nc. In any public transportation facility or vehicle.</p>\n</blockquote>\n<p>8.12.040 then outlaws panhandling by coersion:</p>\n<blockquote>\n<p>It is unlawful for a person to panhandle by coercion</p>\n</blockquote>\n<p>Coersion is a technical term: it means, in that town,</p>\n<blockquote>\n<ol>\n<li><p>To approach or speak to a person in such a manner as would cause a reasonable person to believe that the person is being threatened with\neither imminent bodily injury or the commission of a criminal act upon\nthe person or another person or upon property in the person’s\nimmediate possession;</p>\n</li>\n<li><p>To persist in panhandling after the person solicited has given a negative response;</p>\n</li>\n<li><p>To block, either individually or as part of a group of persons, the passage of a solicited person;</p>\n</li>\n<li><p>To engage in conduct that would reasonably be construed as intended to compel or force a solicited person to accede to demands;</p>\n</li>\n<li><p>To use violent or threatening gestures toward a person;</p>\n</li>\n<li><p>Willfully providing or delivering, or attempting to provide or deliver, unrequested or unsolicited services or products with a demand\nor exertion of pressure for payment in return; or</p>\n</li>\n<li><p>To use profane, offensive, or abusive language; this is inherently likely to provoke an immediate violent reaction.</p>\n</li>\n</ol>\n</blockquote>\n<p>If you replace "asking for money" with "advocate a political position", much of this law would be unconstitutional, for example the "designated place" parts which describe pretty much "where other people might be, in that town". The coercion parts might pass muster except for #2 and #7.</p>\n<p>One might argue that begging for money is not the kind of viewpoint-expression that the First Amendment protects, but in <a href=\"https://supreme.justia.com/cases/federal/us/444/620/\" rel=\"nofollow noreferrer\">Schaumberg v. Citizens for a Better Environment</a> the court held that "Charitable appeals for funds, on the street or door to door, involve a variety of speech interests -- communication of information, dissemination and propagation of views and ideas, and advocacy of causes -- that are within the First Amendment's protection". However, in <a href=\"https://supreme.justia.com/cases/federal/us/505/672/\" rel=\"nofollow noreferrer\">International Society for Krishna Consciousness v. Lee</a> allowed prohibition of panhandling in the airport. But, crucial to their finding is that an airport of not a public forum, whereas the streets of Sultan <em>are</em> a public forum. One factor that distinguishes classical panhandling from other kinds of solicitations is that in the ISKCON and Better Environment cases, the purpose of the solicitation was to support a religion / viewpoint, which is not the case with the usual panhandler. But then, the distinction "money for others" vs. "money for me" is the embodiment of a viewpoint difference, and the First Amendment protects the "money for me" viewpoint just as it protects the "money for others" viewpoint.</p>\n<p>I suspect that if someone had standing and the legal wherewithal to challenge that law that the ordinance would be struck down at least in part (especially clause 2 or "coercion"; and all of the public-property designated places.</p>\n",
"score": 2
}
] |
[
"united-states",
"first-amendment",
"panhandling"
] |
What significance do specified damages figures have in a civil suit?
| 0 |
https://law.stackexchange.com/questions/89331/what-significance-do-specified-damages-figures-have-in-a-civil-suit
|
CC BY-SA 4.0
|
<p>The suit filed in Los Angeles over the 1968 Romeo and Juliet film is reported in the Guardian which says:</p>
<blockquote>
<p>Damages are being sought “believed to be in excess of $500m”.</p>
</blockquote>
<p>What is the significance of the figure provided by the party seeking damages? I'm not asking about the merit or non-merit of this case, but if it is successful, what are the chances of the awarded damages actually being or even approximating the figure that they had given? And how would it have been arrived at? Why not give something more like 17 quintillion instead?</p>
<p>Is there any advantage to specifying a figure that is being sought rather than seeking unspecified damages?</p>
| 89,331 |
[
{
"answer_id": 89337,
"body": "<p>There is some significance to the amount claimed, but not much and mostly at the low end.</p>\n<ul>\n<li><p>The existence of some damages caused by wrongful conduct is an element of some, but not all, claims for relief in lawsuits.</p>\n</li>\n<li><p>In some courts, the amount claimed in a complaint determines the filing fee for the complaint filed.</p>\n</li>\n<li><p>Limited jurisdiction courts usually cap the amount of relief that can be obtained in that forum, and a counterclaim in excess of that amount often results in the removal of a case to a forum with jurisdiction over the counterclaim.</p>\n</li>\n<li><p>Diversity jurisdiction in federal court requires an amount in controversy in excess of $75,000.</p>\n</li>\n<li><p>Class action cases seeking more than $5,000,000 (for the class as a whole) must be brought in federal court unless all plaintiffs and all defendants are from the same state.</p>\n</li>\n<li><p>Sometimes simplified rules of procedure are inapplicable to cases in excess of a specified amount in controversy. For example, in Colorado cases brought in its trial courts of general jurisdiction, simplified civil procedure rules apply if the amount in controversy is less than $100,000.</p>\n</li>\n<li><p>The federal rules of civil procedure and most state rules of civil procedure require "special damages" to be pleaded with specificity in the complaint to be recovered. There are several definitions of this term that are used. <a href=\"https://www.google.com/search?q=special%20damages&oq=special%20damages&aqs=chrome..69i57j0i512l9.2020j0j7&sourceid=chrome&ie=UTF-8\" rel=\"nofollow noreferrer\">One of them</a> is that: "In contract law, special damages (also called consequential damages) refer to irregular damages such as physical injuries during a breach of contract, but general damages would refer to the damages expected from the contract being breached."</p>\n</li>\n<li><p>In most cases, a default judgment which is entered because a defendant fails to respond to a complaint filed in court and duly served upon a defendant over which it has jurisdiction may not exceed the amount claimed in the complaint. The complaint can't be amended to claim more damages after it is filed and served. This requirement arguably has constitutional due process dimensions.</p>\n</li>\n<li><p>In arbitration under the American Arbitration Association's rules, certain cases to which other arbitration rules do not apply are presumptively subject to the AAA Commercial Rules if the amount in controversy is in excess of $500,000.</p>\n</li>\n<li><p>In cases where a defendant has both primary liability insurance and also "excess" or "umbrella" insurance, a claim in excess of the limits of insurance under the primary liability insurance policy immediately trigger the involvement of the excess or umbrella insurer.</p>\n</li>\n<li><p>The amount of damages claimed in a lawsuit is one important factor in determining whether a lawsuit has to be disclosed in the public disclosures of a publicly held company, or in the prospectus to an initial public offering of securities in a company, or in a private sale of the securities of a closely held company in a private placement memorandum.</p>\n</li>\n<li><p>The amount of damages claimed in a lawsuit is generally the initial value of the claim of the person bringing the lawsuit in a bankruptcy filed by the defendant unless and until the value of the claim is challenged in the bankruptcy court process.</p>\n</li>\n<li><p>The amount of damages claimed in a lawsuit is one factor to be considered in whether a transfer of property from a defendant to a third-party for less than substantially equivalent value is a fraudulent transfer.</p>\n</li>\n<li><p>A claim of damages in a lawsuit made without reasonable factual support can be a basis upon which an attorney filing the lawsuit may be sanctioned for misconduct by the court in which the case in pending.</p>\n</li>\n</ul>\n<p>Also, some states, including Colorado, prohibit filing a claim for a specified dollar amount in many circumstances.</p>\n<p>Some states, including Colorado, allow certain kinds of damages (e.g., punitive damages) to be requested only in an amended complaint filed after some information has been exchanged by the parties after the lawsuit is filed.</p>\n",
"score": 2
}
] |
[
"united-states",
"damages",
"any-jurisdiction",
"civil-damages"
] |
Why did French have such a lasting influence on the English legal lexicon?
| 0 |
https://law.stackexchange.com/questions/89311/why-did-french-have-such-a-lasting-influence-on-the-english-legal-lexicon
|
CC BY-SA 4.0
|
<p>It seems so pervasive but, still confusing that we don't simply use French altogether for legal purposes, which I suppose was done at one time. But why were certain terms kept from French, while the rest of the language used reverted to English? It would make a bit of sense if there had been no terms available in English to refer to e.g. corporate bodies prior to the Normans' arrivals, but that doesn't seem terribly plausible.</p>
| 89,311 |
[
{
"answer_id": 89326,
"body": "<h2>Because the Normans spoke French.</h2>\n<p>The English Nobility didn't speak English till the 14th century at all. Why? Because <a href=\"https://linguistics.stackexchange.com/questions/4178/why-did-england-not-maintain-french-as-a-spoken-language\">the Norman Nobility spoke <strong>French</strong></a> till the whole debacle of the <a href=\"https://en.wikipedia.org/wiki/Hundred_Years%27_War\" rel=\"nofollow noreferrer\">Hundred Years' War</a> was halfway through.</p>\n<p><a href=\"https://en.wikipedia.org/wiki/William_the_Bastard\" rel=\"nofollow noreferrer\">William The Bastard</a> left only <strong>very</strong> few nobles from before in power when he landed in 1066 and delivered a smackdown on the previous rulers. He established a whole new nobility and based on his orders (<strong>in French</strong>), this also formalized most of the <a href=\"https://www.britannica.com/topic/common-law\" rel=\"nofollow noreferrer\">Common law between 1066 and the 100 years war</a>. It was <em>the Norman nobility</em> talking, and they had the text written in French and Latin, the <em>civilized</em> languages, not the gibberish <em><a href=\"https://en.wikipedia.org/wiki/Old_English\" rel=\"nofollow noreferrer\">Old English/Anglo-Saxon</a></em> and <em><a href=\"https://en.wikipedia.org/wiki/Norse\" rel=\"nofollow noreferrer\">Norse</a></em> that was used by the peasants. Any English you and me would understand wouldn't even exist for another <strong>200-300 years</strong>. Or to cite the <a href=\"https://www.britannica.com/topic/common-law\" rel=\"nofollow noreferrer\">Britannica</a>:</p>\n<blockquote>\n<p><strong>The Normans spoke French</strong> and had developed a customary law in Normandy. They had no professional lawyers or judges; instead, literate clergymen acted as administrators. Some of the clergy were familiar with Roman law and the canon law of the Christian church, which was developed in the universities of the 12th century. Canon law was applied in the English church courts, but the revived Roman law was less influential in England than elsewhere, despite Norman dominance in government. This was due largely to the early sophistication of the Anglo-Norman system. <strong>Norman custom was not simply transplanted to England; upon its arrival, a new body of rules, based on local conditions, emerged.</strong></p>\n</blockquote>\n<h2>English changed.</h2>\n<p>Would you understand Beowulf from about 700-1000 AD, which is Old English?</p>\n<blockquote>\n<p>Hwæt. We Gardena in geardagum,\nþeodcyninga, þrym gefrunon,\nhu ða æþelingas ellen fremedon.</p>\n</blockquote>\n<p>Between this and modern English is a very heavily French-influenced English called "Middle English". This still is mostly illegible to a modern reader, but you find this from about 1066 to the 15th century. Only after the Hundred Years war ended, active steps were taken to remove French from the courts and language, which would result in modern English - yet the influence was extreme in the legal world then.</p>\n<p>To come back to the example above: I bet you do understand the <a href=\"https://FRANCIS%20B.%20GUMMERE\" rel=\"nofollow noreferrer\">Francis B Gummere</a> (died 1919) translation into modern English, even if it feels a little archaic to us in 2023:</p>\n<blockquote>\n<p>LO, praise of the prowess of people-kings\nof spear-armed Danes, in days long sped,\nwe have heard, and what honor the athelings won!</p>\n</blockquote>\n",
"score": 5
},
{
"answer_id": 89332,
"body": "<p>At the beginning of the Norman occupation, regardless of how the noble may have talked casually (in French), the language of law and government was Latin. It was not until the movement to centralized "common law" and the onset of French-language statutes around 1300 that French gained a place in the English legal scene. An example is the\n<a href=\"http://www.languageandlaw.org/TEXTS/STATS/PLEADING.HTM\" rel=\"noreferrer\">Pleading in English Act 1362</a>, written in English and French, where it is decreed that pleadings (the stuff that happens in court) shall be in English because that is what the people understand, but records shall be in Latin. English became the official language of government during the reign of Henry V at the beginning of the 15th century. The point to be noticed here is that there has long been an accepted split between the language of the rulers and the language of the masses. Amongst the rulers, the two dominant languages were Latin and French, but French was "how people talked", and did not have the majestic status of Latin.</p>\n<p>During this period, important legal doctrine were developed. Essential to any effective doctrine is a name. Legal doctrines were of course created by upper-class folks who spoke French, English and Latin, with a decline in knowledge of Latin and French over the years. Once a legal concept is named, it is difficult though not impossible to change the name, and thus "fee simple" survives to this day because no Germanic expression was developed to exactly identify this legal concept.</p>\n<p>The practice of copying standard forms was a major contributor to the preservation of French in legal language. The underlying idea is that if you can write a legal document that works for a certain purpose in court, you would be well-advised to re-use the expressions of those documents the next time (befitting the status of "precedent" in English law – follow the law as previously identified). These documents would contain French expressions because "tort" and "guarantee", for instance, were well understood concepts, as identified in earlier legal writings (which might be in French – there are also plenty of Latin terms do preserved in legal language). These word were etymologically derived from French, but became part of English, just as many other terms (war, cabbage, pork, poultry) are etymologically from French but they are simple ordinary English words now.</p>\n<p>There were no corporations in the modern legal sense in Anglo-Saxon England, so there was no Old English term for "articles of incorporation". The legal concept has to first exist, then we can worry about the name for it, and which language we use to refer to it.</p>\n",
"score": 5
}
] |
[
"england-and-wales",
"legal-history",
"france"
] |
Why is a lawsuit a "suit"?
| 10 |
https://law.stackexchange.com/questions/89333/why-is-a-lawsuit-a-suit
|
CC BY-SA 4.0
|
<p>Where does the term "law suit" for a legal case come from? It seems to perhaps only be used to refer to civil cases, however. Also, is it a purely American (USA) term or does it also find use elsewhere?</p>
| 89,333 |
[
{
"answer_id": 89334,
"body": "<p>The historical root is Old French sieute, sivre meaning "follow, pursue". You pursue your defendant in court. This is an ordinary legal term in post-Norman England. The root is also invoked every time the government pro<em>secu</em>tes a person for a crime. The expression "law suit" is more modern, being a rearrangement of "suit at law". An early attestation in the legal sense is (1325) <em>Statutes of Realm (Rawl. B.520) (2011) v. 6</em></p>\n<blockquote>\n<p>Ant ȝif a ne cometh noȝt, þanne a sullen ben iiuged ase for ateint,\nant sullen ȝelde duble, þoru þe <em>siwte</em> of þe king, to hoem þat\nhabbeth ihaued þene harm.</p>\n</blockquote>\n",
"score": 24
}
] |
[
"legal-terms"
] |
Is MailChimp compliant with GDPR?
| 2 |
https://law.stackexchange.com/questions/77737/is-mailchimp-compliant-with-gdpr
|
CC BY-SA 4.0
|
<p>In light of recent news of Facebook not being compliant with GDPR because it processes data in USA and not in europe, would a website using MailChimp for newsletter be GDPR compliant since it is based in USA and holds the data there?</p>
<p>Their website claims that they are compliant with GDPR, but just looking at their cookie notice that has the full cookies preselected (and the selection is hidden) shows that isn't completely correct. But their website not being completely correct doesn't mean their service isn't, that's why I'm asking the question</p>
| 77,737 |
[
{
"answer_id": 77745,
"body": "<p>Mailchimp as a company is probably mostly GDPR-compliant. But this doesn't mean that <em>using</em> the Mailchimp service would be compliant as well.</p>\n<p>This is because the GDPR has different compliance obligations for “data controllers” and “data processors”. The data controller is responsible for the compliance of all processing activities they determine the purposes and means for, regardless of whether those activities are actually outsourced. In contrast, the primary responsibility of a data processor is to only use the data as instructed by the controller, but not for the processor's own purposes.</p>\n<p>So Mailchimp probably doesn't abuse its customer's data, and offers an Art 28 GDPR conformant data processing agreement as part of its contracts. Mailchimp also offers features that assist with related privacy laws, such as collecting proper consent as required by the EU ePrivacy Directive.</p>\n<p>And Mailchimp has a page about <a href=\"https://mailchimp.com/help/mailchimp-european-data-transfers/\" rel=\"nofollow noreferrer\">European data transfers</a>. This is where it gets tricky. Not the Mailchimp service, but the customer is the data exporter / data controller and is responsible for compliance with Chapter V of the GDPR. The data controller must decide <em>themselves</em> whether the international transfer into the US is legal. Briefly, the GDPR allows the following grounds for an international transfer of personal data:</p>\n<ul>\n<li>target country has an adequacy decision from the EU – no, because the EU–US Privacy Shield was invalidated in the <em>Schrems II</em> ruling</li>\n<li>Standard Contractual Clauses (SCCs) – maybe, see below discussion</li>\n<li>Binding Corporate Rules – not applicable</li>\n<li>exceptions, including explicit consent or only occasional transfers – not applicable</li>\n</ul>\n<p>The Mailchimp guide about EU data transfers correctly states that the <em>Schrems II</em> decision only invalidated the Privacy Shield, and did not invalidate the concept of SCCs. That means it is still legal to use SCCs as a basis to transfer personal data in non-EU countries. But this doesn't imply that SCCs can serve as a basis for transferring personal data specifically to Mailchimp in the US – a case by case analysis is necessary that determines whether security of processing is guaranteed and whether data subjects would have effective legal remedies if their rights were breached.</p>\n<p>It now happens that exactly the same reasons that caused the Privacy Shield to be invalid must also make us doubt whether SCCs can be valid in their place. The problem with transfers to the US never was the risk that the recipient would sell the personal data to the highest bidder, but that the US-based company is subject to US spy laws like FISA 702 and EO 12333 that do not provide effective legal remedies for foreign affected persons. (Mailchimp explicitly confirms that it is subject to those spy laws as an “electronic communication service”.)</p>\n<p>In the wake of the <em>Schrems II</em> ruling the EDPB has published a document with recommendations for supplemental safeguards that could make SCCs permissible, but these recommendations (like end to end encryption, or only transferring pseudoymized data) cannot work for US-based cloud services such as Mailchimp. Some (such as the US government) have argued that <em>Schrems II</em> was based on outdated information, but this standpoint is not shared by European regulators.</p>\n<p>So, the data controller – the Mailchimp customer – has to make their own judgement about this international transfer.</p>\n<ul>\n<li><p>If SCCs combined with Mailchimp's supplemental measures provide sufficient safeguards, then the international transfer is legal and GDPR-compliant. Mailchimp offers all the necessary paperwork such as DPAs, SCCs, and so on.</p>\n</li>\n<li><p>If there are no sufficient safeguards, then the transfer is clearly illegal.</p>\n</li>\n</ul>\n<p>My personal opinion is that Mailchimp's supplemental measure fall far short of what would be required per the EDPB recommendations. Lower courts in the EU now routinely consider all transfers to the US as illegal. A company using Mailchimp was also an early target of a post-<em>Schrems II</em> enforcement action, though it wasn't fined since it immediately stopped using the service.</p>\n<p>So while it's not possible to <em>definitely</em> say that using Mailchimp would be a GDPR-violation, it's very difficult to argue that such use could be compliant.</p>\n",
"score": 4
}
] |
[
"gdpr",
"european-union",
"email-marketing"
] |
What is the minimum sentence for murder in Japan?
| 11 |
https://law.stackexchange.com/questions/89313/what-is-the-minimum-sentence-for-murder-in-japan
|
CC BY-SA 4.0
|
<p>In the Yakuza series, several characters are sent to jail for murder, but it's only ever for 10-15-ish years. I was wondering if this was at all realistic, since I'm only aware of people going to jail for murder for 50+ years.</p>
<p>For the record, the relevant jurisdiction is Tokyo, and the murders were evidently committed without justification (e.g. not in self-defence).</p>
| 89,313 |
[
{
"answer_id": 89314,
"body": "<p><a href=\"https://www.japaneselawtranslation.go.jp/en/laws/view/3581#je_pt2ch28at1\" rel=\"noreferrer\">Article 199 of the Penal Code</a>, as it appears from changes up to 2017, says:</p>\n<blockquote>\n<p>人を殺した者は、死刑又は無期若しくは五年以上の懲役に処する。<p>A person who kills another person is punished by the death penalty or imprisonment for life or for a definite term of not less than 5 years.</p>\n</blockquote>\n<p>This is for homicide as opposed to other related crimes, and there are also effects on sentencing for someone who is guilty of multiple offences, for example. The term can be halved if there are sufficient extenuating circumstances, so 2.5 years seems to be the minimum. In any case, 10-15 years is within the range.</p>\n",
"score": 22
}
] |
[
"criminal-law",
"murder",
"law-in-fiction",
"sentencing",
"japan"
] |
What is the legality of distributing free software that displays another website page after automated reformatting and editing
| 0 |
https://law.stackexchange.com/questions/89315/what-is-the-legality-of-distributing-free-software-that-displays-another-website
|
CC BY-SA 4.0
|
<p>I recently noticed that local news sites are terrible in that they transfer ludicrous amounts of data, never stop transferring data, and load an obnoxious number of ads and pop ups. As a result they are often very slow to load and reading the articles can be a challenge and is hardly pleasant. Disabling JavaScript helps but isn't a panacea.</p>
<p>I therefore decided to write some simple code (less that 75 lines of JavaScript and HTML) which accepts a URL (eg for a local news article), loads the content, and then: removes ads; "read more" sections; "related articles" sections; pop ups; "most read" sections; the comments section; and lays out the article nicely. The code is a single HTML file that runs locally.</p>
<p>My assumptions are that: if I hosted the page on a publicly accessible web server I could/would be sued for using the local news sites' content without permission; that making no money from the service would be irrelevant; that this is because of Copyright. I should be clear that the retrieving of the news articles is done by the client rather than the server.</p>
<p>My questions then are:</p>
<ol>
<li>Can I freely distribute the code publicly on, say, GitHub so that other people can download it and use/run it themselves without any party facing any sort of legal action?</li>
<li>Alternatively, if I were to host the site on a publicly accessible web server, and let users enter URLs themselves - rather than hard coding in URLs to specific sites, could/would I face legal action?</li>
</ol>
| 89,315 |
[
{
"answer_id": 89318,
"body": "<p>Hosting copyrighted material on your servers is probably a bad idea, but software that changes how such material is displayed is likely fine – and there already are tools doing similar things.</p>\n<p>For example, the news publisher <em>Axel Springer</em> sued adblocker maker <em>Eyeo</em> for copyright infringement in Germany in 2021, since the adblocker manipulates the contents of a web page. This was rejected by the court. (See <a href=\"https://www.theregister.com/2022/01/19/ad_blockers_copyright_germany/\" rel=\"nofollow noreferrer\">summary by The Register</a> which also provides US context, <a href=\"https://eyeo.com/press-release/eyeo-wins-landmark-copyright-court-decision-protects-digital-rights-and-sets\" rel=\"nofollow noreferrer\">summary by Eyeo</a>, <a href=\"https://openjur.de/u/2384202.html\" rel=\"nofollow noreferrer\">actual ruling (in German)</a>). Core argument in that case was that adblockers do not distribute protected works, and do not create derivate works of the website. They merely change how the website is interpreted by a browser. However, the details here are dependent on German copyright law and on the specific capabilities used by adblockers – it might not generalize to other scenarios.</p>\n<p>Some browsers (e.g. Safari, Firefox) offer a reading mode that strips out all website contents except the main content, and then displays it in a more legible fashion. This strips out all navigation, sidebars, ads, and so on. So far, I don't think this kind of functionality has been challenged. This existing reading mode sounds quite similar to the reformatting tool you're envisaging. There are similar tools available in many programming languages, such as the Arc90 readability project (<a href=\"https://github.com/masukomi/arc90-readability\" rel=\"nofollow noreferrer\">software</a>, <a href=\"https://web.archive.org/web/20140712005155/http://lab.arc90.com/2009/03/02/readability/\" rel=\"nofollow noreferrer\">archived website</a>), which is in turn inspired by the <a href=\"https://www.instapaper.com/\" rel=\"nofollow noreferrer\">Instapaper</a> app. Read-it-later apps like Instapaper and Pocket do involve a bit of a grey zone though, since they involve server-side storage of articles.</p>\n",
"score": 4
},
{
"answer_id": 89323,
"body": "<p>You also asked:</p>\n<blockquote>\n<p>Can I freely distribute the code publicly on, say, GitHub so that\nother people can download it and use/run it themselves without any\nparty facing any sort of legal action?</p>\n</blockquote>\n<p>Yes you can. It's not illegal or against the news site's TOU to post or distribute code that you have the rights to that MIGHT be used by someone to do something that is against someone else's TOU.</p>\n<p>Actually using it in a way that violates someone's TOU is another matter entirely.</p>\n",
"score": 2
}
] |
[
"copyright",
"internet",
"software"
] |
Are there legal cases related to trademark infringement for using names inside a work?
| 0 |
https://law.stackexchange.com/questions/89309/are-there-legal-cases-related-to-trademark-infringement-for-using-names-inside-a
|
CC BY-SA 4.0
|
<p>Are there any legal cases regarding trademark infringement when a name is used <em>inside</em> a work? E.g a video game containing a location named using a trademarked name.</p>
| 89,309 |
[
{
"answer_id": 89317,
"body": "<p>You cannot copyright or trademark a name. Trademarks typically are more than just a name, but include stylizations including font, coloring, logos, or other icons and symbols. For example, The Golden Arches of McDonalds or the Nike Swish logo. In writing, these two symbols are difficult to reproduce so saying "He laced up his Nikes and went to grab a burger from McDonald's" is not a copyright or trademark violation. Hell, naming a character Clark Kent is not a violation of Copyright, so long as it's clear that he is not the more famous Clark Kent in even the slightest way.</p>\n",
"score": 1
}
] |
[
"united-states",
"trademark",
"legal-research",
"case-law"
] |
Is there any way to penalize fundraising that is based in part on frivolous lawsuits?
| 2 |
https://law.stackexchange.com/questions/87278/is-there-any-way-to-penalize-fundraising-that-is-based-in-part-on-frivolous-laws
|
CC BY-SA 4.0
|
<p>In a purely hypothetical question...let's set the hypothetical in Arizona in the United States as a default jurisdiction for the question, although other U.S. jurisdictions would be useful and of course around the world would be interesting.</p>
<p>Let's posit an individual is crowdfunding an organized effort to compel the government to change something. As a part of that effort, "proof" of the legitimacy of their ongoing fight is the existence of legal claims they are filing in court.</p>
<p>The courts in this scenario have found that not only are these suits without merit, they often do not even pass the frivolous standard and are otherwise ridden with legal errors unbefitting of any serious attempt to actually win in court. Thus, they have had multiple cases dismissed, yet they find ways of continuing to file different objections to the government action to show the people that they are asking for money from that they are still fighting and can absolutely win this thing.</p>
<p>Does using the courts in this way violate any law other than the individual sanctions for improper suits? In particular, is there any way to go after the money being fundraised for an activity that seems on its face to be of fraudulent intent? (I.e. filing cases with 0 chances of winning just to be able to dupe people into thinking their money can be used to help win an unwinnable fight?)</p>
<p>If there was such a way, would it be the state or federal government pursuing the case, or could any private actors have standing? The only ones I could think of are those who donated on the belief of the false claims who later felt defrauded.</p>
| 87,278 |
[
{
"answer_id": 87301,
"body": "<blockquote>\n<p>Does using the courts in this way violate any law other than the\nindividual sanctions for improper suits?</p>\n</blockquote>\n<p>Not really. Such an organization would probably have to be classified as some form of non-profit other than a 501(c)(3) in most cases, however, since politically motivated litigation usually doesn't qualify as a charitable purpose.</p>\n<blockquote>\n<p>In particular, is there any way to go after the money being fundraised\nfor an activity that seems on its face to be of fraudulent intent?\n(I.e. filing cases with 0 chances of winning just to be able to dupe\npeople into thinking their money can be used to help win an unwinnable\nfight?)</p>\n</blockquote>\n<p>No really. If they took money and spent it on the personal benefit of people related to the founders that might be fraud. This is essentially what happened in a non-profit purportedly established to help pay for a border wall. But using the money for a stated purpose of the entities that outsiders see as futile is probably not fraud or a violation of state regulation of entities that are not for profit.</p>\n<blockquote>\n<p>If there was such a way, would it be the state or federal government\npursuing the case, or could any private actors have standing?</p>\n</blockquote>\n<p>A state attorney general's office generally has broad supervisory standing to confirm that entities which are not "for profit" are conforming to state law and their governing documents.</p>\n<p>Donors might have private causes of action for fraud if there were fraudulent misrepresentations made to secure funding that both the state AG and the Justice Department could also enforce criminally. But, the conduct described does not appear to be fraudulent.</p>\n",
"score": 3
},
{
"answer_id": 87289,
"body": "<h2>Vexatious litigant</h2>\n<p>The organization and its members risk overstepping a very thin but highly visible line very quickly: If the Courts believe they are just wasting the court's resources, they - and all their agents - can be declared a <a href=\"https://en.wikipedia.org/wiki/Vexatious_litigation\" rel=\"nofollow noreferrer\">vexatious litigant</a>. Once they are vexatious litigants, they can't sue anybody for anyone without a special allowance from the court</p>\n<p><a href=\"/questions/tagged/arizona\" class=\"post-tag\" title=\"show questions tagged 'arizona'\" aria-label=\"show questions tagged 'arizona'\" rel=\"tag\" aria-labelledby=\"arizona-container\">arizona</a> deems a <a href=\"https://www.azcourts.gov/Vexatious-Litigants\" rel=\"nofollow noreferrer\">Vexatious litigant</a> under <a href=\"https://www.azleg.gov/ars/12/03201.htm\" rel=\"nofollow noreferrer\">Arizona Law</a>:</p>\n<blockquote>\n<p>12-3201. Vexatious litigants; designation; definitions</p>\n<p>A. In a noncriminal case, at the request of a party or on the court's own motion, the presiding judge of the superior court or a judge designated by the presiding judge of the superior court may designate a pro se litigant a vexatious litigant.</p>\n<p>B. A pro se litigant who is designated a vexatious litigant may not file a new pleading, motion or other document without prior leave of the court.</p>\n<p>C. A pro se litigant is a vexatious litigant if the court finds the pro se litigant engaged in vexatious conduct.</p>\n<p>[...]\nE. For the purposes of this section:</p>\n<ol>\n<li>"Vexatious conduct" includes any of the following:</li>\n</ol>\n<p>(a) Repeated filing of court actions solely or primarily for the purpose of harassment.</p>\n<p>(b) Unreasonably expanding or delaying court proceedings.</p>\n<p>(c) Court actions brought or defended without substantial justification.</p>\n<p>(d) Engaging in abuse of discovery or conduct in discovery that has resulted in the imposition of sanctions against the pro se litigant.</p>\n<p>(e) A pattern of making unreasonable, repetitive and excessive requests for information.</p>\n<p>(f) Repeated filing of documents or requests for relief that have been the subject of previous rulings by the court in the same litigation.</p>\n</blockquote>\n<p>In this case, the organization is running afoul of E1f. It's also noticeable that they might violate <a href=\"https://en.wikipedia.org/wiki/Res_judicata\" rel=\"nofollow noreferrer\"><em>Res Iudicata</em></a> by trying to file an identical lawsuit.</p>\n<p><a href=\"/questions/tagged/california\" class=\"post-tag\" title=\"show questions tagged 'california'\" aria-label=\"show questions tagged 'california'\" rel=\"tag\" aria-labelledby=\"california-container\">california</a> has <a href=\"https://en.wikipedia.org/wiki/Vexatious_litigation#California\" rel=\"nofollow noreferrer\">a better-described process to become</a> a vexatious litigant under <a href=\"http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=391.7.\" rel=\"nofollow noreferrer\">California law</a>. Three of the four ways to become a vexatious litigant require a <em>pro se</em> litigant to act frivolous and meritless in court, and the last makes any vexatious litigant in <em>any</em> other states automatically one in California.</p>\n<h2>How does that solve the issue?</h2>\n<p>Once the Organization's members are vexatious litigants, they can't file any suits anymore. Unable to file suits, their credibility breaks away. Should they hire lawyers to try to pursue their frivolous claims and those file the frivolous cases, the result will be those lawyers getting disbarred, and much faster if they bring such frivolous claims again and again. As a result, the organization will bleed itself of the ability to act in this way very quickly and as a result, lose its allegedly credibility-enhancing factor to exactly the contrary.</p>\n",
"score": 2
}
] |
[
"united-states",
"fraud",
"arizona",
"frivolous-arguments"
] |
Do companies have a legal right to force you to use their server after you have purchased their hardware?
| 1 |
https://law.stackexchange.com/questions/89306/do-companies-have-a-legal-right-to-force-you-to-use-their-server-after-you-have
|
CC BY-SA 4.0
|
<p>I have purchased several "Internet of Things" devices that, by default, come with an app that lets you turn it on and off. They use normal WiFi to communicate and are screwed into the walls so are now awkward to replace.</p>
<p>The default app communicates with the server that is provided by the British seller, <em>S</em>. The disadvantage of relying on someone else's server, include,</p>
<ul>
<li>it could suddenly disappear.</li>
<li>the provider may decide to charge for the service.</li>
<li>if your Internet connection goes down, so do your devices.</li>
<li>you are limited by the functionality that they deign to provide you with.</li>
</ul>
<p>As such, I want to mitigate this risk.</p>
<p>Though it is sold by <em>S</em>, the device is a rebadged product from a Chinese manufacturer, <em>M</em>. As such, this device is physically capable of being controlled by any server. I have seen many other owners discussing on community forums how they were able to achieve this by using the app provided by <em>M</em>.</p>
<p>The <em>S</em> app is heavily based on the <em>M</em> app but has less functionality. For example, the <em>M</em> app allows one to unlock the device so that one can use any server. That switch has been removed in the <em>S</em> app.</p>
<p>Recently, however, <em>S</em> has "updated" its firmware to prevent owners from using the <em>M</em> app, thereby preventing owners from using their own servers. This was not the case when I purchased the devices. This firmware was automatically rolled out to devices without notification and without advisement on what it changed. I have spoken to the Customer Service team at <em>S</em> and they have refused to provide a version of the firmware that allows owners to use their own servers.</p>
<p>Having purchased this device outright, I own it. As I understand it, neither <em>S</em> nor <em>M</em> retains any ownership. Therefore, I do not want a company to tell me how I can and cannot use my physical property.</p>
<p>Is there any legal basis to force <em>S</em> to allow me to use my physical property as I see fit?</p>
<hr />
<ul>
<li><em>S</em> is in England.</li>
<li><em>M</em> is in China.</li>
<li>OP is in England.</li>
</ul>
| 89,306 |
[
{
"answer_id": 89307,
"body": "<h2>You can replace the software on the device</h2>\n<p><strong>The supplier does not have to help you to do so</strong></p>\n<p>You are correct that because you own the device, you can do what you like with it. That means you can install whatever firmware or other software on it that you like.</p>\n<p>However, the supplier does not have to provide this to you or assist you in any other way.</p>\n",
"score": 3
},
{
"answer_id": 89310,
"body": "<p>You have some consumer rights, but it is not obvious whether S has done anything impermissible. They haven't shut down the server yet. Locking down the app might be in breach of your contract with them, but it depends on the context of what the devices are and exactly what they communicated to you when you bought them.</p>\n<p>The <a href=\"https://www.legislation.gov.uk/ukpga/2015/15/contents\" rel=\"nofollow noreferrer\">Consumer Rights Act 2015</a> was enacted in order to clarify consumer rights in this sort of situation. You have bought a Thing, and the Thing depends on ongoing communication with some Internet service, but previous consumer rights law focused mainly on the physical Thing - making it difficult to apply when the Thing itself is not broken.</p>\n<p><a href=\"https://www.legislation.gov.uk/ukpga/2015/15/part/1/chapter/3\" rel=\"nofollow noreferrer\">Part 1, Chapter 3</a> covers contracts for "digital content", including the situation of <a href=\"https://www.legislation.gov.uk/ukpga/2015/15/part/1/chapter/3\" rel=\"nofollow noreferrer\">Section 39</a> where continued operation of your Thing depends on a "processing facility" that sends and receives your data. The law provides that the facility must remain available for "a reasonable time" (unless you have a contract that sets out a specific time). If that does not happen then you have various possible remedies. But on the facts outlined, the server is still operational. Even if it went down, you'd still face the hurdle of saying that you didn't get to use it for "a reasonable time".</p>\n<p>The locking-down of the app is potentially something that you could challenge. The argument would be that the change in firmware (which is also "digital content") means that it is not as originally described to you when you entered into the contract, or that the new version is no longer fit for purpose. For the "as described" limb, see Section 36. Any information that S provided about</p>\n<ol>\n<li>"the main characteristics of the goods or services, to the extent appropriate to the medium of communication and to the goods or services",</li>\n<li>"the functionality, including applicable technical protection measures, of digital content", or</li>\n<li>"any relevant compatibility of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of"</li>\n</ol>\n<p>forms part of the contract. If S changes it after the fact then your consumer rights kick in and (in addition to any normal procedure for breach of contract) you can start demanding repair, a price reduction, etc.</p>\n<p>However, if they didn't tell you "oh yeah, you can point this at your own server if you want", then your situation is harder, because they didn't actually promise you that you could. You might be able to lean on the "main characteristics" if people ordinarily buy these Things on the assumption that they aren't linked to a specific server. That overlaps with the "fitness for purpose" test for the firmware, since if people ordinarily use these Things for a certain purpose, even one which S does not endorse, then you can assert that the firmware ought to be reasonably fit for that purpose.</p>\n<p>(What is outlined above is basically in line with contracts generally, where it's very common to have situations where A has relied on B's promise and B is no longer performing. The consumer-rights regime gives some specific rules for these disputes, for the contracts described.)</p>\n",
"score": 1
}
] |
[
"software",
"england-and-wales",
"hardware"
] |
Can someone who has been disbarred act as a scribe for a disabled lawyer?
| 16 |
https://law.stackexchange.com/questions/89229/can-someone-who-has-been-disbarred-act-as-a-scribe-for-a-disabled-lawyer
|
CC BY-SA 4.0
|
<p>I'm watching Better Call Saul right now and I'm at the bit where</p>
<blockquote class="spoiler">
<p> Jimmy is suspended and Kim gets in a car accident.</p>
</blockquote>
<p>It got me thinking: if someone were disbarred, would it be legal under US law for them to do act as a disabled lawyer's eyes or hands? Or would this in effect be practicing law without a license even if they are under direct instruction?</p>
| 89,229 |
[
{
"answer_id": 89230,
"body": "<p>In New Mexico, where Better Call Saul is set, <a href=\"https://casetext.com/rule/new-mexico-court-rules/new-mexico-rules-of-professional-conduct/scope/article-5-law-firms-and-associations/rule-16-505-unauthorized-practice-of-law-multijurisdictional-practice-of-law-effective-december-31-2022\" rel=\"noreferrer\">N.M. R. Prof'l. Cond. 16-505</a> prohibits an attorney from employing a suspended or disbarred attorney as a law clerk or paralegal only if there is an order from the New Mexico Supreme Court or its disciplinary board prohibiting that appointment. I don't believe the show ever indicates there was such an order.</p>\n<p>Other states have different rules. Some prohibit this type of activity altogether, while others permit an attorney to continue as a paralegal while suspended, but not after being disbarred. I believe some states merely require that the attorney disclose that she is using the services of an attorney who is under discipline.</p>\n",
"score": 34
}
] |
[
"united-states",
"professional-ethics",
"disabilities"
] |
What legal character does the Istanbul document have?
| 3 |
https://law.stackexchange.com/questions/89223/what-legal-character-does-the-istanbul-document-have
|
CC BY-SA 4.0
|
<p>The Budapest memorandum and the Istanbul document are two important documents thought to guarantee security & stability in the regions of the former Soviet Union. <a href="https://en.wikipedia.org/wiki/Russo-Ukrainian_War#Background" rel="nofollow noreferrer">1</a></p>
<p>The Instanbul documents states:</p>
<blockquote>
<p>"We reaffirm the inherent right
of each and every participating State to be free to choose or change its security arrangements,
including treaties of alliance, as they evolve. "</p>
</blockquote>
<p>I have heard that the Instanbul document is a declaration of intent, not a treaty. What is the legal character of this document? Is it legally binding? If yes has Russia retreated from that agreement?</p>
<p><a href="https://www.osce.org/mc/39569" rel="nofollow noreferrer">Istanbul document</a></p>
| 89,223 |
[
{
"answer_id": 89224,
"body": "<p>This is what is usually called a <em>declaration</em> (that the Instanbul Document is sometimes called a declaration of <em>intent</em> has no legal significance). Declarations are not binding in the way that treaties are. They don't independently create obligations to the world. But they can play a role in establishing or reflecting customary international law; can provide evidence of <em>opinio juris</em>; and domestic legal systems can look to them in applying a presumption of conformity.</p>\n<p>The Universal Declaration of Human Rights and the U.N. Declaration on the Rights of Indigenous Peoples are two other declarations. They both happen to reflect a lot of customary international law: much of the content is binding even though it also appears in these declarations.</p>\n",
"score": 3
}
] |
[
"international",
"war"
] |
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